The Regulation of Recreational Drugs: Philosophical Argument and Public Policy

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The Regulation of Recreational Drugs:

Philosophical Argument and Public Policy

Jonathan Wolff

Dept of Philosophy UCL
(Second draft: April 2007)

The regulation of drugs presents a challenge for liberalism: how can punishing a person for an action that harms only himself or herself be justified? For public policy a related difficulty is to justify the differential treatment of drugs and alcohol. Philosophical arguments suggest that current regulations are unjustified, and that some currently illegal drugs should be treated no more harshly than alcohol. However, such arguments make little or no impact in public policy discussions. This generates a further problem: to understand the different perspectives of philosophical reasoning and public policy so that philosophical arguments can have a greater role in public policy debates.

1. Introduction
Laws in developed societies to regulate the production, supply, possession and use of recreational drugs – drugs taken for their effects on altering consciousness but have not been prescribed for medical reasons – present a puzzle both for liberalism and for public policy. For liberalism the problem is that while many liberals pay lip service to Mill’s dictum that the only justification for interfering with the liberty of action of any individual is to prevent harm to others (Mill 1962), it is very hard to identify significant harms to third parties caused by the use of many currently illegal drugs. This, of course, is to leave aside harms that are the result of the existence of an extensive illegal market, which cannot themselves be used in an argument to justify such prohibition in the first place.
Public policy tends not to follow Mill’s ‘harm principle’ and all governments take it upon themselves to supervise individual lives in various ways to reduce the risk of individuals harming themselves. It is here, though, that the problem for public policy strikes. It seems, prima facie, reasonable that the stringency of regulation should be related to the harms any action or substance causes or threatens. However, some currently illegal drugs do far less harm to the user, and to third parties, than some currently legal substances, notably alcohol and tobacco. Yet despite the ever-increasing restrictions on public smoking the prospects of criminalising the use of tobacco, or that of alcohol, or decriminalising all drugs that are less harmful than alcohol, do not look bright. Hence it appears that societies do not in fact regulate drugs on the basis of the harm they cause. Therefore the basis of regulation is rather puzzling.
Lest it be doubted that some currently illegal drugs do far less harm than some currently legal drugs, consider the evidence presented by David Nutt in a short paper called ‘A Tale of 2 Es’ comparing ecstasy and ethanol (i.e. alcohol) (Nutt 2006, see also House of Commons Science and Technology Committee 2006, pp ev110-117, and Nutt et al 2007). Nutt claims that, on average, alcohol causes 22,000 premature deaths in the UK each year while ecstasy causes 10. These figures are contestable but their order of magnitude is not. It is also true that there are many more users of alcohol than ecstasy (MDMA), but even taking this into account alcohol is still, statistically, somewhere in the region of 200 times more likely to kill its users than ecstasy (and remember that one of the dangers of ecstasy is said to be that its illegal status means that it is sometimes ‘cut’ with other more toxic substances).
Alcohol is also known to cause brain damage, especially among very high users, yet the evidence that ecstasy has such effects is patchy and contested. The most notorious empirical study, in which it was ‘shown’ that injecting monkeys with MDMA led to brain damage (Ricaurte et al 2002), was later retracted when, after failing to replicate their studies with an oral dose, the researchers discovered that the monkeys in the original experiment had actually been injected with methamphetamine (crystal meth) in error (Ricaurte et al 2003). Despite this retraction, it is widely believed that there is clear scientific evidence that MDMA causes brain damage, although as far as I have been able to tell there is no study that actually shows this, as distinct from what scientists predict the studies might show if they had actually been done.1
Nutt also suggests that alcohol causes a significant number of road traffic deaths, incidents of violence, cirrhosis and heart damage, while ecstasy has none of these effects, and we might add, is protective against violence. Comparable stories can be told for cannabis and even LSD, which again are far less harmful to health than alcohol.2
To attempt to find whether there is a coherent basis for current regulations I will first consider the deeper assumptions underlying drug policy, and then explore the (surprisingly small) philosophical debate concerning the regulation of drugs. The main lesson of this discussion is as much methodological as substantive, concerning the interface between philosophical reasoning and public policy. This is not so much a matter of ‘theory’ versus ‘practice’ but rather a question of how issues are framed. That is, should we approach a policy area as if we are making a ‘fresh start’ with nothing in place and everything up for discussion; or should we start from how the world is? It is, perhaps, undeniable that both perspectives are necessary for any policy-oriented philosophical reflection. However some thought needs to be given to work out how the two perspectives can be integrated; otherwise the philosophical perspective is in danger of escaping from view entirely in policy debates.
