THE FAILURE OF THE "FAILURE ARGUMENT" IN ETHAN NADELMANN"S THE CASE FOR LEGALIZATION OF DRUGS

Abstract

This article examines Ethan Nadelmann's critique of drug prohibition in his paper; The Case for Legalization. Nadelmann argues that one of the fundamental reasons why it is important to think about drug legalization is because current drug control policies have failed, are failing, and will continue to fail in good part because they are fundamentally flawed. Contrary to NadelmannS view, the paper argues that NadelmannS argument is not only an exaggerated view but also fallacious. The paper further argues; (i) assuming that drug policies actually failed, the failure of the drug policies in the past and present does not necessarily guarantee the future failure, (ii) that the failure of the drug policies does not necessarily justify legalisation of drugs, (iii) that if the policies has succeeded in deterring potential criminals in the past and present, it will be wrong to conclude that it has failed. Finally, the paper concludes by showing through logical analysis, how and why NadelmannS failure argument is an exaggerated view.

Headnote

Abstract: This article examines Ethan Nadelmann's critique of drug prohibition in his paper; The Case for Legalization. Nadelmann argues that one of the fundamental reasons why it is important to think about drug legalization is because current drug control policies have failed, are failing, and will continue to fail in good part because they are fundamentally flawed. Contrary to NadelmannS view, the paper argues that NadelmannS argument is not only an exaggerated view but also fallacious. The paper further argues; (i) assuming that drug policies actually failed, the failure of the drug policies in the past and present does not necessarily guarantee the future failure, (ii) that the failure of the drug policies does not necessarily justify legalisation of drugs, (iii) that if the policies has succeeded in deterring potential criminals in the past and present, it will be wrong to conclude that it has failed. Finally, the paper concludes by showing through logical analysis, how and why NadelmannS failure argument is an exaggerated view.

Keywords: Drugs, Legalization, Prohibition, Failure Argument, Drugcontrol Policies

Introduction

This paper examines Nadelmann's critique of drug prohibition and his defense of the case for legalization. In his highly controversial paper The Case for Legalization, Nadelmann emphasizes the reasons why drugs should be legalized. In The Case for Legalization, Nadelmann presented three main arguments in defence of the case for legalization of drugs. The first is what I called the 'Failure Argument'1; the second, 'Economic Argument'2; the third is 'Negative Consequence Argument'3. The focus of this paper is on the first argument. That does not mean that the other two arguments may not be helpful in reinforcing our point. To begin with, what does legalization mean? When the advocates of drug legalization argue that drugs should be legalized, what exactly do they mean? Etymologically, legalization is directly coined from the Latin word "Legalis" which means "to make legal". For the purpose of clarification, there are varieties of ways by which the proponents of legalization use the term. First, the term "legalization" is used to describe the idea that addicts with established drug habits should have legal access to psychoactive drugs through clinics.4 Secondly, complete legalization means making any psychoactive substance available to any willing buyer.5 Thirdly, it could also mean the idea of keeping distribution illegal, but end the arrests of consumers.6 In this paper, our concern is on the second usage of the term. This specifically, is the sense in which Nadelmann used the term in The Case for Legalization. The first sense of the term legalization restricts the meaning to drug addicts alone. The third sense also restrict the meaning of legalization to the drugs consumers only. Meanwhile, the second is a complete legalization.

At this stage of the paper, it is highly essential for us to announce our intention in this paper. The caution is that, the fact that this paper argues that Nadelmann's arguments neither undermine drug prohibition nor justify legalization, does not necessarily imply that we are defending prohibition as a more plausible position. Our intention ultimately is to assess Nadelmann's 'failure argument' (i.e the argument that current drug control policies have failed, are failing, and will continue to fail in good part because they are fundamentally flawed).

The paper is divided into three main sections. Section one focuses on the questions that surround the issue of drugs. The task of second section is to engage Nadelmann's Arguments in defense of the Case for Legalization due to the Failure of the past drug-control policies (it shall be written as "DCP" from here on). Meanwhile, the third section attempts a critical assessment of Nadelmann's critique of drug prohibition due to the failure of past policies.

What is the Issue from the Literatures?

