Dr. Dozer is Professor of History at the University of California, Santa Barbara.
Marijuana, LSD, barbiturates, amphetamines, and now the cyclamates have become targets of legal extermination. When marijuana is found growing on our hillsides or in a neglected crevice of a downtown building it must be attacked with hoe and shovel and destroyed under the surveillance of police authorities. The zeal of the national government to prevent the importation of marijuana has produced a border crisis with Mexico. Tobacco has been proved to be a serious offender against the health of our people. Will the new crusaders, acting in the name of the public welfare, now mobilize and march with hoes and shovels against the dread plants ranged in militant phalanx in the fields of Marlboro country?
A young college student seeking escape from the ordeal of modern living brews himself a jimson weed broth on his hot plate and after hallucinogenic contortions dies. Will the law now undertake to extirpate all jimson weeds from the countryside and clamp a quarantine on it at the borders of the nation? And the possibility must not be overlooked that seeds of these plantes noires may be carried across the border by birds, which obviously therefore must be brought under the surveillance of the immigration authorities.
A half century ago the United States undertook by law to prevent the sale and use of intoxicating beverages and as a result produced a nation of informers, bootleggers, lawbreakers, and drunkards. In panicked anxiety we adopted a policy of paternalistic authoritarianism which is now repeating itself as another periodic spasm of concern to be our brother’s keeper. Now police officers are given instruction in detecting the smell of marijuana smoke, and they snoop outside the apartments of suspected users in an effort to catch a whiff drifting through windows or over transoms.
Inviolability of Free Choice or Social Control through Law
The central idea of the law in the nineteenth century was the importance and, derivatively, the inviolability of the free individual will. But the law has come increasingly to involve itself not only in protecting individual life but in assuring to the individual a productive and satisfying life. All this is being done under the modern postulate, so well expressed by Dean Roscoe Pound, that "the risk of misfortune to individuals is to be borne by society as a whole," and consequently society must assume the obligation to prevent misfortune to individuals even when committed by their own hand.¹
This places the state squarely in the position of being the guardian of the morals of each individual in society who may engage in acts harmful to no one but himself. In such cases the state may even impose punishment without proving that his act produced any harm to himself. The tendency in this direction, it appears, increases with the growth of the consensus society, with the expansion of the agencies of responsiveness between citizens and the instrumentalities of government, in short with the coercive facilities available to society.
What, then, is the stake that society has in the preservation of the life of an individual citizen? Is it obliged to see to it that no individual harms himself even though he may wish to do so? Should government rightly assume any role in the enactment and enforcement of sumptuary legislation, that is legislation affecting the appetites, dress, and health of individuals?
These questions lie close to the heart of responsible civilian government. They impinge directly upon the problem of the optimum relationship between the individual and society, a perennial problem in our human situation. Legal restraints which are couched in too repressive language may be tempered by administrative discretion, which in turn may give rise to inequities in the application of the law, or such restraints may, on the other hand, be judged to necessitate rigorous enforcement action, even to the calling out of troops and the imposition of military controls with consequences fatal to consensual government. For, significantly, the limitations upon individual freedom are bracketed under the police power opening the way inexorably to the establishment of the police state.
Limited Use of Force
It has been the persistent objective of the champions of freedom to limit the area within which the law, construed as the force of society, may impinge upon the individual. The basic principle of a free society, as defined by John Stuart Mill, is that "mankind are greater gainers by suffering each other to live as seems good to themselves than by compelling each to live as seems good to the rest." The individual is entitled as of right to enjoy legal noninterference with his natural freedom.
We are living in a period marked by a wide dichotomy between law and morals when law is seeking to replace morals as the cement of society. The justice that is sought is to be achieved, it is thought, through the force of state action, by the acts of a society which is politically organized. This society, as it perceives its moral values slipping away, seeks to establish canons of value through legal enactment and to constrain all members of society to follow them. The law has thus extended its domain to become an instrument of ethical behavior and social change.
The lawmaker and the moralist are alike actuated by a more or less ideal conception of what life should be and of what makes for order and progress in society.
