To legalise or not to legalise?

In the last post I was looking at the contentious issue of euthanasia and Assisted Dying, which isn’t currently legal in the UK or US; and a while back I looked at abortion, which is. I said that if one of these is legal, it certainly seems odd that the other isn’t; conversely, if the other isn’t legal, maybe the one shouldn’t be either.

In this post I want to look at the arguments and issues around legalisation in general – whether it’s helpful or harmful, beneficial or counterproductive to legalise something which itself may be dangerous or harmful, or conversely to criminalise something which (though possibly immoral) is a common or inevitable part of society.

Some examples:

  • In the UK it’s illegal to own and use firearms without a special license; in the US it’s generally legal and backed up by a strong gun lobby.
  • In the UK it’s illegal both to sell and to be in possession of most mood-altering drugs, with the exception of alcohol, tobacco, ‘legal highs’ and of course caffeine. I think the position in the US is similar, apart from those states where you can’t buy alcohol.
  • In the UK (and I’m guessing the US) it’s illegal to act as a prostitute or as a pimp; it’s also illegal to procure the services of a prostitute. It is however legal to make, distribute and possess pornography so long as you, the purchasers and the people depicted are over 18 and consenting.
  • Until very recently it was illegal in the UK to attack or wound a burglar in self-defence, and to do so was a criminal act. The law has just been changed and it’s now legal, within certain limits.

Relatedly but on a slightly different level is the legal right of the state to perform certain acts, to grant or curtail certain rights. So in the UK it is currently illegal for the state to execute anyone, or to detain people without trial for longer than a certain period. Here though we’re straying off into issues of human rights and civil liberties, which is really another discussion (see Killing in the name of – Christianity and the death penalty).

Objections to legalisation

Objectors to legalisation (or supporters of criminalisation, which is slightly different) of, say, drugs, prostitution or euthanasia usually use some standard arguments. We looked at these briefly in the context of AD:

  • The ‘thin end of the wedge’ and ‘slippery slope’ argument – e.g. legalising soft drugs may lead to legalising hard drugs; and people who dabble in the soft or apparently harmless end of something dangerous will often end up hooked into harder and more harmful things.
  • ‘Sends out the wrong message’ – legalisation sanctions and de-stigmatises what has been taboo, leading to more people doing the things which the objectors disapprove of.

Instead, objectors sometimes advocate a ‘blind-eye’ approach where something remains illegal but with only minor sanctions, and with police often pretending not to notice specific minor instances of the ‘crime’ or breaches of the law.

Objectors are concerned then that legalisation will inevitably encourage and promote behaviours and activities that are (or that they see as) immoral, harmful or dangerous. They fear that it will lead to more people engaging in these behaviours, thus sometimes getting draw in to lives of addiction, dependency and depravity, as well as further crime.

I do have a fair amount of sympathy with this, and acknowledge that there may be some truth in it. Some people probably will take the opportunity of legalisation to try out things that they were dissuaded from when it was against the law, and may indeed find themselves locked into cycles of addiction. I can very much identify with those who wish that certain unhelpful things were not sanctioned by legality and were not so readily available. However, this is not necessarily an issue of legalisation but of regulation and appropriate licensing – of which more later.

Mr X and the case for legalisation

Those in favour of legalisation (of say drugs or prostitution) argue that criminalisation doesn’t ever prevent particular activities. Rather it merely pushes them underground, thereby making them harder to police and regulate. They argue that it pushes many people into a life of crime, because if they can’t obtain what they want legally they will often do so illegally, thus entering and getting sucked into the criminal underworld where they have no legal protection and from which it can be very hard to escape. Again I feel the force of these arguments.

Now, this is a public blog so I need to exercise a little caution in what I share with the world. So let’s just say that the following story involves someone I know well, who I’ll call Mr X.

Twenty years ago as a student Mr X became part of a group of friends who were all regular recreational users of relatively soft drugs. The criminality of drug-taking apparently never acted as a serious deterrent for any of the group, at least not for long. Mr X reports that it did discourage him initially, as a naïve and generally law-fearing young person with no wish to end up in trouble with the police. However, under peer pressure in a climate where drug use was the norm, the sanction of the law seemed distant and unreal whereas the pressure of peers was real and immediate.

And once the initial plunge into law-breaking had been taken, Mr X reports that the illegality actually enhanced the experience, adding a frisson; a sense that they were doing something rebellious and anti-authoritarian. And though illegal, drugs were still easy to obtain so once scruples of legality had been overcome, there was little standing in the way.

