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From Conscience to Constitution: Should the Government Mandate Virtue?

photograph of cards, dice, chips, cigarettes, and booze

You have probably heard it said that you can’t legislate morality, that making laws that require people to do the right thing is both ineffective and authoritarian. Nevertheless, in his recent Atlantic article entitled “American Has Gone Too Far in Legalizing Vice,” Matthew Loftus encourages politicians to do just that. By legalizing sports betting and recreational marijuana, Loftus argues that states are neglecting to consider the countless addicts that will result, and that lawmakers should do more to outlaw these harmful vices.

On Loftus’s view, public policy plays a role in the habits that we form, and creating an environment where more people succumb to their vices is neither good for addicts nor the political communities that will be left picking up the pieces. A substantial portion of gambling revenue comes from those who struggle with addiction, and legalizing marijuana is linked to higher rates of drug abuse. If these activities remained illegal, then fewer people would get hooked.

On this score, it seems that Loftus is obviously correct. Our environments play a significant role in the habits we adopt. If I am surrounded by responsible peers, I will be more likely to study for my next exam, while if many of my friends are cutting class, I will be more likely to skip out as well. These choices then form my habits. In the good case, my habits will be virtues like temperance, honesty, and diligence. In the bad case, my habits will lead me into all sorts of vice, including destructive addictions like gambling and drug use.

But even if it is true that our environments form our habits, the question still remains whether it’s the government’s place to guide us towards virtue instead of vice.

As a democracy founded on the rights to “life, liberty, and the pursuit of happiness,” it may be too heavy-handed for political leaders to require us, or even nudge us, to live a certain way.

This concern is amplified by the fact that many of the philosophers who have been the staunchest advocates of state-sanctioned virtue have not been very enthusiastic about democracy. According to Plato, a well-functioning political community should mirror the way that virtuous individuals conduct their lives, while for Aristotle, the purpose of government is to help citizens to live flourishing lives of virtue. But Plato also held that we should all be ruled by philosopher kings, a class of highly educated rulers, and that the freedoms granted within democracies would inevitably lead to anarchy. Likewise, Aristotle thought that monarchy and aristocracy are superior to democracy. An emphasis on character formation through the law might also lead to rejecting democracy as a promising form of government rather than embracing important constitutional freedoms.

These considerations reveal that there is some tension between allowing citizens the freedom to conduct their own lives and passing laws that promote virtue. Part of this tension arises because we often disagree about what is morally best, a fact that the political philosopher John Rawls called reasonable pluralism. Intelligent, well-intentioned citizens can find themselves at odds over many key moral questions.

Is gambling a harmless pastime or a serious moral vice? Is access to abortion a central human right, or the murder of an innocent human being? By enforcing policies that promote particular virtues, lawmakers may have to come down on one side or the other of these ongoing debates.

Furthermore, even in cases where we can agree on what is morally best, it is not clear that the law should prevent us from doing things that we know are to our detriment. Certainly the law should prevent us from interfering with how others choose to pursue happiness, but if we are only hurting ourselves, then why is that anyone’s business besides our own? Part of making room for the pursuit of happiness is allowing citizens to decide for themselves what they pursue, not limiting them to only a menu of government-approved options.

All of this, however, overlooks the fact that promoting certain virtues might be an unavoidable aim even for democratic governments. If it is true that political institutions should enable their citizens to freely pursue their vision of the good life, this goal cannot be accomplished by being completely hands off.

To form and pursue their understanding of the good, citizens need wisdom, discernment, courage, and perseverance, amongst other virtues. These virtues are necessary, not because the government wants to control our lives, but because without them we would be incapable of controlling our own lives.

We would instead be left to the dictates of momentary desires or, in the worst case scenario, crippling addictions from which we cannot recover.

This insight opens up a potential middle road between fully laissez-faire public squares and domineering, authoritarian governments. According to the philosopher Martha Nussbaum, political institutions should cultivate the capabilities necessary for their citizens to pursue self-directed lives. By promoting these capabilities, or virtues, governments ensure that their citizens are able to pursue their own unique visions of the good.

This approach allows that the law can encourage citizens in virtue in a way that creates and supports their ability to choose the life that they want to lead. On this model, the rule of law would not be completely value neutral, but it would make space for people to be able to choose many of their own values.

Forbidding certain kinds of vice, like preventing adults from gambling or using addictive substances, would for the most part be off the table. Unless the government wants to endorse a more robust picture of what a good life is like, the default position would be to let those who can choose their own informed goals pursue those ends. Recreational activities, like football or freediving, come with substantial dangers, but it is typically left up to individuals whether they want to take on those risks. In contrast, protecting those who are still forming the ability to choose their own life paths, like forbidding Juul from marketing to children, would be well within the purview of government officials.

Of course, just having laws that promote virtue does not ensure that anyone will become particularly moral. While they may succeed in outlawing vice, laws simply compel behavior, and those who begrudgingly comply out of fear of punishment would not for that reason become deeply good. The law, rather, would act as a guide for what kinds of values might be worth adopting, and citizens can then decide whether or not they want to choose these ideals for themselves. Policies like sin taxes, for instance, allow states to discourage vice without outright banning it.

Thus, even a view like Nussbaum’s leaves plenty of room for people to develop their own distinctive moral characters. Democracies can lay the groundwork for citizens to live meaningful and fulfilling lives, but at the end of the day, it is up to them to decide what values their lives will ultimately serve.

