Comparing policies for the minimisation of drug-related harm: A rationalist,
rights-based approach
Paper to present at the 3rd Annual Conference of the International Society for the
Study of Drug Policy, Vienna, March 2009.
Alex Stevens
University of Kent
Abstract
This paper seeks to prompt discussion of the rational basis for drug policy debates. It
uses Gewirth’s (1978) rationalist argument for a hierarchy of rights in order to
develop a prototype rights-based framework for policy comparison. Gewirth argues,
from the mutual respect that people owe to each other due to their shared status as
purposive agents, that basic rights (e.g. to life) are more fundamental than
nonsubtractive rights (e.g. the right not to be victimised or disenfranchised), which in
turn are more fundamental than additive rights (e.g. the right to increased
consumption – including consumption of drugs). This means that, in order to justify
constraining rights to consumption of drugs, causal links from drug consumption to
harms to more fundamental rights must be demonstrated. The rights and duties of
drug users and drug addicts are discussed, before moving on to applying this rightsbased framework to current controversies in drug policy around prohibition and harm
reduction.
Introduction
We meet at a time when the aims of drug policy are under fundamental review. After
ten years of seeking a “drug-free world”, UN member states are now embroiled in an
argument as to whether “harm reduction” is a proper goal of international cooperation
and coercion. Most of these arguments on drug policy goals have been framed by
arguments that can be termed “consequentialist”. They turn on what the consequences
of a particular set of policies would be. There are two major problems with this type
of argument. The first is that not enough research has yet been done on the causal
connections between policies and consequences. This problem might gradually be
overcome, given research investment and a more supportive environment for
experimenting with alternative policies. The second problem is more fundamental.
This is the question of how we value the consequences that various policies might
lead to. Without a common criterion for comparing these consequences, we are stuck
in a discussion between speakers of untranslatable languages. One side has no way of
understanding the other side’s valuations. One side values abstinence above other
potential consequences. The other disregards abstinence in favour of valuing harms to
health. Without finding a basis that can be shared by both sides, it is unlikely that this
argument can move beyond repetitive call and incommensurable response.
Previous discussions of this philosophical debate have valuably exposed the issues,
but have not found a way beyond the impasse. MacCoun and Reuter (2001), for
example, have provided an informative discussion of consequentialist versus
“deontological” arguments over drug regulation. They come out for “soft
paternalism”, but state that they have “no intention of imposing our moral views”
1
(Ibid: 71). This characterisation of fundamental choices about the aims of drug policy
as a question of personal preference reduces the possibility that the argument can be
resolved. What is needed, therefore, is a basis for thinking about drug policy that
helps us to resolve, rather that repeat, this long-running debate.
Human rights can provide this basis. There have been attempts to move drug policy
debates onward by arguing that article 12 of the Universal Declaration of Human
Rights (enshrining the right to privacy) entails a right to use drugs (Hunt, 2004), or by
pointing to contradictions between the enforcement of UN drug conventions and the
UN Charter (Barrett, Lines, Schleifer, Elliott, & Bewley-Taylor, 2008). The problem
with these approaches is that they risk descending into narrow legalism, with
everything depending on how the wordings of conventions are interpreted. They
potentially could be ended by a stroke of a pen to the UN Charter1, leaving the
normative debate about drug use unresolved. A sound basis for debate needs a footing
outside the confines of UN documents.
Such a basis can be provided by a rationalist, rights-based approach, drawing on the
neo-Kantian arguments of Alan Gewirth (1978; 1996). This approach does not rely on
personal preference or legal argument, but rather sets out the reasons why all of us are
rationally committed to the same underlying principles: a commitment to upholding
the freedom and well-being that are necessary for human beings to act towards
purposes. The consequences of these principles for drug policy debates will be
discussed. They do not provide an immediate resolution to these debates, but offer a
shared basis which enables - and indeed is demanded by - rational communication.
The basis of rights and harms: the principle of generic consistency
The rationalist philosopher, Alan Gewirth (1978) has provided a sound, universal
basis for defining human needs, and therefore for defining rights and harms. His
argument is a contemporary development of Kant’s categorical imperative: ‘Act in
such a way that you treat humanity, whether in your own person or in the person of
any other, always at the same time as an end and never merely as a means to an end.’
(Kant, 1981: 36).
