Drugs, Liberty and Justice

After yesterday’s post I wanted to flesh out the consequences of my argument more specifically for the context in which it arose – an argument about drug legalization.  I won’t do much more work here to defend justice over libertarianism per se (we’re arguing about that on the other thread).  That’s not because I think I’ve conclusively proven it, just that I want to focus on a different part of a complex argument.  So I’ll just show here (1) why I think the libertarian argument against drug laws isn’t as strong as it sometimes seems, and (2) then why that’s not such a problem, because the justice argument can actually provide a better justification for similar arguments.  Lastly, (3) I’ll try to show why I think that for external, political-rhetorical reasons, embracing the justice argument is better.

Roughly speaking, justice requires you to move away from the appeal of pseudo-rebellious television narratives of drug distribution like Breaking Bad or Weeds, and more more towards a fuller embrace of the progressive vision of The Wire.  But what else is new?

(1) Drug Laws as Infringements on Liberty

Most libertarian arguments against status quo drug laws seem to lean on the notion that such laws are paternalistic – they are misguided attempts to regulate my behavior for my own good.  There is a general bias against laws which take actions for one’s own good in America (perhaps across the world) but we often fail to see the extent to which many laws are “for our own good.”  To name a few: seatbelt laws, some (tobacco) smoking laws, auto-insurance mandates, federal health insurance mandates (brand new), requirements that children be given medical care and education, etc.  These latter I know are often couched in the language of the protection of children, so perhaps we can leave them to one side.  And several of the others are obviously not only self-regarding laws.  They help protect people from themselves, yes, but they also help protect people from other people.

The ambiguity in these examples is deliberate.  I submit that there’s really no such thing as a purely paternalistic law.  Most laws protect us against ourselves and against others to varying degrees.  A seat-belt law protects ME if I get in a car accident; it also protects the person who hit me, insofar as it keeps me from being seriously injured or killed, which keeps them from incurring enormous civil and/or criminal liability.  Does it protect me more than them?  Perhaps, but there’s no good way to draw a line.  Seatbelt laws serve the social good.  Now I know that a lot libertarians don’t like seatbelt (or helmet) laws, but like I said, I’m directing the argument here more at the sort of person not who DOES NOT RECOGNIZE any legitimate claims for the social good, but at the sort of person so sees laws directed to the social good as SOMETIMES justified.  To repeat something I said in yesterday’s post, libertarian anarchism, the position that argues we should never have any collective social institutions that are not strictly voluntary, has many problems, but consistency is not usually one of them.  At any rate, the broader point I want to make is “laws which protect me” and “laws which protect others from me” are not easily distinguished.

A further way to see this: most of us live in community with others.  We have families, loved ones, dependents of different sorts, and we ourselves depend on others in greater or lesser ways.  Even if a seatbelt law seems only to protect me from myself, it also thereby protects me FOR THE SAKE OF my family, other dependents, and other members of my community who care about me.

My argument, obviously, is that drug laws are much more like seatbelt laws than we seem accustomed to think.  Now I know there are many people who (for relatively dogmatic reasons, so far as I can tell) insist that there are no negative impacts to marijuana consumption, for example.  If those people are correct, then there is a very straightforward argument against anti-marijuana laws: they serve no useful purpose.  They regulate a quantity which is not harmful.  I won’t engage in that argument here so much as assert that it’s overstated.  Of course car accidents happen because of people who are high; of course there are negative health consequences to marijuana use.  Now one rejoinder is “yeah but they’re not as bad as alcohol/tobacco smoking…”.  But there is no real use in regarding alcohol and tobacco smoking laws as models of liberty either.  Maybe all of them shouldn’t be regulated; maybe all of them should.  The point is that each of those substances DO cause harm to ourselves and others.  Varying degrees of it, yes.  Not the most serious of harms in some cases, absolutely.  But insofar as sometimes all of these substances cause harm to ourselves and others, therein lies a legitimate claim for society to regulate them, again, insofar as you think social welfare is ever a legitimate ground for legislation.

But still a libertarian impulse persists: surely there is a difference between a necessary and an unnecessary piece of social welfare legislation.  Surely there are times when even if something does some good, it is an unreasonable intrusion into personal liberty.  Look at how it went for Michael Bloomberg when he tried to regulate soft-drink sizes.  Even if the public health benefits were unassailable, people just didn’t care, and if a majority does not support these sorts of initiatives, perhaps it’s a good clue that they’re not reasonable, as well as unpopular.

