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The drug laws don’t work
Written by: Michael Huemer | Appears in: Issue 41
July 20, 2009
Let me begin with a story, and see what you think about it. A man named Flip owned a computer.
Flip, however, took very bad care of his computer. He often ate and drank over the computer,
which resulted in his spilling Coke on the keyboard on three occasions, ruining the keyboard each
time. He installed software that slowed the machine’s performance and caused the operating
system to become unstable. Flip thought these programs were “cool”, but most industry experts
considered them shoddy products whose drawbacks far outweighed their usefulness. Finally,
three weeks ago, Flip got angry at his computer and threw it on the floor. The mothe
oard and
several other components were fatally damaged, so that Flip no longer has a working computer.
End of story.
Flip was an imprudent and i
esponsible computer owner. He made several bad decisions. It
would clearly have been better had he taken care of his computer, not installed harmful software,
and never thrown it on the floor. This would have been better for the computer, for Flip, and even
for society, for Flip would have been a more productive citizen with a working computer. So a
question naturally arises: how might we prevent people from behaving like Flip?
A solution fairly thrusts itself on our imagination (or at any rate, on the imagination of those who
take their cue from modern politics): we could send the police after Flip, to drag him off and
throw him in jail. That would send a message to other would-be computer abusers.
What are we to think of this plan? Of course, as things stand, Flip will not be sent to prison
ecause he has violated no law. But that just invites the question: Should Flip’s behaviour be
against the law? It is clear enough that the behaviour was foolish and without redeeming social
value. So why isn’t it illegal?
Here is why: because what Flip did, he did to his own computer. If Flip had destroyed someone
else’s computer, say a computer in a public li
ary, then he would be held accountable by the
state, and rightly so. Likewise, if he had destroyed his computer in a manner directly harmful to
someone else—say, by throwing the computer at another person—then he would deserve to be
punished. But he does not deserve to be punished purely for what he does, privately, with his own
property.
It isn’t that what Flip did was not sufficiently harmful. Flip could have had a top-of-the-line,
$5,000 computer worth three months’ of his salary. It could have contained the only copies of his
personal co
espondence over the last twenty years, plus the Ph.D. dissertation he was working on
for the last five years. None of that matters to assessing his legal liability. Nor is the point that no
one else was made worse off by Flip’s behavior. Suppose that scholarship in his field of study
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will be set back thirty years by the tragic loss of Flip’s
illiant dissertation. Furthermore, Flip
will be unhappy for the next several months because of the loss of his computer, causing his
family and friends also to be unhappy. Again, none of this matters to assessing Flip’s fitness for
public sanctions. As long as what Flip destroyed is clearly understood to have been entirely his
own property, and as long as he did not in the process take or damage anything that another
person had a right to, his deplorable behaviour would not and should not be legally punished.
Almost no one would favor changing the laws in that regard.
This is our conception of property. When you own something, you may do with it as you wish,
even including damaging or destroying it, up until the point at which you violate another person’s
ights over what is theirs. This is what we generally accept when it comes to our material
possessions—our computers, our clothes, our cars, and so on.
Now, what about our bodies? Shouldn’t we have at least as much right to control our own bodies
as we have to control a computer? For what is more authentically yours than your own body?
Somehow, the majority of people disagree. Consider the case of Trip. Trip has a body. But like
many of us, Trip takes rather poor care of this body. He often puts substances into it that damage
his health and have little or no nutritional value. He claims that these substances give him great
enjoyment, but most medical experts consider the harms to far outweigh any benefits of these
substances. By ingesting them, Trip greatly reduces his overall life expectancy.
What can be done about Trip? Whereas nearly everyone is content to leave Flip alone to make his
own mistakes with computers, most individuals and governments would see Trip hauled away
and forcibly confined for years, in punishment for his indiscretions. At least, they would if Trip’s
prefe
ed “substances” include marijuana, cocaine, heroin, or any of several other specific
substances named in the law. We would not, however, see Trip punished if his prefe
ed
substances include only alcohol, tobacco, and fatty foods. Although more people are killed every
year by the latter substances than by illegal drugs—over twenty times more in the case of
tobacco—most would consider legal sanctions for smoking, alcohol consumption, and overeating
to be taking things too far.