Gewirth writes in technical language. I will attempt to lay out the steps of his
argument here in relatively simple terms. It rests on the law of non-contradiction. This
is one of Aristotle’s laws of thought. It states that a proposition and its contradiction
cannot both be true. Although many attempts have been made to disprove this law,
they have all ended in confusion. This is because the law applies even to attempts to
contradict it. Arguments against the law are terminally vulnerable to the clever-dick
question: is your proposition that ‘a proposition and its contradiction can both be true’
itself true of false? To accept this literally nonsensical proposition as true would be to
allow an infinite proliferation of contradictory meanings. No statement could reliably
signify any content, as its opposite could be equally valid. This does not mean that
ethical judgements are simple. Rather, it commits us to open discussion of right and
1
For example, by inserting into the Charter a duty for the UN to combat drug trafficking, similar to that
included in the founding Covenant of the League of Nations.
2
wrong on the basis of logical rules to which we are all rationally committed, whether
we like it or not.
The first step of Gewirth’s argument is that any person who seeks to act must value
the necessary conditions of action. Such an agent needs freedom and well-being. As
Gewirth puts it, ‘[s]ince agents act for purposes they regard as worth pursuing … they
must, insofar as they are rational, also regard the necessary conditions of such pursuit
as necessary goods’ (Gewirth, 1982: 47). Gewirth then argues that every agent must
accept, on pain of self-contradiction, that she has rights to the necessary conditions of
action. To deny that she has these rights would be to allow that she can be refused the
basis for action. The next step is to note that because a person accords these rights to
herself on the grounds of being an agent, then she must also, again on pain of selfcontradiction, accord these rights to other persons who have the capacity to act
towards purposes. Gewirth calls this the ‘principle of generic consistency’, or PGC.
Echoing Kant’s categorical imperative, the PGC ‘requires of every agent that he
accords to his recipients the same rights to freedom and well-being that he necessarily
claims for himself’ (Ibid: 53).
Gewirth suggests that the PGC entails some duties that apply to how people treat
themselves. These duties derive from the agent’s necessary rational commitment to
avoid damaging herself, in the same was as she has duties not to damage others. The
recipient of her actions towards whom she owes such duties include, first, her own
future self and, second, those parts of her total personality (including her reason) that
are immediately effected by her actions (Gewirth, 1978: 337-338).
The PGC gives us a stable basis for the analysis of rights and harms to them. It is not
dependent on individual or cultural preferences, but is universally valid for human
agents who rationally must value the conditions they need for purposive action. In this
perspective, harms can be seen as acts and conditions that infringe on rights to the
freedom and well-being that we all need as agents. Of course, people are capable of
denying that we have these needs, and therefore these rights. But any such denial is
logically self-defeating. It is therefore entirely unpersuasive when entered into
argument.
Competition between rights
Rights are universal, due to our shared capacity for purposive action. But they are also
always in competition. The negative right not to have one’s actions limited may
conflict with the positive right of others to the conditions necessary for action. The
right to property, for example, conflicts with the right to life in the case of a rich man
who is unwilling to give up some of his goods to help a poor man avoid death by
starvation. Gewirth uses the PGC to help resolve such conflicts. This basis of the PGC,
remember, is found in the necessary conditions of agency – freedom and well-being.
Rights are more fundamental and of greater priority if they are more needful for the
creation or maintenance of these conditions. On this basis, Gewirth distinguishes three,
hierarchical levels of rights: basic, nonsubtractive and additive.
Basic rights refer to an agent’s right to the preconditions of agency. These include life,
physical integrity, health and mental equilibrium. Without these preconditions,
3
purposive action is not possible. So agents must value them over other conditions, and
must value those of other people as well as their own. The corollary of basic rights is
the concept of basic harms. These are interferences in basic rights, such as killing,
maiming and depriving others of the necessary conditions of life (e.g. food, water,
shelter). These harms are “non-arbitrarily harmful because, amid the diverse values
different persons may have, as actual or prospective agents, they objectively need the
basic goods that are attacked in such ways” (Ibid: 233).
