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Defining what should be Sufficient for a Legal Ban
Political debates about abortion, gay marriage, assault weapons, prostitution, and drugs often devolve into a simple argument about whether the topic at hand is a good thing or a bad thing. The drug debate goes into the dangers of each drug to the user, as does the prostitution debate. In logical terms, the argument against each topic is: “because of ____ reasons, topic X is a bad thing”.
This simple approach is easy, but seriously mishandles the topic. Instead, the debate for politics should always be: does the law need to get involved? In most cases, this question can be understood as “should practice X be illegal?”.
If the simple argument is corrected, it’s structure becomes: “because of ____ reasons, practice X should be illegal”. If the argument works, ___ reasons need to be a sufficient condition for “practice X should be illegal”.
The question is then obviously, what reasons are sufficient conditions for a practice being illegal? Your answer is pretty dependent on your own conception of government, and the roles you think it can justly play. Anarchists and Libertarians likely want this role to be small, while other ideologies allow for more government. These ideologies can be understood in utilitarian terms: each viewpoint allows for a certain amount of harm one person can legally impose on another. The less of a role you want government to play, the more harm you are comfortable with one person legally imposing on another.
Whichever viewpoint you take can be put in the form: “if an individual would cause Y amount of harm to another person by preforming action A, then action A should be made illegal”. The value of Y varies depending your viewpoint as well as the amount of benefit the action can have/other relevant factors.
Political debates, with this understanding, are then simply about whether or not the topic at hand causes Y amount of harm to other people. For example, the recent tragedy in Colorado brought up the debate about a potential renew on a ban of assault weapons. The correct way to approach this debate is “assault weapons cause this amount of harm, and that amount of harm is sufficient for assault weapons to be legally banned”.
If this approach is used for each debate, then I think the conclusions are: assault weapons should be legally banned, prostitution and drugs should not. If you disagree with me, then you would need to argue that I either misunderstand the level of harm or we disagree on what level of harm people can legally impose on others. It is irrelevant if you think the action is distasteful or immoral.
-A couple side notes: this post assumes that paternalism is unjustified (a stance I take). Paternalism simply means the government preventing you from doing harm to yourself. I think this can only be justified in unique situations, where either you are not capable of making the decision (perhaps because you’re not an adult yet) or you do not have all the information (perhaps in a complex business negotiation). However, if you are both aware of the harm you could do to yourself and capable of making the decision, then the government has no justification for legally banning you from doing so. This viewpoint is the reason why only harm done to others is relevant for the debate.
I also want to point out that the faulty argument applies to both liberals and conservatives. Too often conservatives try to argue how bad drugs and prostitution are, which does nothing to actually support the legal ban argument. Liberals often make the same faulty argument about things that are offensive, such as certain video games, movies, and unhealthy stuff. The argument works no better when liberals make it, and too often its made (or implicitly implied) for things that are bad, but should not be legally banned.
Drug Paper
I finally got my computer charged so I can post my paper on drug prohibition. It’s on a book called “Legalization of Drugs For and Against” by Douglass Husak and Peter Marneffe. Marneffe’s argument against heroin prohibition is roughly:
1. It is a legitimate state goal to minimize heroin abuse.
2. It is possible to introduce effective laws against heroin use without introducing greater harms than they prevent.
3. People do not have the right to use heroin without punishment.
Therfore,
It is morally justifiable to enact and enforce effective laws against heroin use.
Here’s my paper (it’s long, but it’s a more thorough explanation of my argument than my first post on drugs):
The Argument against Drug Prohibition
Douglas Husak and Peter de Marneffe argue about the morality of enacting and enforcing laws against heroin use. Husak believes that there is no moral justification for punishing the heroin user, and therefore no moral justification for laws against heroin use. Marneffe claims that it is morally justifiable to enact and enforce laws against heroin use, and gives an argument to defend his position. His argument is used to justify laws against heroin use and can also be used to defend laws against marijuana use. Marneffe’s argument fails when used for laws against either heroin or marijuana use because of an individual’s right not to be punished in order to protect others.
Marneffe’s argument has four premises, which if true, directly lead to his conclusion that laws against heroin use are morally justifiable. His second premise relies on effective laws being possible without causing greater harm than they prevent. Therefore, if effective laws introduce greater harms than they prevent, Marneffe’s second premise is false and his argument is not sound.
