Should Everything Wrong Be Illegal?

[_honorentheos]

I'm curious how people here feel about the question in the OP?

Put slightly differently, should we make laws criminalizing and punishing anything that society deems to be wrong?

There are many subtopics in that, not least of which being who gets to define wrong and how they go about it. And in a sense it's essential to thinking about the question. But perhaps it is possible to sidestep that initially and consider the prime question on its own and simply first.

[_Lemmie]

I say only make illegal the wrongs that hurt other people. Of course that opens several more doors regarding the definition of hurting others, both in the short and long term, as well as passive vs. active hurting, which would include externalities, and who gets to decide when feeling hurt is actually being hurt, etc.

I’m curious what brought this up for you?

[_huckelberry]

I think the answer is clearly no. It would either swamp the legal system into collapse (or a functional retreat to the present approach) or recast all sorts of bad actions as fine and ok because not illegal.

[_honorentheos]

I say only make illegal the wrongs that hurt other people. Of course that opens several more doors regarding the definition of hurting others, both in the short and long term, as well as passive vs. active hurting, which would include externalities, and who gets to decide when feeling hurt is actually being hurt, etc.

I’m curious what brought this up for you?

Thanks Lemmie. It came out of a conversation with people I know. It wasn't explicitly said by anyone but it struck me that underlying differing views held in the group was disparity on two axises. One being the types of things one views as "wrong", and the other being the appropriate mechanisms for policing wrong activity. The most libertarian of the group surprised me most by expressing a strong moral sense. It didn't surprise me that they viewed criminality as the wrong approach as a disincentive to do what they considered wrong. But the depth of moral sentiment was a bit shocking. He isn't an atheist though I don't know his specific belief system, and in that regard is an anomaly compared to most libertarians I know either in real life or on the net. The progressives in the group, which describes most of the people there, were far more wide ranging on what is wrong but much more likely to say something ought to be illegal that I don't even think is wrong. I was reminded that Ajax had made a comment earlier this week about criminalizing the removal of career government workers as one of two options on the table if one didn't think a President was right to purge the State Department when they took office as well It left me to think more about it and I distilled that down to the question above as something that now interests me a great deal.

[_honorentheos]

I think the answer is clearly no. It would either swamp the legal system into collapse (or a functional retreat to the present approach) or recast all sorts of bad actions as fine and ok because not illegal.

One idea that I come back to based on your comment arises out of Hayek's The Road to Serfdom where he argued any attempt at executive control of even small matters inevitably creates conditions requiring further attempt to control those outcomes. This eventually leads any government or system built on having a controlling hand to become an iron fist of control as the attempts to fix problems caused by attempting to control the system are self-perpetuating.

In that sense, it seems we have to have some things that society may acknowledge collectively as wrong but which other mechanisms have to exist to discourage engaging in them other than criminalizing them. But what, exactly?

[_honorentheos]

I say only make illegal the wrongs that hurt other people. Of course that opens several more doors regarding the definition of hurting others, both in the short and long term, as well as passive vs. active hurting, which would include externalities, and who gets to decide when feeling hurt is actually being hurt, etc.

I think this is a good starting point as it intuitively seems right. I think it gets cloudy quickly though even without having to define a common ethical baseline.

For example, is there a threshold negative gossip crosses between making a person feel like they are being harmed and their experiencing negative impacts independent of their emotions? In my mind, the two are detached in that a person's life could be quite damaged by gossip and they be none the wiser. The promotion they don't get, the relationship they miss having, the opportunities diverted they would have gained from...those aren't just feelings.

But should it be illegal to gossip? We have laws against libel and slander, but they don't necessarily cover all harmful cases and most people wouldn't pursue charges anyway. Yet most people have probably been harmed by gossip in some way. Is the answer to make more types of gossip illegal and lower the disincentives to pursue charges against a person?

[_Gadianton]

Everything that's actually wrong should be illegal. When people say that you can't legislate morality, what they really mean is that the stuff religious fanatics try and make illegal isn't actually wrong.

An easy example: fantasizing about doing something harmful to another person. Should that be illegal? Most of us would say "no", I think. The disagreement would be over whether fantasizing like that is wrong. If it's wrong, then on what grounds since it's of no consequence?

Another example: driving 47 in a 45 zone. It's illegal but nobody would think it's wrong. But that's because in the realm of laws we assume rule utilitarianism makes sense if for no other reason than for the sake of efficiency, but in our personal lives, we think in terms of act utilitarianism. We think, how is this thing I'm doing right now actually hurting anybody? square up the criteria and it's much harder to conceive of something that's wrong that should be legal.

[_honorentheos]

Thanks, Gad.

One example that comes to mind to push against your criteria is the pursuit of profit by a company which is not illegal and considered rational. Suppose that a CEO believes lobbying for advantage is wrong even though on paper the dollar spent on lobbying is is more profitable than the one invested in some other way because getting government protection or subsidizing ones industry is a game changer. And by forgoing maximizing the company's accounting profit the board could argue the CEO should be replaced with someone who would do so. And suppose we take the above to argue the pursuit of profit will inevitably result in corruption of democracy and destroy open market behaviors so society itself will be harmed. The act of lobbying harms our competition while enriching our company, but it will result in the collapse of democracy and the system of government making open markets possible. We can point to examples around us that show the pull is actually in this direction and not just hypothetical.

Would that be an argument lobbying should be illegal?

[_Res Ipsa]

One quick thing, Honor. I think you need to distinguish between “when should a person who has been harmed by another be entitled to seek compensation” and “when should the state be entitled to punish conduct through forced deprivation of life, Liberty, or property. Defamation is an example of the former, but not the latter.

[_Gadianton]

Honorentheos,

According to Milton Friedman, the CEO is morally responsible to make his shareholders money, and therefore is morally bound to flood rivers with pollutants, pay off politicians, and whatever else makes the investors money. Therefore, it's up to government to solve for market failure scenarios. He hoped something in the spirit of the market could work like vouchers for polluting, but nonetheless it's the government's roll at the end of the day.

So then, the moral dilemma could be, suppose the CEO does a risk analysis and concludes that it's well within the company's spirit of risk to get around the laws for bribery and make 2% more for his shareholders, is he morally obligated to do so?

Well, there are lots of moral dilemmas I can't answer, but you get the idea. Perhaps there is some room for saying that some things are wrong but not illegal, or can't legislate morality, but just want to make sure people aren't taking the easy way out and they are really just saying it's other people's ideas of morality that shouldn't be legislated, not theirs.