HARD Summer: autonomy within a prohibitive legal system

I want to elaborate on an earlier post of mine, that received some backlash on Reddit. I said “it is [not] an altogether correct judgment to blame drug consumers for their deaths.” I stated that I don’t believe drug users are entirely to blame for the occasionally-lethal consequences of their willful intoxication; a point I didn’t elaborate on sufficiently, and something that, at first glance, seems wholly incorrect or contrary to many principles espoused on this site. Not so. Illegal drugs (and to an extent, legalized drugs, and to a small extent, anything illegal) face a special status in the realm of human action.

Imagine if I, an undergrad who studies law and philosophy, took on a business venture. I haven’t studied finance or business. Not only have I avoided all theory, but I have no real-world knowledge about the stock market or fluctuating national trends. If I go out on a limb, and buy shares in a company doomed to fail, at that precise moment I exercise my will, make a poor judgment and the inevitable consequences fall on my own shoulders. The responsibility is on me, the same as it would if I were highly educated on the subject and took a promising gamble. Why? Clearly, because I could have easily educated myself – the information, and the means to obtain it, is out there.

Drugs, such as methamphetamine, are different. Legal authorities have specifically prevented me from obtaining information, which would have been collected and condensed naturally, that is requisite for forming a knowledgeable, and thereby autonomous, judgment. In the same way that a child cannot be blamed for removing a firearm from its safe and mistakenly pulling the trigger, I cannot be entirely blamed for making decisions the consequences for which I had an incomplete understanding. It’s part of the reason the crime of homicide is nowhere in law so general: it is divided into murder, manslaughter, voluntary and involuntary, and so on, based on degrees of competence. Now, in the case of a hard drug, I did go of my own accord into the black market to purchase the substance. To some degree, no matter what, I was aware of the risks attached to it. Regardless, the government has, through its force, removed sources of information which would be central to my evaluative performance: scientists cannot perform tests because of enforced ethical standards or threatened jail time for proximity to a drug; there is a lack in direct testimony from acquaintances because the ability to acquire the drug has been drastically altered (in some circumstances, removed; in others, just made more seedy); in addition, police officers often do not know how to handle someone on certain drugs (even when they are required to), they know only how to make the arrest: occasionally life-threatening situations are stalled medical care. State paternalism actually has an infantilizing effect, which shifts some of the responsibility from my hands into those of my helicopter caregiver.

This disruption of responsibility does not imply the government now has the right to make my decisions for me: making decisions for me is what led to the disruption, not any innate immaturity on my part or the part of any user. Disruption cannot justify itself. Instead of knowing why methamphetamine is dangerous for so and so reasons, what I really know and understand, is that the market I can purchase it in is dangerous. Genuine knowledge, wisdom about a substance and its chemical make-up, is less commonplace than wisdom about the dangers of obtaining it: knowledge for which its existence is utterly contingent on an extensive state apparatus.

So, authorities that pass laws criminalizing drug use directly make the market more dangerous (by creating cartels, etc.), and indirectly prevent consumers from discovering information appropriate to making an informed (and thereby blameworthy) decision. The weight of many acute drug overdoses rests on the heads of lawmakers, and in every future drug experimentation the government plays an inhibitory role in the autonomy of the experimenter.

Politically-minded people who don’t want the government (or other people) making decisions for them – whether that’s conservatives hoping to direct their income how they see fit, or liberals fighting for marriage equality – usually employ the argument that people can be responsible for themselves. What I think is obvious, is that when government attempts to prohibit any substance, they impact the ability to even potentially be responsible when making decisions about the substance, by coercively limiting the information that would naturally develop.

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4 thoughts on “HARD Summer: autonomy within a prohibitive legal system

  1. Hogwash.

    Let’s start with your analogy. “Imagine if I, an undergrad who studies law and philosophy, took on a business venture. I haven’t studied finance or business. Not only have I avoided all theory, but I have no real-world knowledge about the stock market or fluctuating national trends. If I go out on a limb and buy shares in a company doomed to fail, at that precise moment I exercise my will, make a poor judgment and the inevitable consequences fall on my own shoulders. The responsibility is on me, the same as it would if I were highly educated on the subject and took a promising gamble. Why? Clearly, because I could have easily educated myself – the information, and the means to obtain it, is out there.”

    Your argument’s conclusion of moral culpability depends on two premises. First, information is present and freely accessible. Second, that information has been found by the agent and sufficiently internalized to be useful to him.

    This may be right on its face. After all, we have found it useful in our own system to hold parents liable for certain actions of their children, who are as of yet undeveloped and remain deficient in critical moral reasoning skills, and when children have committed more serious crimes, we try them as minors and penalize them less severely than adults, who, we can assume, have sufficient agency to be both cognizant of moral norms and able to act with sufficient agency on moral imperatives. This is also the force of your second analogy of the child and the unsecured firearm.

