Why is the American policy debate not focused more intensely on the relative merits or demerits of our current approach to drugs and of possible alternatives to it? The lack of discussion of this issue is rather striking, given that America has the most serious drug problem in the world, that alternatives to a prohibitionist approach are under serious consideration in other countries, and that the grounds for reconsidering our current approach are, I shall argue, so weighty. -/- One (...) consideration that tells against our present approach to drugs is that prohibition simply does not work. For we have, after all, been pursuing this approach in the case of heroin since the Harrison Narcotic Act of 1914, and what has been the outcome? We have the worst heroin problem in the world. Moreover, our brief experiment in banning the consumption of what is undoubtedly our most harmful drug, alcohol, during Prohibition, turned out to be an utter failure. -/- A second consideration, often noted is the striking difference in our treatment of drugs such as alcohol and nicotine, on the one hand, and drugs such as marijuana, heroin, and LSD, on the other. This difference is so familiar that it may no longer seem strange. If so, it is worth asking the following question. If you were on a desert island, with a plentiful supply of both tobacco plants and opium poppies, and you knew that your son or daughter was going to wind up addicted either to nicotine or to heroin, which would you prefer? If your choice is nicotine you have chosen a drug that, according to the testimony of most heroin addicts, is the more addictive of the two drugs. In addition, given access to heroin that has not been combined with dangerous chemicals, your son or daughter could be a lifelong addict without suffering serious organ damage. But a lifelong addiction to tobacco is often, of course, a very different story. -/- In this article, then, I consider in detail perhaps the two most important reasons for reconsidering our current drug policy: first, the difficulty of providing any adequate justification for the restrictions that prohibitive laws place on people's liberty, and secondly, the enormous social and personal cost associated with a prohibitionist approach. (shrink)

These essays, first presented at a conference, “Coping with Sickness,” held in Italy in 1997, address ethical and regulatory medical issues within a historical context. Many of the essays, while addressing interesting topics, combine policy analysis and critical cultural theory. Critical cultural theory can be intellectually engaging at times but is generally irrelevant to public officials concerned with specific policy issues.Coping with Sickness is the third and final volume derived from a series of conferences cosponsored by the European Science Foundation (...) and the Euroconferences Activity of the European Union. The eight essays are organized chronologically and cover a range of disparate topics: medical practitioners and the Spanish Inquisition , the history of autopsy legislation in German since 1800 , the history of “sadism” as a medical term in the nineteenth century , folk medicine in Holland in the late nineteenth century , abortion in Weimar Germany , drug testing in Africa in the early twentieth century , comparative policies toward STDs , and the debate over brain death in Germany . As might be expected in an anthology of this sort, the quality varies considerably. Nonetheless, the subjects addressed in this volume are engaging—much to the credit of the editors.Two pieces in particular represent the range of these collected essays. In “Vacher the Ripper and the Construction of the Nineteenth‐Century Sadist,” Angus McLaren, one of the best historians writing on the history of sexuality today, explores the “discovery” of sadism in the late nineteenth century by focusing on the dramatic trial of Joseph Vacher, who was charged in 1895 for the brutal sexual murder of a woman in Champuis. He later confessed to the murder and the sexual violation of another seven females and four males. Vacher had a long history of mental illness; indeed, he had been institutionalized in July 1893 following a failed attempt at suicide that left a bullet lodged in his head. At the trial the criminologist Alexandre Lacassagne was brought in as an expert witness to testify that Vacher was not insane but an antisocial sadist, as revealed by his dabbling in anarchism, vagabondism, and homosexuality. As a consequence, Vacher was found guilty and given a death sentence.McLaren finds in this trial an example of the social construction of a new medical concept, “sadism.” The emergence of the concept of sadism, he argues, reflected a “gendered notion” of defining appropriate male and female behavior; physicians at the turn of the century believed that “civilized men were most threatened, not by excess passion, but by the enervation spawned by urban life” . The concept of sadism was also employed by doctors to enhance their own authority and to alert the public to the dangers of a male manifesting “feminine traits” and to “beat back” homosexuality.There is much interesting conjecture to McLaren's study, but what policy lessons should be drawn from this remains unclear. If every concept is actually a social construction, reflecting the social anxieties of the age, then is the fashionable concept of social construction itself socially constructed to enhance the authority of the medical historian?More interesting methodologically is Claudia Wiesemann's absorbing essay on the historical debate in Germany over “brain death.” Relying on Ulrich Beck's social theory of simple and reflexive modernization, she shows that, when confronted with complex scientific questions, the public has to decide between competing plausible scientific claims; as a result, political groups make use of scientific expertise and counterexpertise to push their favorite practical and legal solutions. (shrink)

