Vice Essay

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Vice, from the Latin vitium meaning a defect or fault, is a form of voluntary conduct, practice, or habit that one’s local moral community or wider society deems to be immoral.  Vice, however, is not merely a synonym for immorality. Sometimes vice denotes particular categories of conduct of an indecent, debauched, or licentiousness nature (e.g., the seven deadly sins). Other times vice is used to denote conduct that arises from some moral failing resulting from the possession of some negative psychological traits or a bad overall character (e.g., veniality that leads one to engage in dishonest conduct for one’s personal advantage).

Notions of virtue and vice have existed since ancient  philosophers used them as part  of an account of what makes conduct right or wrong, praiseworthy and blameworthy. Nevertheless, traditional Aristotelian vices—such as cowardice, illiberality, pettiness, boorishness, and spitefulness—differ from the contemporary idea of vice as it is used in the context of public policy, particularly in the criminal justice setting. In such a context, vice has taken on a particular meaning and centered on certain forms of conduct to be regulated through law and legal institutions.

Definitions of Vice

Defining what constitutes vice is important not only for philosophical reasons, but also for public policy reasons as there is often a push for communities to take active measures to prohibit or reduce the amount of vice in which people engage.

For some people, vices should be thought of as immoral, yet victimless crimes. Even if vices are a distinct category of wrongful conduct, it is not clear that such conduct must be harmful in a traditional sense. Since engaging in degenerate or libidinous conduct need not cause physical or mental harm— or, if it does, that harm is confined to the person voluntarily engaging in such conduct—it should be considered a form of harmless wrongdoing.

For other people, what makes vice wrongful is independent of the potential for physical or mental harm. What makes vice a distinctive form of immorality is the way in which such conduct  inflicts moral harm. In this view, what makes such conduct distinctively immoral is the way in which engaging in vice causes, for instance, moral corruption, degradation, or distress in the person who undertakes the conduct, others exposed to the conduct, or to society at large. If such a thing as moral harm exists, then such an understanding can accommodate a conception of vice that explains why such conduct can involve harm to self and harm to others. Nevertheless, even if the plausibility of moral harm is called into question, the fact that vice or its consequences can create a public nuisance by negatively affecting the quality of life of people within the community may give rise to a form of offense that may merit some form of interference.

Either approach to defining vice will depend on some prior conception of what it is for some conduct to be immoral and harmful, and why the combination of these considerations picks out a distinctive category of conduct that merits special attention. In particular, how individuals go about defining vice will play a central role in delimiting what forms of conduct qualify as vice and why it provides a justificatory basis for intervening into people’s lives to prevent or protect them from vice.

Forms of Vice

There are different forms of vice that have traditionally been the object of focus by the state—with its regulation often taking the form of criminal prohibitions. Indeed, most police divisions had special departments, usually called vice squads, which were exclusively charged with dealing with reducing or prohibiting crimes that were considered vices. In some jurisdictions, vice crimes were even treated as a separate category of crime with targeted statutes and regulations.

A large part of this focus was on sex-based vice, in particular what was viewed as illicit sexual conduct. Such conduct was thought to constitute vice in virtue of such activities falling outside of the aims of traditional marriage and traditional sexual practices. Such vices included sexual conduct such as fornication, adultery, sodomy, bondage and discipline, domination and submission, and sadomasochism. Some would also include conduct  related  to, or the by-product of, sex-based vice that was also thought to be illicit, such as abortion. Additionally, any form of consensual, adult homosexual conduct was considered to constitute vice in the past, and at present continues to be deemed vice in some jurisdictions. In many places, while receiving money for sex is not necessarily considered a vice that should be criminalized, activities such as publically soliciting sex workers or living off the proceeds of sex work is still considered to be a vice crime.

In some cases, illicit sex was thought to be so pernicious that even sex-related activities that did not involve any form of physical touching were categorized as vice. For instance, President Jimmy Carter  famously  admitted in 1976  that,  “I’ve looked on a lot of women with lust. I’ve committed adultery in my heart many times.” In such a view—reminiscent of the biblical injunction against coveting your neighbor’s wife—even mere thoughts about putative wrongdoing that result in no action could constitute vice.

