Closing Argument on the Drug Issue

It is generally assumed that the onus of justification is on those who would prohibit an item of consumption or a manner of behaving. They must demonstrate that what they would prohibit is actually harmful in some concrete way to others, and not just to the consumers of the item or those who behave in that manner. They, the prohibitionists, must also demonstrate that the prohibition actually achieves its end in practice, or at the very least does not make matters worse.

This assumption, however, bespeaks a certain view of political and social life: that it is a kind of Euclidean geometry, from which policies are to be determined by syllogism from an indubitable and invariable principle or set of principles. Consider, if you will, cases in which society’s disapproval has little if anything to do with harm to others. Would we permit necrophilia on the condition that the necrophiliacs chose their “partners” among corpses with no grieving relatives to offend? Would we permit incestuous sexual relations and even incestuous marriage, provided that proper contraception were used or any offspring tested prenatally for genetic defect? I am not sure we would.

But let’s set these aside and suppose, for the sake of argument, that the free production, commercialization and consumption of cannabis proves in practice to do no harm, or at least much less harm than other products, such as cigarettes, that are permitted. What then? What would that tell us about policy towards drugs in general?

Not very much, I am afraid, for what is true of cannabis might not be true of other drugs. In other words, wise policy for cannabis might not be wise policy for ketamine, LSD, cocaine, or dexamphetamine. It is surely difficult to envisage (except for those who value consistency above prudence as a political virtue) a situation in which one could buy any or all of these drugs as if they were bread or chocolate.

To this, of course, the response might be that what is envisaged is a controlled market, as the sale of alcohol is controlled in the province of Ontario, or indeed is subject to restrictions to one degree or another throughout the Western world. There is, after all, something between a completely free market and total prohibition.

Such a controlled market would entail the abandonment of the abstract libertarian principle that everyone should be free to do anything he liked so long as he did no (direct) harm to others. It would mean conceding that the state had a legitimate interest in what its citizens did. But it seems to me almost as impossible to envisage the state actually supervising, and therefore inspecting, the sale of all—or indeed any—of the above-mentioned drugs to its citizens, as to imagine a totally free market in them.

Supervision would entail, among other absurdities, a bureaucratic nightmare, an apparatus that would, inter alia, have to determine prices, not so low as to encourage consumption but not so high as to encourage the development of a black market, whose elimination was one of the main purposes of erecting the scheme of control in the first place. The authorities would also have to set up an inspectorate to determine the quality and purity of each drug, putting upon each drug the state’s implied seal of approval, so that consumers would know what they were getting. Moreover, consumption of at least some of these drugs would bring serious medical consequences, and alleviating these would also be the responsibility of the state (which is to say the taxpayers).

Attempts at outright prohibition have failed, or so it is repeatedly claimed. This is not altogether true, historically. In Sweden, for example, there was in the early 1960s an epidemic of addiction to amphetamines. The authorities reacted at first in good liberal fashion; they saw it as a medical rather than a police problem. Swedish doctors were encouraged to prescribe amphetamines for addicts; the problem could not be solved until the “root cause” (the desire to take amphetamines because of an unsatisfactory existence) was tackled. Alarmed by the continued growth of the problem, however, the Swedish authorities decided to change tack, from comprehension—and, in effect, complicity—to repression. It soon worked. The epidemic was over.

What would have happened if the Swedes had continued their original policy? It is impossible to say for certain; counterfactuals are inherently speculative. But it seems to me most likely that the epidemic would have spread further. (Not that it ever would have encompassed more than a minority of the population. Even when alcohol is free of charge, not everyone becomes an alcoholic. Indeed the majority of people do not—but almost everyone drinks more than he would otherwise have done.) In all likelihood, also, the epidemic would at some point have waned spontaneously, because there are fashions in drugs as there used to be in hemlines. Those who would once have taken amphetamines would have taken something else, better or worse as the case might be.

But Sweden has remained the most repressive with regard to drugs of any in Western Europe. Perhaps not coincidentally, it has the lowest rates of drug usage. It also has one of the highest crime rates, a fact that is susceptible to many interpretations, most probably that the crime rate is not dependent, either positively or negatively, on drug policy.

Outside of the case of Sweden, the prohibitory laws of other countries don’t have much effect, it is often said, for drugs continue to be taken by quite large absolute numbers of people. The numbers and proportions change: In Britain, for example, the number of injecting heroin addicts increased between the mid-1950s and the 2000s by something like 60,000 per cent, notwithstanding prohibitory laws (feebly enforced). But the number is now declining. The question is not whether people break prohibitions, but whether such prohibitions actually cause some or many people not to do what is prohibited.

Practically no prohibitory law ever eradicates what it is supposed to prohibit. There have been laws against theft and murder for millennia, and yet theft and murder continue—but not unabated. I doubt whether there is a driver in the world who has never knowingly broken a speed limit; but I doubt also that there are many drivers who would not have driven faster were it not for speed limits. Speeding drivers are not therefore evidence that speed limits have failed.

