Pubdate: Wed, 03 Aug 2016
Source: Arizona Republic (Phoenix, AZ)
Copyright: 2016 The Arizona Republic
Author: Robert Robb


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 (16321704) 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.

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.

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.

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.
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MAP posted-by: Jay Bergstrom