Special Committee of Senate on Illegal Drugs
THE GOVERNANCE OF HUMAN AGENCY
Roderick A. Macdonald
F.R. Scott Professor of Constitutional and Public Law
Governance is a central preoccupation in liberal democratic States today. Typically attention has been focused on how governments may deploy various legal instruments most efficiently to regulate and control human behaviour. This approach to public policy implementation has proved be an analytical blind alley.
More recently scholars have begun to explore the social conditions under which effective governance through law may be achieved. The policy question is to consider how law can facilitate everyday human interaction. How do human beings find and nurture meaning in their interpersonal relationships?
Ideas about governance are the fruit of political ideology. By contrast with the one dimensional left-right spectrum found in the United States, ideological competition in Canadian politics is much richer, embracing both organic and liberal, as well as egalitarian and meritocratic perspectives.
These multiple ideologies translate into multiple understandings of the relationship of individual to society and citizen to State. This multiplicity is reflected in a recognition of the diversity of sites of governance, modes of governance, and instruments of governance. The State is no longer viewed as the exclusive (maybe not even the primary) site of governance; legislation is not viewed as the exclusive (maybe not even the primary) mode of governance; the regulatory and criminal sanctions are no longer viewed as the exclusive (maybe not even the primary) instrument of governance.
From this diversity emerges a better sense of how law may be deployed as social institution. The root issue is to assess how perceptions of citizen capacity influence the way in which regulatory instruments are drawn and executed. Law is the endeavour of organising and channelling behaviour through rules, rather than orders. Law supposes the framing of these rules in a manner that enhances the possibility of human agency.
The central challenges of governance today are how to escape instrumentalist conceptions of legal regulation. Far from being a mere instrument external to some other end, the achievement of law is an end in itself. The successful implementation of policy depends on law's capacity to provide and elaborate meaningful characterisations of life events in a manner that directs citizen attention to a range of factors that ought properly to inform human action. The central ambition of law is the symbolic governance of human agency, not the instrumental control of discrete human behaviour.
Current public policy relating to illegal drugs reflects an attempt to manage this segment of human activity in the register of morality, rather than in a register of markets or public health policy. The attendant emergence of regulatory monopolies that have been appropriated by criminal syndicates is a predictable consequence. The use of the criminal law to govern illicit drugs has failed precisely because it does not attend to the limits of law as an enterprise directed to the symbolic governance of human agency.
Introduction -- Defining and Delimiting Governance
1. By the end of the past century strategies to achieve good governance had become a central policy preoccupation of government. Law faculties, political science, economics and sociology departments, and schools of public administration and policy studies applauded and enthusiastically joined in the analytical enterprise. So did think tanks of all political stripes. For its part, the LAW COMMISSION OF CANADA, an independent federal law reform agency, saw the matter as being so important that it identified "governance relationships" as one of its four Strategic Research Themes. Nonetheless, the concept of governance itself has been loosely deployed by different academic disciplines and even today it remains ill-defined.
2. A first task, therefore, is to delimit the scope of the concept. For the purposes of this study, a generic definition of governance derived from the work of the LAW COMMISSION OF CANADA will be adopted. This definition combines both descriptive and normative features. Descriptively, governance is taken to be the iterative endeavour of identifying goals and objectives, designing policies, selecting processes and instruments, deciding particular programmes, targeting sites and systems, and identifying actors by and through which human aspirations and actions may be rendered into achievements and accomplishments. Prescriptively, governance is taken to be the endeavour of identifying and managing both aspiration and action in a manner than affirms and promotes human agency.
3. Before pursuing the implications of this conception of governance, a brief digression into theories of public administration is necessary. In the contemporary literature of that field much attention is devoted to what is labelled the "new governance". This "new paradigm" is the successor to other post-classical models known variously under the rubrics "reinventing government" and the "new public management". Adherents of the "new governance" perspective claim that traditional public administration -- with its focus on public agencies organised hierarchically, and on delivery programmes modelled after the command and control regimes of military bureaucracies -- has been gradually giving way to a model of "third-party governance" in which collaboration with non-governmental actors becomes the key strategy for addressing public problems and pursuing public purposes. The "new governance" emphasises tools and instruments rather than agencies and programmes; it privileges interdependent networks of institutions and actors over centralised bureaucratic hierarchies; it emphasises public-private partnerships rather than unidirectional public "intervention" in market activity; it replaces top-down command and control with negotiation and persuasion as modes of regulation; and it imagines a public service focused on enablement rather than management.
4. Despite its claim to being a novel conceptualisation of a "revolution in governance that no-one noticed", the "new governance" model is little more than an instantiation in the realm of public administration of insights that academic jurists of the "legal process" school developed in the 1950s. Indeed, the later fascination of these jurists with "institutional design" and how "access to justice" could be enhanced through multiple forms of alternative dispute-resolution (A.D.R.) -- in particular, non-hierarchical dispute resolution through contract, negotiation, mediation, conciliation and settlement -- reveals the same ambitions as most writing in the "new governance" vein. The idea of "making the forum fit the fuss", of aligning particular processes of dispute resolution with specific types of conflict, is a staple of the alternative dispute resolution movement. Like the "new governance", A.D.R. theory presents itself as technology, as a blueprint for mapping legal forms onto predetermined or pre-existing policy goals. Both do not conceive processes of social ordering as requiring a continuing iteration of means and ends; both also do not conceive the enhancement of human agency as the overarching objective of either the governance or the dispute-resolution enterprise.
5. To puzzle through how modern approaches to governance might bear on questions relating to the legal regulation of currently "controlled" drugs is the central object of this paper. The approach adopted by the LAW COMMISSION OF CANADA, which is consistent with but which goes beyond the concerns of the "new governance" model, will be used to orient discussion of the scope and ambitions of governance through law. The LAW COMMISSION overtly casts its governance agenda in relational terms: governance is about enfranchisement, not about social control. The aim of the research endeavour is "to examine ways to enhance the capacity of citizens to participate in the decision-making processes of public and private institutions." In other words, the concerns of the LAW COMMISSION are with both procedural and substantive questions: procedurally, the question is whether early 21st-century law has lost its normative capacity, and become simply a tool to achieve a close regulation of citizen action through detailed bureaucratic commands; substantively, the question is whether law -- be this the criminal law, regulatory law, or private law -- still enters meaningfully into peoples' lives as a statement of shared values, aspirations and commitments.
6. In organising its research into governance relationships, the LAW COMMISSION noted that much legal scholarship of the past quarter-century was focused on instrumental considerations -- for example, how best to achieve compliance? or how to reduce the burden of government without losing policy control? or how to enhance regulatory efficiency by promoting so-called "smarter" government? Academic and policy reflection was so strongly influenced by "law and economics" analysis that issues of governance were conceived to involve little more than the selection of the optimally efficient "governing instrument" or "regulatory tool". While the idea of "governing instrument" does suggest the need for law in order to render public policy into prescriptions and programmes, in this conception of the governance endeavour, there is an in-built presumption against certain forms of State action. This presumption is usually expressed in slogans like "deregulation", "privatisation" and "smaller" government that imagine the possibility of a pre-political societal arcadia where human beings and markets can operate free of the constraints of misguided, inefficient, redistributive "policy intervention".
7. Today, however, the legal landscape has changed. A broader understanding of the entailments of governance through law in a liberal democracy is emerging. This new understanding has several dimensions. To begin, most scholars now accept that markets are not an alternative to governmental regulation, but are themselves a regulatory instrument deployed to achieve public policy objectives. In their most efficient contemporary forms, they exist and are enhanced by governmental action. Far from being naturally occurring phenomena, markets are the consequence of a very sophisticated set of policy decisions and institutional structures ranging all the way from maintaining a stable currency and minimal conditions of public order through to creating high levels of numeracy and literacy and promoting a social and political climate conducive to human initiative and agency. Deregulation is, consequently, a misnomer. It is, rather, re-regulation where the State consciously limits itself to putting into place the mechanisms necessary to facilitate the recognition, protection and exchange of private property rights through markets.
8. In addition, most scholars argue that Hobbes was only partly right about the antidote for the "poore, brutish and shorte" pre-political world. A society governed by law, not by an absolute sovereign, should be the objective of politics. Where the basic conditions of social order and personal security are absent, an all-powerful sovereign in control of an army or, at the more local level, a police force enforcing a widely-cast net of criminal law, may be a primary need and a primary preoccupation of citizens. In most contemporary social situations in Canada, however, the focus is elsewhere. A minimum of social order being assured, the objective is to marshal institutions by which normative expectations may be stabilised and meaningful and productive patterns of human activity nurtured. The governance role of the modern liberal State is as much to provide and reinforce institutions that facilitate human interaction as it is to police miscreants and maintain public order.
9. Finally, legal scholars especially have come to acknowledge that governance is at bottom a non-instrumental enterprise. Law may, of course, be deployed as a tool to achieve a specific policy outcome. But the manner in which legal institutions and concepts are designed also commits a society to certain substantive goals. Governance through law is not principally about enacting relatively precise prescriptions -- a one-way or top-down projection of authority -- intended to induce compliant behaviour through rewards (carrots) and sanctions (sticks). Governance through law is a process of reciprocal construction of social interaction through which lawmaker and citizen constantly adjust their expectations of each other.
10. One might put modern reflection about governance through law in the following terms. The promise of good governance through law lies in the vocation of legal rules and institutions to acknowledge, establish, maintain and improve the channels through which flow the sometimes turbulent currents of everyday life. Human beings find in law the forms, structures and processes that enable them to render their ambitions into accomplishments and their purposes into outcomes. At its margins, governance through law -- especially in the form of the criminal law -- involves establishing constraints on pathological action so as to make human agency possible. At its core, however, governance through law -- whether in the form of rules of property, contracts and civil obligations, or processes of everyday administrative and regulatory law -- involves creating mechanisms and incentives for largely self-directed human action.
11. What are the implications of these introductory considerations for the deliberations of the Senate Committee on Illegal Drugs? To answer this question it is first important to delimit the scope of the present inquiry. This study is about governance. It does not purport to assess how the reflections of the Senate Committee should be organised from any other perspective -- be this as a matter of economic efficiency, health risk reduction, harm prevention, crime control or morality. Indeed, one of the key features of the approach taken here is to highlight how the manner in which the issue of "illegal" drugs is conceptualised bears on the range of governance outcomes that can be imagined. The present question is simply this: how can law and legal institutions be deployed to govern human agency in a manner that facilitates the just achievement of individual and collective human purposes? Putting the matter slightly differently so as to highlight the full range of policy options, one can affirm that markets and the criminal law lie at opposite poles of the regulatory spectrum. While both are governance regimes, neither is always going to be an optimal framework, whether for the production, manufacture, distribution and sale of widgets, or for the production, manufacture, distribution and sale of what are now "illegal" drugs. What, then, are the other governance options?
12. This paper offers an answer to that question in the form of ten meditations on key issues in contemporary governance thinking. It begins in social and political theory (chapters I and II), taking as a foundational premise the idea that governance implies human agency. A middle section focuses more directly on legal and regulatory theory (sections III-VI), identifying diverse sites, modes and tools of contemporary governance. A third section explores specific questions of legislative drafting and institutional design (sections VII-X), highlighting the way in which micro-decisions about how best to subject human conduct to the governance of rules can enhance the moral quality of the regulatory enterprise. The Appendices are meant to summarise and situate the discussion. Appendix I reproduces the introductory thesis statements and conclusions of each section; Appendix II provides several matrices illustrating governance options; and Appendix III sets out a basic governance bibliography.
1. Discovering and Mediating Relationships Through Law
Social life comprises a web of relationships through which human beings pursue their purposes and ambitions in concert with others. Law provides institutions and processes to facilitate that agency and to stabilise these relationships.
13. The urge to recognise and make law is felt almost from our first moments as human beings. Some measure of consistency and predictability in everyday human interaction is at the foundation of social life. Being able to acknowledge, interpret and find meaning in the words and actions of others, and being confident that our own words and actions will be acknowledged, interpreted and understood more or less as we intend them allows us to dream, to make plans, and to act in public in relative security.
14. Most things human occur in concert with others. Apart, possibly, from hermits who are able to discover or create isolated places to live self-sufficiently, people routinely depend for their survival and their flourishing on social and economic intercourse. Even hermits cannot fully escape the world they previously shared with their fellows. Their clothes, their rudimentary objects of survival, the skills they have learned to find shelter and food came from, or were acquired through participation in, the very society they now reject. More than this, the contemporary activities of other inhabitants of the planet will continue to shape the conditions of their existence: the potability of the water they drink, the purity of the air they breathe, and the patterns of the wildlife on which they depend for food. Inescapably, human beings cannot live alone, untouched by others.
15. Those of us who are not hermits habitually engage in more active social exchanges. We are constantly discovering, framing and adjusting our dealings with those around us the better to identify and pursue our own life goals. Sometimes we are able to do so in confidence that others will support and respect our motivations and actions. Sometimes not. Sometimes we expose ourselves to a future risk in pursuit of a goal, certain that we can count on others to do their promised part. Sometimes we are less sure, and seek assurances of performance.
16. Throughout our lives, in many different contexts and at many levels of commitment we reach out to others. Often we communicate directly with words, but not always. We also use gestures, or sounds, or pictures, or even silence to engage with those around us. Over time, many of these engagements mature into more stable patterns of interaction that permit us to form settled expectations of neighbours and acquaintances; these patterns also give rise to constraints on our own behaviour. The nexus of these expectations and constraints we call relationships. Relationships are the bedrock of law.
17. Human relationships emerge and evolve through the interplay of personal, social, cultural, religious and economic forces. Together these forces generate the informal law that allows us to recognise and negotiate our interactions with others. They also shape how the official law enacted by Parliament and developed by courts comes to acknowledge and regulate interpersonal activities. In combination, the law of everyday interactions and this official law provide instruments and symbols through which we can realise the hopes and aspirations that we have for ourselves, for our families and kin, for our communities, and for society more generally.
18. Social life, however, is not just comprised of discrete, once-off negotiated relationships between individuals. It is a web of differentiated relationships. These relationships may be merely occasional and not particularly intimate. They may also be affectionate, ongoing and involve deeply felt attachments. Sometimes we seek out or chance upon relationships within formal institutions like schools, the workplace, social clubs, and religious organisations. More frequently, our closest relationships are forged less formally -- in families, neighbourhoods, or our ever-changing circles of friends. Neither the places nor the manner of human interaction through which we build relationships are fixed. Contexts change. So do the relationships themselves. Often we seek out familiar institutions, or imagine and establish novel institutions, within which we can more effectively act in concert with others -- both as a group pursuing a common purpose, and in the realisation of that purpose over time.
19. In a vibrant society relationships are formed and flourish for a variety of reasons. We often find in them comfort, security, mutual support, love and fulfilment. Normally, the tasks and responsibilities of daily life are more easily managed when shared. But relationships can occasionally be a source of sorrow, pain, exploitation, and even violence. However much a society might try to pattern various types of relationships that nurture mutuality and trust, pathologies and dysfunction are inevitable in some. For better or for worse, relationships structure our sense of belonging to a community, channel our interactions with others, and help to define our identity.
20. What is more, our relationships and interactions with others are framed not just by institutions that we consciously choose. Some structures result from forces largely beyond our personal control -- whether climate, physiology, or nature. In addition, it is not just relationships as such that derive from such framing or forces. Many of our individual life choices are constrained by general contexts external to ourselves. The bulk of these contextual constraints find their origins either in human vulnerability or in human striving.
21. Religious precepts, moral notions and socio-cultural traditions have long played a central role in shaping and guiding human behaviour. They still powerfully shape how we interact with others. Today, we also accept that economic forces, and especially international economic forces, rigorously govern daily life. This is true whether our consumption is driven by need, by envy, or by advertisement-generated desires, and it also holds true whether this consumption is satisfied through the obligatory distributions of a command economy, the overt exchange of goods and services in a market economy, or the psychological intendments of a gift economy. Still others of our life choices are under the sway of both formal and informal political processes: whether this is a politics shaped by the expectations of others, or a politics shaped by our expectations of ourselves.
22. Nevertheless, at least from the time of our adulthood, we believe that we are not totally-determined beings. We consider that we have some, however little it may be, capacity to choose most of these general contexts of interaction. There is, however, one associational setting that most of us do not usually join as adults of our own free will. Unless we are immigrants or emigrants, we typically do not choose what country we belong to. Membership flows birth -- the nationality and citizenship of our parents -- or from residence. Rare is the person today who can transpose religious and moral self-sufficiency (atheism, if you will) or social and economic self-sufficiency (being a hermit) into the political realm. Even refugees and officially "stateless persons" usually discover that some political unit claims authority over them, and especially over their actions and assets. This is true even when they explicitly, even violently, reject all such claims.
