Libertarians hear a lot about pragmatism and the pitfalls of being an ideologue. While conservatives love to poke fun at libertarians' preoccupation with the War in Drugs by suggesting we just want to get high, some of us have never even smoked marijuana. (Yes, it is true.) The argument from pragmatists is just to do "what works." But to know "what works" we need to "experiment." But what happens when your experiment fails miserably? Will it ever be undone? If not, is pragmatic social experimentation a truly practical approach towards social policy?

I have been repeatedly forthright in my cautions to libertarians about the limits of first principles. But first principles that have evolved over time in response to experience--and theorizing about that experience--have an important role to play in avoiding costly "social experimentation" before it is implemented. I fear we are about to be given a new crash course on the perils of pragmatism and "what works" in a variety of policy areas. But the failure of the War on Drugs highlights the importance of first principles in avoiding disastrous social experimentation than cannot easily, if ever, be declared a failure by the political establishment.

In 1987, my article "Curing the Drug Law Addiction: The Hidden Side-Effects of Legal Prohibition" was published in the book Dealing With Drugs. (It is slated to be republished in the Utah Law Review this year.) There I explained why first principles make it perfectly predictable THAT drug prohibition will fail and WHY drug prohibition will fail, along with the steep price that will be paid for this failure in terms of (a) harms to drug users themselves about whose welfare prohibitionists profess to be concerned, (b) harms to nondrug users who pay a steep price for prohibition along with drug users, and (c) harms to law enforcement and the legal system that stem from corruption and the weakening of civil liberties that inevitably accompany the enforcement of consensual possessory "crimes."

So who are the practical ones? The "ideologues" whose views are guided by first principles, or the "pragmatists" whose views are guided by "practicalities"? Here is how my article begins (only partially tongue in cheek):

Some drugs make people feel good. That is why some people use them. Some of these drugs are alleged to have side effects so destructive that many advise against their use. The same may be said about statutes that attempt to prohibit the manufacture, sale, and use of drugs. Using statutes in this way makes some people feel good because they think they are "doing something" about what they believe to be a serious social problem. Others who support these laws are not so altruistically motivated. Employees of law enforcement bureaus and academics who receive government grants to study drug use, for example, may gain financially from drug prohibition. But as with using drugs, using drug laws can have moral and practical side-effects so destructive that they argue against ever using legal institutions in this manner.

One might even say--and not altogether metaphorically--that some people become psychologically or economically addicted to drug laws.

[Footnote: For those who would object to my use of the word addiction here because drug laws cause no physiological dependence, it should be pointed out that, for example, the Illinois statute specifying the criteria to be used to pass upon the legality of a drug nowhere requires that a drug be physiologically addictive. The tendency to induce physiological dependence is just one factor to be used to assess the legality of a drug. Drugs with an accepted medical use may be controlled if they have a potential for abuse, and abuse will lead to "psychological or physiological dependence" Illinois Revised Statutes, ch. 56/2, § 1205 (emphasis added). Thus, applying the same standard to drug-law users as they apply to drug users permits us to characterize them as addicts if they are psychologically "dependent" on such laws.]

That is, some people continue to support these statutes despite the massive and unavoidable ill-effects that result. The psychologically addicted ignore these harms so that they can attain the "good"--their "high"--they perceive that drug laws produce. Other drug-law users ignore the costs of prohibition because of their "economic dependence" on drug laws; these people profit financially from drug laws and are unwilling to undergo the economic "withdrawal" that would be caused by their repeal.

Both kinds of drug-law addicts may "deny" their addiction by asserting that the side effects are not really so terrible or that they can be kept "under control." The economically dependent drug-law users may also deny their addiction by asserting that (1) noble motivations, rather than economic gain, lead them to support these statutes; (2) they are not unwilling to withstand the painful financial readjustment that ending prohibition would force them to undergo; and (3) they can "quit" their support any time they want to (provided, of course, that they are rationally convinced of its wrongness).

Their denials notwithstanding, both kinds of addicts are detectable by their adamant resistance to rational persuasion. While they eagerly await and devour any new evidence of the destructiveness of drug use, they are almost completely uninterested in any practical or theoretical knowledge of the ill effects of illegalizing such conduct.

Yet in a free society governed by democratic principles, these addicts cannot be compelled to give up their desire to control the consumption patterns of others. Nor can they be forced to support legalization in spite of their desires. In a democratic system, they may voice and vote their opinions about such matters no matter how destructive the consequences of their desires are to themselves, or more importantly--to others. Only rational persuasion may be employed to wean them from this habit. As part of this process of persuasion, drug-law addicts must be exposed to the destruction their addiction wreaks on drug users, law enforcement, and on the general public. They must be made to understand the inherent limits of using law to accomplish social objectives.

If you are interested in the principled reasons for these adverse social consequences, you can read the whole the article here. I expanded on this analysis in the Yale Law Review in my 1994 review essay Bad Trip: Drug Prohibition and the Weakness of Public Policy & in my 1984 review essay in Criminal Justice Ethics: Public Decisions and Private Rights. In each of these pieces, I examine the role that properly-defined individual rights should play in crafting social policy.

So can we finally get practical about drugs? And can we finally admit that principles have a role to play in avoiding the costs of bad social policy before it is adopted? And can we maybe admit that libertarians are trying in good faith to be practical when they offer their analysis of proposals for social experimentation, even when they are talking about drugs--or "bail outs"?