Illegal Pleasures: the East – West Divide by Barbara Nadel

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The social contract in the West provides that representative governments are elected to enact laws to make certain conduct (or absence of conduct) criminal. The law breaks us down into three general categories: natural, artificial and potential persons. You and me, we are what the law calls ‘natural’ persons, thank you very much. Not like a corporation which is a construct, an abstraction and while very much an artificial person, nonetheless the company is a person for many purposes and can commit crimes, too. Not like a potential person, which is that clump of protoplasm that divides and grows and at some stage (hence the hot debate) becomes a natural person.

Having identified a person, we can now look at a certain aspect of criminal law. The bit I am interested in talking about are the criminal laws that define what we can and cannot put in or take out of our bodies. Or indeed restricts the pleasures associated with our bodies. Of course companies, as artificial people, don’t have bodies and don’t experience pleasure or pain; though its officers, shareholders and directors as natural people seek pleasure and avoid pain like the rest of us.

Steal a car, get caught, and you are guaranteed to be processed through the criminal justice system. If the car isn’t stolen, but the cops find a joint inside, the car is seized and the driver likely goes to jail. In some jurisdictions, you can plan on spending a period of jail time longer than your car thief cellmate. The law is strict on what pleasures are allowed for natural persons. Companies can’t drink; potential persons are unable to drink (at least directly). So it’s mainly natural persons who are in the crosshairs of the law.

The reality of ‘crime’ is that blur any line between conduct, which causes the loss of property, liberty or life to another person and conduct that results in someone else being the victim, meaning they’ve suffered a loss from your pleasure. Most countries don’t pay much attention between crimes with victims and crimes without victims. Pleasure is not a legal defense. Elected governments enact the law that criminalized the conduct. So do dictators. And surprisingly what is criminalized is roughly the same kind of thing insofar as victimless crimes are concerned. Neither tyranny nor democracy is all the friendly to a number of pleasures chosen by natural persons.

This is where cultural difference comes into play. Let me start with three common, every day examples: prostitution, piracy of intellectual property, and abortion. All three activities are crimes in most places, Thailand included. Thai law proscribes such conduct and offenders are subjected to fine and imprisonment. That’s the theory. But walk along Sukhumvit Road from Soi 3 to Soi 23 in the heart of Bangkok any night of the week and you will pass vendors hawking pirated DVDs, hookers hawking themselves and nighttime entertainment spots where the pimping and hawking happens inside. And you are likely, without a great deal of trouble, to locate an abortion clinic easier than finding taxicab driver willing to use his meter on a trip to the airport.

At this point, the mind of many foreigners starts to short-circuit and smoke starts to curl out of the ears of the newly arrived. If it is illegal, why can I see it all around me? To start with just because the transactions aren’t hidden doesn’t mean they are legal. This activity, which is illegal, occurs in the open and nothing happens? That’s when the dizziness of cultural shock starts to rattle your brain stem. So how and why does that work and can we have some back home.

In many parts of Asia, laws are as tough as anywhere in the West, but the way such laws are enforced are not the same. Enforcement of law goes into sleeper mode. Meaning it can be ‘awakened’ easily. Recently, a morgue at a Buddhist temple in Bangkok was found to have hundreds of dead fetus from several abortion clinics. The Huffington Post ran with the story. The Globe Mail wrote, “Thai authorities found about 2,000 remains in the temple’s mortuary, where they had been hidden for a year – apparently to conceal illegal abortions.” A public outcry has resulted in Thailand and elsewhere. Like the famous scene in Casablanca after the police storm into Rick’s and discover that gambling has been going on and the authorities profess to be ‘shocked’.

To criminalize conduct is to remove it from ordinary life in one important respect: legal activity resides on one side the official the ledger and illegal activity is off the books so to speak. The bureaucracy is designed to process licenses, extract taxes, supervise, control and monitor legitimate businesses, or the ones that on the surface follow the law, and that often translates into an artificial person going through all kinds of complicated, costly, time diverting routines that arise from running through endless official loops.

Illegal businesses are unofficially connected to officials through an underground governing system that has the usual interference but minus the paperwork; the hurdles to the bottom line are far less. The natural person breaking the law because his or her pleasure is illegal needs a powerful patron for protection. That patron doesn’t work for free. He exacts a price for protecting those involved in illegal activity. In the West, this system is called corruption. In the East, it is also called corruption but an argument that the system only works smoothly because corruption has been built into the system. Governments can pay their officers small salaries, if they are making a living on kickbacks.