Nonsubtractive rights are also based on the agent’s capacity for action. But they refer
to less serious harms to this capacity than the basic harms listed above. Harms to
nonsubtractive rights are those harms which reduce, but do not destroy, the agent’s
capacity for action. Examples include losses by theft, deception, exploitation and
defamation. Gewirth places important qualifications on nonsubtractive rights. They do
not apply to losses which could not be shown objectively to harm an agent’s capacity
for action. For example, if something I do offends you because of your particular
beliefs, and that offence is based only on your personal preferences, then I am not
imposing nonsubtractive harm upon you. And they do not apply in situations where an
institution that is ethically justified by the PGC reduces an agent’s capacity for
purposive action. Gewirth gives the example of a person who loses an artistic
competition. His capacity for action may be objectively damaged by this loss, but, as
the rules of the competition are ethically justified, his rights have not been harmed. As
we shall see, it is more difficult to apply this qualification to drug regulation than the
Oscars.
Finally, additive rights refer to the “means or conditions that enable any person to
increase his capabilities of purpose-fulfilling action and hence to achieve more of his
goals” (Ibid: 240, my italics). As an agent rationally must value increasing her own
capabilities to fulfil her purposes, so she must value the increase of the capabilities of
others, and so accord them these additive rights. The qualification to these rights is
that they can be put aside when they conflict with the agent’s own basic, or
nonsubtractive rights, or with the ethically justified rules of institutions to which she
and these others belong. Interestingly for drug policy discussions, additive goods do
not only consist of the external effects of agency, like material items. They also refer
to “the factors of rational personhood and aspiration that support and generate these
effects” (Ibid: 242). These include the virtues of tolerance, courage, prudence, and –
intriguingly – temperance. Gewirth defines temperance as the ability to guide one’s
conduct rationally. These are prudential, not moral virtues (i.e. they tend to maximise
the capacity for purpose fulfilment of the individual, but can be used in ways that
conflict with the mutual obligations entailed by the PGC). Therefore, people do not
have a duty to develop these virtues in themselves (that is a matter for their own
choice). But they do have a duty to refrain from hindering their development in others.
The PGC entails a duty not to act in such a way that encourages the spread of
physically or mentally harmful practices. When the harms of such practices go
beyond the immediate participants, then “legal regulation and even prohibition may
be justified” (Ibid: 324).
So the PGC sets up a hierarchy of rights, with corresponding harms, and duties to
avoid inflicting harms to one’s self as well as to others. Harms to basic rights are
“more wrong” (Ibid: 236) than harms to nonsubtractive rights, which are in turn more
serious than harms to additive rights. The justification of institutions and regulations
4
must also follow this hierarchy. It may be justifiable to impose prohibitions to prevent
harms to additive goods (which increase people’s capacity for rational purpose
fulfilment), but not if these regulations harm rights to nonsubtractive goods (which
objectively support rational purpose fulfilment), or – even more importantly – basic
good (which objectively support the very possibility of action). The use of the death
penalty for drug law offences is, for example, immediately ruled out. It may –
arguably - support temperance (an additive good), but it ends life (a basic right). Less
extreme forms of regulation are more complicated, but the PGC gives us a shared,
rational basis for their discussion.
This argument has a deontological basis, in that it is concerned with logically justified
values and duties. But Gewirth criticises formal deontological approaches which
value rules, but cannot specify the content of these rules in relation to their
consequences (such as the idea, attributed to Kant, that a lie should never be told,
even if it would save a life, because lying itself is wrong). Deontological arguments
are usually contrasted with consequentialist approaches, such as utilitarianism.
Gewirth specifically rejects utilitarian calculation as a basis for judging between
potential actions and policies. Utilitarianism discusses the content of rules by arguing
that doing good should be preferred to doing evil, and then multiplying the numbers
of people to whom good or evil is done by the amounts of each that are done. But it
has no underlying basis for defining what is good, and what is evil. The PGC provides
a formal, logically necessary set of rules. But it also enables the consequences of
following these rules to enter the discussion of how to resolve conflicts between them.
It “combines the axiological substantive content of moral duties with a formal
consideration of consistency or mutuality” (Ibid: 203). In this way, it bridges the
divide between deontological and consequentialist justifications for drug policy that
has been identified by MacCoun and Reuter (2001).
Drugs and rights.
From this discussion, the question will inevitably arise: is there a right to drug use?
The answer is fairly easy in the case of drugs that are used to save life, or reduce pain.
These support basic goods. It is necessary to be alive and to be free from severe pains
in order to be able to pursue your purposes. But is there a right to use drugs nonmedically2?