Husak objects to Marneffe’s argument by asking for the justification of a heroin user’s punishment. Marneffe’s argument, when put in simple terms, states that it is morally justifiable to punish heroin users in order to prevent others from abusing heroin and thus losing valuable opportunities (p. 113). Husak claims that this still does not justify punishing heroin users. It does not logically follow that a heroin user deserves to be punished because if he or she were not punished, then another individual would be unable to resist abusing heroin (p. 37). To Husak, Marneffe does not provide an adequate reason why a heroin user deserves to be punished, even if the law that punishes them would prevent others from suffering from heroin abuse.
Marneffe responds to Husak’s objection by separately justifying the punishment and the law. For Marneffe, the heroin user deserves to be punished because he or she knowingly broke the law. The law against heroin use is justified because it’s enforcement will help mitigate teenage and parental heroin abuse. This is Marneffe’s four premise argument. If the argument is sound, and we are morally justified in enacting laws to mitigate heroin use, then we are morally justified in punishing those who break the law. For Marneffe’s argument to be sound, each premise must be true. Therefore, to justify laws against heroin use, Marneffe must prove that the law does not introduce greater harms than it prevents.
Husak’s objection states that we cannot justify punishing a heroin user even if it results in less aggregate harm. Husak’s argues that “no one deserves to be punished simply because less harm would be produced in society if he were punished than if he were not” (p.36). Marneffe agrees with Husak on this point and acknowledges that we cannot punish individuals to increase aggregate happiness.
Instead of a utilitarian view, Marneffe defends his argument with a form of individualism called the “burdens principle” (p.159). This principle states that a law is morally justified when the greatest burden placed on an individual by this law is less than the greatest burden placed on an individual in the absence of the law (p. 159). In the case of heroin, Marneffe argues that the greatest burden that effective heroin laws would impose on an individual would be the inability for a responsible adult to use heroin without fear of punishment. However, the absence of these laws would put an even greater burden, the loss of opportunities in life, on any individual who would use heroin if legal but is currently deterred by heroin prohibition. Since the absence of effective laws against heroin would create a greater burden on certain individuals than the burden created by having these laws, the laws are morally justifiable according to Marneffe’s burdens principle.
Marneffe’s reply to Husak’s objection does not hold because it relies on the burdens principle, which I consider to be an invalid form of determining the morality of laws. To justify my issue with the burdens principle, consider a law that forces kidney transplants when a patient would die without one. This law states that in the case where a dying patient has no willing donor, a random healthy adult will be selected to provide a transplant. This is done locally and randomly, in a similar way that men are drafted for the army. When enforced, the randomly selected adult would be legally required to donate his or her kidney to the dying patient. If the donor refuses, he or she would be legally punished.
According to the burdens principle, the morality of this law should be determined by the burdens it places on individuals. If the law is enforced, the highest burden placed would be on the randomly selected donors. They would have the option to lose a kidney or be legally punished. However, if the law is not enforced, the greatest burden would be on the patients in need of a donor. They would die without the enforcement of this law. Since it is worse to die than to lose a kidney or be legally punished, the burdens principle would justify this hypothetical law.
However, the common sense reaction is to reject this law. While it is noble to offer an organ to save a stranger, it cannot be legally forced and have its refusal punished. This shows the flaw with Marneffe’s burdens principle. Dying is worse than losing a kidney, and the prevention of hospital patients dying is a legitimate state goal. However, the law is not morally justifiable because the state is not justified in forcing individuals to choose between punishment or forfeiting a kidney in order to protect other individuals. It is because of this that I consider the burdens principle to be an invalid form of justifying laws. In the case of effective laws against heroin use, the same objection holds. The loss of opportunities to heroin abuse is worse than the loss of the right to use heroin, and the prevention of heroin abuse is a legitimate state goal. However, laws against heroin use are not morally justifiable because the state is not justified in forcing individuals to choose between punishment or forfeiting their heroin use in order to protect other individuals.
Marneffe’s argument for effective laws against heroin use can also be used to argue for effective laws against marijuana use. However, the argument for laws against marijuana use would have the same flaws. Even effective laws against use, which by definition would reduce more harm than they create, would force individuals to choose between punishment or forfeiting marijuana use in order to protect others.
For the sake of argument, we can ignore this objection and consider Marneffe’s argument for effective laws against heroin use to be sound. If this argument is sound, is it also a sound argument for effective laws against marijuana use? To understand the differences between laws against heroin and marijuana use, effective laws against marijuana need to be defined.
Effective laws against marijuana use would have to reduce more harm than they create. These laws would need smaller and more gradual punishments than the ones currently in place, as Marneffe wants for laws against heroin use (p. 119). Punishments would not include jail time for users, only small, gradually increasing fines for repeat offenders. Resources would be spent on stopping large scale dealers instead of punishing recreational users. Effective laws against marijuana use would have to deter enough abuse to justify both the economic cost of enforcement and the social cost of limiting an individual’s rights.
