Many libertarians, and even some small-government conservatives, in Canada would also like to legalize, or at least, decriminalize, the possession and use of recreational drugs, particularly, marijuana, and to regulate their production and trade. When asked to explain why, they typically offer one or more of three reasons:
- That the decision to use recreational drugs is a personal moral decision that the government has no business interfering in. Government, they say, has no impose anyone's moral code on anyone else;
- That it will reduce the violence currently associated with the drug trade which, it is alleged, is the result of its current illegal status; and
- That society's attitude toward recreational drugs has become more tolerant over the years and the law should be changed to reflect this new attitude.
Of course, these are not the only arguments made in favour of legalizing recreational drugs, but they are in my experience, the ones most often cited, not to mention the ones most widely accepted.
They are also, in my opinion, not very convincing.
Let's begin with the conviction that government has no right to impose anyone's moral beliefs on anyone else. This view has become deeply entrenched in judicial and legislative circles, not just in Canada, but throughout western society as a whole, and it has been used to justify a number of controversial legal reforms in recent years. But how sound is the argument, really?
It is generally accepted that the rule of law is a defining characteristic of all free societies. "Rule of Law" is the principle that society - using the government as its agent - has the right, through the democratic process, to set standards of behaviour that apply equally to all of its members, and that all of its members - including government - must obey or face punishment. We may debate whether certain standards and the laws that reflect them are reasonable in a free and democratic society, but that is a far cry from arguing in principle that society, through government, has no right to establish and enforce standards whatsoever.
All laws either prohibit perceived bad behaviour, or they compel perceived good behaviour, based on the prevailing views of right and wrong, that is to say the prevailing moral views, of society at any given time. Indeed, the very idea that freedom is "good" is itself a moral view that laws limiting the power and scope of government impose on those who may hold a different opinion. Saying that government has no right to impose morality is not just an adolescent argument against some laws, it is an argument against all laws, and because all free societies are dependent on the rule of law preserve their freedom, it is, at its most basic level, an argument against liberty itself.
The second reason cited in favour of legalization of recreation drugs, that their decriminalization will result in the reduction or elimination of violence associated with their trade, is a neat theory, charming even, but it is one based on wishful thinking and conjecture rather than hard evidence, or any evidence for that matter.
It is worth noting that the illegal trade in legal, that is to say prescription, drugs is a booming business in our society, controlled largely by - you guessed it - violent criminal gangs. And then there is the practical issue of how to control the manufacture and sale of drugs such as crystal meth or crack cocaine, to name a couple of examples. Are we really going to create guidelines and issue licenses for the manufacture and sale of these?
Of course not, nor to their credit are Mr. Trudeau and his supporters suggesting that we should. Their goal is the legalization of so-called "soft" drugs like marijuana, which they contend is less dangerous than drugs like crystal meth or crack cocaine. Setting aside for the moment the question of whether or not this is in fact true, the problem with taking this position is it undermines its own premise, i.e. that criminal violence can and should be dealt with through legalization. If that were so, it would obviously be true with all illegal drugs, not just marijuana, rendering the decriminalization of that drug alone, as a matter of policy, pointless.
That leaves the argument that society's attitude toward drug use has changed, therefore the law should be changed to reflect that new attitude. Before addressing this argument though, it may be worth while to consider the merit of some of the arguments in favour of retaining the legal status quo to see how well they comport to classical liberal principles.
In his Second Treatise on Government, John Locke - one of history's greatest classical liberal thinkers and political theoreticians - wrote that the purpose of law is "not to restrain, but to preserve and enlarge freedom." He observed that "where there is no law, there is no freedom." Locke defined liberty as "freedom from restraint or violence from others." Critically, however, he pointed out that "this does not mean the freedom of any individual to do as he pleases," posing the rhetorical question: ",,.who could be free where every other man's humour (mood) might domineer over him?"
Based on these criteria, it might seem that Locke would oppose the enactment of anti-drug laws. This conclusion is possible, however, if one applies the principles he articulates only to the possession and use of the drugs in question. Apply those very same principles to their manufacture and sale, however, and the conclusion is very different.