It would be possible to construct an argument that there is no such right. It could
consist of three claims. The first is that drug use is inherently harmful to the ability to
guide one’s conduct rationally. A second is that, as we have duties to ourselves, as
well as to others, we should avoid actions that reduce our ability to act purposively in
such a way. The third is that, as there exist rights to temperance (as an additive good)
and to be protected from harm to our rational capabilities (a nonsubtractive right), it is
also right that institutions exist that protect us from drug use by forbidding it. There is
therefore no right to drug use.
2
Current controversies over medical marijuana in California and elsewhere show how hard it is to
draw the boundary between medical and non-medical use of drugs. For this discussion, illicit drugs will
be treated as if they had no medical value, as this provides the strongest test of whether there is a right
to use them.
5
Of course, there are several problems with this argument. The first is that drug use is
not always harmful to the capacity for rational action. Even if a minority of users
become dependent on drugs, and others may suffer other forms of cognitive
impairment, it seems that the vast majority of people who have ever used illicit drugs
(a large proportion of the populations of most developed nations) have done so
without causing lasting damage to their capacity to act towards intended purposes.
Indeed, drug use may be one of those intended purposes for people who find it
pleasurable. Drug use may be entirely rational in many cases. It is not always and
inherently irrational.
Even in cases where drug use is harmful to the drug taker, there is a second problem.
It relates to the argument that we have duties to ourselves. As noted above, Gewirth
argued that, as temperance is a prudential rather than a moral virtue, people do not
have a duty to protect it in themselves, but only to avoid damaging its development in
others. So if temperance is the virtue that is damaged by drug use, we have no duty to
prevent our own actions from causing this damage.
And there is a wider problem with the argument that we have duties to ourselves. This
argument, Gewirth states, derives analogically from the PGC, as it involves the
argument that our own selves are analogous to the selves of others to whose freedom
and well-being we are rationally committed. But there is a problem with this analogy.
The PGC and the rights it is based on rest on the logical arguments that make it
impossible to deny them without contradicting oneself. Now, self-contradiction may
be fatal to an argument, but it is not fatal to the person. People contradict themselves
all the time. They do not disappear in a puff of Aristotleian smoke. Indeed, one could
argue that the ability to contradict oneself is a necessary element of the autonomous
free will on which the PGC rests. The only problem with self-contradiction (a large
problem though it may be), is that it disqualifies the self-contradicter from success in
argument with other selves. The PGC is argumentative in nature. It arises from the
possibility of debate between selves, which is the only arena in which selfcontradiction is a problem. If an activity is harmful to the person who is carrying it
out, this may be in some way self-contradictory, but it is not wrong under the PGC
unless the person seeks to inflict these harms on other people.
As both of these claims fail, so the third claim (that institutions based on these claims
are justified in forbidding drug use) also fails. So the answer to the question of
whether there is a right to drug use appears to be yes. But it is a rather small yes.
People may rationally choose to experience the effects of psychoactive substances,
even if they have no objective need for them. The ability to do so falls within the
category of additive goods. It increases their capacity to fulfil their own purposes.
Purposes cannot be chosen for other people without conflicting with their rights under
the PGC.
However, in some circumstances, drug use may cause harms to the rights of others.
Again, the hierarchy of rights applies. Drug use, as an additive right, can not be
rationally justified where it leads directly to harm to more basic rights. This is why the
yes given to question above is so small. If my right to use drugs conflicts with your
rights to retain your property, or to your own health, then that right to drug use is
superseded.
6
Some proponents of abstinence might argue that, in practice, this rules out the right to
drug use. They could argue that drug use inevitably leads to theft (or to higher
taxation to pay for treatment and imprisonment of drug users) or other harms to others.
But these are matters that can be tested empirically, rather than being left at the level
of assumption. And empirically it can be shown that, in very many cases, use of
psychoactive substances does not lead to crime, treatment or harms to others. Even
drugs that are considered more dangerous, such as cocaine and heroin, have many
users who do not cause or suffer these types of harm (Cohen & Sas, 1994; Shewan &
Dalgarno, 2006; Warburton, Turnbull, & Hough, 2005; Zinberg, 1984). For these
users, drug use expresses their additive rights and does not harm any basic or
nonsubtractive rights.
Some forms of drug use, of course, do cause such harms. One example is smoking
tobacco in enclosed spaces inhabited by other people. This has been shown
empirically to cause harms, including fatal cancers (Taylor, Najafi, & Dobson, 2007).