    However, it should be obvious that these analogies, and the law, apply not to deficiencies of information but to deficiencies of ability. Children are assumed to be deficient. Presumably, an adult would know enough to obey the law or mishandle a potentially loaded firearm, just as an adult will know – either through the sorrow of a past bad financial deal, the sound advice of his mentors, or the relentless media coverage of market scandals – the potential risks of the stock market. You’re assuming more than access to information, you are assuming the competency to analyze it and the ability to execute on its lessons exist as well.

    Obviously, lacking proper information is one factor that limits your competency to analyze the impact of your choices. Lack of development, as I noted, is another, as is mental impairment due to disease or intoxication. I think this eminently reasonable when discussing things like, say, a bad stock trade. However, is it supportable to extend that common-sense idea about economic or practical competence to the realm of moral competence, and say that, if I lack knowledge of X, I am not culpable for my subsequent actions? Or my culpability is reduced? You are too ready to make this jump.

    “What I think is obvious, is that when government attempts to prohibit any substance, they impact the ability to even potentially be responsible when making decisions about the substance, by coercively limiting the information that would naturally develop.”

    It has always been canon that ignorance, in matters of morality, is no excuse for transgressing morality. This is precisely why we punish people, competent or not, knowledgeable or not, for their crimes. Yet, we also often temper the severity of their punishment because we understand justice requires more nuance than the law might make clear. Ignorantia juris non excusat is not merely a dogma, but a practical response to the challenge of administering justice evenly, with many people, over a territory. If we say that ignorance of our moral law is a free pass to transgress the moral law, how do avoid the inevitable problems that will accrue? How do we maintain cultural norms if anyone can claim ignorance of them to avoid censure?

    Further, if we take it to be true, how far does the fog of knowledge extend? How much knowledge is necessary to trigger moral culpability or its converse, moral inculpability? If we remove moral culpability when an agent, such as government, artificially restricts information so it is less than it would have been, why should we not say that this is true generally? After all, the operative concern is not the distortion of information, but the lack of appropriate information itself. As knowledge seems to increase at all times and in all areas, especially when it comes to empirical scientific knowledge, how can we ever give moral agency to anyone, if it can be reliably said that they lack all the appropriate information, and likely always will?

    I’ve been more interested in examining what I see to be the danger of your argument, but I must also point out the obvious. Your claim about limited information is empirically false. Information on the risks and benefits of drugs is freely available to anyone who would look for them, a fact unchanged despite any government-mediated distortion in the free flow of information. Do you want to see what methamphetamine does to a person? Then look up the images in Google or, if you are one of those sad souls without access to the Internet’s conveniences, walk among your fellow blighted poor in the backwaters of West Virginia or the ghettoes of Baltimore. Do you want to find statistics of drug overdoses? The government helpfully provides this information. Do you want to see the impact of the most damaging drugs ever made by man? Go to a bar at last call and watch the cirrhosis form under the clouds of tobacco smoke.

    There is no shortage of information about drugs. People choose to do them anyway because the rewards of the moment outweigh the perceived risks. When they’ve spiraled so far into addiction, they do them out of sheer animal compulsion – agency no longer plays a role. Ask any young smoker why they continue to smoke, despite decades of government-sponsored campaigns trying to make them quit. They will always tell you they enjoy it, can always quit, lung cancer is an old man’s disease, it’s way down the road. Ask any young binge drinker why they continue to black out every week. Why they continue to hop into the driver’s seat after a night on the town. Why they are making decisions so blindingly stupid to anyone with their head screwed on straight. Human freedom is, as the prophets have always known, a sword with two edges.

    Finally, I read the post that precipitated this one. Have you fallen so far down the rabbit hole that you can accuse grieving parents of “moral repugnancy” for trying to hold someone responsible for the deaths of their children?

  2. Of course we are not morally culpable if we lack knowledge. Pulling the trigger on a gun that is loaded and pointed at someone innocent is only morally reprehensible because we understand that doing that action will cause a bullet to be propelled out. Even if an economic policy advisor suggested, after spending much time researching the best sort of government involvement in the economy, an intervention into the market that ends up destroying many livelihoods – he is only subject to moral blame if he thought the policy might lead to that sort of outcome. (And no, legal deliberations in general are supremely effected by questions of the perpetrator’s competenc; many people do not go punished but rather rehabilitated. It’s not just “if you do this, you get this sentence.”).

    Further, law has nothing whatsoever to do with morality. It has not “always been canon that ignorance, in matters of morality, is no excuse for transgressing morality”; it has only been canon that ignorance of the law is no excuse for transgressing the law. Even that, though, is not entirely accurate. As established in several Supreme Court cases there must be, in most instances, a probability of a high enough value that the perpetrator was aware of the law before transgressing it (a few exceptions are strict liability cases). Hence, knowledge, again (though legal not moral). Knowledge is what determines culpability.