23. In each of these circumstances, in each of these locations, and in each of these dimensions, we are, as human beings, engaged in, and subject to, processes of governance. Most obviously, we govern and are governed in the workplace, the marketplace, and in the organisation of our leisure activities; and we govern and are governed within the family, and in our everyday interactions with friends, neighbours and acquaintances. Here, then, is the paradox. At one and the same time, we are human beings capable of making choices (whether these be religious, social, economic, political or even life-ending), and human beings whose choices are constrained by multiple institutions that give shape to these choices and to the collective choices of others. At one and the same time, we express our agency as human beings through our acts of self-governance, and through our voluntary or coerced participation in governance structures that we share with others and that channel the occasions for exercising that human agency.
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24. These considerations suggest the following governance questions in connection with the regulation of "illegal" drugs. If the foundation of human society and law lies in agency and relationships, at what point does the ingestion of drugs compromise these foundations? More specifically, under what circumstances does an addiction -- also consider here drugs like nicotine, caffeine, amphetamines, valium, alcohol -- destroy or diminish human agency and undermine a person's capacity to establish or sustain meaningful interpersonal relationships? Under what circumstances does either the psychotropic or impairment effect of drugs -- consider "designer drugs", alcohol, barbituates, Ritalin -- temporarily undermine or compromise agency and relationships? Under what circumstances do the stimulant or depressive properties of drugs -- consider the effects of alcohol or cocaine on a person's propensity to act violently -- destroy
agency and relationships?
2. The Politics of Governance -- Democratic Diversity
Conceptions of human agency and relationships and beliefs about the permissible scope for even harmful self-regarding behaviour are translated into political institutions and policy outcomes through larger ideologies about collective and State action.
25. To assume human agency and the inevitability of interpersonal relationships brings one to the terrain of politics and political theory. Most contemporary legal theories about governance presuppose a set of political beliefs and structures within which public policy may be developed and pursued. Classically, the measure of the richness and tolerance of any political community is its pluralism: the diversity of views that can be legitimately expressed and commitments that can be meaningfully acted upon, as these concern, first, the relationship of individuals to society, and second, the relationship of members (citizens) to more formal institutions of government (typically the State).
26. In the assertion just made it is important to signal two ideas. One is that the expression political community embraces more than the collectivity defined by the State. This is why the words "citizen" and "State" are in parentheses. The State is, of course, a society's most institutionalised regime of public governance. But a political community can also be organised through or around, for example, a club, a business corporation, a trade union, an agricultural commune, a university, or a family. Thus, when law and accounting firms tells prospective employees about the "firm culture" (whatever that culture might actually be) they are making claims about the relationship between individual and collectivity. The other idea is that the expression "formal institutions of government" implies a particular kind of decision-making framework through which debate about a relatively limited number of foundational ideas may be engaged. Informal governance in society and informal institutions of governance can, and usually do, embrace reflection and decision across a wide range of human choices -- from the pragmatic (efficiency) to the aspirational (virtue, kindness, charity, loyalty, etc.). Formal institutions of governance, by contrast, typically have a special ethical vocation -- deliberation about the good and the just. In liberal democracies, although not so in totalitarian states, theocracies and military dictatorships, this is tautologically true.
27. Because the formal institutions of governance associated with the political State are those most well-known to the general Canadian citizenry (by contrast with, say, the formal institutions of governance of the Faculty of Law of McGill University, or the Royal Bank of Canada, or the Canadian Football League), the discussion that follows will be structured around them. But it is important to note that the analysis is not so restricted in application. The political beliefs and commitments examined here and the forms of governance they imply are present in all political communities.
28. Historians and social theorists are fond of noting that official Canadian political culture is not cast in a unitary mould. Rather, this political culture comprises elements derived from diverse European intellectual traditions. One notable feature of this European heritage is the plurality of ideological tendencies that have been manifest in political debate. Most notably, in contradistinction to the situation prevailing in the United States, organic (communitarian) and ascriptivist (status-driven) threads remain woven into everyday political discourse in Canada. Indeed, until quite recently Canadian political culture has been fundamentally British as opposed to than American in overall orientation.
29. The observation that the American Revolution produced two new political communities and two new states in North America is, of course, trite. But its implications are deep. As much as the revolutionary crucible generated (or at least set the framework for the later emergence of) liberal-republicanism as the orthodox political ideology in the United States, the reconstruction of British North America as a condominium involving ultramontane, Roman Catholic and French-speaking inhabitants of Quebec and tory, protestant and English-speaking United Empire Loyalists produced an equally distinctive, and necessarily more heterodox, political culture in Canada.
30. Let me emphasise that in the discussion that follows, I am using the language and labels of political theory in their scholarly sense. However tempting it may be to identify existing and former political parties in Canada with one or the other of these ideological tendencies, this temptation must be resisted. Words like "tory", "whig", "liberal" and "socialist" are deployed to signal archetypal ideologies and justification for State action (or abnegation), not to describe current political organisations. Thus, I do not claim that the Liberal Party of Canada is necessarily committed to a "classical liberal" view of society. Nor that the Progressive-Conservative Party represents a "classical tory" view. Nor that the NDP is a "classical socialist" party. Nor that the Canadian Alliance holds to a "classical whig" position. These judgements I leave to others.
31. As an aside, let me say that I doubt whether any political party in Canada could long survive as a vehicle for univocal ideological expression. For three reasons. Consider the bearing and demands of conducting contemporary "mass electoral politics", Canada's significant regional diversity, and the need, in a "first-past-the-post" Parliamentary voting system, to create umbrella coalition parties that can attract electoral pluralities. In such a context, it seems implausible that any pan-Canadian political organisation today could be successful were it to cleave to anything like the ideological purity and policy rigidity that any of these perspectives would require.
32. To recapitulate, the aims in this section are analytical. I seek to show, first of all, how the traditional diversity of Canadian political culture has led to a series of policy options in governance either not, or rarely, seen in the United States. Second, and even more importantly, I suggest that even where the same policy outcomes are promoted and achieved in both Canada and the United States, these different conceptions of State and society generate significantly different justifications for those outcomes.
33. In their archetypal forms, the four dominant political ideologies in Canada -- toryism, whiggism, socialism and liberalism -- may be differentiated along two intersecting axes. On an axis reflecting conceptions of how the State should conceive individual citizens, they may be distinguished as non-egalitarian ideologies (toryism and whiggism), and egalitarian ideologies (socialism and classical liberalism). The notion of egalitarian entails a commitment to the political equality of citizens as citizens. Persons espousing the egalitarian, democratic ideal believe that basic political rights can neither be expanded nor abridged for reason of wealth, religion, class, sex, race, and so forth. The idea that the "lords spiritual and temporal" should have a separate, co-equal Parliamentary assembly (the House of Lords), or that a minimum property qualification should be imposed as a prerequisite for appointment to the Canadian Senate are, in this sense, non-egalitarian.
34. On a second axis, reflecting conceptions of the internal dynamics of society and the role of the State, one may contrast the atomistic and individualistic views of whigs and liberals, with the organic and communitarian views of tories and socialists. Liberals and whigs do not see the individual as inherently shaped by culture, language and ethnicity, and therefore conceive of citizenship as entailing only a bare-bones commitment to a political order. "Means-tested" social programmes are a paradigmatic liberal response to economic inequality. Tories and socialists, by contrast, see citizens as socially located. Social differentiation and diversity is a permanent feature of society. While tories accept that differentiation leading to inequality is in the natural order of things, socialists believe that the instruments of the State should be wielded to sustain differentiation while nonetheless promoting equality of condition or outcome.
35. Recently, the traditional richness of political culture in Canada has been overtaken by two reductionist tendencies. First, the Canadian Charter of Rights and Freedoms has enabled political argument to be cast in the language of legal rights. The complexities of debate about the role and instruments of government and about the wisdom of different political choices are increasingly being framed only as issues of legal power and jurisdiction. Second, since the 1960s Canadians have witnessed the rise of a rather simplistic division of political discourse into "right" and "left" perspectives. The assumption that there is a single over-riding criterion for defining political action, and that it can be cast in the language of the right and the left, aligned with the words "conservative" and "liberal" respectively, is a perverse importation of U.S. political culture.
36. Several features of U.S. political culture have contributed to its unidimensionality. To begin, primarily as a result of the 18th century revolution, the wide variety of organic perspectives on society and government action seen elsewhere are simply absent from public debate. It is seldom part of public discourse in the United States (wherever one places oneself on the political map) to consider government to be anything other than "the enemy". By contrast, until quite recently, Canadian political debate has traditionally entertained a strong belief in government as the purveyor, mediator, and promoter of public values and public goods. Only the specific values and the particular public goals to be achieved were open for debate. Another key feature of United States political discourse is the strongly held belief in the sharp distinction between public and private spheres -- most notably seen in the so-called "wall of separation" between church and State. Conversely, established religion and the public provision of social services through religious and charitable organisations has often blurred the line between public and private spheres in Canada.
37. To understand the current influence of U.S. political discourse, one need look no further than the several efforts to "unite the right" in Canada. To date, and most likely for the longer term as well, this will probably be a failed project. It presumes that in Canada, being on the "right", means the same as it does in the United States. This is manifestly not the case. Consider the contribution of the tory perspective to public life in Canada over the past two centuries. Toryism is an ideology grounded in ascriptivism and social differentiation, hardly a perspective congenial to those favouring a non-Burkean theory of electoral representation. The tory commitment to order as a precondition to liberty has meant that the expression "Law and Order" has had few of the repressive connotations so familiar to political liberals. For tories, the State is a basic social institution like the church, the family the local community, the professional association, and the trade union. Canadian commitments to public education, workhouses, orphanages, and the economy building endeavours of Macdonald's first National Policy and R.B. Bennett's second National Policy reflect the tory view.
38. These observations about the influence of political culture on governance can be drawn down into a number of concrete conclusions. To begin, apart from those ideological tendencies on the margins of contemporary Canadian political debate -- radically anti-State "libertarians" on the one hand, and radically pro-State "communists" on the other -- political ideologies do not necessarily determine the forms, structures and processes of governance as such. By this I mean that there is no absolute connection between political ideology and the legal instrument -- the criminal law, taxation, subsidy, public ownership -- chosen to effectuate public policy. For example, people holding tory, liberal, whig and socialist views all accept (in the abstract) the legitimacy of the criminal law and taxation as instruments of governance.
39. This is not, however, to say that political ideology is unimportant. But it tends, rather, to point to the objects of governance, to dimensions of social life where the governance agenda should be manifest. So, for example, it is frequently the case that those who believe in the desirability of a market-driven economy, and who are sceptical of attempts by government to regulate economic behaviour, nonetheless see a central role for the State in adopting and carrying on board the regulation of social behaviour. Hence, those who call themselves "social conservatives" wish to conscript the state into advancing their own view of what classical liberals would call the realm of private morality. By contrast, many who hold to non-interventionist views in the domains of morality and private behaviour -- so-called "liberals", nevertheless would willingly conscript the State into active economic regulation and redistribution. In both cases, one sees calls for "criminal regulation" (the criminalisation of abortion and the criminalisation of usury, respectively), as well as calls for "non-criminal regulation" (the regulation and licensing of marriage and the regulation of landlord-tenant relations, respectively).
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40. These considerations suggest the following governance questions in connection with the regulation of "illegal" drugs. What types of judgement about the scope of permissible human agency flow from different political ideologies? In what fields of human endeavour does political ideology directly or indirectly bear on the choice of policy instrument to regulate behaviour? How does political ideology influence decisions about the point in the process of bringing drugs to market that regulation through the criminal law is believed to be appropriate?
3. Sites of Governance -- Legal Pluralism
Political ideology influences both the manner in which different sites of legal regulation are identified and the conception of the kind of regulation -- State or non-State -- to be preferred in each of these sites.
41. The above discussion of the influence of political ideology on conceptions of human agency and governance was focused on the institutions of the political State. This focus is consistent with how law and legal regulation have come to be understood by mainstream jurists over the past two centuries. The post-enlightenment perspective holds that the primary, if not the only, site of law in modern society is the State: law is the sum of the normative institutions and outputs that are ultimately authorised by the constitution of the political State. Governance through law, therefore, must be achieved through State officials.
42. While this view of legal governance has recently been dominant among those with a formal legal training, it rests on nothing other than stipulative definitions of both law and governance. Economists, political theorists, sociologists and anthropologists have no difficulty in imagining a plurality of sites of normative human interaction. That is, they have no difficulty is seeing the State as only the most formalised site of normative human interaction giving rise to law. Before addressing the implications for the governance of drugs of imagining legal regulation more broadly, it is worth considering why there been a conflation of law and the State among jurists and, by ricochet, the general public?
43. In answering this question, it is helpful to put aside purely conjunctural reasons like the significant presence in our everyday lives of police, regulatory agencies and other officials whose authority derives from Parliament. So too, the influence of the popular media in promoting governments, legislatures and courts as epitomes of law should also be set aside. One should turn, rather, to symbolic reasons. State normativity is expressly legitimated through processes of democratic accountability. A fundamental principle of a constitutional democracy, is that governments must act "according to law". This typically means that they can only exercise those powers delegated to them under the constitution.
44. Parliament, the collegium of elected representatives of the people, must ultimately authorise all government action. Most often it does so through direct legislation, although in some domains Parliamentary control is at best indirect or hypothetical. Governments frequently derive their authority from the residuum of prerogative or executive power maintained by the constitution. Thus, the power to own land, or to make contracts with citizens, or to dispense largesse through subsidies need not actually flow from prior statutory authorisation. Of course, Parliament can, and recently has, sought to structure most of these executive powers by enacting detailed statutes. Once it does so, the prerogative power can thereafter be exercised only in accordance with Parliament's procedural and substantive wishes.
45. Just because governance by the State must take place within a framework of explicit law does not, however, mean that the converse proposition is true. The notion of "governance according to law" does not exhaust itself at the boundaries of State action. Governance according to law is an achievement that can be found in all sites of human interaction and in all human institutions. These can be public institutions -- like unions and corporations; they can be private -- like clubs and charities; they can be formal -- like universities; and they can be informal -- like families. What distinguishes law from other forms of social power is its claim to legitimated normativity. Its distinctive characteristics are its aims and ambitions, it processes of normativity, and its institutional forms -- not its explicit connection to the State.
46. Once law is understood as the "enterprise of subjecting human conduct to the governance of rules", its pedigree -- did it emerge from the State? -- is no longer a relevant definitional consideration. To understand governance through law is to investigate all sites where rules are meant to achieve the governance of human interaction.
47. The idea that law is found wherever normative human interaction is present has generated a lengthy literature under the rubric "legal pluralism". Legal pluralists posit a multiplicity of legal orders in every society. Different social milieux, they argue, give citizens the occasion create and negotiate their own normative standards to shape and symbolise social behaviour and their own institutions to reinforce or apply these standards. Even the simplest legal regimes are constituted by a plurality of decision-making institutions, distributive criteria and cultural traditions. State-sponsored normative standards do not function in a naively instrumental way, as exogenous variables acting upon a passive society and changing behaviour directly by offering rewards for, or placing sanctions upon, certain conduct. Different legal regimes are in constant interaction, mutually influencing the emergence of each other's rules, processes and institutions. The structures and trajectories of interaction as between these multiple legal orders are varied and unpredictable. To understand the role that State law actually plays in a given social field, it is necessary to understand the character and operation of multiple regimes of unofficial law in the same field.
48. For example, activity that the official criminal law sanctions and stigmatises may be rewarded and valued in certain other normative communities. In socio-economically impoverished neighbourhoods where economic opportunities are limited, the manufacture and sale of illegal drugs may be an attractive means of escaping poverty. For those who are successful in the enterprise, the consequent advancement in social standing may more than offset the potential harms visited by criminal sanctions. Similarly, in an international context, in countries where the raising of traditional crops which are capable of being converted into illicit drugs is an indigenous cultural activity, and where conditions of poverty are such that the attendant economic benefits are necessary for subsistence, the criminal law (whether domestic or international) has little purchase.
49. Legal pluralists also note the diversity of norms, processes and institutions within any given normative system. Explicitly announced legal rules (fashioned by whatever type of political or social law-making institution that may exist in a given society) are not the only vehicles of normativity; these legislative artefacts complement a variety of indigenous and customary rules, practices and purely implicit interactional expectancies. Conceptions of justice also are infinitely plural, even within relatively organised institutional settings. Furthermore, normativity cannot be equated with institutional organisation (especially with the specialised office of law-application -- courts), but is secreted in patterns of deference and contestation to tacit (and occasionally, virtual) claims of authority. Processes of human interaction are infinitely more varied than those suggested by a myth of law that gives priority to legislatively announced claims of right and judicial adjudication of these rights. Finally, because families, cultural communities, workplaces, neighbourhoods, bureaucratic organisations, commercial enterprises and an almost infinite variety of other sites of human interaction are seen as sites of legal regulation, the root conceptions of normative interaction within and among them must themselves be plural.
50. The implications of the pluralist perspective for governance of "illegal" drugs are significant. First, legal pluralism raises the hypothesis that non-conforming behaviour in any particular regime is not simply a failure of enforcement or civil disobedience. It may be the reflection of an alternative conception of legal normativity. That is, the pluralist perspective invites analysis not just of formal regulatory institutions, but also of all the competing normative orders that struggle to achieve governance over any particular field of human endeavour. Of particular interest is the "black market". Since prohibition cannot eliminate the existence of transactions involving illegal drugs, any official regime that attempts to do so will create an underground economy. This black market has its own normative character and enforcement mechanisms that often work against official norms.