In this case, the expression of an additive right conflicts with the basic right to life of
the recipients of this action. The action is therefore wrong, and institutions are
justified in taking steps to reduce it (within limits, in line with the hierarchy of rights).
There is no right to use drugs in ways that directly inflicts harms to others. Examples
of such harms include administering drugs to others against their will, or without fully
informing them of the dangers involved3.
Do addicts lose rights?
This discussion of rights to drug use has assumed that we are dealing with use by
people who have full agency, and who therefore share the same rights as other agents
under the PGC. But what about people whose agency may be compromised by the
consequences of their drug use? Do they lose some of their rights as their agency is
compromised? Does this open the door, for example, to forms of coercive restriction
and treatment, in order to protect and re-establish the agency that has been damaged
by drug use?
To answer these questions we need to consider what agency is and in what ways drug
use may damage it. For Gewirth (1978), agency depends on two conditions: freedom
and well-being. He defines action that is free as “under the agent’s control in that he
unforcedly chooses to act as he does” (Ibid: 27). Drug use is often seen as involving
some form of compulsion, indicating an inability to choose one’s actions freely. For
some, this compulsion can be shown in diagrams of brain activity, which show the
body’s natural reward system being significantly altered by prolonged drug use,
therefore creating a physical inability to choose not to use drugs. These pictures show
us the brain disease of addiction (Erickson, 2003; London, 2009). Other have pointed
out that addiction still lacks “a truly uniform set of symptoms and a distinct site,
3
This stipulation may mean that the majority of illicit drug sellers are not respecting the rights of their
customers to full information on the contents and potential harms of their wares. It could also lead to a
discussion of whether the consequences of criminalising the sale of these substances makes it more
likely that consumers are denied their rights to full information. In the absence of this information, it is
still within the scope of the user’s freedom of action as to whether to take the risk of consuming
substances of uncertain provenance and risk.
7
source and course of pathology that are necessary and sufficient for the presence of
disease in addiction.”(Reinarman, 2005: 312).
That drug use changes brain chemistry is now undeniable. That this produces
insurmountable compulsion is more debatable. It may be more accurate to present
chronic drug use (even where it is maintained despite negative consequences) as
involving the repeated taking of choices. The user has the choice, whenever the
opportunity to take drugs arises, of whether to use or abstain. Differences in brain
function will influence which of these options is taken (Yücel & Lubman, 2007). To
this extent, some drug users may suffer from a form of intellectual impairment which
is related specifically to their use of drugs. It should not be assumed that, just because
a person uses drugs repeatedly, that this results solely from unwilled compulsion, or
that their autonomy in other areas is compromised.
If we see addiction, not as a disease, but as a symptom of various kinds of dysfunction
in the motivational system (West, 2001), then we can set it alongside other kinds of
intellectual impairment when considering how to treat those people who display this
symptom. As has been eloquently argued by the Mayor of Vancouver (Sullivan, 2007),
there is a strong case for seeing people who display addiction as disabled, rather than
as essentially criminal. He sees drug-induced dysfunctions of the motivational system
as no different from his own skiing –acquired paraplegia. Various forms of risk-taking
can lead to specific forms of disability. We should not base our response to people
who suffer from these disabilities on partial, non-rights based judgements of the
behaviours that led to these disabilities. Rather, we should consider the implications
of this disability for the person as an agent.
Freedom, or autonomy (defined as the capacity to govern one’s own actions) is only
one of the two elements of agency that is considered as necessary by Gewirth. The
other is well-being. Without the right to life, physical integrity and human dignity,
freedom alone can not afford a person the ability to act towards purposes with some
hope of success (which is the basic right that all agents must rationally accord to each
other). So all interventions in the lives of persons who display addictive symptoms
must pay attention to their need for well-being, as well as to the degree of autonomy
which they are capable of. Responses which fail to respect the person’s physical
integrity (such as compulsory prescription of substances such as naltrexone) or the
need for freedom and well-being in other areas of their life (such as compulsory
incarceration for the purpose of treatment) therefore conflict with the PGC and are
neither morally nor rationally justifiable.
