Responding to “The Libertarian Case for Drug Prohibition” by Tim Hsiao

Tim Hsiao drugs

The prohibition of drugs is something that nearly all libertarians stand against.  Prohibition violates one of the central tenets of libertarianism, the idea that you own your body.  This of course does not mean that a libertarian would have to support or agree with any individual’s use of drugs.  We don’t owe each other approval, we only owe each other non-interference.  Tim Hsiao, humanities professor at Grantham University, disagrees in his piece “The Libertarian Case for Drug Prohibition.”

Hsiao argues that the state should ban the use of recreational drugs that hinder cognitive faculties.  He makes his case:

One of the government’s chief responsibilities is to protect and promote freedom. In order to do this, it must also protect and promote the underlying conditions that make freedom possible, one of these being clarity of thought. The government therefore has an interest in cultivating a culture that encourages clear thinking and discourages impaired thinking. Since recreational drug use impairs the user’s ability to reason, governments should therefore enact legal restrictions on recreational drugs.

In other words, if you value freedom, then you should oppose the legalization of recreational drugs.

Hsiao believes that the state’s existence is justified and thus is responsible for certain functions.  I, however, am against the existence of the state, but I do not need to prove that the state should be eliminated for my argument to stand against Hsiao.  For the sake of this discussion, I will simply argue that drug prohibition is not ethical (and so his many other incorrect consequentialist arguments will be out of scope for this).

Part of the problem with Hsiao’s argument is that he does not appear to understand what freedom or liberty is.

If the government has a responsibility to protect and promote freedom, then it must also protect and promote the conditions that make it possible. On this point, one essential ingredient of personal freedom is rationality. Choices can only be free if they are made by a person whose cognitive faculties are functioning in the right way. Reason confers on our actions a certain order and intelligibility that make them explicable and coherent. It is what makes our actions ours, such that we are responsible for them. Our ability to act freely is diminished or destroyed if we are unable to deliberate and think coherently, or if we are subject to overwhelming coercive forces.

He claims that libertarians go wrong in thinking that freedom is the ability to make choices without restriction.  Libertarians would be wrong to think that way, but that is not what libertarians believe.  Freedom is the ability to act however you want as long as you don’t violate the rights of anyone else.  Freedom means living free from harmful coercion.  Choices are free only when there are no other parties coercing you.  You are responsible for your actions because they are your choices.  Drug use is the choice of the individual.  His actions following that choice have consequences for which he is accountable.

The simple act of taking heroin affects no one else.  If, after taking heroin, Bob robs a bank, what is the crime?  The crime is clearly robbing the bank.  If the heroin impaired Bob’s cognitive abilities so that he thought it was okay to rob the bank, it doesn’t change when the crime occurred.  It was Bob who decided to impair his own cognitive abilities by taking the heroin and he is thus responsible for the entirety of his actions.

Let’s consider this a bit differently.  Bob decides to stay up very late watching movies and ends up only getting a very small amount of sleep that night.  As a result, he’s extremely tired driving to work the next morning.  He falls asleep while driving and crashes into another car, injuring the other driver.  Presumably, if Bob didn’t stay up so late watching movies and got his normal rest, he would have been fine driving the next morning and wouldn’t have had the car accident.  Would it be reasonable to say that his crime was watching movies late at night?  Should the government protect our freedom by instituting mandatory periods of sleep?  Of course, these are absurd questions, but the same logic applies to decision-making involving the influence of drugs.

Yet by using Hsiao’s logic, it would seem as though he’s arguing that Bob wouldn’t be criminally responsible for his bank robbery since he wasn’t free:

In other words, freedom isn’t just the bare ability to do something; it is the ability to act under the influence of properly functioning cognitive faculties. This point is pivotal in making sense of the legal concepts of consent, coercion, and competence. Young children are unable to enter into legally binding contracts because their cognitive capacities are not fully developed. Likewise, insanity defenses are based on the understanding that cognitively disabled or insane persons cannot be held criminally liable for their actions. There cannot be freedom without rationality.

I’m sure that Hsiao didn’t realize that was a consequence of his logic.  And there are other problems with this.  The idea that “there cannot be freedom without rationality” is wrong.  As mentioned already, having freedom means that you are not subject to harmful coercion.  Refusing to make a contract with someone is not a violation of his freedom.  No one has an obligation to make a contract with anyone.  And the insanity defense isn’t a good comparison because it would only apply when the loss of cognitive abilities was not the choice of the individual.

Hsiao later attempts to address the libertarian appeal to self-ownership:

Some argue that there is a moral right to use drugs that is derived from our right of ownership over our own bodies. According to libertarian philosopher Michael Huemer, “it is hard to see how anyone who believes in rights at all could deny that . . . drug use, considered merely as altering the user’s body and mind, is an example of the exercise of one’s rights over one’s own body and mind.”

There are numerous problems with Huemer’s argument. For one, it does not follow from the fact that one owns himself that his rights over his own body are absolute and unlimited. Many philosophical traditions have held that we have duties of self-respect to ourselves, such as duties to preserve our own health and personal integrity, and to develop our talents. If there are such duties, then they would seem to count against a moral entitlement to debase one’s cognitive functioning. Appeals to bodily autonomy hinge on the background moral theory we adopt, and Huemer’s conception of self-ownership is no different. Huemer presupposes a controversial philosophical anthropology that needs to be justified, and he does not give us any reason why we should accept it.

Even if it is accepted that we have these duties to ourselves, that would still mean that we would be accountable to ourselves and that we would have the highest ownership claim to our bodies.  By not having self-respect, we would have failed ourselves.  What role would another party play in this situation?  You would have to delegate authority to the party to hold you accountable.  If the party, the state, did not need your authorization to enforce your obligations, then it would imply that you have a duty to the state.  If the state can compel you to do certain things to your body, doesn’t that constitute control—and thus ownership—of your body?

I’m sure that Hsiao did not intend to make the argument that the state owns him, but it is the consequence of his argument.

It’s interesting that Hsiao states that Huemer doesn’t justify his claim of self-ownership, but if you follow the link that Hsiao posted, Huemer very clearly defends his point in the paragraph immediately preceding the one where Hsiao pulled the quote.

It’s odd that he would miss that.  Or perhaps he saw it and read it but simply didn’t understand Huemer’s argument.  And that would make sense since Hsiao doesn’t understand the basic foundational ideas behind libertarianism, such as non-aggression and self-ownership.  It’s these errors that lead him to conclusions that are so far removed from obvious libertarian positions.

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