An Argument in Defense of the Harm Principal Regarding the Legalization of Drugs

Categories: Drug Legalization

Right now around one half million people in the United States are in prison for drug related crimes (Justice Policy Institute).  Each one loses whole years of their life to a system which, by itself, does not rehabilitate.  These half million will have a great deal of difficulty finding a job post –release.  For each one taxpayer pay thousands upon thousands yearly to keep them imprisoned.  Of course there is also the matter of the imprisonment itself.  Clearly wherever you deprive someone of their freedom, especially for expanses like years, there must be a good justification.

Is this justified?  If these drugs did not pose any threat to the users or others around them the answer would be clearly not.  On the other hand, if they clearly caused damage to others around them it would be no doubt justified to issue some kind of punishment or required compensation, although the exact nature would vary.  But it is often to this case that these drug crimes involve harm to the user rather than those around him or her.

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  Where this is the case the question becomes the following: can the government rightly prevent a person from causing injury to themselves by their own choice?

As is often the case in ethical dilemmas, we find people taking the same position for different reasons.  For instance, contrast the positions of Thomas S. Szasz and Ethan A Nadleman. Szasz and Nadlemen both take the position that all drugs should be legalized, but their reasoning for why is different.

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  Szasz, in “The Ethics of Addiction” takes the position that people have a fundamental right to do as they wish with their bodies, so long as they do not harm others (Szasz).  On the other hand, Nadelmann in “The Case for Legalization” takes a view which does not rely on principals of liberty, but instead simply compares the harms of prohibition and legalization and argues that the former is more harmful than the latter (Nadelmann).  Similarly, those in favor of prohibition have a variety of justifications for their stance.  In his “Permissible Paternalism: Saving Smokers from Themselves”, Robert E. Goodin argues, as the title suggests, in favor of paternalism.  He holds that it is good for the government to restrict liberty if the restriction prevents a person from harming themselves, and that this is not an undo restriction on liberty because the preferred preference of a person is not to harm themselves, even if the expressed preference is not.  Meanwhile, James Q. Wilson does not rely on paternalism for his position. Instead, in “Against the Legalization of Drugs” Wilson attempts to show that accidents to hard drugs do in fact cause significant harm to others, and prohibition is justified even without considering the harm an addict does to him or himself.  People are indeed free in principal to harm themselves as they see fit, but any good principal tends to lead to good consequences.  For this reason, let us examine the consequences of legalization alongside the theory behind it, rather than relying on either outcomes or principals alone.  Legalization and privatized rehabilitation for all drugs leads to the best possible outcome for the afflicted individual and for society.  Furthermore any harms caused by legalization are not strictly harms and ought weighed by the harms of prohibition.  Therefore like Szasz, I call for full freedom to use drugs for sane adults who will do not cause direct harm to others with their use.

For the majority of this essay I will focus on the legality of “hard drugs”.  A hard drug is defined both by being physically addictive and having a high lethality within a short period of time.  Amphetamines, Heroin, and Cocaine are common “hard drugs” under this definition.  Drugs like Cannabis, and LSD are not physically addictive, nor highly lethal over any period of time, and so fall instead under the category of “soft drugs”.  Alcohol and Tobacco are both physically addictive but are not as virulently dangerous as the hard drugs.  It is possible to drink in moderation and not become addicted, and while cigarettes kill, they take decades to do so while cocaine can cause death at first use, so these also fall into the category of “soft drugs”.  I choose to focus on hard drugs because if, as I argue, it is the case that hard drugs ought to be made legal, then soft drugs certainly ought to as well.  However, should a person be unconvinced by the following arguments concerning the legalization of hard drugs, I will also make independent arguments for the legalization of soft drugs such as cannabis and psychedelics based on the negligibility of the harm the user even does to him or herself.

Likely the simplest position is that there is simply no reason to harm people (by imprisoning them) for harm they do to themselves and not to others.  Such is the position of Thomas S, Szasz.  Szasz argues in favor of legalization of all drugs on the basis of the harm principal.  The harm principal can be simply summarized as this: every person has the right to do as they wish so long as they do not cause direct harm to others.  But there are some qualifications to this principal.  The first and most easily agreed upon is that this does not apply to children.  While the exact circumstances which change a person from a child to an adult are not clear, no reasonable person speaks of the right of a four year old to get drunk. (Szasz)  The second, and somewhat more disputed, is that this principal does not apply to those who are in some way of unsound mind.  While most agree a person with an IQ of 50 or a sufferer of schizophrenia probably does not have the right to harm him or herself, people will argue vigorously whether an addict of a bipolar person does.   Szasz’s own position allows very little in the way of what qualifies as being unsound of mind, as we will see bellow.  The third main qualification is that “harm” must be defined as a tangible harm, not a symbolic one.  Such harm might be physical or economic, but nothing along the lines of an insult would qualify under this definition of harm.  (Szasz)

