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Crim Law and Philos (2013) 7:29–41 DOI 10.1007/s11572-012-9157-x

ORIGINAL PAPER

ORIGINAL PAPER

Vice Laws and Self-Sovereignty

Peter de Marneffe

Published online: 18 May 2012 Springer Science+Business Media B.V. 2012

Abstract There is an important moral difference between laws that criminalize drugs and prostitution and laws that make them illegal in other ways: criminalization violates our moral rights in a way that nonlegalization does not. Criminalization is defined as follows. Drugs are criminalized when there are criminal penalties for using or possessing small quantities of drugs. Prostitution is criminalized when there are criminal penalties for selling sex. Legalization is defined as follows. Drugs are legalized when there are no criminal penalties for manufacturing, selling and possessing large quantities of drugs. Prostitution is legalized when there are no criminal penalties for owning or operating a brothel or escort service, no criminal penalties for working as a paid agent for sex work, and no criminal penalties for paying someone for sex who is above the age of legal employment and sexual consent. The criminalization of drugs and prostitution violate the right of self-sovereignty in depriving individuals of important forms of control over their own minds and bodies, but nonlegalization does not violate this right. It is therefore consistent, as a matter of principle, to advocate decriminalization but to oppose legalization.

Keywords

Drug legalization Drug decriminalization

Self-sovereignty Vice laws Mill Drug laws Prostitution laws

What are Vice Laws?

It is easier to give examples of vice laws than to say what they are. Laws that criminalize prostitution and drugs seem like clear examples, but what makes them vice laws? A simple answer is that they prohibit vice, but philosophers since Aristotle have viewed vices as bad character traits, and laws don’t prohibit character traits, they prohibit actions. Perhaps, then, a vice law is one that prohibits an action that results from a bad character trait. But we don’t count laws against embezzlement as vice laws, even though embezzlement typically

P. de Marneffe (& ) Arizona State University, Tempe, AZ, USA e-mail: demarneffe@asu.edu

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results from greed. Embezzlement has an unwilling victim, which is not typically true of drug use and prostitution. So perhaps we should say that a vice law is one that prohibits a voluntary, consensual activity that results from a bad character trait. Why, though, should we think that drug use and prostitution result from bad character traits? Certainly the choice to use drugs or engage in prostitution might sometimes result from a bad character trait, but this is presumably true of most activities. Is there some reason to think that drug use and prostitution always result from a bad character trait? If so, which character trait is it, and why should we think it’s bad? Perhaps it is possible to give a satisfying definition of vice laws and perhaps the category of vice laws is important in thinking about the criminal law. Perhaps not. In any case, my aim here is not to discuss all vice laws, but only drug and prostitution laws. Nor do I aim to discuss only those drug and prostitution laws that are likely to satisfy the best definition of vice laws, whatever this is. My aim instead is to make a distinction between two different kinds of drug and prostitution law and to argue that one kind violates our moral rights in a way the other kind does not.

Criminalization Versus Nonlegalization

It is important to recognize a difference between two kinds of drug and prostitution law. On one hand, there are criminal penalties for the use of drugs and for the sale of sex. On the other hand, there are criminal penalties for manufacturing and selling drugs, and criminal penalties for operating sex businesses such as brothels and escort services. The first kind of law violates our rights in depriving us of important forms of control over our own minds and bodies. The second kind of law does not do this, but prohibits people only from engaging in certain kinds of commercial enterprise. I will say that drugs are criminalized when there are criminal penalties for using drugs or for possessing small quantities of them. Drugs are decriminalized, then, when there are no criminal penalties for using drugs or for possessing small quantities of them. Drugs are legalized when there are no criminal penalties for manufacturing, selling, or possessing large quantities of drugs. Drugs are not legalized when there are criminal penalties for manufacturing, selling, or possessing large quantities of drugs. Observe that during National Prohibition there were criminal penalties for the manufacture, sale and trans- portation of alcohol, but not for drinking or possessing alcohol. So although National Prohibition was a form of drug nonlegalization, it was not a form drug criminalization. Likewise I will say that prostitution is criminalized when there are criminal penalties for the sale of sexual services. Prostitution is decriminalized when there are no crimi- nal penalties for the sale of sexual services. Prostitution is legalized when there are no criminal penalties for operating a sex business, such as a brothel or escort service, and no criminal penalties for acting as a paid agent for sexual services, and no penalties for purchasing these services from anyone above the age of sexual consent and legal employment. Prostitution is not legalized when the government imposes criminal penalties for operating a sex business, or for working as a paid agent for sex work, or for paying someone above the age of sexual consent and legal employment for sex. 1 My main claim here is that laws that criminalize drugs and prostitution violate our moral rights in a way that the nonlegalization of drugs and prostitution do not. Each of us

1 Because in Sweden there are criminal penalties for the purchase of sex, but not for the sale of sex, one might say that although the sale of sex is decriminalized in Sweden, it is not legalized.

