One Man's Poison

The previous post deals with the issue of cannabis legalisation policy approached as broadly speaking a matter of weighing costs and benefits. Here I'll make some first steps in discussing the relevance and impact of moral principles.

(My comments about Hitchens's position are inevitably somewhat sketchy; one could go on for thousands of words attempting to cover every fine gradation and distinction in the positions it is possible to take. An advantage of adversarial debate is at least that I can rely instead on Hitchens to clarify which positions he wishes to appeal to.)

A successful appeal to moral principle in this debate should establish two things: that the principle is valid, and that it has certain consequences so far as the criminal law is concerned. That is not, however, to say that either of these things must be established to any particular standard or by any particular method: perhaps the most that can be said here is that good reasons must be supplied. If they are not, the argument won't go through. And if a (supposed) moral principle can be shown to be invalid or legally inconsequential, then arguments invoking it can be rejected outright.


The relationship between moral principle and the law is a complex matter. I will suggest three main approaches:

First, judgements of value feed into the assessment of costs and benefits: for example if something can be established to be of little value, it should be accorded little or no weight in assessing possible outcomes. Questions of moral duty might in turn feed into judgements of value - the benefits of, to use Hitchens's example, cruelty to animals might be discounted since although a sadistic animal torturer may derive subjective pleasure or other benefits from his activities, these benefits are of such a morally defective kind that they are considered to have no value. That is not so say that the analogy between animal cruelty and taking cannabis is a close one - enjoying cannabis certainly does not depend, either in intention or in fact, on the suffering of other beings (though of course, like almost any activity, it might under certain circumstances bring about such suffering). In any case, on this approach, moral issues are relevant as one of an open-ended set of inputs to a policy decision. Call this the 'value-based' approach.

The second approach to these issues is to draw conclusions about legal status directly from moral considerations. In particular, one might seek to justify punishment of certain behaviour by direct reference to its immoral character. Certain conduct, being intrinsically wrong, should be banned, regardless of whether the consequences of such a ban are entirely desirable, all things considered (such a view might of course allow that very severe or perverse consequences might be sufficient to overturn the presumption in favour of a ban - an example might be Hitchens's remark:
...‘regulation’ of something fundamentally bad doesn’t get rid of its fundamental badness. Sometimes we may have to accept it as a compromise while we try to remove a poison from our culture, or at least greatly restrict it. But that is a defeat...).

I'll refer to this as the 'enforcement of morality' view.

Yet a third way of bringing in issues of personal morality combines certain elements of both these. In common with the first method, immorality is held to 'downgrade' a certain kind of action. In a similar fashion to the second approach, though, this is applied directly to principles about just punishment. Here I have in mind in particular the position that would make an exception of cannabis use: while normally behaviour should be permitted under the criminal law even if it is potentially harmful, there is something about cannabis use which means it is an exception to this general principle. We might call this 'withdrawal of protection'.


Unearned enjoyment

I'll consider first a moral principle that I think fails on its own terms, so that it is unnecessary to consider whether it is legally consequential. In comments on this blog, Hitchens suggests that using cannabis is immoral in itself:

http://surelysomemistake.blogspot.com/2011/07/reefer-madness-evidence.html?showComment=1310810261183#c528468107287226647
There *are* strong moral arguments against the legalising of stupefying drugs, which I happen to think are over-riding.We should live our lives truthfully according to our senses, and not seek to hide from the truth by blurring those senses. Nor should we cheat our brains into rewarding us with artificial joy, when we have done nothing to deserve it.

One element here seems to be a variant of the objection based on 'self-stupefaction', here taking the form of self-deceptive retreat into distorted perceptions. For now all I will say about his is that this is not a good description of the way in which most people use cannabis - while heavy use may have a sedative effect and if prolonged perhaps lead to a degree of separation from reality, it is not an inevitable nor a widespread, nor, even when it occurs, a particularly pronounced effect of cannabis use. I will look more closely at 'self-stupefaction' later.

A second element, which I've emphasised, has been expressed in more detail elsewhere:

http://hitchensblog.mailonsunday.co.uk/2011/07/think-it-possible-that-ye-may-be-mistaken.html
...morally - the pleasure and joy and exaltation provided artificially by drugs, and naturally by the human body are rewards for effort and courage. You may believe this is a created fact or the consequence of evolutionary biology, but the arrangement is beneficial to humankind because it limits this reward to those who have earned it. If you haven’t delivered the Gettysburg address, or won the Second World War, or designed St Paul’s Cathedral, or written Beethoven’s Violin Concerto, you shouldn’t be able to feel as if you had. If you can, then people will stop doing these things.

