What is the appropriate method of deciding the types of conduct that should be legally prohibited? This question, which is as old as the study of jurisprudence, is raised again by John Kaplan's new examination of heroin and the laws regulating its sale and use. Professor Kaplan addresses two distinct but related topics: What do the latest studies reveal about the nature of heroin and heroin use? and What should public policy be toward heroin? It is his treatment of the second topic that raises philosophical concern. But before considering this, a summary of the first, and essentially empirical, question would be worthwhile.

Kaplan's Revisionist Thesis

              The first half of this book effectively demolishes the myths that surround the hardest drug and that inform the effort to combat its sale and use. Such a demythologizing enterprise is sorely needed. Largely as a result of popular fiction, even extremely well-informed persons seem to have an entirely distorted conception of the physical and social effects of heroin. This has placed unnecessary obstacles in the path of rational discussions of heroin's legality. As a result of the public's refusal to question the prohibition of heroin, millions of persons have suffered tragic and needless misery. Professor Kaplan's book is a useful antidote to this situation.

         The myths about heroin are so deeply ingrained that even the suggestion that they might be false can be expected to shock many. It is accepted as true without question that heroin is "pushed" at below market prices to obtain addicted and captive customers; that heroin addiction is an inevitable consequence of heroin use; that once someone becomes an addict they will always be an addict; that heroin addiction can be cured by the compulsion of third parties; that heroin causes its users to become criminals. In the first chapter of the book, Kaplan exposes each of these assumptions as either false or, at most, half true.

          Heroin is not distributed by pushers. Rather, Kaplan points out, it is sold primarily by persons who do not have a sufficiently long-term relationship with their customers to engage in a loss leader marketing strategy and who may themselves use any surplus supply of the drug. Such a marketing strategy, moreover, substantially increases the risk of arrest to the seller because it exposes him to nonuser strangers who may, in fact, be law enforcement agents. In addition, the available evidence demonstrates that heroin use usually spreads from friend to friend for many reasons, most of which are social in nature and are unrelated to its potential profitability to the seller.

           Heroin use does not always lead to addiction. While heroin users can develop a physical or psychological dependence or both on the drug, this need not be the case. Many people can occasionally use heroin without developing either type of dependence.

    These "successful" nonaddicted users tend to abide by rigid rules which control their drug use.
    Some use only on weekends. Often they use only in groups with other such users and derive  considerable support from each other in limiting their intake. An almost universal rule among  such groups is to shun addicts-both because they attract the attention of the police and because they are a threat to the values of the controlled user....

                 Though we know far too little about their numbers and the rules which govern their conduct, it is  now clear that there exists a sizable population of nonaddicted but regular heroin users who seem  well integrated into society and in many ways indistinguishable from the rest of the population.  These users bear the same relation to heroin addicts as normal drinkers do to problem drinkers or  alcoholics (p. 33).

                Nor is heroin use inevitably either continuous or permanent. "Despite our image of the heroin slave, addicts commonly go through withdrawal and undergo considerable periods of voluntary-or semi voluntary-abstinence" (p. 34). The addict may go through voluntary withdrawal because his tolerance to the drug has made his habit too large and too expensive. He may need a rest from the often frenetic lifestyle of the street, or he may have an important engagement-such as a court appearance-at which he needs to appear straight. And while an addict may be effectively weaned from heroin by the drug methadone, he does not always require medical assistance to pass through withdrawal. The low quality of today's street heroin makes painful withdrawals rare. "Even in its classic form, heroin withdrawal is not that serious. Pharmacologists compare it to a bad case of the one week flu . . ." (p. 35, emphasis in original).

Kaplan then discusses the evidence that a high percentage of heroin addicts successfully cease use permanently. He concludes:

     Apart from the dispute over moderate use, one must be struck by the resemblance between alcohol and  heroin use. Some drinkers use alcohol moderately while others become problem drinkers and alcoholics; some use (it] moderately for quite a while and then gradually seem to lose control over  their intake; some, who are clearly problem drinkers or alcoholics, stop drinking completely but   relapse again and again; while others give up alcohol permanently with or without social support. The analogy to heroin in each of these cases is striking (p. 38).

          Kaplan also questions the popular link between heroin use and crime. It is true that many heroin addicts commit property crimes. The hard questions are why they do so and how much crime they are responsible for. The physical effects of using heroin and the criminal lifestyle that can accompany its use may make steady employment difficult for some, though not all. The more serious problems arise, however, from the fact that heroin is illegal. This creates at least three obstacles for the user who wishes to avoid criminal conduct. The search for a safe supply of the drug makes steady employment difficult by using up a considerable amount of the user's time and energy. Arrests and other types of harassment by law enforcement agents also make holding a job difficult. And, perhaps most importantly, a user employed at low wages has little hope of affording the cost of the drug that has been rendered artificially high by its illegality.