In reality, effective laws against marijuana use are not possible. Marijuana is generally known to be the safest of all illicit drugs, and even safer than the currently legal drugs alcohol and tobacco. There are various methods to consume marijuana, including through edibles and vaporizers, that minimize the risks associated with marijuana smoke. Also, frequent marijuana use is not as associated with the loss of life opportunities as frequent heroin use. Therefore, the amount of marijuana use that prohibition deters would not result in a significant decrease in harm to individuals.
Another issue with laws against marijuana use is the current social status of the drug. Marneffe believes heroin prohibition is effective because its use is currently looked down upon (p. 180). He argues that if heroin were legalized, it would eventually become socially acceptable to use heroin and thus its use would increase. Marijuana, however, does not have the same social status as heroin. Smoking, especially during young adulthood, is widely considered to be socially acceptable. Also, because of its social status, marijuana is widely available and easy to acquire. Since it is already socially acceptable and easy to acquire, Marneffe does not believe legalization would increase marijuana use to a significant degree. When laws against marijuana use are not an effective deterrent, it is impossible to justify punishing recreational marijuana users.
Marneffe’s argument fails when used to defend laws against either heroin or marijuana use because it punishes individuals in order to protect others. Husak argues for an individual’s right not to be unjustly punished, even when doing so would deter others from harm. Marneffe’s responds using the burdens principle, which justifies punishing the drug user by evaluating the burdens the absence of the law would create. However, as shown by the hypothetical kidney donor law, the burdens principle cannot be used to justify laws that punish individuals to deter harm to others. Without a proper justification to punish drug users, laws against heroin and marijuana use are morally unjustifiable.
The Immorality of Drug Laws
I’ve been discussing the morality of drug prohibition in my Ethics class for a few weeks. The focus has been on heroin prohibition and the arguments of Douglass Husak and Peter Marneffe. Since Prop 19 is being voted on next week, I’m going to generalize the argument to all drugs to include marijuana.
Each type of drug has a different effect and a different set of risks for use. I’m going to generalize this argument for all drugs without referencing a specific drug yet. Since I’m generalizing, I’m going to just say that all drugs are unhealthy and can make you lose opportunities in life.
For any argument about drug laws, it’s more important to justify the law than to defend legalization. Putting drug users in jail is a much harsher penalty than many people realize. Jail time is dangerous, tears families apart, and cripples job opportunities. It can also leave lasting psychological damage. If we’re going to put people in jail, we need a very good reason to do so.
The question is: it morally justifiable to punish drug users? There are two main arguments for drug prohibition, and I want to refute each one.
The first is a paternalistic argument. Basically, this argument says that drugs are unhealthy and can ruin a person’s life, so the government should punish drug users to stop them from using drugs. There are two obvious problems with this argument. First, it is not the government’s place to punish us for our unhealthy choices. No one could rationally defend the government punishing people eating fast food in order to protect our health. The second problem is that punishing a drug user only worsens their life. While being addicted to drugs can seriously hurt someone’s life, being jailed for drug use will only make things worse.
The second argument is a mitigation argument. This argument says that laws against drug use are justified to prevent people from abusing drugs. Basically, since drug use means risking jail time, many people are unwilling to risk using the drug. To refute this, I’m going to classify two types of people that drug laws affect. The first type is the group that the mitigation argument is trying to protect. These are people who would use the drug if legal, but are deterred from use by drug laws. The second type is the group that use the drug even when illegal. The mitigation argument says that it is morally justified to punish the second group in order to protect the first group. Basically, if we didn’t punish the second group for using drugs, the first group wouldn’t be able to resist using drugs and would therefore suffer. However, in no other area do we use this type of logic. Think of any potentially dangerous recreational activity (football, skiing, skateboarding, etc.). It wouldn’t make any sense to punish football players so young athletes avoid football, even if this lead to the young athletes not getting injured.
It is a legitimate goal to stop people from ruining their lives. The problems with drug laws is that they make the problem worse and there is no moral justification for punishing drug users. When it comes to Prop 19 and marijuana, the moral justification for prohibition is even more difficult to defend. Marijuana is the safest recreational drug, safer than alcohol, tobacco and all illegal drugs. Marijuana is already socially acceptable and it is already readily accesible to anyone who wants it. What our current prohibition does do is: imprison non-violent recreational users, create the largest portion of the criminal market, and waste tax money on “the war on drugs”.
If anyone wants to debate any part of my argument or would like to add something, please leave a comment.
