In our culture, we have a dangerous tendency to act as if a given pattern of conduct must be either criminalized or fully accepted. There are many things that are so self-destructive that they should not be simply accepted. Yet writing into the law statutes defining victimless crimes and jailing those who commit them has enormous costs. One of the costs is to freedom itself.

Given the difficulties our culture has in seeing clearly a middle way between criminalization and acceptance, in my post “Allison Schrager: The Economic Case for the US to Legalize All Drugs,” I argued for leaving narcotics use technically illegal, in a way that is mostly unenforceable, to set down a clear marker that society was not just accepting narcotics use as something OK. Here is what I wrote:

I agree with Allison that we need to legalize the production and sale of drugs in order to take revenue, and therefore power, away from criminal gangs. But I think it is important that we do whatever we can to drive down the usage of dangerous drugs consistent with taking the drug trade out of the hands of criminals:

• Taxes on dangerous drugs as high as possible without encouraging large-scale smuggling;
• Age limits on drug purchases as strict as consistent with keeping the drug trade out of the hands of illegal gangs;
• Free drug treatment, financed by those taxes;
• Evidence-based public education campaigns against drug use, financed by those taxes;
• Demonization in the media and in polite company of those who (now legally) sell dangerous drugs;
• Mandatory, gruesome warnings like those we have for cigarettes;
• Widespread mandatory drug testing and penalties for use of dangerous drugs—but not for drug possession;
• Strict penalties for driving under the influence of drugs.

If our culture were better at pursuing the middle path between criminalization and acceptance, the right answer to drugs might be more like what John Stuart Mill describes In On Liberty, Chapter IV, “Of the Limits to the Authority of Society over the Individual” paragraph 4 and 5:

In the conduct of human beings towards one another, it is necessary that general rules should for the most part be observed, in order that people may know what they have to expect; but in each person’s own concerns, his individual spontaneity is entitled to free exercise. Considerations to aid his judgment, exhortations to strengthen his will, may be offered to him, even obtruded on him, by others; but he himself is the final judge. All errors which he is likely to commit against advice and warning, are far outweighed by the evil of allowing others to constrain him to what they deem his good.

I do not mean that the feelings with which a person is regarded by others, ought not to be in any way affected by his self-regarding qualities or deficiencies. This is neither possible nor desirable. If he is eminent in any of the qualities which conduce to his own good, he is, so far, a proper object of admiration. He is so much the nearer to the ideal perfection of human nature. If he is grossly deficient in those qualities, a sentiment the opposite of admiration will follow. There is a degree of folly, and a degree of what may be called (though the phrase is not unobjectionable) lowness or depravation of taste, which, though it cannot justify doing harm to the person who manifests it, renders him necessarily and properly a subject of distaste, or, in extreme cases, even of contempt: a person could not have the opposite qualities in due strength without entertaining these feelings. Though doing no wrong to any one, a person may so act as to compel us to judge him, and feel to him, as a fool, or as a being of an inferior order: and since this judgment and feeling are a fact which he would prefer to avoid, it is doing him a service to warn him of it beforehand, as of any other disagreeable consequence to which he exposes himself. It would be well, indeed, if this good office were much more freely rendered than the common notions of politeness at present permit, and if one person could honestly point out to another that he thinks him in fault, without being considered unmannerly or presuming. We have a right, also, in various ways, to act upon our unfavourable opinion of any one, not to the oppression of his individuality, but in the exercise of ours. We are not bound, for example, to seek his society; we have a right to avoid it (though not to parade the avoidance), for we have a right to choose the society most acceptable to us. We have a right, and it may be our duty, to caution others against him, if we think his example or conversation likely to have a pernicious effect on those with whom he associates. We may give others a preference over him in optional good offices, except those which tend to his improvement. In these various modes a person may suffer very severe penalties at the hands of others, for faults which directly concern only himself; but he suffers these penalties only in so far as they are the natural, and, as it were, the spontaneous consequences of the faults themselves, not because they are purposely inflicted on him for the sake of punishment. A person who shows rashness, obstinacy, self-conceit—who cannot live within moderate means—who cannot restrain himself from hurtful indulgences—who pursues animal pleasures at the expense of those of feeling and intellect—must expect to be lowered in the opinion of others, and to have a less share of their favourable sentiments; but of this he has no right to complain, unless he has merited their favour by special excellence in his social relations, and has thus established a title to their good offices, which is not affected by his demerits towards himself.

There is a lot of overlap between John Stuart Mill’s recommendation and mine. I am willing to push somewhat past what he would be comfortable with. But I am  much, much closer to John Stuart Mill’s recommendation than I am to current policy in the US.