          "Nonetheless," Kaplan argues, "the amount of predatory crime committed out of need to support heroin addiction seems not to be nearly so great as has been thought" (p. 52). Distorted ideas of the extent of heroin-related predatory crime stem mainly from flaws in the method that has been used to estimate the phenomenon. That method is, typically, as follows: Take the average habit size reported by heroin users and multiply this by the estimated number of heroin users and the street price of the drug. "Such estimates were widely accepted until someone compared the amounts allegedly stolen by addicts in New York City with the reported losses from crime there-and revealed that addicts alone were said to have stolen ten times as much as was stolen in all the thefts reported to the police" (p. 52). This was too large a discrepancy to be explained by any systematic underreporting of crime by victims, particularly considering that not all crime is committed by heroin users.

             Kaplan suggests that the exaggerated estimates are the product of a number of factors. First, investigators have determined the average habit size from the reports of heroin users. Since habit size is a source of status within the user community, users are likely to systematically overstate their use and they do not usually sustain their allegedly average use for long. Moreover, many users earn money by legitimate means, and those that do have a lesser and more stable habit. Many have other sources of income such as parental or governmental assistance. Finally, "even the illegal earnings of addicts do not all derive from thefts Addicts raise almost as much through non-victim crimes-prostitution, pimping, and, most importantly, selling heroin-as they do from property crimes" (p. 54).

          Kaplan then considers more carefully the causal nature of the heroin-crime correlation. He suggests that a plausible but neglected account of the relationship is that "criminality causes heroin addiction instead of the other way around, or, more precisely, that both heroin addiction and criminality are caused by the same thing" (p. 54). He concludes that, while empirical evidence exists to support the more common sense view that heroin addiction leads users to commit crimes, "we cannot conclude on present evidence that heroin addiction is the only or even usually the most important factor in the addict's criminality" (p. 57).

          There is a great need to clear the air about heroin. As long as thoughtful persons cling to the myths of heroin, they will be reluctant to consider the genuine problem presented by heroin. This problem is not the sale and use of heroin, but the illegality of its sale and use. The metaphor of heroin as a monster provides the most potent impetus for this legal prohibition. Kaplan devotes a chapter to the problems caused by the proscription of heroin that I highly recommend. My experience as a criminal prosecutor was that the laws against the use of heroin have created a serious social problem and, more importantly, have tragically affected millions of lives. Kaplan's account corroborates this experience. Unfortunately, in what follows, I can only sketch the highlights of his presentation.

          Laws proscribing possession of heroin and other substances automatically create millions of criminals This much is obvious to most. Those who use these substances are made to be criminals and forced to deal with other criminals. They must buy from criminal; and they cannot trust anyone but those who they know are also criminals. The stigma attached to user because of their criminality makes a happy and non criminal life extremely difficult to attain. And the expense they must incur because of the high prices that a black market always produces imposes a further hardship on users.

       The laws against heroin also involve an increase in health risks to the user. The artificially high price has caused the heroin culture to adopt intravenous injection (over smoking or snorting) as the principle means of ingesting the drug. This method "is the most efficient way to use the drug-a matter that is quite important in view of its high price" (p. 10). It also greatly increases the risks of overdose and infection. "Injection is rare in those Asian countries where opiates are inexpensive and easily obtainable" (p. 128). Moreover, street dealers and their suppliers have none of the substantial market and legal incentives to regulate the quality and quantity of their product that affect the legal manufacturers of branded drugs. As a result, prohibition forces the heroin user to rely on street drugs of widely varying quality and strength, making it very difficult to maintain a consistent dosage. This increases still further the risk of an overdose from an unexpectedly potent supply. "The same is true of accidental poisoning due to one of the materials with which the heroin is cut, and perhaps even of the deliberate murders with so-called 'hot shots,' since heroin users, by the nature of the lives they lead, often become liabilities to others" (p. 130). Kaplan concludes:

              There is no doubt that our present prohibition makes the health of those addicted much worse....  Considering what we know about cigarette and alcohol use, it does not look as if heroin, under   conditions of legal availability, would be a much greater threat to health-and it would probably be a  lesser one (p. 131).

          Some serious effects of heroin laws are so well hidden, however, that even Kaplan misses them in his otherwise exhaustive treatment. I would estimate that close to half of the murders I prosecuted were drug related, but not in the sense that drug addicts committed the crimes. On the contrary, drug users and particularly sellers are typically the victims of violent crimes. The illegal nature of their business denies them the protection of legitimate law enforcement agencies. They must deliberately conduct their business away from the eyes of law enforcement. They must deal in and transport large amounts of cash and a valuable product. Their customers and their suppliers are likely to be criminally inclined. They (and those close to them) are, therefore, routinely robbed and murdered. If they are robbed, their robbers know that the offense will rarely be reported to the police. And if they are murdered, and the police, prosecutor, judge, or jury concludes that this was a "drug-related" killing, the seriousness with which the case will be treated is greatly reduced.

