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“The Legal regulation of drugs is far from satisfactory; it is an unprincipled and incoherent
mess.” Discuss
Most governments use a mix of policies to regulate drugs, with one remaining dominant.1 The
emphasis in the UK is on prohibition, but others are running alongside, some integral, some less
so.2 The various policy options include prohibition, harm reduction, medicalization,
addicts to receive maintenance supplies, and decriminalisation, which seeks to reduce penalties.
This essay discusses alternative approaches that are ethically preferable to the current prohibition
deontological theories, the rightness or wrongness of acts is determined by the nature of the acts,
the duties of those performing them, and the rights of those affected. Conversely,
consequentialist theories hold that their consequences determine the rightness or wrongness of
actions.4
(i) Prohibition
Prohibition is the imposition of legal restrictions on the possession and use of selected items.
Prohibition stems from the 1961 United Nations Single Convention, the 1971 Convention on
Psychotropic Substances, and the 1988 Convention against the Illicit Traffic in Narcotic Drugs,
and is partially legitimate because the United Kingdom is a signatory to these conventions. The
1
Philip Bean, Legalising Drugs: Debates and dilemnas (University of Bristol: The Policy Press 2010).
2
Ibid
3
Ibid
4
Wodak A, “Ethics and drug policy” Psychiastry 6(2) (2007) pg 59-62
conventions require their member states to control the manufacture, possession, and import of
certain drugs, though each country has some leeway in how they do so.
Substances are controlled under The Medicines Act (1968), The Misuse of Drugs Act 1971, The
Drugs Act 2005 and the, Psychoactive Substances Act 2016. Drugs are classified according to
the extent of harm they present under the 1971 Misuse of Drugs Act, with three classes; Class A
providing the most severe penalties, and Class C providing the least severe.
When considering imposing legal controls, prohibitionists and their opponents have used similar
utilitarian arguments; prohibitionists argue that control prevents drug use (creates happiness),
while opponents argue that it makes things worse (creates harms).5 Alternatively, prohibitionists
justify control by citing the likely social consequences of legalization, citing the potential
increase in drug use and the impact on society. In typical Benthamite fashion, opponents of
prohibition claim that it leads to more crime than the laws prevent. Or that the impurities in drugs
The solutions are typically utilitarian as well. Those who advocate for drug prescriptions use the
same utilitarian language, claiming that if more drugs were purchased legally or prescribed by
doctors, harms would be reduced. Proposals to decriminalise drugs appear in a similar manner; it
is claimed that reclassifying cannabis from a Class B to a Class C drug will reduce penalties for
law-abiding citizens and thus promote fewer harms. If it remains a Class B drug, it will erode
Regardless of political hue, prohibition has remained a steadfast government position. The
assertion that the majority of the public is anti-legalization is probably correct, but that is not a
5
Supra note 1
6
Ibid
reason to keep the policy in place, though it could be an important consideration. The
government's further claim that legalization would cause untold havoc and suffering remains
increased drug use, with attendant health and behavioral problems. And it is feared that once
established, they will take years, if not generations, to correct. This could explain why
governments are afraid of legalization and rail against what they see as the recklessness of those
who advocate for it. To them, the point is obvious: what happens after the genie is released?
There is no easy way back, or, as Kleiman and Saiger (1990)7 put it sarcastically, not all
venturing into the unknown, which they claim would be an abandonment of government
obligations. It's debatable whether "fear of the unknown" is an adequate defense, but it's a
popular one. Prohibition is the law's protector of social order, preventing harm to oneself and
others.
