A Libertarian View of Cannabis and Drugs
Sean Gabb
(Written early in the 21st century for a Roger Scruton publication)
The libertarian position on drugs is simply stated. People should have the right to do with themselves as they please. This necessarily includes the right to take any drugs they please – for recreation or for medication. No one else automatically has the right to interfere with such choices, unless they can be shown to involve force or fraud or some attack on the whole community that threatens its dissolution.
Taking drugs in consenting company is not an act of the first kind – it causes no one else the sort of harm against which they can legitimately demand protection. Nor is it an act of the second kind. We are told endlessly that drugs are a danger to social stability – that they lead to crime and degradation and so forth. There is no evidence for this claim.
The British past provides a compelling example. Until 1920, drug use was uncontrolled. Between 1827 and 1859, British opium consumption rose from 17,000lb to 61,000lb. Workmen mixed it in their beer. Gladstone took it in his coffee before speaking. Scott wrote The Bride of Lammermoor under its influence. Dickens and Wilkie Collins were both heavy users. Cannabis and heroin were openly on sale. There was no social collapse. There were few deaths from taking drugs. Most deaths involving opium were individual accidents, and even these were negligible – excluding suicides, 104 in 1868 and thereafter to 1901 an annual average of 95. Hardly anyone even recognised that a problem might exist.
The claim that drugs are bad for a society falls. The opposite is true. Criminalisation is bad. All the ills now blamed on drugs are more truly blamed on the illegality of drugs.
When drugs are illegal, only criminals will supply them. And when criminals are allowed to dominate an entire market, they will be able – indeed required – to form extended, permanent structures of criminality that could never otherwise exist. They will then make drugs both expensive and dirty.
Drugs will be expensive because bribes, transport inefficiencies, rewards of special risk, and so forth, all raise the costs of bringing drugs to market. Therefore much of the begging, prostitution and street crime that inconvenience Western cities.
Drugs will be dirty because illegal markets lack the usual safeguards of quality. When a can of beer is stamped “8 per cent alcohol by volume”, this does not mean anything between 0.5 and 30 per cent. Nor will caustic soda be used to make it fizzy. Brewers have too much to lose by poisoning or defrauding customers. Drug dealers can afford to be less particular.
Therefore frequent overdosing. Therefore poisonous additives. Therefore, the frequent transmission of aids even today by the sharing of dirty needles.
Moving from the costs of the crime resulting from illegality, we come to the costs of enforcement. These also are massive.
In the first place, the Police need to become a virtual Gestapo if they are to try enforcing laws that create no victim willing to complain and help in any investigation. They need powers to stop and search people and to search private homes that would never be necessary to stop things like burglary and murder. They need to get involved in entrapment schemes. They are exposed to offers of bribes frequently too large to be turned away. In one way or another, the War on Drugs leads to the corruption of every enforcement agency sent into battle.
And that War cannot be won. The British Customs and Excise have no land border to worry about. They can track every boat and aeroplane that enters British territory. They have far wider powers of investigation than the regular Police. Even so, they themselves estimate that they stop fewer than three per cent of the drugs smuggled into the United Kingdom every year.
In the second place, we have the war on money laundering. Since it is impossible to stop the import and sale of the drugs, attention has switched in recent years to stopping the profits of the trade from being enjoyed. The idea now is to confiscate these profits and use them for further investigations. However, before the money can be taken, it must be found. This requires surveillance and control over all financial transactions. Because any one of us might be a drug dealer trying to launder dirty money, we must all provide endless documentation when we open bank accounts. We are not allowed to pay in large amounts of cash without facing an inquisition from the bank clerks. Our banking details are open to official inspection virtually on demand.
Just as with drugs, the war on money laundering is also a war on freedom. In this case, it frees the authorities from the requirements of due process. The confiscations of alleged drug money are increasingly made without any pretence of a trial. In America, civil asset forfeiture, has become legalised theft of the plainest kind. In Britain, we are moving towards a similar breach of Common Law rights.
Moreover, the fact that our financial transactions can now be monitored gives the authorities an entirely new power over us. Its means of exercise are not yet in place. But we are moving fast into a world where all our purchases can be stored in a database. We can try to avoid this surveillance by using cash. But there are experiments in both Britain and America to see how anonymous cash can be replaced by cards that leave a record of every transaction.
Therefore, on the grounds both of individual freedom and of social utility, there is no argument whatever for continuing with the present War on Drugs. It is a War that benefits only criminals and a few drug enforcement agencies, and that harms every one of the rest of us, whether or not we take drugs.
