1 World Plenary Session November, 2006 Mont Pélerin Society Guatemala City LEGALIZE DRUG TRAFFICKING? The War on Drugs from an Ethical Perspective By: Armando De la Torre Lately the voices have multiplied among classical Liberals and libertarians of all colors pleading for the legalization of the drug traffic. This call seems paradoxical to me for it issues from people and groups often adamantly opposed to drug consumption, almost with the same vehemence that, for other reasons, they also object to any constriction on their personal freedom. This is precisely what is at stake in my view: to legalize, or not to legalize, slavery, not of bodies but of minds. The issue at hand is far more fundamental and goes to further questions about law and ethics, and even to the possible moral justification of government per se. How to explain such contradictory attitudes among people who share the same scale of values -topped for all of us by personal freedom- with those other of us who remain totally committed against the legalization of drug trafficking? As an initial assumption, I may state the obvious: that free men all over the world pursue the same aims through different means. In the case at hand, our concern appears to turn on how to determine which measures might be more efficient to soften the social effects ( externalities ) of drug consumption and trafficking while respecting personal freedom. A genuine ethical dilemma for any of us, i.e., between two evils we find ourselves morally obligated to choose the supposedly lesser one. With the following caveat: in the realm of ethics, any cost-and-benefits analysis is possible only within an utilitarian or prudential approach, according to which all values are thought to be interchangeable and consequently there can not be an ultimate source of moral obligation.
2 2 From that perspective, it boils down to choose the most useful mean to a desired end. In other words, when we hold that the hierarchy in our scale of values is prudently relative to each individual s marginal utilities when choosing one or the other term in a moral disjunction. But from a categorical moral point of view, not all values are so indifferent to their place in such a scale. There are supreme or unconditional values, like those implied in the famous categorical imperatives maintained by Immanuel Kant (always to respect persons as ends in themselves, never solely as mere means). Or the Ten Commandments common to Jews and Christians, whose values by definition are not interchangeable and, even more, by the will of God constituted as firm protections of the sacredness of life, property and truth. In both categorical approaches the Kantian and the Judaeocrhistian- self destruction as an extension of the respect due to any human life is absolutely inadmissible too. To take therefore into account only the utilitarian point of view and no other (those categorically requested from us either because of our rational human condition -Kant- or because it is the will of God), sounds to me frankly like another libertarian lapse into a fatal conceit (Hayek), like the damaging 19 th -century positivism embraced by many classical Liberals (John Stuart Mill, for instance), or that widespread wave of European nationalisms among Liberals that wound up buried in the trenches of the First World War. But even from just a utilitarian or prudential viewpoint, the current vogue of drug abuse liberalization doesn t appear highly convincing to me. The utilitarian reasons usually offered in favor of legalization are multiple. Professor Milton Friedman, as well as some libertarian organizations like the Cato Institute, in Washington, D.C., and an increasing number of federal judges in the U.S.A., have placed themselves squarely at the head of the campaign to legalize the use and the distribution of drugs. Otherwise, they say, we will be impinging upon fundamental individual rights of adults and distorting, on top of that, the price mechanism of free markets.
3 3 For them the present restrictions are tantamount to the criminalization of something whose nature is not criminal, as happened in the criminalization of homosexuality that occurred in the past, or the continuing criminalization of prostitution in many countries behavior that has been or still is penalized even though it takes place between consenting adults. Further, they argue, it is a fact that the conventional international war against drugs has been lost, or at least has been conducted at too high a price, and apparently with no end in sight. Consumption has not been significantly diminished in main drug markets the developed worlds of America and Europe- and is spreading faster in the so called Third World (Asia, Africa, and Latin America). (1) In addition to that, the titanic effort to prevent the production, distribution, financing and consumption of drugs by appealing to the coercive power monopoly of governments entails greater evils. Human rights of innocent people have been little by little eroded, and in many cases definitely trampled upon, and we are presently witness to the destruction of the whole social fabric of drug producing countries like Colombia, Ecuador, Perú, México, Bolivia, Burma, and Afghanistan. On the other hand, lessons learned from that famous noble experiment of the twenties in America against alcoholic abuse points rather in the direction of legalizing drug use and trade. Morality, it has been said, cannot be legislated. Whenever tried, the remedy has turned out to be worse than the disease it was supposed to cure, as tragically illustrated by the emergence of organized crime during Prohibition. Furthermore, citizens who were law abiding and didn t think that alcohol drinking was morally wrong like those who have migrated into the USA from wine producing and exporting countries, mostly France, Italy, Belgium, Germany, and Spain, or whisky, like those from Ireland and Scotland, started to break that particular law and began to lose respect for legally imposed wider public norms. Such a rebellious attitude seems to repeat itself nowadays among many young people who do not feel themselves to be ethically bound to abstain from drugs, especially those which they unwisely consider not to be chemically addictive, like marijuana and cocaine.
