Inventing Drugs: A Genealogy of a Regulatory Concept

22 de agosto de 201642min1

Wiley Online Library

Thanks to Philip Burton, Philippa Carrington, and Nishat Hyder for assistance with some of the archival research. Embryonic versions were given in Oxford and Sheffield and I thank Ian Loader and Layla Skinns, respectively, for the invitations. Later versions were presented at a ‘Global Humanities’ workshop in Warwick and at a plenary panel at the annual SLSA conference in Lancaster, at the invitations of Susannah Wilson and Suzanne Ost. Virginia Berridge and Robin Room read and commented on a draft. The usual disclaimer applies.


The trade in, and consumption of, illicit drugs is perhaps the archetypal ‘wicked problem’ of our time – complex, globalized, and seemingly intractable – and presents us with one of the very hardest legal and policy challenges of the twenty-first century. The central concept of a ‘drug’ remains under-theorized and largely neglected by critical socio-legal and criminological scholars. Drawing on a range of primary archival material and secondary sources, this article sets out a genealogy of the concept, assembled a little over a century ago out of diverse lines of development. It is argued that the drug label is an invented legal-regulatory construct closely bound up with the global drug prohibition system. Many contemporary features of the ‘war on drugs’ bear traces of this genealogy, notably how drug law enforcement often contributes to racial and social injustice. To move beyond prohibition, radical law and policy reform may require us to abandon the drug concept entirely.

  1. 1

    Y. Fedotov, Executive Director of the UN Office on Drugs and Crime, March 2012.

  2. 2

    J. Derrida, ‘The rhetoric of drugs: an interview’ (1993) 5 differences: A J. of Feminist Cultural Studies 2.

  3. 3

    V. Ruggiero, ‘Drugs as a password and the law as a drug’ in Drugs: Cultures, Controls and Everyday Life, ed. N. South (1999).

  4. 4

    Derrida, op. cit., n. 2, p. 2.

  5. 5

    Zinberg established that the effects of ingesting a substance are not reducible solely to biochemistry; rather, the psychological mindset of the consumer and the context in which consumption takes place are also central (in shorthand, ‘drug, set, and setting’). See N. Zinberg, Drug, Set, and Setting: The Basis for Controlled Intoxicant Use (1984).

  6. 6

    J. Goodman, P. Lovejoy, and A. Sherratt (eds.), Consuming Habits: Drugs’ in History and Anthropology (1995).

  7. 7

    R. Porter, ‘The history of the “drugs problem”’ (1996) 24 Criminal Justice Matters 3, at 3.

  8. 8

    A limitation of this article is its reliance on English-language sources which of course foregrounds the Anglo-American branches of the genealogy. Whilst the historical literature suggests these are arguably the most important (for example, D. Bewley-Taylor, The United States and International Drug Control, 1909–1997 (1999)), nevertheless, a multilingual comparative genealogy remains an important project for the future. See also n. 96 below.

  9. 9

    This is the same in French, German, and Italian. I am grateful to Juanjo Medina, Pierre Schammo, and Simona Giordano for information on this.

  10. 10

    See, for example, the two foremost NGOs in the field: the British Transform Drug Policy Foundation, at <” target=”_blank”>> and the American Drug Policy Alliance, at <” target=”_blank”>>.

  11. 11

    See the discussion of Nietzsche in ‘Truth and Juridical Forms’, the first of Foucault’s series of lectures given in Rio in May 1973, published in Power: Essential Works of Foucault 1954–1984, Vol. 3, ed. J. Faubion, tr. R. Hurley et al. (2000).

  12. 12

    M. Foucault, ‘Nietzsche, Genealogy, History’ in The Foucault Reader: An Introduction to Foucault’s Thought, ed. P. Rabinow (1984) 81.

  13. 13

    D. Garland, ‘What is a “history of the present”? On Foucault’s genealogies and their critical preconditions’ (2014) 16 Punishment & Society 365, at 373.

  14. 14

    K. Tupper, ‘Psychoactive substances and the English language: “Drugs”, discourses, and public policy’ (2012) 39 Contemporary Drug Problems 461.

  15. 15

    P. Bourdieu, ‘The Force of Law: Toward a Sociology of the Juridical Field’ (1987) 38 Hastings Law J. 814.

  16. 16

    Garland, op. cit., n. 13, p. 375.

  17. 17

    For example, attempts to develop ‘drug science’ as a field of study, most notably pursued in Britain by Professor David Nutt, rest on the assumption that ‘drug’ is an objective scientific category, an assumption that this article argues is fundamentally flawed.

