Edited and written by David Gordon, senior fellow of the Mises Institute and author of four books and thousands of essays.

Prohibiting Liberty

The Legalization of Drugs

Douglas Husak and Peter de Marneffe

Cambridge University Press, 2005

xiv + 204 pgs.

This book is part of the valuable series For And Against, in which two philosophers debate public policy issues. Husak argues that the possession and use of so-called dangerous drugs such as heroin and cocaine should not be criminal offenses. He is also sympathetic to making legal the production and sale of these drugs, but he devotes his main attention to the former topic. By contrast, for de Marneffe the issue of legalization is primary. He maintains that production and sale of certain drugs—he concentrates on heroin—should not be legal. He does not here defend "the criminalization of heroin use, but only the criminalization of the manufacture and sale of heroin and for the possession of quantities above a certain size, a gram, say" (p. 129). I shall concentrate on de Marneffe’s contribution: Husak’s excellent essay summarizes and extends his Legalize This! The Case for Decriminializing Drugs (Verso Books, 2002), which I have addressed on another occasion. 1

De Marneffe’s argument against legalizing heroin and similar drugs depends on a plausible assumption. If drugs were legal, their prices would fall, since the heavy costs of the black market would no longer have to be borne. If so, we can expect that consumption and abuse of these drugs would rise.

It is a particular sort of abuse that concerns him and underlies his case for prohibition. Heroin "offers a unique and very intense form of pleasure" (p. 112). This fact generates a social problem because taking the drug "has the effect on some people of sharply depressing their motivation to achieve worthwhile goals and to meet their responsibilities and commitments to others, to go to school or go to work, for example, or to take care of their children" (p. 112).

De Marneffe has in mind especially teenagers and young adults: given the intense and immediate gratification that heroin offers they may find themselves unable to summon the willpower required to concentrate on their studies and prepare for their future lives. They may as a result "lose" a decade or more of their lives and as a result find themselves irretrievably at a disadvantage in obtaining satisfactory jobs. By no means does de Marneffe contend that all, or even most, young adults who take heroin will fall into this pattern. But a significant number will do so: and this suffices to justify prohibition of the drug.

One might at first think that de Marneffe’s argument is easily turned aside. Is he not saying that the harm that taking the drug causes outweighs the pleasure that consumers of the drug obtain from it, together with the harms to those penalized for drug offenses? Regardless of whether he is right about this, one might think, is he not implicitly assuming the truth of utilitarianism? Since, in his view, the harm to the young adults counts for more than the pleasure of the users and the harm to the penalized, we maximize utility by prohibiting the drug.

But if this is de Marneffe’s argument, is he not at once vulnerable to the well-known difficulties of that moral view? Utilitarianism, as Rawls famously remarked, does not take seriously the separation of persons. Well-known cases throw into question the goal of maximizing total utility. A utilitarian might have to support, e.g., killing an innocent man if this would assuage an unruly mob. De Marneffe seems caught in the same false calculus; some—the users who do not abuse the drug and drug sellers caught in the law’s net—must be sacrificed so that others—the young adults at risk—can benefit.

De Marneffe responds by denying that his argument rests on utilitarianism. He knows full well the moral importance of individuals but claims that his position gives this adequate recognition. In claiming that harm of one sort outweighs benefits and harms of another, his argument does not claim that "happiness will be maximized in the aggregate by heroin prohibition. It is an individualistic argument that claims that the worst risk to some individual under heroin legalization is worse than the risk to some individual under prohibition, provided that the penalty structure is gradual and proportionate" (p. 125).

De Marneffe’s view fails for the same reason that dooms utilitarianism. He permits some people to be harmed in order to benefit others. Those who wish to buy or sell the forbidden drugs are forbidden to do so, because de Marneffe judges that the harm to them is less severe than the harm that some drug users would suffer in a legal drug market. Though he successfully distinguishes his view from utilitarianism, he has not answered the objection at all. Libertarians think that in order to avoid unacceptably using one person for the benefit of another, coercion against those who do not themselves initiate coercion must be totally ruled out. De Marneffe obviously disagrees with this conception of individual rights, but he offers no discussion of what is wrong with it. Rothbard and Nozick might never have written a line.

De Marneffe offers no theoretical defense of his harm principle. Why does he think that state intervention is justifiable whenever this minimizes the harm to some one? He does not tell us but apparently thinks that we will find his principle intuitively evident once we learn of it. Further, he offers no basis for weighting harms: this too is a matter of case-by-case intuitions. To be fair to him, though, Husak does not offer a theoretical framework for his views either: he simply weights harms and benefits differently from de Marneffe.2

Some readers may think that de Marneffe’s view can be swiftly set aside. He wants us to weigh the harms to people under legalization and prohibition; but do we not know from Austrian economics that interpersonal comparisons of utility are impossible? De Marneffe has thus set a task that that cannot be fulfilled. But I do not think that this tempting refutation works. De Marneffe’s judgments of harms are not value-free utility comparisons: they reflect his own opinions about what is morally worse. Austrian economics does not rule them out.