To this end, there was a large focus on limiting or prohibiting materials or activities that could produce such thoughts—in particular, the public exhibition of naked bodies (e.g., nude dancing in clubs) and the public availability  of materials depicting nudity or sexual activity (e.g., pornography). Attempts to regulate such forms of vice proved problematic. Not only is it difficult to reliably access thoughts that people chose not to act on, but the criteria that should be used to determine which materials or activities produce such thoughts or are inherently immoral is also tricky. A notorious example is the legal threshold test for obscenity famously used by U.S. Supreme Court Justice Potter Stewart in Jacobellis v. Ohio (1964), “I know it when I see it,” which has been rejected for being too subjective and vague.

Another  large focus is on intoxication-based vice. Such conduct is thought to constitute vice because it involves indulging an appetite or passion one should control, or the way in which consumption of such substances makes individuals more disposed to engage in other forms of immoral conduct. The most prominent example of this form of vice relates to the production, distribution, and  consumption of illicit drugs. In most jurisdictions, this form of vice has been dealt with through prohibition efforts, with vast sums of money and time dedicated to pursuing what is termed the War on Drugs. Recent empirical studies have shown that such long-term efforts to eliminate drug-based vice have been largely unsuccessful and, indeed, detrimental.

Other  intoxicants, such as alcohol,  involve forms of vice that are largely dealt with through regulations and controls—though alcohol-related conduct, such as public intoxication and drunk driving, are still the object of criminal laws. Previous attempts to regulate alcohol-based vice using heavy-handed and broad restrictions, such as the United States’ enactment of Prohibition between 1920 and 1933, proved to be, in the end, unsuccessful and damaging  in many ways. In more recent  times, nonintoxicating substances,  such as tobacco  and certain  unhealthy foods,  have been included in this group of substances that officials have sought to prohibit or restrict using arguments similar to the vice-based restrictions employed with drugs and alcohol.

Finally, there is a focus on behavior-based vice that encompasses  different forms of conduct. The most prominent form of behavior-based vice is gambling. For some the mere act of engaging in gambling is inherently immoral; while for others only particular forms of gambling should be thought to constitute vice, such as gambling activities that involve animal cruelty (e.g., dog or cock fighting) or black-market activities (e.g., underground gambling rings). Unlike sex- or substance-related vice, there has been more of a focus with respect to gambling on indirect ways in which individuals can seek to control their own ability to engage in vice. For instance, in some jurisdictions compulsive gamblers can enter into a self-exclusion agreement with casinos (so-called Ulysses contracts) that bar them from gambling and make them liable to be charged with trespassing if they attempt to return to the casino.

Regulation of Vice

The conception of what constitutes vice and what would be justifiable for the state to do in relation to individuals and groups who engage in such conduct notably changed during the 20th century. The interest in defining vice and different forms of conduct that belong within this category of putative immoral conduct is typically undertaken in reference to the question of how vice should be regulated. There are many different ways that the state can regulate vice—for example, by taxation, licensing requirements, access restrictions, or advertising controls—which seek to limit exposure, deincentivize the motives for engaging in vice, or internalize its associated costs. While these forms of regulation are becoming more prominent within the 21st century, the traditional mode of regulation that remains largely dominant in relation to vice remains one of prohibition— with the criminal law providing the central regulatory mechanism.

The concept of vice also raises important questions about  the connection between crime and immorality and how this contributes to establishing the limits of criminal law. Is there a coherent and sustainable division between matters of private and personal morality? Should the criminal law be used to prevent or punish people who engage in vice and, if so, what forms of vice-related conduct are appropriate for criminalization? How should the decisions to criminalize some, but not all, immoral conduct fit within a general theory of criminal liability? Should some of the addictive or compulsive behaviors associated with vices that are criminalized provide excusing conditions for (some) offenders? The answers to such questions will depend on an individual’s conceptions of crime and criminal liability, and where vice fits in under such conceptions.

