Drugs: Legalize and Regulate (1)

Drug policy is one of the major ethical issues of our time. It affects, not only the millions of drug users and those around them, but a far wider network that draws in the producers, traffickers, and law enforcement. In recent years there has been increasing recognition that the cuurent policy of outlawing drug use and penalizing users does not work. Given the scale of the issue and the extent of harm involved, it is essential that drug policy be based, not on failed historical approaches or moral hysteria, but on sound ethical reasoning and evidence.

This is a large topic with complex ramifications. I plan to write a series of posts on the issue, in which I hope to flesh out a principled approach based on Buddhist ethics. In this initial post I will state my basic ethical argument. Subsequent posts will take up various ramifications of the issue, including points raised by commenters.

My basic position is that drugs should be legalized – all of them – and that their use should be carefully regulated to minimize harm.

The use of all drugs and intoxicants for recreation, including alcohol, is of course against the fifth precept, a basic ethical standard for all Buddhists. This is because the use of alcohol and drugs dulls the mind, increases delusion, and leads to various kinds of harmful actions.

This ancient Buddhist ethical principle has been fully bourne out in modern times. In NSW there is currently a push to reduce the blood alcohol limit for drivers from 0.05 to 0.02, since even that tiny amount has a significant effect on reflexes and consequent impact on the safety of road users.

As Buddhists, clarity of mind and non-harming are two of our most cherished values, and so there is every reason to respect this traditional guideline. In modern times the absention from alcohol extends to the many other forms of drugs, licit and illicit, that have mind-altering properties.

However, there is a big difference between an ethical principle and a law. There is no reason why something should be illegal just because a group of people think it’s wrong. If we as a society wish to criminalize something, we should have a sound basis. Of course, often enough laws are made irrationally; but I am constructing an ethical argument here, not describing how law happens in practice.

The basic issue is what I will call the liberal principle. This is the simple proposition that people should be allowed to do as they wish, unless there is good reason. This principle, I believe, underlies all legal systems, even totalitarian ones. They simply have a very different understanding of what a “good reason” is. Generally, though, even the worst totalitarian society doesn’t tell people how to cook a meal, when to scratch, what to watch on telly, what to call their kids, or a million other things.

In other words, our “default” position is no laws. If a government wishes to impose a law on its people, it is up to the law-makers to prove their case. The burden of evidence lies with them to show good reason. I think we have got so used to thinking of drugs as illegal that we simply imagine it is the natural state of society, and can’t imagine how things could be different. The reality, of course, is that the criminalization of drug use is a modern innovation, a failed experiment of the 20th century.

To define a “good reason” is difficult, but to begin with let’s say that a law should should prevent more harm than it causes, and/or it should create more good than it prevents.

It is not so simple, however, as there is an important distinction between what is good or harmful for oneself and for others. Behavior that is harmful to others is more readily legislated against than behavior that only, or primarily, affects oneself. In practice it is sometimes hard to maintain this distinction, and the use of drugs is certainly a case in point.

There is no doubt, of course, that drug use is harmful, and that the harm extends beyond the user. It is also clear, however, that the current policy of criminalizing drug use causes harm. It therefore is an empirical question as to which approach causes the greater harm.

I have been motivated to start this series of posts after reading of the dreadful impact of the illicit drug trade in developing countries, especially Latin America. It seems to me that the harm caused by the criminal trade far outweighs any of the possible, though themselves dubious, benefits that criminalization brings. Seen in this light, legalization of drugs is not merely a matter of domestic social policy, but is an urgent ethical requirement.

27 thoughts on “Drugs: Legalize and Regulate (1)

  1. Dear Bhante

    I await your essays with trepidation.

    I hope you’re going to address the issue of taxation, as legalisation and harm minimisation are certainly going to impinge on –

    – loss of tax revenues from a dysfunctional economy;
    – increased Govt expenditure in operating a regulatory mechanism;
    – who bears the burden of medical care for druge victims;
    – should the users pay a special tax?

    A heretical and un-Buddhist thought – might the failures of criminalisation be traceable to the absence of harsher enforcement measures? What if States were allowed to wage war on the drug industries, in an extension of the juristic notion of war against terror?

