By Prof. Julian Kinderlerer (SA), CONSULTATION EVENT CO-CHAIR, President of the European Group on Ethics in Science and New Technologies (EGE) reporting to European Commission President Juncker and the European Parliament; Prof. of Intellectual Law, Cape Town University; Adviser to the South African Science Ministry; Occasional Adviser to the UN Environment Programme; UN Industrial Development Organisation; World Intellectual Property Organisation; Former Director of Institutes on Biotech Law, Ethics & Society at Delft and Sheffield Universities.

How do we differentiate between the responsibilities of individuals to look after themselves within an evermore complex social structure, and the responsibilities of States to look after their citizens, provide security and a milieu in which to live a satisfying life? If an individual wishes to take actions that may harm themselves but debatably have no impact on the lives of others, such as smoking, vaping, drinking or taking illicit drugs, should the State interfere? Can a rational analysis based on robust science provide a more effective basis for assuring that individuals are treated with respect and fundamentally that society ensures that individuals are not interfered with when causing no harm to others?

Are we really individuals anymore?

The way in which our lives are interwoven means that most of our actions do impact on others in ways that are difficult to unravel. If an individual chooses to end their own life, by whatever means, the impact on others is not negligible. If one smokes cigarettes, the harm to our own health is well-documented and clear, there is also harm to the health of others and the impact on health services is huge. Should society tolerate this burden in order to protect the rights of the individual? An example of the problems of addressing the rights of the individual and that of society in assuring their well-being is that of legal and illegal drugs. Taking mind-altering drugs is almost a norm in many societies even where it is frowned on by officialdom and is illegal. There are many contradictions in the manner in which society handles the affairs of those who form part of the ‘group’. We talk of the rights and responsibilities of citizens and how important the individual is in society, but the inconsistencies in treatment of various actions are manifest.

In some cases interference with the right of accredited physicians to prescribe drugs that could be harmful to patients is deemed unacceptable, yet the physician has a responsibility to do no harm! Misuse of prescription drugs in most countries accounts for more deaths per annum than the use of ‘banned’ or illegal narcotics. The abuse of prescription drugs may result in more hospital admissions than the use of illegal drugs. In 2013, nearly 700,000 Americans dosed themselves with heroin. It is thought this is a result of the higher cost of prescription opiates (and other drugs) that are abused by as many as 11 million Americans annually!7

Many currently illegal drugs, such as marijuana, opium, coca, magic mushrooms and psychedelics have been used for thousands of years for both medical and spiritual purposes, but our legislation at worst treats users as criminals. Legal mind-altering drugs, like tobacco and alcohol result in massive strains on the health of individuals misusing them and on medical services, and alcohol can be implicated in much criminal activity and harm to others.

Religion & Intoxicants

In strict Muslim societies the use of intoxicants is totally unacceptable, whether alcohol or mind-altering drugs (like cannabis or hashish). These are said to be the “most terrible of all major sins”! An example of the teachings is that which Sheikh Taymiyyah wrote of Hashish8:

  1. “From a religious point of view it is as intoxicating as wine, it destroys the mind, causes forgetfulness, causes to reveal secrets, destroys shame, incubates dissimation, quells self respects, obliterates intelligence, prevents salaah and instigates towards Haraam, forbidden things.”
  2. “From a physical aspect it deteriorates the mind, cuts off the means for offspring, brings about leprosy, sickness, feverish shivers, bad breath, loss of eyebrows and teeth, warming of blood, tuberculosis, damages intestines, destroys body organs, punctures the liver, burns the stomach and weakens eyesight amongst other things.”

