Drugs DRUGS The difficulty of defining key terms Paternalism and liberty Decriminalisation Legalisation

Douglas Husak It is a conceptual truth that criminal laws are laws that subject people to state punishment. Therefore, anyone who thinks that the use of a drug should be decriminalised believes that people should not be punished merely for using that drug.

5 difficulties in formulating the argument (Husak) 1.There is little punishment for mere use of drugs (it is easier to prove possession rather than use). However Husak means drug use. 2.To understand the use of a drug, we need to understand the purpose, but purposes change (cf. medical and non-medical reasons). Husak means recreational drug use. 3.How to understand punishment? Are certain actions modes of punishment or alternatives to punishment? 4.Husak isn’t considering the producing and selling of drugs. 5.Husak compares his account of decriminalisation to prohibition of alcohol from

Utilitarian argument (pro- decriminalisation) No law should be enacted unless it works. A law works when it succeeds in reducing a particular kind of behaviour without causing any unintended effects that are worse for the behaviour itself. Note: laws should not be expected to eliminate a behaviour, but to reduce it.

Utilitarian argument (pro- decriminalisation) Why drug laws are counterproductive: Enforcing laws has eroded privacy and civil liberties The health of users is damaged because users don’t know the strength or purity of the substances Efforts to slow production where drugs are produced have caused extraordinary violence and corruption Arrests and punishments have cost billions of dollars of tax resources that could be put to better purposes When the state cannot punish all of the people who commit a crime, it can only punish some, usually the least powerful (cf. blacks and Hispanics)

Rights-based argument (pro-decriminalisation) Drug prohibitions have violated moral and legal rights. The libertarian position emphasises personal responsibility and defends a limited role for government. Each of us has a right of self-sovereignty: we have a moral right to control our own minds and bodies. Recreational drug use doesn’t usually harm anyone or pose a serious risk of harm. We have a right to control our own minds and bodies.

Individual Liberty and Paternalism

Aristotle “we become just by the practice of just actions, self-controlled by exercising self- control, and courageous by performing acts of courage. This is corroborated by what happens in states. Lawgivers make the citizens good by inculcating habits in them, and this is the aim of every lawgiver; if he does not succeed in doing that, his legislation is a failure.” Nicomachean Ethics, 1103b2-5

Aristotle To be a good or virtuous person is to possess certain virtues, such as patience, courage and friendship. For each of these character traits, there are a certain class of actions in which we exercise these traits or virtues. Through exercising them, we acquire new, virtuous habits; we become disposed to act in a certain way.

John Stuart Mill “[It is to govern the] control [over individuals], whether the means used be physical force in the form of legal penalties, or the moral coercion of public opinion. That principle is, that the sole end for which mankind are warranted, individually or collectively in interfering with the liberty of action of any of their number, is self-protection. [T]he only purpose for which power can be rightfully exercised over any member of a civilised community, against his will, is to prevent harm to others.” (J.S. Mill, On Liberty, chapter 1)

Defence of individual liberty The state should not interfere with an individual’s liberty. If an action doesn’t have a victim, then it should not be a crime; if the person being wronged is you then no one can legitimately interfere. A related objection is that drug laws are moralistic: they impose the view that drug use is wrong on everyone, including those who think it is good.

Political means Should governments try to improve people by political means? Should the law be used to create virtuous people? Does government have a role in our moral education? The Aristotelian model is a famous example of the improvement of citizens by political means.

Political means Albert J. Nock: To control human behaviour by means of law is to control it by force, and this is incompatible with freedom. Freedom is a necessary condition of responsibility. To be responsible is to rationalise and construct a code of one’s own and adhere to it. Responsibility is a condition of virtue. If you want to create virtue by law, you destroy the very thing it was intended to bring about. So the political means is self-defeating.

Political means Whether an action is virtuous or not depends partly on the reason why it’s done (intention matters). Virtue does rest on a minimal sort of autonomy (unlike the radical kind proposed by Nock): we can act on principles which we understand. Can the political means impart this kind of understanding? If we are to acquire any of the virtues expressed by following rules, we must somehow acquire respect for others.

Negative duties Thomas Pogge: we are violating our responsibilities to the world’s poor because we are complicit with a global economic system that benefits from their suppression. If someone uses drugs in the privacy of their own home, they have negative duties to others.

Negative duties Criminals profit from the drug trade will generally do one of two things with the money: 1.Funnel the profits into an unofficial “shadow” economy where they fund other criminal enterprises (e.g. human trafficking, prostitution, arms dealing). 2.Drugs profits are used to criminalise the state itself, either by corrupting state officials or funding electoral campaigns. When taken to the extreme, criminals can even criminalise or capture the state entirely.