The final sentence seems to suggest that the idea here is that people taking cannabis will derive such joy and exaltation that they will lack motivation to achieve great things. To scale this idea down, we may express it as the concern that cannabis supplants the will to create, to achieve. This seems misguided, since many who take cannabis report that they experience an enhancement of creativity or of the ability to concentrate. Certainly an altered state of consciousness may be inspirational - one need not make New-Agey claims about the mystic properties of cannabis to see that the change in perspective delivered by cannabis might have benefits.

The idea that cannabis provides 'artificial' rewards is hard to pin down. Much of the subjective benefit to those who take it in moderation seem to consist in enhancing, rather than supplanting, real experience and achievement. 'Artificiality' is of course a rather common feature of the daily benefits (as well as disadvantages) of modern life. That a certain contrivance - the relatively natural one of consuming a herb - operates by way of direct effects on the central nervous system does not seem to me to constitute a good objection in itself.

Of course for some, cannabis is used in heavy doses as a euphoriant sedative. Of those who seek something approaching oblivion, the real question is why, not how, they do so. Fixating on cannabis as a source rather than a symptom of the problem is natural enough - as in the case of parents whose children develop mental illness or behave badly - is misguided. I don't think it at all far-fetched to suppose that the availability of this 'crutch' may have saved lives by providing an alternative to more permanent ways of escape. (Perhaps this is more likely to apply to opiates, a much more effective route to sheer disembodied world-excluding pleasure.) This is something of a diversion, since what 'dependent' and very heavy users get up to does not provide an objection to cannabis use in general.

So I'm led to consider the point relating to earning or deserving one's pleasure. Even granting that cannabis doesn't generate pleasure or satisfaction from nowhere, but instead enhances real enjoyments, isn't there a 'free lunch' being enjoyed here, like manna from heaven? And shouldn't this be stopped? If people are going to have more fun, shouldn't they be made to pay for it?

I don't accept the notion that if people are going to enjoy themselves, they should be made to pay a price. The idea of joy without compensating toil or hardship is not offensive to me at least, even if it is to Hitchens (and it's rather hard to believe that it really is). But in any case it's not clear that this rather excessively puritanical attitude can supply an objection to cannabis use.

I've mentioned previously that cannabis can of course be cultivated by the individual - and that such a case makes clear the essential privacy of cannabis use. This paradigm also serves to illustrate that cannabis use does involve work - we need not fear that benefits are being gained without a price being paid. Of course the price paid is generally a literal price - cash. That fact reflects division of labour: people don't have to grow their own cannabis, but instead pay for it with money, just as they do for other sources of enjoyment, like chocolate biscuits.

The example of chocolate biscuits ought also to see off a plausible and somewhat more sophisticated way of understanding Hitchens's argument here: one which combines and unifies the elements of artificiality and earning. Taking cannabis, the argument might go, involves a failure of reward and effort to be integrated as an organic unity: one's efforts ought to be closely coupled in some way with the rewards one gains from them. This seems to deny the benefits of interpersonal division of labour, so that one may only legitimately enjoy chocolate biscuits that one has made oneself, for example (and must one also make the chocolate, grow the wheat? So far as this has any plausibility, it still seems unable to provide an objection to taking cannabis that one has cultivated oneself.

This line seems unpromising, and I won't pursue it further. If Hitchens has a good point to make here, this surely isn't it. He may of course wish to clarify or refine his position, in which case I will respond.

'Self-stupefaction'

One might try to fit the following remarks into the enforcement of morality approach:

http://hitchensblog.mailonsunday.co.uk/2009/11/free-to-be-slaves-the-real-point-of-the-drugs-debate.html
I contend that it is morally wrong to stupefy yourself, and morally wrong to damage yourself or take a conscious risk of damaging yourself, with the aim of getting physical pleasure...

This might be the right place to locate an earlier discussion of Peter Geach's moral philosophy: Geach says that there is no duty to remain maximally alert, using the example of drinking hot toddy in bed. Hitchens replies:

http://hitchensblog.mailonsunday.co.uk/2011/07/wheres-the-evidence.html
What if the man, having gone to sleep drunk, is woken at two a.m. by the screams of his children, trapped in a fire? Or not woken? Or not woken until far too late? Where then is his duty? Was the drinking or the (tee hee) consumption of ‘cannabis indica’ morally objectionable if the children, as a result, were not saved? Yet he could not have known the house would catch fire -only that there was a remote chance that it might. And a remote chance that he would be too stupefied to act with courage and decision. Even if he was alone and therefore (according to the utilitarian ‘libertarians’) nobody’s concern but his own, he would have been more likely to burn to death, and others would have had to turn out to scrape through the ruins for his charred bones, or even risk their lives trying to rescue his already lifeless body.