    • Thanks for the comments, i will follow these up in a future post.

      Regarding your heretical notion – it is no theory: the War on Drugs has been around since Nixon. And it’s been just as much of a failure as the so-called War on Terror.

    • Ahh, Bhante. But that was my point. It has failed simply because it was not aggressive enough. Lord knows that the ACLU might send me a stiff reprimand for this, but when affected States begin to view host States as harbouring drug cartels as enemies, and act extra-territorially against the cartels on that basis, perhaps that’s when the War on Drugs could begin to be effective.

      I suspect that much of the US’ constraints stems from lip service to the cherished notion of the presumption of innocence. Tweak that a little, and perhaps those constraints will evaporate.

      I know the classical “socio-economic” argument for legalisation draws much from studies of the Prohibition, but I think what is usually overlooked is that the Prohibition dealt with local spirits which are easy to regulate. Contemporary drug problems are typically imported through very porous borders, with immense amounts of forex bleeding into the cartels. I’d hate to see a couple of generations destroyed by an experiment based on comparisons with the Prohibition…

      No brownie points for guessing that I’m very much a Legal Positivist.

  2. Here in Holland some soft drugs are legal. I’m no expert, but as far as I know magic mushrooms and marihuana are legal, and you can grow marihuana for your own use. There’s a strange set of rules around buying, selling and growing. Growing and dealing is illigal but you can buy it legally in ‘coffee shops’.

    At the moment, cities near the boarder with other countries have a lot of problems with drug tourism and criminality. We live near Belgium and a few of the nearby cities have closed their coffee shops. Again I don’t and never have spent time is this world, but it seems to me that one problem here is that the adjoining countries have different rules, making it a problem in Holland, as well as in Germany and Belgium. There was an item on the news last night about something called ‘kat’ (?) that is transported via Holland to places like Sweden. I don’t think Holland makes many friends with their liberal approach!

    I would have thought that if the legalisation of (soft) drugs in Holland was successful, other countries would have followed…and they haven’t. I don’t know what the answer is. I’m just saddened by the amount of money spent on policing and rehabilitation.

    • Thanks Andrea. that’s definitely an issue; the problem is a global one, so it is hard to address it on a national level, yet the laws regulating drug use are national. Fortunately this is a bigger problem for the politicians, who have the much harder task of making things happen, rather than ethicists, who are interested in what should happen.

      Again, in a future post I will look at some more detail at experiences in different countries, and hopefully we’ll get some more first hand reports.

  3. Bhante, I agree with you in principle that all recreational drugs should be legalized so that their cultivation, harvest, manufacturing, sale and consumption can be monitored and also appropriate taxes collected just as tobacco and alcohol are.

    Andrea mentioned the pot situation in Holland. In the US, marijuana for medical usage is legal in California. There are shops on main streets legally selling pot to those with a doctor’s prescription. I understand that it is pretty easy to get one as some doctors are fairly compliant with patients’ requests.

    An attempt to legalize pot for general use for over 21s in last November’s state ballot, Proposition 19, failed by a narrow margin (Yes 46.5%, No 53.5%). That shows legalization has a lot of support though not enough for a simple majority. However, Governor Schwarzenegger has signerd a bill that turns possession of less than an ounce of marijuana from a criminal misdemeanor to a civil infraction as from 1 January 2011.

    • Thanks Albert. I caught a glimpse of the Californian situation when I was there. Like so many of our approaches to ‘vice’ we seem caught between Victorian moralizing and corporate profit-making, with little room for common sense. Though, to be truthful, Queen Victoria did reputedly use opium and a range of other substances…

  4. Hi Bhante,

    You might like to look at the work of Kane Race, a member of the Gender Studies Dept at Sydney Uni. In particular he has a book called Pleasure Consuming Medicine: the queer politics of drugs.

    His work brings together the topics of several of your recent posts: drug use/regulation and how it intersects with “technologies of the self,” including sexuality. He also has a longstanding interest in the politics of knowledge and the question of what different knowledge practices produce (relevant to your recent exchange with Rowan).