Which Scruton publication was this from?
I forget. I was busy at the time, and knocked it out in about half an hour on autopilot. I’m not even sure it was published.
Good stuff never the less. I was guessing Salisbury Review. Recall when that had some notoriety?
Not the SR
You are absolutely right, since it defects no one else it should not be a legal constraint that is within the scope of the law. … And neither should normal smoking be banned in indoor spaces for exactly the same reasons which are very important to realise from that same perspective. Indeed smoking constitutes a God-given right that people have that should not have been taken away from them accordingly. It is also a right that everyone has regardless of if they do smoke or not, and in that sense they would be expected to unanamously oppose any restrictions to their civil liberties. Yet the same has not proven to be the case, and maybe that is in turn owing to a more modest level of education, and hence a more modest drive for demand of one’s rights and a reduced sense of justice and democracy within society.
You are absolutely right, since it defects no one else it should not be a legal constraint that would be within the scope of the law. … And neither should normal smoking be banned in indoor spaces for exactly the same reasons, which are very important to realise from that same perspective. Indeed smoking constitutes a God-given right that people have, that should not have been taken away from them accordingly. It is also a right that everyone has regardless of if they do smoke or not, and in that sense they would be expected to unanamously oppose any restrictions to their civil liberties. Yet the same has not proven to be the case, and maybe that is in turn owing to a more modest level of education, and hence a more modest drive for demand of one’s rights and a reduced sense of justice and of democracy within society.
Everything in Sean Gabb’s article is 100% correct. It’s impossible for anyone who calls himself a ‘libertarian’ to disagree with it. The only reservation I have however would be, if Mr Gabb (which doesn’t appear to be), were attempting to rely mainly on an argument that these drugs are not dangerous. They are dangerous. They are also addictive. And widespread legal use of them, would still cause some social problems.
That however is a problem for society. It’s not an excuse for suspending civil liberties and banning their use. As Sean Gabb points out, the ban on these drugs is causing more harm than the drugs themselves cause. Owing to the fact that drug use is still a relatively minority activity, the extent of the harm and the infringement of civil liberties associated with these drugs bans are widely underestimated. So the social damage caused by the ban isn’t widely noticed.
If alcohol and tobacco were banned there would be widespread outrage and widespread civil disobedience. The very high tax rates on tobacco is already causing some civil disobedience. Smuggling and illegal selling is now widespread. We are also all aware of the harm that alcohol prohibition caused in the USA. Prohibition promoted organised crime and caused near breakdown in law and order.
Why is alcohol and tobacco use permitted, but taking various pills banned? Many of the drugs which we ban have no capacity whatsoever to cause social problems. Abuse of things like anabolic steroids do no harm, apart from to the user.
ckitis opposes the ban on smoking in ‘indoor spaces’. Any ban on smoking in your own home would not be justified.The ban on smoking in ‘enclosed public spaces’ is justified because passive smoking injures and directly offends others who are present in the confined public space. The musician and entertainer Roy Castle for example, died of cancer owing to having been subjected to intensive passive smoking in the Clubs in which he worked. It is not satisfactory (as I have heard some complain), that it’s up to us whether we attend these public spaces whilst someone else is smoking. That puts the boot on the wrong foot. A public space is just that. A public space.
I have enjoyed going to the pub all my adult life but looking back on it, the passive smoking I encountered amounted to physical assault and harassment. One might as well say it’s up to us whether we attend an enclosed public space where someone present, as their form of recreation, is permitted to fire a gun at random, spray noxious gases over us, or shout abuse at us.
The only remaining philosophical argument in favour of banning these drugs is the one that arises from having a Social Security and Socialised Health System. It’s said that if we are to receive Social Security and NHS Care, then we must accept restrictions on our lifestyles. I reject that argument. If the State wishes to withhold NHS care or Benefits from people who’ve incapacitated themselves through drug use, that’s fine. But few of us would find that acceptable.
A more sensible approach would be to legalise these drugs, allow them to be sold only through Pharmacists, and Tax them sufficiently to pay the costs they cause to society. That’s exactly what we do with tobacco and alcohol, and it would ruin the illegal market. Dealers only sell drugs because of the huge profits they make. And tax works well with alcohol and tobacco, because there’s a rough correlation between the amount consumed and the health damage it causes.
Nowadays all prescriptions dispensed at a pharmacy are recorded on the pharmacist’s computer. So initially at least following and experimental lifting of the ban on a selection of these drugs, it might even be a good idea for the purchaser to have to nominate one pharmacist to buy his medication from, and tell the pharmacist who his GP is, so that occasional reports on what he has been purchasing are dispatched to the GP.