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has a right to control our own minds and bodies, which, in honor of John Stuart Mill, I call the right of self-sovereignty. 2 Laws that prohibit people from using drugs or from selling sexual services deprive them of important forms of control over their own minds and bodies, and therefore violate this right. Laws that prohibit the manufacture and sale of drugs or that prohibit owning and operating a brothel, in contrast, do not deprive anyone of important forms of control over their own minds and bodies, and so do not violate this right. Because the criminalization of drugs and prostitution violate our rights, drugs and prostitution should be decriminalized. Whether they should be legalized is a separate question. One might think that drug and prostitution laws violate our rights on other grounds:

because drug use and prostitution are harmless; or because these laws are paternalistic:

they prohibit voluntary, consensual activities in order to protect people who wish to engage in them from harm; or because the view that drug use and prostitution are bad is con- troversial and the government should be as neutral as possible toward different conceptions of a good life. The self-sovereignty argument that I consider here is different from any of these. It does not presuppose that drug use and prostitution are harmless, or that pater- nalism is always wrong, or that the government must remain as neutral as possible toward different conceptions of a good life. It presupposes only that we have a right to control our own minds and bodies. The most common objection to drug and prostitution laws is not of course that they violate our rights, but that they do more harm than good. Thus it is commonly argued that the war on drugs is a disastrous failure because while failing to stop drug abuse it has ruined the lives of many young people by sending them to jail. As presented by the average newspaper columnist, this argument is unconvincing. Murder laws don’t stop murder either, and we don’t take this to show that they are ineffective or ought to be repealed. So we shouldn’t infer that American drug policy is a failure from the fact that it hasn’t stopped drug abuse. It might still reduce drug abuse by enough to justify its costs, as murder laws presumably do with respect to murder. On the other hand, it’s also possible that the costs of American drug policy—the violence and government corruption that result from the black market in drugs, together with the various harms created by criminal liability—outweigh the benefits of our drug laws in reducing drug abuse, because these costs are quite high and because our drug laws might not reduce drug abuse, and so its associated harms, by enough to justify these costs. My interest here, however, is in a very different kind of objection to drug and prostitution laws, which is that they violate our rights. Although the nonlegal- ization of drugs might be a bad policy for the reasons just given, it’s not bad in violating the right of self-sovereignty. On the other hand, even if drug criminalization were more effective in reducing drug abuse than its critics believe, this policy would still violate our moral rights, and should be repealed for this reason.

Self-Sovereignty

We have a right to control our own minds and bodies. We have a right to decide what to reflect on, what to daydream about, what to imagine, what experiences to have in our minds using our own bodies, and what moods to try to be in. We have a right to decide

2 Mill concludes the famous paragraph where he first states his principle of liberty, sometimes referred to as ‘‘the harm principle,’’ with the sentence: ‘‘Over himself, over his own body and mind, the individual is sovereign.’’ See Mill (1978, p. 9).

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what to put into our bodies, how to take care of our bodies, how to use our bodies for our own benefit, work or pleasure. Obviously this right isn’t unlimited. A person doesn’t have the right to throw his body from the top of a skyscraper regardless of who might be below. So we need a theory of self-sovereignty to identify the conditions under which the gov- ernment may justifiably limit a person’s discretionary control over his own mind or body. One possible theory is the one Mill proposed in On Liberty: the government may limit an adult’s liberty against his will only in ways that can be justified as protecting others from harm (Mill 1978, p. 9). This theory has two drawbacks. First, some restrictions of our liberty would seem to violate our self-sovereignty even though they function to reduce others’ risk of harm, and the theory just stated provides no basis on which to conclude that these restrictions violate our rights. Suppose that our risk of harm by others would be significantly reduced if the government prohibited drinking alcohol, because this policy would reduce heavy drinking, and so the violence, property crime, and accidental injury that result from it. Even so, this policy would seem to violate our self-sovereignty, because the choice to drink involves an important form of discretionary control over our bodies, and, given the psychotropic properties of alcohol, over our minds as well. But Mill’s theory doesn’t provide a basis for concluding that this policy would violate our rights, because it allows the government to limit our liberty to reduce others’ risk of harm and it provides no guidance as to how great the risk must be for the restriction to be justified. The second drawback of Mill’s theory is that there’s no good reason to think that the government is never justified in limiting the liberty of a mentally competent adult in ways that can be justified only as protecting him from harm. Certainly Mill gave no convincing reason to believe this, and no one since has either. 3 So I propose a different theory of self-sovereignty, which consists of two principles. The first principle, which I call the prohibition principle, is this: a government violates a person’s sovereignty over himself in prohibiting him from making a choice if and only if (a) this choice involves an important form of discretionary control over his own mind or body, and (b) there is no evident and substantial reason of welfare for someone (possibly him) to want him not to make this choice that has much greater weight than his reasons to make it, and (c) prohibiting this choice is not necessary to ensure that someone (possibly him) has adequate control over his own mind or body. A reason of welfare for A to want B not to make a choice is evident if and only if the information available at the time of the

choice would justify A in accepting the proposition that constitutes this reason if A had this information. A reason of welfare for A to want B not to make a choice is substantial if and only if it identifies a way in which A is substantially worse off if B makes this choice, typically by being at a substantially higher risk of harm. Note that the relevant reasons for

