The Regulation of Recreational Drugs: Philosophical Argument and Public Policy



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The Regulation of Recreational Drugs:

Philosophical Argument and Public Policy


Jonathan Wolff

Dept of Philosophy UCL

j.wolff@ucl.ac.uk
(Second draft: April 2007)
Abstract

The regulation of drugs presents a challenge for liberalism: how can punishing a person for an action that harms only himself or herself be justified? For public policy a related difficulty is to justify the differential treatment of drugs and alcohol. Philosophical arguments suggest that current regulations are unjustified, and that some currently illegal drugs should be treated no more harshly than alcohol. However, such arguments make little or no impact in public policy discussions. This generates a further problem: to understand the different perspectives of philosophical reasoning and public policy so that philosophical arguments can have a greater role in public policy debates.


1. Introduction
Laws in developed societies to regulate the production, supply, possession and use of recreational drugs – drugs taken for their effects on altering consciousness but have not been prescribed for medical reasons – present a puzzle both for liberalism and for public policy. For liberalism the problem is that while many liberals pay lip service to Mill’s dictum that the only justification for interfering with the liberty of action of any individual is to prevent harm to others (Mill 1962), it is very hard to identify significant harms to third parties caused by the use of many currently illegal drugs. This, of course, is to leave aside harms that are the result of the existence of an extensive illegal market, which cannot themselves be used in an argument to justify such prohibition in the first place.
Public policy tends not to follow Mill’s ‘harm principle’ and all governments take it upon themselves to supervise individual lives in various ways to reduce the risk of individuals harming themselves. It is here, though, that the problem for public policy strikes. It seems, prima facie, reasonable that the stringency of regulation should be related to the harms any action or substance causes or threatens. However, some currently illegal drugs do far less harm to the user, and to third parties, than some currently legal substances, notably alcohol and tobacco. Yet despite the ever-increasing restrictions on public smoking the prospects of criminalising the use of tobacco, or that of alcohol, or decriminalising all drugs that are less harmful than alcohol, do not look bright. Hence it appears that societies do not in fact regulate drugs on the basis of the harm they cause. Therefore the basis of regulation is rather puzzling.
Lest it be doubted that some currently illegal drugs do far less harm than some currently legal drugs, consider the evidence presented by David Nutt in a short paper called ‘A Tale of 2 Es’ comparing ecstasy and ethanol (i.e. alcohol) (Nutt 2006, see also House of Commons Science and Technology Committee 2006, pp ev110-117, and Nutt et al 2007). Nutt claims that, on average, alcohol causes 22,000 premature deaths in the UK each year while ecstasy causes 10. These figures are contestable but their order of magnitude is not. It is also true that there are many more users of alcohol than ecstasy (MDMA), but even taking this into account alcohol is still, statistically, somewhere in the region of 200 times more likely to kill its users than ecstasy (and remember that one of the dangers of ecstasy is said to be that its illegal status means that it is sometimes ‘cut’ with other more toxic substances).
Alcohol is also known to cause brain damage, especially among very high users, yet the evidence that ecstasy has such effects is patchy and contested. The most notorious empirical study, in which it was ‘shown’ that injecting monkeys with MDMA led to brain damage (Ricaurte et al 2002), was later retracted when, after failing to replicate their studies with an oral dose, the researchers discovered that the monkeys in the original experiment had actually been injected with methamphetamine (crystal meth) in error (Ricaurte et al 2003). Despite this retraction, it is widely believed that there is clear scientific evidence that MDMA causes brain damage, although as far as I have been able to tell there is no study that actually shows this, as distinct from what scientists predict the studies might show if they had actually been done.1
Nutt also suggests that alcohol causes a significant number of road traffic deaths, incidents of violence, cirrhosis and heart damage, while ecstasy has none of these effects, and we might add, is protective against violence. Comparable stories can be told for cannabis and even LSD, which again are far less harmful to health than alcohol.2
To attempt to find whether there is a coherent basis for current regulations I will first consider the deeper assumptions underlying drug policy, and then explore the (surprisingly small) philosophical debate concerning the regulation of drugs. The main lesson of this discussion is as much methodological as substantive, concerning the interface between philosophical reasoning and public policy. This is not so much a matter of ‘theory’ versus ‘practice’ but rather a question of how issues are framed. That is, should we approach a policy area as if we are making a ‘fresh start’ with nothing in place and everything up for discussion; or should we start from how the world is? It is, perhaps, undeniable that both perspectives are necessary for any policy-oriented philosophical reflection. However some thought needs to be given to work out how the two perspectives can be integrated; otherwise the philosophical perspective is in danger of escaping from view entirely in policy debates.
2. Current regulations in the UK
Just to provide some background, it is worth setting out a brief, somewhat simplified, snapshot of UK drug laws. At its heart is that ‘controlled’ drugs are grouped into three classes:


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