Rather, the response to people who are unable to control their drug use should be to
support them to increase their agency. As other authors have written, in the context of
other types of intellectual disability:
[rights] stipulate that individuals with a disability are entitled to certain services and
consideration from others so that they can act in accordance with their own life goals. In view
of the fact that they may lack some of the necessary requirements for effective agency, they
are entitled to receive assistance from the state, its agencies and members of the community to
act in pursuit of their goals. This is not a matter of charity; it is a question of having a basic
human right to a minimally satisfying level of existence (Connolly & Ward, 2008: 106) .
Gewirth uses the metaphor of scaffolding to describe the kind of support that is
demanded by the PGC to those who lack the basic goods required for agency.
8
Persons who lack these goods (including drug users who lack freedom to the extent
that they are unable to control their own choices over drug use) may need support of
various levels of intensity and various durations. But this support should always have
the goal of increasing their level of agency. Interventions towards other goals (e.g.
reducing the total level of social harm caused by drug users) risk treating the person
as means to the ends of other people, and so abusing their rights. Institutions that base
their action on these rights (which are the only rationally justifiable institutions) must
respect the rights both of drug users and of the recipients of their actions. The
scaffolding they must provide for the agency of drug users whose cognitive functions
are impaired does not extend to excusing these persons from the responsibility to
respect the rights of the recipients of their actions. Nor does it mean that these
institutions should ignore the consequences of various forms of drug regulation for the
basic, nonsubtractive and additive rights of the members of the particular community
of rights to which their rules apply.
Rights and drug policy
So far, rights have been discussed at a fairly high level of abstraction. This is the
easiest level at which to deal with them. As soon as we descend to the level of real
world policies, things get a lot messier. But the PGC provides a sound, stable,
rationally justified principle to guide us through these messy issues. So let’s turn to
actual policy approaches towards illicit drugs, and see what that this approach can tell
us. There are active debates over prohibition and harm reduction to which the
rationalist, rights-based approach can be applied.
Prohibition: a rational infringement of rights?
The current global approach to illicit drugs, as laid out in the various UN conventions,
requires countries to make the distribution and possession of certain drugs punishable
under the criminal law. There has been much debate as to the extent of the obligations
that these conventions place on nations to criminalise their drug selling and using
citizens (Dorn & Jamieson, 2000), but countries that have decided not to pursue such
criminalisation have come under repeated pressure from the International Narcotics
Control Board and some UN nations to pick up these penal cudgels. The
criminalisation of all illicit drug use obviously denies the additive right (identified
above) to the non-medical use of psychoactive substances. But this does not mean that
criminalisation automatically creates an unjustified infringement of the rights of drug
users. If it could be shown that criminalisation protects basic or nonsubtractive rights
which are harmed by drug use, then it would be possible to justify prohibition.
Recently, advocates of prohibition have moved away from discussing abstinence as an
absolute moral good that must be protected (a position that has nothing to do with
objectively verifiable harms to rights and which therefore is not rationally justifiable)
to claiming that prohibition has reduced the level of harm associated with drug use.
For example, it has been claimed that without prohibition, illicit drugs would be used
as widely as alcohol and tobacco, with massively increased harms (Costa, 2007). This
claim is not verifiable. There is no counter-factual, control world which was the same
in every respect except drug prohibition which might allow us to make causal claims
about the effect of prohibition on drug use. But even if we accept that prohibition has
9
limited the spread of drug use, there is still the problem that the argument assumes
that drug use is inherently harmful. It is as if we were to prohibit driving cars on the
basis that we know there is a risk that driving leads to fatal accidents. The PGC does
not outlaw motor vehicles, as it recognises that agents are free to decide to take the
risk of driving, even if it might lead to their own death (Gewirth, 1996).
In discussing this issue in a fascinating article on cancer, Gewirth presents the
‘informed control criterion’, which could also be applied to policy on driving, or on
drugs:
If someone knows or has good reason to believe that actions or policies under his control
operate to cause cancer [or drug-related harm] in other persons, then if he continues these
actions or policies, he is in the position of inflicting cancer [these harms] on these other
persons, and he violates a basic human right: he is both causally and morally responsible for
the resulting deaths and other serious harms (Gewirth, 1982: 182-183).
