The dominant way of thinking about drug trafficking has relied on a law and order paradigm that regards drug use as a social problem and resorts to the criminalization of production, distribution and consumption of narcotics as the solution. However, vigorous critiques of the prohibitionist policies and the recent legalization of marijuana for recreational use in Colorado and Washington in the U.S. and in Uruguay have challenged this model. This presentation challenges several assumptions of the law and order paradigm and it also raises some caution about the hopes of legalization as a silver-bullet solution to the ills of drug trafficking. The presentation examines the constitutive role of law in illegality, the unnecessary connection between illegality and violence, and the unwarranted hopes pinned on the rule of law as a general solution.
The analysis points to the drug trafficking phenomenon not as a legal vacuum but rather as a legal regime, constituted by several layers of law (international, transnational and domestic) in its permissive and prohibitionist forms. It calls for eschewing the moralistic proclamations of the war on drugs and focus instead on the consequences of illegal markets, and of State policies, for various stakeholders and society as a whole. At the same time, the analysis makes clear that legalization can mean many things and that to understand its potential consequences we need to understand illegality, the current policy, as a form of regulation. Legalization reforms would thus re-regulate the existing market along a continuum of possible choices. In each country the potential effects of legalization would depend on their current regulatory choices under illegality, their position in the global market and the specific policy options pursued under legalization.
Alvaro Santos is Co-Director of the Center for Transnational Legal Studies (CTLS) 2014-2015 and Professor of Law at Georgetown University Law Center. He teaches and writes in the areas of international trade, law and economic development, transnational labor law, and legal theory. His recent scholarship looks at how emerging countries may expand their regulatory policy space for development in the international trade regime. Professor Santos regularly teaches at Harvard's Institute for Global Law and Policy (IGLP) and Georgetown's WTO Academy. He has taught at the University of Texas, Tufts University, Melbourne Law School, and at the University of Turin-ILO Master's program. Professor Santos serves on the editorial boards of the American Journal of Comparative Law, the Law and Development Review, and the Latin American Journal of International Trade Law. He holds S.J.D. and LL.M. degrees from Harvard Law School, and a LL.B. from Universidad Nacional Autónoma de México (UNAM).