Let us begin by considering the statements below to see what scholars are saying about the issue of drugs;

Statement 1. "We're not really going to get anywhere until we take the criminality out of drugs"7

Statement 2. "Drugs are not dangerous because they are illegal; drugs are illegal because drugs are dangerous".8

Statement 1 above represents the view of the proponents of drug legalization, while statement 2 represents the view of the proponents of drugs prohibition. In the contemporary time, the issue of drugs is one of the seriously debated issues in the world today. This is an issue that generates heated discussions not only among philosophers, but also from legal, medical and social points of views. Even governments of various countries are currently battling with the question of right approach for addressing the issue of drugs because "it is an issue that rooted in realworld concerns over crime, violence, and public health, is also about values"9. The three vital helpful questions for consideration as a point of departure in this paper are;

Q1. Is the issue of drugs a moral issue?

Q2. Should government be involved?

Q3. What should be the stand of the government on the issue of drugs?

In ethics, it is generally believed that an action becomes a moral issue if such action have the potential to help or harm others or ourselves. Consequently, several human actions or inactions that devoid of the potential of helping or harming others or oneself are not within the purview of ethics and thus, are not of ethical concern. Now, in response to Q1, there is no disagreement between pro and anti- drugs prohibition concerning Q1 because both parties admit that drugs have the potential of harming the user or people around the user. In fact, the defenders of drugs legalization referred to drugs as harmless crime. That is, a crime that only affects the user alone without affecting other people. Similarly, for Q2, there is no disagreement between the two parties. Both the pro-drugs prohibition and anti-drugs prohibition accepted that government should be involve in the issue of drugs. However, where the disagreement or controversy lies is with the Q3. This is a question about what the stand or position of the government ought to be. In addressing the Q3, the prodrugs prohibition scholars argue that giving the effects of drugs on the societies, government ought to play the paternalistic role by prohibition the use of hard drugs through the enforcement of DCP. Meanwhile, for the anti-prohibition scholars the stand of the government ought to be to put legalization policies in place and not prohibition policies. The argument of the pro-legalization is that government should legalize the use of drugs for two major reasons. One, drugs is a harmless crime.10 And two, due to other challenges associated with prohibition policies, drug should be legalized. But can there ever be anything like "harmless crime" in the real sense of the word? Can whatever is called a crime be harmless? This is another topic entirely to be discussed in another paper.

Scholars such as Ethan Nadelmann (2007, 2013), Douglas Husak (1992), Thomas Szasz (1996), Miron Jeffrey (2012), Waldock Catherine (2012), Duke Steven (2001) to mention but a few are the main proponents who defended legalization of drugs for various reasons ranging from ineffective drugs-control policies, economic implications and so on. Meanwhile, the opponents such as James Wilson, William Bennett (1993), James A. Inciardi (1989) and Duane C. McBride (1989) supported prohibition. Now, what should be the way out of this impasse? Should we legalize drugs or prohibit it? From Steven Duke's paper; End the Drug War, in 2001, one could deduce what could be regarded as the primary agenda of the supporters of drug legalizations. For Duke,

What principle ought to drive drug policy and what change should we make in current policy consistent with that principle? We should strive to achieve the greatest good for the greatest number. ...we should end drug prohibition in this country and then regulate drugs rationally, the way we deal with legal drugs, food, health care and automobile.11

It is obvious that Duke argues from the utilitarian point of view in order to canvass for legalization. His argument is that majority of the American citizens support drug legalization thus, drug should be legalized. It is however clear that Duke's argument is far from being sound because it is not rational in the first place to justify drug legalization base on majority's acceptance. Moreover, in the United States, Miron and Waldock argue that; with our current laws and policies having caused over 1.8 million nonviolent drug arrests in the 2007 as well as 16.5 billion dollars in Federal spending, it is a topic that every U.S citizen should be concerned with12. The argument is that drug prohibition should be discouraged due to the economic effect on the country's budget. In fact, Supporters of legalization contend that easing the nation's drug laws would have numerous benefits. Perhaps most importantly, they say, it would destroy the black market for drugs and the criminality that surrounds it.13

Now, the central question for the two parties that are involved in the controversy over drug control policies is that 'do we really need drugcontrol policies?' While the advocates of drug prohibition supply an affirmative answer, the proponents of legalization argue otherwise. Since Nadelmann is our focus in this paper, let us now focus on his arguments in defense of legalization for us not to stray from our primary concern. What are his arguments? The next section of the paper is set to do justice to that.

Nadelmann's Arguments in Defense of the Case for Legalization due to the Failure of the Past Policies

Nadelmann's arguments in defense of legalization of drugs are in two parts. The first is the argument about the reason why current drug policies failed. Meanwhile, the second argument is argument about the failure of international drug control.

