> Under the law, it will be assumed that all foie gras came from duck or geese that have been force-fed unless “documentary” evidence is provided to the contrary.
Guilty until proven innocent seems to be the general trend in NYC these days.
Guilty until proven innocent seems to be the general trend in NYC these days.
If shark fin is illegal, then being able to order it in Mandarin isn't a "loophole" -- it doesn't magically become legal on a technicality.
It's just a means of avoiding enforcement of the law, by making the illicit activity less obvious.
People will find loopholes anyway.
It's not even hard in this case.
Let's say that I go to a restaurant that claims they only use true cinnamon and Kashmir saffron to flavor a cinnamon roll, which they sell at a premium because of the high-quality ingredients.
When challenged, that restaurant needs to be able to show proof that they are delivering as advertised.
If it turns out that they were instead using artificial flavors and colors, then they are guilty of fraud, and the punishment should be scaled to the difficulty of detecting infraction.
Similarly, if a restaurant claims to be selling humanely-sourced shark fin (not even sure how that works, but let's roll with it), and can't substantiate that claim, then there does need to be some kind of punishment for deceiving their customers.
> When challenged, that restaurant needs to be able to show proof that they are delivering as advertised.
> If it turns out that they were instead using artificial flavors and colors, then they are guilty of fraud, and the punishment should be scaled to the difficulty of detecting infraction.
Can the punishment also be scaled to the harm, or potential harm, caused by the fraud? In a case like this, that would be nothing.
The harm is indeed relevant! "Crimes" without a victim, or where the victim and the perpetrator are the same person, should not be crimes.
But in this case, the harm is decidedly not nothing:
(1) How many consumers chose "Cakes of Deceit" over their competition, "A Taste of Honesty", on account of those premium ingredients? This pushes other businesses to engage in dishonest behavior in order to level the playing field.
(2) How many customers paid more for the "premium" offering because of its ingredients? What would they have paid had they known the truth? The difference between these two is the amount of money stolen from the customers.
(3) What is the economic impact to the sellers of the premium ingredients? Presumably, customers eating at "Cakes of Deceit" will come out with the opinion that "Kashmir Saffron" and "True Cinnamon" aren't any different than the cheap stuff.
This is far from a case of "no harm, no foul"
Also, you scale punishment to fit the difficulty of detection -- and I would argue, the guilty's ability to pay -- as it keeps the risk-reward equation balanced.
Imagine a shoplifter, Alice. She is caught stealing a $10 pack of cigarettes from the corner liquor store.
Alice offers to pay for the cigarettes once she is caught.
Sounds fair, right?
Suppose that we know that there is a one in ten chance of catching a shoplifter. That means for every ten times Alice tries to shoplift those $10 packs of cigarettes, she'll escape punishment nine times, and get caught once.
The corner store would be out $90 in goods in this case. Alice would be out the $10 for a single legitimate purchase. So we adjust the punishment upwards to make the process of shoplifting unpalatable to Alice in any case.
Now, what if Alice is wealthy, and just stealing for the thrill of it?
Well, a $200 fine probably won't mean much to her. So we scale the punishment until it does.
The Swiss do this, and I highly support it. If we are going to make something illegal -- which we do far too much, I must admit -- being wealthy shouldn't be equivalent to a Get Out Of Jail Free card.