(2) How Justice Helps Us Decide Which Social Welfare Laws are Acceptable

Of course there is a distinction between good and bad social welfare laws.  To deny this would be a dogmatic refusal to accept a fairly obvious intuition.  But we need a good, non-arbitrary set of criteria to distinguish good from bad social welfare laws.  For the most part, libertarianism does not provide us with one.  That’s because of its obsessive focus on individual liberty and its relative inability to ground any of the demands of social life.  Again, I won’t argue strenuously for this point here.  I’m just going with the idea that even things like mandatory police departments are difficult for libertarians to justify if voluntariness is the core criterion for the determination of a law’s legitimacy.  We can also add to this intuition another argument raised above – my refusal to participate affects more than just me, in almost every case.  If I refuse to pay for police protection, for example, my whole neighborhood suffers, albeit incrementally.  When is my choice to opt-out socially objectionable?  How severe does the danger have to be?  I suggest that these questions are actually very difficult, if not impossible for the libertarian to answer.

They become much easier to answer when transmuted into the terms of justice-as-fairness.  Since this position takes as fundamental the idea that our life together makes possible a kind of surplus product that our living alone couldn’t do, it begins by asking: “ok, so we all live together, that means there is a set of benefits that need to be distributed fairly among us.”  One of the things that becomes possible because of our life together is a modicum of social, political, and economic liberty.  Living alone, one is perpetually beset by the need to defend oneself.  There is no comfort in property in a totally anarchic situation; I must defend my belongings at all time.  When we live together, we discover, we actually have a sort of freedom we didn’t have before.  So now the question becomes, how should we distribute that freedom?  Who should have the right to do what, given this surplus we have found from living together?

We now find that things like absolute property rights become impossible.  Having an absolute right to property is inconsistent with the necessary conditions of social life in general; absolute property rights are self-contradictory, as they fail to provide the resources needed for the groundwork necessary to secure them.  But is an absolute right to smoke marijuana similarly destructive?  Obviously not.  But it is SOMEWHAT socially destructive.  It does do SOME bad things, which means there is a legitimate collective interest in regulating its free exercise.  Not a huge one, but not a nonexistent one either (unless it could be proven this had no negative consequences, as I said above).

So now we ask – what individual liberties are consistent with improving and maintaining the benefits of social organization and which are not?  Those which are will be defensible, and not even just temporarily.  It may be that having some very bedrock principles of individual liberty benefit social organization in a way that their being contingent never could [yes, this raises rule-utilitarianism-type problems – but to repeat, so does any argument which includes social welfare as a legitimate consideration].

Now Rawls et al. elucidate some arguments were by “improving and maintaining the benefits of social organization” changes subtly into “which laws are to the greatest benefit of the least advantaged.”  Without discussing those in too much depth, I’ll just say that the most vulnerable groups are the groups into which we would be the most scared of ending up, and so we need to consider how social organization affects them as a starting point, and from there we can move along to the rest.  [Yes, this is a ridiculous oversimplification of chapters 2-3 of A Theory of Justice].

So when we approach the question of drug laws, we are now asking “which drug laws make things the least bad for the least advantaged?” instead of “which drug laws are consistent with individual liberty?”  The answer to our new question,  I suspect, would turn out relatively similar to the answer to our old one: in either case, we would probably say “not very many of them.”  Drug laws and the difficulty of their enforcement tend to create black markets that would seem to most negatively affect poor communities.  They tend to stand as social proxies for refusals to invest in the social institutions that those poor communities most need (“why should we give them good schools?  They’re all just drug addicts” etc…”).

But that doesn’t mean that, on justice-based grounds, there will be no regulations.  Because a total absence of regulations is also the sort of thing that tends to hurt poor communities (and the rest of society) as well.

One objection that seems to arise here is: what about when that sounds good in theory but doesn’t work in practice?  “That old saw.”  The only answer I really think is necessary is -good laws are better than bad laws.  If the enforcement of a law repeatedly fails to achieve its goal, then that’s reason for it not to exist (regardless of whether it’s a justice-oriented law or not).  Drug laws are often ineffective.  But would a heavily regulated marijuana industry fail in that way?  Probably not.