For this to work, basically everyone needs to turn a blind eye to activity that is publicly displayed. Corruption that allows illegal activity to openly function requires widespread complicity or it simply won’t work. Of course, it doesn’t always work. Sooner or later someone or something triggers a chain reaction: such a couple of thousand dead fetuses turning up at a morgue in a Wat. Then everyone ducks for cover as they point the finger at someone else. There are demands for an investigation. There are demands to arrest the lawbreaker. Usually a crackdown follows. And in this case a crackdown was ordered on the illegal abortion clinics. Politicians, seeing an opportunity, offer laws to liberalize abortions, others to increase the penalties. What had been going in front of everyone’s nose was suddenly in the newspapers and those segments of the population with deeply held conviction about abortion appear and demand that the government do something to enforce the law.

This brought into play all the bottled up emotional debates on when a potential person becomes a natural person, and what rights a natural person (i.e. a woman) has over her body. When this time bomb goes off, everyone is shouting and running for cover at the same time.

I mentioned crackdown. I can’t remember if people have this in the West. But it is a central feature in administering the justice system in Asia. A crackdown comes into play when the illegal conduct breaks into a headline and leads on the nightly TV news. The heat is on and all bets are off. The patron protectors turn their back on the illegal operators, close them down, even arrest a few of them, and promise that this illegal conduct will never happen again. Crackdowns last around two weeks until the fickle, attention-deficit public finds another example of illegal conduct screaming in the headlines. The crackdown ends, and it is business as usual. The old complicity resumes and people go back into sleeper mode.

As for Intellectual Property, now there is a can of worms with multiple heads: from pills, to movies, to watches, and perfume. In the West, piracy of intellectual property rights is a serious offense. People go to jail for copying movies. Because films are protected by copyright and copyrights are (largely) own and controlled by artificial persons. The FBI shows up with battering rams and automatic weapons, breaks down doors, hauls away computers, inventory, and employees. In the East, people are puzzled over how anyone can own ‘intellectual property’. It is too abstract. First, it isn’t own by a real person. This isn’t someone who looks like you or me, your aunt or uncle. It’s arises from a piece of paper. The company is artificial. It’s not like kicking a dog. Show me that thing you call a copyright or a patent. Show me the victim. You start to see the uphill battle Western companies have in Asia.

People, are by nature, literal. With prostitution people have no trouble visualizing the issue, and if they need assistance there is a lifetime of porno to teach them (another area of criminal law and illegal activity, to talk about another time). You can see the hooker and not an abstract copy of a hooker. She’s a natural person! The John is also a natural person. If such perfect symmetry existed in the universe, it wouldn’t be a mystery any longer. The same with abortion; there’s physical evidence, in the case of the wat, bags and bags of dead fetuses. But in this case, the fetus, while not abstract like copyright, in the minds of many are potential persons and rights of the mother come first. Still whatever side you take on the abortion issue, you don’t need to go to the white board and draw a picture of a fetus. Just because it is, arguably a potential person doesn’t make it an abstraction like a company or film copyright.

Another thing, piracy of intellectual property isn’t exactly victimless as a crime. But the victim is likely another abstraction: a corporation. It is a legal entity, a certificate of incorporation hanging on the CEO’s wall. One thing a corporation is not: is a natural person. In other words, this isn’t a teenage mother ending an unwanted pregnancy, or a hooker in a tight fitting dress: a case can be made that a corporation is something that has no problem victimizing other corporations and natural and potential persons. If you are the CEO, CFO, on the board, or a shareholder, then you know for a fact, that victimization is not inconsistent with big profit margins. Ask the big guys on Wall Street with their multi-million bonuses coming up in time for the holiday season.

There is a lesson in this process of making something a crime especially when connected directly with control over our bodies, deciding what goes in and what goes out. What we learn is that when there is no victim, making something a crime, especially if it involves paid for sex, pirated movies or a woman’s control over her own body, we have issued an open invitation to establish a shadow economy run as monopoly by corrupt agents of the state. Illegal casinos, underground lotteries, illegal distilleries are a few other examples that natural persons seeking pleasure often indulge in and are, of course, illegal but widely tolerated. The money from these sectors may indeed be vital to the economy. No one knows how much money changes hands. We can guess the amount is substantial and crackdowns are costly to the alternative economy and that’s why they don’t last all that long. People need to get back to work. One person’s pleasure is another person’s service or product and profit is the engine that drives the machine.

Pleasures are a good business. Keeping them illegal keeps the profits high. No taxes, no other fees other than those paid to keep the authorities happy. It is surprising that everything associated with pleasure aren’t automatically made illegal as they potential for unofficial profits are immense. That would give away the game. So it is just selected pleasures that thrown behind the curtain, kept out of sight.

The downside of unofficially allowing state agents to assume the role of overseers of illegal pleasure empires is definitely not a good way to downsize government. The criminal laws, at least with a certain category of crimes, are official window-dressing for that segment of the community that believes that the government has a role to play in stopping a person from doing something that is harmful. When the population wakes up from sleeper mode the one thing that follows like night follows day is the crackdown almost never exceeds the length of a school holiday. And it is sweet dreams all the way around.

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