Why LSD Should Be Legalized

    E. J. Mishan

        Chapter 5 of Pornography, Psychedelics & Technology, Essays on the Limits to Freedom
        by E. J. Mishan. London: George Allen & Unwin, ©1980 E.J. Mishan

[Note: The first section of this essay, "Psychedelic Drugs and Their Properties", is somewhat outdated and contains a few minor inaccuracies. More complete information on this topic is available in other documents available in The Psychedelic Library. It is included here for purposes of continuity with the more important sections that follow.]

Psychedelic Drugs and Their Properties

A psychotic experience is described as being characterized by panic, paranoid distrust, confusion, isolation and/or extreme depression. The term is . . . usually reserved for trips that get dangerously out of control.
  In a psychodynamic experience, sub-conscious material is brought to the surface. This is the type of experience usually sought when hallucinogens are used in therapy.
  A cognitive experience is characterized by what appears to be astonishingly lucid thought. Subjectively, the mind seems able to see things from new perspectives, and to see interrelationships or many levels or dimensions of thought simultaneously. It is questionable whether this insight is real or only seems so.
  An aesthetic experience is described as one in which the sensory aspects of the experience dominate. The psychedelic drugs' effects on perception and sensation are perhaps the most publicized aspects of their actions... Fascinating changes in perception and sensation do often occur, but the degree of frequency of such changes may be somewhat exaggerated.
  A mystical experience is sometimes compared to the states sought in Transcendental Meditation, Zen, and other religious disciplines, although many people (especially practitioners of religious disciplines) feel that the hallucinogenic experience is a poor substitute. The experience is described principally as a 'loss of ego' or a loss of sense of self, so that the concept of 'I' loses its meaning a feeling of 'all is one'. This feeling is often accompanied by overwhelming joy from what is felt to be deep, religious, often irrational or paradoxical insight into the nature of the universe.
  A psychedelic experience, of course, rarely fits neatly into any of these categories. It is more likely to include aspects of all five. Exactly which aspects depends again upon the dosage and the individual user. A few effects, like intensified emotion, some visual distortion, and a degree of depersonalization are reported with most psychedelic experience. That the specific type of experience often seems so clear-cut may be the result of the drug's tendencies to produce a sort of mental tunnel vision—all types may result from bio-chemical actions, but whichever aspect of the experience may attract or captivate the mind is the one that predominates at any particular time.

Social and Economic Considerations

    The somewhat facile libertarian dictum that a man should be free to act as he wishes, provided that his actions do not interfere with the freedom of others, takes us at once to the heart of the matter. As the libertarian sees it, the sort of personal freedom that should be sanctioned by the dictum would include the individual's choice of food, drink and clothing (provided that it does not offend the accepted canons of decency). It would include his choice of religious and political affiliation and his freedom to join any group, club or association (provided that its aims are not constitutionally subversive). It would also include the right to travel where he pleases, to divert himself at any place of entertainment, to undertake any lawful enterprise and to voice any opinion (provided that his language is not libelous, blasphemous or scurrilous).[16] The consistent libertarian cannot, then, deny a man the right to engage in any activity that may endanger his own health and, as a corollary, therefore, to consume any drug that he pleases entirely at his own risk.
    The proviso about the effect of man's action upon others is, of course, crucial, and it is not necessary to establish a direct causal link at the individual level between the use of a good by one person and the adverse effects on others in order to persuade the good libertarian to qualify the individual's freedom to produce it or use it. For instance, if there is clear evidence that the production or consumption of the item entails a high likelihood of harm to others, controls on its manufacture or use may have to be contemplated.[17] However, no one has seriously claimed that the consumption of psychedelic drugs creates significant 'spillover effects', to use the economic jargon. Certainly, the consumption of alcoholic beverages is far more productive of violence towards others than the consumption of any of the psychedelic drugs in question. What is more, since the drinking of liquor is also a social activity, frequently engaged in at other people's homes or at pubs—in contrast to the taking of hallucinogens, which in the main is an intensely private experience—the incidence of driving under the influence of alcohol is likely to be incomparably higher than that of driving under the influence of an hallucinogenic drug.
    In general, however, the undeniable proposition that some people might abuse a liberty by acting irresponsibly cannot of itself constitute an exception to the libertarian presumption in favour of individual freedom. For there is scarcely a human activity that does not carry this sort of risk. The only deterrent to the possibility of irresponsible action countenanced by the libertarian is that sanctioned by the common law, under which a man can be charged only with willful attempts to hurt others or for attempts to do so under the influence of liquor or other drugs he willfully chooses to consume. [18]
    The term 'victimless crime' is an apt one used by libertarians to describe those activities which, giving satisfaction to one or more persons without inflicting any hardship on third parties, have nonetheless been made legal offences by the state for the greater good of society. Until recently physical intimacies between consenting adult homosexuals were such a crime. For that matter, incest between consenting adults is still a victimless crime (if we ignore the possible genetic consequences)—a fact that serves to remind us that not all seemingly victimless crimes are without significant effects on society at large—a subject we turn to in the following section.
    Confining ourselves to psychedelic drugs, the libertarian will always concede the right of the citizen to have access to all the available information. With the usual provision about safeguards for minors, the decision whether or not to take his chances with them should be left to his discretion alone. Although, to repeat, legislation designed to promote or require the dilution of such concentrated synthetics as LSD (so that, say, a tumblerful or so would amount to about an average dose) and to list any other ingredients would go far to make the occasional massive overdose—of which so much is made by the press—virtually impossible, any group or agency, either private or public, should be free to engage in research on the effects of hallucinogenic drugs and on improving them in various ways and to disseminate its findings to the public. And although some liberal thinkers might wish to intercede also for the right to advertise these drugs, I myself would not favour commercial advertising of drugs any more than I would favour commercial advertising generally.[19]
    Before moving on, however, there are three considerations that the libertarian case for legalising hallucinogenic drugs cannot evade. The first turns on pragmatic and economic factors; the other two arise respectively from the existence of the family and of the welfare state.