  18. 18

    M. Madsen and C. Thornhill (eds.), Law and the Formation of Modern Europe: Perspectives from the Historical Sociology of Law (2014).

  19. 19

    M. Valverde, ‘Foucault on “Avowal”: Theatres of Truth from Homer to Modern Psychology’ (2015) 40 Law & Social Inquiry 1080.

  20. 20

    See n. 114 below. Valverde, id. argues that Foucault’s 1981 Louvain lectures, in particular, published for the first time in English translation in 2015, constitute a ‘major revelation’ for (socio-)legal scholars.

  21. 21

    Sources consulted: H. Wedgwood, A Dictionary of English Etymology (1859); T. Hoad, The Concise Oxford Dictionary of English Etymology (1986); J. Donald, Chambers’s Etymological Dictionary of the English Language (1867); C.T. Onions, The Oxford Dictionary of English Etymology (1966); E. Klein, A Comprehensive Etymological Dictionary of the English Language (1966); W. Skeat, An Etymological Dictionary of the English Language (1893); and <” target=”_blank”>>.

  22. 22

    Chaucer, for example, uses the word drogge in the General Prologue to The Canterbury Tales (written in the late fourteenth century), referring to medicines made by apothecaries.

  23. 23

    J. Parascandola, ‘The Drug Habit: The Association of the Word “Drug” with Abuse in American History’ in Drugs and Narcotics in History, eds. R. Porter and M. Teich (1995) 158.

  24. 24

    W. Shakespeare, Macbeth, Act 2, Scene 2.

  25. 25

    J. Milton, Paradise Lost, tenth book, lines 568–9.

  26. 26

    The idea of ‘eventalization’, as a distinctive analytical method for historical enquiry, is, of course, a Foucauldian one: M. Foucault, ‘Questions of Method’ in The Foucault Effect, eds. G. Burchell, C. Gordon, and P. Miller (1991) 73.

  27. 27

    He notes a slightly earlier reference in 1896 which did not appear in the Index Medicus: Parascandola, op. cit., n. 23, pp. 165–6.

  28. 28

    F.X. Dercum, ‘The Drug Habits’ in A System of Practical Therapeutics, ed. H.A. Hare (1897) 795.

  29. 29

    Parascandola, op. cit., n. 23, p. 157.

  30. 30

    C. Kitching, ‘Treatment of Drug Habits as Illustrated by that of Opium and Morphine’ (1908) 6 South African Medical Record 33.

  31. 31

    The primary historical sources drawn on for the research presented in this article were: Proceedings of the Society for the Study of Inebriety (1884–1901); Times newspaper (1870–1900); Brit. Medical J. (1870–1900); and Proceedings of the Old Bailey (1870–1900).

  32. 32

    Proceedings of the Society for the Study of Inebriety (hereafter Proceedings), vol. 13, August 1887, 13.

  33. 33

    A. Clark, The Action of Alcohol Upon Health (1878). See, also, T.D. Crothers in Proceedings, vol. 18, November 1888, 14.

  34. 34

    British Medical J. (hereafter BMJ), 11 June 1881, 933.

  35. 35

    H. Levine, ‘The Discovery of Addiction: Changing conceptions of habitual drunkenness in America’ (1978) 39 J. of Studies on Alcohol 143.

  36. 36

    R. Castel, ‘“Problematization” as a Mode of Reading History’ in Foucault and the Writing of History, ed. J. Goldstein (1994).

  37. 37

    B. Harrison, Drink and the Victorians (1971). It has been argued that the problematization of alcohol in fact started to emerge in a distinctive form with the onset of modern industrial capitalism in the second half of the eighteenth century: for example, J. Nicholls, ‘Gin Lane Revisited: Intoxication and Society in the Gin Epidemic’ (2003) 7 J. for Cultural Research 125; Levine, op. cit., n. 35.

  38. 38

    V. Berridge, ‘Opium eating and life insurance’ (1977) 72 Brit. J. of Addiction 371. On the question of inebriety and insurance, see, also, the lecture by Norman Kerr in Proceedings, vol. 35, May 1893, 12.

  39. 39

    Diethyl ether, commonly known as ether, is a colourless volatile liquid which in the nineteenth century was not only used in medical practice as an anaesthetic but was also widely consumed as an intoxicant, notably in Ireland (see n. 44 below). Today, medical use of ether has disappeared but it is still used as an intoxicant in parts of Eastern Europe, particularly in Poland where the practice of ether drinking dates back to the 1920s and 1930s.