We must note two qualifications to this criterion. The first is the ‘principle of the
intervening action’. Moral responsibility for the harm caused is removed to the extent
that another person’s actions intervene between the cause of the harm and its being
produced. So a person who drives a car at high speed into another vehicle removes
responsibility for the resultant harm from the car manufacturer, even if this company
had good reason to believe that producing cars would lead to deaths on the road. The
second qualification to the criterion of informed control is that moral responsibility is
related to the degree of certainty attached to the production of harm. A person who
shoots a bullet into someone else’s head is directly responsible for the harm it causes,
as it is entirely predictable. But other harms are less predictable and so may carry less
weight in deciding when to create or prolong institutions which limit some rights in
order to protect others.
It has been argued that reducing the penalties applied to drug users and sellers would
lead to lower drug prices, to more users and therefore to more harm: for example,
psycho-pharmacologically induced violent crime by users of crack (Inciardi, 1999).
This is an application of the informed control criterion to drug policy. Inciardi argues
that loosening prohibition would have predictable, direct effects in increasing drugrelated harm. So he concludes that we have a moral responsibility to continue the
prohibition of these substances. Unfortunately, he applies neither of the qualifications
that Gewirth has placed on this criterion. The principle of the intervening action
means that the responsibility for these harms (violent crimes) rests primarily with
their perpetrators, rather than the institutions and individuals which make drugs
available to them. A counter-argument would be that many of these individuals lack
the necessary freedom from motivational dysfunction to make rational decisions over
their drug use and the crimes they commit to pursue it. They therefore deserve
protection from the availability of these drugs in order to scaffold their agency in this
area.
This brings us to the second qualification to the informed control criterion: the degree
of certainty that harm will be produced. It would be possible to test the effect of
loosening prohibition on the choices of drug users to commit violent crimes. Partly
because of the tight control of the UN conventions, such empirical work has rarely
been possible. Some studies have shown that making heroin more easily available to
some, carefully selected users, has had the result of reducing, rather than increasing
their criminality (Guttinger, Gschwend, Schulte, Rehm, & Uchtenhagen, 2003;
10
Hartnoll & Mitcheson, 1980; Uchtenhagen, Gutzwiller, Dobler-Mikola, & Stephen,
1997; van den Brink, Hendriks, Blanken, Koeter, van Zwieten, & van Ree, 2003). But
we might find that this does not apply to other users or to other drugs, if only we were
able to test these effects. At the moment, the argument is largely carried out by
trading unverified assumptions on whether prohibition does or does not reduce harm.
The rights-based framework demands that we ascertain the degree of certainty that
various forms of prohibition reduce drug-related harms if we are to use these harms in
justifying infringing the rights of drug users and others.
Comparing harms for harm minimisation
The PGC leads to a rational acceptance that drug policy should aim to limit
objectively verified harms to rights. Very recently, a debate has broken out over
whether minimisation of harm can be seen as the principle aim of drug policy. Don
Weatherburn argues that harm is too vague and unmeasurable a concept to provide the
central aim of drug policy. He argues that all drug policy approaches have some
harms, and implies that it is impossible to choose between them. He writes,
The harms associated with drug use (and our control strategies) are
incommensurable…[D]ecisions about what policy to adopt invariably come down to political
(value) judgements about what risks, harms and benefits (i.e. outcomes) matter the most. This
is not a job for researchers: it is a job for politicians and the public at large. (Weatherburn,
2009: 337)
Weatherburn argues that, instead of seeking to reduce harm in general, we should
choose a list of specific problems that we seek to address. But he leaves unresolved
the question of how this list is to be created. From the quote above, we can assume
that he intends this task to be left to the wisdom of politicians and the public. Others
might argue that politicians and the publics they lead do not have a great track record
in choosing realistic or even worthwhile aims for drug policy. The scope for political
manoeuvres and ideology to affect these choices is huge. Researchers are unlikely to
make progress on this issue by retreating from debate about what drug policy is for.
In her response to Weatherburn, Ingrid van Beek accepts that drug related harms may
not be directly comparable, but writes that we still need an “overarching principle” to
inform us what the goals of drug policy should be (Van Beek, 2009: 342). She does
not tell us what this principle is. My argument in this paper is that Gewirth’s PGC
provides it. By defining the harms that we are trying to reduce as harms to the
necessary goods of agency, and providing a sound rational basis for this definition,
the PGC makes harms commensurable. It provides value judgements that are capable
of being tested and are open to public discussion. If we need to choose between
policies that have different effects in producing and reducing harms, we can refer to
whether these harms affect basic, nonsubtractive or additive goods. Policies which
harm goods which are more needful for agency are to be rejected in favour of policies
that harm goods that are less needful.
