Posted by Randy Barnett:
Public Policy and the Role of Principles:
http://volokh.com/archives/archive_2009_02_22-2009_02_28.shtml#1235403465
Libertarians hear a lot about pragmatism and the pitfalls of being an
ideologue. While conservatives love to poke fun at libertarians'
preoccupation with the War in Drugs by suggesting we just want to get
high, some of us have never even smoked marijuana. (Yes, it is true.)
The argument from pragmatists is just to do "what works." But to know
"what works" we need to "experiment." But what happens when your
experiment fails miserably? Will it ever be undone? If not, is
pragmatic social experimentation a truly practical approach towards
social policy?
I have been repeatedly forthright in my cautions to libertarians about
the limits of first principles. But first principles that have evolved
over time in response to experience--and theorizing about that
experience--have an important role to play in avoiding costly "social
experimentation" before it is implemented. I fear we are about to be
given a new crash course on the perils of pragmatism and "what works"
in a variety of policy areas. But the failure of the War on Drugs
highlights the importance of first principles in avoiding disastrous
social experimentation than cannot easily, if ever, be declared a
failure by the political establishment.
In 1987, my article "[1]Curing the Drug Law Addiction: The Hidden
Side-Effects of Legal Prohibition" was published in the book
[2]Dealing With Drugs. (It is slated to be republished in the Utah Law
Review this year.) There I explained why first principles make it
perfectly predictable THAT drug prohibition will fail and WHY drug
prohibition will fail, along with the steep price that will be paid
for this failure in terms of (a) harms to drug users themselves about
whose welfare prohibitionists profess to be concerned, (b) harms to
nondrug users who pay a steep price for prohibition along with drug
users, and (c) harms to law enforcement and the legal system that stem
from corruption and the weakening of civil liberties that inevitably
accompany the enforcement of consensual possessory "crimes."
So who are the practical ones? The "ideologues" whose views are guided
by first principles, or the "pragmatists" whose views are guided by
"practicalities"? Here is how my article begins (only partially tongue
in cheek):
Some drugs make people feel good. That is why some people use them.
Some of these drugs are alleged to have side effects so destructive
that many advise against their use. The same may be said about
statutes that attempt to prohibit the manufacture, sale, and use of
drugs. Using statutes in this way makes some people feel good
because they think they are "doing something" about what they
believe to be a serious social problem. Others who support these
laws are not so altruistically motivated. Employees of law
enforcement bureaus and academics who receive government grants to
study drug use, for example, may gain financially from drug
prohibition. But as with using drugs, using drug laws can have
moral and practical side-effects so destructive that they argue
against ever using legal institutions in this manner.
One might even say--and not altogether metaphorically--that some
people become psychologically or economically addicted to drug
laws.
[Footnote: For those who would object to my use of the word
addiction here because drug laws cause no physiological dependence,
it should be pointed out that, for example, the Illinois statute
specifying the criteria to be used to pass upon the legality of a
drug nowhere requires that a drug be physiologically addictive. The
tendency to induce physiological dependence is just one factor to
be used to assess the legality of a drug. Drugs with an accepted
medical use may be controlled if they have a potential for abuse,
and abuse will lead to "psychological or physiological dependence"
Illinois Revised Statutes, ch. 56/2, ยง 1205 (emphasis added).
Thus, applying the same standard to drug-law users as they apply to
drug users permits us to characterize them as addicts if they are
psychologically "dependent" on such laws.]
That is, some people continue to support these statutes despite the
massive and unavoidable ill-effects that result. The
psychologically addicted ignore these harms so that they can attain
the "good"--their "high"--they perceive that drug laws produce.
Other drug-law users ignore the costs of prohibition because of
their "economic dependence" on drug laws; these people profit
financially from drug laws and are unwilling to undergo the
economic "withdrawal" that would be caused by their repeal.
Both kinds of drug-law addicts may "deny" their addiction by
asserting that the side effects are not really so terrible or that
they can be kept "under control." The economically dependent
drug-law users may also deny their addiction by asserting that (1)
noble motivations, rather than economic gain, lead them to support
these statutes; (2) they are not unwilling to withstand the painful
financial readjustment that ending prohibition would force them to
undergo; and (3) they can "quit" their support any time they want
to (provided, of course, that they are rationally convinced of its
wrongness).
Their denials notwithstanding, both kinds of addicts are detectable
by their adamant resistance to rational persuasion. While they
eagerly await and devour any new evidence of the destructiveness of
drug use, they are almost completely uninterested in any practical
or theoretical knowledge of the ill effects of illegalizing such
conduct.
Yet in a free society governed by democratic principles, these
addicts cannot be compelled to give up their desire to control the
consumption patterns of others. Nor can they be forced to support
legalization in spite of their desires. In a democratic system,
they may voice and vote their opinions about such matters no matter
how destructive the consequences of their desires are to
themselves, or more importantly--to others. Only rational
persuasion may be employed to wean them from this habit. As part of
this process of persuasion, drug-law addicts must be exposed to the
destruction their addiction wreaks on drug users, law enforcement,
and on the general public. They must be made to understand the
inherent limits of using law to accomplish social objectives.
If you are interested in the principled reasons for these adverse
social consequences, you can read the whole the article [3]here. I
expanded on this analysis in the Yale Law Review in my 1994 review
essay [4]Bad Trip: Drug Prohibition and the Weakness of Public Policy
& in my 1984 review essay in Criminal Justice Ethics: [5]Public
Decisions and Private Rights. In each of these pieces, I examine the
role that properly-defined individual rights should play in crafting
social policy.
So can we finally get practical about drugs? And can we finally admit
that principles have a role to play in avoiding the costs of bad
social policy before it is adopted? And can we maybe admit that
libertarians are trying in good faith to be practical when they offer
their analysis of proposals for social experimentation, even when they
are talking about drugs--or "bail outs"?
References
1. http://www.randybarnett.com/curing_the_law_.html
2.
http://www.amazon.com/gp/product/0669156787?ie=UTF8&tag=randyebarnetbost&link_code=as3&camp=211189&creative=373489&creativeASIN=0669156787
3. http://www.randybarnett.com/curing_the_law_.html#fn1-3
4. http://www.randybarnett.com/badtrip.htm
5. http://www.randybarnett.com/pub_dec.htm
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