In this paper, I present and criticize several historical arguments in favour of prohibition and criminalization of illicit psychoactive substances. I consider several versions of Charles Brent’s argument from drug harms and an argument from addiction based on Kantian view on autonomy. My criticism will mainly rely on empirical evidence on drugs, drug use, and addiction. I think that in light of this evidence, all of the arguments lose their cogency or can be refuted altogether. Moreover, the evidence (...) reveals an inconsistency in the international drug law framework. In conclusion, I therefore provide a general argument challenging the legitimacy of the existing distinction between licit and illicit drugs based on the inconsistency. (shrink)

Illegal drugs are not inherently unclean, any more than alcohol, tobacco, or canola oil. All of these are simply chemicals that people choose to ingest for enjoyment, and that can harm our health if used to excess. Most of the sordid associations we have with illegal drugs are actually the product of the drug laws: it is because of the laws that drugs are sold on the black market, that Latin American crime bosses are made rich, that (...) government officials are corrupted, and that drug users rob others to buy drugs. (shrink)

Illegal drugs are not inherently unclean, any more than alcohol, tobacco, or canola oil. All of these are simply chemicals that people choose to ingest for enjoyment, and that can harm our health if used to excess. Most of the sordid associations we have with illegal drugs are actually the product of the drug laws: it is because of the laws that drugs are sold on the black market, that Latin American crime bosses are made rich, that (...) government officials are corrupted, and that drug users rob others to buy drugs. (shrink)

Alcohol and other drug-related stigma is a growing concern. Many organizations have called for a reduction in such stigma through law reform, but there is little sense of how, precisely, this might be achieved. This paper reports on a new method to examine the relationship between stigma and the law and establish a framework that can guide and inform future law reform efforts.

This book examines core issues related to legal insanity, integrating perspectives from psychiatry, law, and ethics. Various criteria for insanity are analyzed and recommendations for forensic psychiatric and legal practice are offered. Many legal systems have an insanity defense, in one form or another. Still, it remains unclear exactly when and why mental disorders affect a person’s moral or criminal responsibility. Questions addressed in this book include: Why should insanity be a component of our legal system? What should be the (...) criteria for an insanity defense? What would be the reasons for abolishing it? Who should bear the burden of proof? Furthermore, the book discusses the impact neurosciences may have on psychiatric and psychological evaluations of defendants as well as on legal decisions about insanity. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:“Till Death Do Us Part”? Buddhist Insights on Christian MarriageWioleta PolinskaHigh divorce rates and declining marriage rates in Western societies draw the attention of many scholars to the fragility of contemporary marriages.1 Rampant individualism, permissive divorce law, and softening stance on divorce by mainstream Christian denominations are all listed as culprits responsible for the current marriage crisis.2 These conventional accounts, however, overlook important insights gathered by historians of marriage, (...) insights that point to a dramatic shift in the concept of marriage that occurred more than two hundred years ago. According to Stephanie Coontz, “the invention of the historically unprecedented idea that marriage should be based on love and mutual affection” 3 is responsible for greater fragility, but also for creating good, satisfying marriages that bring much happiness to people’s lives.4 Thus, the very source of fragility (the search for love and mutual affection) is also a source of deep connections and lasting relationships. While the fragility accompanying contemporary marriage is here to stay, our efforts to build strong unions need to be carefully evaluated. In what follows, I will address Christian and Buddhist approaches that aim at protecting the stability of marriage. To strengthen marriage, Christianity, from early on, focused on the permanence of marriage whether understood as a sacrament or, later on, as a covenant. Christian wedding vows that promise love, care, and enduring partnership “till death do us part” capture well the prevailing theology of Christian marriage. In contrast, Buddhism employs a concept of impermanence that implies an ever-changing reality that warrants no finality. Recent studies in psychology of mindfulness meditation show that such Buddhist concepts can translate well into effective skills for those in loving relationships. I will suggest that Christian theology might become more successful at preserving the stability of marriage by becoming less focused on the finality of couples’ bonds, and instead attending to the present reality of couples’ relationships.It is well documented that before the seventeenth century marriages were arranged by parents and fulfilled primarily political, economic, and social functions rather than individual needs. Marriage was seen as a means of enlarging one’s economic enterprise, acquiring powerful in-laws, strengthening military alliances, or (for the less [End Page 29] privileged) enlarging the family’s labor force.5 This is not to say that the notion of romantic love was unknown until the seventeenth century, but that it was not closely associated with marriage.6 In aristocratic courts of southern France, for example, romantic love appeared between an unmarried man and a married woman, and it should have been either unconsummated or adulterous.7 As late as the eighteenth century, a “sudden falling head over heels in love, although a familiar enough psychological phenomenon, was thought of as, a mild form of insanity” and an unreasonable basis for marriage.8 Romantic love became widely accepted only in the nineteenth century under the influence of Enlightenment thought, ideals of the French and American Revolutions and of the romantic movement.9Romantic love as an expression of an individual’s desire for fulfillment has its dark side, as it can unleash selfish concerns. Thus, Robert A. Johnson, a Christian theologian, defines romantic love as “airy, fantasy, projections, and an evanescent high. It is fundamentally egotistical—fixated on its own wants and whims. It can never lay the foundation for personal commitments.” 10 The Vietnamese Buddhist monk Thích Nhất Hạnh (b. 1926) states that love can become a kind of sickness when it forms an attachment, similar to drug dependency. When we are under its spell, we are preoccupied with the object of our love and we desire to control and possess the other. To Ven. Hạnh, this is not true love since “it is only the willingness to make use of the other person in order to satisfy our own needs.” 11 Both Johnson and Ven. Hạnh while criticizing romanticized concepts of love are not giving up on possibility of intimate love. Johnson calls this intimate connection with another person a “human love,” a love that affirms and appreciates another person as she or he actually is, in their totality. Instead of prizing... (shrink)