A

to want B not to make a choice include only reasons grounded in information available

at

the time of the choice. Consequently, the unknown and unlikely fact that B’s action will,

as

it turns out, harm A is not, as I am understanding the notion here, an evident reason of

welfare for A to want B not to make this choice. 4 In contrast, the known fact that B’s choice will place A at a high risk of harm is an evident reason of welfare for A to want B

3 In response to the charge that paternalism is inconsistent with liberalism, I would point out that most leading liberal theorists hold to the contrary that some forms of paternalism are permissible. See Hart (1963, pp. 5, 32–34), Rawls (1971, p. 249), Raz (1986, pp. 412–413, 420), Nagel (1987, p. 224), Dworkin (1994, pp. 192–193). Even Joel Feinberg, who is commonly cited as an arch antipaternalist, permits more pater- nalism than Mill does, because he allows paternalistic interference with choices that are ‘‘substantially involuntary,’’ and he endorses an unusually demanding test of full voluntariness, which renders many acts ‘‘substantially involuntary’’ that we would ordinarily count as voluntary. See Feinberg (1980, pp. 115–117).

4 I thank Youngjae Lee for pressing me to make this clear.

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not to make this choice, even if, as it turns out, A will not actually be harmed by this choice. The second principle, which I call the opportunity principle, is this: the government violates a person’s sovereignty over himself in having a policy that reduces his oppor- tunities to make a choice if and only if (a) this choice involves an important form of control over his mind or body, and (b) the evident and substantial reasons of welfare for this person now to prefer his situation without this policy have much greater weight than anyone’s reasons now to prefer their situation with this policy in place. Again, a reason of welfare for a person now to prefer his situation without a policy is evident if and only if the information now available would justify him in accepting the proposition that constitutes this reason if he had this information. A reason of welfare for a person to prefer his situation without a policy is substantial if and only if it identifies a way in which he would be substantially worse off as a result of this policy, typically by having fewer opportunities or by being at a substantially higher risk of harm. This theory of self-sovereignty is more permissive than Mill’s theory in permitting more paternalism. If the evident and substantial reasons of welfare for you not to make a choice have much greater weight than your reasons to make it, or if this choice doesn’t involve an important form of control over your own mind or body, or if prohibiting this choice is necessary to ensure that you have adequate control over your mind or body, then the government may, consistent with this theory of self-sovereignty, prohibit this choice for your benefit, even against your will, even if this policy cannot be justified as protecting someone else from harm. And if a policy reduces your opportunities to make a choice, but the evident and substantial reasons of welfare for you to prefer your situation without this policy do not have much greater weight than the good reasons for anyone to prefer their situation with this policy in place, or if this choice does not involve an important form of discretionary control over your mind or body, then the government may, consistent with this theory of self-sovereignty, adopt this policy for your benefit, even against your will, even if this policy cannot be justified as protecting someone else from harm. Whether these conditions are met by any particular policy will be debatable, but if they are met, then the kind of paternalism involved in adopting this policy is permitted by this theory of self- sovereignty. This theory, however, also provides a basis for concluding that a policy violates our self-sovereignty even though it reduces others’ risk of harm. Suppose that everyone’s risk of accidental injury would be significantly reduced if drinking alcohol were generally prohibited. The choice to drink nonetheless involves important forms of discretionary control over our minds and bodies. So, according to this theory of self-sovereignty, the government may prohibit drinking alcohol only if (a) for everyone who wishes to drink there is an evident and substantial reason of welfare for someone to want him not to drink that has much greater weight than his reasons to drink, or (b) this policy is necessary to ensure that someone has adequate control over his own mind or body, neither of which is the case. Although a general prohibition of drinking might significantly reduce the risk to each of us of being harmed, it does not follow that whenever someone decides to drink he substantially increases anyone’s (ex ante) risk of being harmed. Nor is prohibiting all drinking necessary to ensure that anyone has adequate control over his own mind or body. Hence in many cases the reasons for a person to want to have a drink outweigh anyone’s reasons to want him not to do so, and a policy of prohibiting drinking therefore violates the right of self-sovereignty, even if it significantly reduces our risk of harm. Laws that prohibit people from using drugs and laws that prohibit people from pos- sessing small quantities of drugs violate the right of self-sovereignty on similar grounds.

