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Sex, Drugs, Death and the Law

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(This review of mine appeared in NOMOS magazine in autumn 1984.)

Sex, Drugs, Death, and the Law  -- David A. J. Richards (1982)

Sex, Drugs, Death and the Law sets out a general theory of human rights and proper criminalization. The theory is rooted in the moral ideas of Locke, Rousseau, and Kant, and is expressed in the form these ideas have taken in the contemporary philosophies of John Rawls and Alan Gewirth. Appealing to the general theory and to an enormous body of literature in law, history, psychology, and social science, Richards presents detailed arguments for decriminalization in four areas of the criminal law in America: consensual homosexuality, commercial sex, drug use, and self-willed death.

Advocates of decriminalization in these areas typically rely on arguments deploring the inefficient use of valuable and scarce police resources in the enforcement of these laws. Richards contends that such arguments simply “proselytize the already converted and do not seriously challenge the justifications that defenders of criminalization traditionally offer” (5). Indeed, utilitarian arguments for decriminalization must smuggle in counter-utilitarian values, for it is easily seen that the satisfaction of a majority in their way of life may be appreciably increased by the criminalization of conflicting ways of life.

In constitutional theory, as in moral theory, Richards sets aside both utilitarianism and skepticism. “Neither moral view can be squared with the rights thesis as it underlies American constitutional law” (31). The constitutional guarantees of the Bill of Rights and the Fourteenth Amendment protect affirmative moral rights: freedom of speech, press, religion, and association; impartial administration of civil and criminal law in defense of property and person; the right to vote and participate in political affairs; freedom of physical, economic, and social movement.

The underlying moral values which give sense to the constitutional design are truly fundamental, and they place substantial moral constraints on the content of the criminal law. The primacy of the free exercise and establishment of religion clauses ultimately implies that “only those principles may be legally enforced which express the values of equal concern and respect for autonomous self-definition in terms of the many permissible visions of the good life compatible with these values” (49).

Sex

The sexual autonomy of the individual has received some protection against the state in America through the recognition, beginning in 1965, of a constitutional right to privacy. On the basis of this right the the Supreme Court invalidated prohibitions of contraceptives (used by married or unmarried couples), pornography in the home (autoeroticism), and abortion. However, in 1976* a more reactionary Court denied homosexuals any constitutional protection against anti-homosexual criminal statutes. To further encourage the repressive elements in our society, some justices are today doing all they can to wrench the constitutional right of privacy from the individual by twisting it into the right of a collective—the (sufficiently regular) family.

The opponents of decriminalization often contend that steps toward the legitimization of homosexuality seriously undermine heterosexual marriage and family. This is an amazing underrating of the allure of the latter lifestyle. Consensual homosexuality has now been decriminalized by 21 state legislatures. In these states family life has continued as always, but the homosexual offspring of heterosexual relationships now have a little more opportunity to explore the world of love and make a life for themselves. [2003 update]

The consensual adult sexual activity most widely criminalized in America is prostitution. Richards gives thorough replies to the arguments from criminogenesis, nuisance, and venereal disease control which have been offered in support of criminalization. He realizes perfectly well, however, that “these arguments are, at best, post hoc empirical make-weights for justifications of a quite different order, namely moralistic and paternalistic arguments of a peculiarly American provenance” (94).

Prostitutes provide recreational sex as a commercial service. Naturally, the prostitute is emotionally alienated from the activity. The tradeoff of alienation for remuneration is, however, not peculiar to prostitution; it is a familiar feature of specialization and commerce per se. The transformations of the self entailed by such tradeoffs need not diminish the autonomy of the whole self; they may very well extend and deepen it. In the fullest sense, autonomy rests “on the person’s self-critical capacities to assess their present wants and lives, and to form and act on wants and projects, and to change them” (109). Paternalistic criminal sanctions against prostitution among consenting adults do not truly respect the value of individual autonomy, and are for that reason morally impermissible.

Drugs

The federal government controls use of drugs through the Comprehensive Drug Abuse Prevention and Control Act of 1970. States have modeled their comparable statues along the same lines. Drugs are graded into five schedules according to their potential for abuse. Marijuana is less hazardous than cigarettes, which are in turn less hazardous than distilled alcohol, but hazard is secondary; abuse is what really counts. That is why marijuana is rated Schedule I—greatest potential for abuse—even though alcohol, caffeine, and nicotine are all completely unregulated by the Act.*

Richards replies thoroughly to the arguments from criminogenesis and from ancillary physical illness and injury control which have been offered in defense of the current criminal prohibitions of many forms of drug use. However, the central concern of the drug prohibitionist—drug addiction—is actually of that “quite different order” so skillfully unmasked by Professor Richards.

The popular conception of drug addiction conflates at least four ideas: (1) tolerance (increasing threshold), (2) physical dependence (incidence of withdrawal symptoms), (3) “psychological centrality of the drug in one’s system of ends, and (4) a moral judgment of degradation (or, in contemporary terminology, drug abuse” (174). Tolerance and physical dependence are not inextricably linked to each other , and what is more, “neither psychological devotion nor abuse turns on tolerance or physical dependence in any direct way” (174).

The charge of drug abuse is at bottom a moral criticism of the psychological centrality of drugs in the life of the addict. A parallel criticism can be directed against an addiction to making money or even against religious devotion, the so-called opiate of the people. Nonetheless, persons have a right to self-definition at this profound level.

Beyond decriminalization, Richards outlines forms of permissible regulation for the various drugs. He is a liberal, somewhat shy of laissez faire.

Death

Self-willed termination of life is a feature of critical self-consciousness. In Richards’ view, the the preservation of life is for persons not so fundamental as the pursuit of their rational good—which may or may not mean continued life. There are some cases in which a person has a rational interest in dying: those cases, both within and outside the context of terminal illness, in which more rational meaning of the projects and aims composing the person’s life is found in the conclusion of that life rather than in its continuation. It is only the individual himself who may justly assess the meaning of life and death to him. To deprive individuals of the right to self-willed death is to deprive them of rational self-mastery and the meaning they may give their lives by ending them.

The immorality of a class of acts is a necessary condition of its just criminalization. Richards challenges the view that death self-willed on account of suffering or decline of personal competences is always morally wrong. A common psychiatric make-weight for such moral condemnation is the claim that suicide can only be the result of mental illness or neurosis. But the fact that “persons who face the same misfortune, for example, terminal cancer, have different responses—some contemplating suicide, others never doing so—does not show . . . that some uniform response must be rational. It only shows that persons have very different conceptions of their ends which may justify different judgments of rationality on similar facts” (V n186).

There are, of course, persons who attempt to end their lives in a mood of depression and quite outside the context of realistic deprivation. Such attempts are not clearly calculated to succeed and may be seen as ambivalent calls for help. The proper response to these cases is, in Richards’ view, the suicide prevention center rather than the criminal law. In the other cases, where the project of suicide is the expression of a critically evaluated rational life plan, we have no right to intervene. “The justice of our desires to control even those we love has limits” (242).

In many states suicide itself is no longer criminalized, but the over-broad criminal sanctions remain for aiding and abetting suicide. On the intricacies of the issues surrounding the law in this area, as in the three preceding areas, one can look to Richards’ work for an excellent guide to the literature. Included in his survey: the ethics of euthanasia and more general issues of killing and letting die; the constitutional privacy protection of the right to die; the issues of special concern for the Jehovah’s Witness, parent and child, and the medical profession*; and the legal provisions in many states for the “living will” to evidence refusal of extraordinary life support.

This book is comprehensive for each of its topics. It is as well the call of dispassionate reason for authentic respect of persons.

Edited by Boydstun
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