2. Current regulations in the UK
Just to provide some background, it is worth setting out a brief, somewhat simplified, snapshot of UK drug laws. At its heart is that ‘controlled’ drugs are grouped into three classes:
Class A: Includes cocaine, crack, ecstasy, heroin, LSD, methadone, methamphetamine (crystal meth), magic mushrooms containing ester of psilocin and any Class B drug which is injected.
Class B: Includes amphetamine (not methamphetamine), barbiturates, and codeine.
Class C: Includes cannabis, amphetamines, anabolic steroids and minor tranquillisers.
The maximum penalty for possession of Class A drugs is 7 years plus a fine. For supply the maximum penalty is life imprisonment plus a fine. Supply does not mean ‘sale’: simply giving a controlled drug to another person without payment is sufficient to count as supply. It should also be noted that these categories are not carved in stone, and reclassification from time to time takes place, on the advice of the Advisory Council of the Misuse of Drugs.
In 2003 116,000 people in the UK were ‘found guilty cautioned or dealt with by compounding for drug offences’ (Dept of Health 2005, 188). In 2004 about 10,000 people in the UK were sent to prison for drug offences, with an average sentence of 32 months (Mwenda 2006), which appears to mean that there are around 25,000 people currently in prison in the UK for drug offences. Now, there are currently 80,000 people in prison in England and Wales (National Offender Management Services 2007), 7,000 in Scotland (Scottish Prison Service, 2007) and 1,500 in Northern Ireland (Northern Ireland Prison Service, 2007). A fair proportion of these prisoners are on remand or are unconvicted, meaning that there are around 65,000 convicted prisoners in the UK (Home Office, 2007b) and therefore it is likely that somewhere around 35% of the convicted UK prison population are there for drug offences (albeit some proportion will also have committed other offences).
US laws are more complex, and there is often a difference between state laws and federal laws, which have tended to be more draconian. Given how the criminal justice system works in the US it is possible to receive effectively a life sentence for possession of cannabis on a first offence. (For examples an see Husak 2002, 3, and for other background on drugs and incarceration in the US see Barry 2005 95-108, although for a different perspective, see Kennedy 1997).
3. Society’s Underlying Drug Strategy
The issue of the regulation of drugs is taken with sufficient seriousness in many jurisdictions that in addition to drug laws many countries set out an underlying strategy to give a focus to those laws. In perhaps his first of many writings on drug criminalisation, Douglas Husak wrote in 1989, ‘Whenever this paper is read, America will be doubtless be engaging in another round of its apparently endless war on drugs’ (Husak, 1989, 353). The US has stated, at various times, that it wishes to achieve a ‘drug-free society’. It is not alone in the goal; Sweden has announced the same thing. (Hall and Pacula 2003, 189) In the US this has, as Husak remarks, led to a declaration of a ‘war on drugs’, which is being fought on a variety of fronts, but most notably severe punishment of users and dealers, and attempts to cut-off the supply chain.
It is not entirely clear how the idea of drug eradication should translate into policy. The central idea, however, seems to be that policy should be assessed in terms only of how effective it is in eradicating drug use: the fewer people using fewer drugs the better, whatever means are best to achieve this. Of course there will always be budget constraints, but notions of ‘value for money’ or balancing other costs against the costs of drug use are in some sense out of place. At best they could be side constraints on the pursuit of policy, rather than goals that should shape policy itself. It is, however, unclear what the overall effects would be of striving for a drug-free society, given that such an aim cannot realistically be achieved. Taken literally the strategy seems to imply that all drugs are to be treated as equally evil and in need of suppression. However this undifferentiated approach arguably could lead to more drug related harm than another strategy. If, for example, possession of heroin and ecstasy are treated as of equal seriousness by the law, and heroin easier to obtain but its use much more damaging to health than ecstasy, then some users may be attracted to heroin when, under other circumstances, they would have been deterred by a greater penalty for heroin use, or by the message that it must be more damaging because it is in a higher category.
An obvious alternative, therefore, to a drug-free society is the goal of minimizing harms from drugs. This has been adopted by some societies, including the UK, which states: ‘The Drug Strategy aims to reduce the harm that drugs cause to society: to communities, individuals and their families’ (Home Office, 2007a). This apparently permits the idea that some drugs should be counted as ‘softer’ than others, and regulations should try particularly to discourage the use of the hardest drugs, which is, therefore, a rationale for the differential treatment of various drugs we see in the UK law. Indeed it seems consistent with the idea of permitting a policy which will have the effect of increasing the total number of users, and drugs used, if as a consequences total harms from drugs fall. One possibility would be allowing easier access to the least harmful drugs as a way of trying to get users to stop taking more harmful drugs.
