On So-Called “Sin Laws”

In 1859, British philosopher John Stuart Mill wrote one of his seminal works, "On Liberty" (imagine having more than one!). In this essay, Mill weighs "the nature and limits of the power which can be legitimately exercised by society over the individual." He sums up his stance with this now-famous passage:

"The sole end for which mankind are warranted, individually or collectively, in interfering with the liberty of action of any of their number is self-protection. The only purpose for which power can be rightfully exercised over any member of a civilized community against his will is to prevent harm to others. His own good, either physical or moral, is not a sufficient warrant. He cannot rightfully be compelled to do or to forbear because it will be better for him to do so, because it will make him happier, because in the opinions of others to do so would be wise or even right. These are good reasons for remonstrating with him, or reasoning with him, or persuading him, or entreating him, but not for compelling him, or visiting him with any evil in case he do otherwise. To justify that, the conduct from which it is desired to deter him must be calculated to produce evil to someone else. In the part which merely concerns himself, his independence is, of right, absolutely. Over himself, over his own body and mind, the individual is sovereign."

In short, your decisions over your life are yours alone. Unless you are causing harm to others, the government has no right to interfere in your business. It is acceptable, Mill said, to write a book condemning beliefs or behavior, laying out reasons for your position; but it is not, however, for the government to step in with its heavy arm. Written more than 150 years ago, how does this so-called "harm principle" hold up? To be sure, it has widespread implications, and I could probably write an entire book on the matter. However, in this essay I would like to contain our discussion to what are commonly called "sin laws."

One form of sin laws is smoking bans in certain public spaces. The reasoning is that cigarettes directly and negatively influence the health of other citizens via second-hand smoke, and so these citizens should be protected. Smoking bans have also extended to bars and restaurants -- a move many charge is an example of the government exceeding its bounds, telling private companies how to run their business. However, bars and restaurants are public spaces -- they depend on public usage for their business. Therefore, they fall under the domain of government, and the government has an interest in protecting its citizens from damaging cigarette smoke.

A more controversial form of sin law, however -- which I will focus on for the rest of this essay -- is "sin taxes," or fees levied on products deemed harmful to society. Examples include taxes on cigarettes, soda, and bottled water. Another example, one that recently sparked an argument between my friends and me, and which led to writing this piece, is the news that tanning salon customers will face a 10 percent tax under the new federal health insurance reform package.

But aren't these people merely harming themselves? Wouldn't Mill object to such laws?

Interestingly, the moves are not necessarily designed to change behavior (indeed, data on this seems inconclusive; I would love to see more). Rather, since empirical evidence shows these products -- cigarettes, soda, bottled water, tanning salons, and more -- are harmful to general human and environmental health, the idea being that their usage strains the societal system. And since this would impact everyone in the system, the users should help cover the costs.

A seemingly clear-cut case for us might be the tanning salon taxes. The U.S. currently spends about $1.8 billion on treating skin cancers each year. To help fund the $940 billion health insurance overhaul -- which will extend coverage but also have to handle costs on such cancers -- lawmakers tacked on a 10 percent tax on individuals receiving indoor tanning services. The initiative is expected to generate $2.7 billion over ten years; and doctors predict the tax will reduce future costs of treating skin cancers.

But this issue admittedly gets more entangled. Consider the recent situation in Washington State. To help close a $2.8 billion budget shortfall, lawmakers there boosted taxes on bottled water, soda, beer, and candy. The measure makes for about half of an $800 million tax package Democrats argued was needed to prevent drastic cuts in state services. As one assembly member said:

"We cut health care, we cut K-12, we cut higher education. It's going to be harder for your students to get into college. Your students are going to have crowded classrooms they didn't have before because of our cuts. But at some point, you cut so much you start to close down basic government services."

One might argue, after reading that quote, that these taxes are not directly going to cover the health care costs they are creating. This should be obvious from the start, for such taxes cannot be divvied up in such a way. The argument remains, however, that these taxes are not going to cover health care costs at all, and instead are going to fund different services; that is, cigarette taxes are not going to fund lung cancer work. But this is all needless. The costs of certain behaviors make it tougher for the state to fund basic services because state costs are being diverted to pay for the consequences of those behaviors when they could be spent in other areas. So, if a state is facing such drastic budget shortfalls, it seems reasonable to raise taxes on those products or behaviors that increase costs to help pay for essential services.

