John Stuart Mill on the Middle Way Between Criminalization and Acceptance

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 LibertyChapter IV, “Of the Limits to the Authority of Society over the Individual” paragraph 4 and 5:



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.