Subtly different in formulation from the idea of minimizing harm from drugs, but radically different in consequences, is the idea of minimizing drug-related harms where this includes some harms that are the indirect, rather than the direct, result of drug use. For example, users who take their drugs by injection risk HIV and hepatitis from dirty needles. Consequently some societies have experimented with ‘shooting galleries’ and ‘needle exchanges’ so that addicts can be spared this risk. Other experiments have been undertaken, such as prescribing heroin to addicts so that they do not need to engage in crime to finance their habits.
Taking this idea even further allows the inclusion of the costs of imprisonment and a criminal record as an indirect harm of drug use, to be put into the balance. Although some regulation in this area appears relatively ineffective, there is, nevertheless, reason to believe that regulation does affect individual behaviour. For example, soft drug use is relatively rare among people over 30, who, perhaps, no longer want to risk arrest, once they have a steady job together with family and financial responsibilities. Hence the optimal level of regulation to minimize the total harms of soft drug use remains an open question. Quite possibly, at the present time, the two greatest drug-related harms are, first those following from imprisonment of offenders - the blight to the life of those imprisoned, and the associated public financial expense - and second, the social costs associated with a huge illegal market in drugs where contracts are enforced at the point of a gun. If so, then on the view that drug-related harm should be minimized there is compelling reason for reconsidering whether existing regulation serves its purposes.
In general such an approach goes along with the view that drug use should be theorised as more like a ‘public health’ problem, perhaps like a stubborn infectious disease, rather than as a problem that requires the intervention of the criminal justice system. Indeed, it has even been claimed that this is the current situation in England: Helge Waal, a Professor of Psychiatry in Oslo wrote, in a paper published in 1999, ‘The English drug policy has traditionally been dominated by a medical model with doctors rather than the drug squad in central position, and addicts more seen as patients in need of treatment than criminals to be prosecuted.’ (Waal, 1999) Perhaps compared to the US this is fair comment, but in itself it seems a slightly rose-tinted view.
A further theoretically possible view, of course, is that not all harms are the proper concern of government, and self-inflicted harm through drug use is an example of harms governments should ignore. However, no developed society has this attitude, and international treaties on drug use would currently make it very problematic.
Delineating possible underlying strategies, and their possible policy implications, settles nothing in itself. But it does help us understand the options available, and raises the question of what would justify adopting one strategy rather than another. To help think about this issue, it is worth comparing two other ‘social harms’: murder, and pollution.3 We can, I think, quite understand why a society would wish to try to achieve a murder-free society, treating murders as ‘special’ and not just one more cost to be placed in a cost-benefit analysis. Of course, there are budget constraints, but we would think it very odd – morally indefensible, most likely – if a Home Secretary announced that after a series of studies the authorities have decided that it is just not worth the cost of trying to prevent every murder, or detect every murderer, and some categories would no longer be deterred, investigated or lead to prosecution.
At the other end of the scale, the goal of a ‘pollution-free society’ could win votes but does not seem capable of generating sensible policy. Some forms of pollution may have very severe costs, and so there is every reason to try to reduce them, while others, so far as we know, are no more than a minor nuisance with only very small costs, and if the cost of removing them is disproportionate we may feel that the best course of action is to tolerate a certain level of pollution in order to achieve the optimum balance of costs and benefits (which of course should not be restricted merely to financial costs and benefits).
What is the difference between murder and pollution? There are various possible answers. One is that murder is violation of rights, and rights must not be traded off against other social goals. This, though, seems too general. Property rights can be traded in this way through compulsory purchase, for example. Another possibility is that the value of life is incommensurable, which again is a claim that needs to be made out with care (see Wolff and Haubrich, 2006). The details, however, are less important than the thought that preventing murder is in someway special, and silences ordinary claims about other costs and benefits. Preventing pollution is, in itself, not special, although when it creates a ‘clear and present’ danger to life it may become so. The question for policy makers is whether preventing drug use is more like preventing murder or preventing pollution. If the former, are there arguments that can show that the harms of drug use are special and call for the goal of a drug-free society?