Part 1. Argument about the Reason Why Current Drug Policies Failed

For Nadelmann, most proposals for dealing with the drugs today reflect a desire to point the finger at those most removed from one's home and area of expertise.14 The argument is that several attempts to curb drugs in the United States of America ended up in impasse. In fact, Nadelmann contends that;

Many of the drugs-prohibition officers privately acknowledge the futility of all current drug-control strategies and wonder whether radically different options, such as legalization, might not prove more successful in dealing with drug problem.15

The point Nadelmann is making is that even some of the drugsprohibition officers are giving a second thought to legalization as the only available option and solution to drugs problems. engaging to above quotation, one may have to be skeptical about Nadelmann's view above because if it is true that the drugs-prohibition officers are privately or publicly supporting legalization, then I wonder whether they will not be thinking about the risk of losing their job. The reason is that if drugs are legalized then, there will be nothing to prohibit. Consequently, if there is nothing to prohibit, the services of drugs-prohibition officers will no longer be needed. Thus, they will be out of job.

Nadelmann further argue that "All these drugs prohibition trends suggest that drug-enforcement efforts are not succeeding and may even be backfiring. If this is the case, legalization might well succeed in reversing today's trend toward more potent drugs and more dangerous methods of consumption." 16 What Naldemann is saying in the above quotation is that all effort towards drug prohibition may even be causing more evil than the problem it's meant to address. In fact, this view finds support in the work of David Borden who is also another advocate of legalization. According to' Borden, "Prohibition causes a wide range of harms, including criminal and violent or subversive activity, public health harms, impediments to medical care, and curtailing of civil liberties, among others".17 However, should we now accept legalization because of the above problems? It is obvious that answering this question in the positive affirmative is the desire of the proponents of legalization. Meanwhile, the advocates of drugs-prohibition supply different answers. Let us consider another argument from Nadelmann in order not to deviate from the main issue.

Part 2. Argument about the Failure of International Drug Control

According to Nadelmann, many drugs-enforcement officials and urban leaders recognized the futility of domestic drug-enforcement efforts and place their hopes in international control efforts. Yet, these too are doomed to fail for numerous reasons.18 The reasons for the failure according to Nadelmann are;

First; Marijuana and opium can be grown almost everywhere.19

Second, wherever drug-eradication efforts succeed, other regions and countries quick to fill the void.20

Third; the temptation by drug-traffickers to bribe the officials often prove overwhelming.21

Fourth, international source-control efforts face a variety of other obstacle. Such as inability to crack down on drug production due to limited resources by governments of various countries.22

Consequently, resting on the above reasons, Nadelmann submitted that drugs should be legalized.

However, are the above reasons sufficient to justify the conclusion that drugs should be legalized? One may be tempted to think like an advocate of prohibition by supplying negative answer to the above question. For the first reason that drugs are grown almost everywhere, effective community policing and sensitization can help in curbing the problem. Similarly, for the second reason that wherever drug-eradication efforts succeed, other regions and countries quick to fill the void, it may be suggested as a way out that if governments of various countries are so strict with their immigration policies, the idea of transporting drugs from one region to another may be minimized. For the third reason that the temptation by drug-traffickers to bribe the officials often prove overwhelming, all we need is more credible people to serve as the officials of drug-control policies. Also, for the fourth reason that international source-control efforts face a variety of other obstacle such as inability to crack down on drug production due to limited resources by governments of various countries. The fact that government of various countries have limited resources does not mean that drugs should be legalized because the evil of legalizing drugs may outweigh the problem of limited resources that most countries are facing. Furthermore, Mark Kleiman and Aaron Saiger suggested a way out of the challenges that confront drug policies. According to them,

The challenge of drug policy is to find least-cost solutions to the problems created by the age-old fact that some human beings take more of various mind-altering substances than is good for them or their neighbors, and by the modern fact that the variety of available psychoactive is rapidly increasing. To concentrate on changing labels from "legal" to "illegal".23

The above quotation Kleiman and Saiger supported drugs prohibition policies with the view that government should criminalize and declare the abusive use of hard drugs illegal.

Essentially, there is one harsh and self-stultifying argument made by Nadelmann that requires consideration. According to him,

...the past twenty years' experience had demonstrated that even dramatic increases in interdiction and source-control efforts have little or no effect on the price and purity of drugs. The few small successes, such as the destruction of Turkish-opium "French connection" in the early 1970s and the crackdown on Mexican marijuana and heroin in the late 1970s, were exceptions to the rule. The elusive goal of international drug control since then has been to replicate those unusual successes. It is a strategy that is destined to fail, however, as long as millions of Americans continue to demand the illicit substances that foreigners are willing and able to supply.24

From the above loaded quotation, there are so many important questions and clarifications that Nadelmann needs to make. This is because, the burden of proof lies with the claimer. What did Naldemann mean by these 'unusual successes'? What is the meaning of 'the few small successes'? Is the drug-control strategy really destined to fail? For me, if the law of logic is anything to go by then, there is a manifest contradiction on the part of Nadelmann who admitted that DCP recorded what he called "unusual successes" and "the few small successes", and subsequently concluded that DCP is a failure or destined to fail. In fact, Nadelmann provides no sufficient justification to defend such a strong conclusion. Now, how plausible are Nadelmann's arguments in defense of drugs legalization? Let us turn to the next section for answer to this question.