This, it appears to me, is a proportionate disruption of supply, and reasonable monitoring of the potentially dangerous of activities someone might be engaging in, whilst simultaneously removing the criminal element completely. It would also assist in accumulating data to see what affect this is all having. When we see the outcomes we can think about it all again, and de-regulate as far as is safe and practicable.
(i). [/quote]”The libertarian position on drugs is simply stated. People should have the right to do with themselves as they please. This necessarily includes the right to take any drugs they please – for recreation or for medication. No one else automatically has the right to interfere with such choices, unless they can be shown to involve force or fraud or some attack on the whole community that threatens its dissolution.”[unquote]
This looks like a classic liberal statement, but I have reason to doubt its quintessence. You are adopting Mill’s principle that the individual is sovereign over his own body, but your formulation of this in relation to drugs overlooks an important element of Mill’s contribution, which came to be known as the Harm Principle. You can do what you like with your own body, as long as it does not cause harm to others. Tellingly, you make no mention of that important qualification here – though the omission is clever and subtle and probably won’t be noticed by most people.
Let me ask you directly: would what you call ‘the libertarian position’ be different if it could be shown that drugs are harmful to the individual? People having the ‘right’ [I think you mean liberty] to do with themselves as they please, does not necessarily entail the ‘right’ to take any drugs they please. Some drugs are harmful and it would be foolish to partake in them. For instance, what if it could be shown that regular use of cannabis might potentially make an individual mentally-ill and dependent on others? What are the rights of that person’s relatives in such situations, as they may be left with the burden of having to care for the person? What are the rights of taxpayers, who might have to subsidise the individual’s foolishness?
What I am having difficulty with here is this belief you seem to have that individualistic ‘rights’ (I would question the term ‘rights’, but let’s not go into that now), are free-floating and have little or no coincidence with duties and responsibilities. In my view, ‘rights’, if they exist at all, can only operate in a society of self-restraint. To me, a right can only be understood in the context of corresponding responsibilities, and I think it is rather naïf to speak of a right to do this or that without any reference to wider consequences and implications. For instance, if I say I have a right to drink myself stupid, surely this can only be considered a ‘right’ of some kind if I don’t do any damage to others. The damage could be consequential as well as proximate: it’s not just that I might cause an accident, something that can be separated from the act of self-abuse itself. In drinking myself stupid, I might end up causing myself brain damage, which would turn me into a burden on others and represents a loss of my autonomy. That would be a burden on innocent others who didn’t ask for or deserve such.
Doesn’t having a right to do with yourself as you please involve a necessary and important qualification that you also have the responsibility not to inflict harm on yourself or others that might result in injury or burdens to others?
There is also the argument of autonomy and agency of the Self, which I think represents a challenge to the classical liberal position adopted by Mill. I can agree with the freedom to self-harm where this does not breach the Harm Principle, but only to the extent that it does not involve a loss of personal agency and autonomy. Anything that makes the individual less free is not liberty, even if it might resemble liberty. Legalising cannabis and other drugs resembles a pro-liberty position, but I think there is an argument that a society that legalises these drugs would be embarking on a course that erodes individual freedom rather than enhancing it.
(ii). [/quote]”The British past provides a compelling example. Until 1920, drug use was uncontrolled. Between 1827 and 1859, British opium consumption rose from 17,000lb to 61,000lb. Workmen mixed it in their beer. Gladstone took it in his coffee before speaking. Scott wrote The Bride of Lammermoor under its influence. Dickens and Wilkie Collins were both heavy users. Cannabis and heroin were openly on sale. There was no social collapse. There were few deaths from taking drugs. Most deaths involving opium were individual accidents, and even these were negligible – excluding suicides, 104 in 1868 and thereafter to 1901 an annual average of 95. Hardly anyone even recognised that a problem might exist.”[/quote]
Can you produce sources for these claims? Not that I doubt you for one moment, but these are specific claims that I think should be supported.
(iii). Regarding the points about the effect of illegality, I agree with this, but criminals would remain involved in drugs even in the event of legalisation – the only way to remove criminal involvement would be to completely deregulate drug use and allow again the free-for-all that I think existed in Britain prior to 1921.
