So earlier, I read a great rebuttal by Josh Barro to the likes of David Brooks, Ruth Marcus, and Tina Brown‘s earlier pieces regarding the Colorado and Washington state marijuana laws. The point that Josh makes is exceptionally valid: you can’t rail against the evils of marijuana (and drugs in general) while completely neglecting the evils of drug prohibition. It is not ok to brand a large segment of society as criminals and impose the substantial primary and secondary burdens of a criminal conviction on a significant subset of that group in the pursuit of avoiding some fleeting second-order effects (as Josh puts it) which may or may not even materialize.
While Josh rightfully attacks that aspect of the hypocrisy of their writings, I want to focus a little more specifically on something from David Brooks’ article:
But, of course, these are the core questions: Laws profoundly mold culture, so what sort of community do we want our laws to nurture? What sort of individuals and behaviors do our governments want to encourage? I’d say that in healthy societies government wants to subtly tip the scale to favor temperate, prudent, self-governing citizenship. In those societies, government subtly encourages the highest pleasures, like enjoying the arts or being in nature, and discourages lesser pleasures, like being stoned.
This strikes me as a profoundly inaccurate description of the role of the law in our culture. In fact, it has everything completely backwards. It is culture (and cultural norms) that molds – and even directs -the law, much moreso than the reverse. When the law doesn’t match the direction that culture is going, culture will simply run the law over.
What do I mean? Well, the function of law is to enable culture to enforce certain norms that have gained popular consensus over time. For instance, laws regarding murder enforce an already pre-existing cultural norm that the killing of another human being is wrong. We don’t choose not to murder because the law forbids it; we choose because it’s the right thing to do according to our norms. The law merely gives us a means to enforce a norm that already existed prior to the law even being enacted.
However, when the laws do not reflect what our society has come to agreement on, the law is what will yield. I don’t have to go far to find examples of this. Same sex marriage is a recent example of culture moving in a certain direction and the law having to change, rapidly, to reflect this new reality. Simply put, the law is the follower here, not the leader.
Now, this isn’t to say that the law cannot influence culture, especially at the margins. And over time, if you push long enough at the margins, the mainstream of opinion may also bend. In fact, the drug war itself is a good example of this happening. Much of the cultural certitude that drugs will harm others in our society are based not on the use of drugs themselves, but the criminal subculture and consequences that prohibition entails. In this case, culture followed the law in part because of the devastation in community wreaked by prohibition.
But to assert that the law is primary here is fallacious and – even more surprising to me considering that this assertion originated from David Brooks – profoundly anti-conservative. In fact, it’s strongly paternalistic to think that government should “nurture” our culture. In the world according to David Brooks, governments should nurture “temperate, prudent, and self-governing citizenship.” It should insist that citizens enjoy the “highest pleasures” and it should discourage the “lesser pleasures,” apparently through the use of coercive imprisonment. How the outsourcing the direction our society’s morals should take to the government is a conservative idea is a stretch of everything I was taught conservatism should stand for. In fact, there is no actual consensus that the things David Brooks considers are the highest pleasures are actually such. A large section of American society loves NASCAR, something that I doubt would ever make David Brooks’ “high pleasures” list. Should government outlaw car racing in order to steer those fans to their nearest local opera? Should we jail all people who don’t enjoy the arts or being in nature?
No. What the law should do is enforce those norms that society deems worthy of enforcement with coercive force. And generally, those norms involve conduct that causes substantial and direct harm to others. Morals are not the proper domain of the law, whether one looks at it from a conservative or liberal perspective.