    Further, nothing in my argument was about anyone “claiming” ignorance, especially ignorance of the law, which I never spoke about. Ignorance of the law is not my concern. It’s the lack of information that would exist if drugs were demystified. I’m not talking about whether or not someone should be arrested for doing drugs or for being ignorant of laws prohibiting them, and I think you ended up there by conflating law and morality.

    Yes, knowledge expands constantly. There’s a reason why looking back on historical events we have to place ourselves in the mindsets of the time. People become more morally culpable as knowledge grows. Consider slaveowners in Mauritania, today. Many of them do not have access to knowledge of the democratic republics and equal rights present in other governments and cultures. Holding slaves is still morally wrong, but we can understand their motivations slightly better, and we’d place less moral blame on them than someone in the United States today trafficking slaves. This is obvious, and “canon,” I don’t know why you take issue with it.

    I actually had a section on Google image searching but I deleted it. Go ahead and actually search, as you wish. You will find actual images of use and destruction, but you will find many more stock photos of stereotypical addiction scenarios, depressive loners, etc. that are fake. There’s a cultural distance to drugs, and part of that mystique is from criminalization.

    I’ve studied the effects of methamphetamine for about a year now. When researchers pick up large swaths of information about the drug, it is all from self-reporting in surveys. Types of studies that would be more useful are illegal. In addition, when a young person wants to buy a drug, they have to do so from a street dealer (who knows little to no quantitative data about it), instead of a licensed dealer or what not that would exist if it were legal (who would possess much quantitative data). Also, much of the information available is artifically created: those drug overdoses – information provided by the government – are artificially heightened because of criminalization; thus the knowledge is not about the drug itself, but how it is in a legal system that criminalizes it. And yes, there is a lot of information that gets past legal enforcement, but still the total amount that could be available is impacted. Also, this contributes to officers being less trained to handle emergency medical situations. It is an information problems for users and medical professionals.

    It is morally repugnant to try and legally steal money from people who were in no way responsible for your child’s death, yes, that is true. Seeking to profit from a loved one’s death is in itself immoral.

    • “Even if an economic policy advisor suggested, after spending much time researching the best sort of government involvement in the economy, an intervention into the market that ends up destroying many livelihoods – he is only subject to moral blame if he thought the policy might lead to that sort of outcome.”

      This is absurd. It is considered morally outrageous by common folk that the government provided capital to the banks during the Great Recession while leaving the common man to rot. The intention of stabilizing the economy, even if it might lead to collateral damage to smaller actors, may be a mitigating factor – it is not an absolving one, foresight or no. In a more extreme case, Mao’s plan to industrialize China during the Cultural Revolution called for the peasants to create iron, and they created useless pig iron in large quantities while neglecting their farms, leading to famine. It can be assumed that famine was not the desired or foreseen outcome, but it happened anyway. Should we excuse Mao for his lack of foresight?

      (And no, legal deliberations in general are supremely effected by questions of the perpetrator’s competenc; many people do not go punished but rather rehabilitated. It’s not just “if you do this, you get this sentence.”).

      I agreed with you on this point.

      “Further, law has nothing whatsoever to do with morality.”

      What is law but the codification of our mores? Our way of seeing the world and its function? What other basis could it possibly have?

      “Further, nothing in my argument was about anyone ‘claiming’ ignorance, especially ignorance of the law, which I never spoke about. Ignorance of the law is not my concern. It’s the lack of information that would exist if drugs were demystified.”

      Laws and mores function in the same way because at their root they are the same impulses stratified into different levels of society. Laws are mores codified and enforced by the state over its dominion, mores are the root of laws and enforced by the individual, or by informal groups, in human-to-human interactions.

      Like laws, it is reasonably assumed that people have knowledge of the moral values of the culture as they mature into it. As we have both said, we cannot expect children to have moral competence. As I have said, expecting the same of an adult is a fool’s errand.

      Moral culpability thus depends on reasonable expectation of knowledge of the more, not knowledge of the basis of the more and whether that basis is sound. This is what you are claiming, and what I take issue with. I don’t have to fuck my sister to know that incest is morally wrong.

      “Yes, knowledge expands constantly. There’s a reason why looking back on historical events we have to place ourselves in the mindsets of the time. People become more morally culpable as knowledge grows.”

      This is something I do not take issue with, as I have written. Judging our forebears too harshly is one of the great mistakes in our culture today.

      My question, though, wasn’t about the past or about other, less developed cultures. In our own time and in our own culture, how much knowledge is necessary to trigger moral culpability? In my view, a reasonable expectation of moral knowledge is sufficient. Your epistemic bar seems much higher.

      “…There’s a cultural distance to drugs, and part of that mystique is from criminalization.”