4. Philosophical Arguments Concerning The Regulation of Drugs
i) Self-Ownership Arguments
One apparently highly rigorous approach to drug regulation would be to start from libertarian principles of self-ownership, from which it would follow that one simply has the right to put whatever one wishes to into one’s own body, and therefore drugs should be produced and sold on the free market like any other commodity. However, most libertarians will accept that self-ownership does not allow one to impose certain types of harms on third parties, and hence it is necessary to look at some of the likely consequences of drug use before declaring that people have a right to consume drugs. In essence, then, this position reduces to the Millian position which we shall consider shortly.
ii) Consequentialist Libertarianism
A different foundation for a libertarian, free market, proposal starts from the observation that there is at least one sense in which current regulation has failed: its deterrent effects are far from totally effective. If we look at the statistics for drug use in the UK, according to government figures, 34% of all adults have used illegal drugs at some point in their lives, 11% did so last year and 7.1% last month. (Department of Health 2005, 187). For those between the ages of 15 and 24 the figures are 45% (lifetime), 27% (last year) and 17% last month (Department of Health 2005, 38).4 Given also the individual and social costs of imprisoning even the small proportion who are caught and prosecuted, secondly, the costs of the existence of the black market, and thirdly the problems of overdose and poisoning associated with unregulated supply, it is sometimes argued that legalising the production and supply of all drugs – perhaps on the model of the sale of non-prescription drugs such as aspirin – would be far preferable. Furthermore, it is added, the government could raise considerable revenue through steep taxes.
However, there are two problems. First, even if this was a successful strategy in terms of eliminating the black market, it is unclear what the total effect would be on crime. If, to use an example from John Adams in another context, the former drug dealers spent their newly idle hours taking tea with their grandmothers, then the crime rate would go down, but if they decided to take up armed robbery, crime could go up. (Adams, 1995) Second, if drugs were taxed to raise revenue and keep the price up this simply recreates the conditions for an illegal black market to undercut the legal market. If taxes were kept low to avoid this, then the price of drugs would be determined largely by their cost of production: a month’s supply of heroin might cost the same as a month’s supply of coffee or perhaps even of sugar. Those who suggest that consumption would rocket under such circumstances have a point.
iii) Millian Arguments
Arguments starting from Millian liberalism would suggest the only reason for regulating the use of recreational drugs would be harm, or threats of harm, caused by drug use. There are, of course, claims that drug use causes harms of this sort:
Drug use harms strangers by involving them in the collisions, shootouts and other catastrophes to which the impaired and overly aggressive drug users are prone. It harms family members by depriving them of the companionship and income of their addicted partners. It harms fetuses by exposing them to toxic and permanently damaging prenatural environment. It harms children by subjecting them to the abuse of their drug-addled parents. (Sher, 2003, 12-13)
Now, whether or nor there would be drug shootouts if there was no drug black market, we should at least concede that the rest of these harms can follow from some drugs use, for some users, on some occasions. Yet the Millian argument is not that harm or threat of harm is sufficient to justify prohibition. Such a view would rule out most human activity: think of the consequences of road travel in which around two thousand pedestrians are killed in the UK every year. Nuclear power stations, chemical plants, firework factories and so on threaten harm. Mill’s own examples were that of economic competition, and competitive examinations, which harm the financial interests of people who lose out, but we can see that there are many examples of permitted actions which threaten or cause physical harm, even death. And once again the third party harms caused by drug use are relatively insignificant compared to the third party harms caused by alcohol use.
In Mill’s own framework it seems that the strength of regulation of a harmful activity depends on both the costs and the benefits of the activities. Thus, he says, if the only reason for buying poison was to kill people we could ban it, but as many poisons have other beneficial functions, such as killing rats, we should rather regulate the sale by requiring chemists to keep records of their customers so in the case of any human poisoning the police will have a ready-made list of suspects. For those who reject consequentialist reasoning it is a far greater challenge to explain when we can legitimately expose others to risk.5
Can it be said that the difference between alcohol and illegal drugs is that the former has benefits which the latter lack, and hence in a Millian framework we can treat alcohol use on a par with driving and economic competition, and but prohibit drugs absolutely?6 So, for example, it is often claimed that alcohol has modest health benefits for those use it in moderation, but no such claim is made for any drug. Even though in some cases people are said to use illegal drugs as a form of self-medication, to help overcome depression, pain, muscle spasm, and appetite loss (for much anecdotal evidence of self-medication among homeless drug users see Masters 2005) there is, as far as I know, no claim that any currently illegal drug has any health benefit for ordinary users.
However it is hard to believe that any modest health benefits justify the contrasting laws regulating alcohol and illegal drugs. Furthermore, when considering the benefits of drug use, those who take drugs, excluding the relatively small proportion who are addicted, do so for the pleasure or other experience they derive from them. Peter de Marneffe, in part of argument against the legalisation of drugs, concedes ‘recreational heroin use provides relaxation and enjoyment, which are good things’ (De Marneffe 2005, 157). Recall, also, the very large numbers of people who have taken illegal drugs. For those who believe in a ‘revealed preference’ theory of well-being this is a very impressive set of figures, especially when we take into account that revealing one’s preference in this way risks a criminal record, fine and imprisonment. But even on philosophically deeper accounts of well-being it is hard to deny the evidence that a lot of people gain enjoyment from using drugs, just as they and others do from using alcohol. It is very hard to make the argument that drugs can be prohibited because they cause a significant degree of harm to third parties without providing benefits to the users. Both sides of this claim look very weak when generalised to all drug use. Whether they are true of any particular drug is a further question, of course.
It is probably a fool’s errand to think that there is a way of differentiating alcohol use and (some) drug use on some principled basis concerning their effects. Many illegal drugs are more like alcohol than they are each other. I will not, therefore, put the issue of alcohol use to one side for the rest of this section, and return to it in the next.
iv) Authenticity
A different line of argument against drug use is that it generates inauthentic experience. The drug user feels pleasure but has done nothing to ‘earn’ that pleasure; it is an escape from real life. There are, however, several responses. One is to say that this is common to many legal experiences, whether it is a trip to the opera, watching an action film or any one of hundreds of other activities. Another is to say that while this may be a reason for not taking drugs, it is hard to see why it should be a reason for prohibiting them. (See also Brock 1984)
v) Biological Concerns
Some have argued that the way in which drugs typically work in itself provides the basis for moral condemnation. Essentially there is a ‘reward’ system in the brain, which, it is claimed, has evolved so that behaviour which is useful for individual survival or reproduction is given a positive reinforcement, whereas action with the opposite effect yields a negative result. Food and sex are rewarded with pleasure, physical damage with pain, for example. Drugs typically short-circuit these systems and produce the reward without its usual causes. Indeed they can reward behaviour which puts survival in peril. This alone appears to generate moral concern (Waal, 1999).
However, philosophers will always be suspicious of arguments based on what is physically natural or normal, and this argument should not escape our suspicion. The fact that a natural system is not fulfilling its natural purpose should not in itself worry us: if it did then contraception would also be wrong. If drug use had no adverse effects on well-being then this ‘biological’ argument would be of no moral interest. Hence it is not the biological mechanisms but the effects of drug use, and especially addiction, that are worrying here: that there can be adverse health effects, and, less controversially, effects in sucking out people’s interests in other aspects of their life. That is to say, habitual drug use can diminish human flourishing, including neglect of other interests, family, social networks, and so on. The question, then, is what, morally and from the point of view of regulation, follows from the fact that drug use can have such effects for the user.

