McKinnon: Issues in Political Theory 2e

Chapter 5: Liberty

Case Study: Recreational Drugs

In October 2009, David Nutt, a professor of neuropsychopharmacology, was fired by the

then-Home Secretary Alan Johnson from his position as the chief of the Advisory Council
on the Misuse of Drugs (ACMD) the expert body that provides drug-related advice to the
British government. The event that led to Nutts dismissal was the publication of a lecture
which Nutt had delivered in July of 2009, in which he presented evidence to the effect that
alcohol and tobacco are more harmful than some illegal drugs, including LSD, ecstasy,
and cannabis. Nutts sacking followed repeated run-ins with government figures, including
one notable controversy over his publication of a paper comparing the risks associated
with ecstasy use and horse-riding, and including a tongue-in-cheek warning about the
dangers of equasy that is, addiction to horse-riding (Nutt, 2009). On that occasion, Nutt
was told by Jacqui Smith (Johnsons predecessor as Home Secretary) to apologise for his
remarks to the families of the victims of ecstasy (Hope, 2009). On the occasion of his
sacking, a spokesman for the Home Office was quoted in the British press (Tran, 2009) as
saying that Nutts writings about the risks of recreational drug-taking damage efforts to
give the public clear messages about the dangers of drugs. The government, the
spokesman continued, was determined to crack down on all illegal substances and
minimise their harm to health and society as a whole.
For many critics, the sacking of David Nutt was merely one particularly stark
reminder that government policy is determined by naked political calculations, as opposed
to principled and reasonable engagement with the scientific evidence. As the government
spokesman quoted above suggested, British policy on drugs is ostensibly based on the
principle of minimising the harms associated with recreational drug use. If so, one might
expect that the severity of the penalties imposed for the possession and sale of particular
substances would be closely informed by expert advice as to their relative harmfulness.
But in fact, in setting those penalties, the government does not consistently follow such
advice. Of particular note is the case of cannabis. In 2004, cannabis was reclassified in
the UK from a class B drug down to class C, thereby making possession and sale a less
serious offence. This move followed the recommendations of the ACMD. But it remained
politically contentious, and in 2008 it was announced that cannabis would be restored to
class B again, against ACMD advice. Far from following the scientific evidence
regarding the respective harms and dangers of recreational drugs, then, critics aver that
British drug policy is decided on the basis of a mixture of prejudice against certain
substances and the people who use them, and a desire on the part of politicians to pander
to parents who are preoccupied with the idea of their children experimenting with drugs.
And that claim can only look more plausible once we have also taken into consideration
comparisons between the risks associated with some illegal drugs and two that remain
legal alcohol and tobacco. Jonathan Wolff (2011, 62) notes, for instance, that alcohol

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 McKinnon: Issues in Political Theory 2e

use is somewhere around 200 times more likely to kill than ecstasy use, despite the fact
that ecstasy is often cut with additional toxic substances by dealers.
The foregoing criticism takes issue with current drug policy on grounds of
inconsistency with its avowed goal of minimising the harm of drugs. The claim, to repeat,
is that the most serious penalties are not reserved for the use and supply of the most
dangerous drugs, as the governments own guiding principles suggest that they should.
For if they were, one would expect that alcohol in particular would be illegal. Meanwhile,
the inadequacy of current drugs policy, not only in Britain but in all developed societies,
seems if anything even more pronounced from the perspective of liberal political
philosophy. For, as we saw in Jonathan Rileys chapter on Liberty, one particularly
prominent and influential strand of thought within that tradition follows John Stuart Mill in
holding that state interference in peoples choices ought only to occur in the name of
preventing non-consensual harm to others, as opposed to the harms that persons do
either to themselves or to consenting third parties. At first sight, the Millian view implies
that governments ought to adopt a radical policy of wholesale drug legalisation that is, of
permitting both the use of, and a market in, recreational drugs. Indeed, on the Millian
view, one might think that the scientific debate regarding the relative dangers of particular
drugs is merely a red herring. For whether the dangers are great or small seems
irrelevant, if the dangers are to oneself, and voluntarily undergone. Moreover, although it
is true that, under current conditions, purchasing illegal drugs such as cocaine means
supporting an illicit trade that causes serious harms to third parties around the world, and
which is closely connected to human rights violations such as people trafficking, this point
seems to be grist to the mill of the pro-legalisation lobby (since it is prohibition that causes
the existence of this harmful trade in the first place). In this case study we will examine
liberal views on laws pertaining to recreational drug-taking in more depth. Perhaps there
are philosophical grounds for retaining at least some restrictions on the availability and
use of recreational drug after all.

