Hitchens discusses the passage into law of the Misuse of Drugs Act 1971. He states (p.67): The proposed Bill abolished the absolute offence of allowing drugs to be used on one’s premises.
This is incorrect. By the time under discussion (early 1970), the Lords of Appeal had already, in the well-known case of Sweet v Parsley (23 January 1969), found that the relevant legislation (section 5b of the Dangerous Drugs Act 1965) did not create such an absolute offence.
He also states:
it separated the offence of trafficking from the offence of possession, and made the penalties for possession alone much weaker. As we shall see, this would lead over time to the effective decriminalisation of cannabis possession. This distinction was also to be the foundation of another key policy. From then on the state sought, with much rhetoric and rather less action, to interdict the supply of drugs, classed as an extraordinarily evil activity. Yet at the same time it viewed the use and possession of these same drugs as a minor offence. So it made almost no effort to interdict demand. Thus, in some mysterious way, the drug was evil as it flourished in the fields, evil during its long journey from grower to smuggler, and still more evil in the hands of the seller. But it became miraculously innocent at the moment when it passed to the hands of the buyer, the only one who would actually experience its effects. Yet it is presumably those effects which make the drug morally objectionable and justify its illegal status. This inexplicable transformation of a substance from appalling wickedness to light-hearted harmlessness, at the moment of sale, makes the Roman Catholic belief in the transubstantiation of bread and wine into the flesh and blood of Christ seem a relatively undemanding concept. Yet it takes place between normal men and women, without ceremony or apostolic succession, hundreds of times each day at school gates, on street corners and in pubs, and nobody marvels about it at all. (p.66)
But of course the distinction between use and supply is not at all odd and was not unusual then. Sale but not possession of pornography were criminal offences too. Alcohol prohibition in the US, as Hitchens is keen to point out, had taken a similar approach. The underlying rationale for such distinctions - right or wrong - is not mysterious. The targets of the prohibition of supply are those who profit commercially from sale of supposedly damaging or corrupting things. Such people are conceived of - generally accurately - as involved in public acts, entered into for calculated gain, not private choices of personal conduct which one may characterise as foibles, follies or weaknesses, but certainly not as pursuit of monetary profit.
There are two closely-related aspects to this distinction: first, the contrast between private personal pursuits and public commercial activity. Second, the distinction between, on the one hand, detached, calculated pursuit of profit and, on the other, activities entered into in response to personal inclination - whether one characterises this as 'lifestyle choice', response to felt need, or 'greasy pleasure' depends both on the individual case and one's own views about it.
The first distinction - between personal liberty and commercial 'freedom' (as in 'free enterprise') is, incidentally, one which the economic Right, especially but not only so-called libertarians and the post-Thatcher Conservative party in Britain, seeks to eliminate from discussion, since it suits their purposes to pretend that business activity, which in reality is carried on only thanks to state institutions such as the monetary system and the laws of property and corporations, is continuous with the realm of free action of private individuals, and that state 'interference' with the behaviour of businesses is as offensive as incursions into real peoples' personal lives. (At the same time though, the conduct of business must always be conceived of as hard work which needs to be motivated by huge rewards, and not in any way as involving an aspect of showing off, enjoyable wheeler-dealing, or forms of compulsive gambling.)
Hitchens shows some inclination to accept this neoliberal fiction, for example at p.251 of the book: Economic liberalism is of course closely allied to political and social liberalism. He seems not to approve of the Thatcherite consensus, but does and says precious little to oppose its economic wing: he claims taxation is an unwarranted imposition, and that Bishops concerned about child poverty are propagandists for the dreaded Socialism, for example. Of course when he is paying attention and dealing with real issues rather than applying abstract right-wing nostrums, some underlying humanity pokes through: he decries the sell-off of council houses and advocates public ownership of the railways, but these are exceptions to the rule.
