The Decriminalisation of Drugs

Ian Gilmore, former president of the Royal College of Physicians, and one of the UK's leading doctors has argued that the government should consider the decriminalisation of drugs, see http://www.guardian.co.uk/politics/2010/aug/16/drugs-decriminalisation-doctor-ian-gilmore. He bases his argument on the fact that the ban on drug appears to have failed to either cut crime or improve health. His argument is squarely based on utilitarian principles. A similar argument is expressed by Dominic Wilkinson who suggests that when considering the decriminalisation of drugs we should ask – which is more harmful – regulated access or prohibition? See http://www.practicalethicsnews.com/practicalethics/2010/08/demedicalising-and-decriminalising-drugs.html#more . In what follows I will take a different approach as arguments such as the above use a blanket approach to harm. I will attempt to differentiate between various classes of people who are harmed by drug use.

I will take as the starting point of my argument Mill’s contention “that the only purpose for which power can be rightfully exercised over any member of a civilised community against his will, is to prevent harm to others. His own good, either physical or moral, is not sufficient” (1974, On Liberty and Other Essays. Oxford University Press (Oxfords Worlds Classics, page 69). Mill goes on to contend “each is the proper guardian of his own health, whether bodily or mental and spiritual. Mankind are greater gainers by suffering each to live as seems good to themselves, than by compelling each to live as seems good to the rest” (page 72). Mill would clearly have regarded any harm drug users do to themselves as something that should not be included in any of considerations of whether the government should decriminalise the use of drugs. I accept Mill is correct in his contention that each one of us is the proper guardian of our own health and the harm drugs do to the drug user should not be the concern of others. It follows the harm drug users do to themselves should not concern us when considering whether to decriminalise drug use. However drugs users not only harm themselves but harm others. I will now restrict my examination to the harm drug use does to others whilst ignoring any harm drug use does to the drug user. These others can be split into two classes. Firstly drug users harm people they do not personally know. I will class this harm as harm to society. Secondly they harm people they personally know, people they are in some relationship with. I will firstly consider the harm the drug users do to society and secondly the harm they do to those in a relationship with them.

Clearly drug use harms society. Muggings and robberies to finance drug taking and gangland turf wars do real harm. However the majority of this harm to society seems to occur because drugs are illegal. It follows if we were only to consider the harm done to society that we should decriminalise drug use in order to minimise this harm. Someone might argue that, besides harming society, drug users really only harm themselves. She might suggest drug users are lonely people who take drugs alone or in conjunction other drug users who they do not significantly harm due to their existing drug use. However her argument is unsound because such idealised drug users seldom exist in practice. Most drugs users live in some sort of relationship with others and one only has to consider wrecked relationships and blighted childhoods in order to see the harm drug use inflicts on others. It follows even if we accept Mill’s contention that “the only purpose for which power can be rightfully exercised over any member of a civilised community against his will, is to prevent harm to others” that in our considerations of whether to decriminalise the use of drugs we must consider the harm done to those in some sort of personal relationship with drug user.

Mill in formulating his argument believed the harm to others must be substantial to justifying curtailing someone’s liberty. For instance the harm others suffer because they don’t like drug takers taking drugs is not a substantial enough harm to count as a reason against the drug use. The question that must be answered is this. Is the harm done by drug users to those in some sort of relationship with them substantial enough to justify the continuing criminalisation of drugs? This is a difficult question to answer and I will try to address this problem by differentiating between two classes of people in a personal relationship with drug users. I will suggest provided it is possible for someone to end a relationship and with it any harm her partner’s actions inflict on her then we have no reason based on this harm to curtail his actions. Of course she may have good reasons to remonstrate, reason with or attempt to persuade him his actions are wrong, see Mill page 68. Consider for instance the situation in which the only harm a drug user’s habit does is to his partner. His partner may scold and berate him due to the harm his drug use does both to himself and her, I will assume she loves him, but she could always end the relationship and end the harm he does to her. My argument depends only on the fact that it is possible for the drug user’s partner to leave him and end the harm; it does not require that she must leave him and end the harm. Indeed in this context if she does not leave him she appears to be accepting the harm caused by her partner and this harm might be regarded to some degree as self inflicted. I have argued it is the criminalisation of drug use rather than drug use itself that damages society and that any harm done by the drug user to himself does not justify prohibiting drug use. I have further argued that any harm done to someone in a personal relationship with a drug user should not count against the decriminalisation of drugs provided she can end this relationship. However an objector whilst accepting the above might point out the domain in which my arguments are applicable is too small. She might point out that I must also consider personal relationships which the injured party cannot simply end.

The objector’s point is a sensible one and I accept it. If a drug user’s use harms people, who he is in a personal relationship with and this is a relationship which the injured parties cannot end in order to end the harm caused, does this mean we have a right to prohibit his drug use? I accept we do. My objector might now argue if I accept the above that I must also accept we should not decriminalise the use of drugs. She might point out the damage drug using parents do to their children to support her argument. I do not accept her argument. Alcohol is a drug. Drunken parents harm their children yet we do not criminalise the use of alcohol. It seems to me that, provided there is no major difference between the effects of alcohol and other drugs, we should either criminalise the use of alcohol or decriminalise the use of other drugs if our reasoning is to remain consistent. Let us assume there is no major difference between the excessive consumption of drugs and alcohol. If we were to prohibit the use of alcohol, to protect people who are in relationships which they cannot end, with abusive alcoholics we would deny many drinkers the right to drink who do no harm or if they do harm only harm themselves. At this point a utilitarian would do a calculation to maximise preferences, pleasure or some other perceived good in order to decide whether to criminalise the use of alcohol or decriminalise the use of other drugs. As I am considering theses issue by considering the idea of personal liberty such a position is not open to me. However at present drunks who abuse or neglect their children can be held accountable. They can be accused of child neglect or cruelty rather than alcohol addiction. It follows there is no need to prohibit alcohol use no need to criminalise the use of alcohol to protect the people who are in a personal relationship with an alcoholic even this is a relationship these people cannot end in order to end the harm caused. Moreover this same legislation helps protects people who are in a personal relationship with a drug user. It further follows the decriminalisation of drugs should not harm these people.

The above discussion leads me to two conclusions. Firstly if we accept Mill’s liberty principle then we should decriminalise the use of drugs. Perhaps if we do so we should also take extra special care to see vulnerable people are not abused or neglected, children in particular. The second conclusion which is more tentative and perhaps more interesting concerns the harm condition in Mill’s concept of liberty. Usually this harm condition is just taken to mean substantial harm but does not specify how substantial this harm must be to curtail liberty. I have suggested this harm condition does not apply to society in general. Mill believed it could not apply to society because he believed liberty could only benefit society. I suggested above the liberty of someone could only be restricted by the harm done to others in some sort of personal relationship with him. I then loosened this restriction. The above leads me to conclude secondly that someone’s liberty of action can only be restricted by the harm his action does to others in some sort of personal relationship with him and these others cannot end the relationship in order to end this harm.