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The choice to use drugs involves important forms of discretionary control over one’s own mind and body. The recreational use of some drugs, such as LSD, offers unusual and enjoyable perceptual experiences that would otherwise be unavailable. The recreational use of heroin (according to some users) offers an intense euphoria unlike that produced by any other drug. Control over our mental experiences and over our moods are important forms of control over our minds. Furthermore, the choice to ingest a substance—eat it, smoke it, snort it, inject it—involves an important form of discretionary control over our bodies. In most instances the recreational use of drugs, even so-called ‘‘hard drugs,’’ harms no one and poses no significant risk of harm. So, in some instances at least, the reasons for a person to want to use drugs outweigh the reasons for anyone to want him not to use them, from which it follows that the government violates the right of self-sovereignty in pro- hibiting drug use. Laws that prohibit people from selling sex also violate the right of self-sovereignty. Discretionary control over how to use one’s sexual organs, whether to use them, and in what circumstances, are important forms of discretionary control over one’s own body. The choice to have sex in exchange for money is an exercise of this form of discretionary control. It involves discretionary control over one’s sexuality, and so involves a particu- larly important form of discretionary control over one’s body. It might be said that laws that prohibit prostitution prohibit only the receipt of payment for sex, and so do not intrude on a person’s control over her body, because they leave a person free to do whatever sexual acts she wishes with any consenting adult she chooses, just not for pay. The choice to exchange sex for money, however, is a choice to engage in a particular kind of sex act–a commercial sex act–that has distinctive emotional, social, and expressive significance. Like tattooing and body piercing, particularly genital piercing, engaging in prostitution is a way of expressing a distinctive attitude toward one’s body, one’s sexuality, one’s genitals, and creates a distinctive relationship between oneself and one’s body and sexuality. It expresses a distinctive view about the value of one’s sexuality: that it is properly employed to make money. 5 Laws that prohibit prostitution thus deprive a person of control over her sexuality by depriving her of discretion over whether to relate to herself in this way and to use her own sexuality in this way. In many cases, a commercial sex act causes substantial harm to no one and does not create a significant risk of harm, and in some of these cases there is good reason for a person to make this choice. When this is so, the evident and substantial reasons of welfare to want a person not to make this choice do not have much greater weight than the reasons for her to make it. Laws that criminalize the sale of sexual services therefore violate the right of self-sovereignty. In claiming that the criminalization of drugs and prostitution violate the right of self- sovereignty, I am not claiming that drug use and prostitution are harmless. I believe to the contrary that drug abuse is commonly harmful. It commonly leads young people to neglect their safety and their education, harming themselves and others. It commonly leads older people to neglect their children, their health, and their jobs, harming others and themselves.

5 This is one way in which selling sex differs from buying sex. In buying sex, clients typically value their sexuality in the same way they value their sexuality in noncommercial sexual encounters: as a means to pleasure, or to get relief from stress or loneliness. For this reason I would not say that a person’s choice to buy sex expresses a distinctive view about the value of his sexuality in the way that a person’s choice to sell sex does. This does not mean that laws that prohibit the purchase of sex are consistent with self-sovereignty, but only that if they are inconsistent, the explanation why is different. In this article I don’t take a position on whether self-sovereignty is violated by laws prohibiting purchase because it’s not necessary to take a position to defend the central claim of this article and because the right to purchase raises complex questions about sexual freedom that I can’t treat thoroughly here.

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I believe that prostitution is also commonly harmful, that it is commonly a psychologically destructive experience, one that leaves the person who does it with lasting feelings of worthlessness, self-hatred, mistrust of others, and difficulty in forming and sustaining healthy, stable, intimate relationships. 6 Laws that prohibit drug use and prostitution nonetheless violate our rights because the reasons for some people to use drugs or to sell sex are not decisively outweighed by anyone’s reasons to want them not to do so, and because these choices involve important forms of discretionary control over mind or body. My argument for decriminalization also doesn’t rest on the assumption that paternalism is always wrong. Suppose, for the sake of illustration, that the choice of whether or not to wear a seat belt does not involve an important form of discretionary control over one’s body. Suppose, too, that a law requiring motorists to wear seat belts can be justified only as protecting those adult motorists who would otherwise voluntarily choose not wear one, by giving them an additional incentive to wear one. There is a sense, then, in which this law would be paternalistic. On the assumption, however, that the choice not to wear a seat belt does not involve an important form of discretionary control over one’s body, this law does not violate the right of self-sovereignty. There is also no suggestion here that the government should remain neutral on whether drug abuse or prostitution are likely to be part of the best life that someone could lead. Laws that prohibit drug use and prostitution violate our rights, in my view, because they violate the prohibition principle. This principle, however, does not require the government to act as if it is agnostic about whether drug abuse or prostitution is advisable. The prohibition principle is compatible with the government taking the position that drug abuse is commonly bad for the drug abuser and that drug abusers would be better off and have better lives not using drugs, and with advocating this position in public service adver- tisements and in public school drug awareness classes. It is also compatible with the government taking the position that prostitution is commonly a bad choice for the young people who make it and with advocating this position in public service advertisements and in high school sex education classes. Not only is the prohibition principle compatible with this kind of nonneutrality, it is compatible, too, with the government actively trying to reduce drug abuse and prostitution by adopting some criminal penalties. Consider, first, laws that prohibit the sale of drugs, the possession of large quantities of drugs, and the commercial manufacture and agri- culture of drugs. Suppose this policy reduces drug abuse significantly (compared to what it would be without this policy) by greatly increasing the price of drugs (compared to what it would be without this policy) and by significantly reducing the availability of drugs (compared to what it would be without this policy). The choice to sell drugs, or to possess large quantities of drugs, or to manufacture or commercially farm drugs, does not involve an important form of control over one’s own mind or body—certainly not in the way that the choice to use drugs does. So this policy does not violate the prohibition principle. Consider, next, laws that prohibit the operation of brothels and escort agencies. Suppose this policy reduces prostitution significantly by reducing opportunities to find willing clients, and by removing various incentives to start, to continue, and to do more of this work than one otherwise would, once one has started. The choice to own or operate a brothel or escort service does not involve an important form of control over one’s own body—certainly not in the way that the choice to have sex in exchange for money does. So although the criminalization of drugs and prostitution is inconsistent with the prohibition principle, their nonlegalization is not.