  40. 40

    BMJ, 10 April 1875, 826.

  41. 41

    A herbal mixture distilled in alcohol.

  42. 42

    Proceedings, vol. 20, May 1889, 10.

  43. 43

    BMJ, 2 April 1887, 731.

  44. 44

    BMJ, 18 October 1890, 885.

  45. 45

    BMJ, 29 April 1893, 915.

  46. 46

    BMJ, 25 March 1893, 679.

  47. 47

    Times, 30 June 1875, 9.

  48. 48

    Proceedings, vol. 39, February 1894, 16.

  49. 49

    Chiorodyne was a popular patent medicine containing a mix of laudanum (tincture of opium), tincture of cannabis, and chloroform.

  50. 50

    BMJ, 5 February 1887, 305.

  51. 51

    Proceedings, vol. 36, May 1893, 13.

  52. 52

    For example: Proceedings, vol. 28, May 1891, 11.

  53. 53

    P. O’Malley, ‘Drugs, risks and freedoms: Illicit drug “use” and “misuse” under neo-liberal governance’ in Crime Prevention and Community Safety: New Directions, eds. G. Hughes and E. McLaughlin (2002) 279–80. See, also, T. Seddon, ‘Drugs and freedom’ (2007) 15 Addiction Research & Theory 333.

  54. 54

    Proceedings, vol. 50, November 1896, 9.

  55. 55

    See C. Gordon, ‘Governmental Rationality: An introduction’ in Burchell et al., op. cit, n. 26, p. 1.

  56. 56

    For an elaboration of this argument, see T. Seddon, A History of Drugs: Drugs and freedom in the liberal age (2010) 38–40.

  57. 57

    See n. 38 above.

  58. 58

    F. Ewald, ‘Insurance and risk’ in Burchell et al., op. cit., n. 26, p. 197.

  59. 59

    R. Christison, ‘On the effects of opium eating on health and longevity’ (1832) 37 Edinburgh Medical and Surgical J. 123.

  60. 60

    R. Christison, ‘An investigation of the deaths in the Standard Assurance Company’ (1854) 4 J. of the Institute of Actuaries 76.

  61. 61

    Old Bailey Proceedings Online, 6 June 1870, trial of Richard Thomas Freedman (t18700606-526).

  62. 62

    Old Bailey Proceedings Online, 23 May 1881, trial of George Forman and others (t18810523-577).

  63. 63

    Old Bailey Proceedings Online, 9 January 1893, trial of Joseph Kopelewitz and Marie Kopelewitz (t18930109-211).

  64. 64

    G. Rosen, A History of Public Health (1958).

  65. 65

    P. Bartrip, ‘A “Pennurth of Arsenic for Rat Poison”: The Arsenic Act, 1851 and the Prevention of Secret Poisoning’ (1992) 36 Medical History 53.

  66. 66

    P. Carroll, ‘Medical Police and the History of Public Health’ (2002) 46 Medical History 461.

  67. 67

    This point is discussed by Foucault in his 1978 and 1979 Collège de France lecture courses – Security, Territory, Population and The Birth of Biopolitics – first published in English translation in 2007 and 2008 respectively.

  68. 68

    See n. 53 above.

  69. 69

    Foucault, op. cit., n. 12, p. 83.

  70. 70

    BMJ, 6 December 1884, 1161.

  71. 71

    BMJ, 13 December 1884, 1188.

  72. 72

    BMJ, 6 December 1884, 1143; BMJ, 10 October 1896, 58.

  73. 73

    BMJ, 16 April 1887, 862.

  74. 74

    For example: BMJ, 20 September 1890, 690.

  75. 75

    Proceedings, op. cit., n, 54, p. 12.

  76. 76

    Commonly known as ‘poppers’ and used recreationally in many countries since the 1970s within dance music subcultures.

  77. 77

    BMJ, 19 July 1884, 147.

  78. 78

    BMJ, 5 February 1881, 217.

  79. 79

    J. Braithwaite and P. Drahos, Global Business Regulation (2000) at 360.

  80. 80

    For example, in the United States today, overdose deaths from legally prescribed opioid painkillers, such as oxycodone and hydrocodone, exceed those from use of heroin: R. Rudd et al., ‘Increases in Drug and Opioid Overdose Deaths – United States, 2000–2014’ (2015) 64 Morbidity and Mortality Weekly Report (MMWR) 1. To further illustrate these blurred boundaries, as well as ‘misuse’ by legitimate prescription holders, there is an extensive illicit market in these painkillers: M. Chapman et al., Research on Illegal Prescription Drug Market Interventions. Report for the ONDCP (2015).

