If you’re over the age of 21, you can drink alcohol basically as much as you like. Almost 180,000 people die each year from alcohol consumption in the US. You might argue that this is a good enough reason to dust off the 18th Amendment and ban alcohol entirely, but many people would disagree with you about that.
Undoubtedly, the counter-argument would invoke the freedom of an adult to drink alcohol if he or she so chooses. But doesn’t this argument apply equally well to cannabis? Why should the government impose restrictions on one but not the other, in the absence of risks to others?
Continuing our series of the Best Arguments for and Against Cannabis, we’re looking in-depth at the individual liberty arguments for legalizing weed.
Summary: Does Individual Liberty Justify Legalizing Cannabis?
Here is a brief run-down of the arguments for and against the legalization of cannabis on grounds of individual liberty:
Yes…
- Using cannabis in the privacy of your home doesn’t harm anybody else, and so on the basis of John Stuart Mill’s harm principle, it is no justification for curtailing someone’s freedom.
- Any risks to society that exist from cannabis use are not sufficient to justify breaking into someone’s home and violating their (“penumbral”) right to privacy. Alaska’s Supreme Court ruled on these lines in 1975.
- Society allows alcohol use on the grounds of individual liberty, despite risks to the users and some risks to society. Therefore, there is absolutely no reason to treat cannabis differently.
No…
- Cannabis use does harm society. It impacts users’ decision-making skills, memory and more, as well as making them more dangerous on the road and more prone to violence.
- Cannabis is addictive, and so users are not necessarily making a “free choice,” and this justifies intrusion by society.
- If individual liberty is a reason to legalize cannabis, why not LSD? Why not cocaine? Why not heroin?
The Basics: The Harm Principle and Socially Responsible Cannabis Use
The basic case for legalizing cannabis on the grounds of individual liberty is very simple. Using cannabis in the privacy of your own home does not harm others. While there are valid arguments against smoking cannabis in public, in private or with edibles, there is no risk to others. If there is no risk to others, people should be free to make whatever decision they feel is appropriate for themselves.
This fits right in with John Stuart Mill’s “harm principle.” This essentially states that people should be free to do what they like unless their actions cause harm to others. This is often summarized as “your freedom to swing your fist ends where my nose begins.”
So then if you use cannabis in a way which does not do harm to others, there is no moral basis for limiting that behavior. We already use this principle in several ways. We acknowledge that adults can freely choose to smoke cigarettes if they like, but ban indoor smoking because it poses risks to those who breathe in somebody else’s smoke.
Some use the example of an unsafe bridge in connecting Mill’s ideas to drug law debates. If someone is walking towards an unsafe bridge, where crossing exposes them to a risk of injury or death, we are justified in stopping them momentarily to inform them of the risks of crossing the bridge. However, if – knowing the risk – they choose to continue onwards, it is not morally right to stop them. They can choose to take the risk if they like.
This would suggest that while the government should educate the public about the risks of cannabis use, it is ultimately their bridge to cross if they still want to do so. However, Mill points out that if the bridge was always lethal, preventing someone from crossing “the bridge of certain death” is justified. Likewise, Mill would probably argue that banning an incredibly dangerous drug or doses in dangerous quantities is justified.
The Story of Alaska – Individual Liberty and Cannabis Legalization via State Constitution
These philosophical arguments are good for a more general debate about legalization as it relates to individual rights. But can it be turned into a more powerful, legal argument? This is exactly what happened in Alaska in 1975 with Ravin v. State.
Privacy is not explicitly recognized in the US constitution, but it is considered a right in the “penumbras” of the constitution. However, this has been expressed by the Supreme Court in Lawrence v. Texas, which ruled that a Texas statute outlawing homosexual acts in private places was unconstitutional, where the court stated:
Liberty protects the person from unwarranted government intrusions into a dwelling or other private places…. And there are other spheres of our lives and existence, outside the home, where the State should not be a dominant presence…. Liberty presumes an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct.
Continuing:
At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State ….The petitioners are entitled to respect for their private lives.
More explicitly, Justice Kennedy wrote, “The Texas statute furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual.”
All of these arguments seem like they could apply perfectly well to the case of cannabis, as an Indiana Law Journal article argues. Firstly, and most obviously, it is debatable whether there is a “legitimate state interest” in preventing someone from using cannabis in the privacy of their own home. It would be tough to argue that someone using cannabis in private has any impact whatsoever on society in general.