One thing that a justice-oriented drug policy will be concerned about, though, that a libertarian one would not have been, is the question of what negative effects creating a new free market would have on the poor.  A libertarian would just say “it doesn’t matter- markets are markets” or would respond with a relatively utopian “markets always work when they’re not regulated by the central government.”  Justice makes neither of these arguments.  There is an essential interest in making sure that market logic doesn’t further destroy poor communities, and so there is the logical consequence of making sure that the income generated is suitably distributed in keeping with the demands of basic fairness, and also that common-sense anti-monopoly regulation happens too.  I’m not sure but my sense is that a lot of libertarians support this latter as well (though I can’t really see how they can do so in principle).

(3) Why Does it Matter Which Justification we Use then?

Let’s look back at the worry that social-welfare laws often alienate majorities.  The soft-drink size regulation debate is an instructive example.  The left had little ability to flesh out its arguments in terms of social justice (it just lacked the vocabulary), and the right had a whole bunch of big corporate backing, combined with a very familiar narrative about paternalism, to oppose it.  The left felt very tentative about defending itself, and Bloomberg’s arrogance didn’t help either.  There was just not a robust defense of social welfare.  The left has to start TRYING to defend the argument on these terms, or else there will NEVER be majority support.  So long as paternalism/anti-paternalism is the dichotomy through which we discuss these laws, we’ll never make progress.  We must reflect on the extent to which our shared social life is a valuable thing, not just something crazy hippies sometimes assert.  The left needs more leaders, not fewer, who will say things like “you didn’t build this,” “we need to spread the wealth” and “it takes a village.”  Just the furor these things whip the right-wing media into should be enough to suggest that they know how dangerous for their interests it would be if such stuff didn’t get shouted down. The fact that the utterers of those phrases didn’t get nearly as publicly destroyed as people thought they would is suggestive – Obama WON the 2008 election AFTER talking about “spreading the wealth” – Romney LOST the 2012 election after talking about “the 47% percent.  I know correlation doesn’t prove causation, but it does at least prove these things aren’t as anathema as many “new Democrats” seem to have thought for the last 20 years.  There’s a real insecurity on the right about self-avowed socialism coming from those in power – witness the recent stuff about the pope too.  Someone like Obama needs to RESPOND when this stuff happens, not just walk away from the original statement – though to be fair, Obama’s second inaugural address did a pretty good job at this, and I was surprised it didn’t get more coverage as such at the time.

If you’re the sort of person who supports the economic redistribution efforts of the social safety net – if you’re the sort of person who supports one day having single-payer health care, having a well-funded public school system, and wants economic inequality in general to have less of an impact on life chances in the United States, you should go with justice.

Fighting against the “war on drugs” as a war on the poor helps build coalitions with those who support things like universal pre-K, robustly funded public schools, medicare for all, and medicaid for all (in those states that have for some reason refused this federal government offer).

Fighting the “War on drugs” as a war to “keep the government off my back” builds coalitions with all the other government-off-my-back crowds, most notably the Club for Growth/Grover Norquist’s of the world.  Your support rhetorically reinforces the simplistic view of social life expressed in Reagan’s “government is not the solution to the problem, government is the problem” that has done such untold damage to the fight against economic inequality in the United States.

But – it might mean you have to accept a level of regulation on your drugs that you thought before was anti-liberty.  Because you might have to recognize the legitimate interests in those regulations existing.  You might even have to admit that your right to smoke pot at parties will be something you’ll have to wait for until AFTER the “war on drugs” mess has all been cleaned up.

Like I said, less Weeds, more The Wire.

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5 Responses to Drugs, Liberty and Justice

  1. David says:

    (Josh, it feels kind of cheap to respond to your thoughtful, articulate posts in an off-the-cuff and discursive way–but the truth is that if I refrain from posting until I’m prepared to offer something thoughtful and articulate, the moment will have passed.)

    You write: “Most libertarian arguments against status quo drug laws seem to lean on the notion that such laws are paternalistic – they are misguided attempts to regulate my behavior for my own good.” I don’t know which arguments you’re counting, but if you’re reading contemporary Libertarians–the people over at BleedingHeartLibertarian.com, for example, they’re much more likely to base their objections on the devastating effects status quo drug laws have had on social welfare/race-relations/urban poor/etc., than on blanket appeals to the illegitimacy of ‘paternalistic’ laws. And this makes perfect rhetorical sense, of course–why on earth argue the merits of paternalistic legislation when the laws you oppose do so much manifest social harm (incarceration rates, for example, and the communities most directly affected/destroyed by the ‘War on Drugs’).