51. In addition, a legal pluralist analysis suggests that any regulatory strategy may have to be tailor-made to specific normative sites. The retail sale of illegal drugs is only the last step in a long process of production and distribution. The importation, the processing of raw materials, the synthesis of drugs, the transportation and wholesaling, retail distribution and consumption are each "semi-autonomous social fields". Because these sites are semi-independent normative sites that are driven by different socio-economic factors and that are informally governed by very different normative orders, different formal regulatory strategies may well be required for each. For example, it may be appropriate to continue to deploy the criminal law sanction at the point of importation, while adopting a licensing strategy at the point of manufacture, and even a public corporation strategy at the point of retail distribution.
52. Finally, a legal pluralist analysis points to the possibility that the governance of "illegal" drugs cannot be conceived as a unitary or single regulatory field. Patterns of retail consumption of different drugs may be socio-economic class differentiated, aged-differentiated, gender differentiated, ethnicity differentiated, geographically differentiated. Different criminal organisations may control the manufacture and distribution of different drugs, implicitly dividing markets among them. As a result, the appropriate governance strategy may depend on an assessment of the organisational structure of the groups who control patterns of manufacture and distribution of different drugs.
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53. These considerations raise the following governance questions in connection with the regulation of "illegal" drugs. Under what circumstances does the regulatory authority of the State come into conflict with regulatory authority flowing from other normative orders? Is it possible to conscript these other normative orders into policy congruence with State regulatory policy? Are certain types of regulatory strategy more adept at achieving a regulatory goal in certain points or at certain sites of activity? Under what circumstances does a regulatory strategy adopted at one governance site undermine or compromise the effectiveness of a strategy in another domain? Does each type of "illegal" drug -- say to take some examples, marijuana, designer chemicals, cocaine, heroin -- constitute a different normative site?
4. Modes of Governance -- Processes of Social Ordering
At each site of governance several different processes of social ordering are interwoven. Successful governance depends on matching these processes to specific regulatory purposes.
54. It is not just the sites of governance that are multiple in modern society. The modes of governance -- the forms of law and the manner in which social normativity is expressed -- are also plural. Nonetheless, because it is common for citizens to think that the purpose of government is explicitly to govern -- to regulate persons, things, and actions -- legislation has come to be seen as the central instance of law. Legislation, in this understanding, means statutes enacted by a Parliament or provincial legislature, regulations, by-laws, orders-in-council and other statutory instruments passed under the authority of a statute. Five features epitomise legislation as a normative form: (1) explicit enactment, (2) by a supreme rule-making body such as a Parliament, (3) of relatively straightforward commands, (4) in a standardised style and form, (5) using the everyday vocabulary and syntax of a natural language (in Canada, for example, English and French). In this understanding, the Criminal Code is the standard instance of legislation.
55. To see why this preoccupation with legislation reflects an impoverished view of governance through law, it is only necessary to consider the diversity of processes by which human beings organise their social relationships with each other. At the highest level of abstraction, two organising principles of human interaction can be discerned. These roughly correspond to the Aristotelian distinction between corrective justice and distributive justice. On the one hand, people may directly negotiate bi-lateral relationships with each other. Here notions of private reciprocity and adjudication line up nicely in a logic of corrective justice. To be contrasted with this principle of organisation are the occasions where people come together to achieve a common purpose. Rather than negotiate a structure of reciprocity, it is the common end, or the objective to be achieved, that defines the relationship. Here it is notions of the public good and the calibrating of multi-party distributive justice that are in issue.
56. At one level removed from the large question of reciprocity (markets) and common purposes (politics) as an ambition for law are questions about the different forms of association and decision-making that people use to achieve their private and public goals. Without pretending to give an exhaustive listing one can imagine at least nine distinct processes of social ordering: custom, contract, mediation, adjudication, consultation, managerial direction, auction, voting and deliberate resort to chance. Analytically, these nine processes can be sorted into three groups of three.
57. There are, to begin, processes where parties themselves arrange on their own initiative their normative relationship: custom, contract and mediation. Here custom is understood the ongoing mutual adjustment of interactional expectancies between those who are members of a given society -- however large or however small. The variations of innumerable and also involve ideas like practice or usage. The notion of contract as an ordering process is another form of a more explicit reciprocity. Similarly, the variations -- barter, exchange, and so on -- are innumerable. Contract implies explicit acts that generate expectations of future performance. Sometimes, parties need the help of a third person either to recognise or adjust a practice, to come to an agreement, and to frame a relationship, or to solve a problem that may have emerged with the relationship. These third persons we call advisers, elders, conciliators, peace-makers, mediators, and so on. The parties themselves are ultimately responsible for the outcome, but the mediator serves roles as varied as quasi-adjudicator, as alter ego of the parties, or as facilitator.
58. One can also postulate processes where the ordering outcome flows from a third-party decision: managerial direction; consultation; adjudication. What characterises managerial direction is the character of the authority claimed: it neither depends on the explicit consent of parties, not does it require self-conscious justification by reference to pre-existing norms. By contrast, a consultative process invariably involves recognition of the need for a more explicit form of consent from affected parties -- hence the attempt to glean their views; and it involves recognition that the decision in question must rest on an appeal to a norm (however vague and abstract) by which the opinions of consulted parties may be measured. Adjudication, of course, is not a monolithic process, and its has many variants even within the judicial system -- as between appellate decision, family court decisions, commercial decisions, small claims court decisions, and so on. But what distinguishes the process is that the parties defer to the judgement of another as to the meaning of a norm that they accept as prima facie controlling, and the parties defer to the judgement of another as to what version of the "facts" in issue is most plausible.
59. A third general category of social ordering processes can be described as decision by institutional rule: markets; voting; deliberate resort to chance. By markets is meant the processes by which resources (typically, but not always money -- consider for example what is meant when in a complex multi-party negotiation, one person talks about spending "brownie-points" or credits in order to obtain a desired outcome) are expended to achieve an outcome desired by one or more parties, and the ordering rule is that those who are willing to expend to the most such resources in a given situation obtain the desired outcome. Voting is, like markets a process governed by an institutional rule, but ultimately most voting procedures take place on the basis that all are endowed with equal resources -- one vote. Deliberate resort to chance implies an institutional rule -- and not a third party choice or the parties' own choice is determinative, and the equal entitlement of all cannot be influenced by the activity of other parties. Chance is, that is, truly random and blind to the particular characteristics of parties. More than the other types of process, these reveal how dependent substantive outcomes are on the way in which the process is constructed: there are multiple forms of auction -- the open market is only one; closed bidding, progressive auction, dutch auction, and so on, are others. Even the laws of chance, or other rules of homespun wisdom -- first come, first served, for example -- favour certain interests over others.
60. Recognising that governance frequently involves choosing between at least two different frameworks for organising and framing human interaction -- reciprocity and common purposes -- and that people's motivations for co-operating with each other can be traced out through a diversity of processes of social ordering has significant implications for the design and implementation of public policy. Every choice of policy instrument implicitly involves preferring one principle for framing human interaction over the other; and every choice of policy instrument implicitly commits those who manage the governance endeavour to promoting one or the other process of social ordering. Notwithstanding that these choices are typically framed in purely instrumental terms they necessarily imply substantive choices about the capacity of human beings to organise their lives and the freedom they should be given to do so. Today, some libertarian theorists propose that governance through explicit reciprocity should prevail: contracts and markets should be the sole modes of regulation in the area of what are now "illegal" drugs. By contrast, others claim that the potential for markets to generate exploitation points to the need to impose a governance regime that explicitly acknowledges general social purposes.
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61. These considerations raise the following governance questions in connection with the regulation of "illegal" drugs. Under what circumstances is it possible to imagine the deployment of horizontal or reciprocal processes of social ordering to structure the production and consumption of drugs? Is the appropriate locus of regulatory tolerance the individual -- as grower (manufacturer) and consumer? Are there necessarily distributive consequences that require a State presence in ensuring quality control, health and educational risk, and the financing of palliative measures to combat the perverse health and social consequences of drug-taking? Does the choice of reciprocity-oriented processes like contract or markets at one site in the overall governance regime preclude the choice of common-ends processes elsewhere?
5. Tools of Governance -- Policy Instruments
The choice among diverse tools of governance is driven more by assessments as to the relative importance that regulators to afford to criteria such as coercion, visibility, perverse consequences, and output and enforcement costs than inherent characteristics of the policy problem to be addressed.
62. As public choice theorists have long observed, there are numerous tools that governments can deploy to achieve a regulatory agenda. All normative institutions, from the State to the family, have a range of options in selecting among these governing instruments. In the traditional optic, regulatory objectives may be achieved through one of two main forms: sanctions (sticks) or rewards (carrots). Of course, there is a third, condign regulation, where the idea is to create a climate of compliance rather than a simple fear of sanction or pursuit of an inducement it the motive for action. Before considering these various options, two preliminary points should be addressed.
63. First of all, it is worth noting the diversity of activities that the State is normally called upon to perform. Without some sense of the expectations visited upon it, it is hard to appreciate the complexity of the choices faced by policy-makers. The following is a relatively standard inventory taken from public administration analysis. Formally, governments make rules, decide cases and manage the public business. They may make rules directly, or indirectly. They may consign the decision of cases to an independent third party agency -- courts -- or may retain that role for themselves. But it is precisely in the detail of how governments manage the public business that the diversity of regulatory instruments can be seen. Governments raise money -- through a wide variety of taxing and licensing strategies; and they spend money, on procurement, as well as on subsidies and other redistributive activities. Governments own property, expropriate assets, sell or otherwise provide goods and services, build things and run monopolies. In the management of public business governments educate, negotiate, investigate, consult, field complaints, set standards and conciliate. They act as a gate-keepers, and they license, police, prosecute, boss around, advertise, educate, label and stigmatise.
64. The second preliminary point goes to understanding the non-instrumental role of governing. In the modern world, the most important functions performed by government are symbolic, or second-order, functions. Governments seek to identify, shape and reinforce structure of commitment and belief. This role is most obvious, and probably least effective, when it is tied to overt signs of patriotism: national anthems, national flags, national birds, flowers and minerals, official mottos and coats of arms -- all are advanced as governing instruments meant to generate regulatory responses. In addition to these undifferentiated signals of patriotism, governments attempt to educate in the economic sphere: they promote "buy Canadian" campaigns, and attempt to support various forms of indigenous cultural expression. What is more, governments are heavy users of the mass media to advance the policy agenda: they advertise to discourage driving while impaired, the consumption of tobacco; they promote the wearing of seat-belts, the installation of smoke detectors, and breast self-examination. Finally, governments seek to promote values, to act as a locus of political engagement and participation, and to provide symbolic characterisations of acts, ideas and intentions through which citizens are meant to find meaning in their lives.
65. Of course, a mere inventory is no substitute for analysis. What, then are the most significant categories of instruments by which governance may be achieved? One may begin with the classical forms of sanctioning instrument. Most direct is the outright criminal prohibition. This can occur through the Criminal Code itself or through any other instrument that stigmatises behaviours and sanctions occurrences. Short of outright prohibitions are conditional prohibitions where behaviour is permitted only in certain circumstances, or by certain persons, or for certain purposes. Age restrictions on alcohol consumption are of this order. There are also prohibitions resulting from the licensing and policing of activities. Permits to stage parades, protests and public demonstrations are of this order. In all but the first of these situations, the policy choice is often related to how the regulatory rule should be framed: as a general prohibition of the conduct, subject to exceptions; or as a general authorisation of the conduct, subject to specific prohibitions. These choices can be represented in the "illegal" drug context, respectively by a medical exception to a general prohibition, and a generally permissive policy of drug availability, with exceptions drawn either at certain particular kinds of drugs (for example, drugs that are highly addictive or that lead to violent behaviour) or certain classes of potential consumers (minors or those who are already addicted).
66. As one moves from the ex ante normative structuring of conduct through the criminal law, one encounters situations where the economic calculus looms and is meant to loom large. Licensing of activities, taverns for example, creates monopolies and oligopolies whose entrepreneurs can charge rents. Often these rents are reflected in license fees, but sometimes monopoly pricing is intended as a regulatory strategy to reduce consumption. Closely allied with monopoly rents as a regulatory strategy is the taxation strategy. Certain behaviours are tolerated, but are taxed as "luxuries" or "sins". Occasionally the taxes are justified as a means of recapturing externalised costs of behaviour (as in the sense of the medical costs associated with smoking), but most frequently the rationale is revenue generation or regulatory disincentive. One might observe that if the recapture of externalities is the primary goal, this could be best achieved by refashioning property rights so that manufacturers have to account for these in their cost of production.
67. Consideration of the economic incentives and disincentives associated with regulation leads to reflection on rewards or inducements to action. These would include direct subsidy, investment, low-interest loans, tax relief, protection of monopoly, franchising, guaranteed supply contracts, premium rebates, exemptions from existing regulatory regimes. Inducement governance also embraces the use of law's facilities to achieve private purposes. Making available regimes of private ownership, contract and wills is a strong inducement for private action within the realm so opened. Hypothetically, if one wanted to increase the available blood supply, commodification of blood could be an inducement-oriented regulatory strategy. They differ from sanction regulatory strategies in that the former, whether hard (as in criminalisation) or soft (as in licensing, suspension, probation, adverse publicity, exposure to civil action and so on) are not directly focused on the negative -- the taking away of freedom, wealth or reputation. Nonetheless, both forms of governance strategy are explicit and direct. Both are ultimately focused on compliance with a particular objective.
68. However significant sanctions and rewards as regulatory strategies may be where citizens are directing their attention to issues of compliance, by far the most effective strategy is condign or attitudinal. The primary forms of condign regulation are co-ownership, information, education, and publicity. Condign regulation typically achieves its purposes through an appeal to guilt, pride and self-interest. When a government imposes standards upon a co-contracting party -- for example, hiring quotas under the federal contractor's programme -- the primary regulatory tool is reward: receiving the contract. When government owns, regulation occurs because market competitors must adjust their goods and services to match those of the public enterprise, providing of course, that the relevant government subsidy is sufficient to keep pricing competitive. Co-ownership achieves a regulatory purpose by requiring the joint-venturer simply to follow the policy decisions already taken by the public sector joint-venturer. The role of education, information and publicity is shaping behaviour has already been noted. As a governance strategy, the theory is less directed to specific behaviours than it is to the manner in which the targets of regulation perceive themselves and their options.
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69. These considerations raise innumerable governance questions in connection with the regulation of "illegal" drugs. Under what circumstances is it possible to imagine the deployment of markets as a regulatory tool? If one wants to undercut a "black market" is it necessary to price a legal product so that the profit margins for illegal trade are minimal? Is the criminal law the best device to achieve visible regulation? Is the criminal law effective to different degrees depending on whether one is regulating supply or demand? How does one evaluate the relative weight of competing policy goals in assessing different instruments?
6. Modelling Law -- Orders and Rules
The selection of any particular governance strategy presupposes an initial choice about the underlying logic of law as a regulatory regime: is law to be seen as a mechanism to directly coerce behaviour by managerial direction or as a means to guide behaviour through ex ante rules?
70. However important it is to understand the ways in which political ideology can shape argument and debate about the good and the just in formal institutions of governance, it is just as important not to overplay the policy impact of these divergent ideologies. A similar caveat can be entered about the limited impact of political ideology on how the relative priority of competing official and unofficial normative orders is determined, how the selection of the principle of reciprocity or of common ends as an organising framework is made, and how the choice of specific governing instrument is structured.
71. No doubt, as a matter of theoretical potential, and in respect of issues that have been polarised or "coded", ideology will be deployed in the service of policy. This is possible because the concept of Parliamentary sovereignty, the foundation of legislative practice in a British-type constitutional regime, means that there are, in principle, no substantive limits on the power of a legislature to enact statutes. Different political ideologies might, that is, generate radically different sets of legislative agendas for Parliament.
72. In Canadian practice, however, this theoretically unlimited competence, to be shaped only by ideological considerations, is markedly modified. It is, first of all, subject to two constitutional constraints: those flowing from the division of legislative powers provisions elaborated in the various Canadian Constitution Acts (notably sections 91-101 of the Constitution Act, 1867) and, more recently, those flowing from the Canadian Charter of Rights and Freedoms.
73. The former document constrains both the subject-matter of enactments and the policy instrument that can be deployed. The latter constrains the substance of legislation and the processes by which policy can be implemented. So, for example, under section 91, the Parliament of Canada alone can legislate in respect of "Indians and lands reserved to Indians", and under section 92, provincial legislatures alone may legislate in respect of municipalities and education. As for instruments, the Constitution Act, 1867 restricts deployment of the criminal law to regulate activity to the Parliament of Canada; on the other hand, all legislatures -- provincial and federal -- are permitted to deploy instruments like taxation, subsidy and public ownership across the full-range of substantive fields. Similarly, under the Charter of Rights and Freedoms, an array of substantive "equal protection" limitations constrain legislative targets, and "due process" considerations limit the exercise of regulatory powers.