Szasz does little to argue for the harm principal itself, largely because many readers are already sympathetic to this principal, believing in freedoms derived from it such as freedom of speech.  However, he spends a lot of time refuting the notion that drug use is not a truly free choice. In his view, addiction to heroin is a habit, and only addictive in the same way that person might be “addicted” to drinking orange juice for breakfast if it was part of their daily routine.  (Szasz) Szasz’s position that addictive drugs such as heroin are different from non-addictive substances only in degree and not kind does not pass the “sniff test”, nor does it hold up to analysis.  People have died from physical withdraw from heroin, but no matter how much orange juice a person drinks that person will never experience withdraw symptoms if they stop.  Something else goes on entirely in physical addiction verses mental habituation.   In physical addiction, the addict’s body will send signals that they need the substance to survive, on the par with the need for food itself, rather than the “need” for a specific kind of food.

Yet this addiction does not eliminate the freedom of choice a person has in drug use, for two reasons.  The first is that addiction, while hard to overcome, is not an insurmountable challenge.  If it were, then what use would it be to attempt rehabilitation or to punish repeated use?  People can and do overcome addiction even though it is an inhibitor to free choice different in kind from mere habit.  The second reason is that the initial choice to use drugs and run the risk of addiction is free, and the addiction is a consequence of that free choice.  It would be absurd to flatly say that freedom of choice protects you from the consequences of your choices.  Some have taken the view instead that freedom of choice does not include choices that prevent you from making further choices.  If this is the case then suicide alike would be prohibited.  But any behavior which prevents future choices has a chance to do so and a time before it takes effect. The choice to fire a shotgun to the head may be more than 99% likely to kill you in a minute, the choice to use heroin 60% in a few years, the choice to climb a mountain might be 2% in a week.  Should we prohibit all these risky behaviors in the name of preventing the loss of future choices?  All behaviors entail some degree of risk, and that risk always includes the loss of future choices, not even always by death, but potentially by loss of economic opportunity, by loss of health, by entrance into contract, etc.  If we required that people make those choices which minimized the loss of future choices, they would be completely out of choices in the present.  For this reason, freedom to risk future choices is necessary to have any sort of freedom.

There are still two more scenarios in which we ought not to take Scasz’s position, and legalize drugs on the basis of the harm principal.  The first possibility is that a drug user does in fact cause harm to others.  James Q. Wilson argues that the legalization of hard drugs would cause an exponential increase and that that increase would cause harms to people besides the user.  Wilson points out that legalization of heroin would lead to several factors that discourage use disappearing.  Firstly, Wilson says the cost of heroin “would have been reduced by 95 percent (minus whatever we choose to recover in taxes)”.  He argues the health issues would have been lessened by assured purity of heroin, and by having readily available sterile needles.  And he points out that access to the drug itself would be so much more convenient without having to avoid authorities.  At the end of this string of likely consequences of legalization, he asks: “Under these circumstances can we doubt for a moment that heroin use would have grown exponentially?”  The second part of his argument talks about the harm this does to others.  The first and most clear cut example of this is that pregnant women who are addicted to drugs give birth to children with their addiction, along with other birth defects.  Aside from that he argues that hard drug addicts “…are individuals who regularly victimize their children by neglect, their spouses by improvidence, their employers by lethargy, and their co-workers by carelessness.” (Wilson)

While Wilson is right in arguing that should heroin have been legalized, its use would increase, the extent of that increase would not be exponential.  The current lack of accessibility, affordability, convenience, and legality for heroin is not the reason why most of us do not use it.  The main reason why the majority of people do not use heroin is because it is extremely likely to kill its user, or barring that wreak havoc on their physical, social, and economic well being.  The very things that Wilson most fears in hard drugs are the things that most people fear and will continue to fear, regardless of the political and economic circumstances surrounding the drugs.  Wilson paints this picture of exponential increase in hard drug use resulting in widespread lawlessness and the breakdown of social order.  But the idea that legalization of hard drugs is this Pandora’s box to chaos and degradation in society does not match the historical record.  How can we expect this unprecedented rise in addiction and social decay when all drugs were historically legal for most of the country’s history, yet these “epidemics” only emerged alongside the criminalization of drugs?  Make no mistake, use of opiates, cocaine and other hard drugs were more common before their prohibition, but no social collapse happened as a result.  In fact, historically prohibition has lead to the rise of organized crime and the confinement of some to a criminal class, which both breakdown social order to a much greater extent than use alone does.