A Critical Assessment of Nadelmann's Critique of Drug Prohibition due to the Failure of past policies

According to Nadelmann, current drug-control policies have failed, are failing, and will continue to fail, in good part because they are fundamentally flawed.25 Nadelmann's argument can be reconstructed in this syllogistic form for a better understanding in order to show the inherent mistakes in his conclusion:

Premise 1. Drug-control policies have failed

Premise 2. Drug-control policies are failing

Premise 3. So, Drug-control policies will continue to fail

Therefore, Drug should be legalized

The above syllogism summarizes Nadelmann's argument with which he made a case for legalization of drugs. What follows is that we now have the tools to critically assess Nadelmann's argument since this is what we are interested in doing in this section. In this case, we can challenge the premises of the argument. In premise (1), Nadelmann's argument that drug-control policies have failed may not be correct. Why? The reason is that, the fact that the policy is still there has what it takes to deter potential criminals. In fact, it may be argued that the purpose of the DCP is to deter potential criminal and not the addicts. Thus, if the DCP could perform the function of deterred people, even if it is just one person, then it will be wrong to say that it has failed. So premise (1) is false. To take care of premise (2), the argument provided for premise one can be repeated. Thus, premise (2) is also false. Now, premise (3) is even the most problematic one. Even if premise (1) and (2) are true, it is not certain that premise (3) will be true. Why? The reason is to avoid the problem of induction due to what our experience has thought us. Even let us accept for the purpose of argument that DCP has failed in the past and its failing in the present, how does that guarantee future failure? It will be fallacious to reason that way. And more so, premise (1) is false, premise (2) is false, and premise (3) is also false. From all indications, the above argument is not valid and it cannot be a sound argument at the same time. Following the analysis in the above case, the premises (1) - (3) failed to provide a convincing reason to believe its conclusion. Perhaps, justification for drug legalization rests on another argument other than the "failure argument".

Furthermore, for anyone to accept Nadelmann's claim that drugs should be legalize because DCP has failed, failing and continue to fail, such a fellow will be liken to "one who should refuse ever to leave his house for fear that he might take the wrong way because he had took the wrong way in the past."26

Conclusion

This article examined Ethan Nadelmann's critique of drug prohibition in his paper; The Case for Legalization. It has argued that Nadelmann's critique is unsuccessful for at least three reasons. First, the failure of the drug policies in the past and present does not necessarily imply the future failure. Second, the failure of the drug policies does not necessarily justify legalisation of drugs. Third, that if the policies have succeeded in deterring potential criminals in the past and present, it will be wrong to conclude that it has failed. It should be noted that the author is a professor of Politics and Public Affairs. No wonder he retired to such a partial view even though, his discourse involves large philosophical issues. "If we wanted home truths, we should have stayed at home"27 Finally, the paper concludes by showing how and why Nadelmann's failure argument may not survive logical analysis. Consequently, his arguments fail to undermine the pro-drugs prohibitionists' view. However, the failure of the 'failure argument' itself does not necessarily imply that prohibitionists' argument is more plausible. The point is that the supporters of drugs legalization will need more sophisticated argument to establish the notion that drugs should be legalized.

Footnote

1 Nadelmann Ethan, "The Case for Legalization", in Today's Moral Issues. (London: Mayfield Publishing Company, 1996) p. 52

2) Ibidem, p. 54.

3) Ibidem, p. 58.

4 See, Trebach, A., The Heroin Solution (New Haven, Yale University Press, 1982). p. 19., Mark A.R. Kleiman Aaron J. Saiger "Drug Legalization: The Importance of Asking the Right Question" in Hofstra Law Review,vo\.18, (1990): 530.

5 Mark A. R. Kleiman Aaron J. Saiger "Drug Legalization: The Importance of Asking the Right Question" in Hofstra Law Review, vol.18, (1990): 530.

6 Ibidem: 529.

7 See Huggins Deadlock, On Drugs (Washington: Hoover Press, 2004)p.129, George P. Shultz McNeil-Lehrer News Hour December 18, 1989.