74. In addition to these constitutional limits, a number of informal constraints on legislative action may be imagined. Some relate to the very notion of human agency and citizenship that the idea of governance through law implies: for example, it is hard to imagine a legislature enacting truly retroactive laws, or laws that require the impossible, or that are self-contradictory, on so on. If the idea of governance through law is to structure and channel social interaction for the future then legislative action must, in principle, be both future regarding and capable of being followed by those who would do so.
75. Other constraints on legislative action relate to underlying socio-political values: for example, it is hard to imagine Canadian legislatures enacting statutes to abolish private property or to prohibit absolutely either marriage or divorce. At some point, political ideology runs up against the hard facts of political possibility. Even in those provinces where elected governments strongly favour a smaller public sector and markets as a governance strategy, it would currently be politically unfeasible to enact a regime under which all kinds of "illegal" drugs would be made available in the manner of candy bars or screwdrivers. The practical impacts of these latter types of informal constraint on legislative action will be considered in the next four sections of this paper.
76. For present purposes, however, there is a further point to emphasise. Choice in political ideology is rarely determinative of a specific set of policy outcomes. There are several reasons for this. At best, political ideology gives raw, macro responses to questions of ends, and only the most general of indications about questions of means. A given political ideology may induce one to believe that "the State has no place in the bed-rooms of the nation"; but it does not directly answer the question whether this assertion means that the ingestion of illegal drugs as a prelude to sexual activity should be proscribed. Likewise, a given political ideology may induce the belief that the objective should be to "get government regulators off the backs of citizens"; but it does not directly answer the question whether it is the responsibility of the State to regulate economic activity so as ensure the potability of drinking water, the quality of the atmosphere, or the purity of foodstuffs. So, for example, a libertarian argument may lead to the conclusion that all forms of government regulation of drugs are illegitimate, but it does not address the question how the harms that flow from addiction, or the health risks of product impurities should be palliated or minimised.
77. These examples show that, even in situations where there may be a broad consensus about the need for the State to deploy law to achieve a particular set of governance objectives, it is still necessary to frame in intelligible, normative language the scope and scale of the legal obligations one wishes to announce. Posing the challenge in this manner invites reflection on the extent to which substantive and procedural questions may be intertwined. Are there better, and worse, ways of drafting laws and designing institutions of governance, depending on the social goal sought to be achieved? As a first step in responding to this question it is worth focusing on two different ways of imagining how to achieve governance by law: one way sees law as obligatory commands; and the other sees law as facilitative guidelines for everyday activity.
78. People who tend to the former perspective conceive law as an instrument of social control that institutions of governance (most notably the State) should wield to closely regulate behaviour. When faced with a social problem, the best solution is to call on the State to enact a regime of detailed rules prescribing specific outcomes that can be adjudicated by a court. This view of legal regulation and the State has been ascendent in western societies since the end of World War II.
79. Abdicating to the State full responsibility for the justice and fairness of social interaction is typically the prescription of those who have a rather pessimistic view of human nature. They think that people are not usually inclined to act justly and responsibly towards each other. People are presumed to need the directing hand of government to tell them how to organise their lives so as not to exploit the less powerful. For those who are inclined to this view, the law enacted by the State is not perceived only as a fall-back device to be invoked when human beings act inappropriately. A detailed code of official law that compels people to act properly is believed to be necessary for maintaining social peace.
80. Not surprisingly, people who see the role of the State and the aims of law in this way also have to a quite definite point of view about the way in which legislators should write laws. If the purpose of law is to tell people how to act, the law ought to be written in a way that reflects that objective. The model for law here is commands. Law should be similar in form to the top-down orders of a business manager or army commander. The only technical challenge for legislative drafters is to write a statute so that it is as effective an instrument as possible for issuing orders to dictate what people can, and cannot, do. The more that all law looks like the Criminal code, the better.
81. By contrast, people who tend to the latter perspective have a less servile attitude towards the State. When faced with a social problem the appropriate response may well be to call on the State to make law. But this law would not consist of detailed regulatory commands. It would be law that sets out frameworks for self-directed human interaction through which people would be able to pursue their own purposes and goals. It would be law that allows for alternative conceptions of what justice requires, and of the institutions by which it may be pursued. And it would be law that permits citizens to take responsibility for both the form and the outcomes of legal processes.
82. Those who see law's central aim as facilitating human interaction usually have a rather more optimistic view of human nature. They believe that people really do have the capacity to live morally and with due regard for the interests of others. For them, fairness and reciprocity typically characterise social life. Official law directly comes into play only at the margins of everyday activity, in those few cases when people behave irresponsibly.
83. This idea of law, like the other, is also grounded in a definite point of view about the way legislators should draft laws. Successful law depends on its rules being largely in harmony with social practices and values. The law highlights these values and offers legal vehicles through which people may advance them in association with others. The model for law here is rules or guidelines that give general directions, rather than command specific outcomes. The technical issue for legislators is how to write laws that help people recognise the duties they have to each other and that remind them how to fulfil those duties.
84. In practice, legislatures do not normally face such a stark choice between forms of regulatory instrument. Yet the general point is fundamental to any consideration of governance by law. Quite independently of political ideology and beliefs about the appropriate scope of State action, the very idea of regulatory governance through law presupposes that citizens have the capacity to orient their behaviour by reference to abstract standards that presume their capacity to divine what is expected of them. However much moral and economic crusaders think that it is possible to deploy law as if a society were simply a large army or corporation hierarchically organised through a chain of command by which specific orders could be passed down to those meant to unthinkingly follow them, the scope and scale of complex, modern societies reveals the impossibility.
85. The absurdity of imagining societal governance by command is evident when one considers that even hierarchically-organised everyday public institutions -- most obviously the police and the public service -- can only function within a structure of broad delegated discretion. A bureaucracy may constrain and shape the manner in which discretionary choice is exercised. It cannot turn itself into a vertical command structure. So the governance question becomes one of deciding how to frame rules to guide behaviour, leaving regimes involving detailed regulatory commands to total institutions like armies and prisons.
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86. These considerations raise the following governance questions in connection with the regulation of "illegal" drugs. Is it possible to create a regime of public management in which sufficient resources can be devoted to hierarchically-organised enforcement agencies to permit them to combat hierarchically-organised "black market" criminal syndicates? If so, is it possible to impose this regulatory framework on the general public in a liberal-democratic society? Faced with widespread disregard for the criminal prohibition on retail consumption of "illegal" drugs can a governance model that denies or severely constrains human agency succeed? What facilitative role for the criminal law exists in fields where the potential for a "black market" is strong?
7. The Legal Framing of Human Interaction
A governance regime that is organised on a logic of ex ante facilitative rules requires that these rules be tailored to the capacities and aspirations of those human agents whose conduct they target.
87. Both of the above two conceptions of how governance through law can be achieved are, in principle, fully compatible with recognising a diversity of normative sites, modes of ordering and policy instruments. This said, of course, the idea of law as facilitative rules is overtly more inviting of diversity and experimentation. By privileging the idea of law as facilitative rules over the idea of law as orders, moreover, attention is directed away from the specific outcomes of legal activity and towards an entirely different inquiry into social meaning. The struggle to achieve governance through law is transformed from an instrumental struggle by governance institutions to achieve compliance into a symbolic struggle by citizens for recognition and respect.
88. In THE MORALITY OF LAW, Lon Fuller famously offered up an allegory of King Rex to illustrate eight different ways in which lawmaking processes could fail. These failures were recast by Fuller as eight aspirational canons of what he styled the "internal morality of law" -- canons that were meant to encapsulate the requirements for ensuring the integrity of legal rules. Through this allegory of King Rex, Fuller sought to show how presuppositions about the capacity of citizens to act as rational agents, about the reciprocity of lawgiver and law-subject, and about the substantive goals that could be effectively pursued through ex ante rules are built into the traditional conception of legislation.
89. As noted, if human beings are presumed to be rational agents, legal rules should focus on setting down base-lines for self-directed action, rather than announcing non-discretionary commands. The goal of law is to make it possible for human beings to pursue their own purposes within a framework of rules that allows their conduct to be apprehended and understood by others; regimes of legal rules should, therefore, be as simple and as universal as possible. From his root assumption about human agency, Fuller distilled eight "implicit laws of lawmaking". These he expressed as: the principle of the generality of laws; the requirement of promulgation; the prospective application of legal rules; their intelligibility; the avoidance of contradiction; the constraints of possibility; relative stability of rules through time; interpretive congruence. A sense of the analytical and evaluative enterprise can be clarified by developing a couple of these ideas in greater detail.
90. Take first the idea that laws must be promulgated and publicised. If citizens are meant to orient conduct by reference to new rules, they need to know what these rules are. In a democracy, laws are rarely secret, unpublished or hidden, but they can be passed in a manner than escapes the attention of the public. Examples include: legislation passed quickly; statutes that have purposely misleading titles, or that hide bizarre provisions within lengthy texts; and laws that are shell enactments where everything is stated in regulations, or in masses of rules incorporated by reference. The temptation to use the legislative form as normative camouflage arises because an enactment need not offer any justifications for its contents, and can be wrapped up in politically-charged titular or preambular indications of its rationales. In the context of the regulation of "illegal" drugs, recent legislation aimed at permitting the medical use of marijuana is an example of normative camouflage where the preambular and advertised objectives of the legislation are not congruent with the regulatory regime actually brought into force.
91. Another dimension of the internal morality of law is captured by the principle of intelligibility. If statutes are so detailed, complex and confusing that they cannot be understood except by professionals, they can hardly be said to provide baselines for self-directed human action. Legislation need only be transparently intelligible to its primary intended audience: statutes enacting industry standards may well be both technical and detailed. Where legislation is meant for citizens it carries an additional burden of intelligibility. It must also track the common morality of the population, so that its prescriptions may be easily transposed to the conduct of everyday affairs. One of the factors that makes the current regime of criminalising drugs problematic, is that there is no direct connection between the expectations of large segments of the population and the legal regime, especially as the latter applies to marijuana and hashish. To require, as the law now does, that citizens discover meaningful distinctions between alcohol and marijuana, and then transpose these distinctions to their everyday conduct, strains the principle of intelligibility.
92. That legislation cannot be contradictory or require the impossible are two other, complementary, principles. Rarely do statutes contain explicit contradictions. But as between two or more statutes, implicit contradiction, or policy objectives working to cross-purposes, are common. For example, when Parliaments use tax incentives and disincentives to induce certain types of behaviour, these may inadvertently conflict with policy goals promoted in enactments relating to employment, housing or consumer protection. The principle of impossibility obviously embraces the absolutely impossible, but also includes the idea that legislation should not require people to make moral or ethical decisions that are beyond the capacity of the average citizen. Since not all citizens are saints, statutes should not be framed on the assumption that they are. In the context of prohibitory regimes this is an especially important point. Underlying many such regimes is a moral valuation. The lack of self-control that accompanies the altered state caused by ingesting "illegal" drugs, or that attends addiction, is said to be morally blameworthy. Where large segments of the population reject the characterisation of blameworthiness, then the legislative prohibition over-reaches and will fail.
93. These reflections about what might be called the basic intendments of a structure of governance through legal rules suggest how difficult it is to translate "ideal-type" performative aspirations into everyday practice. When transposed into the legislative realm, these "principles of good legislative design" clearly reveal their aspirational character. There is no longer a close connection between the Parliamentary statute (as a vehicle for achieving governance through law) and the idea of legislation as a form of normativity that recognises and respects human agency. Many legislative outputs today have both a form and a function that is offensive to this understanding of the governance enterprise. What is more, simply because these desiderata may be followed in any particular law-making endeavour does not mean that legal technique by which Parliamentary ambitions are pursued achieves an optimal framing of the regulatory objective. There is a further dimension of law-making prowess. It comes in the recognition that governance involves an ongoing reciprocity between law-maker and citizen.
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94. These considerations raise the following governance questions in connection with the regulation of "illegal" drugs. Under what conditions of citizen responsiveness can legislation be successful when cast in the form of an absolute criminal prohibition? Does the over-reach of law's moral intendment disengage citizens from fidelity to its other regulatory forms? As a governance strategy meant to promote fidelity to law, is the under-reach of law -- permitting conduct that significant portions of the population would seek to criminalise -- preferable to the over-reach of law? Which strategy -- regulatory over-reach or regulatory under-reach -- is most likely to generate organised "black-market" responses?
8. Moral Agency in Legal Rules
The most effective strategy to achieve successful governance through law is to structure regulatory regimes that recognise and promote moral agency by involving citizens in the elaboration, specification and management of the regime.
95. Citizens are increasingly turning to law as a way of achieving a just framing and mediation of human interaction. Many specific social objectives are currently be pursued through law: citizens seek empowerment in the workplace and the marketplace; they seek to preserve the environment and valued social practices; they seek to build and maintain harmonious communities free from violence and aggression; and they seek justice in interpersonal relationships. Democratic political theory tells citizens that they should be able to wield law to accomplish any purposes they desire. Experience with instrumental legal regulation, however, often reveals a gap between what official law promises and what it delivers. Indeed, instrumental legal regulation often produces what economists call "perverse consequences". Hence the need for an alternative, non-instrumental story of governance through law. How can citizens be empowered to find their own regimes of symbolic governance?
96. The distinction drawn earlier between two models for understanding law -- the idea of law as a relatively specific set of prohibitions or obligatory directives (responding more or less to the logic of 'law as commands'); and the idea of law as a much broader body of general constitutive or permissive structuring rules (responding more or less to the logic of 'law as a facilitator of human interaction') -- was not meant as a claim that there are only two archetypes of legal rules and that legislatures must choose one or the other form of enactment. When examined in terms of the scope they give to human agency, legal rules can be seen to lie along a spectrum of possibility. Both courts, in announcing common law rules and, more frequently, legislatures contemplating a new enactment confront a series of design decisions relating to the style and purposes of the rules they elaborate.
97. There is a further consideration. One has to be on guard against oversimplifying the complex relationship between these two regulatory objectives: most legal rules accomplish both goals. Thus, laws that set down detailed rules drafted as commands or orders can facilitate human interaction, depending on how they are understood and enforced: for example, a stop sign commands, but it also facilitates the flow of traffic. And laws that set out facilitative guidelines are, nonetheless, coercive at the frontiers of these guidelines: the law of contracts permits us to pursue just about whatever goals we wish, but it still requires that parties freely consent to the contract and that some consideration for the agreement pass between them.
98. Given that either by their primary objectives or secondary effects, or both, all types of legal regulation achieve the goals of social control and the facilitation of human interaction, the central design issue facing legal officials is really one of orientation. In any particular field of human endeavour, and for the purpose of achieving any particular substantive policy goal, it is to choose which one of these ambitions -- issuing orders to impose social control or making rules to facilitate human interaction -- should be dominant. This is not a trivial matter. There is a world of difference between a State that typically legislates in the first manner, and one that habitually legislates in the second.
99. The choice of law-making perspective has important consequences not only for the character of the society in which we live but also for the way Parliament goes about actually drafting enactments, even in cases where the regulatory policy objective is unanimously agreed upon. To show why, I should like to use an example drawn from the realm of protecting dependants in combination with examples relating more directly to the regulation of drugs. Let's assume that, as a matter of social policy, there is broad consensus that the law should be structured so as to ensure that adequate financial provision is made for the dependants of deceased persons. What would be the best way to enact that obligation? A wide range of responses is possible. Here are six.
100. A first possibility might be for the State to assume this responsibility as part of its social welfare role and to finance the endeavour across the whole range penurious dependants by expropriating and redistributing property upon a person's death. All his or her property is deemed to be property of the community or the tribe; in such a framework, any post-mortem and intergenerational wealth transfers are deemed to be illegitimate. Here the State manages an obligatory public insurance scheme which it finances by expropriating or taxing decedent's estates.
101. A second regulatory strategy for ensuring the protection of dependants could be to permit post mortem transfers, but to abolish the principle of freedom of willing. The State would enact a series of distributional rules, not unlike those that now govern ab intestate successions where there is no will, that targeted spouses, children and other dependants and would direct a person's entire estate to these beneficiaries.
102. Alternatively, a dependent protection regime might, for example, establish a hereditary reserve. While freedom of willing would be tolerated, it would be limited to some fixed percentage (say, 33% if there were both a spouse and children, or 50% if only a spouse, or 67% if only children) of a deceased person's property. The rest of the estate would automatically be reserved for dependants, who could then assert their entitlement according to a formula like the rules governing the distribution of assets in a succession where there is no will.
103. Still again, an enactment might declare that certain categories of property should be handed down exclusively to dependants. These assets, most plausibly the family home and its contents, would pass directly to dependants regardless of the terms of the will. In this situation, the result could be achieved by structuring rules defining ownership entitlements at the time assets are acquired. This is the strategy employed in civilian matrimonial regimes legislation. Or it could be done ex post, at the time of family breakdown or death. Either way, one uses presumptions of ownership to achieve the regulatory task.
