Markets, Regulation and Drug Law Reform: Towards a Constitutive Approach
| DOI | 10.1177/0964663919868756 |
| Date | 01 June 2020 |
| Published date | 01 June 2020 |
| Author | Toby Seddon |
| Subject Matter | Articles |
Article
Social & Legal Studies
2020, Vol. 29(3) 313–333
Markets, Regulation
ª The Author(s) 2019
Article reuse guidelines:
and Drug Law
sagepub.com/journals-permissions
DOI: 10.1177/0964663919868756
Reform: Towards
journals.sagepub.com/home/sls
a Constitutive Approach
Toby Seddon
University of Manchester, UK
Abstract
After a century of international drug prohibition, and amidst growing consensus that it
has been a costly policy failure, arguments for drug law reform are gathering momentum
globally. Despite a large body of empirically oriented policy research, the area remains
underdeveloped conceptually and theoretically. This article seeks to address this gap by
assembling some intellectual resources for a critical socio-legal analysis of drug law
reform, drawing on insights from regulation studies, economics, political economy and
economic sociology. Reframing the problem as one of market regulation, and using
Shearing’s constitutive approach, opens up some new ways of thinking about how drug
laws function and the possibilities for reform. It also highlights the importance of taking
normative thinking about drug policy futures seriously. In conclusion, it is suggested that
a new concept of exchangespace may be key to further theoretical development in this
field.
Keywords
Drugs, economics, governance, markets, political economy, regulation
The problem of drugs [is . . . ] a market phenomenon.
Michel Foucault, 21 March 1979, cited in Foucault, 2008: 257
Corresponding author:
Toby Seddon, School of Law, University of Manchester, Oxford Road, Manchester M13 9PL, UK.
Email: toby.seddon@manchester.ac.uk
314
Social & Legal Studies 29(3)
Introduction
The consumption of psychoactive substances is a practice that stretches back deep into
human history and has been found in most cultures and societies around the world
(Courtwright, 2001; Goodman et al., 1995; Porter and Teich, 1995). Acknowledging
this longue dure´e is important – the desire for intoxication is not a symptom of a spiritual
malaise peculiar to today’s world, even if modern consumer culture has sharpened some
aspects of this human predilection (Alexander, 2010; Brook, 2010; Smith and Raymen,
2018). Getting intoxicated appears to be simply one of the things that human beings have
invariably done throughout history. Indeed, Siegel (1989) famously described the desire
for intoxication as the fourth fundamental driver of human behaviour, after hunger, thirst
and sex.
In contrast, the use of the criminal law to prohibit the trade in certain intoxicating
substances is a relatively recent development, dating back around 100 years to the
beginning of the 20th century (Bewley-Taylor, 1999). The scope, scale and conse-
quences of global drug prohibition have significantly escalated since its inception, espe-
cially in recent decades as ‘war on drugs’ rhetoric has led to increasingly punitive drug
policies (Rolles et al., 2016). Over 180 countries are now parties to the United Nations
drug control treaties. Globally every year, at least US$100 billion are spent in attempting
to enforce national drug laws, countless arrests are made by the police, hundreds of
thousands of people end up in prison convicted of drug offences (Rolles et al., 2016), and
several hundred drug offenders are executed (Sander, 2018).1 Drug law enforcement has
also long been a particular source of racial injustice, underpinning discriminatory prac-
tices at all stages of the criminal justice process (Eastwood et al., 2013; Glasser, 2000;
Shiner et al., 2018) and some have argued that racist discourse is embedded in the origins
of prohibition (e.g. Seddon, 2016).
Global drug prohibition should therefore be a significant concern for critical scholars
right across the social sciences. Although there has certainly been some insightful and
interesting work conducted from within multiple disciplines over the decades, arguably
the area of drug law and policy has been somewhat neglected by researchers compared to
studies of drug-using behaviour or drug distribution. In the last 20 years, this imbalance
has to some extent been redressed through some exemplary policy research by the likes
of Peter Reuter, Robert MacCoun, Alison Ritter, Jonathan Caulkins and others. Never-
theless, although this body of work has been executed with immense analytical skill and
sophistication, it has been driven in the main empirically rather than theoretically. In this
area, within the usual scholarly division of labour, it is the theoreticians who have been in
dereliction of duty, while the empirical researchers have made outstanding contributions.
