The cigarette crisis in post-war Germany
Cigarette smoking, once a happy and even glamorous pastime, is increasingly regarded as a dangerous and ugly activity. In most Western societies, there are powerful movements aimed at stigmatizing and restricting this activity, and in some cases it might not be exaggerated to see prohibition loom on the horizon.
Prohibition is nothing new in the history of tobacco (1). From England in 1603 to the United States in the early- years of our century, tobacco in general or cigarettes in particular were outlawed for economic, political or moral reasons. Today's battle-cry is health. And, of course, there is no doubt that smoking is harmful to the health of the smokers and to the well-being of their company (while other arguments like economic damage are less convincing (2).
Nevertheless, if prohibition is the ultimate goal of today's anti-smoking campaigns, a cautious warning might be in order. Research has demonstrated that prohibition is generally a poor and sometimes a disastrous policy.(3) A little-known but quite illuminating historical incident, the tobacco shortage in Germany after the Second World War, when economic forces played the role of legal restraints, could give us a glimpse of what prohibition would probably look like in the case of cigarettes.
There is only scattered information about this incident
in the literature,4 and the bulk of the following data has been
collected from about 350 newspaper articles unearthed in the archives
of the Frankfurter Rundschau, one of the two main dailies of Frankfurt
am Main, supplemented by 22 interviews with witnesses.5
Before the war Germany, then the world's biggest tobacco importer, imported about 100,000 t of tobacco annually, mostly from Greece, Turkey and
Bulgaria Together with the output of a rather small inland production and some overseas imports, this orient tobacco was turned into cigarettes by a well-developed cigarette industry. l2% of the Reich's annual budget was financed through tobacco taxes. There were no exact surveys on smoking before 1930, but experts estimate that in the 1930's about 80% of the male population were smokers. The percentage among women was much lower. In 1937, male smokers on average smoked 12.5 cigarettes daily, female smokers 7.9 (according to their chancellor they should not have smoked at all, as Hitler is supposed to have categorically declared: 'The German woman does not smoke!").
The overseas imports stopped early in the war, but there was no dramatic shortage until 1945. The trade in orient tobacco continued, if on a lower scale, and stocks could be plundered in occupied territories. Nevertheless, as the war went on, production declined considerably. Rationing had been introduced already in August 1939. Tobacco stamps (Raucherkarten) allotted 40 cigarettes per month to every male above the age of 18, 20 to every female between 25 and S5. Soldiers got better rations,6 cigarettes per day on average. Depending on where they were stationed, it was more or less easy to add to this ration from local supplies. One of our interview partners described the Crimea as the best place, the trenches around Leningrad as the worst.
The real crisis started in 1945. Imports were out of the question because of financial reasons.6 Domestic production had also declined during the war due to a lack of expert farmers and a scarcity of fertilizers. The division of the country added to the problems, since tobacco was grown mostly in the French and American occupation zones, the cigarette industry concentrated in the British (Hamburg) and Soviet occupation zones (Dresden, also the main producer of cigarette paper), and inter-area trade was quite difficult. In 1946 the output of Hamburg's cigarette industry amounted to only 10% of the pre-war production.
Tobacco was, of course, not the only scarce commodity. But although it was a time when the slices of bread had to be counted out to the members of a family (as I myself can vividly remember), the Allied and German administrations favored the increase of tobacco farming, even at the expense of wheat or vegetables, to satisfy the demand for cigarettes.7 Smoking was generally considered one of the basic human needs. And by the smokers themselves it was seen as "the last tiny bit of a dignified life".
The very rationing of cigarettes was to secure a minimal supply to every-body. They were distributed, if irregularly, even in POW camps, and administrations were well aware of their importance. In the camps thousands or tens of thousands of soldiers were hoarded together under abominable conditions, which not only meant thousands or tens of thousands of hungry people, but thousands or tens of thousands of smokers who had gone cold turkey, and allotments of cigarettes were consciously used to pacify the situation when tension was boiling over. Likewise, cigarettes were a favorite means to stimulate the motivation of specially important groups of workers. In 1948 for instance, when the regular monthly ration in the Soviet occupation zone was 17 cigarettes per adult (the Soviets were the only ones to treat men and women as equals), the badly needed miners got rations of up to 150 cigarettes a month. In the spring of that same year, the American Military Government transferred, as a gift to the German people, 210 million cigarettes from Army stocks to the German civilian authorities to be distributed to workers in the post and railway services. There were also special allowances for Christmas.