104. A fifth option might be to give favourable tax treatment to certain kinds of property -- pension rights, insurance policies, annuities, the family residence -- if dependants were named as beneficiaries, or if the property were co-owned with, or held in trust for, dependants.
105. Finally, an enactment might provide for an after the fact remedy. It might leave the principle of freedom of willing in place, but simply set out a set of factors that persons making wills should take into account. If a deceased person does not make adequate provision for dependants in a will, these dependants would be authorised to make a claim against the estate based on the factors set out in the enactment.
106. These are six very different approaches to using law to protect dependants, with very different consequences for peoples' ability to control how they live and organise their lives. Not only do they influence the way wills are drawn, these different procedural techniques cannot be separated from substantive considerations. Despite their similarity, each approach rests on a slightly different policy foundation.
107. The first approach is most constraining of human action. It denies people any role in shaping the distribution of their property. Today, the vast majority of Canadians appear to believe that the State should not expropriate all a person's property upon death and that people should, in principle, be free to give it away as they wish in their wills. What is more, notwithstanding a general public preference in Canada for managing social welfare through State agencies that are organised around the insurance principle, there seems to be little public clamour for a State-managed dependants' relief programme. In the field of "illegal" drugs, a blanket criminal prohibition would be the analogous response.
108. The second approach is similar in overall orientation, but is less bureaucratic. It does not assume that the State should be the purveyor of dependants' relief. On the other hand, since the configuration of distributional benefits is fixed in advance by a legislated formula it leaves no room for agency at the time of death. Of course, depending on how successfully a potential testator had been in disposing of assets by gift inter vivos in such a manner as to not be recaptured into the estate, it does recognise the potential for self-directed intergenerational wealth transfers. As applied to the regulation of "illegal drugs", the analogous strategy would be to produce a finer-grained taxonomy of different drugs, implying different regimes of criminal and quasi-criminal or regulatory prohibitions (say, like parking tickets) for different categories of drugs.
109. The third approach is less constraining in that it recognises human agency in two ways. It does not assume that the State should be the purveyor of dependants' relief; and it acknowledges the principle of freedom of willing at least for a percentage of a deceased person's estate. Regardless of the relative wealth of dependants, their ages, and in the case of spouses, the length and quality of the spousal relationship, a formula is imposed. What is more, the formula has little to do with actual economic dependency. It might be that the dependants in question are all adults and quite well-off. The regulatory rule is really about family relationships, and especially about the spousal relationship. True dependants who are not relatives -- de facto spouses, and unadopted step-children, for example, have no claim. Conversely, close relatives who may not be economically dependent, nonetheless, are entitled to receive their percentage benefit. As applied to "illegal drugs" this approach would focus the regulatory endeavour on the quantity and quality of the drug being consumed, as well as on the particular characteristics of the consumer.
110. The fourth approach gives somewhat greater scope to agency. But it does have a large bearing on decisions taken during one's lifetime, such as what kinds of property to acquire. In addition, by stating, in obligatory fashion, what property has to be set aside for dependants, it might even compel people to dispose of these kinds of assets even prior to death. Here again, the approach only obliquely rests on a criterion of dependency. It speaks more to the post-mortem creation of a matrimonial regime. In the context of "illegal" drugs, such an approach might be applied to regulate consumption through differential distribution systems for different kinds of drugs.
111. The fifth approach, using the tax system to provide incentives for certain kinds of desirable behaviour, is less constraining still. By setting out the kinds of property upon which dependants could properly exercise some contingent claim, it highlights the dependency rationale. But it does so with a minimum of coercion. This approach neither decides what property must be set aside for dependants, nor legislates the specific designation of who is a dependant. In the context of "illegal" drugs, such an approach might be applied to regulate consumption through a generally free retail market complemented by differential taxation systems for different kinds of drugs.
112. The last approach is most respectful of human beings as responsible agents, and of their freedom to distribute their property as they judge appropriate. It lists the considerations that should be addressed by people making wills, but leaves it to them to assess, in the first instance, how these principles should be applied, what assets should be affected, and who are their dependants. It presumes that people have capacity to internalise the criteria enacted by the legislature as guidelines to bear in mind when drafting their wills. This approach rests on the belief, that statistics support, that most people are likely to act responsibly towards dependants by orienting their conduct in reference to these criteria. Unlike the other three approaches, it also speaks explicitly to the goal of protecting dependants. It does not achieve that objective by defining, in the abstract, categories of presumed dependants, presumed amounts of appropriate relief, or presumed assets to be reserved for dependants. As applicable to "illegal" drugs, this approach would be put into effect by exclusive reliance on educational campaigns, backed by mandatory treatment or interdiction programmes for those incapable of self-restraint.
113. These six ways of enacting the obligation to provide for dependants are not exhaustive of the possibilities. There are almost an infinite number of potential variations. Each variation can, however, be located at a point along a spectrum running from "law as commands" through to "law as facilitative rules". This is not to say that the spectrum has only one dimension in which choices about legislative design must be taken. It does not. Indeed, some of these design dimensions merit notice here, if only to highlight that, in any given enactment, choices may not all be fixed at an identical point along the spectrum.
114. Every choice about legislative design presumes some conception of the role of the state and the moral capacity of people: enactments can be written with greater or lesser degrees of detail. If one concludes that the conduct being legislated more or less tracks the feelings of the vast majority of the population, one can be more inclined not to be strictly regulatory ex ante. For example, if it were demonstrated that 99% of testators with the economic resources to actually leave something, routinely made adequate provision for their dependants, there may well be a question whether an ex ante regime is needed at all. Similarly, if 99% of the population did not consumer drugs, there may well be reason to wonder whether the focus should be on ex post facto health considerations rather than ex ante prohibitions.
115. Every choice about legislative design reflects a judgement about the likelihood that people will act responsibly: enactments can be written with greater or lesser degrees of coerciveness or permissiveness. Here one confronts a central issue of public policy. How does one ensure compliance -- hiking the sanction? increasing the likelihood of detection? establishing a regulatory prophylactic? In the field of drug regulation over the past thirty years the constant focus has been on greater legislative repression as a means of achieving greater compliance, at the same time as greater police discretion and judicial leniency towards offenders.
116. Every choice about legislative design is grounded in some assessment of how best to set out a policy objective: enactments can be written so that they speak to things and forms or to purposes and goals.
117. Every choice about legislative design rests on a belief about how social conflict should normally be resolved: enactments can be written so that they speak more to specific rights to be litigated or more to interests and values to be reconciled.
118. Finally, every choice about legislative design rests on judgements about how many social resources will be invested in the regulatory endeavour. Some rules (those requiring ex ante determinations of a percentage) can be solved without the intervention of public officials except at the margins. They are bright line rules. Others, the sixth option in particular, require a heavy investment of judicial time, once a claim for redress is made. The increasing number of accused who refuse to plead guilty, and who hold out for a trial or at least a favourable plea-bargain is a consequence and reflection of this pathology of regulation.
117. The incommensurability of these design dimensions reveals just how difficult the legislator's role is. There is no easy formula to decide the exact match of detail, coercion, purposiveness or claim of right that should be sought in any enactment. One can only recur, in each case, to a general kind of default logic that orients the approach to be taken to the legislative endeavour.
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118. These considerations raise the following governance questions in connection with the regulation of "illegal" drugs. At what point does a particular form of regulatory impose greater costs to ensure external ex ante compliance by policing than those of an ex post facto health and social services regime? At what point does a prohibitory regime actually work at cross-purposes to law's pedagogic function? At what point does a particular type of criminal or quasi-criminal regulation lose its capacity to conscript citizens into voluntarily pursuing its regulatory objectives? Is it possible to more fully achieve a large number of complementary regulatory objectives -- health, safety, crime reduction -- by renouncing one other, namely repressing drug use?
9. Understanding Legal Characterisation
Particular forms of regulatory response are promoted or devalued by the concepts and labels by which law seeks to classify and sub-classify various categories of human behaviour.
119. In a modern, culturally diverse, democratic society one of the key governance tasks of law is to establish, structure, stabilise and support non-exploitative and just human relationships. A principal legal tool for doing so is the endeavour of classification and characterisation. What something or some activity is called -- its label -- organises human responses and provides connections with other ideas and sentiments associated with that label.
120. Legal classification is the ex ante organisation of legal rules and concepts into more embracing regimes of regulation. For example, the division of legal rules governing the transfer of property from one person to another into discrete packages entitled gifts, sales, mortgages, bailments, hiring, pledges, consignments, deposits and so on, is an exercise of classification. So too is the development of sub-categories of property called real estate, personalty, choses in action, intellectual property, family property, and so on. These categories are not always commensurable; nor are they always pre-emptive. Some particular action may well be, at the same time, a crime, a regulatory offence, and a civil wrong (or tort). Some thing may be at once a chose in action, intellectual property and family property.
121. Legal characterisation, by contrast, is the ex post application of regimes of classification to events and intentions. When the owner of a shopping centre brings proceedings against an employee of one of the tenants of the mall who is lawfully picketing in connection with a labour dispute, alleging that the employee is committing a trespass under the Petty Trespass Act, the court deciding the case is faced with an issue of characterisation. Which of the several possible governance regimes applicable to the situation -- the law of trespass to property, the law of labour disputes, the law relating to freedom of speech -- ought to control the outcome?
122. At the most abstract level, deciding what it is that we are confronting, shapes how it is that we react long before we actually determine what might be the operative legal rule. In practical terms, of course, we are often aware of the applicable legal rules that flows from any particular exercise of characterisation, and devote our energies to convincing ourselves and others to adopt the characterisation that best serves our purposes. A similar exercise constantly confronts Parliament.
123. Parliament is not required, on an ex post facto basis, to characterise the regime of regulatory governance that applies to any given human situation. But Parliament is required, on an ex ante basis, to decide how any particular range of human endeavour should be classified. This sometimes involves Parliament in determining the broad parametres of the governance regime it seeks enact. Is, for example, abortion to be understood in moral terms as a matter to be resolved through the Criminal Code, in public health terms as a matter for the Canada Health Act, or as a matter of choice, privacy and autonomy to be resolved through an appeal to the Charter of Rights and Freedoms? Likewise, an identical set of classificatory choices is open to Parliament in deciding how the consumption of various kinds of drugs is to be understood. Notice that while a particular decision about classification may incline policy debate in one way or the other, in itself the classification exercise does not actually decide policy. It is still possible to argue in moral terms that the Criminal Code ought not to proscribe abortions; and it is still possible to argue that decisions about abortion are not properly those embraced by human rights notions of privacy and autonomy. The logic, limits and impact of general classifications of legal regimes will be considered at greater in the next section.
124. Presently, the aim is to consider a second way in which Parliament engages in the classification exercise. This occurs when it has to decide, within any particular legal field -- the private law, for example -- what concepts it will deploy in order to achieve its governance objectives. To illustrate the range of choices open to Parliament in undertaking legal classification, this section examines the challenge of designing concepts meant to govern the legal consequences of close personal relationships between adults. Of course, precisely these same types of conceptual choices can apply to drugs: drugs can be classified as, for example, legal-illegal, or medicinal-recreational, narcotic-non-narcotic, hard-soft, and so on. All these classifications are value-laden (some more obviously than others) and the values they reflect influence how they are deployed.
125. Today, the vast bulk of domestic relations policies in Canada are organised around the notion of marriage, whether formalised or de facto. Yet statistics show that there is a great diversity in the way in which people organise their private lives and interact with their partners, their children and their parents. Among households in Canada the majority compose married couples, a significant number involve unmarried heterosexual couples, a smaller set comprises same-sex couples, and a small fraction are polygamous or polyandrous, whether officially or unofficially. Significantly, however, a considerable number of multi-member census households involve non-conjugal relationships: two sisters who have always lived together; a mother and a daughter who live together; or a father and son; or brother and sister; or two old friends whose spouses have died; and so on. It appears that Canadians are finding fulfilling relationships through which they afford each other physical, emotional, economic and psychological support in a variety of ways -- some of which have nothing to do with conjugality. In view of these facts, should Parliament reconsider the way in which it organises its panoply of policies meant to ensure the security and well-being of citizens in domestic relationships? Note that there can be a tension between how Parliament classifies relationships and how people actually structure their own relationships. The same is true of drugs. Blanket criminal prohibitions are like blanket prohibitions on certain forms conjugal relationships.
126. Assume that Parliament is concerned because its legislative policies -- which are designed to accomplish an extensive series of objectives having nothing to do with marriage per se -- are actually serving such a small percentage of their intended beneficiaries. The governance issue is to determine how Parliament could best re-draft its statutes to embrace a greater percentage of these putative beneficiaries. This is a classification problem, which is not simply a questions of semantics, since the symbolic function of classification gives the terms chosen added force. How ought Parliament to define the legal concept through which it can most effectively accomplish its regulatory objectives?
127. A first technique of legal reclassification is simply to extend the existing definition of the concept by which eligibility is determined. This can be done through a legislative analogy or by an express statutory fiction. Take for example, the law relating to adoption. An adopted child is, with only a very few exceptions (for example, eligibility to marry a biological sibling adopted by another family), treated in law as if he or she were the biological offspring of the adopting parents. With respect to drugs, this technique would means either extending the list of legal drugs or, conversely, shortening the list of proscribed drugs to include only those drugs that Parliament were now to considers (hypothetically) dangerous. To do this by analogy would mean putting, for example, marijuana in the same class as tobacco or alcohol.
128. In so far as implementing a generalised public policy of nurturing the physical, emotional, psychological and economic security of persons in stable, nurturing, adult relationships is concerned, Parliament could, adopting this technique, simply stipulate that all these other types of relationships -- widowed brother and sister; elderly sisters; old army buddies; mother and daughter; and so on -- should be treated in the same way as the traditional marriage relationship. Here the language in each particular statute would have to provide something like: "In this Act, a person who lives in a relationship A or B or C, shall be entitled to do X or Y or Z in the same manner and with the same effect as a person who is lawfully married."
129. There is also a second well-known technique by which Parliament can redraft legislation that has become over- or under-inclusive. It is possible to rewrite a statute in a way that simply abandons an existing concept as the reference point for the policy to be pursued. Normally, when it chooses this route, Parliament focuses on the substance of the desired policy objective: it identifies criteria of inclusion and exclusion that relate to the facts of a human situation or to the purposes that people are pursuing in engaging in certain behaviour, rather than to the formal categorisation of that situation.
130. There are many examples of this approach to rewriting statutes. Most occur in the field of commercial law. In several provinces, legislatures have given up extending old concepts like mortgages to new and analogous legal situations (such as conditional sales agreements), where debtors also deserve to be protected against unfair practices by creditors. They have, rather, chosen to invent a brand new concept called "a security interest" and to define it without reference to existing legal concepts like chattel mortgages, conditional sales agreements and long-term leases. The new concept is defined exclusively by reference to the substance of the commercial transaction in issue. It bears notice that in this case, the legislature is dissociating a concept that has historically been tied to formal criteria of definition, and replacing it with a definition that relates to the purposes being pursued by creditors and debtors: "if a bird walks like a duck and it quacks like a duck, the law should treat it as if it were a duck!"
131. In so far as implementing a generalised public policy of nurturing the physical, emotional, psychological and economic security of persons in stable, nurturing, adult relationships is concerned, Parliament could, adopting this approach, rewrite its various laws relating to pensions, tax, insurance, or whatever, so that the criterion for eligibility would relate to purposes of, and substantive facts about, the relationship -- its length and character, for example -- rather than to the precise marital status of the persons in it. This technique differs from extensions by analogy because it does not make reference to any previous legal concept -- it invents a new concept. Once again, this same idea can be applied to the way is which the regulation of drugs is conceived. Whereas analogising or fictionalising modifies existing categories, redrafting works with the underlying concepts by modifying the classificatory criteria, as with the replacement of "narcotic" in the Narcotic Control Act by the new category "controlled substance" in the Controlled Drugs and Substances Act. Alternatively, this could mean creating new concepts based on different criteria, such as use-based categories like "recreational drugs" or "medicinal drugs" to distinguish a substance such a marijuana from the category of "more harmful" drugs.
132. To understand what choices are now open to Parliament, and why in the past it has used one or the other of these approaches in different situations, it is worth remembering that western law had traditionally taken a formalistic approach to legal definitions. The practical effect of doing so can be seen in how the most fundamental distinction in the private law has been drawn. The distinction between an object of legal rights (property) and a subject of legal rights (persons) seems, intuitively, to simply reflect the physical characteristics of things and human beings. But today, the concepts of "property" and "person" have only a loose connection to material facts. For example, it is hard to imagine that some persons recognised by the law -- such as business corporations -- are really like human beings; and it is also hard to imagine that some contemporary objects of property -- such as chemical formulae -- are just like chairs.
