THE INTERNATIONAL JOURNAL OF DRUG POLICY, VOL 7, NO 3,1996
DUTCH WEED AND LOGIC. PART II:
THE LOGIC OF THE HARM PRINCIPLE
CM. Maris*, University of Amsterdam, The Netherlands
*Professor CW Maris is Professor of Legal Philosophy, University of Amsterdam; translation by Donald Gardner.
Part I of this article, published in the last issue of this journal (Maris, 1996), presents an analysis of the inconsistencies in the recent Dutch Memorandum on drugs policy, measured against the harm principle that it adopts as its basic principle. In part II it is argued that the logic of the harm principle in combination with the available empirical knowledge would favour the decriminalisation of drugs. The Dutch drugs Memorandum deviates from its own underlying principle on the following points:
1 . Although the Memorandum rightly rejects any moralistic total war on drugs, it mistakenly adheres to the paternalistic prohibition of hard drugs because of their supposed harmfulness to the user.
2. It rightly aims to prevent harm to others in !he form of drugs-related crime, but it wrongly ignores the most effective means to this end: decriminalisation.
Part of its unwillingness to decriminalise is caused by a lack of appreciation of the benefit that derives from the recreational use of drugs, putting all emphasis on their negative effects. Taking into account the positive and negative effects of drugs and of prohibition, the government should opt forregulation to protect vulnerable groups, similar to that governing the use of alcohol. Social and medical care should be extended, and a state-regulated supply of heroin should be available to addicts. At the same time drugs-related crime should he systematically prosecuted. These inconsistencies between theory and practice can in part be explained by the international resistance to a liberal drugs policy. On the other hand, the Dutch government is being too prudent, since many other countries are now tending towards ,n.eater acknowledgement of the value of a more liberal approach.
THE SECRET OF HAPPINESS
When applied to drugs policy, the harm principle as formulated by John Stuart Mill requires a weighing up of the individual's interest in his freedom to use drugs against any potential harm that this use may cause. The first question then is what precisely are the positive and negative consequences of drugs.
In the view of the moralistic campaigners in the war on drugs, drugs are by definition evil and as stick can only lead to harm. The harm principle, however, does not recognise moralism as a valid ground for state coercion. Moreover, a general moralistic condemnation of drugs cannot be justified by an appeal to empirical reality. An objective view of the facts puts things in perspective. The outlawing of drugs only began towards the end of the nineteenth cent ury. Before then, drugs such as opium and morphine were used in Europe in the first instance as medicines and pain killers. One could buy them freely at chemists shops. Even today international treaties and national legislation treat medical tise as an exception to the prohibition. Hard drugs such as opium and morphine are therefore in any case not seen as being harmful as such, nor do they represent an absolute evil; it depends on the use they are put to. Under certain circumstances drugs can in fact be of great benefit.
The question then arises of non-medical use. Why in fact do people use drugs if they are so bad for one? In all probability they do so because they have pleasurable effects. In Asia, drugs have been used as stimulants for centuries; in Europe their use became widespread in the nineteenth centtir~. The poetry and fiction of this epoch contains detailed descriptions of the effect of drugs on human consciousness. Baudelaire described the effects of hashish as follows:
cocaine, nicotine and caffeine, and narcotic inhibitors of the functions of the brain such as opium, morphine, sleeping pills, alcohol, heroin and methadone.
Used for relaxation then and not for medical reasons, drugs induce various pleasant states of mind; alcohol and marijuana make one'high', thus reducing mental tension and making social contacts easier, cocaine increases one's energy and self-confidence and opium induces euphoria. Furthermore, it is claimed that hallucinatory substances such as LSD and mescaline give us a deeper insight into reality and further the creative processes; this, however, has not been proved by scientific research.
Hashish covers the whole of one's life like a magic coat of lacquer; solemnly it lends it colour, illuminating it in all its profundity. Serrated landscapes, horizons ever retreating, perspectives of cities white under the corpse-like pallor of the storm, or lit by the concentrated flames of setting suns, - the depths of space, an allegory of the depth of time, ( ... ) in short everything, the universality of beings rises before you with a new, hitherto unexpected glory (Baudelaire, 197 1, p.44).
These dazzling visions are accompanied by a state of awareness that Arabic peoples,call kif, meaning a 'calm, motionless rapture, a blissful state of acceptance'(p.38).