         The tragedy is that this entire phenomenon is a creation of the laws against heroin, whose existence is perpetuated primarily by benevolent motives. Of course, another powerful motivation for supporting prohibition is the self-interest of the massive drug enforcement bureaucracy, whose continued existence and livelihood depend directly upon continuing the prohibition. This group's substantial conflict of interests weakens the credibility of its stated opinions about the drug "problem." All this we could ignore by making the, easy judgment that heroin users and sellers bring these consequences on themselves, were it not for the costs these unnecessary policies impose on nonusers.

       The amount of money expended on enforcing drug laws is enormous. The costs to victims of crimes that are made necessary by the high cost of heroin use, while overestimated, are still considerable. Moreover, the proscription of relatively benign drugs such as opiates has spawned countless entrepreneurial chemists who attempt to keep one step ahead of the legislature by developing substitutes. Some of these drugs pose a much more genuine danger to their users and to others who may be victimized by them than do opiates.

        The social consequences of the wholesale corruption of our legal system by the large amounts of black market money to be made in the drug trade have never been adequately appreciated. This corruption extends far beyond the enforcement of drug laws. Since the prohibition of alcohol we have witnessed the creation of a multi-billion dollar industry to supply various prohibited goods and services. The members of this industry are ruthless profit-maximizers whose comparative market advantage is their ability and willingness to rely on violence and corruption to maintain their market share and to enforce their agreements. Prohibition has created a criminal subculture which makes little of the distinction between crimes with victims and those without. To make matters worse, to hide the source of their income from tax and other authorities requires these criminals to become heavily involved in legal business activities so they may launder their illegally obtained income. They bring to these activities their brutal tactics, which they employ to drive out the honest entrepreneur.

       Moreover, the burden placed on law enforcement officials to enforce possessory laws without victims compels them to engage in wholesale violations of constitutional prohibitions against unreasonable searches and seizures. For every search that produces contraband there are untold scores of searches that do not. And given our present method of deterring police misconduct by excluding evidence of guilt, there is little effective remedy against the police available to those who are not guilty.1

      In light of these and other disastrous consequences of the legal prohibition of the sale and use of heroin, what explains the "addiction" to such laws? Some may be ignorant of the adverse consequences of such prohibitions. Others may be motivated by a belief that the use of intoxicating substances is morally wrong and should be legally prohibited at all costs, along with other "vices" such as pornography, adultery, and homosexualitv. While this view should not be dismissed without analysis, it will not be considered here. Of particular relevance for this essay is the question of why a hard-nosed scholar like Kaplan rejects the prospect of decriminalizing the use and sale of heroin (as he does in the third chapter of his book). What method of legal analysis leads someone who is so knowledgeable about the adverse affects of heroin prohibition to ultimately oppose the end of this prohibition?

       An answer to this question requires a consideration of two alternative methods of deciding questions of legality. The first is to view such decisions as public in nature, to be made by some assessment of the costs and benefits of the policy to the public. The second is to discern the rights of individuals to make their own decisions about their conduct and relationships unfettered by the second-guessing of others whose rights have not been affected. Kaplan employs the first method. In the remainder of this essay, I shall consider his approach and suggest reasons why, with respect to activities like the use and sale of heroin, the second method (which leads to a different policy recommendation) is superior to the first.

An Evaluation of Kaplan's Public Policy Analysis

It is a presupposition of a free society that the discretion of individuals to make choices that affect their lives should not be interfered with by force. This is the ultimate meaning of political freedom. The eternal problem of jurisprudence and political philosophy is to define those circumstances where the presumption does not hold-that is, those circumstances where individuals should not be given discretion to make choices among alternative courses of action. Different political and legal philosophies distinguish themselves by the answer they give to this question and by the method they recommend for reaching this answer.

            Kaplan adopts the public policy method of determining the legality of individual conduct. That is, he suggests we determine the legality of an individual's decision of what substances to ingest as follows: "To decide whether allowing heroin to be freely and legally available would be preferable to our present prohibition, we must determine the likely social cost of free availability, as compared to our present [prohibitionist] policy" (p. 109). But, having convincingly rejected the factual myths upon which most people base their support of heroin prohibition, what social costs of free availability (that is, decriminalization of use and sale) does he cite as outweighing the social costs of prohibition?

    Probably the major reason for discouraging heroin use is the view that the social productivity of the  addict is destroyed or greatly damaged by his addiction....It is, after all, possible that the lowering of productivity caused by the use of a freely available substance would impose greater social costs on us  than would our efforts to suppress it. And even if we gave what we thought was appropriate weight to  the personal pleasure caused by the substance use and to the human freedom to be unproductive, we  might still feel suppression was appropriate (pp. 132-33).