Even if we take de Marneffe’s intuitionist moral methodology as it stands, though, his case for prohibition is weak. What exactly is the harm he wishes to guard against? It is not, as one might suspect, that young people will be so entrapped by the use of heroin that they cannot stop using it, or can do so only with great difficulty. Neither is the harm in question that the user’s personality will suffer destruction. Quite the contrary, after a very useful discussion of various meanings of addiction, he rejects these notions: "Some may believe . . . [that] once a person uses heroin, whatever his age, he is ‘hooked’ because he cannot stop using it without agony, and because habitual heroin use turns a person into a zombie with no capacity for genuine self-direction . . . a large proportion of those who use the drug do not develop a habit . . . those who develop a habit may nonetheless stop without great suffering (the discomfort involved in kicking a habit is commonly likened to having the flu for a few days). . . . Although habitual heroin use can be bad for a person in depressing his motivation, it does not turn a person into a zombie whose capacities for rational self-direction are no longer functioning at all" (p. 153).

Once more, the harm he has in mind is only that some young adults may make poor choices for their future lives, because legalization is apt to make heroin more readily available. They can later repent their folly but they have wasted time; "heavy drug use during this crucial stage of a person’s development will close opportunities that it will be difficult to reopen later on" (p. 117).

And it is not even all of this group that inclines our author to favor prohibition. "If every child were rich or highly talented, the consequences of increased heroin abuse among adolescents might not be so bad. Teenage drug abuse might set some people back a bit, but, if they are rich, they will always have the opportunity to reapply themselves to their education, and, if they are gifted, they will always have talents for which there is a high demand" (p. 117). Those not in either of these favored categories may have to exert "extraordinary effort" in order to catch up. It is this inequality, then, that at bottom drives de Marneffe’s quest: everyone’s liberty must be restricted because otherwise a number of poor, untalented drug users might not have the same chances as more fortunate users. Further, de Marneffe acknowledges that even if drugs are prohibited, the poor and untalented who obtain these drugs illegally may suffer the untoward consequences he fears. It is only that he thinks there will be more of these unfortunates under a system of liberty: it is for this that everyone’s freedom is to be sacrificed. This is egalitarianism with a vengeance.

How bad is the harm that de Marneffe seeks to avert? Husak points out that little evidence supports the claim that drugs like heroin adversely affect substantial numbers of adolescents: "How bad are drugs for underage users?. . . Longitudinal studies provide the best possible evidence about the effects of drugs on adolescents . . . these effects vary enormously. The life of most adults was relatively unaffected; that of a small number was devastated. . . . If illicit drug use were really so bad for adolescents, one would expect that those who used them would turn out to be significantly worse as adults than comparably aged individuals who abstained. But the studies do not confirm this expectation. . . . By the time they become young adults, most of these subjects have stopped using illegal drugs" (pp. 61–62, emphasis removed).

De Marneffe would probably respond that according to his principle, the harms suffered by only a few suffice to justify prohibition. I venture to suggest that that our considered moral judgments, the standard by which de Marneffe operates, do not support universal prohibition to protect a small group. I exclude the views of libertarians here; I do not think that most non-libertarians would endorse a principle as restrictive as this.

Indeed our considered judgments do not support restriction even where substantial numbers are harmed when a substance is legally available. What about prohibition of alcohol? The evidence that abuse of alcohol blights certain lives is far stronger than de Marneffe’s conjectures about the abuse of heroin by poor and untalented teenagers. But do not most people reject the Prohibition Amendment as an undue restriction on personal freedom? Can de Marneffe then appeal to our considered moral judgments to support his method for weighting harms? Will he say that people’s rejection of prohibition does not reflect considered moral judgments? Why should we take this view of these judgments?

De Marneffe is well aware of the Prohibition Amendment, but he does not fully grasp the difficulty it presents for his argument. He suggests a number of differences between prohibiting alcohol and heroin but agrees that "if heroin prohibition can be justified by the kind of argument that I [de Marneffe] have given, arguably alcohol prohibition is justifiable too. . . . Some may take this to constitute an objection to this approach to rights, but, not surprisingly, I do not. To the contrary, if alcohol prohibition were justifiable in accordance with the individualistic principle of sufficient reason [his harm principle explained earlier], then, in my view, the policy would not violate anyone’s moral rights" (p. 176).

His consistency is admirable, but he misses the essential. If de Marneffe’s harm principle fails to account for our judgment that prohibition unduly restricts liberty, then it does not account for all of our considered moral judgments.3 But just the appeal to these judgments is what is supposed to justify the principle. We are supposed to see, on reflection, that the principle is true. In making this claim, de Marneffe is false to the moral facts.

Even if one accepted the harm principle, though, de Marneffe’s argument for prohibition is incomplete. What about severe harms to people that prohibition causes? What if these turn out to be worse than the harms to young adults incident on ready access to drugs? Once more, our author is well aware of these problems. He mentions, e.g., that prohibition results in a violent illegal market in drugs. Further, the illegal market has had "grave political consequences in some countries, such as Colombia and Afghanistan, where drug lords wield tremendous political influence and inflict terrible violence on those who oppose them" (pp. 120–21). And will not enforcement of prohibition put civil liberties at risk?

To these dangers, de Marneffe has a simple answer. We must have programs to alleviate these effects, e.g., aid to developing countries so that their economies do not depend on illegal drugs. It is only prohibition accompanied by supplementary programs to counter the ill effects of "straight" prohibition that he favors. Yet when he considers the problems posed by freedom, he omits consideration of anything else. Why cannot a supporter of freedom conjure into existence programs to aid youth at risk from the malign effects of drugs on motivation, in identical fashion to the way de Marneffe "solves" the problems for his policy?

1See my review in The Mises Review, Winter 2002.


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