Comparative Law: Prohibitionism and Alternatives

Control over psychoactive substances normally pursues the dual purpose of reaping their benefits while avoiding their disadvantages. Consequently, the intensity of control varies with the assessment of the drugs' potential benefits on the one hand and of their dangers on the other.

(Type 1) Drugs classified as (very) dangerous with (practically) no potential benefits at all are often altogether outlawed. Such a total prohibition regime does not allow anybody to produce, market, distribute, sell, buy or even possess the drugs in question. In such a regime, the law does not provide for routinely granted exceptions or authorizations. Ideally, such a system should function perfectly. It follows the formal logic that you can only take a drug when there is a drug - and even the most dangerous drug cannot do you any harm as long as it can be kept out of your world. But again: for a prohibition regime to be total in this sense it is important that there is no structured avenue for medical personnel or other authorities to request and to be granted permissions to make use of those drugs for pre-determined legitimate purposes like health or science. In a legal scheme where such workarounds do exist the prohibition cannot be called total.

(Type 2) A second group of drugs is considered too useful to be completely outlawed, but at the same time too dangerous to be accessible for the general public. In this case the drug will often be subjected to a general prohibition with a so-called reservation of permission. Only qualified social actors are allowed to request permission. Such a request will be bureaucratically processed, examined, and - when all the conditions are met - granted, thus turning an otherwise illegal activity like the purchase or administration of drugs into a legally protected one. This kind of legal scheme is a prohibition that targets the general population, but exempts certain actors and objectives of drug use. Often, such exemptions are being provided for religious, therapeutic, scientific, and maybe military purposes. We may refer to such a legal scheme as a general prohibition, because it (only) states a general principle applicable in the general public, but allows for status-related and purpose-related exceptions from the rule. Legally, one can characterize such a general prohibition as a ban with permit reservation or prohibition with the reservation of permission, since the law itself defines the conditions under which certain people may request and be granted authorizations for specific purposes.

(Type 3) A third group of drugs is allowed to escape prohibition and to enjoy the general freedom of the market. In contemporary societies, the traditional products of the tea plant and the coffee tree have this status. Their production and commerce are free, albeit regulated through a whole net of rules pertaining to food safety, consumer protection, and the like. Such a regulatory system acknowledges the right of producers, dealers, buyers and sellers alike. In many countries, items such as cigarettes, beer, wine, and spirits are subject to such a regulatory system based on a general permission of production, commerce, purchase and possession, but often garnished with a surprising number of item-specific rules to be followed. Still, the principle is that of general availability - putting those everyday drugs into the same legal basket as other common goods including foodstuffs and luxury items.

All regulatory systems have on trait in common, and that is that they allow legal access to drugs as a rule, and not only as an exception for specific situations or professions. In a regulatory system, permission is the rule, and barring access is the exception (e.g. under-age or disenfranchised customers). To adopt a regulatory system is not the same as endorsing the consumption of the respective drugs. As a matter of fact, a drug control regime may be permissive, but at the same time the authorities may have a highly critical attitude towards drug use. Many regulatory systems seek to dissuade citizens from tobacco or from alcohol use by means of information, taxation, or restrictions on the number of places where those drugs can be bought or consumed. Furthermore, different drugs within a regulatory scheme may be subjected to a fine-tuned scale of slightly differing restrictions. As long as those restrictions do not touch the principle - i.e. access as the rule and non-access as the exception - they are correctly classified as belonging to a regulatory, not a prohibitive, system.

It is difficult to say which kind of control is the "normal" or the "best" one. History contains examples for a wide variety of normative orders concerning drugs. nicht immer law. selten total verboten, aber manchmal wohl schon. meistens teil-prohibition. selten ganz freie availability. in modern times: in manchen ländern kein subjektives recht. in anderen schon. dort eigentlich recht des individuums.

empirisch. das system der general prohibition with alcohol and drugs. planwirtschaft. funktioniert, aber nur intern. externalisierung von problemen. unintended consequences.

alternativen. evaluationen.

ch the legal regime turns the exception into the rule and the rule into an exception. General permission is replaced by general prohibition, and the reservation of prohibition (typical for regulatory systems) is turned into a reservation of permission. This reversal is designed to prevent harm by keeping the drugs in question away from most people while at the same time guaranteeing their availability in specific situations. A case in point is the prohibition of certain drugs for the general public, but the authorization of their use by medical doctors for specific treatments. Under such a Only for them and for the defined purposes, the otherwise prohibited behaviour becomes permitted.

Drugs seen as both dangerous and potentially beneficial (e.g. for medical purposes) are often put under a legal regime of prohibition with the reservation of permission. Drugs assessed as harmless and potentially beneficial (e.g. as household remedies or recreation) will often enjoy the same legal treatment as the bulk of foodstuffs and/or freely traded luxury items. Assessments are not static: as a matter of fact they do vary considerably over time and space, according to a variety of socio-cultural, socio-economic, and socio-political influences. Consequently, the social and legal status of a given drug can change dramatically over the centuries and between cultures.