On the BBC's recent - and execrable - programme about Marxian economics, Hitchens fell in line with Stephanie Flanders's neoliberal orthodoxy by saying: Is there an alternative to capitalism? I've no idea...It doesn't occur to me, it doesn't seem to me to be important. It's like saying, is there an alternative to weather? Here he is basically a victim - though by no means an entirely innocent one - of the usual goalpost-shifting involved in discussions of 'capitalism'.
From Smith to Nozick, theorists of the 'free market' gain assent to 'capitalism' by using folksy illustrations to assimilate instrumental commercial activity - which is inherently public since it involves altering claims to the world's resources - to the same category as private activity entered into for its own sake. The reality is nothing like these carefully devised examples, being one of corporate power and rapacious pursuit of profit unfettered - supposedly by law, as those responsible like to point out: 'our hands are tied' - by any concern about anything else.
Which brings us to the second distinction: that between detached profit-seeking, and the exercise of individual liberty to purue individual projects, pastimes, and pleasures. The penal system distinguishes the seriousness of offences - and thus the maximum level of punishment that can be considered proportionate - according in part to the motives which underly their coimmission. The motives of cannabis smokers are personal: in some cases the motive may be desperation for oblivion, in others perhaps full-blown self-indulgent sybarism, but mostly rather modest aims such as relaxation, enhancing enjoyment of music, film or sex, stimulating creativity through unusual thoughts and associations (but don't forget to write it down, and expect to discard quite a bit of it!), and so on. These are recognisably humane and generally unambiguously innocent motives, which - supposing that the drug has harmful effects worth speaking of - do not necessarily visit harm on others. The dealer of drugs does not have any such homely motives, and if harm is brought about by the drug, then it will necessarily impact other people.
No doubt Hitchens would object that people have free will; the dealer should not be blamed for the choices of drug takers. This is too quick. I often point out that blame is not a scarce commodity: there is plenty to go round. I may perfectly well be to blame for (supposedly) harming myself, and yet another person may also be at fault - and even, depending on our relative power, character and so on, more so (consider agents provocateurs) - for enabling, procuring or encouraging such harmful activity. Hichens's views on free will, and related but here irrelevant views about addiction, will have to wait for another occasion.
Another different line (and perhaps a rather inconsistent one, if he insists that all blame fror the ill-effects of drugs must start and stop with the user - as he seems inclined to, though I'm ready to be corrected) Hitchens might take in this connection is to point out that legalisation will bring out the Bransons and their marketing men - which will promote cannabis use and thus increase the harm he supposes it to visit on its users.
(Hitchens tends to appeal to the knock-on effects on the family of harmed users, but even accepting arguendo that such harms are substantial and inevitable, I'm not inclined to accept Hitchens' variation on another right-wing trope - use of appeal to family as a way of blurring the line between self-regarding and other-regarding conduct. The usual right-wing use of this is for millionaires to appeal to 'providing for their family' to present their rapacious pursuit of profit as a kind of altruism. Hitchens reverses the valences, presenting the self-regarding conduct as bad because of ill-effects on family, but the move is the same. An ad hominem objection might be that this seems likely to lead to conflict with Hitchens' opposition - again, I may be corrected here - to state interference with the internal workings of the family. A more cogent objection by my lights is that if we allow (presumed) inconvenience, disapproval or even distress of (presumed) family members - and then why not other relatives, and friends? - to justify prohibition of otherwise purely self-regarding conduct, we end up with a thorough-going paternalism. Hitchens may not mind this, of course.)
Back to legalisation and marketing. I would like to see advertising and other form of marketing sharply curtailed. This applies to a putatively legalised cannabis as much as anything. Almost all marketing - as opposed to advertising sensu stricto, such as classified ads in the local paper, is an excercise in manipulation, often making use of a well-developed body of applied psychology to mess with peoples' minds, getting them to develop 'brand loyalty' and so on, in the interest of selling more product at a higher price.
