Saturday, May 5, 2012

Law Protestants and drug prohibition

A few weeks ago, Bryan Caplan put up an interesting blog post examining the differences between what he called Protestant and Catholic approaches to morality. To quote him directly and briefly on the differences between the two:  "The 'Catholic' approach has extremely high moral standards (e.g. Be celibate; give everything you have to the poor; love everyone), but enforces them loosely. The 'Protestant' approach has moderate moral standards (e.g. Don't commit adultery; prudently give to the deserving poor; don't hate people who've never done you wrong), but enforces them strictly."

It occurred to me recently that this is also perhaps a useful way for describing differences in the way that people think about law. "Law Protestants" tend to think that there should be relatively few laws, that they should be easy to understand, and that government should enforce them strictly . "Law Catholics" likewise are comfortable with a larger and more complex legal system and with looser enforcement of the rules.

I suspect that vast, vast majorities of libertarians are hard-line law Protestants.  The points that there should be few laws and that they should be easy to understand are pretty foundational to the major variants of libertarianism. Libertarians in my experience say and write less about the need for strict enforcement of the few laws that we do support.  But I suspect that most of us nonetheless want that. Liberals and progressives, on the other hand, tend to be more comfortable with taking a "law Catholic" approach to law. And conservatives seem to be a mixed bag -- the most libertarian-ish conservatives of my acquaintance seem to have strong law Protestant streaks, but not all do.

Take drug prohibition, for example. Sometime in mid-high school, I remember getting into a debate on the bus with two other girls about drug use. One, the most popular socialite in the bunch, was talking about how much fun she and the other popular girls had smoking marijuana at the cool crowd parties to which the other (almost equally nerdy) girl and I were generally not invited. The two of us acted appropriately scandalized. We told her that we thought that this was wrong, and finally the other girl said simply, "It's not legal. Doesn't that bother you? That you're doing something that's not legal? Whenever we have to go to those Just Say No and DARE programs, I'm always confused about why the instructors don't emphasize more that it's not legal." The socialite shrugged. Yes, it might not be legal, but it was safe, and she and her friends weren't very likely to get caught doing it, so why care?

I remembered feeling upset by that exchange because, as strongly as I disapproved  of drug use then (probably more strongly than I do now, actually) I realized that Socialite Girl was right about the odds of her getting caught. I realized that basically all the adults who had enacted national drug policy cared about sending a vague message to Socialite Girl and her friends that what they were doing was bad, but they seemed perfectly content with an enforcement policy that in effect let millions of teenagers like Socialite Girl and her friends go undetected in casual drug use. This was perhaps my first inkling that I was a hard-line Law Protestant. It was also my first inkling that federal drug policy was producing a nation of Law Catholics.  I didn't like it one bit. The Law Protestant in me wanted "It's not legal" to be words with the moral force to end the discussion.

This sort of thing doesn't seem to bother the pro-drug-prohibition conservatives of my acquaintance as much it should. Drugs are bad and harmful, and so if illegality deters anyone at the margin from using them, we should be fine with such laws. It doesn't matter if a few people like Socialite Girl and her friends get to flout the law with impunity, so long as someone, somewhere, is being deterred from harm. How very Law Catholic of them.  Yet conservatives seem much more (in my view appropriately) suspicious of Law Catholicism in other contexts, e.g. in opposing  hate crime laws. I'm not sure Law Catholicism, once loose in society, can be cabined off so easily. I fear that it's a force that's hard to contain.

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