We discuss the crucial, but easily missed, link between paternalism and incarceration. Legal paternalists believe law should be used to help individuals stay healthy or moral or become healthier or morally better. Criminal laws are paternalistic if they make it illegal to perform some action that would be bad for the actor to do, regardless of effects on others. Yet, one result of such laws is the punishment, including incarceration, of the very same actors—also clearly bad for them (...) even if meant to be rehabilitative. Therein lies an oddity: paternalist criminal law—and thepresumably rehabilitativepunishments that serve as responses to infringements of such laws—is meant to help the actor but in fact has the opposite effect on net. Incarceration is particularly problematic on this front as it harms the alleged criminal in ways that go beyond the harm they would have caused themselves. Incarceration also may undermine the actor’s ability to improve his decision-making abilities or his moral character. The effects of the punishment also drift to others—family and friends, as well as business associates, of the punished. Paternalists, inasmuch as they are motivated by beneficence or concern about moral character, must account for all of these costs as threats to well-being and the conditions for acting morally. Given the link between paternalism and incarceration, we propose that if we are to take seriously the problem of over-incarceration in the U.S., we must reconsider the use of paternalism in criminal law; we sketch several alternatives. We believe paternalists should support our resistance to incarceration and seriously consider these alternatives. (shrink)

A critical survey of arguments for and against the morality and the legality of recreational drug use, deploying Feinberg's analysis of liberty-limiting principles.

The belief that people convicted of crimes deserve punishment is commonplace. Yet the punitive conception of individual responsibility commonly associated with ‘just deserts’ exaggerates the moral meaning of criminal guilt, normalizes excessive punishment, and distracts from shared responsibility for social injustice. The problem is, many people who get caught up in the criminal justice system cannot reasonably be thought to deserve their fate. Mental illness, intellectual disability, addiction, trauma, and poverty are morally mitigating factors when it comes to assessing how (...) blameworthy a person is for criminal behavior. But with the exception of extreme forms of mental illness that fall into the very narrow legal category of ‘insanity,’ people who struggle with serious difficulties are not treated as less blameworthy by the criminal justice system. The criteria of legal guilt does not match up well with the moral concept of blameworthiness.The solution might seem to be somehow to refine legal practice to make blame more context-sensitive, but I argue that rather than try to revise our criminal justice practices to fit better with common notions of blame and desert, we should get out of the public blaming business altogether. A determination morally to condemn individual offenders is not helping us to resolve the disaster of mass incarceration or the problems faced by returning citizens. It does not help us to see clearly the connection between crime and other problems of social injustice, like poverty, lack of mental health care, drug addiction, racial discrimination, and violence. Were we to be less fixated on individual responsibility, and more cognizant of our shared responsibility to treat all members of society as equal persons, entitled to the same basic rights, liberties, and opportunities, we might be in a better position to work collectively to address problems of social injustice that contribute to the problem of crime. (shrink)