In his celebrated autobiography, The Confessions of an Opium Eater, Thomas de Quincey (1972) wrote:
. . . here was the secret of happiness, about which philosophers had disputed for so many ages, at once discovered; happiness might now be bought for a penny, and carried in the waistcoat -pocket; portable ecstasies might be corked up in a pint-bottle; and peace of mind could be sent down by the mail (De Quincey, 1972, p. 179).
Not all drugs have hallucinatory effects. Others operate on the central nervous system in various ways. A distinction is made between substances that are hallucinatorysuch as LSD, XTC, marijuana and hashish, stimulants such as amphetamines,
THE RIGHT TO BE HIGH
It is clear then that drugs have a positive effect, in a subjective sense, as stimulants, so that individuals may benefit by having the freedom to use drugs. How important this benefit is depends in Feinberg's view on the degree that it furthers the well-being of the interested party. It was along these lines that the court of the German city of Lubeck recently declared that quite a vital interest was involved in the use of drugs: cultural anthropology proves that, throughout human history, these substances have fulfilled the same fundamental need as food and drink. The court therefore declared that the constitutional right tofree development of the personality implies a fundamental'right to be high'. The fact that drugs are nevertheless prohibited, whilst other much more harmful substances such as alcohol and tobacco are not, is viewed by the court as contradicting the constitutional principle of equality. The benefit to the individual from the free use ofdrugs is such avital one that the German legal prohibition of drugs is unconstitutional. Whilst the court is perhaps exaggerating in talkingof afundamental right to be high, the use of drugs forpurposes of relaxation corresponds in any case to a general human need. If drugs do have purely positive effects, there would be no reason at all for impairing the freedom of citizens by prohibiting them.
But this emphasis on the positive effects of nonmedical use is too one-sided. Everyday one sees that the life of an addict is not a happy one: dependency can drastically disrupt the life of the user so that he forms a threat to his environment.
HARM TO DRUG SERS
The harmful effect of drugs has also been described in detail in the literature of the nineteenth century. Both De Quincey and Baudelaire describe the price one pays for the first blissful phase of one's consumption of drugs, later one falls victim to a dependency that reminds one of a long drawn-out suicide. You get used to them and have to increase the dose so ffiat your mood becomes one of lack of affect, anguish and passivity. You have problems in concentrating and are visited by nightmare visions. InThe BlindOwl (1937), the Persian writer, Sadegh Hedayat describes the following terrifying visions of an opium addic t:
The fear that the kapok of my pillow will turn into razor-sharp daggers; ( ... ) the fear that the worms in our pond will grow into cobras; th~2 fear that my bed will turn into a stone tomb the hinged doors of which will close and that they will be sealed with marble hooks, so that I will be hermetically closed; finally the hairraising vision of my voice not being able to utter any sound so that despite all my attempts to call for help, I will be irretrievably', doomed ... (Hedayat, 1987, pp. 87-8).
Furthermore, the addict becomes egocentric and asocial, withall the harmful consequences for society thatthis implies. Only adrastic reduction inthedaily dose can bring an end to this state of mind.
The fact that drugs can be harmful has been proved by scientific research, even though the harm varies according to the type of drug. The danger with soft drugs is minimal, even though currently types of cannabis such as the Dutch skunk are being cultivated that have very powerful effects and which, if used in large quantities over a period of time, can result in serious mental disorders such as neurotic anxiety and memory loss. Smoking more than one j oint a day can be dangerous for people with a tendency to psychosis. The vast majority of soft drug users, however, do not have any problem with it.
The 'stepping stone' theory that the use of soft drugs leads to hard drugs has been disproved. Between 1984 and 1992, the number of Dutch school children of 12 years and older who have smoked cannabis occasionally has risen from 4.8% to 13.6%, whilst the percentage who use cocaine or heroin has remained at 1 %. (The number that drink alcohol has declined from 69% to 64%)
Moreover, there are pronounced differences between the various hard drugs. The drug XTC, which is currently fashionable in the Netherlands, has been legally defined as a hard drug, although experts argue that it should really be included among the soft substances. Cocaine and cocaine derivatives such as base and crack do not lead to physical addiction in the form of withdrawal symptoms. You can become psychologically dependent on them because you feel a strong urge to repeat the experience, but controlled recreational use is also possible. Of the three million Americans who stated in 1988 that they had used cocaine during the last month, only 10% were'addicted' in the sense that they used it on a daily basis (National Institute of Drug Abuse, 1990). This corresponds to the percentage of addicted consumers of alcohol. The same is true of crack, which is depicted as being much more addictive: only 9% of those who in the last month had smoked crack used it more than 20 times a month (Cheung, 1991). The effect of a heavy use of these drugs, furthermore, is not always disruptive; according to an estimate of the US Department of Labor ( 1991) 7 7 % of regular cocaine users has a steady job.