6 I cite some evidence in support of this claim in de Marneffe (2010, pp. 13–14).

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Mill argues in On Liberty that prohibiting the sale of alcohol is equivalent to prohibiting drinking itself. He writes: ‘‘Under the name of preventing intemperance, the people of one English colony, and of nearly half the United States, have been interdicted by law from making any use whatever of fermented drinks, except for medical purposes, for prohibition of their sale is in fact, as it is intended to be, prohibition of their use’’ (Mill 1978, p. 86). It is remarkable that anyone of Mill’s intelligence allowed such a statement into print. The so-called Maine Laws, adopted in the US in the mid-nineteenth century, prohibited the sale of alcoholic beverages, not their use. A law that does not prohibit drinking could be intended to prohibit drinking only if its supporters are deluded, and Mill gives no evidence of mass psychosis. Nor is there any truth to the suggestion that by prohibiting the sale of alcohol the government makes it effectively impossible to drink it, as the experience of National Prohibition makes clear. Moreover, it is easy enough to obtain an alcoholic beverage without buying one–by leaving some unprocessed cider outside the refrigerator– and both the Maine Laws and National Prohibition allowed people to make a hobby of wine-making and brewing beer. Finally, although Mill claims that the liquor trade is ‘‘indispensably required’’ for the legitimate use of alcoholic beverages, he observes in the same paragraph that ‘‘prohibition is never effectual’’ in regard to gambling houses (Mill 1978, p. 99). So it’s hard to believe that Mill really thought that the nonlegalization of alcohol makes drinking impossible, and easy to suspect that his evident taste for rhetoric got the better of him here. But what if prohibiting the manufacture and sale of a drug were so effective that no one could get this drug even if they wanted to? Wouldn’t this policy then also violate self- sovereignty, even though it doesn’t prohibit anyone from using drugs? There is an important difference between a law that prohibits us from doing something and a law that reduces our opportunities to do it. Self-sovereignty is not typically violated by laws that reduce opportunities. Laws against theft, for example, which prohibit us from stealing from pharmacies, reduce our opportunities to use pharmaceutical drugs, but we shouldn’t infer from this that they violate self-sovereignty. On the other hand, it seems that self-sovereignty would be violated by some laws that reduce opportunities. Suppose the law permits pregnant women to perform abortions on themselves and imposes no criminal penalties on women for obtaining abortions from others, but that it prohibits anyone from performing an abortion on someone else and imposes criminal penalties for doing so. If this policy makes it effectively impossible for any but the wealthiest to obtain a safe abortion, it seems like a violation of self-sovereignty, even though it permits pregnant women to perform abortions on themselves. This is because the choice not to carry a fetus to term involves a very important form of control over one’s body, and it will be much more difficult and much less safe to make this choice if the government criminalizes performing abortions on others. So it seems that, in addition to a test of when a law violates someone’s self-sovereignty by prohibiting her from making a choice, we also need a test of when a law violates someone’s self-sovereignty in reducing her opportunities to make it. The test I propose is the opportunity principle: the government violates a person’s sovereignty over herself in having a policy that reduces her opportunities to make a choice if and only if (a) this choice involves an important form of control over her mind or body, and (b) the evident and substantial reasons of welfare for this person to prefer her situation without this policy have much greater weight than anyone’s reasons to prefer their situation with this policy in place. The choice to have an abortion involves an important form of control over one’s body, and the evident and substantial reasons of welfare for some women to prefer their situations when medically trained people are legally permitted to perform these operations have much greater weight than anyone’s reasons to prefer their