One option for regulating vice would be the approach of legal moralism. In this view, the state is justified in criminalizing vice because it is inherently immoral and such immorality can lead to the weakening of society. While this view has existed for centuries, its most notable recent proponents were James Fitzjames Stephen and Patrick Devlin. Stephen famously advocated that “there are acts of wickedness so gross and outrageous that, self-protection apart, they must be prevented as far as possible at any cost to the offender, and punished, if they occur, with exemplary severity.” For a legal moralist of Devlin’s stripe, society’s moral code is as important as its central political institutions. Just as it would be permissible for the state to use coercive legal means to suppress the revolutionary overthrow of its institutions, it is also permissible to use such means to suppress vice. While this approach remains popular among political conservatives, the philosophical respectability of this view enjoys little support today.

Another option for regulating vice would be the approach of harm prevention. In this view, the state is justified in criminalizing vice only if such conduct  causes demonstrable physical (or perhaps mental) harm to others. This view is most notably associated with proponents such as John Stuart Mill, H. L. A Hart, and Joel Feinberg. This approach emphasizes  a harm-based principled limit on criminal law, for which Mill claimed that “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. That the only purpose for which power can rightfully be exercised over any member of a civilized community against his will is to prevent harm to others. His own good, whether physical or moral, is not a sufficient warrant.” As such, while such a view can accommodate a conception of vice as including both self-harm and other-regarding harm, the mere existence of self-harm associated with vice is not thought to be sufficient to establish any general or robust criminal prohibitions against it.

One further option for regulating vice would be the approach of harm reduction. The use of criminal law to regulate vices, however, need not be moralistic in nature nor must it restrain itself to  harmful,  other-regarding conduct.  Instead of seeking to prohibit or limit different  kinds of activities related to, for instance, sex, drugs, alcohol, and gambling, the focus of this approach would  be on  reducing  the  prevalence  and/or quantity of harms associated with such activities. Such an option either eschews the putative moral harms associated with vice or subordinates them to the physical and mental harms associated with such conduct as the primary and proper object of regulation. Such an approach to vice starts from the premise that most attempts to prohibit or severely reduce certain forms of conduct using the criminal law have been unsuccessful in curbing the conduct in question and are often detrimental to the people such laws target. Instead, it approaches vice as an illimitable category of conduct, in which the best way to deal with such conduct is not through prohibition or limitation of conduct but through the minimization of harms associated with such conduct.

Within the realm of drugs, for instance, a harm reduction approach would seek to decriminalize the use of certain illicit drugs, remove prior criminal prohibitions against  needle exchange  programs that provide clean needles to injection drug users (IDUs), and establish safe injection sites that provide a sterile, medically supervised environment for IDUs to consume their drugs. This is not to say that such an approach is without its critics. Opponents of such harm reduction measures often complain that providing clean needles and safe places to consume drugs either encourages drug use or makes such conduct more morally acceptable. Empirical and normative support for such claims, however, remain lacking—with many jurisdictions in developed nations incorporating harm reduction approaches to forms of conduct traditionally understood as vices.

Bibliography:

  1. Devlin, Patrick. The Enforcement of Morals. Oxford: Oxford University Press, 1965.
  2. Feinberg, Joel. Harmless Wrongdoing. Vol. 4 in The Moral Limits of the Criminal Law. Oxford: Oxford University Press, 1990.
  3. Hart, H. L. A. Law, Liberty and Morality. Palo Alto, CA: Stanford University Press, 1963.
  4. Leitzel, Jim. Regulating Vice: Misguided Prohibitions and Realistic Controls. Cambridge: Cambridge University Press, 2008.
  5. Mill, John Stuart Mill. “On Liberty [1859].” In “On Liberty” and Other Writings, Stefan Collini, ed. Cambridge: Cambridge University Press, 1989.
  6. Spooner, Lysander. “Vices are not Crimes: A Vindication of Moral Liberty.” In The Collected Works of Lysander Spooner [1875]. Vol. 2. Indianapolis, IN: Liberty Fund, 2010.
  7. Stephen, James Fitzjames. “Liberty, Equality, Fraternity.” In Liberty, Equality, Fraternity: And Three Brief Essays [1874]. Chicago: University of Chicago Press, 1990.
  8. Zimring, Franklin E. and Bernard E. Harcourt. Criminal Law and the Enforcement of Vice. St. Paul, MN: Thomson/West, 2007.

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