Opium and its derivatives, morphine and heroin, are admittedly physically addictive. The physiological explanation for the addictive effect of these substances is that they take over the function of endogenous substances in the brain such as dopamine and serotonin that suppress pain and give one a sense of euphoria. Drugs produce the same effects artificially and more powerfully. In the longterm, the body no longer produces effects like this for itself. Hence, the compelling need for constant synthetic production with drugs and the extremely unpleasant withdrawal symptoms if one stops using them. Often the means erode the end; the pleasure of the experience becomes less, and the addict continues to use the drug compulsively to avoid unpleasant withdrawal symptoms.
Potentially addictive drugs, or alcohol for that matter, do not automatically lead to dependency just because they contain certain chemical substances. Only an estimated 10% of heroin users are actually addicted-the same percentage as consumers of cocaine and alcohol (Weisheit, 1990). Whether or not a user actually becomes addicted is partially determined by his individual disposition and socialsituation. According to recent sociological research, among addicts dependency is most common with subjects who have suffered neglect during childhood (Prins, 1995). Drug addiction is fostered not only by psychological problems but also by poor social conditions. The majority of opium addicts in New York are concentrated in districts where poor education, a high percentage of poverty and unemployment combined withpoorhousing are commonplace (Inciardi, 1974).
There is, then, a risk of addiction with hard drugs, but as with alcoholics actual dependency only occurs under specific personal and social circumstances. A controlled use without addiction is also possible, and there are plenty of cases to prove it. Furthermore, people who do become physically or psychologically dependent on them do not entirely lose their autonomy. During the Vietnam war, for instance, a large number of American soldiers became heroin addicts, but after they returned home more than 70% of them kicked theirhabit within 3 years (Robins et al., 1980). An enquiry by Waldorf into 228 users of cocaine showed that half of them stopped by themselves for reasons of work or health (Waldorf et al., 199 1).
To sum up, drugs have both positive and negative consequences. They can have a pleasant effect on our consciousness, but they can also lead to physical or psychological dependency and have an adverse effect on people's health. They may function as a psychic painkiller in that addiction is a compensation for psychological and social handicaps, but on the other hand they can also lead to far-reaching personal and social disintegration.
The first form of potential harm associated with drugs is that which is done to the user himself. But according to Mill's (1977) classical interpretation of the harm principle, this sort of harm is beyond the scope of the state: everyone must know for himself how dangerously he is prepared to live. To intervene for someone's own good is paternalistic, and it is against the principles of liberalism for the authorities to act in a paternal way towards adult citizens. One could argue, however, that the use of addictive drugs does conflict with Mill's liberal ideal of individual autonomy: it is the drug that determines the life of the addict and not the addict himself. The authorities may be permitted to protect addicts against themselves, because they are no longer capable of deciding things for themselves.'
The political philosophy of liberalism does allow for the protection of people who have taken leave of their senses or who have not reached the age of reason, for their own good, lunatics and children may be protected from doing themselves harm. As addicts have lost their power of selfdetermination, paternalistic intervention on the part of the authorities is therefore admissible. Someone who takes drugs for the first time, however, is fully in control of himself. It is his free choice, that he runs the risk of addiction. As long as he does not harm others, the authorities should respect his freedom to do so.
Even Mill, however, made an exception to his prohibition of paternalism in the case of enslavement; no one may voluntarily sell himself into slavery, because the principle offreedorndoes notmean that people are free to renounce their freedom. For this reason, the government is obliged to outlaw slavery, even when it is voluntary. Can Mill's line of thought not be extended to actions that lead in other ways to the loss of freedom of selfdetermination? The addict, for instance, loses his freedom not to any exterior but to an internal power. Viewed in this way, the authorities are obliged to intervene, however paternalistic this may be, to prevent addiction to drugs; theymaydo thiseven ifthe user deliberately chooses to take this risk.