The policy framework has also been criticized, for example, how substances are classified in the
United Kingdom is somewhat perplexing and could use some discussion in order to change
policy. For instance, 'ecstasy' drug is a class 'A' substance under the MDA (1971). This means
that if one is caught in possession, they could get a maximum sentence of 7 years in prison plus a
fine, and in the case of supplying the drug, they could get a maximum sentence of life in prison
plus a fine.8 It seems that harsh penalties will be imposed for a drug known as a recreational drug
that is widely used, particularly by young people in the UK dance scene.9 There have been no
7
Kleiman M. and Saiger A.J, “Drug legalization: the importance of asking the right question” Hofstra Law Review (A
symposium on Drug Decriminalisation) vol 18 (no. 3) (1990) pg 527-65
8
GOV.UK, List of most commonly encountered drugs currently controlled under the misuse of drugs legislation
<https://www.gov.uk/government/publications/controlled-drugs-list--2/list-of-most-commonly-encountered-
drugs-currently-controlled-under-the-misuse-of-drugs-legislation> accessed 20 January 2023.
9
Daren W, The war on drugs is seen by many as a failure: Is it not time to re-consider current drug policies and
adopt a more creative way of thinking? (2018) available at
reports of anyone becoming addicted to ecstasy, and there have been very few reported deaths as
a direct result of using the drug.10 Because there are hardly ever any serious psychological or
mental issues associated with regular ecstasy use, many recreational users have and continue to
have jobs, successful careers, and are good parents.11 As a result, U.K. drug policymakers may
benefit from listening to their medically trained advisors and gathering additional evidence from
The war on drugs appears to be motivated by the belief that the use of illegal drugs is immoral.12
However, the term "drug" in the illicit sense refers to a wide range of substances with diverse
properties that share as much in common with legal drugs as they do with each other.13 The only
difference between illegal and legal drugs is their legal status, which has been defined by
centuries of socio-political idiosyncrasies rather than an assessment of how dangerous they are.
The consequences of criminalizing drug users frequently outweigh the risks they face from drug
use, and there is no convincing evidence that this reduces overall drug use or drug-related harm.
unethical. Although criminalizing the production of harmful drugs appears to be more ethically
sound, it has not reduced drug supply and precludes effective market regulation.
notion that there is something morally wrong with using illegal drugs and that doing so warrants
punishment.14 The illicit meaning of 'drug,' which fuels drug policy discourse and the paradigm
of the war on drugs, includes a wide range of substances with different effects, used by different
groups in different circumstances, and which have as much in common with each other as many
legal substances.15 In fact, the only distinguishing feature that distinguishes illegal drugs from
those that are not, such as alcohol, tobacco, or coffee, is that they are illegal. This results in a
circular argument: illegal drugs are immoral because they are illegal, and illegal drugs are illegal
because they are immoral. Because of this circularity, the position is as logically indisputable for
Proponents of the immorality of drug use may argue that its immorality emanates from its risk of
causing harm to a consumer. However, it is not obvious that the possibility of an act causing
harm automatically makes it immoral. Choosing to go skiing or lighting a campfire, for example,
could result in an injury or burn; however, these acts would not be granted moral standing solely
on the basis of their potential for harm. Forcing someone without training to ski down a steep
mountain or setting them on fire before doing so, on the other hand, is clearly unethical.
Suppose the morality of an act is determined by the agency of the subject who is at risk of
suffering harm as a result of that act, then it is not immoral for someone to voluntarily expose
themselves to the risk of harm by using a drug. To the contrary, it can be argued that adults have
a moral right to do whatever they want with their own bodies, including using drugs for
recreational purposes.16 Even if it were accepted that it was immoral for subjects to put
14
Ibid
15
Tupper K, “Psychoactive substances and the English language: “Drugs,” discourses, and public policy” Contemp
Drug Prob 39(3) (2012) pg 461-492
16
Husak D, Drugs and rights (1st Edn, Cambridge University Press 1992).
themselves in danger, and that this should be used to determine the legal status of various drugs,
this is not reflected in current policy because the legal classification of various drugs is not
representative of the levels of danger they pose.17 Should this position be accepted, it will have
far-reaching consequences not only for the legal status of alcohol and tobacco, but also for
A more convincing explanation would be that purchasing illegal drugs is morally wrong since it
provides funding to criminal organizations, thereby facilitating other criminal activities that
cause harm to third parties. However, this argument is circular because the relationship is
dependent on current policy: possessing a drug is illegal because buying it is morally wrong;
buying it is morally wrong because it provides funding for organized criminal gangs because
they control the market for that drug; and they control the market for that drug as it is unlawful to
have it.
