The Limits of the Law

Alcohol can be fun stuff. But it can turn on you. Living in Sydney’s inner west, only a block from one of the highest concentration of pubs and bars in the city, I see it’s unsavoury side all-too often.

In fact, the normally convivial family-friendly disposition of Newtown’s King St turns decidedly ugly after midnight, especially on weekends. Clusters of drunken revellers, typically 20-somethings but often older, stumble around shouting, swearing, groping, imbibing kebabs of dubious repute and leaving little puddles of said kebab strategically placed on street corners.

What is truly striking is that just about everyone you encounter after midnight in the city or the inner west is in some state of drunkenness, often nearly paralytic, or as it’s commonly known around these parts: “rat-arsed.”

After midnight, our city turns into a menagerie of hominins in fancy shoes regressed to their primal roots, urged on by thoughts of sex, food and chest thumping competitiveness.

It’s undignified at best, descending into violence and public mayhem at worst.

And it exacts a cost not only in terms of throbbing heads and deep regrets the next morning. The cost is spread out on the whole of society.

As Courtney Breen, Research Fellow at the National Drug and Alcohol Research Centre at the University of New South Wales recently pointed out, the negative impacts of alcohol don’t just affect drinkers, but flow on to those around them.

In fact, a recent report by the Alcohol Education and Rehabilitation Foundation found that the cost of alcohol in terms of negative health effects, lost productivity and property damage amount to many billions of dollars each year.

So, what to do about it?

One approach, which is endorsed by Breen in an article on The Conversation, is higher alcohol taxes. Evidence suggests that higher alcohol prices reduce consumption and can reduce the harms inflicted on at-risk groups.

The strategy has certainly proved popular with tobacco in this country and others.

However, there’s a downside to this kind of strategy. Regulation and laws have their limits, and we can’t expect them to be the ultimate solution to many of our society’s ills.

Laws are useful things. They apply external impetus to encourage we behave in ways that don’t negatively impact those around us. But laws aren’t the only mechanism we have to regulate behaviour in positive ways.

In fact, arguably more important than laws are good old fashioned social norms. These are the norms we acquire during our upbringing that govern how we behave in public, how we interact with others and what things are considered permissible and impermissible.

Rather than being driven by threat of external force such as fines or imprisonment, or a monetary  imperative in the form of higher taxes, they’re typically enforced through more subtle social mechanisms, largely by things like embarrassment, shame and gratitude. Our very nature as ultra-social primates makes us acutely responsive to such encouragement.

Social norms have many desirable features. They’re largely self-regulating, they don’t exact the same cost of enforcement as legal norms and they bubble up from the bottom rather than being imposed from the top.

I experienced a first hand example of the power of social norms in regards to alcohol consumption not long ago. I was recently lucky enough to be strolling the streets of Paris after dark when I came across a group of partly inebriated 20-somethings. However, unlike a similar posse in Australia, they were contained, composed and dignified in their behaviour. Even though they were singing fairly loudly, it was far from the ribald pop tunes that bellow forth after midnight from the streets around my home.

Anecdotal, sure, but in my time staying in central Paris they were the most drunken people I saw. And I suspect that is because of the different social norms surrounding drinking that exist in France. For it would be considered simply unacceptable behaviour to tromp the streets, starting fights, vandalising and barfing in the gutter. Anyone who behaved such in central Paris wouldn’t keep the company of their friends for long, unlike here, where it’s increasingly considered par-for-the-course for 20-somethings, if not a worn with pride.

However, social norms have been slowly but surely eroding over the past century in many countries, with the erosion driven by three primary forces: the decline of organised religion; the incessant march of individualism; and the increase in pluralist society.

Religion, along with the family, was the classroom for acceptable behaviour, and the derisive stares from fellow church-goers was likely a potent force in keeping behaviour in line with expected norms.

Strong local community ties and interaction with neighbours and peers was also a strong social regulator, as it still is in many country towns and regional communities.

The rise of pluralism, multi-culturalism and postmodern relativism also eroded our expectations that those around us would – or should – conform to the same social norms as we. The latter ideology also made it harder to criticise the behaviour of others, even if that criticism came in the form of a disapproving glare.

And this is not to say that I’m for the reinstatement of state religion, socialism or monoculturalism – nor the overly oppressive norms that were heaped upon us 50+ years ago – only that I’m flagging one cost of social progression.

As social norms retreat we are increasingly forced to fill the void with laws and regulations. And when the grip of law is tightened it’s rarely loosened again. Laws are also good at discouraging bad behaviour, but they’re not terribly suited to encourage good behaviour: you can prohibit dangerous driving, but you can’t make courteous driving obligatory.

Yet social norms still do play a part in regulating our behaviour. After all, it’s not fear of arrest that encourages most of us to don pants before leaving the house in the morning.

And I think that, on the whole, social norms can still be a potent regulator of good behaviour, if we choose to promote them. They can also be an effective tool to shape drinking culture.

If it was universally agreed that openly drunken, brutish behaviour was unacceptable – and agreed even by the 20-somethings (as it appears to be in Paris) – then the social norm phenomenon would start to play its role in reducing such behaviour.

And such social norm regulation would be cheaper and more effective than the imposition of new laws or the exacting of steeper taxes.

The trick is to promote those norms. That doesn’t happen overnight. In fact, it can take a generation to bring new norms into being and see them spread sufficiently to wield their force.

All the more reason to start now.

I think Australia, and many other countries, would do well to have a discussion about the role that social norms play – about our ability, and limits thereon, in imposing and enforcing norms on others.

We most certainly don’t want to go back to the days of oppressive conformism, but there are probably a bunch of norms that almost everybody would agree on, and we shouldn’t necessarily let the spectre of bald relativism prevent us from spreading those norms and delivering derisive looks at those who break the norms.

Even a multi-cultural society has some norms in common, implicitly or by agreement, such as the freedom to walk the streets at night unmolested by drunken boobs, for one.

This is not to say laws and taxation aren’t tools to be employed when the circumstances demand. But they’re palliative impositions rather than long-term solution. And, as such, they should only be imposed in the short-term until the deeper long-term solutions can take over. But it’s imprudent to believe that laws and taxation are a final solution.

The employment of social norms to regulate behaviour is a long and slow solution, but one we should take more seriously rather than relying on the law to step in. I think we’d all prefer to have less anti-social behaviour, thus requiring less legal imposition, and this is, in principle, achievable.

But it does require reflection and a rethink of many of the fundamental values that we uphold, such as our increasing custom to keep to ourselves and not judge others. Judgement isn’t all bad. But it should be directed carefully and deliberately.

Then perhaps one day we can not only have streets largely devoid of rude inebriated twits, but also have cheap alcohol to boot.