  5. Some reasons for criminalization:
    – drug use has devastating effects on the health and psychology of a person. it starts with a complete change of the personality and often ends with sickness and death.
    – drug users lose all control of their habbit. They harm themselves mentally and physically and thus must be protected from themselves.
    – drug users don’t suffer alone. They include their friends and family in they suffering. This can be psychological or material damage (like stolen tv’s).
    – society has the duty to protect weak individuals, other examples for this are children, mentally ill, sick or old persons.
    – society as a whole is suffering from the drug use of some individuals. For example drug related crime, like drug users breaking into cars to pay for they addiction. Societey eventually has to pay for the their rehabilitation, too. So society must also protect itself.
    – the beneficiary of the drug business is a mafia, which uses the money gained to finance other illegal activities or even wars.

    What is more important: the liberty of some individuals or the well-being of their surrounding and society as a whole? Drugs are illegal because the needs of the few do not outweigh the needs of the many.

    Kind regards,

    • Hi alexander,

      Thanks for the comment. I’ll reply briefly to some of your points here, and will take them up in more detail later.

      Your first five points all assume that criminalization actually prevents drug use, something that i don’t believe is the case, and which in any case requires empirical evidence.

      Most drug related crime is a direct result of the criminalization of drugs, which increases the price and drives addicts to extremes.

      The fact that the beneficiary of the drug business is the mafia is another result of criminalization. If drugs were legal and properly regulated, there is no role for organized crime.

    • Hi Sujato!

      Thanks for your answer. I’m looking forward to your detailed reply. However I want to add one more comment for you to consider:

      sujato :
      Your first five points all assume that criminalization actually prevents drug use, something that i don’t believe is the case, and which in any case requires empirical evidence.

      Actually most people would assume the contrary: that criminalization (of anything) prevents its spread. Isn’t that the whole point of laws: harmful behavior is made a punishable offense, thus preventing its propagation? I mean, if laws and punishment could not prevent things, this would counteract the whole legal system, wouldn’t it?

      My point is: the belief that criminalization can prevent use is generally accepted. If you dissent, you have to provide the evidence.

      Kind regards,

    • Well, I’ll do my best!

      I’m constructing an ethical argument here, not a political one. And in ethics the beliefs of the majority don’t win, I’m afraid.

      As far as i can see, the basic ethical argument that I make in this post is still valid, no matter what the majority believe. If we want to make a law that controls the behavior of others, that limits their freedoms, and makes people into criminals, then we should have some serious, evidence-based justification for that. If this were not the case, then governments would simply make the laws that suit them, without regard for the welfare of the people. Whether governments in fact do that or not is beside the point: I am arguing what they should do, not what they actually do.

      It’s true that the purpose of the legislation to prevent drug use. It’s probably true that ‘most people’ believe this actually is effective, although it is certainly true that many don’t. I agree completely that the failure of drug policy is a sign that the legal approach doesn’t work in the way it is currently applied, which does not mean that the law is useless, merely that it is imperfect.

  6. Last month the BBC reported a study published in the British medical journal The Lancet that alcohol is more harmful than heroin when the overall dangers to individual and society are considered.

    Here’s a summary of the BBC report:

    Alcohol is more harmful than heroin or crack when the overall dangers to the individual and society are considered, according to a study in the Lancet.

    The report is co-authored by Professor David Nutt, the former government chief drugs adviser who was sacked in 2009.

    It ranked 20 drugs on 16 measures of harm to users and to wider society.

    Heroin, crack and crystal meth were deemed worst for individuals, with alcohol, heroin and crack cocaine worst for society, and alcohol worst overall.

    The study by the Independent Scientific Committee on Drugs also said tobacco and cocaine were judged to be equally harmful, while ecstasy and LSD were among the least damaging.

    The BBC report mentioned that “Our findings lend support to previous work in the UK and the Netherlands, confirming that the present drug classification systems have little relation to the evidence of harm”.

    “They also accord with the conclusions of previous expert reports that aggressively targeting alcohol harms is a valid and necessary public health strategy.”

