The legitimacy of criminalizing drugs: Applying the ‘harm principle’ of John Stuart Mill to contemporary decision-making

The article assesses the legitimacy of criminalizing drugs on the basis of relevant liberty-limiting principles. Where appropriate, empirical findings about drugs, drug use and drug policies are used to make the assessment. John Stuart Mill's harm principle is the pivotal element of this exploration and Joel Feinberg's framework of the moral limits of criminal law is used as a heuristic. First, the article considers whether legal moralism or legal paternalism provide arguments convincing enough to justify the criminalizing of drugs. Second, it explores whether individual conduct that does not harm others but causes harm to society by accumulation provides sufficient justification. The article concludes that drug use falls within the jurisdiction of individual choice that Mill identifies in his principle of liberty and the ‘accumulative harm’ perspective does not carry enough weight to justify their prohibition, and therefore society is not morally authorized to criminalize drugs.