Book reviewed in this article: Sex, Drugs, Death and the Law: An Essay on Human Rights and Overcriminalization. By David A. J. Richards. Totowa, NJ: Rowman and Littlefield, 1982. xii + 316 pp. $26.95.

In public health and the social sciences, there is growing recognition of the role that social context plays in determining health. Frequently, social relations of inequality are among the most important features of social context identified in this work, and emphasis is placed on identifying and addressing these inequalities in order to improve health. Within the field of HIV/AIDS prevention as well, researchers have begun to look beyond individuals for an understanding of the structural causes of HIV-related risk. This research (...) demands that greater attention be paid to the social mechanisms and contextual factors that lead to HIV risk. Among these factors are law and social policy, which form a part of the context in which risk-taking occurs and which can promote both HIV transmission and prevention. On the one hand, laws limiting access to sterile injection equipment have contributed to HIV-related risk behavioxs among injection drug users. (shrink)

In public health and the social sciences, there is growing recognition of the role that social context plays in determining health. Frequently, social relations of inequality are among the most important features of social context identified in this work, and emphasis is placed on identifying and addressing these inequalities in order to improve health. Within the field of HIV/AIDS prevention as well, researchers have begun to look beyond individuals for an understanding of the structural causes of HIV-related risk. This research (...) demands that greater attention be paid to the social mechanisms and contextual factors that lead to HIV risk. Among these factors are law and social policy, which form a part of the context in which risk-taking occurs and which can promote both HIV transmission and prevention. On the one hand, laws limiting access to sterile injection equipment have contributed to HIV-related risk behavioxs among injection drug users. (shrink)

This chapter contains sections titled: Chemical Revelations? The Veil of Maya and the Reducing Valve The Insane Root The Peacock in the Mirror.

A series of structural constitutional arguments lodged in multiple cases against Centers for Medicare and Medicaid Services’ (CMS) authorities to negotiate prescription drug prices via the 2022 Inflation Reduction Act threaten the legitimacy of CMS program and federal agency powers.

The Breivik case in Norway has motivated a reassessment of Norwegian insanity law by the Norwegian government. Because Norway since 2002 has utilized a “medical model” for legal insanity—a model according to which the legal excuse of insanity is identified with some medical concept such as psychosis—the Norwegian reexamination of its law is not without interest throughout the world. In this paper, I utilize the Anglo-American experience with different medical models for insanity to assess the current Norwegian law on insanity. (...) I defend a strong version of the medical model against standard criticisms advanced against it in the Anglo-American literature, and venture some suggested improvements in how that model was applied in the Breivik case. (shrink)

In this paper we aim to offer a balanced argument to motivate (re)thinking about the mental illness clause within the insanity defence. This is the clause that states that mental illness should have a relevant causal or explanatory role for the presence of the incapacities or limited capacities that are covered by this defence. We offer three main considerations showing the important legal and epistemological roles that the mental illness clause plays in the evaluation of legal responsibility. Although we acknowledge (...) that these advantages could be preserved without having this clause explicitly stated in the law, we resist proposals that deny the importance of mental illness in exculpation. We argue, thus, that any attempt at removing the mental illness clause from legal formulations of the insanity defence should offer alternative ways of keeping in place these advantages. (shrink)

