Government Promotion of Moral Issues: Gambling, Smoking, and Advertising
Graglia, Lino A., Harvard Journal of Law & Public Policy
What makes gambling, smoking, and advertising and the encouragement of those activities "moral" issues? The use of the word "moral" should prompt the question: From what is "moral" being distinguished? This Essay tries to avoid use of the word because it usually conceals more than it clarifies as a basis for policy judgments. The usual distinction is between a principle-based morality, as advocated by Immanuel Kant, and utilitarianism, a morality based on consequences. The issue, therefore, would seem to be whether government should or may regulate conduct on any other than purely utilitarian grounds.
Utilitarianism maintains that the rightness or wrongness of conduct depends on its consequences. To a secularist claiming no aid from the supernatural, the above assertion seems self-evident. How is it possible to judge an action except by its consequences? Kantian tradition answers by judging an action's inherent justice or rightness, which should somehow be determined apart from and regardless of consequences. "Do justice," the Kantian view advises, "though the heavens fall" (1)--that is, do what is inherently right, even though it brings about an unimaginable disaster. Surely that has to be wrong: If doing justice will bring about an unimaginable disaster, we must rethink our idea of justice. The fanaticism underlying the Taliban's destruction of the Buddhist statues may illustrate the alternative of a morality apparently not based on consequences. (2)
Taking as a given on utilitarian grounds that human liberty is a good thing, the answer to the question whether government should prohibit certain conduct, and thereby restrict liberty, on any grounds other than its consequences is not a difficult one. Government should prohibit conduct only to produce beneficial consequences sufficient to overcome the resulting loss of liberty. This answer presents a problem because consequences yielding a net benefit for some people may not yield the same result for others, at least not immediately; utilitarianism, it is said, is not sufficiently respectful of the individual. (3) To some extent, however, that problem is a necessary and inevitable consequence of any system of law; "immediately beneficial for every individual" does not provide a workable test for determining what constitutes permissible government action. Almost every change in the law makes some people better and other people worse off.
Taking as another given on utilitarian grounds that the welfare of each individual is equally important, utilitarianism may result in the highest degree of welfare achievable for everyone in a world of limited resources. The difficulty is not that the consequences of an action may vary for different people, but in determining the consequences. Consequences vary significantly depending upon how far into the future one looks. (4) As a result, individuals must make decisions according to generally useful rules without attempting to determine the actual consequences of their actions. In addition, it is necessary to accept the reality that decision-making according to rules necessarily produces some suboptimal results.
The source of the disagreement between Kantian moralists and utilitarians is that the Kantians try to make certain rules absolute and seek an unattainable degree of certainty. Some libertarians, such as John Stuart Mill, make the same mistake when they try to answer all problems of legal coercion with "one very simple principle," (5) namely, that government should limit individual freedom only to prevent harm to others and never to protect the individual from himself. (6) The meaning of this principle turns on the highly debatable question of what constitutes harm to others. Mill's principle does not necessarily produce what most people would consider desirable results. The perhaps less brilliant but eminently sensible jurist, James Fitzjames Stephen, correctly answered Mill by noting that "the state of our knowledge is [not] such as to enable us to enunciate any 'very simple principle as entitled to govern absolutely the dealings of society with the individual in the way of compulsion and control. …