Intoxicating substances in strict Muslim societies are therefore forbidden, for they demean the dignity of the human, rather than taking into account the impact on others. Though the prohibition of illegal drugs was established under Islamic law, particularly against the use of hashish as a recreational drug, classical jurists of medieval Islamic jurisprudence accepted the use of hashish for medicinal and therapeutic purposes, and agreed that its “medical use, even if it leads to mental derangement, should remain exempt [from punishment]”. In the 14th century, the Islamic scholar Az-Zarkashi spoke of “the permissibility of its use for medical purposes if it is established that it is beneficial.”9

Judaism values life above all else. The recognition of harm done by tobacco has led to censure of those using it, even though many strict adherents to Jewish thought and philosophy still do so through a smog of tobacco. Some rabbis insist that the requirement to protect life at all cost means that smoking is a sin. Alcohol remains an acceptable part of Judaism, used in many rituals as it is in Christian worship. Indeed, the psalms refer to wine as something that “gladdens human hearts” – “wine that maketh glad the heart of man, making the face brighter than oil” (Psalm 104:15) and complete abstinence has been regarded within Jewish literature as turning away from civilisation (Jeremiah, 35). Its toleration, however, is not a toleration of drunkenness – for biblical writings warn that drunkenness brings poverty, woes, quarrels, wounds, strange visions, etc. (Prov. 20:1; 21:17; 23:19–21:29–35; 31:4–5).

Christianity initially held that both the Bible and Christian tradition taught that alcohol is a gift from God that makes life more joyous, but that over-indulgence leading to drunkenness is sinful or at least a vice. Medieval monks were well known as brewers and vintners and were allotted about five litres of beer per day, and were allowed to drink beer (but not wine) during fasts.10

In Western societies many drugs are seen as dangerous and their use intolerable. Indeed, some of the drugs that have been banned may have medicinal use but in much of the world either cannot be prescribed or their use is heavily proscribed due to the possibility of misuse. Other ‘drugs’ that may have more harmful effects are accepted as not only normal, but individuals who choose not to partake are often hounded or treated with scorn. There are many double standards – cannabis is used by millions world-wide (The Economist estimates that more than 3 million US residents use it annually)11.

How may we address the rights & responsibilities of citizens as individuals & their rights as part of a society? Should society step in & require individuals to accept norms regardless of their own beliefs?

The Charter of Fundamental Rights of the European Union12 provides a basis for an ethical perception of our lives in the modern world. It places human dignity, freedom, equality and solidarity as fundamental principles, and recognises the concepts of democracy and the rule of law as the mechanism for ensuring that these principles are implemented.

The Universal Declaration of Human Rights13, only agreed after the end of the Second World War, states: “recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world”. The first Article provides: “All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood.” Article 12 of the Declaration provides: “No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks.”

Dignity is a concept that is used glibly. It is used in many different ways, from a concept of human worth to protecting the rights of those unable for many reasons to protect themselves. It includes a concept of respect and seems to provide a measure of human worth or status. It is easier to define that which impacts on human dignity than to identify all that the concept includes – torture, humiliation, dehumanisation, degradation and instrumentalisation all conflict with this concept. If humans have dignity, then they need to be treated with respect. Human dignity is related to human agency, the ability of humans to choose their own actions but to act responsibly.

Autonomy arises from the concept of dignity as the capacity of a rational individual to make informed, un-coerced decisions. We also speak about autonomy glibly, providing a mechanism for individuals to look after themselves without interference from an overbearing state – arguing that we can do as we wish to ourselves as long as it does not interfere with the rights of others to do exactly the same.

This autonomy is a powerful argument for the rights of individuals, but how far can it be allowed to impact on the lives of citizens? We are able to smoke cigarettes and drink as much alcohol as we can tolerate in most non-Muslim countries, but are not permitted to commit suicide in many countries. Indeed, suicide has traditionally been a crime. Attempting suicide in India, for example, is a crime which could lead to a sentence of a year’s imprisonment. Millions take prescription drugs and millions die from the misuse of such drugs, but drugs that alter the perception of reality are criminalised and disallowed in most countries. How do we justify the involvement of the State in deciding which mind-altering or mood-altering chemicals we may use and the manner in which we choose to express our individuality within the overall governance within which we live?