8 See Huggins Deadlock, Getting Specific: On Drugs (Washington: Hoover Press, 2004) p. 129. David Griffin Canadian Police Association spokesman 2001.

9 Scott Barbour "Current Controversies: Drug Legalization" in Huggins Deadlock, (ed.) Getting Specific: On Drugs (Washington: Hoover Press, 2004) p.124. Also see Scott Barbour, Current Controversies-Drug Legalization (San Diego, CA: Green haven Press, Inc.2000).

10 What the proponents of legalization mean by "Harmless crime" is that it is a crime that does not affect anybody but the user alone. This is line with J. S. Mill's Harm Principle. It is on this note that proponent of drug prohibition like James Q. Wilson rejects Mill's harm principle; and advocates a rather different conception of individual liberty and social responsibility. See James Q. Wilson. "Against Legalization of Drugs" In Today's Moral issues.(London: Mayfield Publishing Company, 1996) p. 63.

Also see MILL, J.S., (1947), On Liberty, edited by Alburey Castell, New York: Appleton-Century Crofts, Inc.

11 Steven Duke, "End the Drug War", in Social Research, vol.68, (2001):875.

12 Miron Jeffrey and Waldock Catherine, The Budgetary Impact of Ending Drug Prohibition, (Washington; Scribd.com. 2012.) pp. 3-7. Web. 18 march, 2012.

13 Scott Barbour "Current Controversies: Drug Legalization" in L. E. Huggins (ed.) Drug War Deadlock: The Policy Battle Continues (Washington: Hoover Press, 2005) p. 121

14 Nadelmann Ethan, p. 52.

15 Ibid, p.52

1616 Nadelmann Ethan, P. 53

17 David Borden, "If Hard Drugs Were Legalized, Would More People Use Them?" In Cardozo Pub. Law Policy & Ethics, Vol. 12, no. 576. (2000)1574. Also, see

https://www.aclu.org/drug-law-reform/against-drug-prohibition.

18 Ethan Nadelmann, p. 53

19 Ibid, p. 53

20 Ibid, p. 53

21 Ethan Nadelmann, p. 54

22 Ibid, p. 54

23 Kleiman and Saiger: Drug Legalization: The Importance of Asking the Right Question, p. 565.

24 Ethan Nadelmann, p. 54.

25 Nadelmann Ethan, The Case for Legalization, in Today's Moral issues.(London: Mayfield Publishing Company, 1996), p. 52

26 A.C. Ewing, Second Thought in Moral Philosophy, (London: Routledge and Kegan Paul Ltd, 1959) p. 38.

27 C. Geertz, Available Light: Anthropological Reflections on Philosophical Topics, Princeton, New Jersey, 2000, Princeton University Press, p. 65.

References

References

Barbour, S., (2005), "Current Controversies: Drug Legalization" in L. E. Huggins (ed.) Drug War Deadlock: The Policy Battle Continues (Washington: Hoover Press, 2005)

Barbour, S., (2000), Current Controversies-Drug Legalization (San Diego, CA: Green haven Press, Inc.2000).

Borden, D., (2000), "If Hard Drugs Were Legalized, Would More People Use Them?" In Cardozo Pub. Law Policy & Ethics, Vol. 12, no. 576. (2000):574.

Duke, S., (2001), "End the Drug War", in Social Research, vol.68, (2001):875.

Geertz, C., (2000), Available Light: Anthropological Reflections on Philosophical Topics, (Princeton, New Jersey: Princeton University Press, 2000).

Ewing, A.C., (1959), Second Thought in Moral Philosophy, (London: Routledge and Kegan Paul Ltd, 1959).

Kleiman, M.A and Saiger, A.J., (1990), "Drug Legalization: The Importance of Asking the Right Question" in Hofstra Law Review, vol.18, (1990): 529.

MILL, J.S., (1947), On Liberty, edited by Alburey Castell, (New York: Appleton-Century Crofts, Inc, 1947).

Miron, J., and Waldock, C., (2012), The Budgetary Impact of Ending Drug Prohibition, (Washington; Scribd.com. 2012.) Pp. 3-7. Web. 18 march.

Nadelmann, E., (1996), The Case for Legalization, in Today's Moral Issues. (London: Mayfield Publishing Company, 1996)

Trebach, A., (1982), The Heroin Solution (New Haven, Yale University Press, 1982).

Wilson, J.Q., (1996), "Against Legalization of Drugs" in Today's Moral Issues. (London: Mayfield Publishing Company, 1996).