The contrast between exterior and internal slavery does not hold water, however, because the use of drugs does not irrevocably lead to the loss of mental freedom. Some of these substances are hardly addictive at all, and the stepping stone theory has been proved to be incorrect. An absolute prohibition of all drugs cannot therefore be justified. But should the authorities not act against hard drugs that are in fact addictive, such as the opiates? Here too it is the case that their use is not always fatal in itself. Whether someone becomes addicted depends on many other factors than just the chemical attributes of the substance, a person's character and social situation also play a role. Furthermore addicts can, oftheir own free will, kick their habit either temporarily or for good. The latter fact shows that the loss of psychological autonomy is not only not irreversible but that it is also not complete. Drug addiction does not take over the whole personality any more than does a dependency on coffee, nicotine or sport. Only with the most extreme forms of addiction is one's autonomy completely eliminated; when the addict is no longer in a state to exercise self-criticism or any degree of self-control because he is a prey to his drugs dependency.'To sum up, the comparison between the deliberate choice to use addictive drugs and voluntary slavery is not very useful: the person who uses drugs does not completely and irreversibly renounce his mental autonomy.
It is of course true that some hard drugs contain a risk of addiction for some users. But this risk can betrer be reduced by a less drastic and more finely-tuned ruling as is the case with alcohol than by a total prohibition that also affects the harmless uses of these substances. To start with, the authorities should provide objective information about the risks, so that citizens can weigh the risks involved againsx the benefits.' In this way, moreover, the danger of uncontrolled, excessive use can be combated.
In a number of cases self-regulation breaks down, leading to addiction. When addiction takes over a user's entire life, radically disrupting it, he can be said to have lost his psychological independence. Paternalistic measures may then be admissible but in the light of Prins's research (1995) these should be of a socio-medical character rather than a penal one. In cases of total breakdown, the addict may be placed under legal restraint to protect him from himself
HARM TO OTHERS
Because the potential hann done by drugs is first of all perpetrated on the user, some authors treat drugs abuse as being'felonies without a victim'. If there is no harm to third parties, drugs should be legalised without more ado. Other authors argue, however, that drugs definitely do harm people other than the user.
Goldstein and Kalant ( 1990) for instance, do not defend the American war on drugs with moralistic arguments but on the basis of the harm principle.
They argue that despite the pleasure they give to millions of users drugs are socially harmful, amongst other things because of the cost of treating addicts. Inciardi and McBride (1991) point to drugs such as cocaine and crack that are directly harmful to others because they make the user aggressive. The consumption of drugs, moreover, can lead to traffic accidents or injuries at work and to a disruption of family life. Finally, drugs- associated crime causes enormous harm to third parties. In this connection it is pointed out that 13% of addicts commit 80% of the total number of felonies in the Netherlands.
The extent of this category of harm caused by drugs has not been ascertained. Statistics clearly show that there is a relationship between drug addiction and crimes against property such as theft and burglary: at least 80% of Dutch addicts are guilty of them. From 1973 onwards, when the use of hard drugs began to expand rapidly, crimes against property rose correspondingly.' But the question remains of how far it is really the use of drugs that is the basic cause of crime against property. The assertion that drug addiction leads immediately and inevitably to offences against property is definitely not true. On the basis of their research into heroin and cocaine addicts, Grapendaal et al. ( 199 1 ) argue that 2 1 % of the interviewees committed no crime over and above the use of illegal substances-something that is possible because the Netherlands still has reasonable welfare benefits. Another 51 % of those interviewed had already been involved in crime prior to addiction. The amount of drugs that addicts consume usually depends on how much money they have and not vice-versa. American researchhas also shown that half of all addicts had already committed offences before they became dependent on drugs (McBride and McCoy, 1982, p, 143). One may therefore conclude that in the case of criminal addicts both the addiction and the criminal behaviour are caused by a third factor, an aberrant way of life resulting from personal and social problems. The less connection there is between the use of drugs and other offences, the less successful will be the combating of drugs as far as it aims to reduce harm to third parties. Even so it remains plausible under present circumstances that drug use will be accompanied by offences against property in the case of many addicts, just because drugs are expensive. Once add icrion has occurred crimes against property increase pronouncedly (Gandossy et al., 1980, p. 83). Thus, one may conclude that under present circumstances drugs do in fact cause harm to others.
HARM RESULTING FROM OUTLAWING DRUGS
Even non-moralistic advocates of the harm principle therefore need to consider whether prohibition is an advisable policy. The harm resulting from the free use of drugs should be compared with that ca used by legal prohibition. In the case of the latter alternative, one should bear in mind the encroachment resulting from prohibition on the freedom of citizens to use harmless drugs. Two social experiments offer empirical support for this argument. First, there was Prohibition in America (1920-1933) when the traffic in alcohol was completely outlawed; the second and opposite example is the comparatively tolerant climate for drugs in the Netherlands.
