The Drug-War: Proper or Paternalistic?

We recently interviewed an ex-cop and member of Law Enforcement Against Prohibition for the podcast and will be touching on a subject not as frequently addressed here as on other libertarian sites. This surely reflects our much more conservative-cultural bent and focus. Few (read none) on this site became libertarians because they wanted to toke up or create a legal and moral code to suit their habits. Some on this site may even be teetotalers (I sure hope not but you never know). In fact we totally separate the issue of whether or not drugs are sinful on the one hand and whether the State should tax and confiscate our money in order to use the sword to pursue drug users and dealers on the other.  We distinguish between a legal theory of libertarianism and a moral code of libertinism. Libertinism is for the birds. As Rothbard said “What a person does with his or her life is vital and important, but is simply irrelevant to libertarianism.” I happen to be a pretty strict confessionalist (WCF) and rather bourgeoisie. I observe (or try to) the Lord’s Day. I believe in the regulative principle of worship. I even believe it’s important to dress up for church, I wear an oxford regimental tie to church every week. One would think I’m downright legalistic now.

Legal Crimes & Moral Vices: Are They The Same?

So how can it be that I support not just medical-marijuana but total drug legalization period? For starters, because of the distinction mentioned above. Simply put vices are not crimes, as Lysander Spooner wrote about the failure of the first attempt at prohibition in 1875:

“Vices are those acts by which a man harms himself or his property. Crimes are those acts by which one man harms the person or property of another. Vices are simply the errors which a man makes in his search after his own happiness. Unlike crimes, they imply no malice toward others, and no interference with their persons or property. In vices, the very essence of crime — that is, the design to injure the person or property of another — is wanting.”[1]

It is not that our legal theory contradicts our moral law but that it does not address and relinquishes responsibility to the proper spheres. The Reformed Libertarian legal position on drugs is based off of a system of rights, justice, and proportionally-retributive punishment. Without an individual’s rights being violated there is no victim, there is no humanly calculable proportional punishment which may restore the non-existent victim, and thus there is no measurable justice which may be aimed at and assessed. The just use of force, that is violence, is solely defensive and retributive against the violation of man’s property or his life, to restore righteousness between man and man. “Don’t pick my pocket or break my bones,” as the old saying goes. This of course, as Machen noted, leaves heaping swaths of life untouched by legal action:

“If we want to restore respect for human laws, we shall have to get rid of this notion that judges and juries exist only for the utilitarian purpose of the protection of society, and shall have to restore the notion that they exist for the purposes of justice.  They are only very imperfect exponents of justice, it is true.  There are vast departments of life with which they should have nothing whatever to do.  They are exceeding their God-given function when they seek to enforce inward purity or purity of the individual life, since theirs is the business only of enforcing –and that in necessarily imperfect fashion — that part of righteousness which concerns the relations between man and man.”[2]

As a Reformed Christian, and as a libertarian, I look at drug use and ask “is this to be addressed by the sword of the civil kingdom, or the keys of the heavenly kingdom?” I don’t ask whether it is hospitable to human flourishing over time, or whether there are harmful externalities in society experienced outside of the drug user. Is the use of violent coercion acceptable to solve this issue? More bluntly, and in a way I think every Christian should ask themselves about all civil laws: am I willing to kill someone or for someone to be killed over this? In the cases of theft and murder and in their resistance to defense/retribution, this may be the case. If the answer is no the chances are it is probably an absurd law, like jaywalking. Don’t think someone could be killed for such arbitrary laws? Try selling untaxed cigarettes in NYC.

It should be clear that while drug-use may be an unsightly habit and distasteful lifestyle it is an issue of inward-purity, to be addressed by the preaching of the gospel, evangelism, acts of mercy, ministries to drug-addicts, and the counsel and shepherding of a pastor or father. Not a human warehouse of cages.

Reformed Libertarian Legal Theory of Punishment Analysis

The libertarian legal theory of retribution is essentially that of the Lex Talionis found in scripture and aims at restoring the victim/or the victim’s family to previous levels as best as humanly possible. The criminal loses his rights to the extent that he deprives another of his rights. However this also means no victim, no crime. So who is the victim in the case of narcotics? Many say that the drug user is the victim, a terrible victim of the norisis of drugs and a life of debauchery. What a thought! The drug user is at once the victim and the criminal! We have to at once have pity on him, and despise him. We must jail him for his own good! This is the humanitarian theory of punishment, and there is no tyranny like it. It seems, like the issue of war and foreign policy, Christians have lost their principles, only the tattered rags of utilitarian pragmatism remains. We believe in the drug-war not because it is just but because we think it will solve the drug problem. Punishment is no longer for the sake of retribution (that’s so archaic and barbaric) but to reform the criminal (for the flourishing preservation of society).  The criminal is not punished, but must go through corrections. He is not evil but sick, misguided, and poorly influenced by those around him, clearly to get away from his neighborhood and put him in a high concentration human warehouse of criminals will do him some good. He must be the victim of state psychologist, criminal “experts”, the constant experiment of omnipotent moral busybodies to undergo all those assaults which only modern-psychotherapy knows how to deliver.

