You can’t legislate ethics.” I have heard that one often during the debate over electronic, spinning wing decoys (“spinners”). It is a favorite of self-styled libertarians who contend that use of the devices should not be banned until we can prove that they cause long-term injury to waterfowl populations. As our science cannot conclusively prove such a link without controlling a host of uncontrollable variables, that slogan both defines and ends the debate for those who utter it. It’s well past time to hold that talisman up to the light of careful examination. Let’s start with some basics.

The dictionary defines “ethics” as “ . . . a system of moral principles . . .the rules of conduct recognized in respect to a particular class of human actions or a particular group culture . . . that branch of philosophy dealing with values relating to human conduct, with respect to the rightness or wrongness of certain actions and to the goodness and badness of the motives and ends of such actions.” Random House Dictionary Of The English Language p.489 (Unabridged Edition 1970).

The blunt truth is that virtually our entire system of laws is based on our ethics as so defined. One can begin with the Ten Commandments and the Bill Of Rights. The great majority of our civil and criminal laws are intended to promote fairness and equity -- while proscribing their opposites – for these are our values, our perception of goodness and rightness in human conduct, our national group culture proclaimed in the Declaration of Independence and the thought that preceded it. The anti-trust laws, for example, are intended to protect fair competition. Our securities laws, however imperfect they may be, are intended to protect the fairness of the financial marketplace. A covenant of “good faith and fair dealing” is implied in every contract. Negligence liability is generally determined by reference to standards of fairness and what a reasonable and responsible person ought to have foreseen as the consequences of his or her actions or inactions. Our jury system is based on the notion that the combined, adult human experience of twelve laypersons is a better judge of the truth, the fairness and rightness of things than the perceptions of a judge or philosopher king or other so-called wise person.

One can argue that legislation to provide redress against injury or to protect something so fundamental as personal freedom or the integrity of marketplaces goes beyond mere ethics to address subjects imbued with the very essence of public welfare and the cohesion of our society. Fair enough. But what about laws that make it a crime to throw beer cans and other trash out of your car window as you tool down the highway? What about laws that prevent you and your neighbors from building your houses above a certain height or from starting a car repair business in your front yard, or from building closer than a certain distance from your lot line? What about the host of rights that spring from concepts of privacy, so fundamental as to be protected by the constitution?

In short, we regulate all the time on matters of conduct, motivated by current perceptions of values, of good and bad, of rightness and wrongness as perceived by society or a certain interested segment of it. The regulations may affect fundamental property rights, the right to be safe in one’s home, the integrity of the economic system – or they may serve purely aesthetic ends, the integrity of feelings inherent in current notions of privacy, or even the more abstract sense of responsibility for future generations embodied in enactments such as the Endangered Species Act.

This isn’t a high school civics class and the point needs no further emphasis. Bluntly, the statement that: “you can’t legislate ethics” is not merely wrong but profoundly at odds with the most fundamental perception of who we are and what we are about, as well as our cultural traditions. The best thing that we can say for those who utter it is that they are mouthing a slogan as a substitute for thought, an empty debater’s trick to parry a thrust that cuts a little too close to the bone.

But exposing the slogan as an empty gust of bombast doesn’t produce a ready solution to our problem. It merely removes an impediment to thoughtful examination of it. For personal freedom also constitutes a fundamental ethical imperative of our cultural traditions and militates against regulating to enforce every passing notion of proper conduct. Stated another way, in this heavily regulated (perhaps over-regulated) society, we should only adopt new rules that we really need to serve an important end, when other means of achieving that end fail us. That’s a tough standard to meet – as it should be.

Here’s why I believe that a ban on spinners and other mechanical, electrical, battery powered attracting devices and devices using radar or other electronics in the killing of waterfowl, more than meets that test.

Waterfowling today is sport hunting. We don’t kill ducks to subsist. We don’t need to kill them for our own survival or that of our dependents. Hunting is not “sport” when we eliminate or minimize the basic skill components of the pastime through deployment of modern gadgetry. It is not “sport” when we adopt practices that tilt the scales even more heavily against the ducks than traditional methods. This is true wholly apart from the impact on populations, even though adverse impact on populations is absolutely inevitable as the use of modern gadgetry spreads.