Why this contrast in our attitudes? Why is consumption of illegal drugs viewed so differently
from consumption of other harmful substances, or participation in self-harming activities more
generally? One reason is the value of purity. Psychologist Jonathan Haidt has identified five
oad kinds of ideas that influence people’s moral attitudes—ideas about harm, fairness, loyalty,
authority, and purity. Conservatives tend to be more strongly influenced than liberals by the last
three. In particular, many see illegal drugs as impure and as pollutants of the body. But few see
alcohol, tobacco, or fatty foods in that way, even if they are objectively more harmful. This is
partly because of social conditions created by the legal regime itself: we see normal, respected
individuals drinking, smoking, and eating unhealthy foods in public all the time. We see no such
thing for illegal drugs, which we tend to associate with sordid, poor, dangerous neighbourhoods
and people.
What we should realize, when we are influenced by these feelings, is that illegal drugs are not
inherently unclean, any more than alcohol, tobacco, or canola oil. All of these are simply
chemicals that people choose to ingest for enjoyment, and that can harm our health if used to
excess. Most of the sordid associations we have with illegal drugs are actually the product of the
drug laws: it is because of the laws that drugs are sold on the black market, that Latin American
crime bosses are made rich, that government officials are co
upted, and that drug users rob
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others to buy drugs. The drug laws create a regime in which crime burgeons: because legitimate
usinesses are prevented from providing the goods demanded by the market, criminals step in to
provide the product, at greatly inflated prices. During America’s experiment with alcohol
prohibition, organized crime grew bold and powerful from its booming trade in illegal alcohol.
When prohibition ended, the alcohol business was taken over by legitimate businesses. Today,
alcohol is sold in stores, not on the streets; it is shipped from
eweries in the daylight, not
smuggled across borders by criminal organizations; no government is co
upted by alcohol
money; and virtually no one robs other people to get money to buy alcohol. The difference
etween the situation of alcohol and that of illegal drugs lies not in their chemical or
pharmacological properties; it lies in the law. In the case of the drug trade, we have created laws
that protect criminal organizations from noncriminal competition, thereby granting obscene
profits to criminals.
None of this is to deny that misuse and overuse of drugs create problems for the user and those
around him. The same is true, as I have said, of alcohol, tobacco, and unhealthy foods. But
without prohibition, the problems created by drug use would be mainly private problems; it is the
law that enables the drug trade to damage and co
upt society.
Most philosophers, in my experience, can be
ought to agree with the case for legalisation. But
there is another reason—apart from sentiments about purity—why most non-philosophers do not
accept this case. That is that the legalization position strikes many as defeatist. We have a
problem: drugs ruin many people’s lives. The legalisers’ position offers no solution to this
problem, counselling instead that we merely learn to live with it. We hear this complaint often
from the prohibitionists’ side. As conservative U.S. Senator Jon Kyl put it, “What [the
legalisation advocates] all have in common is a defeatist mentality that America is losing the war
on drugs, and a shared faith that we can somehow win it by su
endering.” The Senator’s last
emark is of course a misstatement: legalisers do not propose to win the war on drugs by
su
endering. They propose no way of winning at all. Those who advocated the repeal of alcohol
prohibition likewise offered no way of winning the battle against drunkenness. Rather than trying
to win that battle, we have learned to live with the enemy as best we can.
Many conservatives feel repelled by this cynical approach. Those who feel this way would do
well to learn from the views of their conservative colleagues about economic policy.
Conservatives have long pointed up the unworkability of socialism. Many socialists find this
critique cynical and defeatist: market economics offers no solution to the problems of human
greed, poverty, and inequality. How can we be content to acquiesce in these problems, when
another ideology offers a plan to perfect society and human nature?
The key insight that these sentiments are missing is that expressed in Voltaire’s dictum, “The best
is the enemy of the good.” Seeking the best imaginable result—seeking to eliminate a social
problem—often leaves