Goodin’s Justification of Paternalistic Drug Laws is Not Sound

(Ethics / Moral Philosophy / Law)

IMAGE: Person holding a sign to protest the prohibition of marijuana.

Laws which prohibit drug use are paternalistic in the way that they prevent an individual from freely choosing for themselves. In this essay I will discuss John D. Hodson’s (1977) “principle of paternalism” (p. 68) and how it relates to Robert E. Goodin’s (1993) justification of paternalistic drug laws on the basis that they are addictive and that users would choose to stop themselves if it were not for that addiction (p. 234). I will argue that Goodin’s justification of paternalistic drugs laws is not sound. I will do this on account of it not exclusively being the drugs themselves that cause addiction (Baler & Volkow, 2006, p. 559), and on account of there being significant disagreement in the addiction literature about how addiction affects cognitive capacity (Goldberg, 2019, p. 321), thereby creating insufficient evidence to conclude that addicts lack the capacity to choose for themselves.

Paternalism is defined as interfering in the affairs of a person without their consent with the motivation or defense that the interference will benefit them or protect them from harm (Dworkin, 2002). It is in opposition to the values of liberalism, which is a moral and political philosophy where the ideas of individual freedom, equality before the law, and consent are valued (McLean & McMillan, 2009). Freedom is important because it is a basic human need that is integral to social process and the improvement of wellbeing (Jafarzadeha & Beheshtib, 2012, p. 323), and the spread of liberalism is attributed to increasing individual freedom and economic prosperity throughout the world (Meyer, 2020, p. 25). Given that freedom is a fundamental human need that has many benefits, it stands to reason that one must have solid justifications for limiting it. John Stuart Mill (2015) famously argued that the only justification for exercising power over other individuals without their consent is for the purpose of preventing harm to others (p. 13). Marion Smiley (1989) says that this poses a problem for contemporary liberal theorists, because even though they are devoted to Mill’s ideas, they are still unwilling to let people seriously harm themselves. Therefore, they attempt to justify paternalism of the state to prevent cases of physical self-harm (p. 299). One such theorist is Hodson (1977), who proposed “the principle of paternalism” (p. 65) which justifies paternalism through the idea of a “hypothetical unencumbered will” (p. 65), where what a person would have wanted had it not been for their will being encumbered is presumed. Hodson defines encumbered as states of mind that can be described as “ignorance, emotional stress, compulsion, and undue influence, mental illness, and non-rationality” (p. 68). Hodson states that paternalism can be justified, even in cases where major harm is not a threat, as long as “there is good evidence that the decisions with respect to which the person is to be coerced or encumbered” (p. 65), and “there is good evidence that this person’s decisions would be supportive of the paternalistic intervention if they were not encumbered” (p. 65). A case where this justification of paternalism is particularly relevant is for the issue of illicit drugs.

Goodin (1993) argues that drug regulations are paternalistic in the way that they are protecting consumers from ignorance and the harm that the drugs could cause to them, as well as their impact on volition (p. 233). Goodin asserts that because drugs are habit-forming and addictive, people can find it difficult to stop taking the drug once they have commenced, so paternalistic laws are implemented as an attempt to prevent drug use from beginning in the first place (p. 234). This justification of paternalistic intervention assumes that it is the actual substance that is responsible for the addiction and that those who use it will become addicted, and that if it were not for that addiction, they would choose to stop but be unable to. I will now discuss the two parts of this claim in succession.

The first part of Goodin’s (1993) justification for paternalism is that the drugs themselves are addictive. According to the addiction literature, this is not accurate, as “multiple causes of addiction exist and interact, rendering it an intrinsically heterogeneous phenomenon” (Goldberg, 2019, p. 315). Baler and Volkow (2006) assert that prolonged exposure to a drug may be necessary for drug addiction, but the development of an addiction is an interaction of drug effects, biological and environmental factors, where the developmental stage of an individual has critical influence (p. 559). This provides an explanation of why it is possible for some individuals to take drugs and become addicts, but many others do not. However, it’s not just illicit drugs that can be addictive. The APA (2013) includes alcohol, caffeine, tobacco, and gambling in their list of addictive disorders, where internet gaming is also discussed as being an excessive behavioral pattern. They note that sex, exercise, and shopping addictions have only been excluded due to a lack of peer-reviewed evidence at the time of publishing (p. 481). More recently, a review of neuroscientific literature has shown that even excessive food consumption resembles addictive behavior, where there is overlap between the brain activity found in both food and drug-seeking behavior (Volkow et al., 2017, p. 741). Advocates of the Syndrome Model of Addiction (Shaffer et al., 2004) argue that the focus on substances as being addictive does not explain why gambling, sex, shopping, and eating can also be addictive. Their model proposes that addiction is a syndrome where almost anything can be the object of addiction (p. 367). Hari (2015) argues that a lack of social connection is a much more important determining factor for addiction than the actual drug. He bases this on an array of scientific studies, as well as the case study of Portugal and how they were able to significantly reduce addiction rates and other drug-related problems through drug legalization and social programs to reconnect addicts with their community. All of this suggests that conceiving of the actual substances as being addictive is not accurate. To prohibit things on the basis that they can be addictive would mean prohibiting almost everything, because it would seem as though addiction relates more to the individual and their circumstances than it does to the substance itself. Therefore, Goodin’s (1993) justification for paternalism on the grounds that drugs are addictive is not sound.

The second part of Goodin’s (1993) justification for paternalism when it comes to drugs is that if it were not for the addiction, they would choose to stop but be unable to. He argues that because the paternalistic policy is appealing to the person’s own future choice to stop, it makes it justified on non paternalistic grounds (p. 234). The presumption that addicts would make a future choice to stop if it were not for their addiction is essentially Hodson’s (1977) “hypothetical unencumbered will” (p. 68) justification for paternalism. In the case of drug addiction, it comes down to the question of how much addiction impacts the cognitive capacity to freely choose. But, the extent to which this capacity is affected is the most contested issue in the addiction literature (Goldberg, 2019, p. 321). There are two competing models in the literature, the Choice Model, which claims that addictive behavior is driven by choice, and the Brain Disease Model, which claims that addiction is a brain disease (Goldberg, 2019, p. 311). The Choice Model says that those with addiction “retain the capacity to improve their lot and that they will do so as a function of changes in their options and/or how they frame their choices” (Heyman, 2013, p. 31). The Brain Disease Model, on the other hand, says that an addiction to drugs is a “brain disease that develops over time as a result of the initially voluntary behavior of using drugs” (Leshner, 2001, p. 75) which results in compulsive and nearly uncontrollable drug use that significantly impairs a person’s life. The former suggests an optimistic view where addicts are ultimately still in control, and the latter suggests a pessimistic view where addicts have little to no control. Therefore, because the extent to which an addict’s cognitive capacity is impaired is highly contested, there is not sufficient evidence to support Goodin’s (1993) second premise in his justification of paternalism in the case of drugs.

In this essay, I have argued that it is not exclusively the drugs themselves that cause addiction. I have also argued that there is significant disagreement in the addiction literature about how addiction affects cognitive capacity, and therefore insufficient evidence to conclude that addicts lack the capacity to choose for themselves. Evidence which Hodson’s (1977) “principle of paternalism” (p. 65) says is necessary to justify paternalism. This led me to the conclusion that Goodin’s (1993) justification of paternalistic drugs laws, which is based on drugs being addictive and impairing one’s capacity to choose, is not sound. In order to validate the restriction of freedom that paternalistic drug laws create, either compelling evidence against the claims presented in this essay will need to be provided, or an entirely different justification will need to be presented.

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