According to Goldstein and Kalant (1990), the balance tips towards the harm clone by drugs, so that the American war on drugs should ~ontinue to be waged. If the government were to decottrol the traffic and use of drugs, they expect it would lead to a considerable growth in their use with all the harm that would ensue. They base theircase on a comparison with alcohol: during Prohibition the use of alcohol declined considerably, only to rise again when it ended.
In the book Is Dutch Policy an Example to the World? ( Leuw and Marshall, 1994), Kaplan and otherauthors reject this quantitative analysisofpros and cons as simplistic, because it focuses exclusively on the amount of drugs and drink consumed. On the basis of a qualitative analysis that took more account of the way these substances were used and whether or not it was harmful, Prohibition in the USA turns out to have been less exemplary. The prohibition of alcohol was particularly effective in reducing the harmless social use of alcohol whilst drinkers with a problem continued to drink, but illegally. Criminalization, moreover, caused a shift in consumption to spirits that are relatively more harmful; as spirits are more concentrated than beer, they are easier to transport illegally. The harm to third parties also increased as a result of the ban: the organised criminal underworld flourished due to the enormous potential for tax-free profits that prohibition gave rise to. These revenues enabled it to bribe both the law courts and the police and to infiltrate the legal economy. This led to a swamping of the American system of courts and prisons.
The experience of prohibition in America would seem to suggest that legal prohibition unintention'ally sometimes causes more harm than it prevents. Supporters of the liberalising of drugs legislation therefore use the comparison with Prohibition tosupport exactly the opposite argument, rejecting the American model of a war on drugs. They argue that exactly the same thing is happening worldwide with drugs as took place in the 1920s with alcohol in the United States. The war against drugs drives users into illegality, leading them to inflict great harm on others. On the demand side, drugrelated crime increases due to the high price of illegal drugs. If addicts commit crimes against property to support their addiction this is not so inuch a result of the use of drugs as such as of the repressive policy that makes drugs unnecessarily expensive. On the supply side, organised crime increases owing to the opportunities for profit that the statutory prohibition creates. Its gigantic tax-free revenues enable it to gain more and more power in society leading eventually to infiltration of the official circuits.' The burden it imposes onpolice and the courts is disproportionate with 50% of Dutch penal activity being tied up with combating drugs and 50% of the cells filled with drugs offenders. This means that the government does not get round tocombating other sorts of crimes. Yet this repressive policy has little success; it is estimated that it affects no more than 5 - 10% of the total traffic in the Netherlands. The hardening of the struggle means that the fundamental principles of procedural law are threatened. Finally, fori-nal repression blocks the possibility of a more successful control of drugs use: people do not learn to deal with the risks in a self-controlled way.'
As against the repressive American model, Kaplan et al. (in Leuw and Marshall, 1994) recommend the more open and differentiated Dutchdrugs policy that is more concerned with social integration than in combating the problem head-on. This model achieves better results in reducing harmful side-effects of the traffic: the Netherlands has relatively few drugs deaths, cases of AIDS infection and drug-related crime. The harm can therefore be triore effectively reduced by influencing the character of drug use than by a total prohibition. A less drastic ruling also means that the good involved in the free dom to use harmless drugs is left largely unimpaired.
The comparison between the American and the Dutch model also shows that the Dutch appr,-)ach still contains too many repressive elements that increase the harm rather than diminishing it. The penal approach therefore should give way to a more finely-tuned control based on the model of the policy for alcohol. Although the number of hard-drug addicts in the Netherlands is far less than that of problem drinkers (325 000 consuming a minimum of 12 glasses a day), it is clear to everyone that a prohibition on alcohol would be counterproductive. The penal code should only interfere with forms of drugs use that cause direct danger to others---for instance driving when tinder the influence of an intoxicating substance.