This Article falls into three general parts. The first part starts with an important question: is the insanity defense constitutionally required? The United States Supreme Court will finally try to answer this question next term in the case of Kahler v. Kansas. -/- I say “finally” because the Court refused to answer this question in 2012 when it denied certiorari to an appeal brought by John Joseph Delling, a severely mentally ill defendant who was sentenced to life in prison three (...) years earlier for two murders. Delling never had the opportunity to plead the insanity defense because his home state, Idaho, had abolished it in 1982. -/- By depriving Delling of the right to plead insanity, Idaho violated Delling’s Fourteenth Amendment right to due process and his Eighth Amendment right against “cruel and unusual” punishment. Naturally, the same is true for many other mentally ill and disabled defendants who have been prosecuted in Idaho and in the other three states that have abolished the insanity defense: Kansas, Montana, and Utah. -/- The second general part of this Article notes an insight that I stumbled upon in the course of researching the first part: the insanity defense and the mistake of law defense both require ignorance of the law, what I refer to as “normative ignorance.” Indeed, normative ignorance is what makes both of these defenses exculpatory in the first place. -/- Given this critical connection, there is a way for Idaho, Kansas, Montana, and Utah to resume compliance with the Constitution. Instead of reinstating the insanity defense per se, which might be politically unpopular, they should just broaden their mistake of law defense to include normative ignorance caused by cognitive incapacity that is itself caused by mental illness or disability. -/- Still, this Article is not merely directed at these four western states. It is directed at the other forty-six states as well. Because they already have an insanity defense, they need not incorporate it into their mistake of law defense. But in the third general part, I will argue that they should still expand their mistake of law defense to cover defendants who either lack a reasonable opportunity to learn the law or reasonably but mistakenly infer from widely accepted norms or ethics that their conduct is lawful. (shrink)

As one of the most massive and successful business sectors, the pharmaceutical industry is a potent force for good in the community, yet its behaviour is frequently questioned: could it serve society at large better than it has done in the recent past? Its own internal ethics, both in business and science, may need a careful reappraisal, as may the extent to which the law - administrative, civil and criminal - succeeds in guiding (and where neccessary contraining) it. The rules (...) of behavior that may be considered to apply to today's pharmaceutical industry have emerged over a very long period and the process goes on. Even the immensely detailed standards for quality, safety and efficacy laid down in drug law and regulation during the second half of the twentieth century have their limitations as tools for ensuring that the public interest is well served. In particular, national and regional regulatory agencies are heavily dependent on industrial data for their decision-making, their standards and competence vary, and even the existing network of agencies does not cover the entire world. What is more there are many areas of law and regulation affecting the industry, concerning for example the pricing of medicines, the conduct of clinical studies, the health protection of workers and concern for the environment. In some fields it is indeed hardly possible to maintain standards through regulation. Professor N.M. Graham Dukes, a physician and lawyer with long term experience in industrial research management, academic study and international drug policy, provides here a powerfully documented analysis into the way this industry thinks, acts, and is viewed, and examines the current trends pointing to change. *Provides a balanced picture of the current role of the pharmaceutical industry in society *Includes indices of conventions, laws, and regulations; as well as judicial and disciplinary cases *This is the only book addressing the legal implications of big pharma activities and ethical standards. (shrink)

Varcoe, Shane Until recently, there has been a largely unnoticed contingent of stakeholders who have not merely abandoned the ideal scenario of a drug free culture, but have quickly stepped through a phase of passive indifference, into what is a 'pro-drug' position in active pursuit of rights for individuals to be protected and supported in their consumption of currently illicit drugs. The players engaged in attempting to bring about this disturbing cultural shift are varied, but certainly these advocates (...) are 'spinning' data and even engaging noble platforms such as 'human rights' to speciously gain leverage. A key strategy in what is now a further 'push' down the slippery slope of dysfunction is the notion of normalisation. (shrink)

This chapter argues that a successful plea of legal insanity ought to rest upon proof that a criminal act is causally related to symptoms of a mental disorder. Diagnosis of a mental disorder can signal to the court that the defendant had very little control over relevant moral ignorance or incompetence. Must we draw the same conclusion for defendants who lack moral knowledge due to miseducation or other extreme environmental conditions, unrelated to a mental disorder? Adults who were brainwashed as (...) children, for example, might seem “insane” due to their lack of moral knowledge. However, since legal culpability rests on the capacity to understand the criminal law’s moral demands, to reflect on these demands across time, and to control one’s behavior in light of them, simple ignorance of morality's demands does not excuse. (shrink)

We explicate and evaluate arguments both for and against the insanity defense itself, different versions of the insanity defense (M'Naghten, Model Penal Code, and Durham (or Product)), the Irresistible Impulse rule, and various reform proposals.