The whole economic cycle was officially under strict state control. Tobacco farmers were obliged to surrender their entire crop to the authorities which then supervised and regulated cigarette production, trade and distribution. Such a planned economy under conditions of scarcity of course invites deviancy. The farmer, in 1946, was still paid the official price of 1944: 200 Reichs-mark (RNI) for 100 kg. On the black market he could get that amount of money and more for a single kg. The punishments for selling on the side were severe, in the British occupation zone the farm could even be confiscated. Nevertheless, there was, according, to all contemporary reports, hardly a farmer who did not profit from the situation and violate the rules.9 Maybe even more important at the time was the possibility of exchanging tobacco for vital tools and machinery which were not to be had for money (the economy being the opposite of our own, with goods in shorter supply than money).
The tobacco stamps as well were a valuable exchange commodity. They were in use until October 1948 in some places and March 1949 in others.
Since every adult got them, non-smokers could trade them for food or any other hard-to-get goods, like rare textbooks at the universities, for instance. The stamps were not regularly filled in, some weeks there was no distribution to the retail stores at all, and you never knew when the next allotment would arrive. Still, the stamps were better than money. It was illegal to trade them, but trade was tolerated.
While normal people sometimes had a difficult time to get their stamps filled, for special clients the shopkeepers always had cigarettes, even without stamps. There are many reports of fraudulent arrangements and manipulated bookkeeping at the level of the communal and regional offices for the Distribution of Tobacco Products (Verrechnungsstellen fur Tabakwaren). For the civil servants in those offices it was as difficult to make ends meet as for most other people, and bribes offered by store-owners were often an irresistible temptation. The case of a woman who had, over a period of two years, embezzled stamps for several million cigarettes made headlines in the Frankfurt press for weeks.
Since the beginning of rationing in 1939 many people had also grown their own tobacco plants, and during the time of the real shortage almost everybody who had a garden or a large enough balcony cultivated them. In the fall, the lines of drying tobacco leaves were an integral part of the rural and urban landscapes. This non-commercial farming was limited to 200 plants per family, and only 25 plants were tax-free, for the rest you had to pay a considerable tax. Furthermore>, the gardeners (or farmers who were not registered as tobacco farmers) were not allowed to sell or barter their product - except exchange it at very unfavorable rates for official cigarettes. Again, fraud was widespread. People grew more plants than they officially declared, and they traded part of their tobacco on the side. I quote from one of our interviews: '4We too grew tobacco, although nobody in our family smoked. But money was worthless, and you could get everything for tobacco. We had some land and cultivated wheat which we had to cede to the state. Everything;, w as strictly regulated at the time. But right in the middle of the wheat, where you could not see it, we planted tobacco. Controls were not infrequent and sanctions harsh, but especially in smaller communities people were often forewarned and had the time to destroy the surplus plants.
Tobacco cultivation was a topic much discussed in
the newspapers and there was much advice on how so do it yourself.
The result was, nevertheless, often quite unsatisfactory. Particularly
fermentation (where tobacco gets its special aroma and the nicotine
content is somewhat reduced) was difficult to do, and the not
or badly fermented tobacco of the amateur farmers could cause
nicotine poisonings, sweating, vertigo, nausea, fainting-fits
and other undesirable symptoms. "You had to have a good stomach!"
one of our interview-partners commented his own product.
The quality of the cigarettes you got in the stores for your tobacco stamps was, of course, somewhat better, but also far from pre-war standards. 2 While good cigarettes contain a blend of different sorts of tobacco, the German industry at the time could only use domestic ones of little variation, and inferior ones at that. Sometimes even leaves of other plants had to be mixed in to keep the production going. To make things worse, in 1947 and 1948, stocks were kept back as long as possible, because everybody speculated on a currency reform that would render the old money worthless and turn stocks of commodities into fortunes. As long as possible meant: until they started to mold, at which point they were rushed to the stores. Many smokers had no choice but smoke what they could afford, regardless of the bad effects to their health.