The crux of this line of thought is that because we are all being hit by health insurance and social costs, it seems a minor move to implement a small fee on the goods reasonably deemed to be the cause of those costs -- especially on the specific goods and products in mind, and therefore the specific users, too. What about other products such as bottled water? Americans can quite easily stop using plastic water bottles, which is terribly damaging to and costly for the environment, and substitute reusable water bottles. Hence, if you want to continue to hurt the environment, you help pay for it.

The most registered reaction to the arguments above is known as the "slippery slope argument." It usually sounds something like this: "Next thing you know they'll tax (blank)!" or “Next thing you know they'll ban (blank)!”

But the slippery slope argument gets us nowhere. In fact, I cannot think of another avoid-the-argument argument that works as well as the slippery slope. It sounds more like: "Oh, I don't like that. But I can't think of anything against it. So .. hey .. I've got it: now that they did that, there's a very slight chance they'll do this! So that is bad!"

Consider, for instance, that a friend seriously pondered whether the government might be a step closer to imposing a tax on -- or worse yet, outlawing -- high-heeled shoes because of the danger they pose to a woman's ankles. This person also wondered whether the government might next step in and do something about paper, which is apparently causing an epidemic of paper cuts. But again, the taxes on cigarettes, tanning salons, and soda, are based on empirical data showing they are very bad for human health (at least in their current mode of consumption). There is no empirical data to support the same claim for high heels. Is anyone really frightened the government might levy taxes on high heels for the every-so-often twisted ankle or for that matter, paper cuts?

This brings us to another commonly heard counter-argument: "the government shouldn't tell us what to do." Perhaps the aforementioned backlash is coming from somewhere else -- say, a rejection of everything the government does (except that which helps, of course). This again avoids the issue. But, to the point, one cannot reject government action out of hand, for the government takes many actions that influence our lives everyday, some good, some bad. Instead, we need to discuss the merits of each particular case.

Still others will worry we are moralizing. Even Mill wrote that:

"The likings and dislikings of society, or of some powerful portion of it, are thus the main thing which has practically determined the rules laid down for general observance, under the penalties of law or opinion."

There is a problem if our laws are based on preferences, on likes and dislikes. However, I do not think we should be worried about morality influencing our laws, for our laws and morality cannot be separated. Our moral beliefs and values -- whether religious or secular -- are about how to deal with the suffering, happiness and welfare of sentient, conscious creatures on Earth, which means they will surely influence social and public policy. President Barack Obama admitted as much in "Audacity of Hope," noting that our laws are but a codification of our morality. The point becomes that it is fine to moralize so long as the moral views are supported by reason and evidence.

Still, we must realize the difference between certain actions taken to cure a societal ill. Mill states that men should live "without impediment from our fellow-creatures, so long as what we do does not harm them even though they should think our conduct foolish, perverse, or wrong." For the cases above, the government has taken certain steps to protect, at a baseline, other citizens from the harms of others. The government has also taken certain steps to recoup costs put on the system by citizens acting questionably. What the government has not done generally is ban products, unless they are absolutely dangerous to human health. Instead, if we collectively believe certain actions are "foolish, perverse, or wrong", we can continue to grant such actions allowance -- with perhaps a higher price tag or controlled usage -- but also write blog posts and books, and start campaigns detailing their downsides in an attempt to slow their use. This is liberty guided by real world considerations.

That last idea -- liberty guided by reason and evidence -- is important to note because uncritical adherence to principle can leave us blind to nuance. Consider marijuana. Marijuana has been under the thumb of the law for decades -- but why? Mostly because orthodoxy and tradition hold that it is a dangerous drug akin to cocaine and others. Yet marijuana is absolutely less harmful than cocaine -- and even cigarettes and alcohol. So why outlaw it? Here we come back to the point: our laws should be guided by reason and evidence by way of case-by-case evaluations -- not by broad stroked, handed-down moral traditions. Apply critical inquiry to each case before us and we just might get somewhere.