Many countries have attempted to introduce laws restricting the use of alcohol, but it became clear in most cases that this was counterproductive as illegality and criminality increased. These included: the United States (1920–1933), Finland (1919–1932), Norway (1916–1927), Canada (1901–1948), Iceland (1915–1922) and the Russian Empire/USSR (1914–1925).

Towards the end of the twentieth century the use of punitive taxes and public information strategies desperately tried to reduce the use of tobacco and sometimes alcohol without criminalising their use, except in most circumstances their use in public spaces where use could impact on others has been banned or criminalised. One only has to think of policies today regarding the cultivation of cannabis for personal use in Belgium or the Netherlands, or the EU’s blanket sale ban, but not usage ban, of snus oral pouch tobacco outside Sweden.

Bans have historically failed

In the United States, there are many who argue that the power of the Government is far too great, and the role of the State in governing people’s lives should be restrained and reduced. Yet, it was in the United States that the prohibition movement gained a powerful foothold at the beginning of the twentieth century, leading to the constitutional amendment that made illegal the production, transport and sale of alcohol. This constitutional change meant that alcohol was difficult to obtain anywhere in the United States between 1920 and 1933 (although possession and consumption were not themselves offences). At the time alcohol was ‘illegal’ but cannabis was not! Laws ‘banning’ opiate drugs were initiated in the United States in 1906 under the food and drugs act, which required labelling of foods that contained dangerous substances – alcohol, morphine, opium and cannabis were included in the list of dangerous drugs. Their use was not illegal, but products containing them had to be labelled (use did not have to be safe, merely labelled so that individuals had a choice).

The International Opium Convention (1912) called for the following: “The contracting Powers shall use their best endeavours to control, or to cause to be controlled, all persons manufacturing, importing, selling, distributing, and exporting morphine, cocaine, and their respective salts, as well as the buildings in which these persons carry such an industry or trade.” This Convention was incorporated into the treaty of Versailles, ending the First World War. Nevertheless, an editorial in the Illinois Medical Journal for June 1926, after eleven years of federal law enforcement, concluded:

“The Harrison Narcotic Law should never have been placed upon the Statute books of the United States. It is to be granted that the well-meaning blunderers who put it there had in mind only the idea of making it impossible for addicts to secure their supply of “dope” and to prevent unprincipled people from making fortunes, and fattening upon the infirmities of their fellow men. As is the case with most prohibitive laws, however, this one fell far short of the mark. So far, in fact, that instead of stopping the traffic, those who deal in dope now make double their money from the poor unfortunates upon whom they prey. . . .”

The ‘cultural revolution’ of the 1960s brought the problem of mind-altering drugs into the realm of politics. Drugs were becoming a tool to show dissent to the status-quo, and were a means of showing political dissent. Many of those drafted to Vietnam returned having developed a drug habit that concerned many in the political establishment.

In June 1971, President Nixon in the United States declared a “war on drugs”, the effects of which have been far-reaching and which my Co-Chair, Professor Kazatchkine, deals with subsequently. Nixon dramatically increased the size and presence of federal drug control agencies, and pushed through measures such as mandatory sentencing and no-knock warrants. Nixon temporarily placed marijuana in Schedule One, the most restrictive category of drugs, pending review by a commission he appointed led by Republican Pennsylvania Governor Raymond Shafer.

In 1972, the commission unanimously recommended decriminalising the possession and distribution of marijuana for personal use. Nixon ignored the report and rejected its recommendations. When Reagan took office, the number of people behind bars for nonviolent drug law offenses increased from 50,000 in 1980 to over 400,000 by 1997.

What exists, therefore, is a system which penalises those who use some drugs deemed by politicians as detrimental to society in a manner which is both inconsistent and which has increased criminality both by drug uses desperate to ‘get their next fix’ and by those running the illegal business of supply. This criminality is evident in Mexico which has succumbed to virtual anarchy in attempts to control the supply of drugs.