People were quite aware of health risks they ran smoking all those mediocre and polluted "lung-torpedoes" (health risks because of smoking the real thing were not much of an issue yet), and complaints about the smell and taste of the "mattress-blend" were at the order of the day. Everybody would probably have agreed with Woody Allen's gag about the food in the Catskill resort: that it was lousy and that the portions were too small.
There are two main reasons for the emergence of black markets. Either goods and services are in short supply! because they are prohibited or rationed, but in such a demand that people are ready to run risks and pay high prices to get them - and others are ready to run risks in order to pocket extraordinary profits. Or goods and services are easily available, but expensive because the official prices are tax-inflated, which created a demand to buy them and a temptation to supply them at their "real" prices. In the first case black market prices are higher than legal ones, in the second case they are lower.l2 With regard to cigarettes, both cases, one succeeding the other, can be observed in post-war Germany.
The situation as it has been described above was, of course, the ideal breeding ground for the first form of black market. There are no exact numbers, but a contemporary author estimates the size of the illegal market several times the legal one (cf. Pohlisch 1954: 133). Cigarettes were smuggled mostly through the port of Hamburg and over the borders from Belgium and the Netherlands. Thousands of people were involved in those smuggling operations. At customs in the town of Aachen alone, more than 50,000 smugglers were caught and registered in 1948, among them 14,913 minors.l3 Many children and juveniles made some money begging in the streets of towns across the border, adults sold cameras, binoculars, jewels, etc., then bought cigarettes or coffeel4 to be resold or exchanged back in Germany. A good part of the cigarettes trickling in this way was bought up by agents of wholesale dealers who, then, shipped them to other parts of Germany. The stocks of the occupation armies were another source. During transport from the ports of Bremerhaven and Harnburg to all the different locations where American troops were stationed large bulks of cigarettes could easily get lost and end up in the hands of the German wholesalers. Of the 210 million American cigarettes the Army had stored in a warehouse in Frankfurt in October 1947, 10% had disappeared by April 1948, to give just one example.l5 Belgian troops stationed in the British occupation zone got 1,200 cigarettes per month and were prominent in the black market. But most important as suppliers were probably the many thousands of American soldiers who had lavish cigarette rations and could furthermore order any amount from family and friends in the States. More than half of the 3 million packages which arrived every month by military mail from the US were cigarette shipments. The soldiers sold those cigarettes - and for a while Army and Air Force offered them the possibility to change marks into dollars - or they exchanged them for all sorts of valuables like furs, cameras, porcelain, cut glass or Nazi souvenirs (we were told that you could get up to 1,000 cigarettes for a copy of "Mein Kampf").
Wholesalers (Grossisten) who collected the cigarettes from those sources through a number of middlemen;(Au0hiu*; Schlepper) usually had some legal front, or rather the other way around: an appropriate legal business like an import-export firm, a transport company, a bi8 garage, a hotel or a brothel made it easier to become a wholesaler on the black market, because you started out with some assets like store room, transport facilities, personnel and sometimes long-standing shady connections. That there were wholesalers (and that a generally quite decentralized market at their level reached a point of considerable concentration - which is true as well for today's illegal drug markets) may be explained by the function they had to fulfill and which small entrepreneurs can only fulfill less effectively: transport large amounts of cigarettes from areas of good supply to areas of higher demand and, thus, guarantee a balanced distribution over the market and the optimal profit.
The wholesalers sold to big local middlemen who sold to retail dealers like waiters, porters, street pushers, etc.l6 Street dealers were usually to be found in groups at a certain scene, often close to railway stations - for the same reason as our drug scenes, namely good communications, dense traffic, and the neighborhood of red-light zones and other dubious businesses. Raids were common, and the risks were high at this lower level.
The wholesaler bought an American cigarette for 2-3 Reichsmark, the retail dealer sold it for 5-7. The wholesaler traded millions of cigarettes per month and made millions of marks. The retailer usually did not sell more than 5,000 per month, but still had a profit margin of 1 RM per cigarette. If one compares their income of up to 5,000 RM per month with the average hourly salary of an industrial worker (which, in 1948, was 99 Pfennigs, i.e. not even 1 RM, while a female worker in the cigarette industry earned no more than 55 Pfennigsl7), it comes as no surprise that the Schieber was ready to run the risks of robbery or prison sentences.
