Minogue’s book was prescient but not in all respects, as a preface written by him nearly 40 years later admits.
There are two main arguments, one philosophical and the other practical, for the legalization of drugs whose consumption is currently prohibited. I will take up the former here, and the latter in a separate post.
The philosophical case for drug legalization derives from the famous passage from John Stuart Mill’s On Liberty (1859) that is probably (in the modern world) the most influential in all political philosophy. Mill said, to paraphrase, that the individual is sovereign over himself, therefore no one and no authority has the right to tell him what to do in those matters that concern only, or even mainly, himself.
I can do as I please, and take what I like, so long as I harm no others.
One can easily sympathize with this attempt to delimit the relations between the individual and the state or other powerful authorities. Every government today is in practice vastly more oppressive than that of George III in the American colonies. Which of us does not feel an increasing weight on him of regulation, prohibition, and compulsion from on high—most of it nowadays supposedly for our own good—to help us lead a better or a longer life whether we want it or not? How are we to hold back the flood of official intrusion into our lives without a principle to distinguish legitimate from illegitimate intrusion?
This assumes that politics is, and cannot be otherwise than, the application to any given situation of basic indisputable axioms, as if it were a species of Euclidean geometry. I have seen the same impulse—what one might call the desire for philosophical neatness—in medical ethics. Thus the principle of patient autonomy forces the patient to choose between alternatives when all he wants is to be told by authority what to do, which after all is why he has come to the doctor in the first place. Not everyone sees, or wants to see, the whole of life as a vastly extended supermarket in which everything, from the most serious to the most trivial, is compulsorily a matter of personal choice. Choice is important but not all-important, as anyone will attest who has ever gone without some unimportant part of it.
There are times when lack of choice can even come as a relief. To insist that a person choose when he does not want to do so (because choice is painful for him) is a kind of sadism.
Moreover, the mere desire for a simple principle (and Mill prided himself that his principle was simple, even very simple) that can act as an ethical litmus paper to distinguish between the permitted and the impermissible does not mean there actually is one. Our wish that something might exist does not bring it into existence. It may be that the world is irredeemably messy, not only physically but ethically.
The objections to the Millian premise of the call to drug legalization are well-known. Man is a social as well as a political animal, and except for the very few who live in genuine isolation, almost all that we do affects someone else. Of course, the degree to which one’s actions affect others varies; but the fact that the degree is a continuum rather than categorical means the authority to interfere, prohibit, or control is a matter of judgment. That authority cannot be exercised or not according to a simple principle. The fact that we sometimes think it right, and sometimes not, to interfere in a man’s actions does not mean that we have, or must have, a clear abstract line of demarcation in our minds.
We may, indeed we ought to, have a bias or presumption in favor of individual liberty, and we should also have a lively appreciation of the fact that interference with liberty to prevent harm to others may actually cause more harm than it prevents. Moreover, because liberty is a good in itself, loss of liberty is a harm in itself, always to be taken into account.
None of this means that there is a very clear principle that can lay down in advance the limits of liberty, such as Mill wants (and the would-be legalizers of drugs rely upon).
Not even the most libertarian of the libertarians thinks there should be absolutely no limits to the consumption of mind-altering substances. For example, we do not think children of four should take cocaine even if they want to. Parents who allowed them to indulge their desire would be rightly deprived of their parental control. (Let no one imagine, however, that there is anything so foolish that no one would do it; I have known parents who, believing that carrots were health-giving, fed their children exclusively on carrot juice.) The age at which an individual becomes able to decide for himself is precise in law but (to an extent) arbitrary in justification. There is no precise moment at which a child becomes an adult in fact. In England, you can join the army and have consensual sex at 16, drive a car and drink in a pub at 17, vote, buy cigarettes, and marry without parental consent at 18.
Trying to make the law conform to “natural” boundaries without any arbitrariness whatsoever is what Mill and the legalizers—sounds like a bad 1960s band, John Stuart Mill and the Legalizers—try to do. But nature is not organized for the law’s convenience.
We accept that in many circumstances, perhaps for the majority of most people’s lives in the modern world, people have no right to intoxicate themselves in any way they want. We cannot drive while drunk, and most would say that this prohibition was reasonable even if the great majority of drunk drivers reach their destination without having harmed anyone else. We do not wait for them actually to crash and kill before counting them guilty.
And what applies to driving applies to many other situations. An employee could not say he was wrongfully dismissed merely because there was no law against him being drunk at his place of work. Mothers who are incapably drunk in the charge of their children may have their children removed from their care. We do not expect our teachers, doctors, pilots, judges, or myriad others to be drunk, or even merely hung over, while they work, or intoxicated by some drug other than alcohol. We do not wait for a drunken surgeon to botch an operation before prohibiting him from operating.
It is true that some of the prohibitions are more a matter of tradition or mores, rather than legal codification, but the law offers no protection to those who break them. There is no right to be an employee and to drink: one has to choose between the two. And if one consistently chooses drink, one sooner or later imposes costs, often great costs, on others. Anyone who has dealt with alcoholics knows that it is not they alone who suffer from their habit.
The libertarian position with regard to drugs would be more convincing if the costs of the choices of those who took them could be brought home to them alone. We know that, in practice, they are shared. We (or at least I) should not care to live in a society in which, say, an unconscious heroin addict found in the street were left to die unless it could be proved before treatment that he could pay for it, or alternatively that he could be put to forced labor afterwards to repay what he owed for his treatment. (Incidentally, Mill, in one of the less popular parts of On Liberty, says that a father who refused to support his children when he was capable of doing so could rightfully be put to forced labor.) A society in which costs were so rigorously apportioned would be both intolerant and a bureaucratic nightmare.
A legalizer might, with reason, point out that society is content to share the costs, either through public or private insurance, of the pleasurable activities of some of its members. What about those who participate in sport, the largest single cause of physical injury in Western society? But society bears that cost because, rightly or wrongly, it approves, or at any rate does not disapprove, of sport. It has not, by bearing that cost, agreed to share the costs of any activity whatsoever by any of its members.
It agrees to share costs by grace and favor, as a matter of discretion, and not according to any fundamental philosophical axiom.
In short, there is no “very simple principle” of the kind that Mill enunciated, with an eloquence that disguised a certain hollowness, that establishes as inherently wrong the forbidding of citizens to take whatever drugs they like. By the same token, there is no very simple principle that will determine which drugs should be permitted and which banned.
If it is right to begin permitting the consumption of a heretofore banned drug, it must, therefore, be on other grounds than 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.” As Einstein said, a theory should be as simple as possible, but not simpler than possible.