People do not drink and drive as much as they once did—not because they have suddenly had a crisis of conscience, but because the police now enforce a law against doing so, even as this enforcement fails to eradicate the behavior altogether. If anything, conscience followed the law and, thanks to police enforcement, more drivers realized that what they were doing before was wrong. When the police in France enforced the law against drunken driving, which had previously been regarded as something of a joke, the fatal road accident rate declined by 50 per cent. The relationship was probably causative. Just because, according to French police statistics, 30 per cent of fatalities on the road are still caused by drunk drivers (and 3 per cent by those intoxicated with cannabis), one would not call the enforcement of the law a failure.

In the case of drugs that are currently illicit, we do not know what would happen if the laws were changed because, fundamentally, they have not been changed anywhere. Even the experience of cannabis liberalization will not tell us what would happen if the laws relating to LSD, say, or cocaine were similarly liberalized. We do not have anything to compare current levels of consumption with; remote antiquity is no guide and, thanks to the accelerating process of history and social change, 50 years ago now counts as remote antiquity.

There is a further, non-tangible, aspect to the question: namely, the social meaning of liberalization. What does it mean to tell everyone that freedom in effect entails the utmost private self-indulgence? Legal curtailment of self-indulgence is potentially dangerous, of course, for it can be made the battle cry of any would-be dictator or religious bigot. Consider, though, what Aldous Huxley wrote in the preface to the second edition of Brave New World. Huxley said that a clever totalitarian government would leave its citizenry complete freedom to take drugs and indulge in any sexual practices it wanted, for then nothing else would matter to it, certainly not any more important freedom. We will be able to take drugs but not to hold or express certain opinions.

It would be an exaggeration to say that we are anywhere near Huxley’s vision, and yet there is some slight movement towards it. I cannot help but recall Burke’s words in his Letter to a Member of the National Assembly of 1791:

Men are qualified for civil liberty in exact proportion to their disposition to put moral chains upon their own appetites… — in proportion as they are more disposed to listen to the counsels of the wise and good, in preference to the flattery of knaves. Society cannot exist, unless a controlling power upon will and appetite be placed somewhere; and the less of it there is within, the more there must be without. It is ordained in the eternal constitution of things, that men of intemperate minds cannot be free. Their passions forge their fetters.

Insofar as liberalization would encourage people to unchain their appetites, it would help to forge their fetters. Quite apart from prudential considerations, then, such liberalization may be just what we don’t need in our present circumstances.

Earlier three posts can be found here: http://www.libertylawsite.org/author/theodore-dalrymple/

Reader Discussion

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on August 04, 2015 at 10:39:00 am

Buying those drugs like bread or chocolate, no. But most drugs like alcohol and tobacco, sure. Maybe some really extreme drugs (like LSD or cocaine) might need additional safety precautions. Even Ketamine and Dextroamphetamine don’t reach that level and shouldn’t be much more then alcohol and tobacco.

No it does not “entail the abandonment of the abstract libertarian principle that everyone should be free to do anything he liked so long as he did no (direct) harm to others.” First, the protection of minors from consumption is perfectly fine for libertarians. Secondly, safety restrictions to prevent harm to third parties is also fine. Both of these are a “controlled market” but do not violate any principle of libertarianism.

Why should prices be determined by government? Let the price float to whatever the market will bear. Low prices are fine, let people choose how they wish to live their life. No pre-sale inspection is needed. In a real market, the reputation of the buyer is used to guarantee purity long term without government involvement at all. Short term if a seller says that it is so pure, and the buyer tests it and finds that it is not then the buyer can sue them for fraud. Or if they cause someone to be harmed by labeling it with the incorrect purity then they can pay the costs for the harm (up to and including wrongful death). This is post-hoc verification and control, but it solves the problem without any kind of massive set of inspectors.

As to if the consumption causes “serious medical consequences” then requiring the individual to waive their right to receive some publicly funded medical care if they wish to consume. That or require that they have medical coverage that can pay for it.

Sweden in the 1960s is really your example? In 1958 the punishment was 6 months in prison, in 1962 it was 2 years. This is what you describe as a legal functioning market? While it is true some doctors in a pilot program were allowed to prescribe these drugs the idea being that they would be less likely to commit crimes. There is no evidence that the people in the program were still committing crimes at the same rate, but the drugs naturally (as in all black markets) were sold to people outside the program where it was still illegal. Prescribing drugs to get people off drugs doesn’t make any sense. There are other programs that get people off drugs, but those programs work best when it is done in a legal setting where people can openly admit their addition and their friends can refer people and get help for them openly. And you say it worked, that the problem was over. I don’t think so. I reject that the policies of Sweden are working better then Portugal (http://www.tdpf.org.uk/blog/drug-policy-sweden-repressive-approach-increases-harm), or that there is not any problems in Sweden(http://www.emcdda.europa.eu/attachements.cfm/att_239764_EN_2014%20National%20Report%20-%20Sweden.pdf).

The questions for drug policy isn’t if you can reduce drug use as a primary effect. Its if the secondary effects prevent other ways of reducing drug use. And if the prohibition itself is causing more harm then it prevents.