This passage illustrates much of what is defective with the allegedly pragmatic public policy approach to the question of legality. The terminology employed blithely conceals the truth about what is being decided, how it is being decided, and by whom. "Social productivity" is not defined here (or elsewhere); "social costs" are imposed in some unstated proportion on certain people identified as "us"; persons identified as "we" give "weight" that is said to be "appropriate" to the personal pleasure and freedom of some unspecified group, but still decide that suppression is "appropriate"; and, finally, "discouraging" heroin use is a euphemism for using force to arrest and imprison both users and sellers of the drug.

          While an exhaustive treatment of the economic and philosophical difficulties of this passage cannot be accomplished here, a few comments are in order. First, when considering issues of legality, we are not simply discussing how to discourage the use of heroin. There are many ways to discourage or encourage the conduct of others, most of which are nonviolent. At issue in discussions of legality is whether the practices of threatening to forcibly imprison those who use or sell heroin or actually imprisoning those who have not been discouraged by the threat can be morally justified. Kaplan's book makes clear, as I summarized above, that imprisonment is certainly not in the interest of the person being imprisoned and that threatening users or sellers with imprisonment creates serious, adverse consequences for all users. That imprisoning heroin users will discourage or deter other potential users and thereby benefit them is one theory of punishment. It is neither the only such theory nor a noncontroversial one.2

        The concept of social productivity conceals some thorny questions of distributional justice: Who has the right to benefit by the use of force at the expense of another? What gives certain persons called policy makers the right to use or authorize the use of force to confer benefits on some people called society at the expense of other individuals (now) called criminals? This use of a concept, based as it is on notions of "social costs and benefits," can also be objected to on economic grounds.

           There is no unit or standard, like pounds or feet, that can be used to measure objectively the satisfaction of human preferences-that is, how much individuals value a particular activity or object. This is what is meant when it is said that individual preferences or the costs incurred or benefits received by individuals are inherently subjective. Because costs or benefits cannot be measured, no method exists, therefore, by which they can be weighed, except by the individuals themselves who can, by their actions, demonstrate their preference for one action or thing over another. The inherent subjectivity of preferences renders impossible any effort to aggregate individual costs to learn the "social cost" which can then be weighed against the aggregation of individual benefits or the "social benefit." 3 Practical policy analysis cannot be based on what is conceptually impossible.

             Further, it is also a fiction to say that we weigh costs against benefits and then make a decision, if by we is meant everyone or even most people who make up any society. In truth, such a decision mechanism unavoidably involves decision making by some (supposedly on behalf of everyone) to be imposed on others. This need for some to choose on behalf of others reveals the inherent practical disadvantages of legal analysis based on considerations of public policy as an alternative to a legal analysis based on considerations of individual rights.4

          Intelligent decisions about alternative courses of action require information, but those who make public policy have a limited number of ways of gaining information. They may, for example, acquire information by relying on the preferences of individuals as expressed by a ballot. The difficulties of this method are too numerous even to list. In theory, given a balloting procedure of one vote per person, this approach assumes that the information given by each voter is of equal value and that the opinions of the majority are more likely to be correct than those of the minority. On any issues that affect some more than others, these assumptions are almost never true. Without a way of weighting individual ballots or ensuring that the motivations for them are sufficiently based on appropriate concern for costs and benefits, this approach will not ensure that decisions are being made on the appropriate basis.

        As practiced, balloting is a very unreliable means of obtaining knowledge of individual preferences. Voters are rarely called upon to express a very precise opinion. This responsibility is delegated to elected officials. And, given the usually secret nature of this expression of preference, there is no way for policy makers to know, on the basis of an aggregate vote, who favors what or why. Finally, even if these informational problems did not exist, a balloting process of decision making based on a winner-take-all (or zero-sum) concept of majority rule sanctions attempts by a majority to reap benefits by imposing costs on a minority (or alternatively, it sanctions attempts by a vocal minority to reap benefits by imposing on the majority costs that are too small to arouse effective opposition).

     Another way for public policy makers to gain information is to rely on the knowledge and opinions of specialists in the field. These are persons who have invested a considerable amount of time and energy in acquiring information about a particular subject. Based on this information, policy makers can then try to make decisions among alternative courses of action. John Kaplan is one such specialist, and he seeks to recommend certain drug policies over others based on his assessment of whether any such policy is "worth what it costs" (p. 133). This approach to decision making also has serious drawbacks.

    First, the wisdom of the decision depends on the accuracy of the information. Yet, unless the persom who must choose the social policy know as much about the subject as the specialist, it is difficult foi them to evaluate the specialist's opinion. Of course, it the decision maker knew as much as the specialist about the subject of his expertise, the specialist would not be needed in the first place. Reliance on the advice of specialists to make policy choices, therefore, unavoidably puts those who must choose in a position of dependency on those who are supplying information. It requires them either to trust the observations and opinions of persons who may be complete strangers or to try to learn as much as the expert herself, which is very difficult to do. These difficulties are compounded if the experts are themselves in conflict (as they frequently are).

