Human Nature and the Law

Published on 28th June 2005

\"Men will pursue their interests. It is as easy to change human nature as to oppose the strong current of selfish passions. A wise legislator will gently divert the channel, and direct it, if possible, to the public good.\" --Alexander Hamilton

A variety of activities, such as drinking alcohol, smoking tobacco, gambling, etc., have been prohibited by the state at different times. The motivation has been dual: first to help people lead \"good\" lives by keeping them from temptation, and second, because it is felt that such behaviors harm the society as a whole. Lawmakers take for granted that if some activity deemed to be harmful is proscribed, the harm to society will lessen.

Since reducing harmful behavior is difficult, government often resorts to prohibiting all aspects of the behavior, both harmful and benign. Such prohibition often increases, rather than decreases the harmful behavior. To point out the flaws of prohibition is not to endorse the underlying behavior. In reviewing the literature on the effects of prohibitory laws, a curious pattern emerges. While the conventional wisdom clearly holds that the law will have the desired effects, studies of the effect of the laws often show the opposite effect: the behavior the laws were designed to inhibit has been encouraged instead.

Human nature is too complex. Suffice it to say that there may be a wicked side of human nature that simply enjoys doing what is forbidden for the pleasure of breaking the rules. Alternatively, people may simply resent being told what to do, preferring to be asked or persuaded. Or, it may be that people resent living under laws that restrict non-abusers in an attempt to stop the abusers. In situations like this, if a few people abuse their freedom, a law is passed taking away everyone’s freedom. It may be that this intrinsic injustice causes perverse reactions.

The possibility exists that when scarce police and court resources are diverted towards the prevention of the non-abusive forms of behavior, there are fewer resources remaining to prevent the abusive behavior. There is ample evidence that arresting, conviction and punishing a wrongdoer does reduce harmful behavior. However, prohibiting all related behavior, in an attempt to reduce the harmful portion, is far more problematical and often counterproductive. If laws have the opposite result than what was intended, this has profound ramifications for policy makers.

Attempts to prohibit alcohol have had a long history, with equally mixed results. If consumption of alcohol was reduced, it wasn’t by much; the costs of enforcement, in money, corruption, crime, disrespect for the law, alcohol and related poisonings far exceeded, by virtually anyone’s measurements, the tiny gains in alcohol control.

This is perhaps an appropriate place to note that in the literature of prohibition, there seems to be a good deal of sloppy research. It is carried out with the no doubt well-intentioned aim of justifying an apparently basic human need to legislate so as to change the world to suit those who support the legislation.

One means of reducing consumption of products deemed undesirable, that is currently in vogue, is to prohibit the advertisement of such products. In Kenya the administration is pushing to outlaw advertising hard liquor and tobacco on radio, television and billboards. However, economic theory points in the other direction.

A paper by Massimo Motta argues that advertising is of two basic sorts: informational and persuasive. Informational ads let buyers know about a new product, or about a new supplier of existing products. Such ads tend to drive down prices as buyers are helped in their comparison shopping.

On the other hand, persuasive ads generally attempt to woo buyers from one well-known brand to another. Liquor and cigarette ads tend to fall into this later category--well-known brands fighting for market share. These ads rarely mention price and focus on intangible benefits, such as quality of life, taste, \"coolness\" and so on. The Marlboro Man and Joe Camel never mention anything at all.

A ban on advertising tends to force competitors to compete on price, since they find it difficult to project their particular image without ads. At the same time a prohibition on advertising reduces their costs. This allows and even forces prices to drop. Lower prices tend to increase consumption.

The Machakos residents who died after consuming spurious liquor did not know the cheap drink they were enjoying would make them blind or sleep forever. The crux of the problem as in Mumbai India is that it has the disguised support of the law enforcers. The victims, mostly poor, who cannot afford costly but safe drink at authorized shops, depend on these distilleries that have a network which delivers the supplies at the doorstep of the customers.

As lawmakers enact measures to legislate morality, they should beware of turning all citizens into criminals and be ready to contend with the expenses incurred through black market activities. There is need too to spur economic growth to enable the low resource citizen to afford safe products.



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