Yet Another Post on Banning

The insightful legal writer, David Allen Green, has just penned an article asking whether we should ban “banning” things. His argument will be familiar to you if you’ve read some of the items here. Green provides a much clearer exposition on the ramifications of banning than I have, though.

Green points out that banning something does not eliminate it. This can be drugs, pornography, and so on. As he puts it, “to say there should be a law against a thing is often no more than saying there should be a spell against.” He clarifies further and says that should something be successfully banned, “it just means the legal system will be engaged in a way it otherwise would not be.” This truism highlights that just because the law is acting differently does not, by definition, mean we have ridden ourselves of banned items.

Taking my cue from Green, all we’ve done is put an invisibility cloak on things we don’t like, using the magic of the legal system to confirm our own moral values. We know that criminalising drugs might not be the best way to tackle the problem of addiction; that making prostitution illegal only makes the prostitutes lack protection, thus forcing their lives into a vicious cycle they’re unable to escape from because the law treats them as almost non-persons. Furthermore, criminalisation of such items which potentially harm adults undermines liberal autonomy many of us think important to living and being treated as an adult. One thing we realise as adults is the ability to wilfully harm ourselves, as long as we do not harm others (or at least not without their consent). Mill’s harm principle set up that foundation a century ago and it has served as an arresting condition for what should constitute a pluralistic, secular and liberal society (or at least laws within said society).

But of course the laws are the target in the cases of people, usually conservatives, who want something banned the rest of us find benign or innocuous.

There’s no perfect answer but it seems clear that one reason conservative Christians go after the legal status of gay marriages and pornography is to be assured in the knowledge that their society is becoming more aligned to their values. We hear plenty of their spokespeople claim that god sends floods, earthquakes and other disasters because we “allow” gays and pornography. With all the tact of naked clown at a funeral, Jerry Falwell and his fellow brood member Pat Robertson claimed that gays, feminists and others were partially responsible for 9/11, since these groups angered god. Thus, we may conclude, the less of “these” groups are acknowledged by society’s law, the less of god’s wrath we’ll feel.

Less gays, less earthquakes. Of course there is no relation and is a terrible justification. But, for me, it helps to understand their reasoning partially. As I say, this isn’t the entire or sufficient reason but I don’t doubt many people think it true.

As I recently argued though, there seems to be an inherent problem with banning. There just doesn’t appear to be a good reasonable argument to ban a particular advert or magazine or book that I can take seriously – when the target in question is not serious enough to reach a status of causing significant suffering to others. David Allen Green highlights that banning is often the first step toward criminalisation, though, which means my dichotomy, that I set up in my previous post, might be flawed: I had said in that post that the targets of banning fall between causing (1) outrage and (2) being illegal. This seems reasonable, since, it seems to me that many things cause outrage, but being outrageous is not sufficient for being illegal (Dan Brown’s writing, buying a movie ticket instead of donating to charity, etc.), nor will everyone agree on whether the particular item really does cause outrage (you might enjoy Brown’s writing, for example). Secondly, if it is worth being illegal, then banning is surely a poor, if not insulting, way to deal with it. We don’t just ban child pornography, we have active police units searching for people involved in creating it.

But even here, I realise I’ve said ‘ban’ child pornography. Green points out that this can be the first step toward making something illegal completely. Perhaps then we should put at the other end of the continuum ‘morally wrong’ – or some such phrase. This is actually more helpful, since we can then debate what we mean by moral and whether this qualifies as disavowing said moral framework. It seems within pluralistic societies, in which religious morality should not dominate the legal system, we would focus on a moral wrong causing (significant) suffering as one necessary property for having something banned. Even this secular necessary property helps us to invalidate claims for banning which do not pass this property: Who is harmed between gay couples consensual acts? Who is harmed by having adverts with pretty women dressed as angels lusting after an ordinary bloke?

Anyway, I am glad to see that a legal thinker like Green is aligned with my previous points toward having a serious sceptical view of calls for banning – in and of themselves they are problematic, was my point; but Green highlights that they can be the beginning of a necessary legal step toward proper and justified criminalisation. I do think however that we could probably collapse this into proper, reasonable discussions of significant harm and work from there. After all, we might find drug addiction problematic (as I do) but think that banning is not a helpful way to combat it. Thus, I am in two minds about whether banning is even a good initial step toward criminalisation, since it seems criminalisation is itself not the best way, as Green highlights, to combat that we want gone.

Indeed, continuing on this theme, I will be looking at Peter Singer’s claim that we ought to ban cigarettes soon.

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