Eric Blumenson and Eva Nilsen, writing in the Indiana Law Journal, argue that Justice Kennedy’s opinion in Lawrence is that state paternalism is only justified in situations not related to individual autonomy and the essential attributes of personhood. In short, laws requiring you to wear a seatbelt in your car have no impact on the essential attributes of your personhood. However, laws dictating who you can have intimate relations with do. Likewise, if a law prevented you from speaking and thinking freely, this would interfere with the essential attributes of your personhood.
They then point to many accounts from cannabis users as to the reasons they use. They generally say it increases your sense of wonder at the world around you. It boosts creativity, self-awareness and spirituality, impacting the way you think about and perceive the world. They argue that – even if you don’t agree with these descriptions – this means banning cannabis does impact freedom of thought and the “right to define one’s own concept of existence.”
While these arguments haven’t led to change at the federal level, in Alaska in 1975, essentially the same arguments led to a substantial change. Alaska’s constitution explicitly recognizes the right to privacy, “The right of the people to privacy is recognized and shall not be infringed.”
In Ravin v. State, Irwin Ravin was arrested for possession of cannabis. But he argued that there was no “legitimate state interest” in prohibiting cannabis possession for personal use that would override his right to privacy. He also said that banning cannabis while allowing alcohol and tobacco denied him due process and equal protection of law.
The court ultimately agreed. It noted that because of the fundamental nature of the right to privacy in the home and given that there isn’t much reason to expect societal harm from someone possessing small amounts of cannabis in their home, there wasn’t sufficient justification for making it a criminal offense. An Alaska Law Review article from 1985 discusses this decision in relation to the right to privacy. In particular, it discusses a “sliding scale” test. This implies that more state interest justifies more intrusion into citizens’ private lives, while less state interest can only justify minimal intrusion.
In short, from a legal perspective, when there is a strong constitutional right to privacy, as in the case of Alaska’s constitution, there is a strong argument against criminalizing private cannabis possession.
Counter-Arguments: The Dangers of Cannabis Use to Society
All of the above arguments depend either explicitly or implicitly on the idea that cannabis use doesn’t impact society at large. However, some argue that this is not the case.
A comment piece published in the Lancet in 2022 collects many of these impacts on society. They discuss the most obvious potential impact, of second-hand smoke, but this can be easily mitigated as has been done with tobacco, and through vaping or edibles. However, the next most-commonly cited risk to society is people driving high. You’re more likely to be involved in a car accident if you’re high.
One systematic review of 29 papers looked at the legalization of medical and recreational cannabis and motor vehicle accidents. It found that legalizing cannabis has a negative impact on road safety overall. However, it’s important to note that only 15/29 studies found an effect of legalization on traffic accidents. 5 found no impact at all and 9 studies drew attention to many other risk factors beyond cannabis. In a nutshell, legalizing weed does have a negative impact on road safety, but this isn’t always the case.
The Lancet authors also point to a study that links cannabis use to violence. This is based on meta-analyses of studies on young adults, intimate partners and those with severe mental health disorders. The authors point out that there is a potential that liberalizing cannabis policy leads to increased use and would therefore create more violence, but that evidence is inconclusive on this point.
Other commentators (in a non-scientific context) have drawn attention to the fact that regular use of cannabis reduces memory, attention span, problem-solving skills and the ability to complete complex tasks. They ask “What possible use could these attributes have in a modern economy?”
Finally, there is an argument surrounding the addictiveness of cannabis. While the precise number is debatable, estimates range from 9% to 22% of users having some form of addiction to cannabis. Unfortunately there are too many specific factors to consider here – for example, the changing definitions of various terms like Cannabis Use Disorder (CUD) and which term is used to define “addiction” – but the key point is that cannabis is addictive.
Based on all of these points, you may argue that even “private” use of cannabis has wide-ranging impacts on society that do justify government intrusions into freedom and individual privacy.
The Drunken Elephant in the Room
It’s impossible to address this issue without briefly touching on alcohol. This doesn’t make the impact of cannabis irrelevant. But it does place an important benchmark for a legal substance that cannot be so easily ignored. It should go without saying that drinking alcohol and driving is incredibly dangerous to yourself and others in society. Likewise, alcohol clearly leads to violence (in about one-third of violent crimes and two-thirds of cases of intimate partner violence) and is also addictive (10.5% of all Americans aged 12 or over had an alcohol use disorder in the past year).