To say you don’t know what would happen does not prove what would happen. I live in the United States, so I would suggest repealing national drug prohibition and allow states to choose what drug laws they wish. That way states can experiment with different drug laws and we can see how they turn out. Right now we have Washington and Colorado have legalized cannabis, we will see the result before long.

I do not suggest that people consume some of these drugs (although some that are potentially life saving and being prevented from consuming seems silly to me). But legalization doesn’t mean that you should consume them. It just gets the sales out of the dark allies and into a controlled market that can prevent harm to the users and the rest of society.

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Devin Watkins
on August 04, 2015 at 20:18:27 pm

[…] and Realities of Drug Addiction, Consumption, and Crime,” op. cit., July 31, 2015; and “Closing Argument on the Drug Issue,” op. cit., August 4, […]

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Not-So-Random Thoughts (XVI) | POLITICS & PROSPERITY
on August 04, 2015 at 23:47:08 pm

As a native American (born in NYC), I was particularly puzzled how one of the great colonies and later US states, home of the authors of the Declaration, the Constitution, the Bill of Rights, and various other foundation stones of freedom and free enterprise, could presume to socialize a government monopoly for the sale of packaged alcoholic beverages. Virginia does not apparently trust the authorities of Scotland, Jamaica, France, Canada, Kentucky, and other government approved certifiers of quality and quantity to protect the alcohol consumers in its silly Commonwealth from counterfeit, adulterated, watered-down, or bootlegged Scotch, Rum, Cognac, Champagne, Vermouth, Canadian Whisky, Bourbon, Southern Comfort, Tequila, Courvoisier, Jameson Irish, or Mount Gay.

In fact, the thoughtful control freaks of Virginia won't let anyone but their own state owned enterprise purvey packaged liquors to the consumer or make a profit from the business. They run hundreds of "package stores" staffed by state employees, in state owned buildings on state owned or leased tax-free real estate, where they pay no income tax, license tax, employer payroll tax, need not carry insurance, account for their receipts, sales tax collections, or inventory taxes. They have every advantage that no private employer or merchant can get and they have a monopoly enforced by arrest, prosecution and imprisonment. This is America?

New York State perceived a problem with gambling, with bookies, and the numbers racket afflicting poor and uneducated people. Their solution was to establish Socialized Bookmaking, where anyone above a certain age is free under the law to wager against the State. Off-Track-Betting and then the State Lottery were brought in with all those comparative business advantages of Virginia's liquor stores, plus a massive advertising budget to lure idiots on subways, busses, billboards, radio and television to risk hard-earned cash on a fool's game designed by Madison Avenue doctors of psychology to create the maximum addictive effect on its victims.

Now every state is doing it. When the decriminalize prostitution, you can be assured that the State will make all the hookers abandon their independent contractor status and become State Employees licensed, inspected, inured, and paid through the state's VISA and MasterCard processing system after a nominal fee is extracted. The State will be the Pimp.

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terry seale
on August 05, 2015 at 20:29:13 pm

Ah, Theo, you do love that reference to Euclidian geometry, don't you? Trance induction much? And then once again, a collection of straw man games... necrophilia? Really? You're going to make a comparison there?

For those who don't know, a trance induction can take the form of creating a confusion and stepping into the void. This is what he appears to be doing, ... ah, and psychiatrist he is. Presumably, with training in such techniques.

And then, your "controlled market" stuff. Who says? But you assume it and roll with it. More trance induction?

Not too brilliant on research, either. Sweden? What else was going on? What else changed? You assume a causal connection between increasingly draconian enforcements and behavior change. But there was also a lot else going on in Swedish--and world--society at the same time. Did you control, somehow, for confounding factors? No, I'm sure not. Would be pretty hard to do in any meaningful way. Seeing the attempt to pony up what amounts to unreliable research and attempting use it--and techniques that would make Bernays blush--to persuade is why I laugh at the alleged intellectual superiority of the degreed.

Same thing goes for the incidence of drunk driving. Huge media campaigns DO make a difference, and so do various social pressures. Sometimes, people just change. Hark. Draconian enforcements assuredly too, but one has to wonder how much, really, since a lack of arrests doesn't mean a lack of incidence.

I remain frankly aghast that Liberty Law has published this blithering series. Unintellectual albeit full of intellectual pretense--and smug. There is room for a discussion of why, perhaps, drug legalization is not the best proposal. This was not useful. Such a discussion should occur without the use of argumentative fallacies and gimmicks and incompetent assessment of cause and effect. Yes, nothing is perfect. But this series is well beneath Liberty Law.

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on August 20, 2015 at 02:15:09 am

"Huxley said that a clever totalitarian government would leave its citizenry complete freedom to take drugs and indulge in any sexual practices it wanted, for then nothing else would matter to it."

Most people spend too much of their lives with 'suspicious minds', caught in a trap, unwilling to hold themselves to account, unable to hold officials to account. I mean, occupy Wall street? What a joke! Charity, but especially responsibility, should start at home.

As for Euclidian geometry, I recommend The Master And His Emissary by Iain McGilchrist. Funnily enough I suspect Dalrymple wouldn't have much time for the basic thesis... it doesn't even mention Euclid, as I recall but I think it's well worth a read.

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