In August 1939 the price of a cigarette was 4 Pfennigs. The post-war legal cigarette that you got for your stamps as a rule cost 16 P5fennigs. Between 1946 and 1948 on the black market the following prices were paid for a single cigarette:
Thus, if you wanted to have a package of cigarettes, you had to pay between 50 and 140 RM. Cigarettes were, therefore, usually not sold in packages, but loose, and most people bought one or a few at a time to satisfy their immediate need. The unusually long Pall Mall was cut in half and smoked at two installments. It was also very common to exchange goods at the black market scenes. A contemporary author reports the following rates: 50 kg coal = 14 cigarettes, 1 g gold = 32, a pair of silk stockings = 48, 1 kg coffee = 160, 1 Leica = 4,ooo.20
German police and the Military Police of the occupation forces were very active against the black markets. Caught in raids, sellers and buyers not only lost their goods, but also faced harsh sanctions. Special courts tried them on the spot. One newspaper account speaks of eighteen people convicted the previous morning alone; one woman who had bought 4 cigarettes was sentenced to fourteen days in prison.21 Dealers who carried more than was considered an amount for personal use faced high fines and long prison terms
or terms of forced labor. They were regarded as parasites enriching themselves at the expense of the public, preventing the just distribution of rare goods and thus stirring up discontent. The German Trade Union demanded besides prison sentences the confiscation of all property and even the death penalty.
In march 1947, the parliament of Thuringia. one of the German states in the Soviet occupation zone, passed a law that actually comprised the death penalty for big Schiebers.22 The law was aimed at the black market in food, medical drugs or valuable machinery, but it did not exclude cigarettes. The military personnel as well had to expect sanctions. After one big raid in Berlin, for example, fifteen officers of the Red Army were reduced to the ranks.23
All these measures could not suppress the black market, but they produced all the features that we know from today's drug markets. Bribery and corruption of law enforcement were common. The chain of trade from sources to wholesalers to middlemen to retailers was well partitioned to render penetration difficult. Street dealers carried only small amounts and bunkered reserves in safe places. Customers had a hard time avoiding being cheated. Under the pressure of a quick illegal transfer, rarely did they have the chance to verify the quality of the product they bought or exchanged. Often enough they ended up with cigarettes that contained sawdust instead of tobacco or tobacco mixed with side-shoots or other harmful ingredients. "A customer bought a pack of Camel from a Schieber who behaved very anxious because of police who could show up at any moment. Around the corner the customer wants to relieve his stress by enjoying a cigarette, but cannot extract any from the pack. There are just 20 stubs limed at the top and some rumpled paper below."24 Of course, there was - as is today - no way to hold the seller responsible by appealing to the law.
The currency reform finally came on June 21, 1948 and with it an important change in economic conditions: the stores were suddenly flooded with all sorts of goods, including cigarettes, but money to buy them was in short supply.
Every German received 40 of the new Deutsche Mark (DM) at the day of the reform. Savings were reduced to 10% of their value, and you were allowed to withdraw only small amounts. Cigarettes were now much less expensive than the illegal ones of the previous years, but almost-as difficult to afford. The currency reform was, therefore, not the end of the black market, it only generated the above mentioned second form of it. The legal cigarette on the legal open market (the tobacco stamps were gradually abolished with the currency reform) cost now 10 Pfennigs, but 70% of this price was tax. The black marketeers, established by the de facto prohibition, stayed in business.
They imported illegally and undercut the legal price. Estimations run up to 300-400 million cigarettes smuggled into Germany and to a loss of 25-26 million DM in taxes each month.25 This second form of black market came to its end only by the mid-fifties during the Wirtschaftswunder, when the new prosperity made the risks of buying at the black market no longer worthwhile 26
Something else, by the way, had started to change in those post-war years: the taste of the German smoker. The traditional preference for orient tobacco, still very strong in 1949 (with 57% in favor of the "natural" Orient and 22% in favor of the "perfumed" Virginia tobacco, according to a survey held in that year) gradually gave way to the new rave for the American cigarette which by the mid-fifties dominated the market. Part of this change was due to the glamour associated with American products, part to the policy of the Military Government. Imports from Bulgaria, now behind the Iron Curtain, were not considered, imports from Turkey and Greece were strongly discouraged, to say the least: the price offered the Turkish and Greek agents (at a time of record crops in the United States) was unacceptably low.