(iv). One area of this topic that does interest me is the question of the extent to which British criminalisation and control of drugs from 1921 onwards was influenced by the United States and its emerging Prohibition movement. Even after the 1920s, Britain was comparatively liberal and operated what became known as ‘the British system’, which involved a medical rather than criminal approach to drug misuse. My understanding is that until the 1960s, the orthodox legal and medical position was to treat addiction as a disease and treat it accordingly. I wonder what motivated the so-called ‘war on drugs’ from the 1970s onwards, which I agree with the author has obviously failed and has been disastrous for individual freedom.
If recreational drugs are used too indulgently, they may cause harm to individuals. But you can say that about most things, including sugar and exercise. Protecting people from self-harm, or calling in the moral rights of third parties to outweigh those of the individuals concerned is a recipe for tyranny. Libertarianism does not offer a perfect world – only a world better than the one we have.
Information about 19th century drug use here: https://www.amazon.co.uk/Opium-People-Opiate-Century-Britain/dp/1853434132
[quote]”…or calling in the moral rights of third parties to outweigh those of the individuals concerned is a recipe for tyranny.”[unquote]
Is it? I think I’m edging towards an acceptance of libertarianism, and I can see the drugs issue is regarded as an acid test among the libertarian community, but I’m not sure I share your concept of freedom. Thus, if I am a libertarian, then I am destined to be a rather unconventional or heterodox one. One problem I have with this is the way that libertarianism is implicitly treated as a dogma. You began your essay by referring to “…the libertarian position…” and everything is framed from that starting-point. If libertarianism is about the pursuit of maximal liberty, it cannot be ideological.
But two specific points, for me, summarise the difficulty I have with what you are saying:
(i). First, I don’t accept you have fully enunciated Mill’s Harm Principle. The moral rights of third parties must include the right not to be harmed or injured as a result of my foolishness. I believe Mill was explicit on this point. Obviously it’s a matter of judgement as to what degree of risk is acceptable, and this perhaps is where our real disagreement is. In a libertarian/contractual society, the balance would be heavily in favour of individual liberty, but I would still maintain that outlawing recreational drugs can be a legitimate application of the Harm Principle (which is not to say I myself agree with criminalising the use of recreational drugs). The only caveat I would add is that any such laws, if considered desirable, should be seen for what they are: a necessary infringement of individual liberty, and as such should be lightly applied and enforced with the most minimal penalties.
(ii). Second, while Mill’s premise is cogent, I don’t accept that the Harm Principle is the last word on the matter of individual sovereignty. If, as Mills says, an individual is sovereign, then this entails responsibility on the part of the individual both to others and to himself. You seem to be framing infringements in terms of external acts upon the individual, but what about acts and omissions of the individual that impede or erode his own sovereignty, by removing his autonomy and agency through self-harm? Taking recreational drugs could fall under that heading, under certain circumstances. The ‘circumstances’ I refer to would be those, such as now, where legalisation might result in a rather amoral drug industry introducing into society what amounts to a mass-prescribed Soma. I think we have ask whether such a society would be freer. It would certainly look freer to the casual observer, but in substance are we freer if we are dependent on chemicals to keep us happy, stable, content or productive?
With the exception of one isolated incident when I was very young, I have never taken drugs. I have also refused prescriptions for various medications. I would rather confront the world as it is – for better or worse. I don’t feel less free just because I can’t legally take certain drugs that might make me feel better about myself. That wouldn’t be true freedom.
I don’t subscribe to Mill’s harm principle as he puts it, on the grounds that it is impossibly vague. But I do accept his general position, that the happiness of individuals is important, and that this is best secured by leaving them alone – and leaving them alone even when it is reasonably likely that their choices will be self-destructive.
Neil Lock has answered your question about the effect to third parties about the harm an individual may cause to himself. I would only emphasise that, while people who inebriate or otherwise harm themselves to the detriment to those who depend on them should suffer social and sometimes legal penalties, those who have no such obligations, or who meet those obligations despite their personal conduct, should be left alone. The present law makes no distinctions, but simply punishes everyone for engaging in activities that should be seen in themselves as indifferent.
When I qualify “legal penalties” with “sometimes,” I bear in mind that a strict application of this principle might lead to the punishment of cyclists or rock climbers who break their backs and can no longer support their families. The world is an imperfect place. People make mistakes. People have accidents. Libertarianism should not be seen as a recipe for perfection – only for improving on the present state of affairs.
Dr. Gabb,
I could never imagine that libertarianism – even in your capable hands – will deliver a verdant heaven on Earth.
I’ll take that as flattery. Mind you, I prefer it ironic. The real thing unsettles me by bringing to mind all my imperfections.
Would you be open to an essay from me on ‘A Libertarian Case Against Drugs’?
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