The idea that some drugs are immoral, and the subsequent war on drugs that stems from it
are characterised by a power configuration leading to the imposition of a set of ideas that give
some specific interests the appearance of being universal.18 It is not a natural or unavoidable state
of affairs that the consumption of certain substances, such as coffee or alcohol, is widely
accepted, if not encouraged, while the consumption of others, such as amphetamines or cannabis,
appears to justify stigma and punishment. It is only because of the influence of powerful
historical actors who benefited from the spread of this view that it is now so widely accepted.19
Proponents can direct intent focus on the specifics of the subject matter to inspire an emotive
response while at the same time diverting attention away from the incoherence of ideological
17
Nutt D, King L, Phillips L, “Drugs harms in the UK: a multicriteria decision decision analysis” The Lancet 376(9752)
(2010) pg 1558-1565
18
Geuss R, Philosophy and real politics (1st Edn, Oxford: Princeton University Press 2008).
19
Mallea P, The war on drugs: a failed experiment (1 st Edn, Toronto: Dundrum 2014).
viewpoints.20 In the case of illegal drugs, this frequently entails emphasizing the harm that drug
use causes, which can be severe in some cases. However, as previously stated, the potential to
cause harm does not automatically confer moral status on an act, and this viewpoint does not
support a moral distinction between harmful illicit drug use and harmful licit drug use or other
These deontological arguments based on circular reasoning and ideology are insufficiently
rigorous to serve as the foundation for policy decisions. As a result, the following ethical
analysis of drug policy is conducted primarily through a consequentialist lens; that is, does it
reduce harm? However, a more robust deontological argument will be examined concerning the
use of criminal sanctions to deter drug use than those posed against drug use itself.
Contact with the criminal justice system is associated with a host of health and social inequalities
that may be exacerbated by prosecution, and if leading to the deprivation of liberty, this is
inherently harmful to the individual who is prevented from doing what they want to do. To be
morally justified in consequentialist terms, this approach must prevent more harm than it causes.
Proponents may argue that it reduces harm to those being punished by discouraging them from
using drugs in the future. However, there is no convincing evidence to support this claim, and
incarceration is also not a reliable deterrent as prisoners have reported drug use in prison before.
Likewise, advocates of punitive drug laws may contend that the harm they cause to individuals is
offset by a substantial decrease in harm in community as others are discouraged from using
20
Supra note 6
drugs. The following four challenges emanate from this position: the first is a direct empirical
ethically problematic nature of using humans as a means to an end; and the fourth is a procedural
First, there is no clear relationship between drug policy liberality and drug use prevalence, either
contemporaneously or later in countries that have changed their drug policy.21 Although punitive
laws may reduce drug use in some settings, it is not a necessary condition for doing so, as use of
some drugs in Portugal has continued to decrease since possession for personal use was
decriminalized.
