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Review Essay - Public Decisions and Private Rights

NCJ Number
Criminal Justice Ethics Volume: 3 Issue: 2 Dated: (Summer/Fall 1984) Pages: 50-62
R E Barnett
Date Published
12 pages
After summarizing John Kaplan's theses concerning heroin use, drug law enforcement, and public policy, this review examines the utility of public policy versus individual rights approaches to legal decisionmaking.
In his book, Kaplan demolishes myths surrounding heroin use that inform efforts to combat it. He shows that heroin use is not always addictive, continuous, or permanent and that the relationship between addiction and predatory crime is not so great as has been thought and is, in part, the result of conditions related to the illegality of its use. Despite Kaplan's acknowledgement of the disasterous consequences of the legal prohibition on the sale and use of heroin, he does not advocate its decriminalization. In defending prohibitions on heroin use, Kaplan uses a pragmatic public policy approach that contends that the lowering of social productivity associated with heroin use would impose greater social costs than do efforts to suppress drug use. The classical liberal view concerning what conduct should be legally proscribed holds that, in the absence of harm (defined as physical interference with the property rights of others) to others, individuals should be allowed the discretion to apply standards and choose among alternatives, even if their choices are later regretted by themselves or others. While Kaplan attempts to rebut a rights approach to policy analysis as mere assertion, it is a method of decisionmaking with discernible characteristics superior to any other. The complexity of social life makes public (utilitarian) policy analysis inherently impractical. This complexity requires the decentralized decisionmaking process that an individual rights approach provides. Such an approach recognizes that the nature of human beings requires that they be accorded the final say on their own life-paths. Because a private rights approach is more practical than an analysis of social costs and benefits, it is also a better theory of justice. Included are 11 footnotes.