Liberty and drugs

To reiterate, the Millian liberal appears on first inspection to be committed to the wholesale
legalisation of recreational drugs. Even if that is true, however, it is not the same as
saying that the Millian state cannot take an interest in whether its citizens harm
themselves using drugs, or take steps short of punishing them to minimise the risk of their
doing so. Moreover, the Millian case for drug law liberalisation may not be as clear-cut as
it first appears. Let us look into these issues in more detail.
First, Millian liberalism is anti-paternalistic, in the sense that it forbids the state from
punishing its citizens to discourage them from knowingly and voluntarily harming
themselves. But Joel Feinberg (1989), a Millian theorist of the criminal law, has
contrasted this kind of hard paternalism with what he calls soft paternalism, which does
not, he argues, contravene Mills civil libertarianism. Soft paternalism is the practice of the
states intervening to ensure that self-harmers are acting rationally, and in full knowledge

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 McKinnon: Issues in Political Theory 2e

of the consequences of their actions. It can take such forms as public education
campaigns, adding warning labels to product packaging, prohibiting the sale of harmful
substances to those whose rationality and judgement is unreliable (such as the young and
mentally disabled), enforcing mandatory cooling-off periods before a person is allowed to
make a choice in some matter, and requiring people to demonstrate their competence by
applying for a license before being permitted to engage in some hazardous activity.
According to the soft paternalist, the graver the risks, the more justified we are in
intervening to content ourselves that an agent is acting knowingly and deliberately.
Feinberg argues that, because soft paternalisms aim is to ensure that persons undergo
risks to themselves autonomously, rather than to interfere with their freely-made choices,
soft paternalism is, from a Millian perspective, really no kind of paternalism at all. A Millian
could, then, attempt to assuage at least some fears about the consequences of drug law
liberalisation by pointing out that it is compatible with soft paternalist strategies designed
to minimise the risks of persons non-voluntarily or unwittingly harming themselves.
Second, however, is it really the case that the consistent Millian must be in favour
of the legalisation of drugs across the board? The claim that she must seems to assume
that recreational drug use has no substantial harmful effects on third parties or, at any
rate, that whatever harmful effects it does have are outweighed by the benefits of a
permissive policy (note that Mills view was not that any and all harmful or risky conduct
can justifiably be banned, but rather that the appropriateness of a ban is indicated where
conduct is both harmful and devoid of any overriding advantages). Millians sometimes
point out that behaviours that at first sight appear only self-harming can, on further
inspection, be prohibited on grounds of harm to others. This is fortunate, because at least
some such prohibitions seem manifestly appropriate, such that it would stretch the
credibility of Millian liberalism if it could not make room for them. To give an example, it is
sometimes suggested that laws mandating the use of seatbelts can be justified on
grounds that they minimise the risks to pedestrians of their being mentally scarred by
witnessing horrific road accidents. Can we, in a similar vein, point to any substantial third-
party harms that are caused by recreational drug use, and that could be reduced by
prohibition?
The destruction of family life that occurs when ones partner or parent becomes a
drug addict might be one such harm. Others could include the harmful effects of drug-
related crime, and the risks posed by those who drive or operate heavy machinery under
the influence of drugs. Now, of course, someone might object here that what we should
do is punish not the consumption and sale of the drugs themselves, but rather the harmful
conduct, just as we currently punish drunken wife beaters and drunk drivers, but not
drinkers per se. Yet, the analogy with alcohol may not automatically work to the
advantage of the advocate of drug law liberalisation here. For it could be replied that, in
light of the sheer scale of the social ills caused by alcohol, it is clear that our existing
alcohol policy has failed, and thus that we should not try to replicate it in the case of

