The Ethics of Drug Policy

I’m reading through Jonathan Wolff’s Ethics and Public Policy: A Philosophical Inquiry, which is a book of applied ethics/political theory. I’m becoming increasingly interested in this sort of applied theory… Anyway, it’s a good book, and it seems to me the need for such thinking is vital. Here I want to engage it on the topic of drug policy for the sake of discussion and because it helps draw out what I see to be a weakness of the book.

Wolff begins by raising the complexities of the issue, which include the fact that the harm of drugs, on users and third parties, is often exaggerated, and the paradox of the legal status of tobacco and alcohol. [1] Then he examines and critiques the way some societies have addressed the problem, such as the American ‘war on drugs.’ [2] Here Wolff argues that societies have to determine whether to address the issue more like murder, an issue of that trumps consequentialist calculus, or pollution, an issue that can justifiably be dealt with gradually. [3]

Should We Regulate?

Wolff discusses possible arguments for the regulation of drugs. The first he refers to as “libertarian self-ownership,” which is that the individual has the right to corrupt his body with drugs if he wishes, and a government that says otherwise threatens individual liberty by being illegitimately paternalistic. [4] This argument, Wolff reports, is hardly convincing to most.

The second he terms “consequentialist libertarianism,” which is the approach that legalizing drugs reduces their harm and use. Wolff’s concerns with this approach are common critiques of consequentialism, that the actual consequences of an action are far from certain. It’s really unclear as to whether legalizing drugs would produce the intended results – reduction in crime, reduction of use, etc. [5]

The third Wolff refers to as “Millian liberalism,” which subjects the legalization of drugs to a cost-benefit analysis. While it may be hard to construct such an analysis, this subjects the legalization of drugs to a utilitarian calculus. [6] The utilitarian argument could be used to argue that widespread use of serious drugs would undermine the structures of society and therefore should be limited, or that it’s effect is minimal and the prohibition of drugs either isn’t worth it or is outweighed by possible benefits.

These seem to fairly represent all of the main arguments, with one major exception. Inexplicably Wolff overlooks the teleological (or perfectionist) argument. I’ve laid out the same essential argument in an earlier post. A teleological perspective is subject to criticism of paternalism, which is to be expected. Such a teleological view would argue that the hardest drugs need regulating or prohibiting because they are perhaps uniquely corrosive

of the dignity of an individual due to the combination of their severe effects on physical and mental health and the enormity of their destructive force upon social and relational commitments. That is, they should be prohibited because their use so severely inhibits one’s ability to be most human, to live a full life – to live up to one’s civic duty, social obligations, and relationships. It is because of this reason that such drugs are so insidious in the first place and because of this that they degrade the common good, not merely the common’s governability.

What about Alcohol?

A constant refrain in Wolff’s book is that “we must [always] start from where we are… Debate has a ‘status quo bias’ and in policy terms we are stuck with this, however much we feel it is philosophically unjustified.” [7] This dose of realism is of course quite necessary, and I think it explains perfectly legal status of alcohol. Even as one who enjoys the drink, it seems to me a flat inconsistency that alcohol is legal while other substances of equal or lesser negative impact (such as marijuana) are not. It is historical and inherited ‘status quo bias,’ and to argue here neither for the legalization or illegalization of such substances, the inconsistency is plain. However, as Wolff also explains, arguments that appeal to inconsistency are not very powerful in public policy precisely because of our inherited past.

Where to Draw the Line?

It’s true that dealing with ethical issues like the present one requires establishing somewhat arbitrary lines. Regardless of the reason to regulate drugs, which ones to regulate and how is not an easy question to answer. As one partial to the teleological/perfectionist argument above, I suggest it means establishing an admittedly arbitrary line behind which those substances that we seem to think too severely inhibit a person’s “ability to be most human, to live a full life – to live up to one’s civic duty, social obligations, and relationships.” This isn’t an easy thing to determine, but it must be done.

How to Address the Issue?

Wolff mentions a common dispute about how to deal with the problem of drug use, as a criminal act or a public health issue. Unfortunately Wolff doesn’t explore this difference very far. I think it deserves some serious attention.

It seems to me that one of the problematic things about most of these substances is their intensely addictive nature. The use of many of these drugs alters brain chemistry to the extent that a compassionate response must take into account that the choice to continually use them is not the same sort of choice someone might otherwise make. This doesn’t mean people who use such substances aren’t responsible for doing so, but that the nature of the choice someone makes to do so should be taken into account.

The second argument for approaching the issue as a public health one is directly related to the reason we think drugs should be regulated. As I mentioned, my reason is a teleological one, that such substances severely diminish one’s ability to live a full life, personally, socially, and civically. If this is my reason, then the response to drug use shouldn’t be outright criminalization. It doesn’t quite make sense to say doing harm to oneself is a criminal offense, as we can see with the changing laws around suicide.

A third argument for approaching the issue as a public health crisis has to do with appropriate rehabilitation. Rehabilitation should always remain at least part of the function of the criminal justice system, for every person. The rehabilitation of people who are addicted to such substances as heroine is a physical and mental health issue. If we have good reason to think such substances should be prohibited, we have to think about how we might best help people deal with their addictions and usage. This reason is both principled and pragmatic.

These three arguments seem to make an overwhelming case to treat the issue as a public health concern. There are other reasons too, such as the failure of punishment (jail time) for drug usage neither effectively deters people from doing so nor adequately addresses many of the reasons people do so in the first place.

All in all, this issue is a clear example of an extension to Wolff’s book as a whole – that teleological arguments should be considered and that our policy should reflect our reasons for it in the first place. That second point is a problem that emerges  with ethical pragmatism at times, which is that the thinking ends up, explicitly or not, resting overly on intuition at the expense of principle. These points seem mostly absent from Wolff’s otherwise good book.

 

________

[1] Jonathan Wolff, Ethics and Public Policy: A Philosophical Inquiry (Routledge: New York, 2011) 61-62.

[2] Ibid., 64-68.

[3] Ibid., 68.

[4] Ibid., 68-69.

[5] Ibid., 69-70.

[6] Ibid., 71-73.

[7] Ibid., 82.

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