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Sunday, 16 August 2009

"It Should Be Banned!" - Thoughts On Banning Things

One feature of modern political debate is the readiness of people to say something "should be banned".

The thing to be banned - which I will now call [B] - can range from drugs to obscene art, from fox hunting to animal experiments, from prostitution to absinthe, and from blasphemy to homosexuality.

There are dozens of examples, and this tendency is shared by the left, right, and centre.

However, from a legal perspective, to ban [B] is not actually to eliminate or extinguish it.

Sometimes [B] continues on as before, but slips down the back streets or dives underground.

Or sometimes [B] does actually stop in practice - like say bear baiting or cockfighting - though this can often be because of cultural change rather than legal change.

It may even be that the consequences of banning [B] are such that one will be deterred from doing [B], and sometimes this can work in practice, though the deterrence theory of punishment is generally questionable and has always seemed to me to be unfair.

In all cases, what banning [B] means is that if [B] now happens it can be attended by certain consequences.

This is because law is not actually any good at banning things like [B] but for providing for sanctions and liabilities should [B] happen again.

To use the law to ban something is not to invoke some magical power to prevent it happening.

Modern criminal law actually does not seek to ban things, at least not expressly. Instead the usual criminal statute will say that to do [B] shall "be an offence".

This means that the police and courts will deal with incidents of [B] in a certain way, and so in turn (if appropriate) will the prison and probation services.

To ban something is not the end of a phenomenon, but the introduction of new knock-on effects.

All this is straightforward in the mainstream of criminal activity, the endless and depressing daily tally of dishonest acts and physical assaults. It is also entirely appropriate for the most serious examples of dishonesty and violence.

I am not in the least sentimental about those who engage in serious criminal activity.

But dealing with mainstream criminality through a grim system of offences and sanctions is not the same as dealing with issues which can (arguably) have wider and contended religious, normative, sexual, or cultural significance.

And these can range from drugs to obscene art, from fox hunting to animal experiments, from prostitution to absinthe, and from blasphemy to homosexuality.

Sometimes it may well be wrong, and perhaps it really should come to an end.

But in my view, nothing is ever really banned by banning it.

Next time you catch yourself saying "it should be banned" reflect on whether you merely want it to ended, or whether you really wish it to perhaps continue but be subject to a criminal justice system processing unlucky future incidents of it ever being caught.

18 comments:

Carmenego said...

Excellnt article as always. I have a very keen interest in piercings and tattooing, and I was dismayed (to say the least) when last year a 'ban' was put on obscene pornography which now includes still images of tattooing and piercing (but not videos, curiously), despite there being no sexual element involved.

There were several campaigns about it and protests last year, but by labelling something innocuous as "extreme pornography" I feel that less people were willing to publicly admit that it was a badly worded sanction.

Post 9/11, we in the UK have seen unprecedented restrictions of our rights to free speech, right to protest, right to question those in authority. Our choice of potential candidates for the next election is so slim we are choosing between a rock and a hard place, and I very much doubt that the majority of the population will abandon this 2-party political system we appear to be so comfortable with.

What can we, as concerned citizens do when sensible debate about political hot potatoes is thrown out of the window? (Remember Jackie Smith getting an advisory board of scientists to discuss drugs, and then completely ignored what they said?)

Carmen x

Jeff Pickthall said...

What authoritarians fail to grasp and that any psychologist will tell you is that banning [B] is likely to increase the perceived attractiveness of [B].


I have repeated debates with my retired GP stepfather who believes that banning drugs reinforces the message that drugs are bad and that it deters significant numbers of potential users. He brings up the rubbish "open the floodgates" argument every time I suggest legalisation and regulation.

Miranda Hale said...

Excellent post! I greatly enjoy your blog & find it to be very thought-provoking and interesting.

Schroedinger99 said...

One thing that always strikes me in this area is just how astonishingly successful we have been at reducing tobacco consumption in the UK during my lifetime. We have achieved this without imprisoning a single smoker or tobacconist. There must be a moral there somewhere.

Anonymous said...