133. These "hard to fit" instances illustrate the contingent nature of legal categories. As noted earlier, naming something is an ideological and political exercise. To label marijuana a "drug" or "controlled substance" begs the question of why tobacco or alcohol are classified differently. As things stand, marijuana and heroin, alcohol and tobacco, Viagra, Ritalin and Prozac are all classified slightly differently, and these differences reflect policy choices that require examination and justification. They are not, that is, "naturally" given categories.
134. Once it is accepted that even basic legal concepts do not automatically line up with material things, alternative means for fixing their scope have to be found. To include and exclude certain social facts or legal relationships from any given concept, new definitional criteria have to be generated. In many legal fields, concepts originally extracted from everyday experience have been extended through relatively benign fictions and analogies that quickly achieve broad public acceptance. But this is not always the case. Where a legal concept is grounded in socio-cultural reference points such as custom, tradition, religion, morality or ideology, analogical extensions can cause significant debate. This is particularly the case when they are fictitiously or even analogically extended by law well beyond the definitional limits provided by these other socio-cultural reference points. Problems arise when law and the society it serves are at cross-purposes: if legal concepts are expected to do too much, and they cease reflecting society's intuitive expectations, disregard of the law is likely.
135. Today, there is no better example of a legal (and a socio-cultural) concept of the private under this kind of stress than the concept of marriage. Understanding the reasons why marriage has become such a contested legal concept gives us a good insight into the issues that Parliament has to confront every day in deciding whether to redraft legislation by finding a new functional concept around which to organise regulatory policy or whether to redefine a socio-cultural concept that have been conscripted into service to serve other ends. In the latter case, far from social facts and public policy driving the legal definition of a concept, the legal definition of the concept comes to drive how social facts are understood and public policy is debated. This is putting the cart before the horse. Exactly the same point can be made about the conceptual stress generated by the current regime governing "illegal" drugs.
136. The crucial issue even in the criminal law (or more generally, in the realm of regulatory prohibitions), then, is the basis upon which classifications are made. As noted, various bases for distinction are possible. With respect to drugs, a distinction between legal and illegal simply decrees without giving reasons. A distinction between medicinal and non-medicinal suggests a purpose behind the distinction. So does a distinction between narcotic and non-narcotic, or addictive and non-addictive. These latter distinctions point either to purposes or to consequences as the basis of the distinction. But it must be remembered that other issues lurk just beneath the surface. Classifications unavoidably have class (even racial) implications. The moral panic of the 1920s and 1930s targeted the Chinese (in so far as opium was concerned), and afro-americans (in so far as "reefers" were concerned). Today heroin and crack are "lower-class" drugs particularly associated with user crime (as distinct from supplier crime), while cocaine and marijuana are linked less closely to crime and more to middle (or upper) class recreation.
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137. These considerations raise the following governance questions in connection with the regulation of "illegal" drugs. On what basis or bases ought Parliament to develop a taxonomy of drugs? In determining characterisations of drugs should social practices and expectations be dominant? Or should health and safety considerations be controlling? Or should worries about the potential corruption of public life by the profits of "black markets" determine the regulatory stance? How does Parliament convince the Canadian public to itself recharacterise a particular branch of human conduct when large numbers do not see any problems with the governance regime flowing from current characterisations?
10. The Symbolic Governance of Human Agency
Overall approaches to questions of governance are determined more by the social logic or register through which any given type of human activity is to be characterised than by traditional legal logic.
138. The difficulty of making sense of the concepts by which the law seeks to regulate diverse personal and social relationships reveals the difficulty of marshalling everyday legal concepts to achieve new ends. But, as noted, there is a second dimension to the governance endeavour as it affects ex ante classification. This goes to the very notion of what a social fact, or set of social facts, means. The question is to decide how any particular kind of human endeavour should be understood and classified. To legislate is to label. This usually requires Parliament to determine the broad parametres of the governance regime it seeks enact. For a long time, to take one example, it was thought that certain activities -- like the giving of blood or genetic material -- could not be commodified. They could not, that is, made subject to the discipline of markets; blood and genetic material was not classified as property. This is no longer the case. Of course, classificatory movement is not unidirectional. Today Parliament has determined as a matter of public policy that human beings can no longer be commodified as objects of property. The most egregious form of human bondage -- slavery -- has been abolished.
139. In this endeavour of macro-classification, even more than in the exercise of smaller-scale classification reviewed in the previous section, Parliament is involved in deciding the deeper meaning of events in the world. In deciding, for example, whether abortion is to be understood in moral terms, in public health terms, in economic terms as a failure in the market for babies, or as a matter of privacy and autonomy Parliament is deciding much more than whether it should be resolved through an appeal to the governance regime of the Criminal Code, the Canada Health Act, the law of contractual obligations, or the Charter of Rights and Freedoms. It is actually making decisions about the symbolic construction of human agency. It is deciding how it wishes citizens to symbolise this kind of interaction with others. Exactly the same kind of endeavour occurs when religious institutions, or even medical professionals, claim authority to decide how a particular form of human interaction is to be construed. Who it is who is doing the classification is, consequently, very important to deciding what classifications will be adopted.
140. As good a place as any to begin an inquiry into how Parliament ought to characterise events in the world -- and, in the present circumstance, the manufacture, distribution and consumption of illegal drugs -- according to their policy significance, is by contrasting the governance objectives of markets and the criminal law. After all, criminal prohibitions are typically designed specifically to withdraw certain types of human activity from market exchanges. One may begin this inquiry by reflecting on the evolution over the past 100 years of attitudes towards the scope of the criminal law.
141. Were we to place ourselves at the beginning of the last century, we would discover that, in addition to the traditional concerns of the criminal law with the protection of the public order (treason, etc.), persons (assault, murder, etc.), and property (theft, robbery, etc.), four other matters -- typically emerging from concerns about public morality -- were held to be transgressions (even sins) worthy of strict legal repression through the criminal sanction. Over the course of the 19th century, central aspects of all these activities had come to be withdrawn from the marketplace and criminalised. What were these four areas of moral proscription? The consumption of alcohol. The ingestion of non-medical drugs other than caffeine and tobacco. Prostitution and other aspects of the sex trade. And gambling.
142. The 20th century has shown that, as a governance strategy in the domain of primarily self-regarding behaviour, criminalisation is typically a sub-optimal response. To begin, these crimes against public morals are awfully hard to detect and to police. Successive attempts to clamp down on alcohol consumption in Canada, although never reaching the heights (or depths) of constitutional prohibition as with the Volsted Act in the United States, reached their apogee in the first quarter of the past century. Ultimately they failed, and a regulatory strategy was adopted. The same could be said of gambling, although the prohibition lasted longer both because of broad exemptions for "bingos and raffles", and because it was even harder to police the Irish Sweepstakes, gambling dens, sports bookmakers and the like, than bootleggers. The broad criminalisation of non-medical drugs was a surprisingly late development in public policy, largely flowing from the moral panic of the 1920s and 1930s. And the unhappy attempts to control prostitution and the sex trade, like now-abolished attempts to proscribe homosexual acts between consenting adults, have shown the complexity of all forms of sexual regulation.
143. What these stories tell -- especially when we consider that, today, pandering to two of these so-called sins (gambling and alcohol) has become either a government monopoly, or a governmental quasi-monopoly, complete with advertising and promotion associated with all other forms of leisure activity -- is that what matters most is how an activity comes to be classified as it is. The consequences of criminalisation are not to be dismissed. Reports from the Correctional Services of Canada indicate that the vast bulk of the population in federal penitentiaries can trace the reasons for their incarceration to "illegal" drugs: criminal conduct committed while under the influence of these drugs; criminal conduct perpetrated in order to feed a costly drug habit; criminal conduct of those involved in the manufacture and distribution of drugs, and money laundering; and criminal conduct of public officials corrupted by drug racketeers. To what extent do current governance regimes actually augment the problems caused by drugs by removing them from a regulated, competitive market and allocating their exploitation to a monopoly market controlled by organised crime? To put the matter slightly differently, it is naive to think that the option of criminalisation can always produce a regulatory monopoly for the State. Quite often, criminalisation simply creates competing "grey market" and "black market" regulatory regimes which are neither procedurally not substantively just.
144. The issue of regulatory governance here can be summarised in two complementary lines of inquiry. One of these concerns the symbolism of the criminal law. In principle, all criminal laws are meant to exclude a market calculus from the considerations that frame human agency. For this reason, the first question to ask about modes of classification of drug-related activity and behaviour is this: on what basis do citizens choose between symbolising drug consumption as a moral matter, and symbolising it as a matter of personal autonomy that should be regulated, if at all, by market forces? The second question is closely related to the first: on what basis should the law acknowledge that certain relationships are primarily economic and not moral, with the result that their negative social consequences are dealt with in a therapeutic-medical model or through redistributive welfare policies financed through consumption taxes?
145. The way in which Parliament designs and drafts legislation both presupposes and commits it to a particular understanding of law, society, human agency and the state. Choices it makes about the legal classification of the everyday events of human interaction have much to teach about who it believes citizens are and what it believes they ought to aspire to be. Every legislative enactment is an exercise of social and moral pedagogy. Recognising the central pedagogic role of law suggests that Parliament should be looking closely at how existing enactments actually symbolise how our society understands human motivations. If human beings are moral agents, their actions must be in some measure be unpredictable; if they were not, human beings would be little more than automatons predictably responding to external stimuli. To conclude, because human beings have the capacity to make choices about the manner in which to live their lives, law should aspire to the symbolic governance of human agency primarily by establishing outer boundaries to the otherwise boundedlessness of human action and human purposes.
146. Existing drug laws are a legacy of assumptions about the properties of "illegal" drugs and beliefs about how "upstanding" citizens should feel about drugs having such properties. Today, however, widespread use of certain drugs such as marijuana for reasons that exactly parallel those sustaining the use of tobacco and alcohol (relaxation, recreation, stimulation) indicates that large segments of the population do not see drug taking in the register of morality. Effective governance requires that the regulatory register reflect and speak to the dominant societal register. In connection with what are now "illegal" drugs these registers are multiple. To a cancer patient, marijuana may be indistinguishable from palliative prescription drugs. To a concert-going late-teenager, marijuana and tobacco converge. At a private party among young adults, marijuana and alcohol converge. A governance regime that seeks to force such disparate behaviours into a unitary mould is predestined to fail.
* * *
147. These considerations raise the following governance questions in connection with the regulation of "illegal" drugs. On what basis ought Parliament to decide which register to deploy for the governance of "illegal" drugs? If it adopts a register other than the morality, what is the role of the criminal law in policing the frontiers of acceptable behaviours among those who engage in the regulated conduct? What is the role of the criminal law in ensuring that the integrity of the authorized chain of production, manufacture, distribution and retail sale is maintained? Do characterisations based on social usage provide a sound basis for distinguishing between types of drugs? How ought public health considerations such as addictive properties, correlation with other health-risk behaviour such as needle-sharing, and potential to lead to violent behaviour to shape the scope and framework of legal regulation?
Conclusion -- The Dynamics of Governance
148. At the beginning of this paper the problem of governance through law was expressed in the following terms. Human beings find in law the forms, structures and processes that enable them to render their ambitions into accomplishments. While that manner of framing a governance endeavour seemed to suggest no room from the criminal law, the discussion of the previous sections shows that just as much as traditional regulation by the private law, the criminal law has a role in facilitating human interaction. This said, the governance issue confronting the Senate Committee can be framed succinctly: How ought law and legal institutions be deployed to achieve the symbolic governance of human agency in a manner that facilitates the just achievement of individual and collective human purposes? At one and the same time, human beings express their agency through their acts of self-governance, and through their voluntary or coerced participation in governance structures that they share with others and that channel the occasions for exercising that human agency.
149. There is no governance recipe, no more than there is any economic calculus, to tell Parliament, or any other deliberative body -- formal or informal -- that has the capacity to wield law in the pursuit of collective purposes, exactly how to regulate the production, distribution and consumption of non-medical drugs. Modern conceptions of governance will, of course, provide clues as to how Parliament ought to think about these regulatory questions. Like economic analysis, which can model the effect of different policy options -- on enforcement costs, on spill-over costs to third parties, on opportunity costs for entrepreneurs -- and predict how prices will influence behaviour, governance analysis will point to various consequences of these same policy options. It will point to the dangers for concepts of human agency flowing from ill-advised criminal proscriptions on market transactions. It will point to the dangers of classifying types of human interaction by reference to frameworks not broadly accepted by citizens. And it will point to the dangers of drafting legal rules as if they were to be understood and enforced like the orders of an army commander.
150. Still, one simple fact cannot be ignored. We live today under a governance regime that criminalises the possession of a broad rang of drugs that many Canadians routinely consume. It stigmatises otherwise law-abiding citizens as criminals. The broad-brush of this regime also makes it difficult to control the self-destructive behaviour associated with overindulgence or addiction, and also to enhance more healthy social practices around drug-taking or mount "responsible use" campaigns. Even though the point of the criminal law is to set the boundaries to anti-social conduct that undermines the agency of others, when it prohibits behaviour that large segments of the population consider benign, its largely unenforceable proscriptions undermine citizen confidence in the law generally. Moreover, for a state to compel large numbers of citizens to engage in active social intercourse with organised crime is to undermine democratic legitimacy both in respect of confidence in the non-black market for other goods and services, and in the State's capacity to collect taxes on these under-the-table activities. The enormous "black market" resulting from the criminal prohibition generates equally enormous illegal profits that which risk corrupting all aspects of public governance in Canada. Finally, because the present regime does not discriminate between categories of users, it dissipates both against and in favour of all drug users, a wide range of social resources that should be targeted to the protection of youth and other vulnerable people.
151. Of course, any movement towards a governance regime for drugs other than criminal prohibition will cause social dislocation. This being said, when framed in terms of law's ambition to the symbolic governance of human agency, when measured by its capacity to facilitate the just achievement of individual and collective human purposes, and when balanced against the social and individual pathologies resulting from the current regime, it is difficult to resist the conclusion that there is now no case for blanket coercive criminal regulation of non-medical drugs of whatever type.
Appendix I: Ten Theses on Governance
1. Social life comprises a web of relationships through which human beings pursue their purposes and ambitions in concert with others. Law provides institutions and processes to facilitate that agency and to stabilise these relationships.
2. Conceptions of human agency and relationships and beliefs about the permissible scope for even harmful self-regarding behaviour are translated into political institutions and policy outcomes through larger ideologies about collective and State action.
3. Political ideology influences both the manner in which different sites of legal regulation are identified and the conception of the kind of regulation -- State or non-State -- to be preferred in each of these sites.
4. At each site of governance several different processes of social ordering are interwoven. Successful governance depends on matching these processes to specific regulatory purposes.
5. The choice among diverse tools of governance is driven more by assessments as to the relative importance that regulators to afford to criteria such as coercion, visibility, perverse consequences, and output and enforcement costs than inherent characteristics of the policy problem to be addressed.
6. The selection of any particular governance strategy presupposes an initial choice about the underlying logic of law as a regulatory regime: is law to be seen as a mechanism to directly coerce behaviour by managerial direction or as a means to guide behaviour through ex ante rules?
7. A governance regime that is organised on a logic of ex ante facilitative rules requires that these rules be tailored to the capacities and aspirations of those human agents whose conduct they target.
8. The most effective strategy to achieve successful governance through law is to structure regulatory regimes that recognise and promote moral agency by involving citizens in the elaboration, specification and management of the regime.
9. Particular forms of regulatory response are promoted or devalued by the concepts and labels by which law seeks to classify and sub-classify various categories of human behaviour.
10. Overall approaches to questions of governance are determined more by the social logic or register through which any given type of human activity is to be characterised than by traditional legal logic.
Appendix II: The Grids of Governance
Table A -- Sites of Governance
1. In this Table the regulatory options and issues at each of the various stages in the process by which "illegal" drugs are brought to retail sale are examined. These stages include: growing and harvesting raw materials; manufacturing (processing and synthesis); wholesaling (including transportation and storage); retailing; and end-user consumption. The Table also considers diverse third-party issues and impacts.
2. In principle, each of these five stages may occur entirely within Canada, although currently much harvesting of raw materials and manufacturing occurs off-shore. Similarly, in principle, each of these stages may occur entirely outside Canada, with the consumer purchaser simply importing the final retail product into Canada for personal use.
3. In addition to considerations relating to the moment of importation into Canada, the possible moments of export must also be considered. In principle, the export of drugs may occur at any point in the process: raw materials may be grown in Canada and exported for processing and manufacture; manufactured product may be exported by wholesalers; and, of course, individual retail purchasers may export product (that is, import it into another country for personal consumption).
4. Finally, the entire process by which "illegal" drugs are brought to sale may involve various combinations of importing and exporting. For example, raw materials may be imported for domestic manufacture and export wholesaling, followed even by retail re-importation. Or, domestic raw materials may be exported for manufacture and wholesale or retail re-importation.
5. Each of the headings in this Table identifies a distinct site of governance. Under each a list of some of the possible (more likely) regulatory options and issues is set out. As noted in the text, there is no necessary requirement that the governance regime for each of these sites be identical.