Then there’s the deterrent theory. Drug-use is harmful to “society.” We must punish drug-users in order to save the children, for human flourishing, happiness, and order! We will use the force of law to persuade people from a life of drugs. This is the thinking which lies behind Federal Mandatory Minimums, in which it would be far better for someone to rape and murder your wife than be caught with 5 ounces of marijuana while crossing a state-border. Perhaps that’s just the cost of being “tough on crime.” Longer sentences will prevent repeat offenders! Yet each of these separates the sentence from the justice of the matter, it shows conservatives have lost their principles. Restitution and the justice of the sentence are irrelevant only the pragmatic consequential effects of the sentence are important. Arguing that prohibition must continue for the sake of society is an implicit consent that it is not actually a crime but simply that cost-benefit analysis has rendered the conclusion that it would be deleterious to society over time. It is then not relevant whether your law is just but whether it works.

Christian’s arguments for the drug-war have long removed the connection in our minds between punishment and justice. We have embraced pragmatism, paternalism, and social-planning. Of course this isn’t the worst of the deterrent theory as C.S. Lewis points out:

If the justification of exemplary punishment is not to be based on dessert but solely on its efficacy as a deterrent, it is not absolutely necessary that the man we punish should even have committed the crime. The deterrent effect demands that the public should draw the moral, ‘If we do such an act we shall suffer like that man.’ The punishment of a man actually guilty whom the public think innocent will not have the desired effect; the punishment of a man actually innocent will, provided the public think him guilty…The only two questions we may now ask about a punishment are whether it deters and whether it cures. [these] are not questions about principle but about matters of fact; and for such cuiquam in sua arte credendum. Only the expert ‘penologist’ (let barbarous things have barbarous names), in the light of previous experiment, can tell us what is likely to deter: only the psychotherapist can tell us what is likely to cure… There is no sense in talking about a ‘just deterrent’ or a ‘just cure’. We demand of a deterrent not whether it is just but whether it will deter. We demand of a cure not whether it is just but whether it succeeds….instead of a person, a subject of rights, we now have a mere object, a patient, a ‘case’.”[3]

If the drug-user is the victim, then certainly justice calls that we not punish the victim. If someone in society is the victim of his drug-use than let him or her come forward and press their charges, let them show where their life was harmed or their property confiscated. I presume that I am a member of this “society,” which of my rights has been violated? My right to property or my right to my life? I conclude in the prohibitions mind it is obvious that I am not physically injured or materially deprived by Colorado’s plant igniting habits. I suspect the only thing I have been deprived of is a fantasia-utopian world that might have been had so and so not done drugs, a dangerous precedent indeed when actions become crimes only when those in power could imagine a better world but for whatever action they detest this week. But as it is the person who did not do drugs has their property confiscated to house and pay for the person who did commit this supposedly heinous crime for which no victim has stepped forward. The drug-user is not “paying his debt to society,” we are going into debt to pay for him!

Consider again Machen’s words:

“Society will never be preserved by attaching savage penalties to trifling offenses because the utilitarian interests of society demand it;  it will never be preserved by the vicious practice (followed by some judges) of making ‘examples’ of people in spasmodic and unjust fashion because such examples are thought to have a salutary effect as a deterrent from future crime.

Ah, but all that does not touch the really important matter.  
Underlying all these considerations of nations and of society is the great question of the relation of the soul to God.  Unless men are right with God, they will never be right in their relations with one another.”[4]

This is the crux. Will we try to “save” our society through tough laws, harsh sentences, and penial deterrence? Can you beat purity into a man, or addiction out of him? Or will we use the civil sword only to maintain justice that we might preach the saving message of the gospel and live at peace with all men? We will make our neighbor answer to us now for what he has only to face before God on judgment day, or will we warn him, plead with him, and tell him of the good news, of pardon and power for addicts?

I’ll leave the reader with this extended quote from Machen on jaywalking, read it in light of the drug-war, prohibition, or just about anything really:

“I am opposed to paternalism. Among other far more serious objections to it is the objection that it defeats its own purpose. The children of some over-cautious parents [or government] never learn to take care of themselves, and so are far more apt to get hurt than children who lead a normal life. So I do not believe that in the long run it will be in the interests of safety if people get used to doing nothing except what a policeman or a traffic light tells them to do, and thus never learn to exercise reasonable care.

I am sorry when I see people taking foolish chances on the street. I believe in urging them not to do it…But I am dead opposed to subjecting a whole city because of the comparatively few incautious people to a treadmill regime like that which prevails in Western cities. I resent such a regime for myself. I have tried it, and I know that it prevent me from the best, and simplest pleasure that a man can have, which is walking.

After all, the most serious objection to these doctrinaire, paternalistic laws is the bad effect which they have upon the mentality of people. I do think we ought to call a halt to the excessive mechanization of human life. When I am in one of those over-regulated Western cities, I always feel as though I were in some kind of penal institution. I should certainly hate to see Philadelphia make like those places.”[5]

This is why liberty is not a goal in itself; it is a means not an end. Liberty is the highest political goal but “liberty is the lowest of social values, lowest in the sense of being most fundamental, a sine qua non of a human action’s being susceptible to moral evaluation in any way at all. Human freedom can be used for all sorts of actions, directed to all sorts of purposes, which are then susceptible to moral evaluation, but unless human action is free from coercion, moral evaluation is intrinsically impossible.”[6] If drugs are legalized and you or child indulges that is a sad thing. Not so much sad that your child did drugs but that their level of moral cultivation and virtue was so low that only the gun and the jail cell constrained their desires.

[1] Lysander Spooner, Vices Are Not Crimes. A Vindication Of Moral Liberty

[2] J. Gresham Machen, The Christian View of Man

[3] C.S. Lewis, The Humanitarian Theory of Punishment

[4] J. Gresham Machen, The Christian View of Man

[5] J. Gresham Machen, Selected Shorter Writings

[6] Gerard Casey, Can Conservatives be Libertarians

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