If you don’t expect people to do something, there is no reason to make it “illegal.” But “illegal” can mean many different things. It is illegal to jaywalk, but that will only rarely get you a ticket, if that. It is illegal to murder people, and if you murder someone you may well be executed. It is not (I believe) illegal to commit adultery, but it is grounds for divorce. It is not illegal to lie, but it is frowned upon.
There is some scale of “how much punishment is appropriate for this act.” Acts like lying are very hard to prosecute. Acts like jaywalking aren’t very problematic. There is some amount of punishment which is ideal, and some amount of enforcement which is ideal.
When people say “people will do X whether it’s illegal or not” the argument I perceive them to be making (and intended to make) is that increasing the penalties or prosecution for the crime in question will, at the margin, have a worse effect on crimes and welfare than leaving the laws constant. In part because everyone who is persecuting someone for having an abortion or smoking a joint is not trying to catch someone who has kidnapped children or committed murder, and adding more resources (at the margin) to those endeavors will be more worthwhile.
That’s a fine use of the principle of charity, and I endorse it on those grounds.
And I certainly agree that in many cases criminalizing (or more harshly prosecuting already-criminal) activity has a worse effect than legalizing it, and that this is absolutely an important argument to make where relevant.
If you don’t expect people to do something, there is no reason to make it “illegal.” But “illegal” can mean many different things. It is illegal to jaywalk, but that will only rarely get you a ticket, if that. It is illegal to murder people, and if you murder someone you may well be executed. It is not (I believe) illegal to commit adultery, but it is grounds for divorce. It is not illegal to lie, but it is frowned upon.
There is some scale of “how much punishment is appropriate for this act.” Acts like lying are very hard to prosecute. Acts like jaywalking aren’t very problematic. There is some amount of punishment which is ideal, and some amount of enforcement which is ideal.
When people say “people will do X whether it’s illegal or not” the argument I perceive them to be making (and intended to make) is that increasing the penalties or prosecution for the crime in question will, at the margin, have a worse effect on crimes and welfare than leaving the laws constant. In part because everyone who is persecuting someone for having an abortion or smoking a joint is not trying to catch someone who has kidnapped children or committed murder, and adding more resources (at the margin) to those endeavors will be more worthwhile.
That’s a fine use of the principle of charity, and I endorse it on those grounds.
And I certainly agree that in many cases criminalizing (or more harshly prosecuting already-criminal) activity has a worse effect than legalizing it, and that this is absolutely an important argument to make where relevant.