Are Loot Boxes “Quite Ethical”?

photograph of videogame mystery box

It’s not often that someone comes out and declares that something that has both received considerable scrutiny and is illegal in several countries is, in fact, “quite ethical.” But this is what recently happened during a UK House of Commons hearing concerning the existence of loot boxes in videogames. Kerry Hopkins, current vice president of legal and government affairs at videogame giant EA, declared that there were, in fact, no ethical issues with loot boxes, and that they should instead be thought of as “surprise mechanics”; she would go on to argue that the UK government should not make it illegal to sell videogames featuring loot boxes given that “people like surprises.” Those looking to enact legislature banning the sale of videogames with loot boxes tend to compare them to a form of gambling, one that is particularly egregious given that a considerable number of those playing said games are adolescents. 

The way many loot box mechanics work in videogames is as follows: one can purchase – either with real money or virtual currency specific to a particular game – a virtual mystery box containing items that appear by chance, with odds being weighted by how common or rare they are deemed to be. These items vary depending on the game being played. For example, loot boxes may contain virtual items used for cosmetic changes for a character – e.g. you can put a new kind of hat on them – while others may contain items that will give you an advantage while playing the game – e.g. maybe that hat is not just a hat, but some sort of power hat that makes you stronger.

The presence of loot boxes is taken to be most controversial when they both cost real-world money and contain items that offer distinct advantages to players. Cases that have received some of the most scrutiny recently have been titles published by EA, including Star Wars Battlefront II, and recent entries in the company’s popular FIFA franchise. In both of these games, players have incentive to buy loot boxes with the hope of acquiring items that could make them more powerful in the former, and to buy virtual packs of cards to acquire better players for their teams in the latter. In response to these two games in particular, several countries – including Belgium and The Netherlands – have categorized loot boxes as a form of illegal gambling, with several other countries – including the UK and various parts of the United States – considering whether or not to follow suit. 

The argument against the selling of loot boxes generally comes down to whether they should be considered a form of gambling – which, if so, would be similarly illegal in places in which gambling in general is illegal – specifically a kind of gambling that is directed at children and adolescents. “Gambling for children and adolescents” certainly sounds bad. On what basis, then, could someone make the claim that, despite appearances, loot boxes are actually “quite ethical”?

Hopkins’ argument is something like the following: there are numerous real-world toys that both cost real-world money and are aimed at children, and no one has raised any ethical concerns about selling them. For example, during the UK hearing Hopkins compared loot boxes to blind boxes – actual physical boxes that contain a random specific kind of toy inside, with some toys being more likely to be inside than others – and other real-world toys like Hatchimals and Kinder Eggs that similarly involve an element of surprise. If you don’t have a problem with those kinds of physical toys, the argument goes, then you shouldn’t have a problem with their virtual equivalent.

Other governments are in agreement with Hoskins: for example, in 2017 members of various government regulatory bodies in New Zealand decided that loot boxes do not constitute gambling. The main argument against classifying loot boxes as a form of gambling was that they are not purchased with the intention of winning money, “or something that can be converted into money.” That in-game loot boxes only provide benefits in the game, and not for real-world goods or money, is an argument that has also been used by EA CEO Andrew Wilson, who emphasized that EA does not “provide or authorize any way to cash out or sell items or virtual currency for real money.”

Determining whether loot boxes constitute gambling will, of course, depend on how one defines “gambling”. If we take gambling to be restricted to just those activities in which one pays money to play a game of chance for the purpose of potentially winning additional money, then it would seem that loot boxes do not, by this definition, constitute gambling. The definition of “gambling” is, of course, up for debate, and, as we have seen, varies from country to country.

However, even if we deny that loot boxes constitute gambling, there will still potentially be problems with allowing them in videogames. The first is that, despite not being able to win money directly within the game, there are many well-known third-party websites that buy and sell loot box items. Second, even if loot boxes are not technically considered a form of gambling, that does not mean that they are, in fact, “quite ethical”.

Consider the first worry first: well-aware of the existence of third-party resellers of loot box prizes, Wilson stated that EA “forbid[s] the transfer of items or in-game currency” outside of the games, with Hopkins attributing these problems to “bad guys”. We might ask, however, whether EA should take any responsibility for being part of a system in which people can pay for a chance to win something that does have real-world value, even if EA themselves doesn’t approve of it. We could interpret this situation in a couple of ways: on the one hand, we might think that, as an unwilling participant in the third-party reselling business, EA should not be held accountable for the actions of some bad actors; on the other hand, we might think that, given that EA is well aware of the existence of these third parties, that the loot box mechanics just sounds like gambling with a couple of extra steps.

Regardless of whether we think that loot boxes constitute gambling or “gambling with extra steps”, we can still ask whether they are “quite ethical”. For instance, we might still be concerned that the system is one that encourages, if not straight-up gambling, then at least activity that is closely related to gambling in adolescents. While there has not been a lot of study on the long-term effects of loot boxes, one recent study found that not only do the majority of people who play games with loot boxes consider them to be gambling, but that “Risky Loot Box use correlated moderately with gambling-related measures.” While this research appears to still be in its infancy, there is at least some empirical support for concerns about their effects. Despite EA’s insistence, then, there remains plenty of reason to be concerned that loot boxes are not as ethical as they would have consumers believe.

States’ Rights, Sports, and the Harm of Gambling

Image of gamblers in a sports betting hall.

The Supreme Court has struck down a federal law prohibiting sports betting. In 1992, a federal law prohibited states from authorizing sports gambling. This week, Justice Alito provided his reasoning in favor of protecting states’ rights, wanting to avoid the federal government interfering with state legislatures making their own rulings regarding the issue of wagering on professional and amateur sports, which is indeed legal in Nevada. Many states anticipated the Supreme Court ruling and have been mobilizing to profit on their newfound avenue for revenue. Citizens will be able to start wagering on sports in New Jersey, for instance, in the next two weeks or so.

Continue reading “States’ Rights, Sports, and the Harm of Gambling”