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/