Interesting thought. Here, of course `banning' is immedately the impetus to begin performing the `banned' act... and for those involved, it's NOT perceived as being criminal, unless there's a `law on the books'... ;-)

Anonymous said...

Schroedinger99 said...

One thing that always strikes me in this area is just how astonishingly successful we have been at reducing tobacco consumption in the UK during my lifetime. We have achieved this without imprisoning a single smoker or tobacconist. There must be a moral there somewhere.

That may have been true. However since the smoking ban in enclosed 'public' spaces, this trend is about to go into reverse.

Neuroskeptic said...

I think a good example here is "The Driller Killer".

The Driller Killer is a ridiculous horror movie about a maniac who kills people with... guess.

The only reason I, or anyone else, has heard of The Driller Killer is because it was banned for being too violent.

There are more violent movies. There are more scary movies. There are certainly better movies. But there are not that many movies that were banned in the UK (and Germany).

Nash said...

One good example of a 'ban' is of course Prohibition in the USA.

Nobody stopped drinking and the USA was left with the legacy of organized crime after the ban was lifted.

"the definition of a puritan is someone who has a haunting fear that someone, somewhere, is enjoying themselves."

SVETLANA PERTSOVICH said...

Well There are silly bans. I don't argue.

But there are clever and good bans.
For example, ban of nuclear weapon, ban of racism, mass homicide, slavery.

I hope you agree with me, eh?

What aim did you have, writing this post? I know that today's main your thought is about quackery and anti-quackery. And probably you thought about this too, when you wrote this post.

Maybe did you want to suggest us the idea that full ban of quackery (actually the ban of CAM!) is not suitable way for your British society?

OK!

Explain, please, why is it bad if you ban completely any CAM in your country? Imagine such situation - any quackery is completely BANNED in your country.
And explain, why do you think that it is bad?

What sort of ban is this? Clever ban or silly ban?

RW said...

I think this is a really good point. Banning something is demonstrably not the same thing as stopping it from happening, but people sometimes talk as though it is. There's a fair amount of evidence from psychology that human beings tend to over-estimate their ability to control events in the world and I wonder if this way of thinking in politics stems partly from that?

Kate said...

Svetlana,

You said: 'Well There are silly bans. I don't argue.

But there are clever and good bans.
For example, ban of nuclear weapon, ban of racism, mass homicide, slavery.'

Do you think the difference between a 'good' ban and a 'bad' ban could have something to do with the banned object/action's effect on the user? What I mean is, all the 'good' bans you listed are things that affect people other than the person who is carrying out the banned action or using the banned item (although 'banning racism' is a bit of a blanket statement, but this blog entry isn't about racism). Banning things such as violent video games etc seems to occur because it's judged to be harmful to the person who actually uses it.

I haven't really though this through, just thought I'd bring it up. I've also conveniently ignored JoK's point about certain actions being an 'offence' rather than being banned outright, although I'm not sure it makes a huge difference to the main point.

SVETLANA PERTSOVICH said...

@Kate

Sorry, it is not so! The ban concerns those people who actually PRODUCES strong games, tobacco, strong drinks, but not those people who actually use it.

And by the way, it is the essence of problem about the ban of quackery too, so - thanks for your answer, you are really walking "close by the goal".

Kate said...

@Svetlana,

Fair point. However, I don't know enough about the laws surrounding different products/substances in different countries, but I imagine there are variations on who's prevented from doing what. For example, and hypothetically speaking, in some countries it may be legal for someone to drink alcohol from a certain age (so until that age it's illegal for them to drink it), but it might not be legal to sell it to them until they are older. Either way, ignoring when someone is legally considered an 'adult' (because we're dealing with a lot of different laws in a lot of different countries here, so I'm only speaking generally), if it's illegal to sell a violent video game for example, then the person who the law is supposedly protecting is still able to decide whether or not to buy it. People can't make the choice whether or not they're going to be murdered, or a victim of racial abuse.

Ivan said...