One economic detail deserves special attention: cigarettes in post-war Germany besides their use-value also had an exchange-value and served as a second currency.
The German population had rather little confidence in the official currency, the Reichsmark. They had, because of the unbalanced relation between money and goods on the market, reason to fear two related dangers. One was inflation. The experience of 1923, when a disastrous inflation destroyed all the savings in the banks and rendered the weekly salary worthless within a day, was still vividly on their minds. The other was a currency reform which would (and later actually did) mean considerable devaluation. The fate of the Script-Dollars could only confirm their apprehensions. The Script-Dollars were issued by the American Military Government for the use of military personnel, but they were also widely used on the black market. One Script-Dollar was s worth 190 RM. In March 1947, the Script-Dollars were suddenly abrogated.
Americans could exchange them for a new military currency, but only up to an amount that could be legitirni2;ed by referral to their pay-books. Of the 85 million estimated to have been in circulation, only 40 million were exchanged. The rest, for the better part in German hands, became worthless over night - and people were seen to light their cigarettes with them.27
Of course, everyone preferred to be paid and do dealings in natural produce. Some employers, even if it was against the law, at least partially paid their employees in kind, and there was a partial relapse into barter economy. But a barter economy also needs a medium of reference that keeps a constant value, and Chesterfields, Lucky Strikes and Camels for a while served this function better than the Reichsmark. Cigarettes, in fact, were in many ways ideal as a commodity reserve currency. They were easy to transport, easy to store, relatively durable, they came in norm units, and larger units could easily be divided: cartons into packs, packs into pieces (which made them largely preferable to other valuable goods like carpets, for instance). They were internationally recognized, by Moroccans in the French Forces as well as by Uzbeks in the Red Army, on the fish market in Hamburg as well as on the black market next to Munich's railway station. And they kept their value, because they were rare and everybody could be sure of a continuous high demand for them. Even massive imports posed no menace of inflation, because cigarettes had - unlike money - a direct use-value and any surplus literally went up in smoke: no currency in the world can boast of such a wonderful mechanism of quantity regulation.
As a small child I got first-hand experience of their miraculous properties. When, in the spring and summer of 1945, my mother was on the move with her children, as twelve million other people were, from the East into and within the Reich until we reached my grandparents' home, her most valuable luggage were a few cartons of cigarettes which fed her children and opened many doors.28
For some years people bought apparently unavailable goods under the counter, paying with cigarettes. And there was hardly an artisan who served you for money alone, although the practice of asking payment in kind was illegal and could be punished with loss of license.
One of the most serious consequences of the cigarette currency was the black export, in fact a dead-cheap sell-out, of industrial products which had either survived the war or which the; German industry was still able to produce. Cameras, binoculars, medical instruments, small machinery, medical drugs, etc. left the country and paid for the import of cigarettes. A Leica, for instance, which had cost 350 RM before the war, changed hands now for 4,000 cigarettes which someone originally had bought for S 20 in the United States.29 ' Were these export products taken at their real value and used to finance imports of, let's say, shoes for children, fertilizers, concentrated milk, or fat, they would serve a better purpose than just turning to smoke and ashes."30
In fact, these cigarettes did not simply turn into smoke and ashes for nothing. In the process, they satisfied the needs of persons who had never known before, but now painfully realized, that they were addicted.
As long as a drug is easily available and nobody is put to the test of abstinence, the question of addiction does not arise. Smokers were never put to this test. Smoking had - unlike alcohol drinking - apparently no serious harmful consequences. It was not proper to smoke in the streets, and women smokers were in some circles frowned upon for moral reasons.31 But smoking was, at least in Europe, never an issue of an addiction discourse.32 Since they had no reason to give up smoking, smokers were probably convinced that they could give it up at any moment and would have smiled at anyone who might have considered them to be addicts.
The end of easy availability was also the end of this deception and certainly the end of smiling. Just like any prohibition, the shortage for economic reasons produced symptoms of withdrawal, desperate seeking behavior, a readiness to sacrifice a lot for the drug, and even moral degradation.
At their extremes, these phenomena could be observed in the POW camps.
