This is a new era of prohibitions. Since Gordon Brown became prime minister, tentative steps in the direction of liberalising gambling and cannabis use have been reversed, the viewing of so-called ’extreme‘ pornography has been criminalised, and there are new restrictions on where one may consume alcohol. Meanwhile, plans are afoot to make it illegal to pay for sex (unless the sex was with someone you once lived with, in which case under new proposals on cohabitation, you will be required to pay a sum determined in court).

So this provocative collection of essays by economists, lawyers, political scientists, philosophers and sociologists is particularly timely. Each chapter analyses a product which has traditionally been subject to state regulation, and argues against prohibition. Space is found for challenging cases such as firearms and the sale of body parts, as well as the traditional liberal war-horses of gambling, recreational drugs, pornography, alcohol and prostitution.

There are powerful arguments against prohibition of these products. History suggests that it is rarely effective, at best reducing the equilibrium level of trade. It follows from this that the result of a ban is to hand over a significant sector of the economy to criminals, only too happy to enjoy the monopoly profits created by restricted supply. It also diverts the police from pursuing activities such as violent crime and theft whose harms to third parties are much less debatable.

Why then has the state so frequently sought to prohibit these products? Puritanism plays a major role. The thought that other people might be enjoying themselves has always been a distressing one for many, and so the majority has sought to ban the pleasures of minorities. How else can one explain why gay sex has been a crime throughout most of human history, or that alcohol is legal while marijuana is not, even though it is beyond any serious dispute that alcohol causes more harm?

Economic self-interest is also a powerful force in determining policy. For connoisseurs of state hypocrisy in the face of shifting economic incentives, the history of the opium trade is a particularly rewarding topic. In the 19th century, the opium-producing areas of India were controlled by the British East India Company, which dominated the lucrative supply of the drug into China. Attempts by the Chinese authorities to suppress the market resulted in a British military invasion of China to ensure the trade continued (the so-called Opium Wars). However, British opium was increasingly replaced with domestic Chinese production. With its profits from production largely dissipated, the British government found that its views had changed and it signed in 1912 the International Opium Convention, the first international drug control treaty. Today, with production of the drug almost entirely based in Afghanistan, British troops in Helmand province are being used to ‘crack down’ on impoverished Afghan poppy farmers. The War on Drugs has replaced the War for Drugs.

It is tempting to conclude from all this that (in the stirring words of John Stuart Mill), “The only purpose for which power can be rightfully exercised over any member of a civilised community, against his will, it to prevent harm to others. His own good, either physical or moral, is not a sufficient warrant.”

Yet there are paternalistic prohibitions whose benefits no sane person can dispute. Employment law prevents us from entering into a contract to lock in to an employer for twenty years, even if both parties would wish to make that agreement. Health and safety regulations rightly place some restrictions on danger in the workplace. A great deal of consumer protection law is also paternalistic. The debate should not be about whether paternalism is ever justified, but about the circumstances in which its benefits (preventing people entering contracts they later regret) outweigh its costs (preventing people entering contracts they genuinely wish to enter) (See ‘Regulation for Conservatives’, Colin Camerer et al University of Pennsylvania Law Review, 2003, Vol 151, pp 1211-1254).

Another trap that opponents of prohibition can fall into is to overstate the virtues of the products they are defending. Nadine Strossen, for example, perhaps waxes too lyrically here about pornography, which by her account prevents the spread of STDs and unplanned pregnancies, promotes political debate, drives technological progress and facilitates scientific research. She risks conceding the premise that opposition to prohibition requires approval of the product. It is perfectly possible to hold that pornography ‘falls short of the ideal’ (to borrow the wording of the Anglican Church’s current teaching on sex outside marriage) or even strongly to disapprove of it, while maintaining that it should not be banned. Strossen is on much stronger ground in pointing out that all Porn Laws end up catching dolphins with the tuna. Less than a century ago Ulysses and The Rainbow were banned in England on the grounds of obscenity. It should not be assumed that this could not happen again: the new law on ‘extreme’ pornography, on a natural interpretation of the statute, would prohibit certain scenes in the films of Bergman and Pasolini. 

Perhaps inevitably in a collection of this sort, a few of the chapters fail to convince. But the general quality of the argument is high, and the message the book conveys is an important one. While most people very sensibly go out of their way to have as little to do with lawyers and the law as possible, the government insists on pushing the criminal justice system further and further into our private lives. The liberty to say and do things of which other people approve is no liberty at all.

David Squires