THERE are clear harms entailed in the practice of putting lots of unenforceable or unenforced laws on the books and consigning a significant swathe of your population to the category of lawbreakers. On the one hand, this promotes contempt for the law. On the other hand, it allows police and government to lock up many people at will, since most people are always violating some law or another, and that's a discretionary power that governments tend to abuse for repressive political purposes. The government also derives extortionary power from its ability to lock people up at will, which leads to corruption. In autocratic countries across a wide spectrum of development, from Guinea to Russia, you tend to find all of these things occurring together: a broad range of normal economic and political behaviour is criminalised, the citizens treat the law as an arbitrary set of irritating technicalities to be evaded, government uses police powers to repress political opposition, and police and government officials make their living by shaking people down.

Parts of this syndrome (criminalising normal behaviour, contempt for the law, shaking people down) also describe the way drug laws function in much of America. So the question arises of whether we should legalise pot. Two days ago Sarah Palin said we shouldn't, but that marijuana use isn't much of a problem, and should be a low priority for law enforcement. Ryan McNeely responded that this courts the problems of criminalisation and non-enforcement.

[W]hat I think what we're seeing here is the wrong-headed notion that an appropriate way to express disapproval of a behavior is to simply make it illegal but then wink and nod on enforcement, as if this is some sort of middle ground (this is also the Obama administration position on federal marijuana law)... If you don't think a law should be enforced, you should support repeal of the law. All this “compromise” accomplishes is granting police almost unfettered discretion. If smoking pot is still technically illegal, police can enforce the law when they choose, targeting certain people for arrest while turning a blind eye to others engaging in the exact same activity.

I used to feel this way too. America should, I thought, follow the lead of progressive foreign governments and decriminalise drug use. But I've now lived in some of those foreign countries that are famously tolerant of drug use, and it turns out that "tolerant" is the operative word. In the Netherlands, marijuana possession for personal use remains illegal. It's just never prosecuted. And indeed this seems to be the case for all the European countries with relatively permissive marijuana policies. The Dutch policy differs in that there are specific guidelines stating that possession for personal use is not to be prosecuted, and courts have taken these guidelines as reason to reject the few attempts prosecutors have made to bring cases. And it differs in terms of administrative policy in that the Netherlands has established an actual category of business, the coffee shops, where marijuana use is tolerated by policy, in order to concentrate the practice and limit the perceived harms to the non-pot-friendly portion of the public. Conservative Dutch have registered increasing hostility to the coffee shops in recent years, leading to policies intended to shrink the shops' footprints and to restrict them to selling pot to locals, rather than wholesale-level sales or sales to foreign tourists. And while there are periodic calls in the Netherlands to move to complete legalisation of soft drugs, that initiative never seems to get anywhere. But neither do calls for actual prosecution of marijuana possession and use.

So apparently, the Netherlands, Denmark, and so forth are among the countries that court public contempt for the law and repressive police practices by keeping marijuana use illegal but unpunished in practice. And yet these countries have failed to turn into Russia. I think what we're seeing here is the importance of national political culture and the impact of all the other institutions countries have that shape their practices of governance. It would be nice if we could arrive at an ethically and logically consistent legal stance on drug use, but it may be that in practice that's very hard to do, and not actually very important. Basically, while Sarah Palin's position on this issue, as on many others, is semi-deliberately incoherent, it is in this case a semi-deliberate incoherence that has proven to be effective policy in many countries, and I'm not even sure it's the wrong stance on the issue.

(Photo credit: AFP)