No serious waterfowler – even those who avidly defend the use of their beloved spinners – would defend radar guided shotgunning that assured one hundred percent kills, supported by radar detecting devices that picked up and locked on to every duck flying within range. At some point, most of us recognize the difference between duck hunting and a video game. Almost all of us agree that duck hunting should never become a real life version of Mortal Kombat where the “Mortal” part applies only to the ducks, where their chance of escaping grim fate diminishes with every gleam in the eye of the computer aided inventor and where the skill required to bring about their demise is virtually nil.

As long ago as 1948, Leopold saw the trends in duck hunting “as a field of conflict between an immensely vigorous process of mechanization and a wholly static tradition.” “But why cannot our concept of sport grow with the same vigor as our list of gadgets?” he asked. For to him, mechanization offered absolutely no cultural substitute for the basic values of the sportsmanship it destroys. And the pace of mechanization accelerates today to the point where it threatens to swamp everything in its path, a dynamic force that becomes an end in itself.

Leopold himself admitted that certain invention may not destroy precepts of sportsmanship or cultural values. Teddy Roosevelt did not disdain the modern rifle. Wilderness explorers quickly took up aluminum pots, silk tents, dehydrated food, to replace their more cumbersome antecedents. “Somehow they used mechanical aids, in moderation, without being used by them.” He went on to state: “I do not pretend to know what is moderation, or where the line is between legitimate and illegitimate gadgets.” No student of his thought could doubt that Leopold would have had no difficulty drawing that line well before one gets to mechanical decoys. Spinners are not only inconsistent with the very concept of sport hunting, they are the harbingers of more and worse to come -- more ingenious and more deadly aids to the killing, all based on the explosion of modern skills in electronic arts, miniaturization, remote control and battery power.

I hosted an acquaintance and his 12-year-old grandson on a hunt last season in a marsh where the hunters have banned spinners as a matter of principle, by mutual consent. No breath of air rippled the surface of the pond. The decoys sat stiff and lifeless under the cloudless sky. Many birds flew over but few approached anywhere close to shotgun range. Although his young grandson sat still and remained generally silent, enjoying the spectacle, my acquaintance began to complain that we would never get a duck under those conditions without a battery of spinners. He surfed a crescendo of irritation and impatience as the morning wore on. His fidgeting and griping managed to flare the only birds that looked promising during the first two hours. At that point, he declared the hunt over and made a speech about the stupidity of people who won’t take the gizmos to the blind that they need to kill birds, particularly under those conditions.

As he got up to leave, I asked him what chance he thought that his grandson would have to introduce his own son or grandson to waterfowling, if we condoned killing by whatever means modern technology delivered into our hands, given the pace at which that technology is evolving. He had no answer. At that point, the young man spoke up. “I’d like to get a duck, grandpa. But I’d like to get it the right way. I have a Playstation at home.” (So I confess that all my references to video games in this piece and elsewhere found their genesis in the utterance of a 12-year-old old on his first duck hunt. He had a better sense of the rightness and wrongness of things than his hugely rich and successful grandfather who couldn’t leave the competitive feeding frenzy of the capital markets at home when he went out to a duck blind).

We legislate all the time to enforce cultural and ethical values in this society. We do it when voluntary compliance – or jawboning – doesn’t work and when the issue at stake is important. For me, the gratuitous killing of birds that we do not need for subsistence has cultural value only to the extent that it celebrates a tradition of our forefathers and depends upon a substantial vestige of the skills they had to possess in order to succeed. Using modern gadgetry that nullifies those skills and renders them irrelevant is not ethical. It is not consistent with sport hunting, a concept that in its very name presumes that the game has a reasonable chance. We need a ban to enforce such an obvious proposition because the voluntary approach and jawboning have failed. Indeed, the use of spinners spreads, hunters become habituated to technological aids and cultural values quickly erode. We lost them virtually overnight. It will take years to restore them.

We should have banned these devices the instant they appeared on the scene. With every passing year, their use becomes more entrenched, a ban more difficult to enact. In California, it appears that both our Commission and our waterfowl association have washed their hands of ethical responsibility in the face of that tide.

Take this to the bank: Those who do not have the courage to stand up against these devices now will live to regret their decision. They, their sons and grandsons will pay the price of their short-sightedness. Unfortunately, that will not bring back what we have lost. And the rest of us will share that loss with them.

So. You can’t legislate ethics? In this case as has been true in many others, the exact opposite is true. Failure to enact an effective ban represents the unethical act -- not the other way round.