Second, the enforcement of punitive drug laws may encourage behaviors that increase the risk of
harm in the general drug-using population. Fear of punishment may cause people to use drugs in
more secretive and risky ways, such as taking larger amounts before leaving the house or taking
Third, even if there was convincing evidence that punishing drug users deterred further use and
had no unintended negative consequences, it is still a morally problematic approach. Lastly, even
if punitive drug laws were to deter drug use effectively, resulted in no negative ramifications,
and therefore morally justifiable, they are not always applied equitably. This is because members
compared to the amount of drugs they use. This is particularly true in the United States, but also
in the United Kingdom, where prejudice persists in a world acutely aware of the shadow of racial
21
Stevens A, “Is policy ‘liberalization’ associated with higher odds of adolescent cannabis use? A re-analysis of data
from 38 countries” Int J Drug Policy (66) (2019) pg 94-99
22
Race K, “Complex events: drug effects and emergent casualty” Contemporary Drug Prob 41(3) (2014) pg 445-79
inequality. Even if there were benefits to a criminal justice approach to drugs, it would be
ethically problematic if these benefits were contingent on causing harm that was primarily borne
Punishing the production and distribution of harmful drugs may appear more ethically tenable
than punishing drug possession for personal consumption. On closer inspection, however, this is
not always clear, as it is not always clear whether drug market actors are better characterized as
and vulnerable adults are key players in the recently identified county-lines drug market model in
the United Kingdom,23 and globally, marginalised and deprived communities face significant
financial and other pressures to produce drugs.24 Furthermore, as was the case when
distinguishing between legal drugs such as coffee and alcohol and illegal drugs such as
Ideologues of the drug war especially consequentialist may argue that it prevents drug-related
harm because the confiscation and destruction of drugs impedes their utilisation, and the
conviction of producers and traffickers helps prevent others from coming into the market,
23
Coomber R, Moyle L, “The changing shape of street-level heroin and crack supply in England: commuting,
holidaying and cuckooing drug dealers County Lines” Br J Criminol 58(6) (2018) pg 123-42
24
Moreno-Sanchez R, Kraybill D, Thompson S, “An econometric analysis of coca eradication policy in Colombia”
World Development 31(2) (2003) pg 375-83
First, the ninth principle of British policing states that the absence of crime, not evidence of
police action, is the test for police efficiency.25 When considering the global illicit drug market in
criminal terms, both domestic and international policing efforts have failed the test terribly.
Despite massive investments and efforts to combat the illicit drug trade, the market continues to
grow, with the short-term effects of interdiction proving as unsustainable as decapitating one
head of the proverbial hydra. Due to the astronomical profit margins available to drug traffickers,
the cost of drug seizures can easily be absorbed as a "tax" on their operations, and marginalized
discourage them.26
Second, efforts to thwart drug production and distribution encourage innovation, which can
intensify and result in new types of harm. New drugs, for instance, are developed to avoid
existing detection methods and legislation; over the last two decades, more than 670 new
psychoactive substances have surfaced on the European drug market, the majority of which are
unknown in terms of their health effects or how to minimize them.27 And new distribution
methods are developed to avoid enforcement efforts; in the case of the darknet, this has increased
the availability of drugs; and in the case of the UK county lines phenomenon, this has promoted
from free markets. Their central argument is that free markets outperform government-controlled
25
Supra note 1
26
Supra note 12
27
Rolles S, Kushlik D, “Proibition is a key driver of the new psychoactive substances (NPS) phenomenon” Addiction
109(10) (2014) pg 1589-90.
28
Supra note 11
markets in almost every way, particularly in regulating behavior and, in this case, eliminating
Richard Stevenson (1994)29 provides a version for the United Kingdom. Possession, use, or trade
in drugs will no longer be a crime under Stevenson's proposal. The market should be used for
Stevenson, however, is not a complete free marketer. He wants pharmacists to be the only ones
who can sell their products, with the government providing licenses to producers and
distributors. He states unequivocally that he is not promoting or trying to encourage drug use;
“there should be no presumption that an activity is desirable simply because it is legal.”30 Drugs
He suggests that some drugs be legalized but not others, but that such a move should be avoided
because it would "incentivize criminals to specialize in the sale of the more dangerous kinds.”31
He questioned that a case for prohibition could be built on ethical, social, or moral grounds,
because prohibition assumes faith in governments' ability to protect citizens and restrict illegal
Stevenson does not make outlandish and impossible claims, nor does he make outlandish
predictions about future benefits, as some do. To him, legalization is about weighing the harms
done versus the benefits gained, and, unsurprisingly, he concludes that, while there may be some
drawbacks, the advantages will outweigh them. So, while some users will keep on committing
crimes and some felons will continue on using drugs, he believes that overall drug use will
29
Stevenson R, Winning the War on Drugs: To Legalise or Not? (Hobart Paper No. 124, London: Institute of
Economic Affairs 1994).