I take the view that the law of the state, enforced either through penal sanctions or restitutive damages, should focus on controlling (a general term intended to include the possibility of banning) actions which are anti-social. This is in contrast to people, often of a religious disposition, who often want the state to control things which they consider immoral, but which are not especially antisocial. They are meddlesome (a word used for this by Nobel laureate economist Amartya Sen), and I believe we should not respect meddlesome desires. This is also in contrast to authoritarian rulers, who create bans so that they have the opportunity to to be seen to be punishing people, to create fear. (Mao for example created ill-defined offences such as "capitalist-roader" to have the opportunity to punish lots of people.)

The state also controls things that they consider self-harming (drug-taking), or where the action is associated with criminal activity (stealing to buy the drugs). Though criminal activity is in itself encouraged by powerful controls.

In relation to controlling CAM, well I'm rather fond of certain placeboes myself, and why shouldn't I have them? It is not anti-social to indulge in them. I'm not even against people recommending placeboes for self-limiting medical conditions, to help you "feel better", where the main alternative is to wait to get better. A certain belief is necessary for the placebo to work well. Giving an infant a placebo together with reassurance for, say, colic is probably in this category: we do not know if "colic" is a well-defined condition; there is not a known effective treatment; and the condition is not dangerous. What I do need to be protected against is placebo-sellers making false claims for their placeboes - that is antisocial - though I don't want to rob them of all their mystique, which is probably part of being a good placebo.

SVETLANA PERTSOVICH said...

No. You didn't understand me.

I didn't ask question "why is it good/bad if we allow quackery?"
This question (and situation, when we they live like now) was discussed in our talks fairly often.

I asked other question:
"Why is it good/bad if we BAN quackery?"

Cathy B. said...

A very late addition:

That's the whole point. You don't "ban" quackery. Nothing the law can do will make it vanish. You just make it illegal to (a) proport to cure people without a medical licence or (b) provide any treatments without a scientific basis or some other, better, definition of quackery. In case a you leave GPs or other doctors still able to hand out sugar pills, case b maybe impact on medical research or have a long argument on what a sufficent scientific basis. (Quackery - I know it when I see it - not a good basis for law).

And in all cases you would have people offering quack services under the guise of other services (counselling with free sugar pill?) or simply going underground. Or worse, the legislation being effectively ignored.

I truly can't see the advantage in doing it. Fines for mothers giving Teetha to their kids? I'd rather concentrate on someone claiming to cure cancer.

Steve Jones said...

To argue that nothing should be banned is a clear nonsense as it means nothing would be illegal. Also to argue that banning is ever the same as elimination is also a nonsense. If we can use a bit more rigour, then we might say that some things are illegal and punishable by criminal sanction. For instance, I don't think anyone is saying that we should "unban" murder. Equally making murder illegal clearly doesn't eliminate it.

So the real question is which activities should be considered illegal to the extent that they are made punishable by criminal sanction and which should not. The state has several other ways of using coercive powers to signal what are socially unacceptable forms of behaviour. At one end we have the most serious crimes punishable by heavy prison sentences, through fines, ASBOs and taxation. Then there is the not inconsiderable ability of the state to rule over what is or is not enforcable through civil actions. I suspect there are at least as many daily activities which the average citizen engages in which are coverd by civil liability as criminal.

Also, banning works the other way. The state has passed a whole series of laws which have limited private freedom to discriminate. For instance, it is illegal to discriminate on the grounds of race, religion (apart from in the field of education) and sexual preference. I'm not sure under quite what heading such anti-discrimination legislation fits, but I'd call it banning.

So it's a the wrong question. The right one is where should the boundary be set for criminal sanction and on what criteria (and similarly for sub-criminal sanctions). The most obvious criminal criteria to me is for any action which is grossly, inescapably and directly harmful to others over and above the social benefit should be illegal (or esle we would catch things like private motoring). It's fairly obvious that murder, fraud, negligent driving and a host of other things need to be in that category. Similarly, unsafe practices which represente hazards to others should be in that class (unqualified medical practitioners for one).

This, however, leaves us with a whole series of other social activities which may not be grossly directly harmful to others, but which are indirectly of possible social harm. Drug taking, alcohol, smoking, not wearing seatbelts and some social practice fit into that area. Some might add selling "junk" food (a polemical rather than objective term in my view) might also fit there.

