A Squalid Policy

The Financial Times’s Peter Foster and Lucy Fisher report on plans by the UK’s Home Secretary Suella Braverman to crack down on those who are called “rough sleepers” on this side of the pond, or simply homeless people on the other. They would be banned from sleeping in ― and charities that help them would be banned from distributing ― tents. The report quotes predictable and understandable criticisms of this on the merits, but I would like to make a different point about Ms Braverman’s plan: namely, that it is yet another example of a policy that seeks to nudge people by “crapping on them”, to use the language of that noted political philosopher Emmanuel Macron.

To be a bit more specific, unlike most laws ― good or bad, smart or stupid ―, which appeal to either the moral sense or the self-interest of the people who are supposed to comply with them (or, frequently enough, to both), some operate by triggering emotional responses, from exasperation, to disgust, to fear. I have written about this a number of times.

First, in the context of Canada’s prostitution legislation and, also, of prohibitions on flavoured tobacco products. I argued that, while the former is often roundly (and I think rightly) condemned and the latter broadly accepted and indeed welcomed,

[i]n both cases, the government (and advocates urging it on) seek to deter a behaviour that prevailing morality finds reprehensible (the sale of sex, the use of tobacco) not by prohibiting it, but by subjecting those who engage in it to the heavy pressure of their own negative emotions (fear, disgust).

Something similar is at work in the widespread prohibitions on “human smuggling” ― that is, unlike human trafficking, is the transportation of consenting, indeed willing, persons across borders they are prohibited from crossing. The effect of these bans is to raise the cost of the smugglers’ services: not just the pecuniary cost of course, but also the riskiness and the exploitativeness. As a result,

[w]e say that we welcome refugees, but actually we put barriers that not only make it difficult for them to come, but ensure that those who make the attempt are more likely to suffer or even die. That this barriers are invisible makes it worse. Ostensibly we protect vulnerable people from exploitation. In reality … we create incentives for the smugglers to exploit them. 

Anti-smuggling laws work similarly to prostitution legislation that follows the “Nordic model”, as Canada’s now does:

Only one side of the consensual  transaction, the one allegedly exploiting the other, is criminalized (in the case of smuggling, the supply; in the case of sex work, the demand), but the putative victim is endangered, and probably also stigmatized, as a result. It is hard to avoid the suspicion that, as with sex work and other activities considered reprehensible, regulations that ostensibly protect people from their ill-effects are actually meant to scare or disgust them out of engaging in these activities; or at least that, even if this is not the intent, the supporters of such laws really do not mind if they this effect.

And then there was the pandemic policy of Mr. Macron ― and of many others, in fairness to him, though few have been as explicit about their reasoning. Faced with the reluctance of a relatively small but determined bunch of anti-social idiots to get vaccinated against the plague, the French president propounded the following doctrine:

The unvaccinated, I very much want to crap on them. And so we’ll keep on doing it, to the end. That’s the strategy. … [I]t is only a very small minority that is refractory. … How do we reduce them? We reduce them, sorry to say it this way, by crapping on them even more. … I’m not going to put them in prison; I will not forcibly vaccinate them.  And so we have to tell them: … you will not be able to eat out, you won’t be able to get a coffee, you won’t be able to go to the theatre, you won’t be able to go to the movies. (Translation mine)

As I wrote here,

To crap on people, Macron-style, is not quite like telling them that they ought to live in fear, as Canadian law used to tell and still tells prostitutes. It’s not even quite like physically disgusting them, as it does with smokers. But the way in which regulation that aims to crap on them acts is not that different from regulation that acts through fear or disgust.

Ms Braverman’s plans, to return to them, are not as subtle as Mr. Macron’s. They quite transparently enlist fear, cold, and squalor. Rough sleeping, she believes, is a “lifestyle choice”, and the choice needs to be painful to be unattractive, so she is willing to inflict pain. As I wrote in my first post on this topic, the one about sex work and cigarettes, ― though I am less tentative now than I was then ― “this approach is wrong, whether in the case of sex work, abortion, or smoking” ― or rough sleeping:

As Jeremy Waldron’s work on the Rule of Law and human dignity emphasizes, law normally tries ― and ought to try ― to treat those subject to it as human beings, endowed with dignity and capacity for rational choice. It does not, and ought not to, treat them as objects or beasts who need to be prodded around. Regulatory schemes that rely on visceral negative emotions such as fear, disgust, or shame seem to me to come close to doing that. To be sure, law often relies on a certain fear of negative consequences of non-compliance with its substantive or formal requirements (whether punishment, liability, invalidity or unenforceability, etc.). But, for one thing, it seems to me that, although the difference is difficult to put into words, the nature of this fear is not the same, and not as disturbing. Perhaps more importantly, and more clearly, the unpleasant consequences of non-compliance  are something the law explicitly tells people to avoid. There is no manipulation going on. They are also produced by the legal system itself ― by the judges who announce them, by the prison wardens and bailiffs who enforce them, and so on, not by external factors for the law purports not to take responsibility.

All this applies, I think. I only add two side points about Ms Braverman’s plan for crapping on rough sleepers.

First, she says she “want[s] to stop … those who cause nuisance and distress to other people by pitching tents in public spaces, aggressively begging, stealing, taking drugs, littering, and blighting our communities”. Pretty much all of these things can be and are criminalized quite independently of the possession and distribution of tents, and many of them should be criminalized. The question, perhaps especially acute in this country at present, is whether the police are willing to enforce the law. But adding to the list of laws that need to be enforced does not help address the problem.

And second, legalize housing. Just legalize housing already, instead of criminalizing tents. How’s that for a less squalid policy?