Above all, Mr X discovered that smoking a joint of illegal cannabis was pleasant and calming and apparently not much more harmful than smoking legal cigarettes or drinking legal alcohol (perhaps less). This felt like a revelation. Alcohol and smoking were legal, so why not cannabis? And if cannabis was actually okay, then maybe some other drugs the authorities had warned against might not be so bad either.

It was very easy then (he reports) to shift one’s whole way of thinking into seeing all drugs as good and beneficial, a liberating and exciting way of life. “The fact that we’d all been made to think that ‘soft’ drugs were taboo only strengthened this position. We felt like we’d been lied to by parents and authorities”.

The story has a happy ending – Mr X converted to Christianity and gave up drugs, reporting that he’s never felt tempted to take them up again. However, at the same time he also gave up cigarettes and (mostly) stopped getting drunk, both of which are of course perfectly legal. In his words, “while the illegality of drugs would be a factor now in dissuading me from taking them up again, it’s not the primary factor. I now have a whole set of reasons for not taking drugs, not least of which is a stronger sense of identity and self-worth.”

The problem of porn

Let’s now turn to Mr Y, also a convert to Christianity. The area of temptation which Mr Y has most struggled with even as a Christian (and he’s far from alone) is pornography, which is completely legal and easy to obtain. Says Mr Y, “For my own sake I wish that porn wasn’t so readily available… I’m not generally in favour of censorship, and I know that legally it’s very hard to define what is and isn’t pornographic. But I do personally find it problematic that it’s so easy for anyone to get hold of this stuff.”

I suspect that many ex-alcoholics or ex-smokers feel the same about alcohol or cigarettes, wishing they could be banned completely. As an ex-smoker (for 16+ years) I can see their point. However, I’m still not totally convinced that a blanket ban is really the answer.

On my own walk home from work every day I pass a ‘Private’ shop selling adult materials. It has a large sign over the door proclaiming this fact, but otherwise it’s entirely discreet – the windows are covered by blinds and there’s no sign of any merchandise, nor any advertising; nothing to lure the unwary passer-by. I can honestly say that I’ve never felt the slightest inclination to enter this shop. I may not be morally happy with what they sell, but I would much rather that it were available in this context than somewhere like a newsagent where anyone can stumble upon it. (Though I’m aware that with porn the internet has now largely made this argument redundant.)

Regulation and restriction

So for me the issue with drugs, prostitution, porn, euthanasia, abortion etc is not just whether or not they should be legal. It’s far more to do with how they should be regulated and their use restricted – which of course can only really happen if they are legal. But legalisation itself is only ever the first step and not the full solution.

I personally feel that most drugs should be available legally via specialist licensed outlets, maybe within pharmacies. That way their sale and usage can be regulated and policed appropriately. Users can be offered education about the effects and dangers of different substances, and also offered support and counselling in coming off drugs – backed up by more open and honest drugs education in schools. As with currently-legal drugs like alcohol and tobacco, sale should be restricted to those above what’s decided to be an appropriate age, probably 18. Drugs should also be regulated for quality and where possible priced so that the black market is not a better deal.

With prostitution, I think that there probably should be licensed and regulated brothels where those who genuinely wish to work as prostitutes are able to ply their trade with the protection and support of the law. Alongside this there would need to be programmes offering help and support to those who wish to get out of prostitution.

Please note that I’m absolutely not saying that I think prostitution or drugs are good, helpful or morally okay. I really don’t. But these things will inevitably continue to happen whether or not we accept them, and I believe it’s better to have them properly regulated than brushed under the carpet into the criminal underworld.

Legalising murder?

Some will at this point say, well, by that argument why not legalise absolutely everything – let’s have legal assassination, legal paedophilia, legal burglary and legal embezzlement. (After all, one quick way to reduce the crime stats is simply to reduce the number of activities that are legally criminal, rather as one way to reduce weight quickly is to lop off your legs, and one way to reduce your carbon footprint quickly is to stop living.)

In my view this is a rather silly piece of argument-by-extension ad absurdum. Drug use and prostitution are essentially ways in which people consent to risk harming themselves, or to engage in consensual behaviours which may be immoral but are not necessarily inherently criminal. Assassination, burglary, etc are by contrast ways in which people harm others who are not consenting or (in the case of paedophilia) are not capable of consenting.

The only real borderline case for me is still that of abortion, which arguably is harming another person, if (as I do) you believe that an embryo is human or at least partially or potentially human. Out of legalising drugs, prostitution, euthanasia and abortion, it’s abortion that I have the gravest misgivings about (and ironically it’s the only one that’s currently legal in the UK). But still, as I’ve said before, I don’t believe it’s helpful to criminalise the mother, and backstreet abortions are a frightful thing. So reluctantly I’d say that on balance it’s less bad for it to be legal and regulated than completely illegal, whatever my own views on its morality and goodness.