In this chapter we will argue that the capacities necessary to moral and legal agency can be understood as executive functions in the brain. Executive functions underwrite both the cognitive and volitional capacities that give agents a fair opportunity to avoid wrongdoing: to recognize their acts as immoral and/or illegal, and to act or refrain from acting based upon this recognition. When a person’s mental illness is serious enough to cause severe disruption of executive functions, she is very likely to (...) lack substantial capacities necessary to be law-abiding. Our analysis supports the Model Penal Code test for legal insanity over the traditional M’Naghten test, because the Model Penal Code test allows either severely diminished cognitive or volitional capacities to warrant an excuse to criminal culpability. We will provide a nuanced account of the ways in which mental illness can erode executive function, as well as an explanation as to why severe diminishment of executive functions caused by mental illness, but not some other causes, is exculpatory. (shrink)

Public officials should compensate the victims of wrongful conviction and enforcement. The same considerations in favor of compensating people for wrongful conviction and enforcement in other cases support officials’ payment of reparations to the victims of unjust enforcement practices related to the drug war. First, we defend the claim that people who are convicted and incarcerated because of an unjust law are wrongfully convicted. Although their convictions do not currently qualify as wrongful convictions in the legal sense, we argue (...) that the same reasons for legally recognizing other wrongful convictions support conceiving of these cases as wrongful convictions. If so, then people who suffered wrongful convictions associated with unjust laws, like others who were wrongfully convicted, are entitled to compensation and reparation. We then argue that America’s drug laws are unjust laws. Therefore, people who were convicted of nonviolent drug offenses are entitled to compensation. (shrink)

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

In the wake of several highly publicized lawsuits over drugs recalled for safety – most notably, Vioxx and Paxil – the Food and Drug Administration and the pharmaceutical industry have faced increasingly intense public scrutiny over the drug testing and approval process. Critics blame the FDA's shorter pre-market approval process that has resulted from the enactment of the Prescription Drug User Fee Act, which effected, among other changes, an increased number of reviewers, a higher review load for (...) each reviewer, and the implementation of “user fees” from companies submitting drugs for review. While many have posited that the lack of safety in some FDA-approved drugs was caused by the enactment of PDUFA, the results of a recent study from the Tufts Center for the Study of Drug Development have indicated that there is no statistically significant correlation between the number of drugs recalled for safety and the enactment of PDUFA. (shrink)

In The Rules of Insanity, Carl Elliott draws on philosophy and psychiatry to develop a conceptual framework for judging the moral responsibility of mentally ill offenders. Arguing that there is little useful that can be said about the responsibility of mentally ill offenders in general, Elliott looks at specific mental illnesses in detail; among them schizophrenia, manic-depressive disorders, psychosexual disorders such as exhibitionism and voyeurism, personality disorders, and impulse control disorders such as kleptomania and pyromania. He takes a particularly hard (...) look at the psychopath or sociopath, who many have argued is incapable of understanding morality. Making extensive use of psychiatric case histories, Elliott explores the various ways in which mental illness can affect a person's intentions and thus excuse him or her from moral responsibility. (shrink)

This article discusses the misalignment of the drug innovation model in the US with broader societal goals. The paper calls for a reconfiguration of this model to prioritize the common good and ensure equitable access to health innovations. The article stresses the importance of adopting a mission-oriented approach to shape the drug market, including reforming intellectual property rights.

In this article I argue that insanity defences such as M’Nagten should be abolished in favour of a defence of failed agency. It is not insanity per se, or any other empirical condition, which constitutes the moral reason for exculpation. Rather, we should first recognize the conditions for being a responsible moral agent. These include some capacity to direct and control one’s behavior, a non-delusional component, and the capacity to recognize that one’s behavior is expressive of what they have reason (...) to be doing. When either of these fail in a case involving alleged criminal behavior the defence of failed agency may be appealed to. There may be many causes, including and besides insanity, that give rise to use of the defence of failed agency. (shrink)