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situation when this is legally prohibited. 7 A law that prohibits performing abortions on others thus violates self-sovereignty in violating the opportunity principle, even though it does not prohibit women from performing abortions on themselves. In general, though, the theory of self-sovereignty that I propose makes it easier to justify a law that reduces opportunities to make a choice than it is to justify a law that prohibits this choice. This is because it is harder to satisfy the conditions of the opportunity principle than it is to satisfy the conditions of the prohibition principle. If we were to apply the criteria stated by the prohibition principle to laws that reduce opportunities for choices, as well as to laws that prohibit choices, this would rule out some policies that are clearly permissible, such as laws against theft. This is because laws against theft reduce oppor- tunities to make choices that involve important forms of control over mind or body, and it’s not true that in every case of theft the evident and substantial reasons of welfare for someone to want a person not to steal have much greater weight than his reasons to do so. Some acts of theft, such as taking an inexpensive and easily replaceable item from a large department store, have a substantial negative impact on no one. The opportunity principle permits these laws because it is not the case that the evident and substantial reasons of welfare for someone to prefer his situation without laws prohibiting theft have much greater weight than anyone’s reasons to prefer their situation with such laws in place. An acceptable theory of self-sovereignty must also permit some policies that are justified by their aggregated benefits even when these policies reduce opportunities to make choices that involve important forms of control over mind or body. Consider, for example, a law that restricts the hours of operation of businesses that serve alcohol. If this policy signif- icantly reduces the total amount of harm that results from heavy drinking, this seems like sufficient justification for it, even though this policy reduces opportunities to make a choice that involves an important form of control over mind or body, unless someone’s reasons to prefer his situation without this policy have much greater weight than anyone’s reasons to prefer his situation with this policy in place. If this is not the case, the opportunity principle permits this policy. Returning now to the nonlegalization of drugs and prostitution, we can argue that these policies are consistent with self-sovereignty because they are consistent with both the prohibition and opportunity principles. Nonlegalization limits self-sovereignty by limiting opportunities to make certain choices, but there’s a difference between limiting a person’s self-sovereignty and violating it. A person’s self-sovereignty is violated by the government only if the government violates the right of self-sovereignty, and, in my view, a govern- ment policy violates the right of self-sovereignty only when it meets the conditions identified by the prohibition or opportunity principles. Some forms of nonlegalization might meet these conditions. This is arguably true, for example, of laws that prohibit clients from purchasing sex. 8 Not all forms of legalization meet these conditions, however. Laws that prohibit the manufacture and sale of drugs do not meet them, and neither do laws that prohibit owning or operating a brothel or escort service. These policies do not violate the prohibition principle because they do not prohibit anyone from using drugs or selling

7 I’m assuming here that prior to consciousness there is no reason for a being to care whether or not it lives or dies, and so no reason for first and second trimester fetuses to prefer their situations when abortions are prohibited.

8 A law that prohibits clients from purchasing sex might violate the prohibition principle in depriving them of an important form of discretionary control over their bodies or it might violate the opportunity principle in depriving prostitutes of adequate opportunities to sell sex. I take no position here on either possibility, but for related discussion, see de Marneffe (2010, pp. 120–122).

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sex, or from buying drugs or sex. I believe these policies also do not violate the opportunity principle, for the reasons now given. If all drugs were legalized, some children would be at a substantially higher risk of abuse and neglect by their parents, and some adolescents would be at a substantially higher risk of self-destructive drug abuse. Drug legalization would therefore have a substantial negative impact on the life prospects of some young people. On the other hand, drug users can still get drugs and legally possess them, and current legal retailers and manufacturers can succeed in business, even if drugs are not legalized. On the basis of these assumptions, I believe that the evident and substantial reasons of welfare for individual drug users, retailers, and members of large corporations that would profit from a legal market in drugs, to prefer their situations when all drugs are legalized do not have much greater weight than the reasons for those young people who are at risk to prefer their situations when some drugs are not legalized. If this is correct, the nonlegalization of drugs does not violate the opportunity principle. If prostitution were legalized, some young people would be substantially more likely to adopt a self-destructive lifestyle that is common among sex workers, because legalization would significantly increase the opportunities and incentives for young people to do sex work. The legalization of prostitution would therefore have a significant negative impact on the life prospects of some young people. On the other hand, prostitutes can still sell sex, clients can still buy it, and entrepreneurs can succeed in the adult entertainment business, even if brothels, escort services and acting as a paid agent for sex work are all prohibited. On the basis of these assumptions, I believe that the evident and substantial reasons for individual prostitutes, clients, pimps, or those in the adult entertainment industry to want prostitution to be legalized do not have much greater weight than the reasons for those young people who are at risk to prefer their situations when prostitution is not legalized. If this is correct, the nonlegalization of prostitution does not violate the opportunity principle. To deny that nonlegalization violates self-sovereignty is not to claim that it is a good policy. Whether drug nonlegalization is a good policy depends on whether by reducing the availability of drugs, it reduces the harmful consequences of drug abuse by enough to justify the external costs of violence and government corruption that result from the black market in drugs. Whether prohibiting brothels and escort agencies is a good policy depends on whether by reducing opportunities and incentives to engage in prostitution, this policy reduces prostitution and its harmful impact on the lives of those who engage in it, and does so by enough to outweigh the presumed benefits of legalization in promoting safety and reducing stigma. This might not be the case even if nonlegalization does not violate self- sovereignty. So legalization might be the best policy even if everything I’ve claimed so far is correct. On the other hand, if everything I’ve claimed so far is correct, we should all oppose the criminalization of drugs and prostitution because these policies violate our rights.