There are no perfect solutions to these dilemmas in this imperfect world. There always has to be an element of compromise, and a degree of uncertainty as to outcomes. Even with legalisation there would still doubtless be a black market and illegal drug-dealers and brothels, and of course legalisation doesn’t stop harmful things from being harmful. I’d infinitely rather that drugs, porn and prostitution didn’t exist at all, but as they do I would on balance prefer that their sale and use were properly regulated than merely criminalised. How about you?

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About TheEvangelicalLiberal

Aka Harvey Edser. I'm a web editor, worship leader, wannabe writer, very amateur composer and highly unqualified armchair theologian. My heroes include C.S. Lewis and Homer Simpson.
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8 Responses to To legalise or not to legalise?

  1. dsholland says:

    It seems a bit foolish for the US to spend financial and political capital on “the War On Drugs” when it is our own population that is financing the other side? Did I say a bit foolish, I guess I meant downright stupid and wasteful. The choice is plain, regulate or enforce.

    Enforcement is problematic because apparently enough of the society is willing to spend the money and take the risk of use. This is not just an issue of hard or soft drugs. My brother-in-law has worked in law enforcement (Dept of Justice) his whole career and his position is that the marijuana trade in the (relatively) large northeastern city where we live is the cause of the majority of drug related murders in the area. He would know. He also (not unexpectedly) opposes decriminalization.

    Regulation makes sense to me turning a liability into revenue and undercutting the power of the criminal element. I thought we (in the US) learned that lesson with alcohol in the 1920’s but I guess not.

    That isn’t to say there are not social costs to regulation. As with alcohol there are numerous social downsides that the society has to “pay” for. As you say – it doesn’t stop harmful things from being harmful. Still overall, within the constraints the society will allow (and we hope the pedophiles will never gain political clout) regulation makes more sense.

    My $.02, the real solution will have to wait for His return 🙂

    Like

    • Thanks David – all interesting points. Sounds like we’re in broad agreement! I can see your brother-in-law’s point of view – though logically I’d have thought that if the illegal marijuana trade is responsible for lots of murders, it might actually be beneficial to decriminalise…?

      But as you say, there’s no perfect solution this side of Kingdom Come…

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  2. Eric says:

    “apart from those states where you can’t buy alcohol”
    I’m not aware of any such states. There are “dry” counties, but no entire states (any more).

    On a more pertinent note, I worry about whether some of the activities you describe are entirely consensual harm. If we legalized brothels would they end up staffed by underskilled young women with drug addictions, or by people who felt they actually had other options in life?

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    • Thanks for putting me right – I had a feeling my knowledge of US law was a little hazy!

      Regarding your more serious concern, I do take your point – but in my view the scenario you imagine is at least as likely to occur under the present circumstances of illegal brothels and illegal drug use as it is under a situation of regulated legality. However, yes, I concede that it is a potential problem either way, and I was at pains to say that even well-regulated legalisation was not a cure-all for societal ills.

      For me the legalisation/decriminalisation issue is akin to the question of whether certain books or films or music should ever be banned – and again, my view is that they shouldn’t. I don’t believe that banning works is ever anything but counter-productive, even if I consider those works to be immoral or to present abhorrent views.

      On a slightly different but related subject, the BBC have just run an interesting article on how pretty much anything can be addictive: http://www.bbc.co.uk/news/health-15723834.

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  3. Eric says:

    “Regarding your more serious concern, I do take your point – but in my view the scenario you imagine is at least as likely to occur under the present circumstances of illegal brothels and illegal drug use as it is under a situation of regulated legality.”

    Agreed. However, if nothing will change why not make it at least illegal and dangerous for those who do evil?

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    • I should clarify – I don’t think that nothing will change. For reasons I outlined in the main article, I believe that legalisation with regulation will lead – in most cases – to better outcomes, not to no change or things getting worse. It certainly isn’t a cure-all, but I do still think it’s a considerable improvement.

      I would also take issue with what you define as ‘evil’. We all do evil; we’re all caught up in and participate in evil, and as I tried to highlight in my recent post on the devil, the concept of evil is a particularly hard one to define. Prostitution is, I agree, something we would all be far better off avoiding; drugs is a rather more complex issue and I certainly wouldn’t wish to call all drug use evil.

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  4. dsholland says:

    Questions of legality in these situations seem to me to be about enforcement. In the particular case of prostitution I often think about Judah and Tamar. “Bring her out and let her be burned”… uhh, ok … umm, never mind.
    HA!

    But we digress.

    Like

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