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 McKinnon: Issues in Political Theory 2e

recreational drugs. Instead, we should learn the lesson of alcohol, and continue to
prohibit drugs, in order to more effectively avert harm to third parties.
Now, whether or not this last argument succeeds depends in part on empirical
evidence about the strength of the link between drug use and the prevalence of various
social harms. It also depends on moral judgements for instance, judgements as to how
much weight we ought to give to the goal of eliminating the aforementioned sorts of social
harm, as against the goal of realising the benefits that drug legalisation stands to bring
(including, principally, the public money saved on incarcerating drug users). To advert to
some other potential moral arguments, someone might think that, independent of any
considerations about the balance of costs and benefits, to prohibit all drug use in order to
prevent some people from causing social harms would be unfair to responsible drug
users, who ought not to have to have their liberty restricted because of what others might
do. Other replies are no doubt possible too. But however the case for continued
prohibition that we canvassed two paragraphs ago fares, it appears that overcoming it will
not be as simple as appealing to the Millian injunction against hard paternalism.

Punishment
Above we considered the question whether recreational drugs ought to remain illegal.
Suppose we believe that they should. This still leaves unresolved the question of what
form prohibition should take, and of how serious the penalties for violations of it should be.
It would not be incoherent to think that recreational drugs ought to be banned, and also to
think that individual drug users ought not to be punished (or, at least, that they ought not
to receive the extremely serious jail tariffs that they currently do, which can destroy
careers and lives). Legal theorist Douglas Husak (2005) contends that, whether or not we
think that the overall goal of society ought to be to minimise drug use, and whether or not
we think that drug dealers should attract penalties, we should still all be able to agree that
it is totally unjust to subject recreational drug users to severe punishment, in the name of
disincentivising conduct that is generally only directly hazardous to themselves (his view is
that the risks of drug-taking to third parties are greatly exaggerated). For it is a
foundational principle of justice, he continues, that punishment be deserved. But there is
no sense in which one can be said to deserve punishment for the mere act of ingesting a
mood-altering, somewhat hazardous chemical.
This challenge is likely strike many as powerful. And even others, who think that
some disincentivising penalties ought to apply to drug use, may struggle to justify the
serious mismatch between the gravity of punishment for drug-taking on the one hand,
and, say, failure to wear a seatbelt on the other (which is punishable by a fine only). The
politicians responsible for our drug laws, of course, often seem impervious to philosophical
reasoning, and in particular to charges of inconsistency (Wolff, 2011, 82). In the end,
though, drug law reform may become inevitable not as a result of the weight of any
philosophical arguments, but rather because widespread, noticeable flouting of the law
results in its being seen as discredited. Thus, our existing drug laws may go the way of

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 McKinnon: Issues in Political Theory 2e

American alcohol prohibition before them. In the meantime, however, a great many
people will continue to receive substantial jail terms for engaging in an activity that they
sincerely believe is nobodys business but their own.

References

Feinberg, J. (1989), Harm to Self: The Moral Limits of the Criminal Law, Volume III, New
York: Oxford University Press.

Hope, C., Home Office's Drugs Adviser Apologises for Saying Ecstasy is no more
Dangerous than Riding a Horse, The Telegraph, 09 February 2009.

Husak, D. and de Marneffe, P. (2005), The Legalization of Drugs: For and Against,
Cambridge: Cambridge University Press.

Nutt, D. (2009) Equasy: An Overlooked Addiction with Implications for the Current Debate
on Drug Harms, Journal of Psychopharmacology 23, pp. 3-5.

Tran, M., Government Advisor David Nutt Sacked, The Guardian, 30 October 2009.

Wolff, J. (2011), Ethics and Public Policy: A Philosophical Inquiry, Abingdon: Routledge.

Oxford University Press, 2012. All rights reserved.