    With respect to the first consideration, the libertarian, especially in the United States, has voiced his opposition to the frequent withdrawal by government agencies of drugs and food additives from the market. He has affirmed his belief that, no matter how suspect the drug might be or how dangerous to health it is believed to be, there is no prima facie case for depriving people of the choice of risk taking. There is a case, he says, only for making information accessible, even when the information that is currently available is slight and uncertain, since the individual has a right to be treated as a responsible person. Admittedly, not all adults can be counted upon to act responsibly all the time, nor do they invariably know their own interests best. But, so the argument goes, the manifest solicitude of the welfare state to protect the citizen from his own follies ought to be strenuously resisted. According to the libertarian, it is better to act on the assumption that each person knows his own interest best than to act on any other principle.
    Nevertheless, living as we do during a period of rapid innovation, when each year hundreds of new chemical drugs, additives, synthetics, fertilizers, pesticides and accessories appear on the market, the difficulty even for an alert and energetic public of obtaining information about the short and long run consequences of each of the many new items can hardly be exaggerated.
    More often than not, by the time some of the longer run consequences of a particular item have come to light and it is regarded by some specialists as either suspect or pernicious, strong commercial scientific and bureaucratic interests have come into being. Much the same hapless pattern of events occurs with respect to a diversity of modern production processes, projects or consumer gadgets; by the time the scale of production or use has reached a stage at which the adverse consequences are widespread and have become a major nuisance, conflicts have already built up between, on the one hand, the immediate interests of producers and consumers and, on the other, the victims of the side effects of the items in question. These repeated examples of social folly are, of course, the unavoidable outcome of that presumption in favour of scientific and industrial progress—a heritage of the last 200 years—operating in an age still intoxicated by the pace of change and blinded by visions of goodies yet to come. This presumption is sustained today by a faith that the dangers and damage resulting from the applications of science will themselves be remedied by further applications of science—hopefully in time, and assuming that the damage is not irreversible.
    So long as this implicit presumption in favour of change continues to guide our destinies, things get done that, had they been deliberated and investigated at leisure prior to commitment, might with great advantage have been left undone. If, for instance, the debate on the future alternative sources of energy had taken place in Britain prior to the building of nuclear reactors and prior, therefore, to the virtual commitment of the Establishment, including that of large numbers of top British scientists and engineers, such a debate would have been more searching, more balanced and more fruitful. However, pressing on, as we do, in feverish haste we continue to create ever more social conflicts and ever greater hazards, which. as I have indicated elsewhere, [20] entail increased government control and increased government power over the citizen.
    Under these improvident conditions the unyielding libertarian might still insist that each person be allowed to buy any product or service on the free market entirely at his own risk, guided only by the existing information—which term would include the possible absence of any dependable information and even the presence of what transpired to be misleading information or misinformation. However, if this policy were adopted for, say, food additives and drugs, the consequences should give us pause. The sudden discovery by a government agency or by an independent group that a food additive or drug currently in common use carried a high carcinogenic or mutagenic risk would call for an immediate decision by all concerned. And it is by no means certain that a predominantly libertarian public would disapprove of an immediate ban on the sale of the item in question, at least for the time being. The alternative course of disseminating this crucial information by all available means could not be accomplished overnight. By the time the news of this discovery had filtered down to all segments of the population some additional and irreversible damage would have been done that could have been avoided by imposing, instead, an immediate ban on the sale of the item.
    The familiar psychedelic drugs, however, do not fall within this category of new chemicals or additives coming on to the market each year. Although, in view of their illegality, they are not as familiar in the West today as liquor and tobacco products, information about them is readily available for the interested layman.[21]
    Moreover, not only has their ritual consumption been a feature of other civilizations, but in addition they have been in use throughout the modern world long enough for both the medical profession and the interested public to appreciate that there are no clearly discernible adverse affects on the health of normal persons—provided, always that they are not taken in immoderate doses. Yet, even if it were established beyond reasonable doubt that regular recourse to hallucinogens could have effects on health that were as bad as, or worse than, those of regular recourse to alcohol, there would now be time enough, prior to permissive legislation, to acquaint the public at large with everything known—and, of course, everything not yet known—about them, so enabling each person to use his own discretion in the matter.
    The other two considerations arise because of the penumbra of uncertainty about the kind of effects on others that are to count in the libertarian scheme of things. The first consideration, which follows at once, bears on the nature and incidence of third-party effects, whereas the second addresses itself to institutional complexities.
    Broadly speaking, these incidental third-party or 'spillover' effects are of two kinds. On the one hand, there are those direct and tangible effects of, say, person A on other people, such as his disturbing the peace of a quiet village by shooting birds in the surrounding woods. On the other, there are the indirect or reactive effects of person A's actions on others, such as the indignation of the village elders on learning that Mr. A has taken to reading prurient novels. The libertarian regards the incidence only of the former (the direct effects on others) as pertinent in any case to be made against the unchecked liberty of the action of the citizen, never the latter (the reactive effects on others).
    These direct effects themselves, however, can be split into four categories, each of which could elicit a distinct response from the libertarian:

  (1) those arising from the use of items specifically designed to injure others;
  (2) those arising from the use of goods designed for peaceful pursuits, the legitimate production or use of which nonetheless inflicts tangible damage on the health or amenity of others damage that it is costly for the victim to avoid;
  (3) those arising from the use of items, such as drugs, that induce an abnormal state of mind under which a person is more likely to injure another than he would be in a normal state; and
  (4) those arising from the use of items that neither affect the health or amenity of others nor induce an abnormal state of mind in the user, but can yet be put to mischief.

    We turn now to the second consideration: the obstacles to clear thinking on this and related issues arising from the role of the family and the rise of the welfare state respectively.
    Should a man choose to drink so heartily of alcoholic beverages as to become incapable of regular employment, the effect of his drinking on third parties need not result in disorderly conduct or violence. But it can drastically reduce the material well-being of his immediate and dependent family. This is, of course, not the only risk to which members of his immediate family are exposed as a result of the freedom exercised by the chief provider. The material comfort of his family is prone to a variety of risks, some arising from the choices of his occupation or locality and others from any of a number of sports or hobbies in which he chooses to engage.
    Yet, recognition of these risks has never been regarded as consideration enough in the eyes of the libertarian to warrant any curbing of a family man's liberty to drink or smoke or to choose his own occupation, hobbies and sports, no matter how dangerous. Indeed, accepting the family as the organic cell from which all civilisations are built, the freedom to choose is more appropriately conferred on the family as an internally organised social unit, leaving the individual members of it to arrive in their own way at the family decisions—and in doing so to prevail on one another and, in the manner shaped by the existing culture, to display restraint and take heed of the morrow.
    The greater are such risks in any condition of society, the more incumbent it is upon men and women, in conjunction with their parents and relations, to exercise prudence in their choice of marriage partners. And although the rise of affluence and the spread of the welfare state have gone far to make modern marriages the product more of impulses than of forethought, the offspring of an improvident couple are not entirely helpless. For by the same token the welfare state, stepping into the social breach that it fosters—a diminished sense of parental responsibility, a reduction in the intervention of relations and friends and a diminution in the pressure once exerted by the local church and the local community—also sets limits to the amount of deprivation and abuse that children may suffer at the hands of their parents.
    In general, the fact that young children are for years wholly within the power of their parents and the fact also that child abuses do sometimes occur have not yet altered the expedient presumption in all civilisations that parents are more fitted to rear their offspring than any other body—at least until, in any particular case, the contrary has been shown. It follows that the mere possibility that the liberty vouchsafed to parents to spend as they please may be used so unwisely as seriously to endanger the health or welfare of their children has never been held by society to warrant imposition, at the outset, of restraints on the pattern of family expenditure.[22]
    The incidental risk to minors from keeping hallucinogens in the home is no different from the risks of storing alcoholic preparations or, for that matter, scores of other drugs or substances which, if swallowed by an infant, could prove fatal. Sensible parents place such products well out of reach of infants. [23] For older children parents have to rely—as with liquor and tobacco—to a large extent upon good example, upon the atmosphere in the home and upon the influence of the school and community environment.