      I agree with the remainder of your comment with regards to the lack of complete knowledge. I never wrote it would not be beneficial to have all of the information possible, but that removing moral culpability in an environment where information is available, even if distorted, is dangerous.

  3. “It is considered morally outrageous by common folk that the government provided capital to the banks during the Great Recession while leaving the common man to rot. The intention of stabilizing the economy, even if it might lead to collateral damage to smaller actors, may be a mitigating factor – it is not an absolving one, foresight or no.”

    Could the government plausibly predict the common man would rot? Then of course, they were morally culpable. Their intention alone is insufficient, yes: they had to believe their intention would turn out as they wanted, and if that intention was moral, they should not be blamed. No one should be blamed for what they could not plausibly predict.

    “Mao’s plan to industrialize China during the Cultural Revolution called for the peasants to create iron, and they created useless pig iron in large quantities while neglecting their farms, leading to famine. It can be assumed that famine was not the desired or foreseen outcome, but it happened anyway. Should we excuse Mao for his lack of foresight?”

    Let me formalize the conditions I’ve been using for moral culpability. (1) There must be accessible information that, if possessed, could lead someone to predict how their actions will turn out. (2) The person has to know that information is out there. (3) The person has to know how much information they possess at the relevant moment, plus the fact that that is all the information they possess. (4) They have to be capable of using that information to make a prediction.

    “Lack of foresight” is not what I was considering. If Mao genuinely thought his policies would lead to prosperity, and did not think it plausible that famine would result, I don’t think he was morally culpable for the famine that did result. (However, we’d have to see in-depth. It’s likely that Mao made himself culpable because he had plausible reasons to assume something disastrous would happen, or he knew that he didn’t have the massive well of information needed to plausibly predict his actions.)

    Imagine if you borrowed your friend’s car, who happened to be a secret agent unbeknownst to you. You take your girlfriend for a drive in the countryside, when you run into engine trouble. You pull over to the side of the road, and press a red button above the gearshifter that looks, to you, like the hazard lights button. However, because this car belongs to a spy, it’s a seat ejector – your girlfriend flies several hundred feet into the air and, without a parachute, falls to her death. How are you morally culpable? You had every reason to think that button would just activate hazard lights – it’s not even that the button was mysterious. You had no reason to plausibly assume it might do anything but what you intended. You’re not culpable for her death, because you had all the information you thought you needed to make an assessment, plus you thought there was no reason to doubt that you had all the information relevant.

    Given a set of facts, we have to make decisions off of them. Mao might be morally culpable for the famine if, based on the information he had (plus knowledge of the fact that he did not have all the information), it seemed at all plausible that a famine would result. But if all the evidence pointed the other way, he’s acquitted.

    “What is law but the codification of our mores? Our way of seeing the world and its function? What other basis could it possibly have?”

    Law is just what the lawmakers created and the people ratified or voted for. Nothing more or less. It is not about morality, nor do I think most people think it is really about morality. There’s not much moral weight to arguably most of the laws, and there are many laws. It’s about protecting a very particular type of society. There’s a reason cheating on a partner (immoral) is legal, and prostitution (moral) is illegal.

    I’m sure a look at how various legal systems developed across cultures would reveal something here. Law will develop in accordance with how people want to live, but nothing about that is necessarily moral. Though I do think law has grown closer toward morality over time.

    Competency is completely tied to knowledge though. The way competency is determined through the legal system has absolutely everything to do with knowledge: the reason children face less severe convictions is because they can’t incorporate knowledge in a useful way into decision-making. They’re not just “incompetent,” in and of themselves, they’re incompetent at recognizing the consequences of their actions or utilizing information.

    If I eat a lobster that my jealous ex-girlfriend has poisoned, am I responsible for my death? No – (1&2) I didn’t know there was relevant information out there about that lobster which would be relevant to avoiding death, (3) I didn’t know that I personally was missing that information about the lobster.

    (Also, is incest morally wrong? It’s unseemly, for sure. That it can produce severe mutations in offspring is a consequence that must be avoided, so causing that is immoral. But is the act itself somehow morally bankrupt?)

    I would say that moral culpability is present when a man holds down the trigger on a firearm while pointing it at an innocent person. He has the information he needs to be fully cognizant of the consequences, and no plausible reason to assume anything but murder will result. My epistemic bar is very high, but that is a clear example of culpabiity.

    “removing moral culpability in an environment where information is available, even if distorted, is dangerous.”

    I don’t want to remove culpability completely. I just think limiting information leads to artificial information being created, makes the drugs more dangerous (the iron law of prohibition), increases mysticism, etc. which are all factors that limit an experimenter’s knowledge. I don’t think I said these people are completely blameless, they are responsible to the extent they could predict the consequences. And you’re right, they can know fairly well the results of consumption. But information that would be there is not, and prohibition is responsible for deaths caused by missing those particular pieces of information.

Please keep it civil

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