Negative duties Counterargument: It’s possible to use drugs and also do what we can to eliminate the conditions in which victims are suppressed. We should, therefore, legalise drugs. However, for this to be effective, there would need to be mass legalisation. Problems with argument based on negative duties: It’s more ambiguous what the negative duties are and how you’re violating them. More likely to become indifferent.

Husak’s argument (pro- decriminalisation) The most fundamental question is not whether to decriminalise the use of all, or any, drugs, but whether to criminalise the use of all or any drugs. We should not presuppose that the status quo is just – the status quo must be defended. The best reason not to criminalise drug use is that no argument in favour of criminalising drug use is any good (or at least not nearly good enough for justifying the punishment of drug users).

Punishing users First argument Drugs are bad for the development and maturation of children and adolescents. Counterargument Concern for the well-being of children disappears as soon as they actually begin to use illegal drugs. If children are discovered to have a syndrome or disorder (such as attention deficit disorder), they are given drugs (e.g. Ritalin) Also, can punishing adults really protect children?

Punishing users Second argument Drugs are unhealthy both physically and psychologically; there is plenty of evidence that drugs kill brain cells, destroy memory and drain motivation. Protecting our physical and mental health is one of the most important functions of the state. Counterargument It’s unlikely that criminalisation will improve health and well-being (cf. health of drug users sent to prison).

Punishing users Third argument Drugs are correlated with violent behaviour and criminal activity. A high percentage of criminals test positive for illegal drugs. Counterargument If drug use causes crime, why don’t the vast majority of drug users engage in violent conduct?

Punishing users Fourth argument Decriminalisation would cause a huge increase in drug consumption. Counterargument Husak’s counterargument is that the state would not punish anyone simply for drug use. The state can take other measures to discourage drug use, they just can’t punish anyone.

Husak: logic of moral and legal argument Husak’s argument is that it is morally permissible and should be decriminalised: “No state should punish persons for engaging in conduct that is morally permissible.” We can disagree with Husak on moral terms, but still agree with him that drug use should be decriminalised.

Decriminalisation and Legalisation

Different moral questions If you want to argue in favour of decriminalisation, like Husak, then you make a moral argument which is that the state must have a very good reason for punishing you. So this is a moral argument against unnecessary punishment. If you want to argue in favour of legalisation of the use of recreational drugs, we have vast empirical data to show that drug use can harm and kill people. So if you want to argue in favour of legalisation, you need to come up with a moral argument that justifies an action that can harm and kill.

Moral argument against the legalisation of drugs P1. The criminal law should punish people who behave immorally. P2. Illicit drug use for recreational purposes is immoral. __________________ C. The criminal law should punish people who use illicit drugs for recreational purposes.

Moral argument against the legalisation of drugs “Even now, when the dangers of drug use are well- understood, many educated people still discuss the drug problem in almost every way except the right way. They talk about the “costs” of drug use and the “socioeconomic factors” that shape that use. They rarely speak plainly – drug use is wrong because it is immoral and it is is immoral because it enslaves the mind and destroys the soul.” James Q. Wilson in Body Count (ed. Bennett, Dilulio and Walters), pp

Arguments in support of legalisation Financial cost: some of the resources currently devoted to the enforcement of drug laws would become available for other uses. Drug-related crime: in a competitive market, the legalisation of drugs would reduce the price of drugs dramatically, and so the cost of the average drug habit might not exceed the cost of the average cigarette habit.

Arguments in support of legalisation Drug users and their families: the fall in drug prices would be equivalent to an increase in real income, most of which would become available for non-drug expenditure. Drug users financing their habit by illegal means would be less exposed to criminal influences. Medical benefits: drug users would be better integrated into society, more likely to be employed, and more amenable to treatment and advice. These things would improve the health of the drug user. Social control: decisions would be made by law- abiding, tax-paying businessmen within a legal framework; governments could tax and regulate the trade.

Argument against legalisation If drugs are legalised because there would be more drug abuse. Drugs will be more accessible and the psychological cost of having to purchase drugs will be eliminated. If it’s easier to use drugs, it’s easier to abuse them. Advertising will increase drug use. This argument assumes that using drugs is the wrong thing for some people to do because their drug use is irresponsible because it has bad consequences. That is, it is not a moral argument that drug taking is intrinsically wrong.

Take-home questions 1.What is the moral status of drug use? 2.Should drugs be legalised? Decriminalised? 3.If yes, should all drugs be legalised? Decriminalised? If not, which ones and why? 4.Do drug users have negative duties to others not to take drugs? How could they act on their negative duties?