vi) Husak’s “Justice” Argument
Douglas Husak, in a relentless series of writings, has argued that ‘the sheer scale of incarceration of drug users makes prohibition the worst injustice perpetrated by our system of criminal law in the twentieth century. Only the institution of slavery and the despicable treatment of Native Americans are greater injustices in the history of the United States’ (Husak 2002, 2). Husak believes that claims of third party harms caused by drug use (as distinct from the existence of a huge, lucrative, drug black market) have been hugely exaggerated and do not justify current policy. Rather, he argues, that current US regulations violate individual rights.
Husak wants to distance himself from a libertarian view of self-ownership, in which people have a right to do whatever they want to their own bodies. Rather, he says, ‘If many of the things people believe about drugs were true, our policies would probably be justified. We would be silly to allow anyone to use a drug that does to a brain what a fry pan does to an egg’ (Husak, 2002, 10).7 Whether or not the word ‘silly’ is well-chosen, we can see that Husak does concede that avoiding extreme self-harm is a legitimate goal on which governments can legislate.
There is, therefore, an empirical element that enters into the discussion, and various claims have been made about the harms to an individual that drug use can do. (See appendix) It is surprisingly hard to get clear evidence of the harms drug use does: those who present at emergency rooms or addiction clinics, or find themselves in jail, can be studied, but this is only a very small proportion of users, and, for obvious reasons it is difficult to get a properly representative sample of all drugs users.8 Husak’s main argument is that it is very hard to see the justification for punishing people for engaging in actions that harm only themselves (unless, he appears to concede, that self-harm is in some way overwhelming).
To support Husak’s position, we can observe that, even if it is true that governments can legitimately engage in paternalistic behaviour, there are many strategies available that fall short of punishment, and these are commonly used for alcohol and tobacco (and analogous strategies are used for gambling):
a) Issuing of health warnings.