6. The Table that follows considers sites of governance uniquely in terms of the stage in the production, distribution and retailing process. Other Tables relating to sites of governance could be developed to deal with each individual drug as a site of regulatory governance, or with each type of purveyor, or even each type of consumer as a regulatory site. These other hypotheses of regulatory sites are raised in Chapter 3 of the text.
1. Importation (of raw or processed materials)
a. strategic choices and issues
· interdiction at the border
· selection and licensing of wholesale importers
· taxation (or subsidization) of wholesale and retail importers
· open borders
b. projected outcomes and rationales
· control over forms of marketing
· quality control
· volume control
· possible control over certain points of origins (countries)
· possible control over certain retail consumers
2. Exportation (of raw or processed materials)
a. strategic choices and issues
· compliance with international treaty obligations
· selection and licensing of wholesale exporters
· taxation or subsidization of exports
· open borders
b. projected outcomes and rationales
· control over forms of marketing
· quality control
· volume control
· ability to develop statistics and monitor
· control over foreign nationals on drug tourism trips
3. Raw Materials and Processing
a. sites of regulation of raw materials
· agricultural sources (land use, pesticides, genetic manipulation)
· chemical precursors (industrial safety, quality standards, patents)
b. sites of regulation of processing
· licensing of production entity
· ownership of production entity
· location of production entity
· employment practices
· foreign influences on production entity
· quality of equipment
· product testing
4. Wholesaling, Storage and Transportation
· protecting integrity of channels of distribution (preventing dilution and diversion)
· quality and conditions of storage and transportation
a. choices and issues relating to selection of retailer
· Integrity of the channel of distribution
· Ability to store the product safely and securely
· Tort liability for improper sale
· Penal liability for improper sale
· Administrative sanctions
b. manner of retail sale
· Different licensing for immediate consumption on the premises or off-premises
· Ability to counsel the buyers as to what they are buying and how to use it safely
· Accessibility of retail locations (e.g. rural areas)
· Sales by 'phone or internet
· Reporting of problem users
· Reporting and record-keeping for public health statistics
· Confidentiality for buyers
· Location of sale outlets and local regulation of the manner of sale (e.g. local prohibition, zoning)
· Controls by age
· Restriction on the volume of individual purchases
· Types of drug
· Occupations (e.g. pilots, ship captains)
· Mental health vulnerabilities
· Education programmes
· Consumer information
· Access to addiction treatment
· Accessibility of drugs to the poor
5. Third Party Effects of Consumption
· employers (scope of ability to test for drug use)
· extension of counseling to all affected
· scope of ability to test for drug use (e.g. minors)
· financial burdens on the family of the consumer
· other users of public services (e.g. other road users)
· crime by problem users to fund their habit
· victims of high risk behaviour by users (e.g. sharing needles, unsafe sex, crime)
Table B -- Tools of Governance
1. In this Table the various tools or instruments of governance are listed and categorized. Not all tools of governance are directly applicable to the regulation of "illegal" drugs. Moreover, there are a plethora of different ways of identifying and counting tools of governance. One model contains an inventory of over sixty such tools.
2. There are different criteria for grouping regulatory tools into categories. These different criteria are listed in the first sub-section.
3. In the second sub-section various governance tools grouped according to their character as being a sanction (stick), a reward (carrot), a form of condign regulation (sermon), or direct action (State monopoly).
1. Criteria of Classification for Tools
a. classification according to role (objective) and resource
· what is the regulatory objective (e.g. policing or policy advancement)?
· what type of governmental resource is deployed or expended (e.g. money, personnel, property, information)?
b. classification according to strategy of intervention
· mandate specification
· capacity building
· system transformation
c. classification by targeted behaviours
· authority tools
· incentive tools
· capacity tools
· symbolic or hortatory tools
· learning tools
d. classification by mode of inducement
· condign regulation
· direct action
2. Classification by Mode of Inducement of Compliance
· absolute criminal prohibition
· conditional or regulatory prohibition
· inspecting and auditing
· fees, charges, fines
· civil liability law
· direct subsidy
· indirect subsidy
· state investment
· low interest loans
· tax credits
· guaranteed purchase of product or service
· insurance rebates
· exemption from existing regime
c. condign regulation
· public-private partnership
· safety testing
d. direct action
· public corporation
· direct provision by a department
Table C -- Modeling Governance Through Regulatory Licensing
1. The focus of this Table is the nexus between retail purveyor and ultimate consumer. Nonetheless, some attention has to be given to production, because one key regulatory issue is whether ultimate consumers will be entitled to produce their own drugs.
2. In this Table, it is assumed that in each of the different categories, some form of direct sanction will be required in order to back-stop the licensing regime. Presumably, since the object is to achieve effective licensing by involving licensees in the policing function it would be necessary to supplement a regulatory or criminal regime to govern production, distribution or sale with a civil regime.
2. A civil regime could be achieved by creating a cause of action in tort or extra-contractual liability along the model of the treble-damages sanction for offences against securities legislation. Provided the liability model enabled the successful plaintiff to trace assets, there would probably be sufficient incentives to sue.
3. In addition, because "illegal" drugs are now mostly controlled by large-scale criminal syndicates, in order for such civil liability to work, the prosecuting organization would itself have to be well-resourced.
1. Regulating Producers and Manufacturers for Resale
The principal regulatory objectives of licensing production for resale to wholesalers or retailers, (whether for domestic consumption or export) are three: controlling the quality and potency of the product; controlling the size, quantity and character of the packaging (e.g. cigarettes); ensuring the integrity of the chain of distribution to prevent theft and other forms of inventory shrinkage.
a. the distilling industry or vineyard model
In this case there is no restriction either on production or the sale of raw materials. Regulation occurs only at the point where the raw materials are manufactured into a consumer product.
b. the atomic energy model
In this case there is no regulation on production. Anybody with a mining license can prospect for and mine for uranium. The control comes by restricting who may purchase the raw material for ultimate processing.
c. the pharmaceutical model
In this case there may be regulation both of the raw materials (the chemical base) and of the production process independently of the way in which the product is ultimately resold.
d. the toxic substances model
In this case there may be regulation not only of the raw materials (the chemical base) and of the production process, but also of the way in which the product is ultimately resold.
2. Regulating Producers and Manufacturers for Personal Consumption
The regulatory objectives of licensing production for "personal consumption" can, in principle, be similar to those of resale production. In practice, however, production for "personal consumption" is usually an exception to a regulatory regime. The rationale here is simply that unless mere possession is also made a criminal offence, the difficulty of publicly policing production for personal consumption makes the endeavour prohibitively expensive.
a. the "back lot vineyard" model
Here there is no regulation of the raw materials (grapes) that serve to sustain personal consumption. Typically there is also no regulation of the informal sale and distribution of these raw materials. There is, however, regulation of attempts to manufacture the product for resale rather than personal consumption.
b. the "beer kit" model
In this type of regulation of personal consumption, there is no control over either the apparatus by which the product is produced, or the retail purchase of the raw materials by the consumer, or the possession of the consumer product.
c. the "home-still" model
Historically, in this type of regulation, there is control neither over the purchase of raw materials (wheat, barley, etc.) nor over possession of home-manufactured product (rye, bourbon, vodka, etc.). The regulatory target was the equipment by which raw materials were processed into the consumer product, even for home consumption. Possession of a still (even to produce only for personal use) was sometimes made illegal, and sometimes subjected to the prior obtaining of a permit.
3. Regulating Retail Sellers
In the various options set out in this sub-section it is important to note that elements of each can be spliced into all the others. For example, the education and training element of what is described as the prescription-drug pharmacy model could also be made a feature of the liquor commission model, or even the tobacco. The models are meant primarily to show the diversity of current options for retail sales.
a. the tobacco (and Quebec beer) model
In this model of licensing, there is no particular control on the qualifications of the seller or on the mode of sale. The license serves merely as a registry and a means to police whether norms for retail purchasers are being respected. Minor limitations on hours of business may exist, but no additional or particular restrictions attach to the sale of the product per se.
b. the Ontario beer and wine model
In this model of licensing, producers (or wholly-owned subsidiaries of producers) may market their own product to end-users. Vineyard retail sale, boutique consumer wine outlets, and "Brewers' Warehousing" joint ventures are of this character.
c. the liquor commission model
In this model, retail sales are a monopoly of a state-owned enterprise that is an exclusive purveyor of the product. In addition, the enterprise in question purveys exclusively this product and no other.
d. the prescription drug pharmacy model
In this model, licensing is stricter than in the tobacco model, with some minimal educational qualifications imposed upon licensees. Typically the seller is able to sell other products as well, but the hours of operation and availability of the product would be regulated.
4. Regulating Purveyors for Consumption
In the above models for retail sales, the assumption is that the retail purchaser is purchasing the product for consumption at a later time. In each of the models of this sub-section the assumption is that the product is being purchased for immediate consumption.
a. the licensed-restaurant or night-club model
Historically the licensed restaurant model implied that the alcohol was being served as a complement to some other product or service. In so far as restaurants were concerned there was frequently a requirement that the bill for food had to exceed the bill for alcohol (at least on Sundays). In night clubs, the principal service (to which licensed alcohol consumption was deemed an accessory) was the singer or other musician or entertainer.
b. the beer hall, cocktail lounge, opium den, or gambling casino model
In this model of licensing there is no pretence that customers are present for some reason other than to consume the regulated product. While some regulation of the manner of purveying (single men segregated into a separate room from single women or women accompanied by men; prohibitions on customers carrying drinks from table to table) could be present, in principal the beer hall was simply an establishment licensed to permit immediate consumption of the regulated product.
c. the "bring-your-own" model
This model is actually a form or regulation of retail consumption. Except to the extent that a restaurant or other establishment charges a "corkage" fee, there is no purveying in a "bring-your-own" model. Nonetheless, it would be possible to specifically license certain restaurants and other establishments to permit customers to "bring their own" for personal consumption, while prohibiting other establishments from doing so. For example, there might be a licensing regime for categories of restaurants, and a general prohibition on fast-food outlets permitting customers to "bring-their-own".
5. Regulating Retail Purchasers
In the above models for regulating the sale or purveying of the regulated product, the focus of regulatory licensing is on the seller or purveyor. But sale is a bilateral arrangement. Hence, it is also possible to regulate the consumer.
a. the tobacco and alcohol model
In this model, no particular identification of characteristics of purchasers is required, beyond proof that they have reached the minimum age for purchase and consumption. Typically the prohibition is visited upon the person who sells to underage consumers, although historically underage possession or consumption of alcohol was prosecuted and similar underage possession or consumption of tobacco was not. No sanction for "having consumed" was visited upon ineligible persons unless they committed some other offence (drunk in a public place; driving while impaired; etc.)
b. the driving license model
In this model, the presumption is that no consumer may indulge in the activity unless specifically authorised. Any person may own an automobile. But only those who have driving permits may operate an automobile. The permit typically follows attaining a minimum age, following an educational course, and passing a competency test. In such a model, those authorised to purchase would carry a card (much like the former card required to purchase dynamite and other explosives) that would attest to eligibility to purchase. The card might also be computer coded to record and monitor purchasers.
c. the prescription drug (medical marijuana) model
In this model, the presumption is also that no consumer may indulge in the activity unless specifically authorised. By contrast with the driving licence model, here the permission does not follow a proof of competency (a forward-looking risk-assessment model), but rather is determined on the basis of medical (or some other) necessity. The prescription is given on a backwards-looking palliative model, to selected persons because of the predicted effects. Issues such as forward-looking risk-assessment are not relevant.
d. the negative license model (interdiction; conditions of probation)
Notwithstanding that there may be a general regime that permits the purchase of the product by anyone over a particular age, it is possible to impose an exclusionary regulatory regime to prevent specific categories of persons, or specific persons from purchasing. Historically this could be found in what was called "the Indian list" where persons of Native ancestry were prohibited from purchasing alcohol. In addition, usually the result of a court-order relating to addiction, specific individuals could also be placed on the "prohibited purchaser" list. In recent years, abstinence from consumption of alcohol has sometimes been made a condition of parole or probation. In all these cases one sees different regimes of negative licensing.
6. Regulating Retail Possession and Consumption
In addition to regulating the retail purchase of the product, it is also possible to regulate personal-use possession or consumption. In this case, the object of the regulatory scheme is to control the mode and place of consumption.
a. the tobacco model of possession and consumption
In principle, the tobacco model for regulating possession is that there is no personal-use regulation. It is not an offence for an underage person to be in possession of tobacco products. Nor, in practice, is it an offence for an underage person to consume tobacco products. In addition, the principle is that tobacco products can be consumed everywhere where they are not prohibited. There are now increasingly restrictive regulations about consumption in private and enclosed public spaces, but these are still cast in the language of exceptions to the principle.
b. the alcoholic beverages model of possession and consumption
A quite different regime applies to the possession of alcoholic beverages. It is an offence for an underage or otherwise prohibited person to be in possession of alcoholic beverages. Some indulgence is permitted to those in notional custody of unopened bottles. It is also an offence for an underage or otherwise prohibited person to consume alcoholic beverages, wherever that consumption takes place. In addition, the general principle regarding consumption of alcohol, is that consumption is prohibited in all places, except where permitted. In addition, specific offences relating to excessive consumption of alcohol are deployed to control consumption - driving while impaired; drunk in a public place; etc.
Table D -- Accommodating Regulatory Transformations
1. In this Table the focus is on the considerations that would come into play in decisions about how to establish a governance regime to replace the current system of criminal prohibition if it decided to de-criminalise.
2. The Table is meant to identify the principal objectives of any regulatory transformation in relation to "illegal" drugs as these are taken from analyses of the "negative consequences" of current criminalisation regimes.
1. Overcoming the Stigmatic Labeling of Consumers
The vast bulk of consumers of illegal drugs are otherwise law-abiding citizens. A regime that criminalises widespread self-regarding behaviour creates three negative consequences for human agency by ricochet. The current experience with "illegal" drugs closely tracks what occurred in connection with the former prohibitions of same-sex activity between consenting adults. The regime socially stigmatises and marginalises consumers. It drives the activity into locations that do not conduce to public health. And it creates opportunities for blackmail and exploitation. A governance regime meant to be respectful of human agency cannot legitimately deploy the criminal law (as opposed even to a regulatory sanction like a parking ticket) to label so many citizens as "criminals".
2. Preventing Self-Destructive Behaviour
Once an activity is stigmatised as illegal, then the law loses much of its capacity to control the self-destructive behaviour associated with that activity. As a governance issue, after decriminalisation, the challenge is to determine how to nurture and develop non-governmental normative systems that can be deployed to minimise self-destructive behaviour. Enhancing social practices around drug-taking, mounting "responsible use" campaigns, and like informal systems or social regulation can only be effective when in the open. As with awareness campaigns relating to HIV and cigarettes, a certain legitimacy to the activity has to be accepted before these campaigns can be successful.
3. Enhancing Respect for Law
Law ought not simply to indulge whatever behaviour the public wishes. The point of the criminal law, after all, is to set the boundaries to anti-social conduct that undermines the agency of others. But when law gets into the business of prohibiting behaviour that large segments of the population considers benign, then "black markets" develop. More than this, unenforceable proscriptions undermine citizen confidence in the law generally. A governance regime has to imagine how to regulate its target conduct in a manner that enhances citizen confidence in the law. This suggests that to maintain respect for law, the regime must tread a fine line between those who assert either a moral or a public health or an aesthetic objection to recreational drug-taking and those who are consumers. A properly structured regulatory regime for recreational drugs that enhances respect for law cannot, consequently, rely primarily on the discipline of an open market (as it does for caffeine, for example) but similarly it cannot rely primarily on the discipline of the criminal sanction (as it now does).
Decriminalisation also serves to enhance democratic legitimacy in a liberal state in another way. If the activity is illegal, the only way to engage in it is by dealing with "black market" operators - who are today, controlled by organised crime. For a state to compel large numbers of citizens to engage in active social intercourse with organised crime is to undermine democratic legitimacy both in respect of confidence in the non-black market for other goods and services, and in the state's capacity to collect goods and services taxes for these under-the-table activities.
4. Combating Organised Crime
The most important factor to consider here is that organised crime has well-established networks for purveying drugs. The lesson of repressing the bootleggers of the 1930s, is that it is not enough to legalise drugs. If one wants to root out organised crime, the "black market" and the attendant corruption of public officials, it is necessary to destroy the economics of the industry.
a. destroying revenue sources
One purported advantage of de-criminalisation is that it would destroy revenue sources of organised crime. This advantage presupposes three things: first, a rigorous prosecution of those who produce, import, distribute and retail drugs currently, or who do so under not-licensed conditions in the future; secondly, the development of punitive civil damages actions for those who are authorised licensees to collect from unauthorised purveyors; thirdly, the marketing of drugs at a price that undercuts the "black market" and destroys networks of purveyors.