  81. 81

    See P. Fay, The Opium War, 1840–1842 (1975); E. Holt, The Opium Wars in China (1964). Economist Jeffrey Sachs describes the 1839–42 ‘opium war’ as the ‘first conflict of the modern capitalist era’ and as part of the process of the transformation to modern global capitalism: J. Sachs, ‘Twentieth-century Political Economy: A Brief History of Global Capitalism’ (1999) 15(4) Oxford Rev. of Economic Policy 91.

  82. 82

    Times, 12 November 1881, 11.

  83. 83

    C. Trocki, Opium, Empire and the Global Political Economy: A Study of the Asian Opium Trade 1750–1950 (1999).

  84. 84

    F. Dikotter, L. Laamann, and Z. Xun, Narcotic Culture: A History of Drugs in China (2004).

  85. 85

    The broader role of Quakers and other religious dissenters during the eighteenth and nineteenth centuries in the development of the state as an agent of morality in the capitalist order is discussed in a strikingly original way by Foucault in his 1973 Punitive Society lecture course at the Collège de France: see S. Elden, ‘A More Marxist Foucault? Reading La société punitive’ (2015) 23(4) Historical Materialism 149.

  86. 86

    The term was originally coined by sociologist Howard Becker to describe the role of Harry Anslinger, Commissioner of the Federal Bureau of Narcotics, in driving the development of the 1937 Marihuana Tax Act which was the first federal cannabis law in the United States: see H. Becker, Outsiders: Studies in the Sociology of Deviance (1963).

  87. 87

    J. Brown, ‘Politics of the Poppy: The Society for the Suppression of the Opium Trade, 1874–1916’ (1973) 8(3) J. of Contemporary History 97.

  88. 88

    For an analysis of the 1895 Report and its genesis, see J. Richards, ‘Opium and the British Indian Empire: The Royal Commission of 1895’ (2002) 36 Modern Asian Studies 375.

  89. 89

    One example is the position of Afghanistan within the world heroin trade over the last 40 years, which cannot be fully understood without taking account of the perspectives of global political economy and international relations: see I. Haq, ‘Pak-Afghan Drug Trade in Historical Perspective’ (1996) 36 Asian Survey 945; P. Andreas, ‘Illicit international political economy: the clandestine side of globalization’ (2004) 11 Rev. of International Political Economy 641; A. McCoy, ‘Can Anyone Pacify the World’s Number One Narco-State? The Opium Wars in Afghanistan’ (April 2010) Asia-Pacific J., at <” target=”_blank”>>.

  90. 90

    H. Campbell, ‘The Study of Inebriety: A Retrospect and a Forecast’ (1903) 1 Brit. J. of Inebriety 5.

  91. 91

    T.D. Crothers, ‘The Study of Inebriety in America’ (1904) 1 Brit. J. of Inebriety 281.

  92. 92

    For example, in a paper given by the Deputy Medical Officer at Pentonville prison: W.C. Sullivan, ‘The Causes of Inebriety in the Female, and the Effects of Alcoholism on Racial Degeneration’ (1903) 1 Brit. J. of Inebriety 62.

  93. 93

    R.W. Branthwaite, ‘The Second Norman Kerr Memorial Lecture. Inebriety: Its Causation and Control’ (1908) 5 Brit. J. of Inebriety 104.

  94. 94

    For example, G.H.R. Dabbs, ‘A Note on the Inebriate in Making’ (1904) 1 Brit. J. of Inebriety 288.

  95. 95

    A. Bancroft, Drugs, Intoxication and Society (2009) 22.

  96. 96

    A recent historical comparative study has found that whilst the inebriety concept did not apply more widely across Europe during this period, there was, nevertheless, a common focus on ideas of national degeneracy and the weakening of racial ‘stock’: V. Berridge et al., ‘Addiction in Europe, 1860s–1960s: Concepts and Responses in Italy, Poland, Austria, and the United Kingdom’ (2014) 41 Contemporary Drug Problems 551.

  97. 97

    Referred to in ‘Editorial’ (1906) 4 Brit. J. of Inebriety 3.