The decriminalisation of drugs does not of course mean that the government should also tolerateother offences associated with drugs use that are harmful, such as crimes against property and robberies. In all likelihood, a liberal drugs policy will in fact reduce this harm.'lf it remains unabated, it must be combated directly with the resources that will be unleashed if the government no longer needs to maintain the Opium Law. Grapendaal et al. (1991) offer a number of recommendations. First, they single out opportunist theft such as shoplifting, which they estimate as 40% of all drugrelated crime. These are crimes that can better be combated with measures against the offence itself such as increased security, than with additional measures against the perpetrators. Shoplifting for that matter is also widely perpetrated by non-addicts-by housewives, school children and others. Anapproach that is more directly related to the perpetrator is, however, appropriate with a second category of offences of a more serious nature committed by a hardened group of criminals comprising 13% of all addicts. Addicts in this group commit an average of one offence every day, amounting to 2700 guilders a month. The method adopted in the Dutch city of'Breda of dealing with these hardened criminals is a good example of how the authorities should act: a central list is drawn up of these offenders and their crimes and every week a co-ordinated operation by police and courts places the top ten on the list in custody where they are prosecuted as quickly as possible. This policy has led to a reduction of one-third in the number of burglaries and car thefts. To achieve an even greater reduction, the authors recommend an exceptional restraint in the form of lengthy sentences for this group of offenders., they do not need to be life sentences because the period of hyperactive criminal behaviour declines by itself as the criminals get older. The harm principle may certainly be used tojustify a legal restraint on the freedom of the perpetrators during this extremely harmful period of their lives.
The damage arising from the disruption of the immediate social environment of the addict can in exceptionally serious cases be combated by making him a ward of court.
PHILOSOPHY AND PRACTICE: MODERATION IS THE GOLDEN RULE
It is to similar conclusions for the drugs policy that the philosophical harm principle would lead if it were consistently adhered to on the basis of the facts at our disposal. Many of these arguments are present in the Memorandum but by no means all the conclusions.
In the following points the same conclusions are drawn. Ideally speaking, soft drugs should be legal. Legalisation should however be accompanied by a degree of control to protect more vulnerable social groups. Social and medical care needs to be available for addicts. The authorities should combat any nuisance to the public. From the point of view of exceptional prevention the group of hardened criminal addicts should be dealt with effectively and if need be removed from society for a long period.
On the following points the conclusions of the Memorandum are dissimilar. Hard drugs remainfactually punishable as a matter of principle. Soft drugs will in fact remain formally and partially also factually punishable. The control of coffee shops will go further than the harm principle would justify (why should the number of coffee shops per se be cut by half; the 5 g maximum permitted amount of soft drugs is intended to discourage drug tourists, but in fact it only leads to illegal purchase elsewhere; the maximurnof a fewhundred grams will not be adhered to inpractice; no arguments are offered for the prohibition of the sale of alcohol in coffee shops).
If we measure the Memorandum against the standards for a consistent drugs policy based on the harm principle as mentioned in the first section of this article, the following discrepancies and inconsistencies can be discerned:
1 Although the Memorandum rightly rejects the moralistic total war on drugs in the name of the harm principle, it still adheres wrongfully to a paternalistic prohibition of hard drugs on the grounds of their potential harm to the user himself. It does not justify the continuation of penalisation for hard drugs with the argument that hard drugs may be harmful for third parties, as it should have done according to the harm principle.
2. The Memorandum does, however, aim to cornbat the harm done to third parties in the form of drugs-related crimes and nuisance in keeping with the harm principle. At the same time it ignores its best means to this end-that of decriminalisation. Much of the harm is CILIC in fact to the penalisation of these substances.
2.1. The reluctance to legalise drugs is in part due to a failure to appreciate the importance of the freedom to use substances of this kind. The government places all the emphasis on the negative effects of drugs, ignoring the potentially positive effects that drugs like alcohol have as means of relaxation in social exchange.
2.2. If it took into account the positive and negative effects of drugs, and of a prohibition of them, the government should come to the same ruling as now applies to alcohol, instead of imposing penalties that restrict the freedom of the citizens.
In part these differences between my own theoretical line of reasoning and the pragmatic Memorandum can be attributed to the international opposition to a liberal policy. The Netherlands is right to adapt to it. The resulting inconsistencies, that accompany the tension between simultaneously prohibiting and tolerating soft drugs, can still be reconciled with the harm principle: as long as the legalisation of drugs does not take place worldwide a country that introduces a one-sided legalisation will suffer considerable social damage. It will attract all the problems caused by individual addicts and the worldwide traffic in drugs and the response of moralistic neighbours will put it in quarantine.'