        Reliance on the expertise of others gives rise to a second type of difficulty. The information required to solve a particular problem may not be available to the expert. Suppose, for example, that you wanted to decide when you should eat today. This decision would depend on a surprisingly large number of factors that would be peculiar to your situation, such as what food was available to you at different times, what your financial resources were, what alternative demands were being made on your time at the moment and, of course, how hungry you might be. Your subjective scale of preferences would unavoidably enter into your decision, as would countless other factors, such as the expressed preferences of coworkers or spouses. These factors are not only numerous; most of them are, in principle, entirely unavailable to any outsider, including an expert. A specialist in nutrition might be able to tell you the nutritional needs of the average person or, perhaps, even what your specific nutritional needs might be. Even so, he would not generally be in as good a position as you are to decide when you should eat. 

      We do not normally think about the ability of experts to answer such questions, possibly because no one has ever proposed applying this method of choice to this particular situation. And it may be that no one has proposed this because everyone realizes that experts cannot make such choices as intelligently as the individuals directly affected. Nor do we normally think that such decisions should be voted upon and then legally enforced. The normal view is that such a choice is within the discretion of adult individuals to decide for themselves. Kaplan's revealing account of the effects of heroin and of the laws against its use shows that there is nothing peculiar about heroin that would warrant a change in this attitude.

The Private Rights Alternative to Public Policy

The classical liberal answer to the question of which conduct shall be legally proscribed is that, unless their actions harm other individuals, persons should be allowed the discretion to apply standards and choose among alternatives, even if some of these choices turn out later to be regretted by them or others. This method of defining which conduct may be legally prohibited that is today taken for granted by many proceeds by devising a set of choices that every person can make without interfering with similar choices of others. As the nineteenth-century liberal theorist Herbert Spencer put it (after a lengthy derivation of the principle): "Every man has freedom to do all that he wills, provided he infringes not the equal freedom of any other man." 5 When a person has the legal discretion6   to make a particular decision about the use of her person or particular external resources, we say that this person has a right to make this decision. By right, we mean that no one may forcibly interfere with the chosen course of action, should there be disagreement concerning its wisdom.

       While the classical liberal view is that every person has a right to engage in conduct that does not violate the "harm" principle, the types of conduct that fit this criterion are not self-evident. An individual-rights approach to decision making gives rise to the need for a way of determining what counts as harm to others, so that where this type of harm is threatened by a particular act, those affected must, by force if necessary, be given a role in the initial decision to engage in the act. Recognizing that the principal conflict that arises as a result of the free choices of persons is over different uses of physical resources that are physically inconsistent-two people wanting, for instance, to eat the same food or to use the same land in different ways-the traditional response to the need to define harm has been to devise a system of property rights that accord people the discretion to make choices concerning the use of their bodies and certain physical resources. According individuals moral jurisdiction over the use of certain resources permits them to exercise their discretion if they wish to do so. At the same time this entails prohibiting those uses that physically interfere with the like property rights of others, unless the consent of those whose use is thus affected is first obtained.

         The criterion of harm that looks to physical interference is not arbitrary. First, it is a relatively clear and discernible criterion, and this protects the discretion of individual property holders from the forcible intermeddling of third parties (including legal authorities). Second, the criterion provides useful guidance both to individuals and legal authorities as to the limits of individual discretion. Third, such a criterion maximizes individual freedom while minimizing social conflict better than any conceivable alternative. A further step that is needed to explain the rights approach to social order (which will not be attempted here) would be to connect its inherently superior ability to enhance individual freedom of choice and minimize social conflict with some moral imperative, such as the relationship between freedom of choice and social order on the one hand, and the achievement of individual happiness on the other.

         Within a scheme of individual rights, therefore, any decision about the legality of conduct should be made by (1) developing criteria of wrongful interference with the rights of others and (2) examining the nature of the act(s) in question to determine whether they violate these criteria. If they do, then the conduct may be forcibly prohibited. If not, then regardless of the wisdom of this conduct, force must not be used to prevent it from occurring. Since the act of ingesting chemicals does not physically interfere with any other person's use and enjoyment of his body or property, while it may be bad or immoral for the individual who chooses to do so, according to classical liberal principles of justice it should not be prohibited. 7 (We are speaking now merely of drug consumption. If persons violate the rights of another while "under the influence," this principle does not prevent them from being held legally responsible for the harm caused.)

        Such a process of legal analysis does not require a heavy emphasis on the concept of public policy. Within a rights-based method of decision making, most decisions that are now conceived of as public are conceived of as many (similar) decisions facing many different, but similarly situated people. For example, millions of people in society have to decide when and where to eat a number of meals each day. We do not, however, consider the decision of when and where meals should be eaten to be a matter of public policy, even though the whole of the public must face this issue daily. Similarly, everyone has to decide what to eat or ingest. This also is not usually thought to be a matter of public policy. If, however, people are choosing to eat substances that cause a change in their perception of reality or their emotions, it is thought by some that a public policy decision must be required; it is thought by some that individuals should not have a right to exercise their discretion in making this choice; it is thought by some that certain members of society should make this decision for others and that those making the decision may use force to punish those who act inconsistently with the public policy that is chosen.