Basically, there are three levels of legal restrictions on psychoactive substances, ranging from permissive regulation all the way to total prohibition.

The most widely known case of such a general prohibition with the reservation of permission was the U.S. alcohol prohibition. Introduced in 1919 by way of a constitutional amendment to the U.S. Constitution, it went into effect on 16 January 1920 and lasted until the repeal of this amendment on 5 december 1933.

This alcohol prohibition was general, because it decreed that "the manufacture, sale, or transportation of intoxicating liquors (...) for beverage purposes is hereby prohibited". But the prohibition legislation (the Volstead Act) also used a reservation of permission, allowing both the religious use of wine and the prescription of alcohol (including whisky) for medical treatment purposes.

(Of course, both the concept of harm/harmlessness and use/usefulness are to be thought of in matters of degree only - and things are complicated by the fact that there may be different assessments and evaluations of both risk and usefulness depending on status, function, perspective, and culture of their authors. At this point, though, we shall only deal with the basic structure of legal restrictions as such, and return to the aforementioned complexities later.)

In early times this was done by way of customs, habits, rituals and belief. Such social control was informal, but effective. People of the South American Andes were customary users of the coca leaf (the most potent alkaloid of which is cocaine). They used those leaves for thousands of years. They never developed any syndromes that Western societies nowadays associate with cocaine or crack cocaine. The same holds true for opium. While the juice of the white poppy had been widely used since antiquity for both medical and recreational purposes, and while the old literature deals extensively with opium health risks, nothing in those ancient sources indicates that there was such a thing as addiction. Just like the master of ceremonies in ancient Athens - the symposiarch - prevented drinking parties from spiralling out of control by determining the proportion of parts of wine to water (and even the number of cups to be drunk), similar authorities seem to have exercised sufficient control over both the medicinal and the recreational opium use in order to prevent disasters. The most astonishing fact about Babylonian and Assyrian cuneiform scripts, Egyptian papyri, Greek and Roman treatieses, and even the elaborate writings of medieval physicians, is the absence of any reference to phenomena that today would be interpreted as signs of addiction. As it seems, addiction did not exist and laws did not play a significant role in preventing addiction from existing or spreading. Nevertheless, the social controls that were in place seemed to work remarkably well. Not flawlessly, of course, but good enough for late 20th century scholars to rediscover the merits of non-legal rules and regulations when it comes to the question of controlled substance use (Zinberg & Harding 1977).

Law became more important to the degree that power was centralized, informal controls became less effective, economic domination more aggressive, and socio-cultural conflict more obsessive. The confluence of those factors first manifested its penchant for legal instruments in the great European drug crisis between the 16th and 18th centuries. In terms of political controversy, this century-long battle displayed some striking similarities to the present-day war on drugs - even though it then only concerned excessive drinking and - noteworthy - the new and foreign drugs called tobacco and coffee (Austin 1982, Coffey 1982).

There were two types of legislation against this drug crisis: a regulatory and a prohibitive one. Both were tried and none was evaluated scientifically during those days. ... gin ... Those were the archetypes of anti-drug legislation that were to determine the course of history until this very day. The regulatory model on the one and the prohibitive model on the other hand. Regulation means modifying what is - with the aim of mitigating problems by altering framework conditions such as age limits, advertisement rules, taxation, license conditions and so on. The essential element is that the practice of selling and purchasing a product is not touched. Commerce remains legitimate and legal. What the purchaser does with his drug is no matter of government, but of the individual's responsibility, maturity, and social environment.

taxes, licensing, and , alleviating hardships, and returning to some kind of normality. . Prohibition means at can be named regulatory and prohibitive. Regulation means acceptance of the status quo and the attempt to modify and improve the existing condition with a view on mitigating damage and normalizing a situation that has gotten out of control. Regulation means regaining control over a situation that has gotten out of hand without denying reality (and citizens' rights to live it the way they choose to). Prohibition, on the other hand, means to eliminate an evil on the one and prohibitive on the other hand. called the regulatory and the prohibitionist. of lshowed two very relevant forms that should shape the future until this very day. Some of the responses were regulatory, i.e. modifiying an existing condition in order to mitigate damages and to normalize a situation that had gotten out of control, while others were prohibitive, i.e. aiming at tackling the problem by its roots and trying to eliminate it once and for all.