On the other hand the Memorandum is rightly criticised because it is too timid. While the Netherlands toughens up its prosecutions policy under the moralistic pressure from abroad, foreign countries such as Germany, Switzerland and England are turning increasingly to the Dutch model. The French government is sharply critical of Holland-inan ill-considered report to the French government, Senator Masson has labelled the Netherlands a 'narco-state'. In fact, however, tolerance is spreading in France too at the level of local authorities who have to put the policies into practice; the Henrion Committee set up by the French government has recommended that drugs be officially decriminalised. With the exception of measures that are taken to reduce harm to third parties, most new repressive proposals are unnecessary.
Other inconsistencies on the contrary cannot be defended by pleading pressure from abroad. The arguments that the government uses to support its own principled conviction that hard drugs should remain punishable by law are quite threadbare.
The recent categorising of a comparatively mild substance such as XTC as a hard drug and its consequent criminalization is not only inconsistent and unnecessary; ifwe thinkofit asasocial experimentit shows that a prohibition causes more harm than it prevents. Criminalising XTC makes it interesting for criminals. Between 1985 and 1988 when this fashionable 'love pill' was still legal in the Netherlands, accidents hardly ever occurred. The users bought a quality product on the free market. On the illegal market it has been much more difficult to control the drug for quality and wide-scale cuttingof the pills with other substances has occurred. The number of cases of hospitalisation resulting from XTC use has increased correspondingly.
Another unnecessary development has been that of a more aggressive prosecutions policy on the model of'Operation Victor' in Rotterdam in 1994. The Memorandum is wrong to see this operatic n as a model, because infact it shows rather how indiscriminate prosecutions can have the opposite effect to that which was intended. After the Rotterdam authorities had closed dealers'liremises in wide -scale operations the traffic continued but moved to the street; street dealers began to push crack, the inuch more addictive coke derivative. The prosecutions policy would do better to concentrate on home dealers who genuinely create a nuisance. Equallyscriseless and harmful is the bellicose stepping up of the war on drugs in the courts; here the Memorandum calls for considerable material sacrifices from citizens and restrictions of their civil rights. The controlled medical dispensing of heroin on the contrary should be considerably extended.
In future, the government should aim to achieve a stepping- stone policy for drugs. Since the American experiment with the legalisation and control on the sale of alcohol after the Prohibition era, alcohol has no longer been seen as a crucial social problem. The Dutch experiment with a factual and successful decriminalisation of soft drugs can be seen as a second step in this development. It is a step towards the third phasethat of an extension of the same tolerant approach to the control of hard drugs.
1. See Husak, 1992, for a detailed discussion of paternalism in dealing with drugs users.
2. In keeping with Gerald Dworkin's definition of autonomy: '. . . autonomy is conceived of as a second-order capacity of persons to reflect critically upon their firstorder preferences, desires, wishes, and so forth and the capacity to accept or attempt to change these in the light of higherorder preferences and values. By exercising such a capacity, persons define their nature, give meaning and coherence to their lives, -and take responsibility for the kind of person they are' (Dworkin, 1988, p. 20).
3. Most liberals accept a 'weak' version of paternalism: the authorities may protect someone against dangers that he incurs involuntary, especially in cases where he himself is not aware of them, as this is no real encroachment on his freedom of choice. Mill gives the example of stopping someone from crossing a bridge that is likely to collapse when you don't have time to warn him. The implication of this example is that if there is time, all the authorities may do is inform the public adequately.
Like Mill, Feinberg also accepts a 'weak' form of paternalism: intervention by the authorities is admissible if someone threatens to harm himself by involuntary behaviour that is not based on a considered choice. In this connection Legal Paternalism discusses the possibility of someone taking risks that are so irrational that you have every reason to doubt that he is acting out of his own free will (see Feinberg, 1980). Using the example of the consumption of drugs, lie contrasts the risks on a sliding scale of diminishing responsibility.
A risk is clearly unreasonable if there is nota single reason why someone should run it. Some liberals consider that patemalism on the part of the authorities is definitely admissible in the case of completely irrational behaviour that cannot possibly serve any reasonable good-voluntary self- inutilation, for instance. According to this approach, the authorities are within their rights in prohibiting Russian roulette. See F. Jacobs, 'Liberalism and Paternalism' (in Musschenga and Jacobs, 1992).
Feinberg on the other hand rejects this 'strong paternalism , ; the state in his view has no right to go against anyone's deliberate voluntary choice. He illustrates this with the hypothetical example of someone who decides to use a completely harmful drug for no other reason than that he wants to harin himself Such peculiar behaviour would strongly suggest that there is a question of a lack of free will, so that a mild form of paternalism is appropriate. If, however, the person involved is in no way mentally disturbed or depressed and can show that he really has acted voluntarily, one should let him do what he likes.
