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Drugs and Rights
Cambridge Studies in Philosophy and Public Policy
Douglas N. Husak
Contents
The war on drugs
Medical and legal definitions of drugs
Legal regulation of drugs
Constitutional issues
Recreational drug use
The decriminalization movement
Arguments for criminalization
2. Drugs and harm to users
Consequentialism and drug use
Autonomy and drug use
Analogies
Addiction and autonomy
Addiction, slavery, and autonomy
"Soft" paternalism and drug use
"Hard" paternalism and drug use
Conclusion
3. Drugs and harm to others
Utilitarianism and drug use
The evaluative assumptions in utilitarianism
Harm and disutility
The nature of criminal harm
Anticipatory offenses
Drugs and crime
Conclusion
4. Restrictions on drug use
Local controls and the importance of community
Reasonable regulation of drug use
Special cases: Pregnant drug users
Adolescents and adults
A moral right to use drugs: Misinterpretations
Drugs and Rights ©1992 by Cambridge University Press
ISBN 0-521-42727-4
The Introduction and Chapter 1 appear in
The Schaffer Library of Drug Policy by permission of the Author
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This timely and important book is the first serious work of philosophy
to address the question: Do adults have a moral right to use drugs
for recreational purposes? Many critics of the "war on drugs"
denounce law enforcement as counterproductive and ineffective.
Douglas Husak argues that the "war on drugs" violates
the moral rights of adults who want to use drugs for pleasure
and that criminal laws against such use are incompatible with
moral rights.
This is not a polemical tract but a scrupulously argued work of
philosophy that takes full account of all available data concerning
drug use in the United States today. The author is careful to
describe the properties a recreational drug would have to possess
before the state would be justified in prohibiting it. Since criminal
laws against the use of recreational drugs are justified neither
by the harm users cause to themselves nor by the harm users cause
to others, Professor Husak concludes that such laws are, in almost
all cases, unjustified.
The book will be of particular interest to philosophers in applied
ethics and philosophers of law, but it will prove provocative
for any reader seriously concerned with the issues of drug use
and drug control.
Introduction
This book does not propose yet another solution to our nation's
intractable drug problem. As H. L. Mencken is reputed to have
said about the alcohol problem during the era of prohibition,
"No intelligent man believes the thing is soluble at all."
Whether or not the drug problem can be solved, many commentators
have addressed the issue from the perspective of social policy.
I have little new to add to their discussions.
I approach drug use from an individual rather than a social perspective.
My central concern is to identify the moral rights of adult
users of recreational drugs. I discuss social policy only insofar
as it has a bearing on these rights. Moral rights have been all
but ignored both by the state in its war on drugs and by theorists
who have written, oftentimes critically, about this war. It is
easy to see why rights are neglected by a state at war. What is
more difficult to understand is why commentators have been so
passive in calling attention to this neglect. Those scholars who
have dissented in the war on drugs are seldom motivated by a desire
to protect the rights of drug users. More frequently they have
protested that the war cannot be won, or that it is too costly,
or that it exacerbates the very problems it is designed to solve.
When individual rights are mentioned at all, they are usually
the rights of innocent persons jeopardized by overzealous law
enforcement. Criminal procedure provides the legal battleground
for these debates. The war on drugs has expanded the police power
of the state in a variety of ways. However, the nonusing public
did not become alarmed until they were directly affected by this
expansion. A modest outcry was expressed about such practices
as random roadblocks of drivers, mandatory drug testing of employees,
early curfews for juveniles, and police searches of garbage. These
tactics threaten the innocent and the guilty alike.
But what about the substantive rights of many of the very persons
against whom the war is waged, that is, adults who use drugs recreationally?
The war, after all, cannot really be a war on drugs, since drugs
cannot be arrested, prosecuted, or punished. The war is against
persons who use drugs. As such, the war is a civil war, fought
against the 28 million Americans who use illegal drugs annually.
And unlike previous battles in this apparently endless war, current
campaigns target casual users as well as drug abusers.
Millions of Americans have been punished---oftentimes severely---for
breaking criminal laws against the recreational use of drugs.
A majority of these persons have been punished simply for drug
possession and use. If existing statutes turn out to violate their
moral rights, the cumulative injustice is among the greatest in
American history. Yet neither the public nor the intellectual
community has expressed much sympathy for the plight of drug users
who are prosecuted and convicted. I believe that such sympathy
is long overdue. No laws enforced by such harsh punishments rest
on a more flimsy rationale than those prohibiting the use of recreational
drugs.