If drugs were to be legalised it would be self-defeating to sell them for high prices (whether these high prices result from taxation, excise duties or profit mark-up). Doing so would not wean potential customers off their traditional "illegal" sources of cheaper supply. This means that, at least for a number of years, legalised suppliers will have to sell drugs relatively cheaply (with government foregoing significant sin-tax revenues) and at relatively extended hours of availability. Any attempt to overtax as a means of reducing consumption will simply generate illegal secondary markets, as occurred when smuggling of cigarettes reached epidemic proportions in the 1990s.
b. secondary effects on other crimes against public morals
As an industry, organised crime will seek the least resistant path to profits. Historically, it appears that, following the lifting of prohibition, organised crime successfully moved from a heavy investment in illegal manufacture of alcohol, to control of gambling, the purveying of drugs, and the management of the sex-trade. More recently, as governments legalised gambling, and took over the management of large sectors of this morality trade, organised crime moved more intensely into drug distribution. Legalising drugs will produce a like spill-over effect into other still-illegal morality crimes. Any governance strategy for regulating drugs has to consider the spill-over effects on other activities managed by organised crime - in the present context, most notably, the sex-trade. Measures to prevent further exploitation in the sex-trade will have to accompany any change to regulatory strategy for drugs.
c. preventing market recapture
Another governance consideration in the attempt to undercut organised crime is that the regime adopted has to be designed to prevent recapture by such interests. So, for example, licenses to produce and manufacture would have to be given to corporate interests sufficiently large to prevent takeover by organised crime. In addition, any system for retail distribution would have to prevent takeovers of, say, convenience stores or pharmacies by organised crime. This might argue either for a public corporation model of retail sale, or carefully regulated franchisees.
d. co-opting street vendors
One of the key governance issues relates to the fate of those who are currently the street vendors of illegal drugs. To destroy the impact of organised crime it is necessary to get these vendors out of the distribution system. As noted, this might be accomplished (at least partially) by means of the criminal law, or through civil damages. A governance system is more likely to be successful if it sets out to break the link between street vendors and organised crime by co-opting them into the newly established legal distribution system - conceivably as employees of the public corporations that purvey formerly illegal drugs.
6. Reducing Criminal Activity By Ricochet
One of the key arguments for drug legalisation is the effect that legalisation will have on reducing or eliminating crime by ricochet. Typically this argument is focused on eliminating criminal activities undertaken to finance a habit. But it also bears on the capacity of the regulatory regime to control other activities that are illegal when undertaken by persons impaired by drugs.
a. financing a habit
A common argument for legalisation is that the current regime spawns a significant amount of criminal activity by ricochet. There are two reasons, both of which relate to the cost of financing drug purchases. First, the high cost of drugs on a "black market" - especially highly addictive drugs like heroin - means that addicts often resort to theft and other criminal activity to support a habit. Second, the illegal character of the activity opens the door for loan-sharking and other activities that generate crime.
The governance issue raised by arguments about collateral crime is most acute with addictive drugs. How to sustain addictive habits without producing spill-over criminal activity? In this respect, drug use is somewhat like gambling. Most people are not problem gamblers, and can finance their modest gambling habits from everyday revenues. The cost of addiction may surpass a person's normal revenues, especially if the addiction compromises that person's ability to pursue gainful employment. However, unlike gambling (where there are no limits on the amount of money that can be expended feeding the addiction), there are limits to the amount of drugs that can be ingested at any given time. Of course, if addicts were to organise their entire employment activity simply to earn enough to purchase drugs, it is not evident that their life circumstances would be that different than those of a high stakes gambling addict.
b. preventing dangerous or anti-social conduct while impaired
One of the consequences of recreational drug taking is the impairment of mental faculties. Some types of drugs always produce impairment that makes certain kinds of conduct dangerous. A regulatory regime will have to build in controls over those types of conduct (driving a car or an aeroplane) where impairment is dangerous.
Other types of drugs do not necessarily produce impairment that would prevent the operation of a motor vehicle. But even some of these (typically, but not always, stimulants rather than depressants) can lead to hyper-aggressive and violent behaviour. A regulatory regime will have to be designed to minimise the potential for aggressive or violent behaviour consequent upon certain types of drug use (in a manner that the current regulatory regime for alcohol simply does not do in respect of domestic violence).
7. Managing Public Finances
One governance argument for legalisation of drugs is that the current regime deflects inordinate public resources away from other types of government activities. There are two ways in which this argument is cast: the revenue side and the expenditure side.
a. public finances -- revenues
The argument that legalisation will increase government revenues has two governance dimensions that require examination. First, whatever regulatory regime is put into place, for reasons already given, the profit margins of purveying drugs have to be kept low in order to paralyse the "black market". Selling drugs is not likely to enhance public revenues significantly until "black" or "grey" market competition has been eliminated.
Second, the experience with gambling since legalisation thirty years ago is that government gambling corporations are subject to the same market temptations as any other business operation. Advertising to promote gambling by government corporations rivals advertising by the most disreputable Nevada casinos. A regulatory strategy for legalisation will have to consider built-in mechanisms to prevent a government agency (if that is the model) or a private licensee if that is the model, from becoming simply market capitalists and thereby ignoring, among other things, public health and social service concerns.
b. public finances - expenditures
Another argument often invoked in favour of legalisation is that the current regime eats up enormous policing resources that could be better spent on crimes of violence and crimes against property. Of course, closely allied with this is the ricochet cost of crimes against property perpetrated to pay for a drug addiction.
As a governance issue the point is to note that legalisation will imply expenditures on health and social services that, given the current moral overtones of drug-taking and addiction, can be avoided or minimised. It is more difficult to refuse such expenditures when they are the consequence of legal, as opposed to illegal, activity.
8. Providing Health and Social Services
Inevitably any regime of decriminalisation will lead to certain addictions. This is always the case with addictive drugs such as heroin, nicotine and caffeine and will sometimes be the case with non-addictive (in the strict sense) but potentially physically addictive drugs such as alcohol and cocaine.
A governance regime will have to provide for health care (the need for which will be reduced to the extent that the quality of drugs is standardised, safe practices for drug-taking - e.g. needle exchanges -- are developed, unhealthy secondary life-styles are diminished, etc.). Nonetheless, preventative and educational health centres, and treatment clinics will be required. The cost ought not to be greater than presently because any potential increase in use will be off-set by healthier use practices.
The costs of drug-taking are just not health-related. The impacts on families of addiction, and the provision of social support networks must also be a part of the regulatory regime. The example of how poorly governments have responded to gambling addictions, and the continuing failure to properly service families of alcoholics (both economically, and in terms of protection against violence) are scandalous.
9. Protecting Youth and Other Vulnerable People
One of the strongest arguments for decriminalisation is that the present regulatory regime does not sufficiently discriminate between categories of users. As a result, it does not enable social resources to be targeted to the protection of youth and other vulnerable people. Controls on alcohol and cigarettes are reasonably effective in preventing excessive youth consumption (eradicating youth experimentation is impossible) because the source of the product is controlled, and no alternative market for purchase is readily available in most cases. Some people will always buy legally in order to supply youth illegally, but this is a harder activity to pursue in the face of a general legalisation. Here, of course, the governance regime has to be structured to impose severe penalties (and perhaps even civil sanctions exercisable by the legal guardians of minors) against those who are convicted of purveying to youth.
Table E -- Criteria for Evaluating Governance Strategies
1. The Table that follows attempts to suggest criteria that could be deployed to determine what type of governance strategy is optimal in any given case. For the reasons given in the body of the text it does not, however, purport to provide a template by which regulatory choices can be easily plotted.
2. The first list sets out a series of external assessment criteria drawn from the literature of economics and political science. The second list is drawn primarily from public administration literature.
1. External Evaluation Criteria
· effectiveness - does the regulatory strategy achieve its stated goals?
· efficiency - does the regulatory strategy achieve its stated goals in a manner that is cost-effective?
· trade-offs - does the regulatory strategy create perverse consequences elsewhere that outweigh any of the efficiency or effectiveness goals noted?
· equity -- does the regulatory strategy operate to exacerbate or reduce social differentiation, for example by further stigmatising certain people on a class basis?
· manageability - does the regulatory strategy require the drawing a fine distinctions which are unmanageable in practice?
· political feasibility - is the strategy politically feasible given the current climate of opinion?
· self-enforcement - does the strategy effectively co-opt regulated parties into self-regulation and public enforcement?
2. Internal Evaluation Criteria
· agency and coercion - does the strategy restrict behaviour, rather than provide guidelines for action?
· character of delivery system - does the strategy operate so that the regulatory body actually bears the cost of the regulatory system?
· piggy-backing - does the regulatory strategy require the building of a new regulatory structure?
· transparency - is the regulatory strategy visibly both as to its costs and its burdens?
Appendix III: Select Bibliography
Table A - Bibliography on Governance
Barbe, R.P., La réglementation (Montreal: Wilson & Lafleur, 1983).
Black, D., The Theory of Committees and Elections (Cambridge: Cambridge University Press, 1958).
Black, J., Rules and Regulators (Oxford: Clarendon Press, 1997).
Bressers, H. & Pieter-Jan, K., "Fundamentals for a Theory of Policy Instruments" (1988) 15:3/4 International J. of Soc. Ec. 22.
Carbonnier, J., Le droit flexible: pour une sociologie du droit sans rigueur (Paris: L.G.D.J. 2001).
Ellis, R., Just Results: Ethical Foundations for Policy Analysis (Washington: Georgetown University Press, 1998).
Eskridge, W.N., Frickey, P.P., & Garrett, E., Legislation and Statutory Interpretation (New York: Foundation Press, 2000).
Farber, D. & Frickey, P., Law and Public Choice: A Critical Introduction (Chicago: University of Chicago Press, 1991).
Fraiberg, J.D. & Trebilcock, M.J., "Risk Regulation: Technocratic and Democratic Tools for Regulatory Reform" (1998) 43 McGill L.J. 835.
Fuller, L.L., Anatomy of Law (Westport, Conn.: Greenwood Press, 1976).
Fuller, L.L., The Morality of Law 2nd ed. (New Haven: Yale University Press, 1969).
Fuller, L.L., The Principles of Social Order 2nd ed.(Oxford: Hart Publishing, 2001).
Garant, P. & Issalys, P., Loi et règlement (Quebec: Laboratoire de recherche sur la justice administrative, 1981).
Gunningham, N. & Sinclair, D., "Regulatory Pluralism: Designing Policy Mixes for Environmental Protection" (1999) 21 Law & Policy 49.
Hart, H.M. Sacks, A., Eskridge, W.N. & Frickey, P.P., The Legal Process: Basic Problems in the Making and Application of Law (Westbury, N.Y.: Foundation Press, 1994).
Haufler, V., A Public Role for the Private Sector: Industry Self-Regulation in a Global Economy (Washington, D.C.: Carnegie Endowment for International Peace, 2001).
Hood, C.C., The Tools of Government (Chatham, N.J.: Chatham House, 1986) 1.
Howlett, M., "Policy Instruments and Implementation Styles: The Evolution of Instrument Choice in Canadian Environmental Policy" in D.L. VanNinjnatten & R. Boardman eds., Canadian Environmental Policy: Context and Cases (Toronto: Oxford University Press, 2002) 25.
Issalys, P. Répartir les normes: les choix entre les formes d'action étatique (Quebec: Société de l'assurance automobile du Québec, 2000).
Komesar, N., Imperfect Alternatives: Choosing Institutions in Law, Economics and Public Policy (Chicago: University of Chicago Press, 1994).
Lascoumes, P., "Négocier le droit-Formes et conditions d'une activité gouvernementale conventionelle" (1993) 11:4 Pol. et manage. pub. 47.
Linder, S.H. & Peters, B.G., "The Design of Instruments for Public Policy" in S.S. Nagel & W. Dunn, eds., Policy Theory and Policy Evaluation (Westport, Conn.: Greenwood Press, 1990) 103.
Lowi, T.J., "Four Systems of Politics, Policy and Choice" (1972) 32 Pub. Admin. Rev. 298.
Macdonald, R.A. "Understanding Regulation by Regulations" in I. Bernier and A. Lajoie, eds. Regulations, Crown Corporations and Administrative Tribunals (Toronto: University of Toronto Press, 1985).
Macdonald, R.A., Prospects for Civil Justice (Toronto: Ontario Law Reform Commission, 1995)
Mashaw, J.L. "How Much of What Quality? A Comment on Conscientious Procedural Design" (1980) 65 Cornell L. Rev. 823.
Mazmanian, D.A. & Sabatier, P.A., Implementation and Public Policy (Glenview: Ill.: Scott, Foresman, 1983).
McCool, D., ed., Public Policy Theories, Models and Concepts: An Anthology (Englewood Cliffs: Prentice Hall, 1995).
Pal, L. Beyond Policy Analysis: Public Issue Management in Turbulent Times (Scarborough: ITP Nelson, 1997).
Peters, B. G., Institutional Analysis in Political Science: The New Institutionalism (London: Cassells, 1998).
Powell, W.W. & DiMaggio, P.J., "Introduction" in W.W. Powell & P.J. DiMaggio, eds., The New Institutionalism in Organizational Analysis (Chicago: University of Chicago Press, 1991) 1.
Prichard, J. Robert, S. et al., eds., Crown Corporations in Canada: The Calculus of Instrument Choice (Toronto: Butterworths, 1983).
Prince, M.J., "Civic Regulation: Regulating Citizenship, Morality, Social Order and the Welfare State" in G.B. Dorn & S. Wilks eds., Changing the Rules: Canadian Regulatory Regimes
Putnam, R., Making Democracy Work (Princeton, N.J.: Princeton University Press, 1993).
Reich, R., The Power of Public Ideas (Cambridge, Mass: Harvard University Press, 1990).
Salamon, L.M., "The Governance and the Tools of Public Action: An Introduction" in L.M. Salamon ed., The Tools of Government: A Guide to the New Governance (New York: Oxford University Press, 2002).
Shapiro, M., "Administrative Discretion: The Next Stage" (1994) 91 Yale L.J. 1487.
Trebilcock, M., Hartle, D.G., Prichard, J.R.S., & Dewees, D.N., The Choice of Governing Instrument (Ottawa: Economic Council of Canada, 1982).
van der Doelen, F.C.J. "The 'Give and Take' Packaging of Policy Instruments: Optimizing Legitimacy and Effectiveness" in M.L. Benelmans-Videc, R.C. Rist & E. Vedung eds., Carrots, Sticks and Sermons: Policy Instruments and Their Evaluation (New Brunswick, N.J.: Transaction Books, 1998).
Vedung, Evert, "Policy Instruments: Typologies and Theories" in M.L. Benelmans-Videc, R.C. Rist, & E. Vedung, E., eds., Carrots, Sticks and Sermons: Policy Instruments and their Evaluation (New Brunswick, N.J., Transaction Books, 1998) 21.
Videc, R.C. Rist, & E. Vedung, E., eds., Carrots, Sticks and Sermons: Policy Instruments and their Evaluation (New Brunswick, N.J., Transaction Books, 1998) 21.
Wilson, J.Q., American Government (Lexington, Mass.: D.C. Health, 1979).
Witteveen, W.J. & van der Burg, W., eds., Rediscovering Fuller: Essays on Implicit Law and Institutional Design (Amsterdam: Amsterdam University Press, 1999).
World Health Organization, "Guidance on regulatory assessment of HACCP_- The report of a Joint FAO/WHO Consultation on the Role of Government Agencies in Assessing HACCP (WHO/FSF/FOS/98.5)" online: http://www.who.int/fsf/REP983A.html
Table B - Bibliography on Drug Governance
Goetz, D., "Drug Prohibition and the Constitution", online: http://www.parl.gc.ca/Content/SEN/Committee/371/ille/library/drugs-3.htm
Husak, D.N., "Recreational Drugs and Paternalism" (1989) 8 Law & Philosophy 353.
Husak, D.N., "Addiction and Criminal Liability" (1999) 18 Law & Philosophy 655.
Kaplan, J., "Taking Drugs Seriously" (1998) 92 Public Interest 32.
Kleiman, M.A.R., "Neither Prohibition Nor Legalization: Grudging Toleration in Drug Control Policy" (1992) 121:3 Daedalus 53.
Manderson, D., From Mr. Sin to Mr. Big (Sydney: Oxford U. Press, 1993).
Meier, K.J., The Politics of Sin (Armonk, N.Y.: M.E. Sharpe, 1994).
Morse, S.J., "Addiction and Responsibility" (2000) 19 Law & Philosophy 3.
Nadelmann, E.A., "The Case for Legalization" (1998) 92 Public Interest 3.
Nadelmann, E.A., "Thinking Seriously About Alternatives to Drug Prohibition" (1992) 121:3 Daedalus 85.
Riley, D., "Drugs and Drug Policy in Canada: A Brief Review & Commentary, online: http://www.parl.gc.ca/Content/SEN/Committee/371/ille/library/riley-e.htm
Skolnick, J.H., "Rethinking the Drug Problem" (1992) 121:3 Daedalus 133.
Watson, G., "Excusing Addiction" (1999) 18 Law & Philosophy 589.
Young, I.M., "Punishment, Treatment, Empowerment: Three Approaches to Policy for Pregnant Addicts" (1994) 20:1 Feminist Studies.