Keith Whittington on how to recover the American university as a place of free inquiry and intellectual rigor.
I am obliged to Patrick Lynch for his thoughtful reply to my four posts concerning drug policy.
Mill’s “very simple principle” is important for two reasons. First: This harm principle is, at least in my experience, adduced quite often in some form or other by those who argue that drugs should be produced, sold, and consumed like any other commodity. In trying to reach this conclusion, advocates are right to quote it because of the second reason: Once the principle is breached, it has been admitted that public authorities, however they are constituted, may legitimately interfere in the matter. This having been conceded, it becomes a question of the best policy to follow, and not one of applying a simple, fundamental, and universal principle to the problem.
The best policy does not, of course, make itself immediately evident and is the object of fallible judgment. To be sure, we ought to favor the least restrictive policy advisable; but the weight that we attach to liberty in any question depends to an extent on the liberty that is claimed. Freedom of opinion and expression are obviously more important than the freedom to take arsenic (the first drug, incidentally, whose abuse was controlled, at least in Britain).
I am sorry if Dr. Lynch finds me philosophically shallow, but I am also sorry to say that I do not find that the Ludwig von Mises quotation he brought to the discussion adds much philosophical depth. He quoted Mises as follows:
. . . in so far as each individual acts as a member of society, he is obliged to adapt himself to the will of his fellows. In this way no one depends more upon others than others depend on him.
Not only does the second sentence not in the least follow from the first, but the second sentence points to a state of being that never has and never could come into existence. In almost every human transaction there is an inequality of dependence; power may be controlled, but it can never be equalized, and those who seek to equalize it not only commit themselves to a Sisyphean labor, but are destined to cause a great deal of misery to themselves and others, in a way similar to that caused by economic egalitarians.
Failing to find the simple principle that governs human existence is hardly blameworthy, for “gray is theory, but green is the tree of life.”
I agree with Dr. Lynch on a number of points, however, among them that circumstances may alter cases and what may be right for one country, or one part of one country, may not be right for another. Indeed, what might be right, or at least alright, for one social class or individual may not be right or at least alright for another. Law is inevitably a blunt instrument or a net with a coarse mesh.
Britain is a good example of the need for caution in applying one country’s experience to another. The British government believed, or affected to believe, that the harmful effects of alcohol were worsened by the relatively restrictive licensing laws then in force, and that if these laws were brought into line with those of Mediterranean countries, the British would abandon their unattractive drinking habits and adopt those of the Mediterraneans. This did not happen. The relaxation of licensing laws exacerbated the tendency to public drunkenness, such that the centers of British towns and cities became virtual no-go areas for people who did not want to join in scenes of mass drunkenness.
The relaxation undoubtedly increased the freedom of some, but it also restricted the effective liberty of others. Moreover, it created economic interests so strong as to make reversal of the relaxation very difficult. It increased pressure on emergency departments of hospitals, the great majority of whose night work now involves dealing with the consequences of excessive drinking. It is true that the laws against public drunkenness have remained in force, in the sense that they have not been repealed, but there is no will to enforce them and the problem is of such a scale that stricter enforcement would now be difficult, expensive, and experienced as oppressive.
Dr. Lynch raises the specter of paternalism—of authorities’ claiming to know people’s interests better than they do. It is obvious that such paternalism can easily slide into tyranny, and we can all probably give many examples of either absurd or oppressive or dictatorial regulation. The modern administrative state tends toward bullying; it seems increasingly that a government of the people is becoming a people of the government.
Nevertheless, a society without any paternalism whatever would probably be intolerable. Given the unavoidable complexity of modern existence, we all need sometimes to be paternalized, if a neologism may be allowed. When I go to my doctor, lawyer, or accountant, for example, I want him to tell me what he thinks is best for me. I trust him to do so, and so far, at least, I have been fortunate in the results. In part—but only in part—my trust depends on official certification of his knowledge and competence. In that certification I have no say whatsoever.
It is true, of course, that I am not obliged to take the advice. Nevertheless, the point is that I assume that others may know better than I what is in my interests. And in practice, authorities likewise know many things in my interest better than I know them myself, and give me no choice in their pursuit. With this situation I am perfectly content. It would be a nightmare, at least in present circumstances, to have to decide everything for oneself—the permissible level of particulate matter or sulphur dioxide in the air, say, or the air-traffic regulations, all of which may have to change in the light of experience and new conditions. There are times when someone else must decide for us.
Thus to say of a policy that it is paternalistic is no criticism of it at all. What needs to be shown is that it is unnecessarily or wrongfully or harmfully or intolerably paternalistic. Again, I doubt whether any simple principle can be found that tells us when any of these epithets applies.
None of this means that current policy is right; it is just that it cannot be shown by purely philosophical means to be wrong. And my four posts (I, II, III, IV) were only intended to demonstrate that extreme libertarian claims with regard to drugs such as I have heard frequently expressed—No one has the right to tell me what I put in my body and Most of the harm of drugs is caused by their illegality—are untenable. But that, like so many other things, is a matter of judgment.