Here I think that we need to tread very carefully indeed. There is a case that harmful social practices (or at least those with an obvious financial cost to the state) should be considered for increased taxation. (Although I'm very suspicous of the objectivity of studies that show junk food or smoking actually increase State costs in total - there's a good argument that practices which extend lifespan do that).

Anway, on the above basis, I don't think that Ben Goldacre is a liberal (I think he's a really a utilitarian - which is a different thing). Jack, I think, is much more of a true liberal.

As an example, making wearing of the burqa would clearly be illiberal, although I personally I think it an afront to civilised human interaction and that it is, in practive, a social control measure (state enforced in some countries). So it sits on that uncomfortable boundary where, in an ideal world, it would not exist. It is a symbol of the worst sort of illiberalism yet making it illegal would be an illiberal act. The interesting thing is that the French have effectively come up with a law which provides for a tax on wearing the burqua in public albeit in the shape of a financial penalty. Indeed that's an interesting cross-over point; just where is the difference between a tax on a socially undesirable activity and a fine...

Steve Jones said...

To argue that nothing should be banned is a clear nonsense as it means nothing would be illegal. Also to argue that banning is ever the same as elimination is also a nonsense. If we can use a bit more rigour, then we might say that some things are illegal and punishable by criminal sanction. For instance, I don't think anyone is saying that we should "unban" murder. Equally making murder illegal clearly doesn't eliminate it.

So the real question is which activities should be considered illegal to the extent that they are made punishable by criminal sanction and which should not. The state has several other ways of using coercive powers to signal what are socially unacceptable forms of behaviour. At one end we have the most serious crimes punishable by heavy prison sentences, through fines, ASBOs and taxation. Then there is the not inconsiderable ability of the state to rule over what is or is not enforcable through civil actions. I suspect there are at least as many daily activities which the average citizen engages in which are coverd by civil liability as criminal.

Also, banning works the other way. The state has passed a whole series of laws which have limited private freedom to discriminate. For instance, it is illegal to discriminate on the grounds of race, religion (apart from in the field of education) and sexual preference. I'm not sure under quite what heading such anti-discrimination legislation fits, but I'd call it banning.

So it's a the wrong question. The right one is where should the boundary be set for criminal sanction and on what criteria (and similarly for sub-criminal sanctions). The most obvious criminal criteria to me is for any action which is grossly, inescapably and directly harmful to others over and above the social benefit should be illegal (or esle we would catch things like private motoring). It's fairly obvious that murder, fraud, negligent driving and a host of other things need to be in that category. Similarly, unsafe practices which represente hazards to others should be in that class (unqualified medical practitioners for one).

This, however, leaves us with a whole series of other social activities which may not be grossly directly harmful to others, but which are indirectly of possible social harm. Drug taking, alcohol, smoking, not wearing seatbelts and some social practice fit into that area. Some might add selling "junk" food (a polemical rather than objective term in my view) might also fit there.

Here I think that we need to tread very carefully indeed. There is a case that harmful social practices (or at least those with an obvious financial cost to the state) should be considered for increased taxation. (Although I'm very suspicous of the objectivity of studies that show junk food or smoking actually increase State costs in total - there's a good argument that practices which extend lifespan do that).

Anway, on the above basis, I don't think that Ben Goldacre is a liberal (I think he's a really a utilitarian - which is a different thing). Jack, I think, is much more of a true liberal.

As an example, making wearing of the burqa would clearly be illiberal, although I personally I think it an afront to civilised human interaction and that it is, in practive, a social control measure (state enforced in some countries). So it sits on that uncomfortable boundary where, in an ideal world, it would not exist. It is a symbol of the worst sort of illiberalism yet making it illegal would be an illiberal act. The interesting thing is that the French have effectively come up with a law which provides for a tax on wearing the burqua in public albeit in the shape of a financial penalty. Indeed that's an interesting cross-over point; just where is the difference between a tax on a socially undesirable activity and a fine...