Individual rights, drug policy, and the worst‐case Scenario

There is a lot to admire about Peter de Marneffe's paper. (1) It takes seriously the harm produced by drug prohibition. It does not falsely assume, as does much of the literature critical of drug legalization, that most illicit drug users--in this case, heroin users, who are his focus--are addicts. His essay also does not assume that moderate, controlled use of illicit drugs, specifically, heroin, is impossible. Furthermore, his argument does not rest on the assumption that drug legalization will bring about an epidemic of addiction. De Marneffe is thus correct when he says that "it would be inaccurate to criticize my argument as involving an illegitimate generalization from worst-case scenarios." (2) In addition, his paper presents what, to the best of my knowledge, is an original argument, something that is very rare in discussions of drug policy. Unfortunately, de Marneffe's argument rests on a questionable theory about rights, or, more specifically, a theory about how we determine whether or not a government policy violates individual rights. I will argue that this view is mistaken, and thus that his argument fails. One terminological clarification is necessary before I begin my discussion. De Marneffe says that he objects to legalizing heroin, but he never defines the term precisely and there is no standard meaning for drug "legalization." However, at the very least, the legalization of a certain drug would have to include the freedom to sell and manufacture it, since the freedom to produce something is the sine qua non of a legal market. One could distinguish further between a policy of restricted legalization--in which it is legal to manufacture and sell a certain drug, but purchase is restricted via state licensed gatekeepers (doctors, pharmacists, and such like)--and a policy of full legalization in which a drug's legal status is similar to that of alcohol--manufacture and sale is legal, and it is legal to purchase it in ordinary retail outlets. I examine the distinction between these two different policies of drug legalization toward the end of this essay, but for most of my discussion, I simply refer to drug legalization without distinguishing its different forms. Turning now to de Marneffe's argument, he maintains that legalization of heroin will increase drug use, and that some of that increased use will result in a net increase in habitual or addictive heroin use. Heroin addiction is bad because it typically lowers a person's expectations of himself and decreases his concern with what others expect of him. In addition, it typically weakens a person's motivation to accomplish things and to meet the expectations of others. Heroin addiction thus would, first, increase the risk to children of inadequate parenting, and, second, make it more likely that young persons disposed to drug abuse--particularly in poor, economically depressed communities--would not do what they need to do in order to get a good education and develop good work habits. (3) De Marneffe asks us to assume that these claims about heroin addiction are true, and to assume that the policy he favors--retaining criminal penalties for heroin use, manufacture, and sale, but reducing them so that they would be proportional and would be imposed only for repeated violations--would reduce consumption by roughly the same amount as current laws. (4) With these background assumptions in place, he proposes the burdens principle: a coercive government policy violates a person's moral rights if the reasons for someone to prefer her situation in absence of that policy have substantially greater objective moral weight than any reason someone has to prefer her situation under this policy. Since the reasons that those who would be prevented from becoming heroin addicts under de Marneffe's drug policy are, he thinks, objectively far weightier than the reason anyone has to prefer a policy of legalization, he concludes that his policy would not violate individual rights. …