Are Vices Crimes?

I went into this Colloquium expecting to understand the limits of government paternalism and see if we could have a framework for it. And while I was there, maybe get answers to equally important (if not more so) questions like – Can the state declare eating Chole Bhature (my soul food) a crime? Possibly because it is loaded with bad cholesterol, and one could argue that bingeing on it is a vice. 

With such questions in my mind, we began by discussing an excerpt from Sarah Conley’s 2012 text, Against Autonomy: Justifying Coercive Paternalism. Her premise was that human beings aren’t entirely rational as recent advances in the field of Behavioural Economics and Psychology have shown. And so, exceptions could be made to John Stuart Mills’ idea of liberty – wherein we respect the decisions of individual agents, when those decisions affect no one other than the individuals themselves. She argues that we should not let the idea of the autonomy of an individual degenerate to a point where we are mute spectators to individuals harming themselves. After all, should one stand by and watch a person consume antifreeze mistakenly for a sports  drink? No, right? And so maybe there was a case for saving people from themselves at times – a case for saving them from alcohol, cigarettes, marijuana, or simply from Chole Bhature! 

The ensuing discussion brought forth some crucial points. Our pursuit of vices at times is simply because of our ignorance of the harm they may cause. So, there may be a use of government legislation when addressing issues of ignorance or information asymmetry. However, the pursuit of a vice, once ignorance or information asymmetry is addressed, should be left to the individual. A case in point is cigarettes, where the government mandates pictorial warnings to individuals. This is similar to allergy warnings on packets of food items or the maximum recommended consumption of caffeinated sports drinks. However, the question of an outright ban needed further interrogation. 

Largely, participants agreed that the paternalistic benevolence of the state could also be questioned in the face of self-interest. Even if we agree to the legislation of vices by the state, what is the guarantee that the state, composed of fallible humans, will always have our best interests at heart? And isn’t this precisely what the field of Public Choice Theory has cautioned us against? 

Going forward we probed the idea of what exactly is a vice and what is a crime? Lysander Spooner gave us a good starting point: 

“Vices are those acts by which a man harms himself or his property, crimes are those acts by  which one man harms the person or property of another…. vices are simply the errors which a  man makes in his search after his happiness.” 

So, prima facie Chole Bhature are in the safe. Since I am not harming any other person or their property, at most, bingeing on Chole Bhature can be classified as a vice. On second thought though, it could be construed as a crime if I shared my plate of Chole Bhature with someone and they ended up with bad cholesterol! However, being a good samaritan, I wouldn’t want to take that chance and ‘harm’ another person (assuming that I am aware of their existing high cholesterol levels). No wonder good samaritans like me don’t share Chole Bhature!

But what about harming oneself, you may ask. And that point did crop up. To dissect that further we interrogated what is harm and how does one quantify it objectively? Take bhang for instance. In Northern India, it is integral to Holi celebrations. Broadly we can agree that consumption once a year is not a serious issue. But what about it becoming an addiction and the person experiencing withdrawal symptoms when given a miss? Or take alcohol for that matter. Drinking on special occasions may not be an issue, but what if one is addicted to the point of experiencing withdrawal symptoms. Maybe then we can deem it a vice. Only when this addiction to alcohol harms others (for instance, domestic violence as a result of alcoholism), does it become a crime.

Notice the use of the word ‘maybe’ in the above paragraph. I used it intentionally. At the colloquium, we  realised that harm isn’t absolute but often a question of degree. The real challenge in the above examples was to determine the consumption level, on the spectrum of total abstention to complete addiction, at which an activity could become a vice. 

Further, a vice might not even be an intrinsic character of the act itself. Take lying for instance. Most of us would jump to declare it a vice. However imagine this scenario which was thrown at us by the moderators of the colloquium – You are living in Hitler’s Germany and hiding a Jew friend in your cabinet. A Nazi soldier knocks on your door to enquire if there are any Jews hiding around in your house. For they need to be taken to the concentration camps. Should you tell the truth? Remember, your good friend could end up in the gas chambers. As you would expect most of the participants agreed that it was acceptable to lie here. But then what happened to our principle that lying is a vice? The example illustrated that there was more to classifying an act as a vice. It wasn’t the act itself but the context of the act that was equally important and decided the nature of an act. 

But even if we could define it objectively, it boiled down to how much harm one was willing  to take upon oneself in the pursuit of their idea of happiness. The state, by putting a limit on this pursuit, was curtailing individuals’ exploratory urge to seek happiness. At most, we understood vices as a wrong turn on our individual explorations. 

Lysander Spooner had an interesting analogy in this regard. He said, parents may prevent their kids from  committing mistakes but that wouldn’t allow the child to learn. No amount of talking about  fire will tell a child about the nature of fire. Of course, there was a case for advising but good  parenting entailed allowing mistakes and letting the child figure out right from wrong and find  what makes him/her happy. To a first-order approximation, paternalistic interventions of the state could also be seen in the same light. An adult navigating the vices of the world is also  learning. The state by inhibiting the learning and discovery process was only acting to the  detriment of the individual. 

Apart from these abstract philosophical arguments, we also dealt with a pragmatic question – Is there anybody without a vice? We agreed that it would be hard to find an individual with no vices, given that the definition of vice itself remains unclear. And so, if the government was to take cognizance of all vices and punish them impartially then everybody would be in prison for some or the other vice. There would be no  one left outside to lock the doors of these prisons! I am sure that’s an indefensible position to even the most ardent supporter of government paternalism. 

During the colloquium, regulation emerged as a fair compromise. However, there remained a need to circumscribe the role of the state in regulating behaviours of individuals. Which led us to the question – Could good behaviours be ensured through ways other than the fear of a coercive state? 

Peter McWilliams’s text, Ain’t Nobody’s Business if You Do, on the difference between norms and customs of the society, and the laws of a state offered a useful pointer. That we obey the laws of the state isn’t surprising, given the coercive, policing powers of the state. But why do we obey customs and norms of a society that doesn’t have legal, coercive powers? Turns out the answer is surprisingly simple. We all want to fit in. If our behaviour is sufficiently eccentric, society would punish us simply by ostracising us. 

So, in principle, I could have come dressed to this colloquium in aluminium sheets, walked backward, and insisted on shaking hands while everyone was doing a namaste or an ‘elbow bump’ as a precaution against COVID-19. But it is the strange stares from everyone that force me to be more careful. 

And notice that these norms are spontaneously evolving. Shaking hands at a colloquium was  after all acceptable before COVID-19. The beauty of such behaviours is that none of them are mandated. Nobody has to tweak a law somewhere for us to obey it. Nor is the policing arm of the state ensuring compliance. It’s simply our desire to fit in that does the trick. 

This shows that society has equal, if not more, power over an individual’s behaviour than law enforcement does. Moreover, it strikes a good compromise between John Stuart Mill’s idea of  liberty and enforcement of good behaviour without penal coercion. 

Further such an arrangement for dealing with vices is in line with John Locke’s libertarian idea of equality, which demands “equality of authority”. The argument goes that we all have equal faculties. Thus, there cannot be a case for subordination of one by the other. Further governments cannot possess a right that citizens lack. This implies, just as citizens have no rights over another person or their property, the state can have no rights over another person or their property. And this should apply even when the individual is pursuing a vice. 

And for the Chole Bhature warriors out there like me, our dish is safe from the coercive pries of the state! I assure you I tried my best to put forth our case.

Read more: Smart Agriculture in India