The alimentation of the prisoners was minimal, many were near-skeletons, and hunger edemas were common. Nevertheless, 20-30% of the prisoners exchanged part of their food rations for cigarettes. The daily rations on average consisted of half a liter of soup, 80-200 g bread, 60-80 g cheese and a cup of tea. In this situation, half a kg of saved-up bread was exchanged for 10 cigarettes and a can of cheese for 15. Many smokers ended up in very critical - health conditions, not because of negative drug effects, but because of a lack of calories. Barter with the guards flourished: a golden pen went for a pack of tobacco, a watch for 80 cigarettes, a wedding ring for 2S, a captain had his gold tooth extracted for S0 cigarette "Comrades who not so long ago had risked their lives for each other, now fought over a cigarette."33 People lay in wait at the fences for the guards to throw their butts away and were not ashamed to pull those out of the dirt under the amused eyes of the enemy. "Even officers lost their dignity."34 Any plants they could get hold of were smoked: leaves of corn, woodruff, coltsfoot, fern, rib-grass and so forth. Very popular were tea leaves rolled in toilette paper. These surrogates had neither the effect of nicotine nor the smell or taste of tobacco. They were smoked anyway. At least there was some warm smoke and the action of smoking.
As far as the civilian population is concerned, things were not as crass. The supply was somewhat better. Furthermore, addiction and withdrawal are easier to manage if life offers distractions, while the camps resembled laboratory cages where the trapped rats help themselves to drugs until they die.35 Still, the basic problem was the same. Food stamps guaranteed survival, but at a rate of only 1,300 calories a day which had to be supplemented by purchases on the black market or a barter trade with farmers.36 Any cigarettes bought or exchanged at black market prices curtailed the means available for food. This was especially serious for people of the working class who earned little, had no savings, no valuables to barter and no possibilities to grow their own tobacco. According to our sources, they nevertheless showed up as well at the black market scenes to buy a Chesterfield for 7 Marks and often enough several per day. With a loaf of bread costing 35 RM there, they might have bought this for their children, had they dispensed with 5 cigarettes. A large percentage of working class children was seriously undernourished all through the post-war years. That their fathers could not withstand the craving for cigarettes was certainly not the most important reason for this, but it added to the difficulties.37
Our interview partners also deplored a general loss of honor and dignity.
Cadging for cigarettes was a common practice in all strata of society. People who, under different circumstances, would have felt disgust at such behavior, picked up butts which were collected and then rolled into new cigarettes or smoked in pipes. The newspapers were full of stories and pictures on this theme. One caricature showed a nicely dressed gentleman with a bowler shat picking up a still burning stub from the gutter, while two skinny ladies observe him and one of them mumbles: Once upon a time he collected antique coins.3S Looking for butts was, of course, only worthwhile in the neighborhood of places frequented by foreign soldiers or nouveau riche Schiebers, which added to the humiliation. A favorite method of collecting butts was hiking along the Autobahn which was almost exclusively used by foreign military vehicles.
Young women had their special means, and it was not only entertainment, food, and silk stockings which made them seek the company of GI's, but in large part the almighty cigarettes. There was a saying that they went mit Ami fur die Ami.39
All this happened at a time when scarcity of everything was the rule, which meant that the scarcity of cigarettes was probably easier to accept than it would be now after an act of legislation. Such an act would surely be regarded as arbitrary, and its consequences would put any government in big trouble.
The German government was certainly well aware of this, when in a 1974 debate in the German parliament it had to face a number of opposition members who questioned the government on its view of the dangers of smoking and its plans to tackle them. In its well worked out answer (later published as a separate document) the government admitted that cigarettes did not conform to the norms of the law regulating foodstuffs and items of everyday use. These norms allow only such products on the market which are proven not to be dangerous to the health of the consumers. Regardless of this contradiction, cigarettes could not, according to the government, simply be taken off the market. Two arguments were advanced against prohibition.