Those using illegal drugs include the young rebelling against a perceived unjust society, the socially inadequate who feel they need to escape from reality and even those whose lifestyles are so stressful that an escape is a way to express themselves away from their normal everyday existence.

The UK Commission, which looks only at illegal drug use, suggests that we need to look at “how society and government can enable and support individuals to behave responsibly. This means tackling underlying causes of drug use, providing the information and skills necessary for people to make sensible choices about drug use, and ensuring that where drug use does occur, it is undertaken in a way that minimises the harm to the user and others.”

The Drug Policy Commission in the UK (2012) states that:
“Drug policy is currently a mix of cautious politics and limited evidence and analysis. This is coupled with strident and contested interpretations, both of the causes of problems and the effects of policies. In fact, for as long as there has been a drug policy, there have been gaps in the evidence as well as uncertainty about how to understand and act on the evidence that we do have."

They further state that “What we mean by ‘responsible behaviour’ is that an individual should seek to behave in ways that allow them to achieve their potential and contribute positively to their families and communities and also to avoid incurring harm to other people in general. Behaving responsibly and limiting harm and damage to oneself and others are two sides of the same coin.”

Getting the intervention balance right

My personal conviction is that society both professes intolerance for the use of ‘drugs’ and provides the social settings to enable and make legitimate their use.

It is abundantly clear that the “war on drugs” has failed. There is a need for a rational policy that addresses the rights of the individual, the needs of society to assure that we respect each other without imposing the views of some on the rights of all.

Policies on drugs cannot simply allow a free-for-all. We already restrict use of tobacco and alcohol. There is a need for a rational approach, addressing the needs of many to opt out, for a short time, from the realities around them (on condition that harm to others is not done), and assuring that addiction is properly addressed within a health service rather than through the criminal law.

International efforts should be directed towards developing a kind of framework that would control the “supply of all psychoactive substances, including alcohol, tobacco and solvents, as well as other drugs that are used for cognitive, appearance or performance enhancement …This would provide an opportunity to remove anomalies that have grown up over the years.”

The free-for-all of the 19th and early 20th century, in which individuals like Sigmund Freud and Arthur Conan-Doyle were allowed to overdose on drugs like cocaine is long over. Conan-Doyle wrote of Sherlock Homes as “alternating from week to week between cocaine and ambition, the drowsiness of the drug, and the fierce energy of his own keen nature”. Recognition of the harm done by drugs, and the need of so many for these drugs is long overdue. Rationality in our approach to all mood and mind altering drugs is needed. The Illinois Medical Journal got it right – “those who deal in dope now make double their money from the poor unfortunates upon whom they prey. . . .”

Scientists and ethicists must step in and inform those who make policy of the harm being done to all concepts of law when those who are governed hold it so much in contempt. Addictions: Regulating Risk will be the theme of our 2015 High-Level Consultation Event when we hope to unite some of the best minds around to address this ongoing challenge.


REFERENCES IN THIS ARTICLE
7) The Economist (2014) “Why heroin has made a comeback in America” 23/11/2014
8) http://www.inter-islam.org/Prohibitions/drugs.htm
9) http://tinyurl.com/o4h3kx2
10) Kevin Lynch (September 20 – October 3, 2006). “Sin & Tonic: Making beer, wine, and spirits is not the Devil’s work”. The Wave Magazine 6 (19).
11) http://tinyurl.com/c5l5mrp
12) Charter of Fundamental Rights of the European Union: http://tinyurl.com/nkndkap
13) The Universal Declaration of Human Rights: http://tinyurl.com/cgnkmq
14) http://tinyurl.com/c5l5mrp
15) Recommendations in http://tinyurl.com/c5l5mrp
16) Scanda1,1,2 as quoted in http://tinyurl.com/pautxcs