Drugs as a regulation and governance problem

This chapter is a departure from the previous three, as I turn to that most thorny of questions: what is to be done? Unlike Lenin when he famously posed the same question just over a century ago, I do not have a direct programme for change to set out here. Nor do I expect the current regime to be

swept away by a revolution any time soon. My purpose here is slightly different. I want to explore how viewing this issue as a regulation and governance problem opens up new possibilities and options for change. So it is not a blueprint for action but instead a framework for developing new ideas about the possibilities for action. It is an attempt, in other words, at fresh thinking that goes beyond the debates about legalization, decriminalization and so on that have dominated the discourse of reformers for decades. I will say a bit more about those debates later on but first there is a theoretical and methodological issue to deal with. When I presented an early version of some of the ideas in this chapter at a

drug-policy conference, a colleague there expressed some polite incredulity that I might be talking in any practical way about policy matters in a book that relied in part on Foucauldian analysis. This is a familiar line of criticism, put most trenchantly and authoritatively perhaps by Habermas, notably in his The Philosophical Discourse of Modernity (Habermas, 1987; see also Habermas, 1986). What has become known as the Foucault-Habermas debate revolves around some complex issues (see Kelly, 1994) but I think Habermas’s primary criticism boils down to this: Foucault’s failure to ground his critique in an explicit set of normative values fatally undermines his critical project as it provides no basis for choosing alternative futures. I briefly addressed this argument in Chapter 1, including the well-known quote from Foucault (1991b: 84) in which he urges that ‘the necessity of reform mustn’t be allowed to become a form of blackmail serving to limit, reduce or halt the exercise of criticism’ – indeed, the interview from which that quote is taken, published as ‘Questions of Method’, is a very useful account of his perspective on the nature and purpose of critical thought and analysis (see also Dean, 1994). I see things quite differently from those who share Habermas’s misgivings.

In my view, the disturbing critical power of a Foucauldian approach lies precisely in its lack of anchoring in any particular normative position. It operates on a different plane, challenging and refusing the obviousness or necessity of the present but without having to be tied to any specific set of values. This can be an exhilarating and dazzling perspective when skilfully executed – the impact of work like Histoire de la Folie and Discipline and Punish, for example, still reverberates across the decades since their first publication in a manner that is exceptionally rare. I have attempted something along these lines in the preceding chapters, albeit in a more modest and limited way than Foucault’s peerless tours de force, using the governmentality analytic as a tool for clearing the ground, revealing the historical contingency of fundamental concepts and ideas in the field, from ‘addiction’ through to the very notion of ‘drugs’. It seems to me that it is an entirely legitimate and coherent strategy to accompany or follow a ground-clearing exercise of this kind by exploring different ways of thinking about and dealing with the particular matter at hand, a strategy which may or may not involve appeal to a normative position or a set of values. I do not see any

inconsistency here. Indeed, in my view, the two are quite neatly complementary. As I explained in Chapter 1, I have adopted exactly this type of twin-track strategy in this book, supplementing the governmentality perspective with a regulatory one, drawing for the latter particularly on the approach to regulation developed by John Braithwaite and colleagues at the Australian National University over the past 20 years. So, to put it another way, having cleared the conceptual ground, I am turning in this chapter to a consideration of options and opportunities for future action. I want to end these introductory remarks by saying a little more here about

what is currently the most pervasive, and indeed most powerful, mode of drug-policy critique. I referred to this above as the arguments for legalization or decriminalization and these are useful shorthand labels for what is a familiar position. It is founded on the idea that the prohibition paradigm lies at the core of our contemporary difficulties in dealing with the ‘drug problem’. The solution, from this perspective, is to scrap the drug laws and start afresh with a more rational and humane approach. For those with slightly broader vision, the target is reform not just of national drug laws but of the entire edifice of international drug control administered by the United Nations. I have a great deal of sympathy for this line of argument. Indeed, it is very

difficult to study drug policy for any length of time without coming to the conclusion eventually that the prohibition paradigm is fatally flawed and in fact causes more problems and more suffering than it alleviates or prevents. As I have now been researching in this area for about 15 years, I have certainly seen plenty of evidence for this! Nevertheless, despite this, I have some significant doubts about this approach. At the heart of my concern is a view that this way of identifying or describing the problem does not provide the analytic space necessary for finding and developing a good solution to it. This is somewhat ironic, of course, as most drug-law reform campaigners tend to identify themselves explicitly as focused on policy matters, rather than theoretical or philosophical ones. I think the fundamental difficulty is that the implicit analytical frame is a Hobbesian one which assumes that the solution to the problem must be located within a framework of state institutions (or supra-national institutions like the UN or EU to which states sign up). I am rather pessimistic about the prospects of finding answers or solutions

within this type of frame. And indeed, in my eyes at least, it is telling that one of the weakest parts of the drug-law reformers’ case is when it comes to making concrete suggestions or proposals for what should be done after prohibition is dismantled. But I am not in fact pessimistic or nihilistic about the prospects for change and it is here that a regulation perspective comes in. Regulatory scholarship is based on a theoretically and conceptually sophisticated understanding of how regulation and governance actually operate in the real world built up through years of rich empirical research across diverse fields. In this chapter, I want to explore then how far we can get by framing

the ‘drug problem’ as a regulatory and governance challenge and whether this approach may provide new conceptual tools for the construction of new policy directions. Of course, ‘“governance” is not synonymous with “good governance”’ (Burris et al., 2008: 3), nor ‘regulation’ with ‘good regulation’. Simply to identify something as a ‘regulatory and governance challenge’ does not lead automatically to the ‘best’ policy solution. Nevertheless, there is good evidence from the work of Braithwaite, Shearing and others to suggest that this type of approach has great potential, both intellectually and practically. As those two scholars, in particular, have demonstrated, the best work here proceeds not by ignoring or evading normative issues but by connecting them with explanatory theory through an ongoing and interactive process of ‘iterated adjustment’ (Braithwaite, 2000: 64-65). In the main sections of this chapter, I am going to explore how some

related but distinct approaches to regulation and governance might be applied to the analysis of drug policy. As well as the regulatory scholarship from the ANU ‘School’ led by Braithwaite that I have already mentioned, I will also draw on the closely related nodal governance approach developed by Clifford Shearing, Scott Burris and others. I will look as well at some of the global governance scholarship, including the work on the idea of global administrative law developed by Benedict Kingsbury and colleagues at the New York University School of Law. What all these approaches share in common is that they eschew state-led or state-centric approaches to understanding how politics and government actually work – the Hobbesian frame that I referred to above. This also articulates well with the governmentality perspective and its emphasis on examining ‘political power beyond the state’ (Rose and Miller, 1992; Rose, 1999), providing a further indication of the coherence within the twin-track analytical strategy I described above.