Throughout its history, the insanity defense specifically and the more general concept of mental defect or incompetence have been grounded in the assumption that those people fit for the rule of law are able to give and to comprehend reasons for their actions. This chapter traces the evolution of perspectives on the nature of mental illness and the manner in which cultural and extra-scientific influences have shaped perspectives. These perspectives are most saliently expressed in statutory provisions and relevant case law (...) summarized here and covering historical developments from ancient Greece and Rome to the present. Significant interactions between law and psychiatry are further highlighted and informed by core and controversial philosophical assumptions. Attention is given to differences between juridical and medical conceptions of responsibility. (shrink)

The incident in May-June 2007 involving a U.S. citizen traveling internationally while infected with drug-resistant tuberculosis involved the U.S. federal government's application of its quarantine and isolation powers. The incident and the isolation order raised numerous important issues for public health governance, law, and ethics. This article explores many of these issues by examining how the exercise of quarantine powers provides a powerful lens through which to understand how societies respond to and attempt to govern threats posed by dangerous, (...) contagious pathogens. The article considers historical aspects of governmental power to quarantine and isolate individuals and groups; analyzes the current state of quarantine and isolation law in the United States in light of the recent incident with drug-resistant tuberculosis; and explores global aspects of public health governance and law highlighted by this incident. (shrink)

This textbook introduces students to the various arguments for and against the prohibition of recreational drugs. The arguments are carefully presented and analyzed, inviting students to consider the competing principles of liberty rights, paternalism, theories of punishment, legal moralism, and the social consequences of drug use and drug laws. Meyers extends this examination by presenting alternatives to the prohibition/legalization dichotomy, including harm reduction, decriminalization, and user licensing or on-premise use. The presentation invites readers to think clearly about (...) the reasons and principles that should determine public policy and law, while also delving into the deeper philosophical questions underlying the drug prohibition debate. Is it morally wrong to use drugs? If so, would that be reason enough to make it illegal? Are there good reasons in favor of using illicit drugs? Do addicts lack free will, and if so, would it be unjust to punish them? What is (or ought to be) the purpose of punishment? Is the state justified in limiting the freedom of competent adults for their own good? What should be the goal of drug policy, reduced use or reduced harm? The purpose of the book is twofold. First, it is a review of the arguments for and against drug prohibition, a useful tool for policy makers, activists, and concerned citizens with an understanding of the relevant considerations for determining how we should reform our failing drug policy. Second, the book serves as a case study in the deeper issues of justice, the nature of law, rights and liberties, and the public good. Students studying applied ethics, political science, or public policy will benefit greatly from Meyers' approach. (shrink)

Unlike the criminal law, tort law does not recognize insanity as an answer to liability. The fact that a defendant was insane at the time of his impugned conduct is essentially ignored by tort law's liability rules. It will be argued that this situation is unsatisfactory. A person should not incur liability in tort in respect of acts committed while insane. This result should be realized by providing for a generally applicable affirmative defence of insanity.

Book reviewed in this article: Madness and the Criminal Law. By Norval Morris. The Insanity Plea: The Uses and Abuses of the Insanity Defense. By William J. Winslade and Judith Wilson Ross.

This paper attempts to set forth, in the context of Anglo-U.S. criminal law, the meaning of the concept of insanity, its necessary relation to absence of responsibility, and its bearing on some relevant psychiatric concepts and legal controversies. Irrationality is a distinctive and necessary (but not sufficient) condition for insanity. Irrationality consists in failure even to grasp the relevance of what is 'essentially' relevant. To that extent there obviously can be no responsibility. A mental makeup which renders one (who would (...) not normally be so) substantially incapable of rational conduct constitutes insanity, and in that respect renders the person non-responsible. Much more broadly and roughly speaking, the mind that is ill is the mind that is irrational (and hence in that respect non-responsible). (shrink)

In a recent contribution to this journal, Patrick Tully criticizes my view that the doctrine of double effect does not prohibit a pharmaceutical company from selling a drug that has potentially fatal side-effects and that does not treat a life-threatening condition. Tully alleges my account is too permissive and makes the doctrine irrelevant to decisions about selling harmful products. In the following paper, I respond to Tully’s objections and show that he misinterprets my position and misstates some elements of (...) the doctrine of double effect. I also show how the doctrine constrains some decisions about marketing drugs with potentially fatal side-effects. (shrink)