Wednesday, June 20, 2012

On Marijuana and Health Care

If the meta-normative legal maxim salus populi suprema lex esto (the health of the people is the supreme law) is taken seriously - as it is purported to be by dozens of U.S. Supreme Court decisions - then its converse ought to hold as well. That is, if the health of the people is the supreme law, then the negation of the health of the people is a negation of the supreme law. As such, when conditions exist that negate the health of the people, these are ipso facto against the law. In order to conform with the law, therefore, such conditions must be corrected. This means that a society has a duty-of-care to itself; to satisfy this duty it must ensure that conditions of health are present, and conditions of disease are absent. As such, 'salutary presences' must be provided, and harmful presences must be removed. That said, how does one reconcile the hygiecratic position vis-a-vis the issue of drug criminalization/legalization and health care?

A superficial examination of the issue might lead one to conclude that because marijuana is in many respects inimical to physical health it is, then, inimical to the supreme law. However, this would be a misapplication of the maxim, for the maxim only applies to questions of public health and public policy. Though one could argue that in the aggregate marijuana use could injure the public health, the fact of the matter is that marijuana use - or any drugs, or practices - is a private issue. Insofar as a practice causes no harm - or the harm that it may cause is consented to - it remains a private issue.

Health Care, on the other hand, is a necessary condition of health. As such, it ought to fall under the duty-of-care a society owes itself. The maxim salus populi, which holds that the health of the people is the supreme law, implies that that which is against the health of the people is against the law. This gives rise to not only a duty to restrain from causing harms; it also gives rise to a duty to correct harms. Because the absence of health care constitutes an ongoing harm, the duty to correct gives rise to a duty to provide it.

Because all people, to some degree, need health care (even if they do not want it - and, of course, the principle of autonomy holds that they do not have to accept it) society has a duty-of-care to supply it. Marijuana, however, is generally not needed. As such, since no harm arises from its absence, no duty to correct arises, and (except where it might be necessary for well-being) society has no duty to supply it. But because it is largely a private issue, as opposed to a public issue, society has no basis for interfering with its consensual use.

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