4 August 2016

Great to see a bit or real philosophy rather than stoner philosophy over the marijuana wires today… Robert Robb writes

Robb: On marijuana legalization, it’s Locke vs. Bentham

At root, the debate about legalizing marijuana is a philosophical one dating to the Enlightenment. It pits the individual natural rights philosophy of John Locke (1632-1704) against the utilitarianism of Jeremy Bentham (1748-1832).

Locke believed that individuals had an innate right to liberty, which was the building block of civil society. Individuals entered into a social contract to form governments and give them power. But power to protect their liberty against the predations of others.

From the Lockean perspective in the modern era, getting high by ingesting weed isn’t predatory behavior against anyone else. So, government has no right to deprive a person of liberty for using marijuana.

Their argument: We know what’s best for you

Bentham, on the other hand, believed that the moral right was what produces the greatest good for the most people.

Marijuana is harmful, goes the Benthamite argument. Criminal penalties will deter its use and are therefore morally justified.

But that is only the beginning of the utilitarian argument against legalizing marijuana.

For the most part, people are no longer put in jail strictly for using marijuana. They ordinarily are put in a diversion program that includes drug treatment as a condition of probation.

According to modern-day utilitarians, the threat of jail for violating the terms of probation is useful, perhaps essential, in getting people to complete their drug treatment. It’s good for them.

In the Arizona debate over legalizing marijuana, the trump argument for opponents is even more utilitarian. When Colorado legalized marijuana for use by adults, they intone, marijuana use by children went up. So, to keep marijuana use among children from going up in Arizona, its use by adults must remain subject to criminal sanction.

Jail people just because it’s good for them?

Lockeans, of course, rebel against these arguments. Threatening to put people in jail if they don’t do something good for them, such as completing drug treatment, is an immoral violation of the social contract. We put people in jail for doing bad things to other people, not for failing to do something good for themselves. If we are going to compel good behavior, where’s the limiting principle on the authority of government to curtail the natural right to liberty?

The argument about increased use among children is even more offensive to Lockeans. The consumption of weed by adults doesn’t directly cause use by children to go up. There is an intervening miscreant who illegally supplied the children with it. That is the person who should be subject to criminal sanction and the attention of law enforcement.

The inability of law enforcement to suppress such activity, or the failure of education to counteract it, doesn’t justify threatening adults who want to use marijuana with incarceration, in the view of Lockeans. Get better at those other things.

Supporters of marijuana legalization do make some utilitarian arguments, principally about the resources wasted in an ineffectual war on drugs. But, at heart, the argument is grounded in individual natural rights and the appropriate limits of the social contract.

I am a Lockean. So, I favor the legalization of marijuana. But that doesn’t automatically mean support for the initiative that will be on the Arizona ballot.

A better alternative than what’s on the ballot

Marijuana possession and use remain illegal under federal law. So, as I’ve previously written, the most appropriate next step for Arizona would be simply to remove our criminal penalties for the possession, use and distribution of small quantities for adults.

Because the federal government treats it as illegal doesn’t mean the state has to as well. The federal government isn’t going to go after individual users and small-scale cooperative cultivation. So, there wouldn’t be much risk in the informal use of marijuana.

The initiative, however, sets up a structure for large-scale commercial cultivation and sale of recreational marijuana, which is in direct conflict with federal law. Moreover, it gives current medical marijuana dispensaries a greased inside track on the recreational market. It’s a naked, self-interested grab for protected market share.

During the campaign, the two sides will be talking past each other.  The reason is that their perspectives are rooted in very different philosophies about the proper relationship between individuals and their government.