30
Ibid
31
Ibid
decrease. Why? Because many drug users will no longer have to commit crimes to support their
addiction. He admits that cannabis use might increase initially, but he hopes that legal drug use
would make drug use 'boring'. He contends that the rewards are real; medical benefits would
accumulate from the substitution of pharmaceutically pure products for adulterated street drugs.
According to him, the “primary benefit of legalization is that it would slow the spread of
corruption and criminality, which threatens the political and legal fabric of entire societies.”32 Of
course, given the lack of legalisation experiments to draw from, his and all other predictions
about future use must be considered speculative, or rather optimistic or pessimistic depending on
one's point of view. Stevenson is optimistic, even claiming that a drop in prices would result in
The common idea in this and most other economic liberal proposals is that social control of
crime. "In illegal markets, most of decisions... are made by criminals. In legal markets, they are
by businessmen within a framework of law.”33 Legalization should not be seen as handing out
drugs like candy to schoolkids, or offering a sentimental opinion of addiction as if addicts were
the victims of some grand conspiracy, or even abdicating responsibility. It is all about reducing
crime and corruption, as well as promoting health and lowering costs. It entails delegating
decisions to the market, enacting new rules consistent with a market philosophy, and letting the
market determine the means of production, supply, and distribution. The rules will remain, but
they will be different; this version of liberalism is not anarchy or a free-for-all. It is about
providing a different system of control, one based on the market rather than the government.
32
Supra note 19
33
Supra note 19
The key question is whether the market would provide a more coherent and efficient control
system than the current one. Its immediate benefit is that drugs would be bought freely from
expelling the powers of illegal criminal groups. Consequently, it is an appealing proposal, but it
Furthermore, neoliberal tendencies are seen in the marketing practices of both the legal and
illegal drug markets, which disregard consumers' health and well-being for the sake of profit.34
Close regulation is required to ensure that any profit made from drugs is secondary to reducing
the risk of harm and the prevalence of problematic use and dependence. This would entail
controlling how drugs are manufactured and who can buy them, where, when, and with what
restrictions, as well as prohibiting market-wide marketing. If the goal of controlling the drug
market was to decrease the likelihood of harm and problematic drug use, this would clearly be
incompatible with the establishment of a free market for drugs, or, for example, cocaine
advertisements in the movies. However, this does not necessarily imply that all currently illegal
drugs should only be available with a prescription, as methadone is in the case of opioid
substitution therapy.
Harm reduction is defined by the International Harm Reduction Association 1996 as “policies
and programmes which attempt primarily to reduce the adverse health, social and economic
consequences of mood altering substances to individual drug users, their families and their
34
McKee M, Stuckler D, “Revisiting the corporate and commercial determinants of health” Am J Public Health
108(9) (2018) pg 1167-70.
communities.”35 This theory advances the provision of measures that minimize the risk that
people face when they decide to take drugs, while acknowledging that it is not feasible to
According to them, drug policy debate should not be centred around the legal status of drugs;
rather, the primary concern should be how to reduce the harm they cause, which means limiting
the unrestricted opportunity for drug market actors to profit from their sale.