Their conception may or may not bear much relationship to the actual conditions of living, but to the extent that it soars far away from those conditions it forfeits both its credibility and its social force. And when the lawmaker and the moralist, having thus divorced themselves from reality, assume a command role, they find that their conception, however beautiful, is unattainable except through the application of force. Narrow is the line that separates the dogmatist who argues that what is is unequivocally right and the dogmatist who insists that what is is unequivocally not right—between him who insists that the state can do no right and him who insists that the state can do no wrong.
The only effective legislation is self-executing. This truism is as applicable to the moral as to human law. When it is ignored or violated, the law itself ceases to be a force making for order, and it yields place to a politicized society which operates in accordance with prejudice and whim and which exerts moral force only because it possesses physical power. Those, then, who would impose sumptuary restrictions upon human conduct are dissolving the concept of law into an instrument of social control and social order. They are thus creating insoluble problems of enforcement.
"Moral populism," to use H.L.A. Hart’s phrase, "is a necessary cohesive factor in any society as implying a hard-core moral consensus. It becomes a threat to that society when it undertakes to use law to enforce that consensus and thus impose itself forcibly upon the minority."2 This is one of the things which government must not be allowed to do. Much of the student unrest today is directed against the excessive intrusion of the law into areas where it has no business to be.
The law as such will not and cannot be expected to produce that voluntary restraint which alone will develop a moral citizenry, a citizenry dedicated to that better way envisioned by the moralists. "Virtue," as Malcolm Muggeridge has observed, "should be implicit rather than explicit." It should be "revealed in living" rather than in laws.
Wards of Society
The law, therefore, must not concern itself with victimless crimes. Society must not hold an individual accountable for actions which do not harm anyone but himself. Restrictions on the highway speed of motor vehicles are imposed, it may be assumed, not for the purpose of preventing drivers from injuring themselves or from destroying their property interest in their vehicles, but rather exclusively for the purpose of preventing drivers from committing physical injury to others and causing an increase in insurance rates. To argue the contrary is to hold that society is entitled to assure the function and to claim the product of every individual in society as of interest to it and that society will be prejudiced by his loss.
If government bases its action upon such a claim, namely, the functional usefulness of human life and the corresponding obligation of society to protect the physical integrity of the person, then does not society possess the corollary obligation to enhance the social utility of the individual even against his will, that is, to promote a state-defined virtue? Under this proposition the state can resort to almost any method of dealing with individuals on the plea of the good of the state, thus opening up the way broadly for completely paternalistic government. It would then be obliged, for example, to judge attempted suicide to be as heinous as murder, and the person who only half succeeds in a suicide attempt should be punished after recovering.
Legislative enactment cannot successfully rebut the daily legislation of the people. In this context, as Dr. Margaret Mead has pointed out, the legal prohibitions against the use of marijuana are doing greater damage than the harmful effects on those who use marijuana. The broader the ambit of the law, the greater is the danger of building a society of force. Ironically, therefore, the stronger the attempt to create a system of reason, the greater is the danger of creating a system that indulges in arbitrary action and responds only to impulse. In the attempt to impose sumptuary regulations we come dangerously near to championing the proposition that coercion must be used to maintain the moral status quo and to eliminate deviations from it. But we must face the consequent fact that the act of thus freezing a moral system at a given moment in time will arrest even those processes of social changes which are judged wholesome by the mass of society. Surely an indisputable prerequisite to the maintenance of a civilized society is to maintain optimum conditions for the fullest possible realization of the idea of liberty in human experience.
The traffic in drugs which have been proved dangerous to human life ought to be prohibited, for when the "pusher" peddles his wares he is harming others—his customers. But the mere use of such drugs or the fact of an individual’s being in a place where such drugs are being used by others should by no means be punishable. These acts must be regarded as individual rights which are beyond the concern and business of the law. If an individual or a group of consenting adults find pleasure in sitting around and using drugs, which all the evidence shows will harm them, their action should be no concern of the law, however flagrantly it may flaunt public morality.
In short, narcotic and hallucinogenic drugs present a serious challenge to the moral forces in society; but they must not be allowed to become a major preoccupation of the law. Punitive laws ought to be designed to curb only the patently antisocial actions of the almost infinitesimally small minority of the members of any society who, if not curbed, will destroy that society. When they go beyond that limit and undertake to define other human actions as misdemeanors, felonies, and crimes, they stimulate in the heart of every man the desire to commit the very offenses which they purport to prohibit.