So while the counter-arguments listed above are still valid, many of them are equally (if not more) valid in the case of alcohol, which is legal and is not under consideration for prohibition.
Counter-Arguments: Why Stop With Cannabis?
If you accept the individual liberty and privacy arguments as reasons to legalize cannabis, critics may ask why stop with cannabis? Is LSD really dangerous to society? If someone uses cocaine in the privacy of their own home and doesn’t drive under the influence, is it really any different?
These might seem like cheap “gotcha” type points, but it’s not so simple. In the arguments depending on liberty, the argument is very hard to knock away. If someone snorts cocaine in their living room because they choose to do so, they certainly don’t violate the harm principle. While cocaine is more addictive than cannabis, it isn’t so different from the addictiveness of alcohol (in terms of cumulative probability of transitioning from use to dependence). So it isn’t like this is allowing someone to cross a “bridge of certain death.”
Legally, it’s possible that you can make stronger arguments in terms of “legitimate state interest,” but again this isn’t as clear-cut as you might think. For cocaine, you could argue that the increase in risky behaviors stemming from cocaine use makes it more of a problem for society than cannabis. But what about LSD? What about a drug like ketamine that’s more likely to glue you to the couch than have you roaming the streets causing problems for society?
To be clear, this isn’t to argue that we should legalize cocaine, LSD or ketamine, but to shine a light on some possible logical consequences of liberty or privacy based arguments for cannabis legalization.
Our Take on Individual Liberty and Cannabis Legalization
Society at large is not at risk from private cannabis use any more than it is from alcohol use. It’s arguably much less so. As with alcohol, there are risks of driving while intoxicated that we must take into account, legislate against and educate users about. But this fact does not mean that we shouldn’t allow responsible adults to use cannabis, in the same way we accept that some drunk-drivers don’t justify closing every bar and liquor store in the country.
So with the vast majority of cannabis use posing no threat to society, there is simply no reason to impose the preferences of others on users’ private lives. Much like homosexuality, it is nobody else’s business. There is no “legitimate state interest” and even if it isn’t a codified rule, we should accept the freedom of others to live their life however they please, provided it doesn’t harm others.
The trickiest issue is “why stop with cannabis?” For this, the merits would have to be discussed on a case-by-case basis, because in some cases (e.g. psychedelics) we can’t help but wonder: why stop indeed?
References
Blumenson, E. and Nilsen, E. (2010) Liberty Lost: The Moral Case for Marijuana Law Reform. Indiana Law Journal: 85(1), Article 7. Available at: https://www.repository.law.indiana.edu/ilj/vol85/iss1/7
About the source:
- Peer reviewed? No, but it is published in the Indiana Law Journal, a respected academic legal journal.
- Methodology: A look at the ethical and legal case for reforming cannabis law, discussing both the philosophical and legal justifications for such a move.
- Main results: The authors conclude that there is no moral justification for punishing cannabis use. Legal rulings such as Lawrence v. Texas establish a respect for individual privacy and freedom that cannot be respected by laws criminalizing cannabis use.
- Other notes: This is explicitly a one-sided look at the issue, setting out the case for marijuana law reform. However, they consider arguments both for and against the thesis.
Budney, A., Roffman, R., Stephens, R., & Walker, D. (2007). Marijuana Dependence and Its Treatment. Addiction Science & Clinical Practice, 4(1), 4–16. https://doi.org/10.1151/ascp07414
About the source:
- Peer reviewed? Yes, published in Addiction Science & Clinical Practice.
- Methodology: Narrative review of studies looking at cannabis dependence and treatment of people with cannabis dependence.
- Main results: Cannabis causes dependence, despite some confusion from the public. Cognitive behavioral therapy and motivational enhancement therapy are effective treatments. Around 9% of those who try cannabis develop dependence.
- Other notes: The authors discuss many other issues in this article. Those listed above are just the most relevant for this discussion.
Dellazizzo, L., Potvin, S., Athanassiou, M., & Dumais, A. (2020). Violence and Cannabis Use: A Focused Review of a Forgotten Aspect in the Era of Liberalizing Cannabis. Frontiers in Psychiatry, 11. https://doi.org/10.3389/fpsyt.2020.567887
About the source:
- Peer reviewed? Yes, published in Frontiers in Psychiatry.