          In what is by far the weakest part of his book, Kaplan considers and then rejects a rights-based type of  decision making. He says: "The problem with such 'rights' is that they are merely assertions. They do not carry any arguments with them" (p. 103). Such an observation betrays a serious unfamiliarity with the manifold defenses of individual rights as a means of allocating decision-making responsibilities that date back at least as far as Locke and Hume and that are still discussed today.8 Even the one rights theorist that Kaplan chooses to consider on this issue, John Stuart Mill, did not "merely assert" their existence. Ironically, Mill justified an individual rights approach by its practicality or utility. After dwelling at length on the derivation of the concepts of justice and rights, he concludes that:

    While I dispute the pretensions of any theory which sets up an imaginary standard of justice not grounded on utility, I account the justice which is grounded on utility to be the chief part, and incomparably the most sacred and binding part, of all morality. Justice is a name for certain classes of moral rules which concern the essentials of human well-being more nearly, and are therefore of more absolute obligation, than any other rules for the guidance of life, and the notion which we have found to be the essence of justice, that of a right residing on the individual, implies and testifies to this more binding nature....

    The moral rules which forbid mankind to hurt one another (in which we must never forget to include wrongful interference with each other's freedom), are more vital to human well-being than any maxims, however important, which only point out the best mode of managing some department of human affairs. They have also the peculiarity that they are the main element in determining the whole of social feelings of mankind. It is their observance which alone preserves peace among human beings; if obedience to them were not the rule, and disobedience the exception, every one would see in everyone else an enemy, against whom he must be perpetually guarding himself. 9

              In a footnote that is both interesting and very relevant to the issue of methodology, Mill points out:

    Mr. Herbert Spencer, in a private communication on the subject of the previous note [concerning Social Statics] objects to being considered an opponent of Utilitarianism, and states that he regards happiness as the ultimate end of morality, but deems that end only partly obtainable by empirical generalizations from the observed results of conduct, and completely attainable only by deducing, from the laws of life and the conditions of existence, what kinds of action necessarily tend to produce happiness, and what kinds to produce unhappiness.... My own opinion (and, as I collect, Mr. Spencer's) is, that in ethics, as in all other branches of scientific study, the consilience of the results of both of these processes, each corroborating and verifying the other, is requisite to give any general proposition the kind and degree of evidence which constitutes scientific proof. 10

         Mill, like David Hume, attempted to explain and justify individual rights on the basis of their utility. They both believed that allowing the fundamental property and personal rights of individuals to be overcome, even by appeals to simple utility or practicality, would, in the end, have disastrous consequences. This is not the only basis of a rights theory, nor is it free from all difficulties, but it is one that is particularly valuable in light of Kaplan's rejection of individual rights by an appeal to practicality:

    Once we renounce Mill's absolutist principle [that an individual has the right to do what he wishes with his own body, even if he may harm himself by doing so], it becomes impossible to resolve the arguments for and against prohibition of a particular self-harming conduct on any but practical grounds.... (p. 109)

Kaplan supplements his argument that rights are mere assertions with three other arguments. First, he says that "the real problem is that the great majority of us do not agree with Mill's principle to begin with" (p. 107). Such a majoritarian appeal hardly provides either a convincing case against the morality of Mill's principle or a moral defense of the forcible interference by some with the self-harming conduct of others. People write books (and review essays) about heroin precisely to change the erroneous views of the majority for the better.

              Next, he asserts: "It almost seems to be the nature of man to regard some types of predominantly self harming conduct as, for one reason or another, the proper subject of official conduct" (p. 106, emphasis added). If he is being serious here (and only a sense of irony suggests he is not) this is a remarkable statement. Many qualities have been attributed to human nature, but to claim that a particular political belief is to be considered "almost" human nature is really quite extraordinary. If this claim is true, what are we to make of the millions of people who do not agree with Kaplan and others regarding the appropriateness of using force to protect people from themselves? Are they "not quite" human?

           Finally, he adds: "If one believes that we are all brothers, one may morally attempt to keep others from likely harm even though they themselves are foolish enough to take the risk" (p. 109). Such a statement begs every important philosophical question presented by the issue of legality. First, Kaplan does not say whether the truth of this belief is at all important. Second, he does not say what the implications would be for the legal prohibition of heroin use or sale if a sizable number of persons (though perhaps not a majority) do not share this belief. Finally, assuming that one does have a moral duty to help another, Kaplan does not specify the means by which one may morally protect that person from himself. What requires moral justification are not attempts to aid per se, but attempts to help a person by using force to punish that person or others.