The very suggestion that adults may have a moral right to use
drugs for recreational purposes is bound to strike many readers
as ludicrous. I offer three quick responses to persons who share
this initial reaction. First, proposals to countenance new and
unfamiliar rights are typically greeted with disdain and ridicule.
The moral rights of women and blacks were recognized reluctantly.
Second, the right to use drugs recreationally is not really new.
Less than a century ago, few commentators thought that the state
had the authority to prohibit the use of recreational drugs. Finally,
the issue of whether a moral right should be recognized depends
on philosophical argument, not consensus. If belief in this right
is outrageous, its existence should be easy to refute.
I pursue two closely related projects in this book's four chapters.
The first is an exercise in moral and legal theory, involving
an attempt to clarify the limits of the criminal law. I seek to
answer the following questions. Does the state have the legitimate
authority to punish adults who use drugs recreationally? If so,
for what reason(s)? May the state punish persons for using any
drug recreationally? What properties must a hypothetical drug
possess before the state has the authority to prohibit it?
My second project applies the theoretical conclusions I reach.
I attempt to identify the existing recreational drugs that satisfy
or fail to satisfy the criteria for criminalization I have described.
Thus I seek to determine whether laws against the use of actual
recreational drugs violate moral rights. This project is more
tenuous, and my conclusions are more qualified. Some of the criteria
for criminalization are vague, imprecise, and hard to apply to
particular cases. Moreover, the empirical data about drugs and
drug use on which I rely are inconclusive and subject to constant
challenge and revision. No factual claim I make about a particular
drug is beyond controversy. Although important progress has been
made, we still have much to learn about drugs and drug users.
Still, I hazard any number of observations about the justifiability
of criminalizing the use of existing recreational drugs. Much
of my attention is focused on heroin and cocaine (crack and powder),
since many drug prohibitionists believe them to be our greatest
problems. If adults have a moral right to use heroin and cocaine,
they probably have a moral right to use most or all other existing
recreational drugs.
I attempt to describe what a drug would have to be like before
adults would have a moral right to use it for recreational purposes
and what a drug would have to be like before adults would not
have a moral right to use it for recreational purposes. On the
basis of the evidence I will cite, I conclude that a strong case
can be made that the use of most or perhaps all existing recreational
drugs should be permitted. This does not imply that adults would
have a moral right to use any conceivable drug recreationally;
the prohibition of drug use is not inevitably beyond legitimate
state authority. Someday a recreational drug might be created
that the state would have compelling reasons to prohibit. However,
I am skeptical that such a recreational drug exists today.
Few philosophers have addressed either the theoretical or the
practical questions I raise here. Despite the growing attention
contemporary philosophers purport to pay to current moral and
legal issues, almost all of their focus has been directed to a
very few matters, usually involving life and death. Discussions
of abortion, euthanasia, capital punishment, and animal rights
tend to dominate the philosophical landscape. The scant literature
on the moral status of recreational drug use is greatly oversimplified.
Much of it defends one or another extreme position. Commentators
believe either that the prohibition of drugs is not the business
of government or, more often, that drugs are a scourge that no
responsible state would tolerate. I reject both of these extremes
in favor of a more moderate position.
In the first three chapters, I assess the justifiability of prohibiting
the recreational use of drugs altogether. Other than caffeine,
alcohol, and tobacco, the recreational use of drugs is almost
totally proscribed throughout America today. I critically examine
what can be said for and against these general laws. In Chapter
4 I investigate what restrictions may be placed on recreational
drug use if a total ban is indefensible.
My approach to these issues makes frequent reference to other
recreational activities that I compare and contrast with drug
use. One reason persons are confused about this issue is that
drug use is treated as sui generis. But drug use is similar
to, and yet dissimilar from, any number of other recreational
activities about which most Americans have strong feelings. Clear
thinking about the rights of drug users is facilitated by exploring
these similarities and differences.
I will proceed as far as possible without immediately distinguishing
between the several different kinds of drugs. An alternative to
my approach would begin by sorting drugs into different categories,
depending upon their pharmacological properties, and discussing
each drug separately. This organizational device might seem more
likely to yield valuable insights. The arguments for and against
the legalization of caffeine and heroin may appear to differ so
radically that little progress can be made by assimilating them.
Nonetheless, a surprising number of the arguments for and against
prohibitions of recreational drug use can be evaluated without
attending to the differences between various drugs. Of course,
I will note these differences at the several places they become
important.