    Finally, in connection with the third consideration we have to face the situation created by the growth of the welfare state. The resident in Britain who chooses to drink heavily, to smoke heavily or regularly to consume any unhealthy drugs, or alternatively to indulge in any of a number of strenuous sports, not only risks damaging his health; he subjects the British taxpayer also to additional risks. Given the institution of the welfare state, therefore, the decisions of a large number of people to do any of the above-mentioned things, plus many others, undeniably increase the tax burden on the remaining members of society.
    However, these direct effects on the taxpayer do not fall within the second (2) category of 'spillovers' mentioned earlier. They are not 'externalities' as commonly understood by economists; that is, they are not the incidental, although direct, physical effects of one person's legitimate activity on the health or amenity of others. Instead, the economist regards such additional tax burdens as 'pecuniary' effects, in as much as income transfers alone are involved. In other words, no necessary misallocation of resources is implied by additional tax burdens that result from such institutional arrangements; only a redistribution of income as between risk-takers on the one hand and the remainder of the community on the other. [24] It follows that, on economic grounds at least, control by the welfare state on people's chosen activities is unwarranted.
    Yet, this observation by the economist, pertinent though it is, has reference only to economic efficiency. The argument looks quite different when couched in terms of equity. Surely those whose chosen activities tend to result in a greater tax burden being borne by others ought to be made accountable in some way!
    One response to this exclamation is to point out that heavy consumers of tobacco and alcohol do in fact contribute more to the general revenues than do others. There is in principle a calculable level of excise tax on each of these products that would raise a sum that was equal to that necessary to finance the additional medical and other services required by smokers and drinkers. It is not impossible, either, that the existing excise taxes exceed these equitable levels, so that, on balance, the rest of the country benefits from the vices of its minority. On the same argument, of course, the calculable costs to society of any ill effects suffered by consumers of psychedelic drugs can be wholly offset, or more than offset, by an appropriate set of excise taxes.
    Sensible though such tax solutions may appear to be on grounds of equity alone, and capable though they are of meeting this sort of objection, they must not be allowed to detract from the essential issue. The outcome of people's liberty to indulge in their vices, sports or hobbies upon the welfare of others—specifically, that of increasing the tax burden on the latter—cannot be regarded as the necessary consequence of the actions of the former. It is no more than a result contrived by institutional arrangements—which arrangements are, of course, optional for society. Simply by extending the area of 'socialism' or 'welfarism', so far as to make each person in effect a ward of the state, the state is able to ensure that his every action entails a possible financial liability to society at large. This much accomplished, it then becomes true to assert that practically every choice made by the citizen has some effect, plus or minus, on the tax burden of all other citizens—from which proposition it may (improperly) be inferred that, in contradiction to the libertarian dictum, there is in fact no longer any significant area of activity in which a person ought to be free to act as he pleases.
    This alleged vulnerability of the libertarian position cannot be taken seriously. Should a Western government committed to maintaining or expanding the welfare services of the state explicitly adduce the above argument as grounds for extending further the system of constraints on individual choices, the response of the electorate would almost certainly be a decisive repudiation of the welfare state. Certainly no libertarian would ever agree to so constricting a social contract.
    In sum, therefore, if the citizen properly insists that any extension of the welfare state be without prejudice to the freedom of individuals to continue indulging in their chosen vices and recreations (including such 'injurious' drugs as liquor and tobacco) he cannot, with any pretence of consistency, invoke the tax-burden argument in a bid to ban the introduction of psychedelic drugs.