             John Kaplan's book exemplifies the difficulties of ignoring an individual-rights approach to questions of legality. Since he has attempted to reach a decision as to how the legal system should deal with heroin users and sellers without taking seriously an individual rights analysis, it is only fair to see how successful Kaplan is in reaching a solid policy recommendation. Of course, he attempts to assess the "social costs" and "benefits" based on what he thinks is the best available evidence. But, while, to his credit, he qualifies almost every attempt at an empirical resolution of an issue, the weakness of his empirical footing rarely prevents him from reaching a conclusion in support of his policy recommendation.

        It is worth quoting a few of his disclaimers: How many people would use heroin in the absence of prohibition and how harmful to them and society would this use be? ". . . the uncertainties in each prediction are enormous" (p. 112). What is the likelihood of increased addiction? "The difficulty is that we can make no such prediction.... Nonetheless. . . " (p. 118). On the validity of relying on studies of animal subjects: ". . . though perhaps [such experiments are] not entitled to great weight. . ." (p. 121). On the experience of other cultures with no prohibition: "It is true that we do not have a great deal of information on human use of opiates under conditions of free availability. Nonetheless. . . " (p. 122). On what, for him, is the crucial question of the likely effect of free availability on the addict's productivity or ability to hold employment: "The answer, remarkably, is that we don't know.... Nonetheless. . ." (pp. 134-35). As to the likelihood of heroin "abuse" under free availability: "Unfortunately we do not have the remotest idea how to make such an estimate.... Nonetheless, if the information is worth anything. . ." (pp. 137-38).

      The lesson here is that viewing the use and sale of heroin as a social problem compels an expert like Kaplan to express an opinion, even if the evidence is uncertain or inconsistent. He admits as much when he says: "Despite the difficulty, however, there is no way around the problem. To decide the wisdom of a free availability policy for heroin, we must attempt to predict what our society would look like if such a policy were adopted" (p. 112). This is an excellent example of a scholar trapped by his methodology. If he cannot recommend the appropriate heroin policy, who can? As an expert in this area of public policy, he cannot merely shrug his shoulders, for to fail to recommend one public policy is, on this view of decision making, simply to recommend a different public policy by default. So he is compelled to make the most of his evidence. This compulsion exists, however, only so long as we conceive of issues like the use of heroin as matters of public policy that require "our" best choice among competing public policies. Once we conceive of such public policy issues as matters of individual policies-that is, as matters of individual discretion or private rights that require individual judgment-the addiction to enforcing decisions for all based on such tortured analysis is cured.

       To allow individuals such discretion means, in the weak sense, that it is up to the individual to app whatever standards of judgment may exist, or that the decision will not be forcibly countermanded by other or both. Does the adoption of this method of decision making ensure that in every instance where an it individual (or official) has discretion to make a decision that decision will be the correct one? No. A person with discretion can be ignorant of or misapply the relevant standard by which his choice should be assessed though many economic incentives and social constraints exist to minimize the number and gravity c such mistakes. 11 And, while sometimes another person, perhaps because of his detachment or superior judgment, can see the implications of actions mot clearly than the person who has discretion to make the choice, it remains true, for reasons given above, the individual is generally in the best position to make the choices that will directly affect him.

        The person who will suffer the consequences of the choice has a greater incentive to investigate the alternatives or learn from prior mistakes than one who does not. And the person who will suffer the cot sequences of the choice has a greater incentive to it investigate the alternatives and to learn from price mistakes than he would if another's decision is in posed on him by force. Because of this, any systematic effort to thwart the information-gathering process 1: denying discretion to individuals will tend to wreath havoc with their welfare and the welfare of those around them. It should come as no surprise, then, the practice of forcibly regulating and prohibiting the making of certain individual choices, including the choice of what substances to ingest, has produced disastrous consequences.

       Those who defend an individual-rights view and oppose various proposals to limit or eliminate the  individual's discretion face a rhetorical problem. While the benefits sought by the proponents of these proposals can be forcefully articulated because they are highly visible, the costs that inevitably result from such intrusions upon freedom can almost never be predicted with certainty. It is unlikely, for example, that any opponent of alcohol prohibition could have predicted and articulated the magnitude of the damage that policy inflicted and still inflicts on the law-abiding. Thus, traditional public policy analysis is inevitably skewed by always pitting the articulated advantages of restricting discretion against the unknown and unknowable, but nonetheless significant, disadvantages of doing so. Nonetheless, our experience with attempts to forcibly interfere with the discretion of individuals supports a rights approach and undercuts Kaplan's alleged pragmatism.

