Boax and De Marneffe on Legalization and Criminalization

Philosophy 220
Boaz and De Marneffe on the
Moral and Legal Status of NonMedical Psychotropic Drug Use
• For our purposes a drug is any chemical
substance that affects the functioning of
living things.
• An important distinction to make with
regard to the use of drugs is between medical
and non-medical use.
• The moral issue that we are considering is
the non-medical use of Psychotropic Drugs.
o PD: drugs that produce changes in mood, feeling, and perception.
• A type of compulsive behavior involving
dependence on some substance or
activity which is undesirable.
o Addiction can be either physical or psychological, and in
some instances can exhibit characteristics of both types.
• There are a number of competing
theories about the nature of addiction.
o Standard View: addiction is caused by the
pharmacological effects of the drug. It’s the presence of the
drug alone which produces the addiction.
Drug Abuse
• Not all undesirable use of psychotropic drugs is
addictive use.
• Drug abuse is the excessive nonmedical use of a
drug that may cause harm to oneself or others.
• From a number of moral perspectives, drug
abuse raises concerns.
• From the social perspective, these concerns may
justify laws limiting the freedom of individuals
to use nonmedical psychotropic drugs.
Conditions under which a government may be
morally justified in passing laws that limit the
liberty of its citizens.
1. Harm Principle: LL laws permissible in order to
prohibit individuals from causing harms to others.
2. Offense Principle: LL laws permissible in order to
prohibit individuals from offending others.
3. Legal Paternalism: LL laws permissible in order to
prohibit individuals from harming themselves.
4. Legal Moralism: LL laws permissible in order to
protect common moral standards.
Moral Theories?
• Consequentialism: drug use is wrong if its
effects fail to maximize utility.
• Kantian Moral Theory: drug use is wrong if the
maxim of its use fails the CI test.
o Compare the UL formulation and the Humanity
• Virtue Ethics: Enjoying oneself is part of a
flourishing life. As long as drug use is consistent
with flourishing, then it is not problematic.
Boaz on Legalization
• Throughout history, humans have used
psychotropic drugs.
• Governmental response has been consistent and
univocal: criminalization.
• Leaving aside any moral questions, the history
of this response does not suggest that it is
effective. One important consequence that our
recent experiment with criminalization (The War
on Drugs) has produced is a series of libertylimiting laws.
Boaz on Prohibition
• Since 1981, the US has been involved
in a self-described “War on Drugs.”
o Levels of drug availability and persistence of drug
use during since suggests that it has not been
particularly successful.
o Our social commitment to this approach has come at
considerable cost (184).
• One explanation for the failure is the
role of financial incentives.
Boaz on Rights
• Boaz boils down our national creed to
one fundamental right.
o “Individuals have the right to live their lives in any
way they choose so long as they do not violate the
equal rights of others” (185c2).
• Implications for drug use?
o Violence: associated with use or with prohibition?
o Harm?
• Boaz turns his attention to the culture and what
he describes as a prevailing attitude of nonresponsibility.
• One form of this attitude is the standard view
of addiction that he calls “The Addiction
o He calls it “Addiction Theory;” it has also been called
the “Disease Theory.” The idea is that the addict is a
sick person that is not responsible for their behavior.
• What’s the problem with this attitude?
Restoring SelfResponsibility
• Boaz goes on to argue that another
limitation of the strategy of criminalization is
that, despite appearances, it unintentionally
contributes to the non-responsibility attitude.
• Liberty-limiting laws, on Boaz’s view, are
justified only on the basis of the harm
principle. Other justifications intrude
unjustifiably on personal choice, not only
undercutting our liberty, but also weakening
our sense of self-responsibility.
Adding it Up
• Criminalization is a failed strategy for
consequentialist and rights-oriented
• Decriminalization and legalization is not
only more consistent with our civil
liberties but also has important attitudinal
consequences vis-à-vis personal
De Marneffe and the Argument for
• De Marneffe defends a moderate position on the
question of the moral and legal status of psychotropic
drug use.
• He argues in favor of decriminalization for possession
and use of small amounts (consistent with personal use)
of drugs (of any sort), but defends the immorality and
thus justifiable punishment for selling drugs or
possessing large quantities.
• Though this appears to be a difficult position to
maintain, De Marneffe doesn’t think there is any
• De Marneffe’s argument against legalization of nonmedical psychotropic drugs is based on the correlations
between availability, use and abuse.
o If we legalize these drugs, they will become more available, more commonly
used and ultimately more commonly abused.
• He offers in support of this claim the example of alcohol,
for which we have the control period of Prohibition, and
other studies which seem to demonstrate this
• Though there is disagreement about which choice would
produce the most desirable consequences, De Marneffe
believes prohibition wins.
It’s about Rights
• A more pressing issue for De Marneffe is the claim that
prohibition violates the rights of individuals.
• De Marneffe’s response is to argue that the distinction
between criminalization and prohibition makes the difference
o While drug criminalization (penalties for personal possession and use) does violate
individual rights, prohibition does not.
• De Marneffe acknowledges that most individual use of
psychotropic drugs causes little or no harm to the user or to
others. Criminalizing such use would seem then to be
• Abusive use, on the other hand, is harmful, and as such use
typically requires large scale manufacture, sales and
possession of drugs, the harm associated with abuse justifies
Is it that Easy?
• A critic might respond that De Marneffe is relying on a
distinction that doesn’t make any real difference.
o If an individual has a right to the use of cocaine in a non-abusive context,
wouldn’t interfering with the capacity to possess the non-abusive amounts of the
drug be a limitation of the rights of the user?
• In response De Marneffe articulates what he calls the
burdens principle: government can legitimately limit the
rights of an individual only in those instances where the
burden imposed is not substantially worse than the
burden that would be realized if the limiting policy were
not in place.
o On the assumption that legalization would dramatically increase rates of abusive
use and addiction, then the burden imposed on individuals who’d like to be able
to recreationally use cocaine seems to satisfy the principle.
Some Objections
• Paternalism: Criminalization is paternalistic; prohibition is not.
• Sentencing Issues: As we know, our prison population has increased
dramatically with the war on drugs, and there are significant
questions about the moral appropriateness of many of the sentences
imposed. De Marneffe just insists that such concerns are
independent of the moral status of prohibition.
• Alcohol?: Though there is an argument to be made that alcohol
prohibition would be justified on the same grounds as continuing
drug prohibition, it’s not clear that the costs associated with its
prohibition would be outweighed by the benefits.
• Tobacco and Fatty Foods?: Here too, the associated costs, and
different harms, allow for a meaningful distinction to be made
between drug prohibition and these issues.

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