  98. 98

    T. Claye Shaw, ‘The Scientific Study of Inebriety’ (1908) 6 Brit. J. of Inebriety 2.

  99. 99

    V. Berridge, Demons: Our changing attitudes to alcohol, tobacco, & drugs (2013).

  100. 100

    Early meetings focused solely on opium and opiates and it was only in 1911 that cocaine was first introduced into the discussions by the British delegation. For an excellent account, see J. Mills, ‘Cocaine and the British Empire: The Drug and the Diplomats at the Hague Opium Conference, 1911–12’ (2014) 42 J. of Imperial and Commonwealth History 400.

  101. 101

    The Harrison Act, which covered opium and coca, used the term ‘drug’ nearly 40 times in its twelve short sections.

  102. 102

    Berridge, op. cit., n. 99, pp. 117–42.

  103. 103

    ‘The Covenant of the League of Nations’ (1920) 1 League of Nations – Official J. 3.

  104. 104

    See, for example, the work of British historian Arthur Marwick: A. Marwick, The Deluge: British Society and the First World War (1965).

  105. 105

    C. von Clausewitz, On War (1832).

  106. 106

    D. Courtwright, Forces of Habit: Drugs and the Making of the Modern World (2001).

  107. 107

    id., pp. 166–73.

  108. 108

    J. Spillane, Cocaine: From Medical Marvel to Modern Menace in the United States, 1884–1920 (2000) 94–5; P. Gootenberg, Andean Cocaine: The Making of a Global Drug (2008) 191–3. See, also, D. Courtwright, ‘The Rise and Fall and Rise of Cocaine in the United States’ in Consuming Habits: Drugs’ in history and anthropology, eds. J. Goodman, P. Lovejoy, and A. Sherratt (1995) 206.

  109. 109

    Gootenberg, id., p. 193. An infamous headline in the New York Times on 8 February 1914 declared that ‘Negro cocaine “fiends” are a new Southern menace’.

  110. 110

    E. Leong Way, ‘History of Opiate Use in the Orient and the United States’ (1982) 398 Annals of the New York Academy of Sciences 12.

  111. 111

    V. Berridge, ‘East End opium dens and narcotic use in Britain’ (1978) 4 London J. 3. Berridge describes the largely unsuccessful attempts by London County Council to use local by-laws and regulations to curb opium dens in response to these fears, in a similar manner to the varied local anti-cocaine laws that emerged in some American states at this time (see n. 108 above).

  112. 112

    L. Pan, Alcohol in Colonial Africa (1975).

  113. 113

    D. Herd, ‘The Paradox of Temperance: Blacks and the Alcohol Question in Nineteenth-Century America’ in Drinking: Behavior and Belief in Modern History, eds. S. Barrows and R. Room (1991) 354.

  114. 114

    For many years, the ‘expulsion of law’ thesis developed by Hunt and Wickham led to a relative neglect of Foucault in law and society scholarship (see M. Valverde, ‘Specters of Foucault in Law and Society Scholarship’ (2010) 6 Annual Rev. of Law and Social Science 45). Publication in the last decade of several lectures and lecture series that were previously unknown have made it apparent that throughout the 1970s law was, in fact, a central preoccupation of Foucault’s work and the ‘expulsion’ thesis is no longer tenable (for an incisive critique of the thesis, see C. Gordon, ‘Expelled questions: Foucault, the Left and the Law’ in Re-reading Foucault: On Law, Power and Rights, ed. B. Golder (2013) 13). Foucault’s key works on law from this period include: the 1973 Collège de France lecture course, The Punitive Society>; the 1973 Rio lectures, Truth and Juridical Forms>; the 1976 Collège de France lecture course, Society Must Be Defended>; and the 1981 Louvain lectures, Wrong-Doing, Truth-Telling.

  115. 115

    Foucault, id. (1976).

  116. 116

    C. Thornhill, ‘Legal Revolutions and the Sociology of Law’ (2014) 23 Social & Legal Studies 491, Madsen and Thornhill, op. cit., n. 18.

  117. 117

    D. Pick, Faces of Degeneration: A European Disorder, c. 1848 – c. 1918 (1993).

  118. 118

    On gender, see M. Kohn, Dope Girls: The Birth of the British Drug Underground (1992); T. Seddon, ‘Women, harm reduction and history: Gender perspectives on the emergence of the “British System” of drug control’ (2008) 19 International J. of Drug Policy 99.

  119. 119

    D. Garland, Punishment and Welfare: A History of Penal Strategies (1985).

  120. 120

    D. Garland, ‘The Welfare State: A Fundamental Dimension of Modern Government’ (2014) 55 European J. of Sociology 327.

  121. 121

    The classic historical account of this is O. MacDonagh, ‘The nineteenth-century revolution in government: a reappraisal’ (1958) 1 Historical J. 52. The argument that there is a connection between this growth of governmental capacity in the early Victorian period and the later establishment of collectivist welfare states in the twentieth century was first made in D. Roberts, Victorian Origins of the Welfare State (1960).