However, the concept of harm reduction is surrounded by controversy, which appears to stem
from the flawed position addressed under legal moralism: that the use of certain arbitrarily
defined substances is immoral. Alternatively, critics may be allowing the perfect to be the enemy
of the good by advocating for the abolition of all drug use, which induction would suggest is an
unrealistic goal given the ineffectiveness of the drug war. Minor policy changes would authorize
the provision of other harm reduction interventions with promising evidence in their favor, which
Conclusion
There is growing political and academic support for the UK to follow Portugal's lead and
decriminalize drug possession for personal use.36 The United Nations Chief Executives Board for
Coordination, a 2019 UK House of Commons Select Committee on Drug Policy, the Royal
Society of Public Health, the Canadian Association of Chiefs of Police, and the Lancet
cultures all over the world since man first evolved.37 If society is properly educated rather than
punished, cultural trends such as intoxication can be changed, and tobacco use in the UK is a
perfect illustration of how a government can effectively mitigate with the public in order to
change a cultural habit.38 Of course, parameters are set for where smoking is permitted, but
citizens can choose whether or not to smoke, smoking-related health warnings are all over in
UK, and most people can find help to quit smoking. It has proven to be working with
many people quit smoking every day, and more notably, changing attitudes. The current UK
drug policy appears to not only scare the public, but also to isolate and punish the illegal drug
user/ recreational user, increasing the likelihood of the user falling further into the behavior.39
The war on drugs is still ongoing and unwon.40 Drug use, and related issues have not subsided. It
appears inconceivable to wage war on our own citizens. With changes occurring in the United
States, Canada, Portugal, and other countries, the question is: with the United Kingdom being a
hugely profitable haven for drug-dealing perpetrators due to high demand, how long will the UK
37
Goldberg, T, Demystifying Drugs: A psychosocial perspective (1 st Edn, Macmillan Press Ltd: Basingstoke, 1999)
38
Kleiman M, Caulkins JP & Hawken A, Drugs and Drugs Policy: What Everyone Needs to Know (1 st Edn, Oxford
University Press, 2011).
39
Butler S, “Key concepts in drugs and society.” Drugs: Education, Prevention and Policy 21(3) (2014) pg 256-265
40
Payan T, et al, A war that can’t be won: Binational Perspectives on the War on Drugs (1 st Edn, University of
Arizona Press 2013).
BIBLIOGRAPHY
Goldberg, T, Demystifying Drugs: A psychosocial perspective (1st Edn, Macmillan Press Ltd:
Basingstoke, 1999)
Kleiman M, Caulkins JP & Hawken A, Drugs and Drugs Policy: What Everyone Needs to Know
Butler S, “Key concepts in drugs and society.” Drugs: Education, Prevention and Policy 21(3)
(2014) pg 256-265
Payan T, et al, A war that can’t be won: Binational Perspectives on the War on Drugs (1st Edn,
International Harm Reduction Association, What is Harm Reduction? (London: IHRA 1996).
Stevenson R, Winning the War on Drugs: To Legalise or Not? (Hobart Paper No. 124, London:
Rolles S, Kushlik D, “Proibition is a key driver of the new psychoactive substances (NPS)
Race K, “Complex events: drug effects and emergent casualty” Contemporary Drug Prob 41(3)
(2014) pg 445-79
Coomber R, Moyle L, “The changing shape of street-level heroin and crack supply in England:
commuting, holidaying and cuckooing drug dealers County Lines” Br J Criminol 58(6) (2018)
pg 123-42
Moreno-Sanchez R, Kraybill D, Thompson S, “An econometric analysis of coca eradication
Stevens A, “Is policy ‘liberalization’ associated with higher odds of adolescent cannabis use? A
re-analysis of data from 38 countries” Int J Drug Policy (66) (2019) pg 94-99
Husak D, Drugs and rights (1st Edn, Cambridge University Press 1992).
Nutt D, King L, Phillips L, “Drugs harms in the UK: a multicriteria decision decision analysis”
Geuss R, Philosophy and real politics (1st Edn, Oxford: Princeton University Press 2008).
Tupper K, “Psychoactive substances and the English language: “Drugs,” discourses, and public
GOV.UK, List of most commonly encountered drugs currently controlled under the misuse of
most-commonly-encountered-drugs-currently-controlled-under-the-misuse-of-drugs-legislation>
Daren W, The war on drugs is seen by many as a failure: Is it not time to re-consider current
drug policies and adopt a more creative way of thinking? (2018) available at
Holland, A. “An ethical analysis of UK drug policy as an example of a criminal justice approach
to drugs: a commentary on the short film Putting UK Drug Policy into Focus.” Harm Reduct