An obvious objection to this is that Hitchens, in substituting his own example, has introduced the issue of harm to others - which I previously suggested can be adequately controlled by targeting especially risky or irresponsible behaviour such as becoming significantly intoxicated while in charge of a child, or while driving. But perhaps Hitchens is suggesting that intoxication carries with it such a general risk of danger that it merits a total ban on policy grounds. This doesn't seem sustainable in the case of cannabis intoxication.

However we are to understand the supposed legal consequences of the immorality of 'self-stupefaction' (a characterisation I've rejected as inaccurate to describe the effects of cannabis), the idea that there is an obligation to remain at maximum alertness at all times is hopelessly over-strict. People occasionally become tired, or choose to lightly doze, perhaps while lying on the beach, when they could instead remains vigilant. I don't think we could claim that they are always acting immorally.

Since being asleep always makes one less alert than being awake, even if every tired, perhaps we should resist sleep, or at least seek a cure for it. Similarly, is there a moral obligation to take performance-enhancing drugs? The proliferation of such questions I think illustrates the implausibility of this view.

Once we factor in the need for the moral principle to have consequences for the criminal law, I think it becomes clear that this approach is no good. No-one would accept this totalitarian attitude to mental alertness if it were consistently applied.

Epicycles

Now I have addressed some main strands of argument offered by Hitchens. But it is always possible that moral considerations interact and combine to create complex position, with exceptions to exceptions and so on.

A commenter on Hitchens's Blog, 'beaufrere', has suggested the following distillation of an argument provided by Hitchens:

An activity should be prohibited by law if the following conditions apply:

C1: the activity is known to be harmful to the health, safety or well-being of those who participate in it or who are affected by it, or it is reasonable to believe that there is a significant risk that the activity is harmful

C2: both the risk of harm from the activity and the extent of that harm are significant or substantial

C3: participation in the activity would become (or remain) widespread if the activity were to become (or remain) lawful,

but the activity should not be prohibited if at least one of the following exceptions applies:

E1: the activity has been lawfully pursued for a substantial period of time (and still is being lawfully pursued) by a significant number of people, as a result of which it has gained widespread acceptance as part of the nation's customs or culture

E2: the activity is capable of being pursued or applied for beneficial purposes, and where the sole or main beneficial purpose is the pleasure, entertainment or self-gratification of the participant(s), the pursuit of the activity requires or promotes self-discipline, courage, skill or other moral virtues in the participant.

As beaufrere goes on to suggest, this has the appearance of an ad hoc position tailored to Hitchens's preferred outcome. To try and dissect and evaluate this position would be rather time-consuming, but I am certainly inclined to agree that the position seems to lack antecedent plausibility. If Hitchens endorses this characterisation of his view, or wishes to formulate a similarly clear statement of his position, I will of course address it.

Cognitive Rights

Hitchens states (http://hitchensblog.mailonsunday.co.uk/2011/07/depraved-new-world.html):

Pro-legalisation spokesmen often suggest that there’s something anti-liberty about those of us who want the law on drugs enforced, as if smoking dope were the equivalent of free speech.

Wheil I am not a spokesman or indeed a campaigner, I would certainly agree that there is an important question of liberty here. I've previously suggested that there may be an innate or at least unavoidable desire or tendency for people to seek to alter their state of consciousness. I would certainly consider that there is a right to do so, just as there is a right not to have one's consciousness altered by others without consent. I've previously drawn attention to the essentially private nature of cannabis use. But it may well be that to prevent or prohibit people from using cannabis is indeed to impinge upon a basic right, one which may be more fundamental than freedom of speech.

The central component of non-medical cannabis use alteration of one's consciousness - and what could be more private a matter than that? To prohibit people from altering their consciousness is to impose what may be a significant burden on them, locking them inescapably into a standard mode of thought which in the context of the quotidian reality of their artificial environment may become intolerably tiresome and restrictive. Control over all aspects of one's own mind is surely a basic interest - and the use of tools such as cannabis for exploration of this internal frontier is a part of exercising that control to the full.

If we accept that cognitive rights include the right to alter consciousness - and I think we must - then we should not be erecting insurmountable obstacles to people's exercise of that right - there may not be a right to be supplied with cannabis, but that the state forebear from closing off the supply altogether and from punishing exercises of cognitive freedom may be an indispensable element of any attempt to take cognitive rights and liberty seriously.

Hitchens seeks to force people to be free - but his understanding of freedom is not mine. He seeks to remove any fleeting release or refuge that use of cannabis might offer those who are trapped in a dreary and grinding existence. He hopes that this will lead them to rise up in revolt, but confinement to an unremittingly uniform experience of reality may only draw tighter the chains of a life which for many is neither chosen nor easily escaped.

Revolt requires that one see not only the intolerability of one's situation, but the possibility of something different. Perhaps cannabis can help to deliver a kind of freedom that, glimpsed in the inner realm, can provide a template for independence in all areas of life.

This concludes my current round of responses.