b) Imposition of taxes to reduce demand.

c) Regulation of the quality of the good, prohibiting the sale of the most dangerous forms.

d) Prohibition of production and sale.

e) Prohibition of possession and use, but without penalty.

f) Penalised possession and use, through fines or imprisonment.

Outside drug legislation, it is now rare for an activity to be penalized through a prison sentence if the point of its regulation is to protect people from self-harm. Although it was once possible to be imprisoned for suicide, this law has been repealed, and its undesirability seems evident. Seat-belt offences, while driving, are punishable by fine only (DFT 2004). Husak is surely right that the philosophical case for providing severe punishments for people who engage in activities which might harm only themselves remains obscure. (Husak 2005) Of course, in harming oneself this may incidentally have effects for others, such as the cost of scarce resources used to help, and for this reason it is sometimes said that the idea that some activities cause only self-harm is a myth. At the least, someone else has to clear up afterwards. However, stopping people acting in particular ways has costs too: law enforcement is expensive. We are stuck either way. But leaving aside such indirect effects the practice of punishing people who engage in self-harm appears to be the rather perverse one of harming people in one way for attempting to harm themselves in a different way.
De Marnefffe makes the response to Husak that for some drugs at least, notably heroin, the risks to a flourishing life for children who take the drug (or whose parents are addicts) are so severe that this provides a reason for entirely prohibiting their production, sale and use (de Marneffe, 2005). Nevertheless, this still falls short of an argument for punishing adult users, as distinct from suppliers and dealers, and de Marneffe, despite writing as a critic of Husak’s argument, appears to concede much ground to him, and does not attempt to justify punishing drug users (de Marneffe 2005, p. 129).
De Marneffe restricts his discussion to heroin; Sher argues that three arguments can properly be used to justify prohibition of a wider range of drugs: third party harm; paternalism (especially health risks to the user) and perfectionism (essentially risks to a flourishing life.) For Sher, the case for prohibition turns on the empirical facts, but he does not attempt to defend the practice of punishment. (Sher 2003).
Nevertheless, it is not impossible to find arguments to justify punishing people for harming themselves; for example using the idea of deterrence. If the form of self-harm is extremely severe, and it is thought essential to stop people from engaging in the activity, and only threatening imprisonment would be effective as a deterrent, then it may seem that under certain circumstances a prison sentence would be acceptable. However, as Husak would point out, each of the premises of this argument are highly uncertain.
A different argument for punishment – or perhaps a different formulation of the same argument - follows a classic argument for the criminal law in general: that as individuals we are poor at following our long term interests when short term gratification gets in the way. If it is in no ones long-term interest to take drugs, especially those drugs with a heavy risk of generating addiction, then punishment could be needed, and justified, to align short-term and long-term interests. In sum, we need to remember Ulysses and the sirens. Drugs are special because of their addiction potential, especially when combined with the myopia of human long-term reasoning (Waal 1999, 143).
There are then, possible arguments for punishing people when they only threaten harm to themselves. The question is whether these arguments apply in the case of drugs.

5. Methodological Problems: The Problem of Perspective
Many political philosophers are inspired by the opening words of Rousseau’s The Social Contract,

I MEAN to inquire if, in the civil order, there can be any sure and legitimate rule of administration, men being taken as they are and laws as they might be (Rousseau, 1974).