The prohibitive Once stable drinking customs fell into disarray in 16th century Germany; Britain experienced its terrible Gin Craze in the 18th century; the 17th century was one great battle against the new and foreign drugs called tobacco and coffee - and in spite of the English King James I intervening in person with a pamphlet called A Counterblaste to Tobacco, this war was not won. In the same era, Ottoman Sultan Murad IV - though a habitual drinker himself - became famous not only for banning alcohol (and coffee), but also for his unforgiving fight against tobacco. Even though he was said to take delight in again and again beheading offenders with his own hands (Davis 1922: 259), his policy did not enjoy lasting success. His ultimate defeat was not so much due to his lack of effort, of course, but rather to his doctrinal faith that severity of punishment was somehow also a guarantee for its efficiency.

with the aim of eliminating it once and for all. If sociologists of law had observed legislation during this period, they would have discerned two basic types in the legal response to this problem. They might have termed the first one the regulatory model and the second one the prohibitionist model. Regulation is basically soft, but often also smart in nature. It does not forbid, it does not escalate the legal threat. It just tries to modify an already existing reality by simply introducing some conditions on production, sale, and purchase. of the item in question - thus hoping to alleviate the hardships resulting from abuse, but not forbidding the consumption of the drug itself. Already during those past centuries, the legal response to drug crises displayed two basic forms which can be termed the regulatory and the prohibitionist one. Either the drugs in question were completely forbidden (prohibition) or they were legal, but put under some sort of special conditions so that socially undesired negative effects would be minimized, if not completely avoided.

fundamentally different The devastating Gin Epidemic (or Gin Craze) that had wreaked havoc on London and other cities since the 1720s was only getting under control after the Gin Act of 1751 that dried out the illegal gin market by lowering annual licence fees on the one hand, but handing out licenses only to respectable persons on the other hand. Together with an increase of grain prices and other external factors, this early drug wave had mostly ended by 1757. Thirty years later, historian Lecky (1887: 521) used this episode as a good example of how laws can change the morale and behavior of a people to the better as long as they are neither untimely nor excessive in their demands and sanctions.

o as much good and as little damage as possible. For even if the law can never solve social problems by itself, it has a great potential of both good and bad effects If it fits, it can promote the well-being of individuals and societies, but if its structural coupling with reality fails, it can be equally effective in the other direction and make things go from bad to worse.

The basic divide is that between regulation and prohibition.

Prohibitionism

The control of dangerous drugs is today regarded as an international affair, with a series of international conventions defining the principles to be followed and the means to be employed. The twofold goal is to protect the world from the dangers of addiction and other drug-related harm, while at the same time guaranteeing sufficient drug supplies for medical and scientific purposes. Given the degree of turmoil in the 20th century, the very fact that such an international control system could be mounted, is a remarkable achievement in its own right. Roughly speaking, the emergence of the current system can be divided into three historic stages. As William B. McAllister (2012:10) put it: "The first widely-applicable international drug control strictures were negotiated 100 years ago. A functional bureaucratic and treaty structure has been in place for 80 years. The modern configuration of drug control conventions, international organisations, and oversight bodies attained its current shape 40 years ago." Today, more countries than ever have formally declared their adherence to the worldwide drug control system and its three legal pillars - the 1961 Single Convention, the 1972 Convention on Psychotropic Drugs, and the 1988 Vienna Convention. As of November 2016, the respective numbers are 185, 183, and 189 out of the total of 193 member states of the United Nations. On the other hand, the prohibitionist principle enshrined in each of these binding texts has come under attack from two sides. For one thing, the HIV/AIDS epidemic at the end of the 20th century made quite a few countries realize that harm reduction sometimes needed a more pragmatic approach than strict prohibitionism could provide. Secondly, the spread of cannabis use and its social "normalization" among Western societies led to an array of alternative control models that obey a regulatory rather than a prohibitionist logic. Together with the rising costs of drug policy due to its unintended consequences in various public policy fields such as law enforcement (corruption), corrections (overcrowding), human rights (extralegal executions), and others, the old prohibitionist consensus has come under strain, and the need to evaluate both the old and the new approaches has become imperative.

Bibliography

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• Command and control regulation, in: en.wikipedia

• Davis, William (1922). A Short History of the Near East. From the Founding of Constantinople (330 A.D. to 1922). New York: The Macmillan Company.

• DPA Marijuana Legalization and Regulation

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• Governing the Global Drug Wars (2012) IDEAS, October 2012. Guest Editor John Collins. London: LSE

• Lecky, W.E.H. (1887) A History of England in the Eighteenth Century. London.

• Schadewaldt, H. (1971) Medizinhistorische Betrachtungen zum Rauschgiftproblem. Ärztliche Praxis XXIII, Jg. 88, 3591-3593.

• Zinberg, N.E., Harding, W.M., and Winkeller, M. (1977) A Study of Social Regulatory Mechanisms in Controlled Illicit Drug Users. In: Journal of Drug Issues 7: 117-133.