    A more general point, here, is that I think sometimes that you’re close to attacking a caricature of the ‘Libertarian’ in this post and the last. I mean, it’s not like the most reflective, arguable Libertarian position on offer in our contemporary political discourse is ‘Individual liberty above all else, even if the heavens fall!’ The Libertarians I occasionally read (and those I know, for what it’s worth) are not at all unconcerned with ‘social welfare.’ What they are is very skeptical–and no doubt too skeptical, in some cases, but certainly not in all cases–about the idea that narrowing the sphere of individual freedom is the path to social welfare.

    (Evidence of Straw Man–you write: “One thing that a justice-oriented drug policy will be concerned about, though, that a libertarian one would not have been, is the question of what negative effects creating a new free market would have on the poor. A libertarian would just say “it doesn’t matter- markets are markets.”” That’s not playing fair. Robert Nozick wouldn’t say that. Jason Brennan wouldn’t say that. Etc..)

    You write: “If I refuse to pay for police protection, for example, my whole neighborhood suffers, albeit incrementally. When is my choice to opt-out socially objectionable? How severe does the danger have to be? I suggest that these questions are actually very difficult, if not impossible for the libertarian to answer.” I want to say: these questions are very difficult for everyone to answer! These are questions that go to the heart of cooperative enterprises, the obligations incurred therein, the balancing of individual liberty vs. the interests of society, and so forth. If you mean to imply that these questions are somehow inordinately difficult for Libertarians to answer, then I don’t think you’ve given us anything like an argument for that claim. These are just the really thorny questions of political philosophy. How you answer them goes a long way towards putting you in the camp of one political philosophy rather than another.

    In arguing against the dubious notion of “absolute property rights,” you write:

    “But is an absolute right to smoke marijuana similarly destructive [to absolute property rights]? Obviously not. But it is SOMEWHAT socially destructive. It does do SOME bad things, which means there is a legitimate collective interest in regulating its free exercise. Not a huge one, but not a nonexistent one either (unless it could be proven this had no negative consequences, as I said above).”

    Pointing out that marijuana does ‘some’ bad things, or is ‘somewhat’ destructive, rings hollow to me here, since you’ve already done a pretty good job above in pointing out that just about everything individuals do in society has SOME effects on society at large, effects which may be sorted into ‘good’ and ‘bad,’ ‘positive,’ ‘harmful,’ and ‘innocuous,’ etc. Unless you mean to be presenting a plausible first step in the justification of any legislative action whatsoever you’ll have to do better than point out that we do not smoke marijuana in a vacuum. Ok, sure, but the thought is (and whether this is a Libertarian thought, I’m not sure) the interests we all have in individual liberty (you, me, Rawls, all of us) are so significant that we’ll have to have ‘clear and present dangers’ in view before we start trying to justify ordering people to behave in certain ways under threat of penalty/punishment. In other words: we’ll have to do a lot better than gesture at the fact that most of our actions affects others in some way or another. That just sounds to me (again?) like you’re being entirely too dismissive of ‘liberty’ as a bona fide political value.

    As for section 3, I agree with pretty much everything you say there. As I said in an earlier post, I’m totally on-board with your remarks about how rhetorical strategy. But there is this–you suggest that ‘Libertarians’ are just reflexively and without much thought echoing:

    “Reagan’s “government is not the solution to the problem, government is the problem” that has done such untold damage to the fight against economic inequality in the United States.”

    I don’t agree for all the reasons I’ve already mentioned. Some Libertarians are doing this, to be sure, but that’s no reason to tar them all with the same brush. They don’t have to say it, given their core principles and commitments, and that’s the important point. A sensible Libertarian should say that Regan’s remark is absurd for the same reason it would be absurd to reverse it and say Government is the solution….Whether government is the ‘solution’ or the ‘problem’ in any given situation will of course depend on what it is we’re trying to do, who’s doing it, how we do it, and so on and so on and so on.

    Anyway–looking forward to hearing more from you.