Lawyers, and philosophers of law, we might think, have to live by another dictum: not only do men have to be taken as they are, but so do the laws. That is to say, it is one thing to set up laws for an ideal society of the imagination, but the task in hand is to deal with the world we have. Inevitably, then, for policy reasons what needs to be discussed is not ideal law and regulation, but change to existing law.
The relevance of this issue is that Husak opens his discussions of drugs policy with an attempt to convince the reader that the right question to ask is not whether we should advocate changes to the law, but whether there is a justification for criminalizing drug use. Is there a philosophical argument which can demonstrate that it can be right to punish people for engaging in actions which only harm themselves? (Husak 1989, 1994, 2002, 2005) Put like this, it is a severe challenge, and although I have sketched out a couple of possible arguments to justify punishing people for harming themselves they rest on uncertain empirical premises, and which may, in many cases, be false.
Husak wants to frame the argument in the terms he does so that he does not have to justify de-criminalization. After all, the effects of decriminalization are very hard to predict, and no one can say with confidence that the world would be a better place. To argue about decriminalization, he suggests, gives the status quo an unwarranted advantage in the argument. So instead, he attempts to argue from considerations of justice, rather than from the beneficial consequences of a change.
There are, however, some difficulties. Given that he does not adopt the libertarian position that people can do anything they wish to themselves – and to adopt that position would be to leave one with no credibility in these debates – then much of his argument does after all turn on empirical facts concerning the damage drug use does. In these debates philosophers are not especially well-placed to make a telling contribution. Hence although Husak’s work is not ignored by those engaged in policy debates, he is regarded as a rather marginal figure presenting a startling thesis based on a misapprehension of the facts, rather than someone who has been able to turn the discussion round to his own terms. (Waal, 1999) Hence his strategy rather backfires. By refusing to grant the status quo a privileged position in the debate, he disqualifies himself from that debate.
To see the importance of what we can call ‘the problem of perspective’, let us return to the vexed question of the different treatment of alcohol and drugs. In recent studies, alcohol is considered more harmful than almost all drugs except heroin and cocaine (and their derivatives). How, then, can one justify differential treatment for alcohol on the one hand, and ecstasy and cannabis on the other? From the standpoint of philosophical theory, this is a real puzzle, and there seems no answer. Alcohol and drugs that cause similar harms should obviously be treated the same way. But from the standpoint of public policy this argument cuts no ice: ‘The serious problems created by alcohol and tobacco are in fact arguments against legalizing more drugs’ (Waal 1999, 159, see also Sher 2003). That is to say, the argument is that we are already permitting people to do enough – too many – bad things to themselves, and so society has to draw the line somewhere. Perhaps one might concede that if we were starting again, knowing what we know now, the line would be drawn in another place. But we are not starting again, and we are where we are.
What place, then, is there for philosophical reasoning in such policy debates, given that arguments like Husak’s appear to be shut out? It would be absurd to argue that there is no place for speculation about ideals – of course this is necessary, otherwise there would be nothing to inspire or direct change. However, speculation about ideals is the start not the finish, and if philosophers want to have an influence on the direction policy takes, then there is no alternative to accepting that the status quo does have a privileged position in the debate. One good reason for this, of course, is that people will have formed expectations based on current laws, and therefore change needs justification and issues of transition need to be addressed. But beyond that it has to be recognised that it is very rare for a policy to have been introduced for clear and principled reasons. Compromise, context and pragmatism are always in the background, and given that the introduction of policies is rarely based on pure principles, it is naïve to think that principled reasoning alone will bring about change. This is not to say that there is no room for debate about principles. Indeed such debate does take place; whether, for example, we should aim for a drug-free society, or at something else, as discussed in Section 2, for example. There is room for discussion at the level of details: pointing out small-scale anomalies, inconsistencies and distinctions between cases. There is room for recommendations of changes of policy in line with other social developments. But to have any effect on policy philosophers will have to swallow hard and accept that the discussion will often have to take place within the terms and space set by non-philosophers.
It is, however, all very well to lay out such bland homilies, but how, in concrete terms, could such a contribution be made? Let us return to the idea that the overall social goal should be one of harm reduction, and accept that the regime of allowing alcohol already creates a great deal of harm. If it is also accepted that some drugs – notably ecstasy and cannabis – do less harm than alcohol, then an obvious conclusion follows: the legalisation of these drugs could reduce, rather than increase, overall harm in society, by encouraging people to replace harmful forms of behaviour with less harmful forms. This, of course, is an empirical claim, but if teenagers drank less and took more soft drugs on a Friday and Saturday night it is likely there would be fewer acts of violence, and fewer people ending up in emergency rooms. Of course, empirical work is needed to see if legal availability of drugs would reduce alcohol consumption (it has been argued, conversely that cannabis consumption is associated with increased alcohol consumption (Hall and Pacula, 2003)), and also the hypothesis that these drugs are ‘gateways’ to harder drugs needs careful examination. However, the merit of philosophical reasoning in this area is that it forces a clarification of the arguments, and allows the raising of what might otherwise be ‘taboo proposals’. If the empirical claims are accepted, yet the proposal to liberalise is not, then it becomes apparent that ‘harm reduction’ was not the policy goal after all, and a clarification of the policy becomes necessary. Policy makers can be forced into further thought and reflection. When philosophers can make their contributions within the existing terms of the debate, rather than from the perspective of ideals, there is some chance that others with more influence will pay attention.9

What is known about harm?