The first argument was of the kind Max Weber would have called wertrational. It was a value-oriented argument, oriented at the value of self-determination. It placed the adult and sane citizen's right to self-determination, including the right to risk his health or even life, higher than the state's right or obligation to interfere in the name of a perceived better interest of the citizen. "The government does not want to lead responsible citizens by a string and to enforce healthy behavior by means of laws or regulations. . . This is not to abandon all attempts at influencing behavior. But the measures must be balanced. They should persuade, not compel. They should promote critical insight and responsible conduct, but they should do so without coercion."4
This argument is rooted in liberal thinking. It was first proposed and painstakingly discussed by Wllhelm von Humboldt in his seminal book Ideen zu einem Versuch, die Grenzen der Werksamkeit des Staates zu bestimmen (Ideas for an Essay on the Limits of State Power) published in 1792. The Prussian philosopher and scientist distinguished between negative and positive protection supplied by the state, corresponding to negative and positive liberty of the citizen. Negative protection was protection against harm coming from third parties, and it was the state's primary task to guarantee this. Positive protection was to actively control the fulfillment of potentials, and though it seems tempting to direct and force people to live up to their potentials, the state has, according to von Humboldt, no right to give in to this temptation of paternalism. This line of reasoning was later taken up and popularized in the Anglo-Saxon world by John Stuart Mill.4l
It also informed, by the way, the German constitution of 1949 insofar as one of the first articles of this constitution (Art. 2 Abs. I GG) explicitly guarantees the right of self-determination. This right implicitly embraces the right to indulge in all sorts of behavior including risky actions that might, in the end, endanger, injure or kill the actor - as long as such behavior does not hurt the rights of other persons. Consequently, the use of all, even the most dangerous drugs is not illegal in Germany. There is just no legal access to some of these drugs, since everything except use - production, trade, sale, purchase, possession - is declared illegal by a special law on narcotics (Betaubungsmittelgesetz). Not so with cigarettes. In their case the government argued that the respect of the constitutional right of self-determination, including the right to smoke, necessarily demands some possibility of legal access and, therefore, rules out prohibition.
The second argument used by the German government against the prohibition of cigarettes is a more pragmatic one. It would fall into Max Weber's category of Zweckrationalitat. The criterion here is not conformity to certain values, but achievement of the goal the action was designed for. The government argued that prohibition of cigarettes would miss its purpose and produce instead some rather undesirable side-effects. "To outlaw production and trade would not turn smokers into non-smokers. It would, on the contrary, create a situation much like the one after the last war, when - in spite of the shortages - the number of smokers increased. There would certainly develop a black market, and the use of all sorts of ersatz substances would only raise the risks to the health of the users. Prohibition, therefore, is no solution."42
I must admit I felt some gleeful pleasure when I first came across this document, and I still enjoy the irony every time I quote from it. Here we have not some crazy drug policy reformer but the German government telling us that prohibition is not a rational choice of action - neither with regard to important liberal values (wertrational), nor with regard to the effective achievement of its proper goals (zweckrational). In a way, the German government is even more radical and profound than most present-day drug policy reformers. Those reformers often enough neglect the value-oriented argument and forget that it is the more important one of the two. Still, the second, the pragmatic argument is also quite important, especially so since we live in a world almost exclusively geared to purpose-rationality. It might be for this-reason that the second argument is more popular at the moment.
I certainly know that the arguments against prohibition, put forward by the German government in 1974, are incomplete and, in part, also a little hypocritical. Our honorable rulers forgot to mention the power of the tobacco companies and ther4 billion annually in taxes. And I would not trust much their honesty regarding individual liberty and the right to self-determination - they had no problems to neglect them in the case of cannabis, cocaine, etc. It is important, though, for the present drug policy debate that in the case of one drug they have explicitly recognized not only the counterproductive effects of prohibition, but its contradiction of constitutional values as well.
At any rate, the tobacco policy followed by the German government is more rational and level-headed than its-drug policy. It might even serve as a model for the latter (in some respects a better model than the other one more often proposed by reformers: the Dutch cannabis policy). Let me, in conclusion, just mention a few relevant aspects:43
As 1 mentioned in the beginning, there is some reason to fear that this rational policy is about to take a bad turn. At least in the United States, not just health activists (who have a good point) but neo-puritans (who wage an all-out moral war against drugs) are apparently pushing toward prohibition. Tobacco policy would then, instead of informing drug policy, deteriorate into something rather close to tbat.47 It is, therefore, all the more important to emphasize the two main arguments for a rational drug policy: the natural and constitutional rights of adult and sane citizens and the detrimental consequences of prohibition.
Henner Hess teaches at the Goethe Institute in Frankfurt. He is the author of Mafia: Zentrale Herrschaft und lokale Gegenmacht (Tubingen) a pathbreaking study of the Sicilian Mafia, and numerous subsequent criminological studies.