4 4 In addition, ridiculous if not tragic cases occur, like medical prescriptions that include the consumption of some forbidden drugs which compel patients to look for them in the black markets. The purity of drugs too is placed in jeopardy in such underground markets, which increases the danger of incapacitating illnesses and even death. And the prices thereof keep on skyrocketing, due precisely to their artificially created scarcity. Finally, limited experiments as those engineered in the red-light district of Amsterdam and Zurich (2), have facilitated the controlled provision of drugs to the incurable addict, and the evidence points to a certain stability of drug abuse in those urban centers without any significant increase in the number of peripheral addicts. It should be additionally underscored that enormous amount of resources seemingly wasted in fighting drug trafficking could have been directed towards more constructive ends, like prevention campaigns among the youngest users, and rehabilitation programs for the long term ones. For the legalization advocates the upshot remains seizing from criminal bands ( cartels ) their oligopoly on the provision, trade and financing of drugs, and their diversion towards the legal competition characteristic of free markets. Another advantage of such an outcome would be their incorporation into the formal economy, which means expanding state revenues as soon as an unfettered drug trade starts paying income and import taxes like any other legally operating business. Being a free marketeer myself, I now take the liberty to respond to this reasoning albeit from a different perspective. (3) My first question is this: do we uphold free markets because they are more efficient in producing goods and services or because they are the result of exercising our prior natural and civil right to free exchange? My point here is that most people who have become chemically conditioned to drug abuse have lost their freedom to choose. Worse, that this conditioning starts today at an increasingly younger age. Free legal markets presuppose free agents. But drugconsuming minors are by definition not fully responsible free adults, and often they shall
5 5 arrive later at adulthood already chemically conditioned, to speak not of the increasing number of babies who are born addicts to drugs abusing mothers. On the other hand, it is important not to forget that all agents in a free market are always ethically constrained in their dealings by universal moral standards not to harm innocent people, neither by deceit nor recourse to physical force. An exchange of goods or services for drugs involving minors seldom takes place that does not entail any of those two moral ills or even both, a fact widely in evidence in elementary public schools of the urban inner city. We pride ourselves on having abolished slavery in the nineteenth century. But that was a servitude of body; the slavery to which some of us seem to be unconsciously indifferent is a much worst servitude of mind. The rest of the pro-legalization argument for drug trafficking and consumption sounds to me rather fallacious. What war has ever been forever won against perjury, theft, murder, kidnappings or pedophilia, to mention a few recurrent crimes? Should we therefore give a free pass to those victimizers simply because we haven t been able up to now to stop them? The erosion of our rights do not come from those of us who defend our children from drug enticers through a timely recourse to Law, but ultimately from those who selfishly indulge in their own weaknesses without any regard for the externalities they inflict on the younger of the community where they live. (4) Besides, nowadays we cry loudly against polluters of all sorts. What makes drug polluters different? Morality, yes, has been legislated all the time. In the name of the sacredness of monogamy, Mormon rights were trampled upon during the nineteenth century. What libertarian would dare to condemn today the monogamy which was used as a pretext for what was done to them? With regard to law abiding citizens who turned to law breakers during and after Prohibition, should we now abstain from prosecuting CEOs, for instance, because the Security and Trade Commission regulations forbid the rampant inside trading in Wall Street?
6 6 In addition, who is to decide whether a drug is addictive or not? The trafficker, the minor who abuses it, the parents who do not give a damn? Governments have been created for the protection of persons and their properties. More to the point, we all agree in assigning to the courts system the last voice in settling legal controversies. If drug use, abuse, and trafficking were mandate legal, it will be far more difficult to legally keep drug pushers out of school premises, and even to take them to court. Many medical prescriptions are regulated because their long term side effects haven t yet been ascertained. Must we, for example, wait to walk again the entirety of our long and tortuous road against cigarette smoking until more mature drug abusers and collateral passive smokers die in droves of cancer related diseases? Officially certified purer drugs, it is argued, will be sold if the drug traffic becomes legal in a competitive market. Then why not to allow purer prostitution of minors or purer child pornography? Will its legalization provide for a cheaper supply of drugs? Of course, and but for a larger aggregate demand too. The great jurist Georg Jellinek once said: Law should be a minimum of morals. But which morals? Utilitarian or categorical morals? Those who abide by the latter will continue to think themselves -and the minors under their responsibility- bound by the prohibition not to destroy ourselves willingly or to encourage other to do the same, mostly under the clear assumption that God remains the only ultimate master of man s lives, and not because of any prudential considerations. But we live in secular societies and here, I understand, nobody can impose his or hers values on the rest of the population. But it happens that we, secular citizens, have adjusted without much of a fuss to secular privileges and public support for entire social classes (labor unions), ethnic groups (Indian reservations), religious communities (Amish), affirmative action for those whom we deem today were victims of unfair treatment long ago, or that we even keep fixed racial and national quotas for immigrants since 1922 with no end in sight Are consequently parents of minors who consider them exposed to the emotional contagion of their drug abusing classmates, and to the so