       Contrary to Professor Kaplan's characterization, a rights analysis is not a matter of mere assertion. It is a method of decision making with definite and discernible characteristics that make it a method superior to any other. Classical liberals who espouse individual rights are more aware than their detractors that the complexity of social life makes public policy analysis inherently impractical, and that this complexity requires, instead, the decentralized decision-making process that a rights framework provides. They also know that the nature of human beings requires that, for better or worse, all persons must be accorded the final say on which of life's paths they will travel if each of them is to stand a chance of being happy. An analysis of private rights is, in short, a far more practical approach to :raking public decisions than is an attempt to assess social costs and social benefits. That is one reason why it is a better theory of justice as well.

FOOTNOTES:

1 I discuss this problem and possible solutions in Resolving the Dilemma of the Exclusionary Rule: An Application of Restitutive Principles of Justice 39 EMORY L. J. 937 (1983).

2See generally ASSESSING THE CRIMINAL: RESTITUTION, RETRIBUTION, AND THE LEGAL PROCESS (R. Barnett & J. Hagel III eds. 1977). I consider an approach to criminal justice that is based on principles of individual rights, as opposed to principles of deterrence or punishment, in Restitution: A New Paradigm of Criminal Justice 87 ETHICS 279 (1977); and The Justice of Restitution 25 AM. J. OF JURISPRUDENCE 117 (1980).

3 For an introduction to the problems raised by the use of dollar amounts as a surrogate for subjective costs, see J. M. BUCHANAN, COST AND CHOICE (1969). For a general introduction to a subjectivist approach to economics and to the relevant literature, see THE FOUNDATIONS OF MODERN AUSTRIAN ECONOMICS (E. G. Dolan ed. 1976); and G. O'DRISCOLL, JR., ECONOMICS AS A COORDINATION PROBLEM (1977). For an application of this methodology of economics to the institution of law, see F. HAYEK, LAW, LEGISLATION AND LIBERTY: RULES AND ORDER (1973); and id., LAW, LEGISLATION AND LIBERTY: THE MIRAGE OF SOCIAL JUSTICE (1976).

4 I have briefly considered these and some additional problems in Public Policy and the Limits of Economic Analysis 2 CATO J. 489 (1982).

5 H. SPENCER, SOCIAL STATICS 95 (1970). The subtitle of the book, originally published in 1850, was "The conditions essential to human happiness specified, and the first of them developed." This was the young Spencer writing. His views on certain issues changed considerably as he grew older.

6 I am using the word discretion here in what Ronald Dworkin, in discussing the discretion of public officials, would call its "weak sense":

Sometimes we use "discretion" in a weak sense, simply to say that for some reason the standards an official must apply cannot be applied mechanically but demand the use of judgment.... Sometimes we use the term in a different weak sense, to say only that some official has final authority to make a decision and cannot be reviewed and reversed by any other official.

R. DWORKIN, TAKING RIGHTS SERIOUSLY 31-32 (1977). There is no apparent reason why this concept of discretion must be confined to discussions of public officials.

7 Spencer's defense of the attempt by liberals to develop a distinction between legal and moral wrongs has a modern flavor:

Objection may be taken to the foregoing classification of the conditions needful to greatest happiness as being in some degree artificial.... Some may argue that it is not allowable to assume any essential difference between right conduct toward others and right conduct toward self, seeing that what are generally considered purely private actions do eventually affect others to such a degree as to render them public actions, as witness the collateral effects of drunkenness or suicide....

In ... [this allegation] there is much truth, and it is not to be denied that in the final analysis all such distinctions as those made above must disappear. But it should be borne in mind that similar criticisms may be passed upon all classifications whatever. It might, after the same fashion, be argued that we ought not separate the laws of heat from those of mechanics, because fire when applied to water generates mechanical force.... [Spencer then lists several other scientific examples that are omitted here, to which he might have added many examples of legal categories as well.] ... So that unless such objectors are prepared to say that Botany and Zoology should be regarded as one and that all lines of demarcation between the physical sciences should be abolished, they must in consistency tolerate an analogous classification in moral science and must admit that while this is in a certain sense artificial it may be an essential preliminary to anything like systematic investigation. The same finite power of comprehension which compels us to deal with natural phenomena by separating them into groups and studying each group by itself may also compel us to separate those actions which place man in direct relationship with his fellows from others which do not so place him, although it may be true that such a separation cannot be strictly maintained.

H. SPENCER, SOCIAL STATICS 64-65 (emphasis added).

8 I describe and attempt to account for recent trends in favor of a rights-based approach to matters of legality in Contract Scholarship and the Reemergence of Legal Philosophy (Book Review), 97 HARV. L. REV. 1223 (1984).

9 J. S. MILL, UTILITARIANISM (1861), as it appears in PHILOSOPHY OF LAW 321 (J. Feinberg & H. Gross eds. 1980).'

10 Id. at 323-24.

11 For example, a decision to eat or to abstain from eating to diet, for instance-may have very important health and emotional effects that will affect others. And the person will discretion to make this decision may very well make a mistake of judgment. If this occurs, it is likely that the choice will be regretted, but this alone does not justify the use of force to ensure that the "correct" choice is made.