Concerning the harms Wilson brings up, there is a sharp divide between the actual case of harm and things which are clearly not harms.  Actual harm to others is caused by pregnant women giving birth to children with fetal-drug syndrome, as others do legally with fetal-alcohol syndrome.  The solution there is that no form of recreational drug, including alcohol should be legal for pregnant women if that drug risks damaging the child.  A person might object that it is unlikely that an addict will stop using their drug of choice upon pregnancy because the law tells them so.  I agree this is the case, but there is a second scenario where no harm is done to others: addicted women will be less likely to get pregnant and more likely to abort.  As a result, the instances of fetal-drug would decline in the case that we legalize hard drugs.

So what about the other “harms” that Wilson brings up?  The issues of neglect for children, and of poor work done are worthy of concern.  But imagine these issues apart from drugs.  Neglected children are dealt with by child protection services; we do not and cannot reasonably force people to parent with the threat of jail, only with the threat of taking their children away.  Certainly we want to institute policies that reduce the overall instances of neglect and other ills to children, but the consequences of prohibition on that and other problems are, as we will shortly see, greater still than the consequences of legalization.  The other cases are easier still to dismiss as harm.  Lack of providence, energy, or care are not harms.  The absence of a good is not a harm.  A worker who performs poorly is not harming his employer anymore than he can be said to have caused harm simply by not giving a person $20.  And employers can simply fire poor workers and hire new ones.  In this way any loss the user might cause to others is simply shifted back to the user.

Of course increasing the amount of good outcomes is something to aim for, but clearly not if the thing increasing the amount of good increases the amount of harm even more.  It turns out the harm done to not only to hard drug users but to people that want nothing to do with hard drugs under current prohibition policy is quite great.  Ethan A. Nadelman gives several examples of such costs.  History has given us a quasi-experimental record of the effects of these policies, and so Nadelman references the effects of the prohibition of alcohol in hopes of extrapolating the damages it caused to the damages of our current prohibition.  While it is true that alcohol consumption decreased as a result of alcohol prohibition, the consumption decrease was not even close to exponential, and this benefit came at a much greater cost in the form of rising power for organized crime. Violence rose in order for gangsters to protect and expand the profits they made in the black market, and with so much money flooded into it, corruption of officials became rampant.  We experience the same thing with modern gangs and cartels which use violence to maintain their black marker profits. Another, more current problem caused by or current prohibition points that he points out, is that jail time done for drug crimes often leads to loss of job opportunities.   For those who cannot find a job due to criminal record, crime may be the only way to survive.  (Nadelman)

This has a great harm effect on to others, but how great?  To show that the harm effect of convicted users under the current prohibition is greater than the loss of goodness effects that will result from legalization, we need only two modest assumptions.  The first is that the harm caused by the average person made criminal by prohibition is greater than the harm caused by an average non-criminal user.  This assumption is pretty easy to make, career theft for instance is a lot more harmful than legal albeit shoddy work.  The second is that more people are made criminal by prohibition than would choose to do hard drugs should they become legal, but not while they are illegal.  All hard drug users are made criminal by prohibition, so in order for legalization to even have a chance of doing more harm than good to those parties who do not use hard drugs, there would need to be at least a doubling in their usage.  For reasons mentioned before, this seems highly unlikely.  Few people who are not users of hard drugs are not doing them because the drugs are inconvenient or impure or criminal, they are not doing them, and will continue not doing them because they do not want to be addicted, or put themselves at a high risk of death.  Will the rate of hard drug use rise if all drugs became legal? Yes.  Would it double? Highly unlikely.   Therefore, legalization will both prevent the harms to others done by more people and prevent more harms to others done per person.

Of course there is also the possibility that the harm principal simply is not a good principal.  Such is the position of Robert E. Goodin, who argues that instead in favor of paternalism.  Goodin holds that paternalism is justified because it helps people achieve their preferred preferences.  A smoker might at a surface level have a preference to smoke as expressed by smoking, but they would likely prefer that they did not have that preference, most smokers would rather quit but do not have the force of will to overcome the addiction.  This rule that the government has a place to step in to protect the interests of a person does not apply to every little thing.  But when it comes to matters of life and death, since smoking does quite frequently lead to early death, Goodin holds that the is a role for the government to play in protecting a person’s own preferences. (Goodin)  And if paternalism is justified for cigarettes due to health risks, certainly it must be also justified for hard drugs, which pose a far more dire threat to the health of the user.

If we have established indeed that addiction to drugs is a real inhibitor of choice, different in kind from mere habit, then Goodin’s argument does seem to carry some weight.  However, if people have preferred preferences for being drug free, why not let them express this directly to private institution?  Why have the government enforce a one size fits all model paternalism when a person can hire private rehabilitation to do the same thing?  If indeed a person prefers to not have a preference for use of a drug all they need do is sign some form of contract allowing some other party to prevent them from using that drug.  This better fits the harm principal than a direct governmental intervention since, should a person theoretically not have that preferred preference, they would not choose to sign such a contract.  But this is a relatively weak argument in favor of free choice with regards to rehabilitation. Aside from principled opposition to unnecessary government, Privatization of rehabilitation is preferable to public laws for three reasons.  The first and most important is that it gives more freedom to the user to decide exactly in what way his or her preferred preference to be addiction free is expressed.  Some governments, like our own, require “cold turkey” elimination of drug use, while others, such as that of Ireland have used rehab systems with weaning to a significant degree of success.  Those afflicted with addiction will be better off allowed to choice the means for overcoming it. The second is that the monetary burden of preventing a drug user to succumb to their addiction should be on the user, and not the public, since the public is not responsible for addiction.  Finally, there is a general higher degree of competence in any industry where there is competition and profit motive.

