Persuading Al Capone

Whenever someone suggests introducing legal restrictions on a particular type of behaviour, even where it is generally agreed that the behaviour is dangerous and harmful, it may be questioned if we should rely on persuasion rather than regulation to contain it.

We can all accept that if persuasion can by itself stop the undesirable behaviour in question, then it would be preferable not only because it is a less costly option, but also because it is a better moral outcome if people choose to do the right thing in accordance with what they accept as correct, and not just out of fear of punishment for breaking a rule.

However, there is clearly a limit to persuasion. The problem with the mantra of placing total reliance on persuasive approaches alone is that it ignores the consequences of those approaches falling short – taking too long, not reaching enough people, or simply not halting the harmful behaviour.

Some people just would not listen to arguments. Imagine in the name of ‘freedom’, there is no legal rule governing driving.  Anyone can drive if they want, though they are told that it would be safer for everyone if they would pass a driving test first.  Inevitably, there will be those who drive without having taken any lesson, speed along narrow roads, get drunk before their journey, or take dangerous risks as they head towards a zebra crossing.  

From organised crime to callous individual acts of spreading dangerous diseases to vulnerable people, there are countless cases of people engaging in harmful activities even when there are legal restrictions against them.  Only a fantasist could suppose that in the absence of all regulations, such people would suddenly acquire a sense of responsibility, and stop putting their own greed and impulse above the wellbeing of others.

One may wonder why some politicians still insist that persuasion is the limit of what we should do to curtail harmful behaviour. Do they know some secret persuasive technique they have yet to share with the rest of us?  Are they in possession of a style of communication that can change the most self-centred or thoughtless individuals into socially minded citizens?

In truth, there are two reasons why these politicians champion persuasion as the only acceptable policy tool – in very specific cases.  One reason is that they do not actually in the cases in question want the harmful behaviour to stop.  Be it climate change, pollution, threats to health and safety, job insecurity, etc., they directly or indirectly (through links to donors and potential benefactors) have an interest in ensuring there is no legal impediment to corporations maximising their financial gains at the expense of other people.  In short, they want to stick with persuasion when anything with legal force would curtail the activities in question and hence impinge on their own pecuniary interests.

The other reason is that with harmful behaviour such as racist, sexist, bigoted, intimidatory acts, these politicians calculate that siding with the perpetrators of these acts by keeping legal intervention at bay, would help them gain electoral support.  By constantly speaking out against the ‘threat to freedom’ of any legal restriction against these types of harmful behaviour, they present themselves as defenders of the ‘right’ to spew hatred and prejudice.

There is little point in trying to convince these politicians that persuasion may not always be enough.  In those cases where they insist on persuasion as the limit to what any government should do, the task for society is to expose their self-serving interests as the indefensible basis of their position.