The Nature of the Argument

I’ve now offered a theory of self-sovereignty and argued that although the criminalization of drugs and prostitution violate the right of self-sovereignty, the nonlegalization of drugs and prostitution do not. But I haven’t said much in defense of this theory, or about how to apply it properly to policy. I’ve only given some examples of how I apply this theory to drug and prostitution laws.

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I start from the assumption that self-sovereignty is very important, and that to believe it’s important is to believe that it ought to have priority over other values, although not absolute priority. My theory is an attempt to articulate this limited priority in a way that provides a method of evaluating government policy. Because this theory permits the government to prohibit a choice that involves an important form of discretionary control over one’s mind or body only under certain limited conditions, it gives self-sovereignty an important degree of priority over other values. Imagine, for the sake of illustration, that aggregate welfare would be increased by prohibiting drinking alcohol (by reducing vio- lence, property crime, and accidental injury). Because the choice to drink involves an important form of discretionary control over one’s mind and body, this policy could be justified only if for everyone who wants to drink, there is an evident and substantial reason of welfare for someone to want him not to drink that has much greater weight than his reasons to drink, or only if prohibiting everyone from drinking is necessary to ensure that someone has adequate control over his own mind or body. If neither is the case, then, even if prohibiting drinking would increase aggregate welfare, this policy is impermissible. In this way the theory gives self-sovereignty priority over the value of aggregate welfare. This theory also gives self-sovereignty a significant degree of priority over individual welfare. When the reasons of welfare to want someone not to make a choice that involves an important form of discretionary control over mind or body are not substantial, or not evident, or when they do not have much greater weight than a person’s reasons to make this choice, then this theory gives priority to self-sovereignty. It also gives self-sovereignty priority over values other than welfare, because, according to this theory, only consider- ations of welfare or self-sovereignty itself can justify prohibiting a choice that involves an important form of discretionary control over mind or body. In all these ways, then, self- sovereignty has priority over other values. But it does not have absolute priority. In particular, it does not have absolute priority over individual welfare. If there are evident and substantial reasons of welfare to want a person not to make a choice that have much greater weight than his reasons to make it, then, even if this choice does involve an important form of discretionary control over mind or body, the government does not violate the right of self-sovereignty in prohibiting this choice. And self-sovereignty does not have absolute priority over aggregate welfare either. Even if a choice involves an important form of control over mind or body, the government does not violate self-sovereignty in reducing the opportunities to make this choice unless the reasons for someone to prefer his situation without this policy have much greater weight than the reasons for anyone to prefer their situation with it. When this is not the case, policies that reduce opportunities to make important choices can be justified by their aggregate benefit. The value of self-sovereignty also does not have priority over itself. If it is necessary to prohibit a choice in order to ensure that someone has adequate control over his own mind or body, then even if this choice involves an important form of discretionary control over mind or body, the government does not violate the right of self-sovereignty in prohibiting it. Consider, for example, laws that prohibit adults from having sex with legal minors. The choice to have sex with another consenting person involves an important form of discre- tionary control over one’s own body, and the importance of this form of control does not generally vary with the age of the consenting person. But children and young adolescents rarely have the psychological and material independence necessary to resist threats, promises, and other forms of manipulative pressure from adults who care for them, or who are in positions of authority over them, to have sex with them, and some adults, if they can get away with it, will therefore use their greater knowledge, power, money, and conven- tional authority to control the sexuality of young people in their care. As a consequence,