- Methodology: Systematic review of meta-analyses of research into violence/aggression and cannabis. The team conducted their own meta-analyses for youths and individuals with severe mental disorders.
- Sample size: 4 meta-analyses were included in the review, 30 study arms (296,815 participants) were included in the meta-analysis for youths, and 12 final articles (3,873 participants) were included in the meta-analysis for people with severe mental disorders.
- Main results: Studies in youths, intimate partners and people with severe mental disorders have shown a “global moderate association between cannabis use and violence.”
- Other notes: The association for intimate partners was classed as “small to moderate,” in contrast to the overall “global” result claimed in the abstract. Additionally, the measurement of and definition of violence was not consistent across studies.
The Ethics Centre (2021) What is the harm principle? https://ethics.org.au/ethics-explainer-the-harm-principle/
About the source:
- Peer-reviewed? No, from the non-profit Ethics Centre, based in Australia.
- Main points/purpose: Summarizes John Stuart Mill’s harm principle for a general audience.
- Other notes: Used for an overview of the harm principle in philosophy, not as a source of evidence.
Fischer, B., Lindner, S. R., & Hall, W. (2022). Cannabis use and public health: time for a comprehensive harm-to-others framework. The Lancet Public Health, 7(10), Article e808-e809. https://doi.org/10.1016/s2468-2667(22)00205-5
About the source:
- Peer reviewed? The Lancet is peer-reviewed, however comment pieces such as this are generally not.
- Main points/purpose: Argues that the harms of cannabis to others need to be considered when devising policy, and outlines some avenues for such harms.
- Other notes: While the comment itself was not peer-reviewed, the evidence it cites has been peer-reviewed and the comment is based on these results.
González-Sala, F., Tortosa-Pérez, M., Peñaranda-Ortega, M., & Tortosa, F. (2023). Effects of Cannabis Legalization on Road Safety: A Literature Review. International Journal of Environmental Research and Public Health, 20(5), 4655. https://doi.org/10.3390/ijerph20054655
About the source:
- Peer reviewed? Yes, published in the International Journal of Environmental Research and Public Health.
- Methodology: A systematic review of papers addressing the relationship between cannabis legalization and traffic accidents.
- Sample size: 29 papers included in the review.
- Main results: 22 studies showed a negative effect of decriminalization or legalization of cannabis on road safety, with 7 showing no difference. The authors concluded that cannabis legalization has “negative effects” on road safety.
- Other notes: Some papers focused on recreational legalization while others focused on medicinal legalization only. Likewise, some studies included focused on hospitalizations while others looked at any road traffic accidents.
Gowin, J. L., May, A. C., Wittmann, M., Tapert, S. F., & Paulus, M. P. (2017). Doubling Down: Increased Risk-Taking Behavior Following a Loss by Individuals With Cocaine Use Disorder Is Associated With Striatal and Anterior Cingulate Dysfunction. Biological Psychiatry: Cognitive Neuroscience and Neuroimaging, 2(1), 94–103. https://doi.org/10.1016/j.bpsc.2016.02.002
About the source:
- Peer reviewed? Yes, published in Biological Psychiatry: Cognitive Neuroscience and Neuroimaging.
- Methodology: Comparison of people with cocaine use disorder and healthy controls completing the risky gains task, where participants choose between a small, guaranteed reward and a chance at a larger reward with a risk of losing money.
- Sample size: 29 people with cocaine use disorder and 40 controls.
- Main results: Overall risk-taking didn’t differ, but people with cocaine use disorder were more likely to choose the risky option following a loss. Authors conclude that people with cocaine use disorder are hyper-sensitive to loss and this leads to increased risk-taking behavior.
- Other notes: Unclear from this study whether the risk-taking behavior pre-dated the cocaine use or was caused by it, and the participants were taken from a Veterans Affairs hospital, and may not be representative of all users.
Greenfeld, L. (1998). Alcohol and Crime: An Analysis of National Data on the Prevalence of Alcohol Involvement in Crime. US Department of Justice. https://bjs.ojp.gov/content/pub/pdf/ac.pdf
About the source:
- Peer reviewed? No, a report prepared for the 1998 National Symposium on Alcohol Abuse and Crime.
- Methodology: An analysis of statistical data from federal agencies pertaining to alcohol abuse and crime.
- Main results: 35% of annual victimizations involved alcohol, including two-thirds of cases of intimate partner violence. Two-thirds of crimes involving alcohol are simple assaults.