    The is the link to the BBC report http://www.bbc.co.uk/news/uk-11660210

  7. Bhante I agree with you
    I am confused and most likely more than a little naive ….BUT

    Heroin, cocaine and marihuana have been with us for centuries ….as long as humans have been on the planet and for thousands of years they were never a real problem….part of the mosaic of escaping reality if you like, along with alcohol , sex, gambling and gluttony. Yet in the 20 century some drugs were deemed much worse than others…..the Americans didn’t learn from prohibition  and have created a monster with the criminalization of heroin, cocaine and marihuana….

    Personally I think an individual has the right to consume whatever he or she likes …..if it does not harm anyone else. 

    I figure that a huge number of Americans, Europeans and others must feel the same way as given the scale of cocaine production millions of ” normal” people are indulging and managing to carry on with work and raising families etc

    Ps maybe they could add Big Macs and Hungry Jack burgers to the list banned substances list for things that look like food, taste like food but actually aren’t!,,,,, 🙂  







    • Hi Wilc,

      We’re probably all somewhat confused – but at least if we stay off the dope we’ll be less so!

      I think your argument about Big Macs is a serious one. We know very well that all kinds of things, whether fast foods, cigarettes, a slovenly lifestyle, or whatever, are ‘bad for you’, but we don’t make laws that force people to stop them.

  8. Surely it is over-simplistic to say that ‘all drugs are bad’. As was stated earlier, many have minor, if any, effects in terms of addiction and their effects on society, while others considered ‘okay’ by society are highly addictive and destructive: ie alcohol. When we consider cannabis for example, much of it is ‘home grown’ these days (in the UK at least) and involves no international cartels. You can grow it in your back garden. Magic mushrooms have been injested for millenia accross the world for ritual use and recreation, and are considered by the report detailed earlier as among the least harmful of drugs, along with coffee. They grow in the wild and are free. Think of the impact of coffee production on local economies. Surely the debate should be centered more around ‘hard drugs’ ie: heroin, crack, cocaine, crystal meth, etc which are highly addictive, and involve international cartels in their production and distribution? And of course alcohol, possibly the worst of the lot should be fully put into context.

  9. another reason for decriminalisation is destigmatisation. I am a telephone support volunteer for Family Drug Support. On the line I get a lot of calls from people who are distressed about a loved one’s alcoholism or use of illicit drugs. The stimga associated with illicit drug use makes life harder for the majority of callers. They feel ashamed, they feel that they can’t talk to their friends about what they are going through, they are often hard working, loyal, noble people who just can’t understand why their family member is acting in this way. If the family member is committing a crime (in the case of illegal drugs) it makes it a lot harder on the relationship because of the shame and fear associated. I’ve listened to people who have lost their homes, mental health, life savings, spouse, etc over this and the fact that drugs are illegal just makes it harder on these innocent parties both financially and emotionally.

    • Thanks for this Heidi, and I’d love to hear some more of your insights, as someone who works directly with those most affected.

      It seems to me that this is a vital consideration. Drug use, especially use of drugs in a way that is excessive or addictive, must surely stem from some lack, some psychological need. As we all know, one of the main psychological supports for all people in their need is the family, unless it is the dysfunctional family that is the cause of the problem. If drugs isolate the user from their loved ones – which it will almost inevitably do as long as it remains illegal – then it is cutting the person off from their support at the most crucial time.

      In some cases it may even go deeper than that: the choice to use or abuse drugs might be a manifestation of unconscious feelings of alienation, a wish to define oneself as separate, outside, other. These kinds of motivations are quite common in teenagers, resulting in anything from tattoos, loud music, self-mutilation, eating disorders, or whatever.

      In fact this tendency is normal, and as long as it’s not extreme there is nothing to worry about. The problems arise when there is not just differentiation, but dissociation: a complete cutting off. And that, in many cases, is what criminalization of drugs creates. A young person takes drugs, not merely against their parents wishes, risking disapproval, scolding, or a grounding, but as a criminal act, risking jail. This kind of experience can turn common-or-garden variety teenage rebellion into full-fledged delinquency.