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some young people will lose control over their own bodies if adults are legally permitted to have sex with them. This does not mean that harsh penalties for statutory rape are war- ranted, but it is a good reason not to treat the agreement of a legal minor to have sex with an adult as legitimating the interaction, and so to endorse the legal fiction that legal minors ‘‘cannot consent.’’ The theory of self-sovereignty that I propose seems right to me, then, because it gives the value of having control over one’s own mind or body some priority over other values, which reflects its importance, but does not give it absolute priority, which would give too little weight to human welfare. This theory also seems right to me because, on certain assumptions, it leads me to policy conclusions that seem correct to me upon reflection. For example, it seems correct to me upon reflection that the government violates a person’s right to control her own mind or body by prohibiting drug use or the sale of sex, and it also seems correct to me that laws that prohibit the commercial manufacture and sale of drugs or the operation of brothels do not violate this right. These conclusions, however, are reached on the basis of assumptions about what choices involve important forms of dis- cretionary control over mind or body, assumptions about what reasons of welfare are substantial and evident, assumptions about what reasons have much greater weight than others, and assumptions about what policies are necessary to ensure that everyone has adequate control over his own mind or body, and not everyone will share these assump- tions. So, you might ask, what justifies me in making them? If I’m justified in making these assumptions, it’s because I’ve thought about them in the right way, and they cohere with my other judgments, and they remain stable upon my own continued critical scrutiny. If you make different assumptions that are inconsistent with mine, but the same is true of you, then you are likewise justified in making your assumptions. In this case, we are justified in making different assumptions, and so we are justified in holding different beliefs about what policies violate the right of self-sover- eignty. To illustrate, though I believe that laws that prohibit the sale of sex deprive people of important forms of control over their own sexuality and so over their own bodies, not everyone agrees with me about this. Some think that laws that prohibit the sale of sex prohibit only a certain kind of commercial transaction, one that is no more essentially connected to a person’s having control over her body than operating a brothel is. If so, then, contrary to what I have claimed, the criminalization of prostitution does not violate the prohibition principle. This, however, is not a good objection to the theory itself. Even if we disagree about whether the choice to do sex work involves an important form of discretionary control over one’s body, we might still both be justified in accepting the theory of self-sovereignty that I have proposed. If this theory entails judgments about whether a policy violates the right of self-sovereignty that seem correct to you upon due reflection, when you make assumptions that you are justified in making about what choices involve important forms of discre- tionary control over mind or body, about what reasons of welfare are substantial and evident, about what reasons have much greater weight than others, and about what policies are necessary to ensure that everyone has adequate control over mind or body, then, even if you disagree with my specific judgments about drug and prostitution laws, you are justified in accepting my theory of self-sovereignty. 9 If, on the other hand, you accept all the

9 This doesn’t make the theory relativistic or subjectivist. I assume that there are facts about what choices involve important forms of discretionary control over mind and body, about what reasons have much greater weight than others, about what reasons of welfare are substantial and evident, and about what policies are necessary to ensure that everyone has adequate control over mind or body, and that these facts are not

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assumptions I have made in discussing the criminalization of drugs and prostitution–about importance, welfare, the relative weight of reasons, and so on–but you deny that the criminalization of drugs and prostitution violate our rights, then I believe I am justified in concluding that you do not take self-sovereignty very seriously or value it as highly as I do. Because someone might be justified in making different assumptions, the arguments of the previous section do not really prove either that the criminalization of drugs and prostitution violate self-sovereignty or that the nonlegalization of drugs and prostitution do not. They show only that this position is coherent. If you think I’ve made the right assumptions, and you think I’ve offered a good theory of self-sovereignty, then you will agree that my position is not only formally coherent but substantively correct as well. If you think I’ve made the wrong assumptions, you should still agree that it’s coherent to advocate the decriminalization of drugs and prostitution but not their legalization, because you should agree that it’s coherent to hold that whereas the criminalization of drugs and prostitution violate the right of self-sovereignty, the nonlegalization of drugs and prosti- tution do not. This point is worth making because the position that drugs and prostitution should be decriminalized but not legalized is sometimes criticized as ‘‘inconsistent’’ or ‘‘hypocritical.’’ This is inaccurate because there is a principled distinction to be made between criminalization and nonlegalization, which is that criminalization violates self- sovereignty in violating the prohibition principle, whereas nonlegalization does not. Because it is arguable that nonlegalization also does not violate the opportunity principle, it is perfectly consistent to hold that whereas the criminalization of drugs and prostitution violate the right of self-sovereignty, nonlegalization does not. And if one sincerely believes this, as I do, there’s no hypocrisy in supporting decriminalization while opposing legalization.

Acknowledgments I thank the participants at the Workshop on Vice and Crime at Rutgers School of Law—Newark in September 2011 for questions in response to an earlier draft, particularly Youngjae Lee, whose comments led to several changes.

References

de Marneffe, P. (2010). Liberalism and prostitution. New York: Oxford University Press. Dworkin, R. (1994). Life’s dominion. New York: Vintage Books. Feinberg, J. (1980). Legal paternalism. In J. Feinberg (Ed.), Rights, justice, and the bounds of liberty. Princeton: Princeton University Press. Hart, H. L. A. (1963). Law, liberty, and morality. Stanford: Stanford University Press. Mill, J. S. (1978). On liberty (E. Rapaport, Ed.). Indianapolis: Hackett Publishing. Nagel, T. (1987). Moral conflict and political legitimacy. Philosophy & Public Affairs, 16(3), 215–240. Rawls, J. (1971). A theory of justice. Cambridge, MA: Harvard University Press. Raz, J. (1986). The morality of freedom. New York: Oxford University Press.

Footnote 9 continued systematically dependent on individuals’ beliefs, desires, emotions, or other attitudes in any way that makes them ‘‘subjective.’’ Disagreement about these matters is therefore disagreement about the truth, and there is only one truth. Nonetheless there can be reasonable disagreement about what this truth is because people can be epistemically justified in holding contrary beliefs about it. Hence it is possible for two people to be justified in holding different beliefs about what policies violate self-sovereignty, even though they are justified in accepting the same abstract theory.

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