- Other notes: This report is old but clearly shows the link between alcohol and violent crime through detailed statistical analysis.
John F. Grossbauer (1985) Alaska’s Right to Privacy Ten Years After Ravin v. State: Developing a Jurisprudence of Privacy, Alaska Law Review https://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=1200&context=alr
About the source:
- Peer reviewed? It is a scholarly legal publication but not a traditionally peer-reviewed journal.
- Methodology: An analysis of the Alaskan constitutional right to privacy, drawing on Supreme Court rulings and other cases to look at how privacy is handled in state law.
- Main results: Ravin v. State is a prominent example of how privacy holds great weight in the Alaskan legal system. It discusses a sliding scale approach used to balance acceptable levels of privacy infringement with the degree of legitimate state interest.
- Other notes: Used primarily for the background on Alaskan privacy law contrasted with federal standards. It also contains a lot of practical information about how judgments are reached in specific cases.
Leung, J., Chan, G. C. K., Hides, L., & Hall, W. D. (2020). What is the prevalence and risk of cannabis use disorders among people who use cannabis? a systematic review and meta-analysis. Addictive Behaviors, 109, 106479. https://doi.org/10.1016/j.addbeh.2020.106479
About the source:
- Peer reviewed? Yes, published in Addictive Behaviors.
- Methodology: Systematic review and meta-analysis of studies looking at the prevalence and risks of Cannabis Use Disorders (CUDs) among cannabis users.
- Sample size: 21 studies were included in the analysis.
- Main results: Among cannabis users, 22% have CUD, 13% meet criteria for cannabis abuse and 13% have cannabis dependence.
- Other notes: Definitions relevant to cannabis addiction were changed in the DSM-V. This study includes various definitions, with studies corresponding to each set of criteria analyzed separately.
Lopez-Quintero, C., Cobos, J. P. d. l., Hasin, D. S., Okuda, M., Wang, S., Grant, B. F., & Blanco, C. (2011). Probability and predictors of transition from first use to dependence on nicotine, alcohol, cannabis, and cocaine: Results of the National Epidemiologic Survey on Alcohol and Related Conditions (NESARC). Drug and Alcohol Dependence, 115(1-2), 120–130. https://doi.org/10.1016/j.drugalcdep.2010.11.004
About the source:
- Peer reviewed? Yes, published in Drug and Alcohol Dependence.
- Methodology: Analysis of nicotine, alcohol, cocaine and cannabis users who participated in both the first and second waves of the National Epidemiological Survey on Alcohol and Related Conditions, to determine the probability of transitioning from use to dependence.
- Sample size: 15,918 nicotine users, 28,907 alcohol users, 7,389 cannabis users and 2,259 cocaine users.
- Main results: The cumulative probability estimate for transitioning to dependence was 67.5% for nicotine users, 22.7% for alcohol, 20.9% for cocaine and 8.9% for cannabis.
- Other notes: The definitions of dependence used in this study were the DSM-IV criteria, not the DSM-V’s updated criteria including the specific Cannabis Use Disorder (CUD) classification (as in the more recent study from Leung et. al., 2020).
Wade Maki, University of North Carolina Greensboro (2005) Mill on Drug Use and Marijuana Consistency http://web.uncg.edu/dcl/courses/vicecrime/m6/part8.asp
About the source:
- Peer reviewed? No, a lesson from a philosophy course on Vice, Crime and American Law
- Main points/purpose: A discussion of American marijuana law in relation to John Stuart Mill’s philosophy. Also argues that there is no consistency in the differing approaches to marijuana and alcohol under US law.
- Other notes: Makes scientific claims about the risks of cannabis vs. alcohol without citations. However, these are generally accurate.
Alcohol Use Disorder (AUD) in the United States: Age Groups and Demographic Characteristics. (2024). National Institute on Alcohol Abuse and Alcoholism (NIAAA). https://www.niaaa.nih.gov/alcohols-effects-health/alcohol-topics/alcohol-facts-and-statistics/alcohol-use-disorder-aud-united-states-age-groups-and-demographic-characteristics
About the source:
- Peer reviewed? No, a webpage from the National Institute on Alcohol Abuse and Alcoholism
- Main points/purpose: A collection of facts and statistics about alcohol use disorder in the United States.
- Other notes: The data featured comes from 2022.