    • Thanks, Peter. It’s an interesting article, which shows some of the genetic and environmental factors in addiction – something which we need to understand if we are to appreciate the moral choices of others. It’s all very well for us to preach, but how would we behave in a different context, or if our chemical makeup were different? It was interesting to see the study showing that monkeys who were regularly dominated by other monkeys were much more likely to self-medicate with cocaine than those monkeys at the top of the social ladder.

      However, i was concerned that the article focused entirely on genetic and environmental factors, which, while important, don’t tell the whole story. They leave out the most important thing, the subject who actually experiences the effects of the drug, and the choices they make.

    • I posted the link just to throw a couple of factors into the mix.

      I think is is interesting how different groups may be drawn to different types of drugs and the forces that cause / motivate people to take drugs might be very different also the effects of drugs on different groups of people can be very different due to brain make up etc.

      Within UK society drinking is not a taboo but drugs generally are. Differing drugs have different strengths of taboo associated with them. Start to break taboos in one direction and it becomes easier to break through taboos in all directions.

    • “As we all know, one of the main psychological supports for all people in their need is the family, unless it is the dysfunctional family that is the cause of the problem. If drugs isolate the user from their loved ones – which it will almost inevitably do as long as it remains illegal – then it is cutting the person off from their support at the most crucial time.”

      That’s right. And statistically recovery is more likely if someone has family support.

      FDS is different to other family support groups such as Tough Love as we recognise that the quality of the relationship is more important than getting the person off drugs.

      What I see a lot, & what I’ve experienced many times in my own family, is that someone loves their drug-using son/sister/father/partner/etc so much they make sacrifices for them which they later resent.

      Actually it was seeing Ajahn Brahm for the first time six years ago that helped me with this. He talked about loving kindness & the next day when I saw my sister, who has a long-term drug & alcohol problem, I suddenly realised that I’d been judging her all those years, even though I’d always thought I was so loving & supportive. She could tell the difference immediately, I don’t know how, but it was so powerful. Even though I wouldn’t do as she asked her anger dissolved into tears for the first time ever. Her defences dropped. She was so moved by my love & acceptance.

      In our society we like to think we can cut people out of lives who hurt us but it doesn’t really work because on some level somehow we are still connected to them.

      In my experience it is much easier to say no to someone’s unreasonable requests when you love & forgive them – you know you are giving them something so precious with that love & forgiveness that you nolonger feel guilty for denying them time, money or whatever it is. Awareness is also crucial, because if you are aware of what’s going on in your mind – judging, fear, distress – then you can see the possible consequences & are less likely to get carried away by the heat of the moment (boundaries can be very difficult to stick to when a drug user is hysterical, threatening suicide or possibly violent).

      Because of my experience with my sister, thanks to Ajahn Brahm (how blessed I was! to have his teaching proved to me the next day like that, I am so grateful to my sister for that gift) when I listen to callers I know that this problem that is ruining their life has the potential to be something very beautiful and transformative.

    • Actually on your other point about rebellion, that is interesting as it was at the FDS training that for the first time I felt bad about the fact that I used to be a drug user myself. There was a guy there who was very anti-drugs, he ended up leaving, I just felt stigmatised & like I wasn’t part of the group or part of society, even though it was years ago. It was a horrible feeling.

      Reading this makes me realise that the reason I never felt that stigma at the time was because I thought it was something ‘cool’. I had my own little community of other drug users that gave me my feeling of identity and belonging. Plus obviously you keep it secret from non-drug-users so they don’t know anyway.

      I tend to think the difference between my parents, who never did drugs, and their kids, who all have, is the culture has changed so much. Previous generations in Australia had more meaning in their lives, the sense of community was stronger. My parents went to church, did lots of volunteering, it was expected that they work hard, be loyal to their families, etc. For my generation life is all about ‘me’ & my pleasure, my fulfillment.

  10. I have heard that alcohol had a devastating impact on some societies where there was no tradition of alcohol consumption. I wonder if this is due to the lack of social context for alcohol or if the brains/bodies were just not wired in a way that could deal with the alcohol?

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