This distinction between strong and weak paternalism is not relevant to present-day drug taking. The drugs we now know of are not purely harmful; in addition to their inherent risks they still represent a reasonable good, that of giving pleasure. Feinberg chooses as his next example that of the person who uses drugs despite the knowledge that he will probably suffer severe mental and physical consequences after the period of initial enjoyment. According to Feinberg, it depends on the proportion of pleasure and harm involved whether or not one can speak of an irrational risk. If you enjoy a mild euphoria for an hour that is immediately followed by a painful death, the choice would seem at first sight to be unreasonable. You can conclude that the transaction was an unreasonable one and are entitled to prevent the person concerned from harming himself. In this case, too, you may only do so if the person concerned does not offerany evidence that lie has in fact acted deliberately.
In view of the fact that present-day drugs are not accompanied by immediate and fatal risks, the following example on Feinberg's sliding scale is relevant for the present discussion. According to Feinberg the freedom to use drugs is on the whole not in question when the risk corresponds to that of nicotine: the pleasure of the moment can in the long-term be weighed against an extremely painful death by lung cancer. The state does have a respo risibility, however, to provide information; it can also impose taxes on the substance to limit its consumption. But 'Feinberg regards it as a reasonable choice if someone still decides to use nicotine or drugs; prohibition is not appropriate. (In fact nicotine is much more deadly than those drugs that are prohibited: every year there are 83.3 deaths for every 10 000 people who smoke regularly. Soft drugs don't kill. The number of deaths from cocaine is similar to those from alcohol, 20.6-29.0 per 10 000. Other more generally accepted forms of leisure activity, such as driving, carry greater risks. The risk of less fatal sicknesses is alse smaller with drugs than with alcohol and tobacco. The risk of serious addiction for the average drugs user is fairly sinall. See Husak, 1992, p. 95ff.)
4. For a survey of the American situation see Wish and Johnson, 1986, p. 59. These authors also state that a more intensive use of hard drugs is accompanied by a more serious level of crime.
5. An estimated 10% of the Dutch economy has bc-n infiltrated. Businessmen, too, are now arguing for a liberolising of drugs out of fear of this unfair competition -whilst at the beginning of the Industrial Revolution in the ear'ly nineteenth century they -argued for the prohibition of alcoliol and opiates in order to reinforce discipline on the factory floor.
6. In the case of alcohol, Feinberg talks of 'aggregative harms', by which the risk is unequally distributed among the group of users. Generally speaking alcohol is harmless. Most people drink in moderation as a form of relaxation. In some cases, however, the risks are great; drunken driving is an example that comes to mind immedi,,4ely. Having no controls at all would not prevent this, whilst a complete prohibition would affect harmless as well as harmful use. The best solution is for the lawmakers to control the use of alcohol with a system of selective licensing.
The strictness of a system depends on the risk involved. Gun licences should only be granted to a qualified minority. Driving licences on the contrary should be available to everyone who passes an exam (with the possibility of revoking it in the case of offences). The sale of alcohol is often linked to fixed hours, while sale to minors and drunks is prohibited. This modest system of controls leaves the possibility open that a minority of adult drinkers will abuse their freedom and cause serious harm to others. A stricter system, however, would do more harin than good. Suppose the authorities banned all notorious alcoholics from drinking. It is precisely this group Feinberg argues, that would take no notice of any prohibition, and would resort to illegality. The only solution would be to put everyone in prison, la most uneconomical solution indeed' (Feinberg, 1984, p.198). A more economically sound answer would be to revoke someone's licence in the case of drunken driving, or someone's licence to sell alcohol in the case of repeated sale to minors or drunkards.
7. Doubt is cast on its effect however by the fact that many addicts were criminals before they became addicts. They are likely to remain criminals even in a situation where they are less dependent on crimes against property-for instance with legalisation making drugs much cheaper.
None the less it is arguable that a reduction in the price of drugs will lead to a reduction in crimes against property.
8. If the harm principle were adopted internationally a principled argument would have different implications. Moralistic concerns such as the absolutist ideals behind the 'war on drugs' are in Feinberg's view not law" and do not count therefore (see the first note of Part 1). Otherwise every moral majority would be able to frustrate the individual freedom of others. From the point of view of national lawmakers, however, international pressure does not count as an interest to be considered, but as a factor in the political power play.
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