Decriminalizing drugs III

The Ottawa Citizen

In our Saturday and Monday editorials we made three main arguments in favour of drug decriminalization: that the legal status of drugs has little apparent effect on drug consumption; that criminalization unnecessarily puts a lucrative trade in the hands of organized crime; and that the impossibility of stopping drug use leads to ever more drastic measures that corrode civil liberties.

But practical concerns alone cannot settle an issue as complex as drug use. It also involves important philosophical considerations. Criminalizing drugs may or may not "work," but is it morally justified?

In his 1859 work On Liberty, John Stuart Mill made the classic statement of the liberal outlook on such matters: "The only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others. His own good, either physical or moral, is not a sufficient warrant."

Modern democratic states, including Canada, are largely constructed on Mill's conceptual foundation. The liberal state was the first to recognize that its citizens are not children who need governors to pull their hands away from hot stoves. The material and spiritual benefits of that realization are legion.

Of course, legal systems are not philosophical treatises and the liberal axiom is often violated by Canadian law, usually in small, thoughtless ways. But the influence of Mill's principle can still be seen clearly, if mainly implicitly, in our criminal code. Suicide is not illegal. Nor is body-piercing, nor gluttony, nor sloth, nor a thousand other activities that harm only the person who indulges in them.

But the consumption of many drugs, even by adults, is illegal. As a result, although the criminal law permits Canadians to close the garage door and fill their lungs with carbon monoxide for the purpose of inducing death, they may not fill those very same lungs with marijuana smoke for the purpose of inducing pleasure. Dickens' Mr. Bumble was wrong: The law generally is not "a ass." But the logic of this contradiction in Canadian law escapes us: you may do ultimate harm to yourself, but not the minor harm (if minor harm there is) in smoking marijuana. By contrast, the logic of the liberal principle is inescapable -- drugs should be legalized.

Many who accept the wisdom of Mill's principle nevertheless are uncomfortable with its logical implications. In spite of what their reason tells them, they want to keep drugs illegal. Or they desperately want to censor pornography. Or imprison homosexuals. Or ban home schooling. And so they twist the notion of "harm."

Mill and the great liberal thinkers who shaped modern society understood "harm" in narrow, commonsensical terms: Jones bops Smith on the nose, or sets fire to his barn. If the definition of harm is expanded beyond this, however, then drug users, pornographers, homosexuals or others who reside on someone or other's list of undesirables could be hit with violations of the criminal law without such persecution seeming to be in any way illiberal.

In fact, in a growing number of universities, law faculties, courts, and ministries, the liberal principle is being turned entirely on its head simply by redefining "harm." Feelings of humiliation or the creation of a "hostile environment" are deemed to be harms on a moral par with physical force. With such a broad definition of harm, all that is needed to justify bans or proscriptions on various kinds of behaviour is a finely honed sense of grievance and a sophisticated vocabulary.

Similarly, it is often argued that whether to use drugs should not be an individual's choice alone because it may "do harm to others." There is no doubt that harm the drug user does to himself may cause distress and anguish among family members. He may become addicted and social bonds may be strained as he degenerates. And so, this thought has it, society is justified in banning drugs to prevent this "harm to others."

But people constantly engage in any number of activities that, like drug use, physically endanger only themselves but risk inflicting emotional trauma on others should something go wrong: scuba diving, skiing, driving Highway 401. Others may be traumatized when sons marry outside the family religion, daughters form sexual relationships with other women, or parents divorce. With harm stretched beyond its original, liberal meaning, almost any activity that attracted a vociferous lobby group and applause-seeking politicians could be outlawed.

If we are to have a free society in any meaningful sense, J.S. Mill's great liberal maxim must be re-invigorated, but with the original, narrow definition of harm intact. And Canada, secure in the knowledge of what is right in a free society, should allow its citizens to make their own decisions about whether or not to use drugs.