Let us assume for the sake of argument that Locke would agree that the initial decision to purchase and use recreational drugs is a personal choice that should not be restricted by law. It does not follow automatically from there that the decision to manufacture and sell these drugs also falls into the same category. On the contrary, given the considerable physical harm done to the consumer through the use of these products, Locke would surely regard their manufacture and sale as a form of "violence from others" that government has, not just the right, but the duty, to constrain.
What's more, even if he did consider the original decision to use drugs a legitimate personal choice, Locke would likely conclude that the dependency induced by many of these drugs constitutes an unjustified, and therefore unlawful, restraint on the liberty of the user which government, once again, has the duty to act against.
Then why not punish the producers and distributors and leave the consumers alone since they are only exercising their inherent right to make personal choices, including bad ones? Or to put the question in the context of the current public debate - why not preserve laws against production and distribution of dangerous drugs while decriminalizing their purchase and use?
The answer is quite simple. If the production and distribution of such drugs remains a crime, then their purchase and consumption must also remain a crime since it is the purchase and consumption that fund the production and distribution in the first place. As for the notion that consumers are just "exercising their inherent right to make personal choices, including bad ones," it is worth re-iterating that there is no such unconstrained right in a free society in either liberal or libertarian political theory. I repeat the words of Locke: liberty "does not mean the freedom of any individual to do as he pleases..." Indeed, given the indispensable role their money plays to the maintenance, and more importantly the expansion, of the drug trade, a case can be made that consumers are essential and voluntary participants in the entire criminal enterprise; purveyors of the very "violence from others" that Locke asserts government is obliged to act against.
Having said all of this, most thinking people will agree, regardless of their political persuasion, that there is indeed a qualitative difference between the personal use of drugs and their manufacture and distribution, a difference that would justify treating one group - users - more leniently than the other, especially if those users are addicted to the chemical they are using. But that, you may be surprised to learn, is exactly what the law does now. While possessing small quantities of banned drugs for personal use remains a crime in Canada, the penalties prescribed for this are light relative to those imposed on producers and distributors. What's more, the criminal justice system exercises a great deal of discretion when it comes to charging and prosecuting users. Virtually nobody in Canada is prosecuted these days for simple possession. If they are, it is invariably in combination with other criminal charges stemming from illegal activities that are far more serious.
In short, and in response to the issue I left unaddressed above, Canada's criminal justice system can and already does reflect changes in society's attitude toward the use of recreational drugs. It provides the police and the courts with the flexibility to treat each individual case as unique, and it does this, quite sensibly, while maintaining both the practical and theoretical integrity of the law.
This brings us to the subject of so-called "soft" drugs, like marijuana.
The issue of marijuana is not as simple as pro-legalization activists would have us believe. True, the harmful effects of its regular use are less acute than those of other banned substances, but that hardly means that that use is benign. In the first place, there is every reason to believe that, like cigarettes, increased long-term regular use of marijuana will lead to higher rates of cancer. There is also emerging evidence linking its regular use to the development of schizophrenia later in life. Granted, that evidence has not yet been accepted as conclusive, but there is enough of it that, if marijuana were currently legal and readily available, the public - led, I suspect, by many of the same contrarian activists today arguing for its legalization - would be demanding that it be pulled from the shelves, and that its producers be held accountable for endangering the health of unwitting consumers.
A second important consideration with marijuana use is the effect its second-hand smoke has on others. In addition to the harm done by second-hand cigarette smoke, second-hand marijuana smoke has a psychotropic effect. In other words, quite unlike cigarettes and alcohol, or even other drugs, marijuana use harms others by inducing unwanted intoxication in those exposed to it environmentally. The intoxication may be mild, but it is real nonetheless, and its long-term health implications have yet to be understood.
Finally, there is the largely un-explored link between increased marijuana use amongst teens and the concurrent rise in teen depression and general decline in academic performance, both of which are well known residual side-effects of even its moderate consumption.
Coincidence? We just don't know.
For too long now, a small group of ill-informed activists have enjoyed free-reign in the debate over the legalization and regulation of recreational drugs. It is time for that to end. There are sound, solid argument why genuine liberals and libertarians should oppose this.
Hopefully it's not too late to make them.