Drugs

DRUGS

The difficulty of defining key termsPaternalism and liberty

DecriminalisationLegalisation

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 1920-1933.

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 meansAlbert 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 usersFirst 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 usersSecond 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 usersThird 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 usersFourth 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.140-141.

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?