Drug Illegalization and Crime

    Finally, perhaps most pernicious of all is the fact that recourse to prohibition can have subversive effects on society that are virtually irreversible. By investing an otherwise mutually satisfactory transaction—one having no necessary spillover effects on others—with the trappings of a crime, the state not only tempts citizens first into the newly legislated victimless crime and from there, possibly, into real criminal activity; the resulting legislation also creates ripple effects that spread corruption throughout society. Legislation that appears to many citizens as manifestly arbitrary, unfair or absurd, or as being the expression of rooted prejudice or vested interests, acts over time to bring the whole body of the law itself into contempt, and in doing so to weaken the social order. For such legislation commands no popular respect and is likely to be ignored by many people. [27] And so, moving from one precedent to another, cynicism of the law and of the institutions designed to uphold them spreads among the public. A long-established tradition, that of giving the law 'the benefit of the doubt' wherever its rationale is not clearly evident, and of heeding its provisions notwithstanding, gradually begins to erode; indeed, to give way to the contrary presumption—that all social legislation (whether democratically enacted or otherwise) reflects no more than some combination of highly organised interests and as such constitutes unwarranted intervention. Certainly, among the young it is already widely believed that much of the spate of social legislation today is the product chiefly of contending material interests[28] and that very little of what today emerges from democratic assemblies could withstand searching inquiry and debate to determine whether it truly serves the broad interests of society and accords with acceptable notions of fairness and propriety. Social decay sets in as people increasingly reject the view that social legislation is guided by norms of social justice and melioration, and this social decay becomes irreversible once the spirit of suspicion and rejection spreads towards the canons of the common law and, from there, towards traditional ethical standards. For the result of such corrosive scepticism is increasing recourse by the individual to the dictates of his own conscience, which in these circumstances tends to become dangerously resilient. He will be inclined to favour his own perceived interests, irrespective of the existing laws, whenever he calculates that he has a good chance of escaping detection. According as this sort of 'permissiveness' grows and continued legislation against victimless transactions can only encourage its growth—the need to maintain social order will eventually countenance the surrender to internal security forces of greater powers of surveillance and control, in consequence of which personal freedoms will be further diminished.
    If the validity of the foregoing arguments is conceded, a prima facie case is established that illegalizing the sale of goods—at least those in the third (3) category mentioned in the last section—is detrimental to the social interest. No liberal democratic government should therefore be allowed to introduce or maintain any such prohibiting legislation without presenting powerful arguments in favour of its decision to do so—powerful enough, at all events, to overcome the objections to such enactment advanced so far in the above two sections.

The Character of Society

    Why, therefore, is the Establishment reluctant to legalise the sale of hallucinogens? It has been suggested that the liquor industry is opposed to such legislation simply because it believes that the sale of its products would suffer.[31] Although it would not be easy to adduce convincing evidence for this belief, I would not dismiss it as entirely fanciful. What would be fanciful would be to regard it as the greater part of the explanation.
    The explanation that I advance, although difficult to substantiate by statistical methods, is more comprehensive. I have suggested elsewhere[32] that the modern permissive society is to be conceived as providential development by means of which an innovative economy, continuously under institutional pressure to expand, may be kept going. After all, a continuing expansion of industry as a whole depends for its success upon a continuing enlargement of the consuming public's appetite—else the public would be unable to engorge the burgeoning variety and volume of goods produced. A traditional society does not serve, nor does a discriminating one. Promiscuity is the attribute needed—promiscuity coupled with insatiability. And this ideal buying public is, of course, that which is emerging. For a permissive society in which 'anything goes' is ipso facto also a society in which anything sells.[33]
    Although I have suggested that, if their sale were legalized, the popularity of these psychedelic drugs would be limited, their widespread use—which, I think, is feared—could indeed prove a threat to the continued expansion of modern industry. If new opportunities were extended to individuals for strange and exhilarating explorations into the mysterious universe and the mysterious self, the markets for media entertainment, for package tourism and for all the modern accessories of commercial hedonism would surely diminish. And if the popularity of such psychedelic drugs were to have any perceptible and enduring effects, they would certainly involve the curtailing of economic growth. For they do tend to shift the individual's interest from the search for ways of keeping up with the machine toward the search for meaning and purpose.
    It is awkward enough for modern governments and bureaucrats perpetually under attack today for doing too little and interfering too much—to cope with the conflicting pressures exerted by the unabashed self-seeking of organised labour and organised management, by parvenu minorities inventing new rights and by idealistic groups of preservationists, ecologists and environmentalists. The prospect of having to endure, in addition, a minority group of psychedelic devotees, articulating their contempt for the ethos and insatiability of modern society by which big business and big government rationalist their expanding power, is not an attractive one.

In Summary

Notes and References