  122. 122

    For a theoretical elaboration of how Foucauldian genealogy, despite its usual characterization as avoiding state theory, can in fact be deployed to develop deeper and richer accounts of state formation, see B. Jessop, ‘From micro-powers to governmentality: Foucault’s work on statehood, state formation, statecraft and state power’ (2007) 26 Political Geography 34.

  123. 123

    New York Times, 31 March 1919, 8, col. 3.

  124. 124

    S. Walton, Out of It: A Cultural History of Intoxication (2001) xxi.

  125. 125

    Jessop, op. cit, n. 122, p. 40.

  126. 126

    Courtwright, op. cit., n. 106, p. 190.

  127. 127

    R. Room, ‘The movies and the wettening of America: The media as amplifiers of cultural change’ (1988) 83 Brit. J. of Addiction 11.

  128. 128

    H. Cox, The Global Cigarette: Origins and Evolution of British American Tobacco, 1880–1945 (2000).

  129. 129

    Berridge, op. cit., n. 99, pp. 103–8.

  130. 130

    M. Fakhri, Sugar and the Making of International Trade Law (2014); M. Fakhri, ‘The institutionalisation of free trade and empire: a study of the 1902 Brussels Convention’ (2014) 2 London Rev. of International Law 49.

  131. 131

    See D. Courtwright, ‘Mr ATOD’s Wild Ride: What Do Alcohol, Tobacco, and Other Drugs Have in Common?’ (2005) 20 Social History of Alcohol and Drugs 113–14.

  132. 132

    Foucault, op. cit., n. 12, p. 81.

  133. 133

    Nixon in fact referred only to a ‘war on heroin addiction’ but this subsequently developed into the ‘war on drugs’ slogan which persists to the present day.

  134. 134

    I. Glasser, ‘America’s Drug Laws: The New Jim Crow’ (2000) 63 Albany Law Rev. 703.

  135. 135

    The phrases are from the introduction to Nikolas Rose’s PhD thesis, quoted in G. Kendall and G. Wickham, Using Foucault’s Methods (1999) 29.

  136. 136

    See, for example, a study commissioned by the Department for Work and Pensions: L. Bauld, G. Hay, J. McKell, and C. Carroll, Problem drug users’ experiences of employment and the benefit system (2010).

  137. 137

    The Support. Don’t Punish global advocacy campaign is a recent and high-profile example of this, at <” target=”_blank”>>.

  138. 138

    For an interesting discussion of the connection between the ways that ‘regulatory objects’ are constructed and specific regulatory regimes, see E. Fisher, ‘Chemicals as Regulatory Objects’ (2014) 23 Rev. of European, Comparative & International Environmental Law 163.

  139. 139

    Within Europe, the best known example of decriminalization is Portugal (see A. Stevens and C. Hughes, ‘What can we learn from the Portuguese decriminalization of illicit drugs?’ (2010) 50 Brit. J. of Criminology 999). In the Americas, there have been some recent developments in relation to cannabis legalization (for a comprehensive analytical overview, see J. Caulkins et al., Considering Marijuana Legalization: Insights for Vermont and Other Jurisdictions (2015)).

  140. 140

    B. Schwitters et al., ‘The European regulation of food supplements and food fortification’ (2007) 19 Environmental Law & Management 19.

  141. 141

    The theoretical basis for this point is the idea that regulation is constitutive of the markets it seeks to control and that the notion of markets as ‘naturally occurring’ phenomena prior to, or independent from, regulation is false: see C. Shearing, ‘A Constitutive Conception of Regulation’ in Business Regulation and Australia’s Future, eds. P. Grabosky and J. Braithwaite (1993) 67. In this sense, ‘prohibition’ is itself a type of regulatory regime which constitutes the market in a particular form. Hence, there is no escape from the requirement for policy makers to decide how we wish to organize different markets.

  142. 142

    P. Dunleavy, ‘The State’ in A Companion to Contemporary Political Philosophy. Volume Two, eds. R. Goodin, P. Pettit, and T. Pogge (2007, 2nd edn.) 802.

  143. 143

    Foucault, op. cit., n. 26, p. 75.

  144. 144

    M. Foucault, The Order of Things (1970/2002) 422.

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