My arguments make use of pharmacological data about the effects
of drugs and, to a greater extent, of sociological evidence about
drug users. There are good reasons to pay more attention to sociology
than to pharmacology. The effects of drugs on users and nonusers
is a function of a complex set of variables, of which pharmacology
is only one. Evidence about how recreational drugs are actually
used by human beings in the real world---and not, for example,
by rats in laboratories---provides the most reliable perspective.
Conclusions drawn from this data are surprising. Even well-informed
Americans tend to have a distorted stereotype of drugs and drug
users. As a result, bad arguments in favor of criminal legislation
prohibiting recreational drug use appear better than they are,
whereas more respectable arguments appear virtually unassailable.
I am concerned to understand the best principled reasons for denying
that adults have a moral right to use any or all recreational
drugs. No doubt I will omit a discussion of several such reasons.
Some of these reasons are foolish: It is hard to resist the temptation
to respond to them, if only to indicate how nonsensical some of
the rhetoric of drug prohibitionists has been. For example, I
do not take seriously the suggestion that laws against recreational
drug use are needed to stop the growth of satanic cults. Other
reasons I will neglect are not so foolish. For example, I will
not respond to the objection that persons have no moral rights
at all, or that they have only those moral rights that the state
chooses to give them. Moral argument must begin somewhere, and
mine begins with the assumption that persons have moral rights
against the state.
I do not attempt to derive the moral rights of drug users from
a single, simple principle. Nor do I begin with a theory about
the limited role of state authority and conclude that the prohibition
of drug use lies beyond its scope. In fact, I will have almost
nothing to say about the foundations of the moral rights I presuppose.
This neglect may disappoint philosophers who are unpersuaded by
anything less than a comprehensive moral theory in which rights
are ultimately justified. I fear that presenting such a theory
would detract more than it would add. Anyone who is antagonistic
toward my philosophical foundation would be likely to resist the
edifice I build upon it. I hope that the assumptions I make and
the inferences I draw from them, are congenial to philosophers
who may disagree radically about the deeper foundational issues
I try to avoid. My arguments should appeal both to libertarians
and to those who share the ideal of an activist government with
the authority to cope with a wide range of social problems. The
foundations of political authority need not be challenged to appreciate
the weakness of the case in favor of criminal laws against the
recreational use of drugs.
I will not discuss the very real possibility that the prohibition
of drug use should not be understood in rational terms. Some commentators
have suggested that the war on drugs is largely symbolic, serving
to express the anxiety that authorities with political power feel
toward persons who are deviant and unconventional. I am not especially
interested in the psychology of drug prohibitionists. To suppose
that drug laws cannot withstand rational scrutiny concedes what
I believe must be demonstrated. I trust that no one is prepared
to argue that the symbolism of the drug war serves to justify
it.
For two reasons, I approach this project with modest expectations
about my ability to change the minds of those who are firmly opposed
to any suggestion that adults may have a moral right to use drugs
recreationally. First, since my arguments depend on a balancing
of several factors, reasonable minds can and will differ about
how these factors should be weighed. Moral and legal argument
is difficult because it often requires a balancing of incommensurables.
Second, for reasons that are deep and mysterious, this topic is
among a small handful of issues that seem almost immune to rational
debate. One might as well attempt to shake the confidence of a
fundamentalist about the existence of God.
Nor do I anticipate sparking an interest in legislative reform.
The current political climate is unfavorable to the decriminalization
of any recreational drugs. Although political climates have been
known to change rapidly, a real debate on the issue of drug decriminalization
would be likely to polarize the country even more divisively than
the abortion controversy. In the meantime, I appeal to those whose
capacity to remain open-minded is not constrained by their need
to be reelected.
In defending a moderate position about whether adults have a moral
right to use drugs recreationally, my arguments necessarily become
somewhat complex. I draw lines in new and unfamiliar places. This
complexity creates three concerns. First, it might discourage
and frustrate persons who are initially interested in the topic
but who hope for simple solutions. If the problem were easy, reasonable
minds would not differ about it. Second, clear and easily applied
answers to the questions I raise are not forthcoming. At no time
do I pretend to have said the last word about a particular argument
for or against drug prohibitions. Finally, the tone of my discussion
is academic and serious. I am reminded of a comment made by a
student who evaluated a course entitled "Philosophy and Sex."
The professor treated this topic with the serious care it deserves,
but the course disappointed many of the students who enrolled
in it. One complained: "I never knew sex could be so dull."
I hope that my attempt to provide a serious assessment of the
moral rights of recreational drug users does not give rise to
a similar reaction. I know of no better way to make a topic exciting
than to treat it with philosophical sophistication.
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