12.2 The Case of Recreational Drugs

The debate between these two perspectives, libertarianism and paternalism, underlies a particular question that many societies have been grappling with in recent decades, that of the legal status of certain intoxicating substances or “drugs.” I this section we’ll see how this debate plays out by examining a number of different arguments that have been brought forward either against legalizing the recreational use of drugs or in favor of it. As more and more states in the United States have legalized the recreational use of marijuana in recent years, these arguments have come into prominence and I am sure all of them will seem familiar.

Against legalization

There are a number of arguments that are typically given against the legalization of certain controlled substances that are currently prohibited for recreational use. I’ll consider three of the most commonly given ones here. All three are often used to justify official federal policy in the USA and other countries as well and all have been challenged by states and countries that have recently legalized the recreational use of marijuana.

The use of drugs for recreational purposes is in itself wrong.
In addition it has a corrupting effect on non-users when some people use drugs.
One of the roles of law is promoting public and moral order.

So currently illegal drugs should remain illegal.

This argument no doubt raises controversial points. Is the recreational use of drugs in itself wrong? If so, why exactly is it wrong? It would seem that utilitarianism would reject this idea, insofar as the recreational use of drugs might be pleasurable. A Kantian might perhaps see the recreational use of drugs as a violation of one’s duty to oneself to live up to one’s potential, but only if this use interferes with one’s larger goals and aspirations. Certainly an occasional user need not undermine her life’s projects by smoking or drinking every once in a while. So what moral theory does this claim then depend on? It seems like it might appeal to some conception of moral virtue, as developed by Natural Law Theory, since the use of drugs could be looked at a moral failing that indicates having a weak will or an inability to deal with life’s problems and a willingness to seek an easy escape from those problems. But, as we saw in the earlier, Natural Law Theory faces some serious problems as an account of right and wrong. It grants too small a role to human freedom and choice in determining right and wrong and assumes that it makes sense to impose a single “template” of what morally correct action must look like on all of us. Hence this approach seems to many people to be suspect.

On the other hand, suppose it were true that the recreational use of drugs was inherently wrong from a moral perspective, what then? Does it follow that because it is wrong it should thus be illegal? It almost seems to be taken for granted in official policy making circles that this is the case. But is it? Is the role of the criminal law to police public morality? Is that were the case, why are some “vices” such as smoking tobacco, watching pornographic videos, and the consumption of alcohol tolerated and others, such as the use of drugs such as marijuana and cocaine forbidden? We will return to this question of consistency in more detail later. For now, we can just state as an objection to this first argument, that the fact of something being wrong from a moral perspective alone wouldn’t necessarily be enough to warrant its being made illegal. We live in a society that takes individual liberty seriously and separates “private” moral concerns from “public” legal concerns. The next argument, however, considers in greater detail the issue of broader, more public social harm suggested by the second premise of this first argument.

Our next argument is similar to the previous one in that it assumes that the use of certain substances (so-called “hard drugs” – basically anything more serious than marijuana) is either wrong or at least personally and also socially a very risky thing to do. But it also an argument that has been used against those who claim that marijuana is different than other drugs, since it is physically less harmful and generally less debilitating in its effects on the user, and so should be legalized.

People who smoke marijuana at a young age are more likely than people who don’t to use harder drugs later in life.
If we legalize marijuana more people will smoke it at a younger age.
So legalizing marijuana will increase the use of hard drugs.
The use of hard drugs is wrong and/or poses great public risks.

So marijuana should not be legalized.

This argument is the familiar “gateway drug” argument. It is often simply assumed in debates about drug use that marijuana is in fact a “gateway drug,” as in the familiar claim I saw recently in a video on the debate about drugs, “drug counselors consider marijuana to be a gateway drug.” The issue here has to do with what exactly it means to be a “gateway drug.” If it means that in fact people who use hard drugs like cocaine and heroin have most likely used marijuana prior to having used heroin or cocaine then it is obviously true that marijuana is a gateway drug. After all, most heroin users do not start out with injecting heroin into their veins. They probably started drinking alcohol and then moved on up the scale of more serious drugs that provide a more powerful effect. But this is not enough to get the argument off the ground, since what it needs is a relationship of cause and effect. It is because you use marijuana that you are much more likely to use other drugs later – that is the claim that is being made in the argument. But is that true? Doesn’t this look suspiciously like a case of the “false cause” fallacy? It is clearly true that marijuana users are more likely to use heroin that non-marijuana users, but that does not by itself mean that marijuana use causes heroin use. That would be like saying that because the sun arises shortly after my alarm clock goes off every day, then the clock’s going off must cause the sun to rise. In fact, the causal relation between marijuana use and heroin use is undermined even more by a simple fact about usage rates. Even though large numbers of people have smoke marijuana on a regular basis, many fewer are regular heroin users. But if marijuana caused heroin use, shouldn’t the numbers of heroin users be significantly higher? Compare the claim that smoking causes cancer – if only one percent of smokers ended up with cancer, then this claim would clearly seem to be stretching the evidence. So then, how do we explain why non-marijuana users are far less likely to use heroin than marijuana users? It seems clear that there may be some common third factor that is the cause of both. Perhaps I have a physiological weakness for addictive substances, or come from a background that leads me to drug use in general. Whatever the case may be, whether it is nature or nurture that leads me astray, it would be this third factor that leads some people to smoke marijuana and some others to both smoke marijuana and use heroin. But this is not at all what the gateway argument claims and significantly weakens its attempt to show that marijuana is far too dangerous to be legalized.

Our next argument takes a more modest approach – the approach of limiting harms to acceptable levels without trying to make unsupported claims about the unique features of certain currently illegal substances.