  2. Josh says:

    David –

    Discursive and informal is good, I think! It’s Socratic, right?

    I was going to plunge into arguing headlong with each point you made, but I’ve decided to focus on three things:

    1) You’re probably right that I’m getting into straw-person territory. That may be because I’m more interested in the public manifestation of libertarian ideas (i.e., the Tea Party) than in the more academically responsible versions of them. I think the latter has a tendency to transform dangerously into the former (something I don’t think is as true of analogous levels of academic rigor on the left, generally speaking). I do think, though, that when you say “Robert Nozick would never say that,” you’re not really right. The Wilt Chamberlain example more or less makes the argument you’re saying Nozick never makes – that liberty upsets patterns, and in so doing, he makes an overly simplistic contrast between “patterned” and non-patterned conceptions of justice. As for the others you reference, I’m perfectly willing to admit I’m not that familiar with their work. But insofar as Rand Paul is someone who holds actual political power, and often makes Reaganesque arguments, that seems important. Again, I don’t think the relationship between Barack Obama and John Rawls (to pick two analogous names) is nearly as problematic. “Dumbed-down” justice doesn’t destroy social institutions the way dumbed-down libertarianism does.

    2) The intricacies of libertarian theory notwithstanding, I do think that at some fundamental level, this whole family of theories relies on an impoverished/naive/romanticized view of the relative unimportance of societal interconnectedness in human life. “Reading one’s Hegel,” as you usefully describe it, DOES transform the landscape in a way that libertarianism seems reluctant to engage. I think that, to some extent, a lot of the nuance of libertarianism is an attempt to paper over this basic problem. As you said, the problem of authority is a huge problem in political philosophy – I have no quarrel with that. But it becomes a certain SORT of problem when a libertarian individualistic notion of society introduces it. Authority is a problem for justice-based accounts as well, but the question “should there be authority at all?” doesn’t quite arise in the problematic way it does for libertarians. Again, not saying authority’s existence isn’t a problem, but it’s much more a problem that arises WITHIN the context of social embeddedness. When it arises like that, the dynamics of possible answers change quite a bit. Libertarian political theory feels to me largely akin to the sort of epistemology that takes the overcoming of radical skepticism as its starting point: both accounts miss that we’re, in some very important sense, already WITHIN a system of knowledge/politics.

    When you write “whether government is the ‘solution’ or the ‘problem’ in any given situation will of course depend on what it is we’re trying to do, who’s doing it, how we do it, and so on and so on and so on” you’re coming close to what I’m trying to say should be said, but I think when you start talking like that, you give up on a lot of the intuitive “bite” of libertarianism, which has a lot to do with side-constraints, the presumption of liberty, and so on. You just become a pragmatic decision-maker, which is obviously a good thing. What I don’t really believe is that libertarianism has anything distinctive to add to pragmatic political decisionmaking. It often seems to be sloganeering or nothing.

    3) It would be interesting to somehow have a formal debate on this blog about these issues. I don’t think my last two entries are the starting point for such a debate, as they begin in medias res a little too much. What, to you, would be a good debating question that would get at the heart of the liberal/libertarian divide?

  3. David says:

    Hi Josh,

    First of all, I’m glad to hear that you’ve had a couple of snow days–I was beginning to feel bad about myself given your productivity over the past several days (which I assumed were work days for you!).

    I like the idea of a more formal debate on the Blog, although I’d insist that I not get stuck defending any position or set of views that might make me seem sympathetic to the Tea Party! As for good debating questions that get to the heart of the debate, let me think on it.

    Actually, on something like the same topic, I wanted to broach the idea of an Original Positions podcast with you and the others. It might be a cool way for us to ‘get together’ once a month or so–remotely, of course–and talk about a topic or issue decided on ahead of time. There are lots of good models of the kind of thing I had in mind–but what are your initial thoughts? ‘What are the essential differences between liberals and libertarians?’ might be a good question to begin with!

  4. Josh says:

    Podcast eh? Sounds all right. Especially since discussions about philosophical topics often go better than back-and-forth writing about them.

    Hmm… another idea for a question would be something more concrete, an issue that would naturally give rise to contrasting defenses along the lines of liberty and justice?

  5. Pingback: Liberalism and Libertarianism – Some Contrasts and Why They Matter | Original Positions

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