7 7 called value free atmosphere of today s public school systems, plus to the unwarranted presence of the drug pusher, less entitled to at least some rebate from the government on the taxes they have paid for the education of their children? This, I think, could be part of the public choice solution, if the drug traffic is to be depenalized. I don t see, however, any movement among my dear libertarian friends in this direction Suicide can t be legally forbidden, of course, neither for adults nor for minors. But people can be dissuaded to commit many forms of suicide by legally proceeding against those who encourage it for personal gain (pushers), or are the selfish source of possible externalities for innocent bystanders (abusers). The misery of orphanage life, bitter disputes about inheritance rights and duties, insufficient credentials for the labor market, the increased cost of insurance, psychological problems with self identity, violence of all sorts, family break downs, are among many of the problems derived for non pot smokers from drug users. Free markets never operate in a moral vacuum, as we know from the existence of moral institutions, for example, property rights or morally bounding contracts, wills and torts. Sometimes I wonder if my friends and colleagues who advocate the legalization of the drug traffic are aware of how much that measure might increase the collateral real human cost of drug abuse. Are we to build more hospitals where to treat the growing numbers of addicts? Are we to develop new programs for the homeless who will lead a forlorn life on account of their now legitimate addiction? Are we to help the desperate parents who see their once promising teenager and young adult children forever incapacitated because of drug abuse in their formative earlier years? Are we going to keep count of the cases of incest under the influence of drugs among poor or ill educated people in backward communities, which might ruin the emotional and sex lives of many innocent girls and women? Will we be able to keep track of venereal diseases AIDS included- predominant among drug abusers, and that mortally affect their unsuspecting sex partners?
8 8 And what about drug related crimes like theft, fraud, battery, blackmail, wife and- children beating, street assaults, homicides, robberies committed against user s own parents, kidnappings, felonies, jumping bail, or hit-and- run accidents by speeding drivers under the influence of drugs? What about drug running associated social ills like prostitution, extortion, human trade of women, of migrants, of minors, or gambling or liquor counterfeiting, typical all of the organized crime who is used to beat legal competitors through smuggled substances, even when they may have become cheaper under decriminalization? And what about the immense investments which will be diverted through drug trafficking from more productive and constructive uses? Should we reward them by according them the same legal starting point, or extending to them the same universal assumption of fair play, or even the minimal benefit of the doubt, that we usually accord to any other acceptable behavior within the frame of the division of labor? Emotional contagion, let us not forget, will as always be a factor among teenagers and yuppies who move around such circles where chemical aids to socializing, like cocaine and MDMA (extasis), are widely indulged in and promoted. Further consumption of social contact-inhibiting drugs, to the contrary, like crack or heroin, never is the same as drinking a cup of tea or wine, or even a few grams of marihuana. Much work-absenteeism and most serious crimes committed by drug abusers will be traceable to those and similar dangerous chemicals. The same can be stated about some inhabilitating diseases which have been medically identified as byproducts of drug abuse. The discussion, therefore, about the convenience of possible legalizations of drug traffic should include right from the start those proven nuances of their externalities, and proposals for their legal inclusion should be made to fit accordingly. If we do not take these differences into account when discussing ethical limits (either out of prudence or out of commands) for agents within competitive free markets, we might have betrayed, I think of course, without realizing it-, our principles of absolute respect for the inalienable rights to life, liberty, property, and contracts that we
9 9 universally agree we owe to our fellow men, especially to the most vulnerable ones, and to God if we happen to believe in Him. FOOT NOTES 1. See The Addiction Problems ( El Problema de la Addición ), by Barry McCaffrey, Director, Office of Substance Abuse and Health, It is worth reading the following paragraph: En los últimos 15 años, hemos reducido en un 50 por ciento el número de consumidores de drogas ilícitas. En 1995, apenas un seis por ciento de nuestra población domiciliaria de 12 o más años de edad consumían drogas, en comparación el 14,1 por ciento en El consumo de cocaína ha decaído también, al disminuir 30 por ciento en los últimos cuatro años. Más de 1,5 millones de norteamericanos consumían cocaína en 1995, una cifra menor en comparación con los 5,7 millones en el decenio anterior. La cocaína deja de ser una amenaza mayor en Estados Unidos. Además, los homicidios relacionados con drogas han disminuido un 25 por ciento. La mayoría de las grandes empresas tienen programas eficaces para proveer un lugar de trabajo libre de drogas. Y nuestros pueblos y ciudades han formado más de coaliciones comunitarias contra las drogas, la de Miami ha reducido en 50 por ciento el consumo de drogas. Es evidente que cuando nos concentramos en el problema de las drogas, podemos reducir el consumo de éstas y sus consecuencias. 2. And a scarcely noticed experiment in Alaska since 1975, legally allowing home consumption of marihuana. 3. You might find useful the revealing information contained in the book The Drug Scourge as a Hemispheric Problem, by Barry McCaffrey, Strategic Studies Institute, Washington, D.C the drug problem in this country should be understood primarily as a problem of demand, not supply (McCaffrey).