Why should we worry about this? It could be argued that the work of a scholar like
Peter Reuter has been far more effective in addressing the challenges of reforming drug
law and policy than any theorist could ever be. In many respects, that is entirely true. But
theoretical work and conceptual discussion can complement policy-oriented empirical
studies, deepening and widening enquiry and understanding. Now seems like a partic-
ularly good time to try to broaden out research, as over the last 15 years the tectonic
plates of global drug policy have started to shift, with experiments in decriminalization
and legalization springing up across Europe, South America, North America, Australia,
Seddon
315
the Caribbean and, most recently, Africa2 (see Eastwood et al., 2016 for a global
survey). New theoretical and conceptual tools can potentially help us not only in
making sense of this changing world but also in informing the development of specific
law reform initiatives. This article seeks to make a start on this project by assembling
some theoretical resources for critical socio-legal thinking about drug law reform. In
doing so, it draws on scholarship from regulation studies, economic sociology, polit-
ical economy and economics, in order to develop a new approach built on the cross-
disciplinary ‘state of the art’ of theoretical understandings of society–market
interactions.
The article begins by briefly sketching the main features of contemporary drug
problems and the ways in which the global prohibition paradigm has failed, as this sets
out the context in which drug law reform has achieved its current salience. The central
part of the article develops the argument for understanding drug laws as a form of market
regulation. It argues for a constitutive conception of drug control, drawing on Shearing’s
(1993) work, in which regulation is understood not simply as a form of external market
ordering but also as constituting the very markets it seeks to control. A short concluding
section outlines how this constitutive perspective might be developed in the future in
order to advance critical thinking about drug law reform.
Global Drug Problems and the Failures of Prohibition
Although the drug trade is legally prohibited within a framework of United Nations
Conventions,3 it is estimated there are 275 million drug users globally, representing
5.6% of the world’s population aged between 15 and 64 (United Nations Office on
Drugs and Crime (UNODC), 2018). The majority are cannabis smokers but there are
also 31 million users of opiates, cocaine or amphetamines and around 11 million injec-
tors (UNODC, 2018). According to estimates, the value of the annual global retail
market could be as much as US$320 billion (UNODC, 2005).4 The global disease burden
associated with drug use is substantial. Excluding sub-Saharan Africa, injecting drug
users account for nearly one-third of all new human immunodeficiency virus (HIV)
infections reported globally and there are 1.7 million drug users living with HIV
(UNODC, 2016a: 14–15). One in every 100 deaths among the 15–64 population is
attributable to drug use (UNODC, 2012: 7). Injecting drug users in particular have a
very elevated risk of death, compared to the general population (Mathers et al., 2013).
Harms associated with production and trafficking are also significant. For some sub-
stances, notably heroin and cocaine, involvement in drug production has largely been
concentrated in poorer countries and has exacerbated security and development issues,
as, for example, in Afghanistan, the world’s largest producer of opium (UNODC,
2016b). Countries which lie on drug trading routes also suffer serious harms, including
violence, organized crime and the corruption of officials, as we see, for example, in West
Africa, a transit region for cocaine trafficking from South America to Europe (Aning and
Pokoo, 2014; Carrier and Klantschnig, 2012). In richer countries, the drug trade is linked
to problems of crime (Bennett et al., 2008), inequalities (Stevens, 2011: 13–32) and
public health (Middleton et al., 2016).
316
Social & Legal Studies 29(3)
Assuming the purpose of a prohibition system is to eliminate the market, we might
draw the conclusion that it has been a spectacular failure. Indeed, there is strong evidence
that decades of substantial expenditures on law enforcement have been associated with a
trend of declining drug prices, the precise opposite of what would be expected if enforce-
ment was effective5 (Basov et al., 2001; MacCoun and Reuter, 2011: 66–67; Pollack and
Reuter, 2014). From this perspective, claims that the drug trade would be even bigger
without prohibition (e.g. UNODC, 2012: 93) can be read simply as haggling about the
degree of the system’s failure. But the situation is even worse: prohibition is not only
ineffective, it actually causes harms. The damaging impacts of prohibition on levels of
violence in drug markets (Jacques et...
To continue reading
Request your trial