The abuse of alcohol and tobacco are an enormous social problem – they lead to huge public health costs, lead to lower productivity, and endanger others through the effects of second-hand smoke, DUI accidents and bad behavior under the influence.
If drugs were legalized, this would add to the problems created by alcohol and tobacco.

So currently illegal drugs should remain illegal.

This argument seems fair enough. The question, however, is why set up the boundary between illegal and illegal exactly where it currently happens to lie? Shouldn’t we have some serious studies to back up our claims that drugs \(a\) and \(b\) should be allowed (alcohol and tobacco) but not drugs \(c\) and \(d\) (marijuana and cocaine) because that leads to the least possible harm? There is nothing in principle to prevent it from being the case that the legal drugs should be alcohol and marijuana, with tobacco being classed with heroin and cocaine as too risky to the public. But that seems contrary to the inherently conservative character of this argument. It seems to be saying, “We should avoid changing the current situation because adding new substances poses further risks.” But then maybe the current situation needs to be re-addressed as well, if the idea is to minimize risks over all and not just defend the status quo.

Consistency

We must now, finally confront the issue of consistency. Alcohol and tobacco are risky in much the same way that illegal drugs are risky. So why then is it legal for adults to use them? The next argument, which addresses this issue of consistency, deserves consideration on its own, since it is neither strictly prohibitionist nor strictly against prohibition. It just demands like treatment for like harms and thus, depending on our assessment of the potential harms of the use of drugs may or may not support their legal prohibition. There is, however, a catch to this provocative argument – if currently illegal drugs pose too much of a threat to be legalized, and alcohol and tobacco pose the same threat, then the latter should also be made illegal.

Alcohol and tobacco are just as risky to individuals and society as currently illegal drugs are.
So the same arguments should apply to both.
Rational policy should be consistent.

So currently illegal drugs should remain illegal if and only if alcohol and tobacco are made illegal.

This argument clearly rests on an appeal to the idea that we should have a single set of legal standards that apply across the board in cases that are relevantly similar. So the question that we must ask of supporters of this argument is: are currently illegal drugs really so similar in their personal and social effects to currently legal drugs? If the answer is yes, and there is a good reason to have a consistent social policy, this argument seems fairly strong. Note that it is not necessarily an argument for the legalization of drugs. It simply points out that our policies concerning alcohol and tobacco are inconsistent with our policies towards other drugs. If both are equally harmful then either both should be permitted or both should be forbidden. Failure to treat both the same amounts to irrational social policy. As a parallel example consider the recent legislation that permits motorcycles in the state of Pennsylvania to ride without helmets. This legislation was introduced at the same time that measures were enacted to stiffen penalties for not wearing set belts while driving. If adults are legally permitted to assume the added risk that comes from riding a motorcycle with out a helmet why then are we not allowed to assume the added risk of driving without a seat belt? Likewise, if our own safety is the motivation for the state to enforce seat-belt laws strictly, why then are not motorcycle riders compelled to wear an obvious enhancement to their own safety? Inconsistent social policy it seems has little defense.

Against prohibition

The first argument against prohibiting drug use by adults, takes us back to our earlier discussion of libertarianism. Libertarianism, we remember, is the view that adults should have the maximum possible amount of liberty. This argument, with suitable modifications, applies to many social issues. It has been successfully used to defend the wider legalization of gambling, a lack of restrictions on the access of adults to pornography, the legalization of prostitution, not to mention revisions of motorcycle helmet laws.

Liberty is an overriding good, so adults should have as much of it as possible.
The only reason to restrict someone’s liberty is to prevent them from directly harming others.
It is possible to use drugs without directly harming others.

So adults should be allowed to use drugs as they see fit.

If you found libertarianism at all compelling in our discussion above, you will no doubt find this argument plausible. The burden of proof certainly rests on the third premise. Is it truly possible to use drugs without directly harming others? According to the image of drug users in the media and in official policy presentations of the issue we may have reason to doubt this. In response, we may simply point out that alcohol, in spite of its powerful effect on human behavior, is allowed precisely because of the judgment that it can be used in such a way that others are not harmed. This certainly does not mean that it cannot be used in a way that puts others directly at risk. But those cases, such as DUI cases, for example, are severely punished and are not considered acceptable uses of alcohol. Once again, if we would like to be consistent and judge the liberty to drink alcohol as an important freedom, not be be restricted except in cases of overt and direct harm to others, why not then extend this liberty to other substances as well?

The final argument I’d like to present is one that has more, perhaps, to do with social policy than it has to do with purely logical and ethical considerations. This argument poses the question: is the War on Drugs, declared in the early 1970’s by President Nixon, re-declared by Reagan in the 1980’s, and Clinton in the 1990’s and still the official approach to the problem of drug use, really worth it? Does it perform as advertised?

Prohibiting adults from taking drugs legally has high costs: It is expensive, organized crime runs the trade, it leads to corruption in law enforcement and it undermines civil liberties.
In spite of the War on Drugs, drugs are widely available.

So other methods for dealing with the problems of drug use should be sought.

This provocative line of reasoning is certainly far from being taken seriously in any official policy making circles. But shouldn’t it at least get a hearing? It seems that the premises are true. Rates of drug use and drug availability have been fairly steady for at least the last few decades, yet record numbers of Americans now sit in jail as a result of drug law violations. Other countries, such as the Netherlands, Great Britain, Germany and Canada have in recent years sought alternatives to criminalizing drug use. Might that be an option here as well? The recent proliferation of drug law reform efforts on the state level indicates that this argument is being taken more seriously in the USA as well.