I object to this, without abandoning all sembalnce of a belief in individual decision-making, because I recognise that we have a dual nature: we are both subjects, makers of decisions, authors of our own actions, and yet also objects, open to the manipulative influence of others and sometimes exhibiting what can only be regarded as compulsive or otherwise pathological behaviour. Giving full expression to the former aspect of our natures, while making allowance for and where possible preventing the latter is of course a tricky and imperfect business. One area in which it can be achieved is by heavily regulating purely commercial operations, on the grounds that these serve no inherent purpose to those running them, save for making money - it is in the nature of a business transaction that another equally profitable one can be substituted for it. (Of course some transactions have a mixed personal and business motive - I will ignore this complication as relatively unimportant and far too much trouble to deal with here.)
These points can be perfectly well understood without adopting the caricatured view Hitchens mocks, referring with heavy irony to
‘evil dealers’ who press [drugs] on their innocent, addicted or otherwise pitiable victims, the users.(p. 251; similar comments passim.)
Of course such people do exist - there are people who 'push' hard drugs with the intention of controlling vulnerable people, notably young girls whom they wish to pimp out - but I agree with Hitchens that this is far less applicable to cannabis than to the major habit-forming drugs, and in particular heroin. The point of the distinction between trafficking and consumption of drugs is not that one is always unspeakably evil while the other is always entirely blameless, but that if one really thinks that a particular drug is a scourge on society, and further that criminal measures are the way to reduce this harm, then deterrent punishments are better and more justly aimed at those engaged in a business decision to spread the substance than to those who consume it.
For these reasons, trafficking and sale of things which are (we continue to assume for the purposes of argument) harmful may perfectly reasonably be treated differently from the personal use of such things. The motives for use are generally less culpable and also, I would add, fall within the ambit of private conduct which is to be protected. Sale of a putatively harmful thing, on the other hand, is a public, other-regarding matter, which can also be prohibited without imposing any substantial hardship (just go into a different trade), and without impinging on personal freedom to conduct one's life.
All this is not to endorse the current regime under which possession of small quantities of cannabis is often (though selectively and capriciously) unpenalised while supply is (contrary to what Hitchens seems at times to suggest) pursued and punished with much greater enthusiasm, the more so (as in most things) the larger the operation. Still less is it to suggest that de jure decriminalisation of possession and not sale would be a practically consistent approach. The point is the relatively narrow one that Hitchens is incorrect to suppose that punishing use less harshly than sale is a baffling and unjustifiable approach.
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Tim, this is an excellent article, not mainly for the defense of its thesis, but for its several interesting and concise tangents on broader issues. Well done.
ReplyDeleteTim - most of what you say here on the drugs issue (and elsewhere on foreign policy) is spot on, but as one of the 'so-called' libertarians you allude to (why 'so-called'?) I can't help but feel that you do us something of a disservice in your characterisation of our opinions (I say 'our' - libertarianism is a broad church, and I dare say I'm at the less doctrinaire end of it). What I find particularly galling is the implication that the status quo is even vaguely libertarian (or 'neoliberal' if you like). 'Enjoyable wheeler-dealing... and 'compulsive gambling' and the concomitant 'huge rewards' are usually the product of a market rigged by the government in various ways in big business' favour. There's nothing unfettered about it, unless you mean unfettered from meaningful competition. Not all of us are neo-Randian corporate apologists, although libertarians are no doubt often guilty of what's rightly known as 'vulgar libertarianism' i.e. defending the corporatist status quo as if it were a free market.
ReplyDeleteAs for the relative importance of economic and social freedoms, I would say that the ability to control the product of your labour is not something to be sniffed at. I take your point about exchange involving claims to the world's resources, and would argue that some form of rent is owed to the community for monopoly over land in particular. But the blurriness of the boundaries between social and economic freedoms is clear in your suggestion that marketing be heavily restricted. Why is this sort of influence especially pernicious and/or hard to resist? Doesn't this sort of thinking, at least in theory, justify a thoroughgoing paternalism? Why should businesses be denied this form of freedom of expression? I think (though of course this is merely an observation, and not something from which we can draw hard conclusions about the importance of economic freedom) it's interesting that nanny statists tend also to be inclined to the left in economic matters.