1. There is great controversy about the harms caused by the regular use of drugs. Many harms, for example, are claimed to be a consequence of the illegal status of drugs, such as the fact that they are sometimes mixed with other toxic substances, or provided in irregular strengths, leading to difficulties in controlling the dose, or injected using dirty needles, leading to secondary infections. Leaving these risks to one side, the claims made generally fall into the following categories:

a) Physical health risk from intended dose, including risks of brain damage, organ damage, and death.

b) Indirect health risks, caused by poor nutrition, hygiene and life style, owing to drug use.
c) Overdose, especially where repeated use requires ever increasing doses and the fatal dose is close to the dose which gives the greatest ‘high’ This is especially true for heroin and other opiates.
d) Mental health risks have been claimed for several drugs; most notably cannabis and LSD.
e) Permanent diminished cognitive functioning.
f) Habitual use of some drugs can lead to what can be called a reduction in individual flourishing. Many philosophers are attracted to a pluralist view of well-being in which a flourishing life consists in the enjoyment of many ‘functionings’ of which health is only one component. Others include such things as ‘control over the environment’, ‘autonomy’, ‘affiliation’, ‘sense, imagination and thought’ and ‘play’ (Nussbaum 2000). Where drug use lead individuals to lose interest in other things in their lives, then on this account it leads to diminished flourishing, even if there is no harm to health.
g) Many drugs, especially opiates and cannabis, can lead to forms of addiction or dependency. Whether addiction is a health problem in itself, or rather a likely cause of other problems, is a mature of dispute.
h) The consequences of addiction may include the reduction of flourishing noted above, one important aspect of that being a lack of autonomy as the addict becomes a slave to his or her addiction, which may also lead the addict to take further risks such as engaging in crime or prostitution.
i) Addition can have other more physical effects. Drugs that are delivered by injection have particular further risks to health, and in particular to infections and viral disease. Drugs delivered through smoking often have cancer risks. Furthermore for some drugs addicts develop a resistance and need ever-increasing doses, which leads to increased risk of overdose.
3.2.3 Many drugs create special risks for children and adolescents:
a) It is possible that some drugs will have particularly adverse effects on the developing brain.
b) Drug use may lead to a lack of interest in other things in one’s life. For school children this can lead to chronic under-performance at school, from which it may be particularly difficult to recover.
c) Drug use may lead to an initiation into a range of deviant behaviours including crime and truancy.
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1 Newspaper reporting is a serious problem, and even highly responsible journalism can be marred by sensationalist sub-editing. A very good story in the Times Online, which pointed out the inconclusiveness of research and lack of evidence that ecstasy causes brain damage – the problem is partly that few people take ecstasy but not other drugs and so determining causation is problematic– was given the sub-heading “As the first wave of Ecstasy users reach their forties, research suggests that the drug can cause long-term brain damage”. The story itself does not cite any research that suggests this (Steele, 2006).

2 For an excellent balanced account of what is known about cannabis see Hall and Pacula 2003. In terms of the relation between cannabis and psychosis, it is known that there is an association, yet the causal relation remains contested. It is, however, widely agreed that cannabis can trigger psychotic episodes in certain individuals who already have a pre-disposition to psychosis. See Hall and Pacula 2003, 67-100, Hall, 2006, Hickman et al, forthcoming, Ferguson et al 2006.

3 After drafting this section I found that the pollution analogy also appears in Waal’s paper where he recommends ‘The rhetoric of war should be replaced by the everyday language of civil society. Our strategies must be found among those suited to limit societal evils in general, very much in the line with efforts to reduce pollution (Waal 1999, 138).

4 Cannabis is by far the most commonly used drug, for all age groups.

5 For development of this line of argument see Wolff (2006a) and Wolff (2006b). Some attempts to work out a non-consequentialist response to this type of problem include Nozick (1974)and Munoz-Darde (forthcoming)

6 Note, though, that Mill’s own attitude to alcohol was rather more nuanced: he felt that society could legitimately prohibit people from using alcohol if they had shown themselves to be violent when under the influence, or when they are discharging special responsibilities.

7 This somewhat surprising analogy comes from a US anti-drug campaign.

8 Also, of course, to understand causation ‘cohort studies’ are needed, but heavy drug users have a very high drop-out rate from cohort studies.

9 A version of this paper was presented to the Colloquium in Legal and Political Philosophy at University College London, in 2007. I am particular grateful to Ronald Dworkin, Riz Mokal and George Letsas for their comments, and to Dirk Haubrich for written comments.

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