Weatherburn presents a specific policy choice as an example of the impossibility of
choosing between harms:
One policy cuts public drug dealing by 20% but encourages needle sharing and results in
many innocent teenagers being stopped, searched and questioned by the police. The other
policy reduces needle sharing and minimizes the number of innocent teenagers stopped
searched and questioned by the police, but, as a consequence, produces a higher level of drug
11
trafficking and drug-related loitering in and around areas that have methadone clinics. Which
policy should we adopt? (Weatherburn, 2009: 337)
Leaving aside the point that there are policies available that have been shown to
reduce needle sharing without leading to higher rates of drug dealing and loitering
(Independent Working Group, 2006), we can apply the PGC to this choice. The first
policy increases needle sharing and so predictably will lead to higher rates of
infectious disease, serious illness and death. These are harms to the basic goods of life
and physical integrity. It also leads to harms to the nonsubtractive rights of local
teenagers to go about their daily lives without police interference. Public drug dealing
is not itself a harm to rights, but may lead to other harms, such as fears among local
residents that mean they are less able to make use of public spaces in their area. This
is a harm to the nonsubtractive rights that these people have to use public spaces to
fulfil their own purposes. So one type of nonsubtractive harm to one group of people
is hypothetically prevented by harming the basic and nonsubtractive rights of other
people. With no further empirical evidence of harms, the PGC would lead to a clear
choice not to pursue this policy.
Turning to the second of Weatherburn’s hypothetical policies (which is basically the
obverse of the first), we can see that it reduces harms to the basic rights of drug users
and to the nonsubtractive rights of local teenagers, while protecting some
nonsubtractive rights of local residents. Again, in the absence of other empirical
information on the consequences of these policies, the choice is clear. The PGC
supports policies which favour the protection of basic rights over those which protect
nonsubtractive rights.
Opponents of the second policy might argue that the principle of the intervening
action applies. It is the drug users themselves who produce the harms associated with
needle sharing. The state has no responsibility for the harms associated with it, but
retains the responsibility to protect local citizens from harms associated with drug use.
But this would involve proponents of this view accepting the view that drug users
make free choices over their drug use, and so logically contradicting the view that
these drug users lack the autonomy to prevent themselves from using drugs (which is
presented as an argument for prohibition above). Opponents of this type of harm
reduction would therefore find themselves in contradiction with proponents of
prohibition. As these are usually the same people, they would be in contradiction with
themselves, and we know what Aristotle would have had to say about that.
Conclusion
Of course, arguments over drug policy are not always carried out on rational grounds.
The moral value of “purity/sanctity”, which is much more common among
conservatives than liberals (Haidt & Graham, 2007), has long been influential in
determining drug policy, especially in countries, such as the USA, which have strong
religious traditions. The work of Mary Douglas (Douglas, 1966, 1992; Douglas &
Wildavsky, 1982) has shown how the cultural distinction between the dirty and the
pure has been important in shaping moral choices in many different societies. Drugs
are ambiguous substances of consumption. They do not clearly fit into the categories
of food or medicine. Ambiguous people and substances are often categorised as dirty
12
(Douglas, 1966), and so to be avoided and excluded. Douglas has shown how these
types of values shape the moral choices of both pre-modern and modern societies.
However, just because such quasi-religious judgements have been important in
shaping drug and other policies, does not mean that we should accept their continuing
influence. Arguments over drug policy, as any argument does, presuppose that the
discussion is based on reason (if it is not, then why waste time arguing before moving
on to the simple expression of force?). Gewirth has shown how the offence caused by
one person’s practices to another person’s moral sensibilities cannot rationally be
used in justifying the infringement of people’s rights to the necessary goods for action.
In this paper, I have argued that Gewirth’s approach provides a sound, rationally
justified basis for the debate over drug policy. It is an approach that bridges
deontological and consequentialist approaches. It does not rule any policy out without
paying attention to its consequences. But it does provide, which purely utilitarian
approaches cannot, a basis for choosing between consequences. This paper has only
begun to apply this approach to drug policy. There is much debate to be had as to how
the consequences of drug policies relate to the rights protected by the PGC. It may be
the case that ideology will continue to dominate drug policy. But at least I hope to
have shown that there is a logical basis for these discussions. Drug policy debates
need not be seen as a matter of personal preference. They are an arena for rational
argument.
13
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