At this point I rest my argument concerning the legalization of hard drugs.  What about soft drugs?  Surely if I am right in my argument that the legalization of hard drugs is preferable to their prohibition, both in principal and in consequence, then soft drugs should be made legal with far more assurance still.  But even If I am wrong on the count of hard drugs soft drugs should be made legal.  Apart from tobacco, soft drugs such as cannabis are not physically addictive and so the use of them implies a preferred preference just as much as eating any food would.  For this same reason, moderate use of soft drugs is possible and common among users.  Consequently, moderate use is unlikely to cause the neglect of duties, be they familial, vocational, political or more generally social, that Wilson fears in hard drugs.  Many have instead argued that cannabis specifically is a “gateway drug” that leads to more heavy use.  In truth, this ought to be an argument for its legalization and not against it, for the very reason cannabis is a gateway to other currently illegal drugs is because it is illegal.  Non-addictive and virtually impossible to overdose on, nothing besides illegality makes cannabis any closer to hard drugs than alcohol, tobacco, or caffeine.

Psychedelics also fall into the category of soft drugs and should also more clearly be legalized than hard drugs.  Interestingly, while much of the propaganda falsifying the dangers of cannabis is now seen by the public for what it is, myths about the dangers of psychedelics persist in the public eye.  Psychedelic drugs are non-addictive (Lüscher), and no relationship has been found between psychedelic drug use and long term mental health problems (Teri).  Overdose on psychedelics is virtually impossible; the ration of legal dose to effective dose in LSD for instance is 1000:1, whereas that same ratio is 10:1 for alcohol. (Gable) Both cannabis and psychedelics are non-habit forming, low health risk drugs, and they have largely been made illegal to suppress counter-cultural political movements which used these drugs extensively.

The principal that liberty is rightly only constrained by harm done to others is reinforced by the failures that result from denying this principal.  Our current model of prohibition has been just that: a failure.  It should not be surprising in light of the fact that while prohibition of alcohol did reduce use and prevent some harm, it caused even more harm and was consequently repealed.  Why should it be different for any other drug, be it less or more dangerous than alcohol? If we heeded the lessons of history, we would see that wherever victimless crimes are punished, victims of actual crimes, of economic sabotage and violence, start emerging greater in number.

Works Cited

  1. Justice Policy Institute, “Substance Abuse Treatment and Public Safety,” (Washington, DC: January 2008), p. 1.
  2. Szasz, Thomas S. “The Ethics of Addiction” [David DeGrazia and Jane S. Zembaty] Social Ethics: Morality and Social Policy, Eighth Edition. [Ed. Thomas A. Mappes] Print.
  3. Goodin, Robert E. “Permissible Paternalism: Saving Smokers from Themselves” [David DeGrazia and Jane S. Zembaty] Social Ethics: Morality and Social Policy, Eighth Edition. [Ed. Thomas A. Mappes] Print.
  4. Nadelmann, Ethan A. “The Case for Legalization” [David DeGrazia and Jane S. Zembaty] Social Ethics: Morality and Social Policy, Eighth Edition. [Ed. Thomas A. Mappes] Print.
  5. Wilson, James Q. “Against the Legalization of Drugs” [David DeGrazia and Jane S. Zembaty] Social Ethics: Morality and Social Policy, Eighth Edition. [Ed. Thomas A. Mappes] Print
  6. Gable, Robert S. “The Toxicity of Recreational Drugs.” American Scientist. Web. 28 Apr. 2016.
  7.  Lüscher, Christian; Ungless, Mark (Nov 2006). “The Mechanistic Classification of Addictive Drugs”. PLoS Med. 3 (11): e437. doi:10.1371/journal.pmed.0030437PMC 1635740.PMID 17105338. Retrieved 2 June 2015.
  8.  Krebs, Teri; Johansen, Pål-Ørjan (August 19, 2013). “Psychedelics and Mental Health: A Population Study”. PLOS ONE 8: e63972. doi:10.1371/journal.pone.0063972PMC 3747247.PMID 23976938. Retrieved 2 June 2015.

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An Argument in Defense of the Harm Principal Regarding the Legalization of Drugs. (2021, Sep 21). Retrieved from

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