Abstract
In recent years, enthusiasm for the role of human rights in shaping global drug policy has grown. Many argue that human rights can guide urgently needed drug policy reforms and instigate less punitive approaches to people who use drugs. To progress human rights-based reforms, international experts have issued guidance on what rights-compliant drug law and policy would look like. This way of thinking about both human rights and law emphasizes law as text and relies on a version of human rights as immaterial, transcendent, disembodied, and capable of realization through seemingly objective processes of definition, classification, and reason. This way of understanding law is troubled, however, by recent spatial and material turns in legal scholarship, including approaches that emphasize law and matter as co-constitutive. Situating ourselves within these spatial and material legal realms, this paper explores a different conceptualization of the relationship between human rights and drugs, focused on movement and political participation. Drawing on 30 interviews we conducted with human rights experts and activists, many of whom also identify as people who use drugs, as well as Daniela Gandorfer's matterphorical approach to law (2019, 2020) and Margaret Davies’ (2017) work on law unlimited, we examine entanglements of rights, law, drugs, bodies, borders, methadone, doors, prescriptions, languages, suits, airplanes, and security scanners. Through these entanglements, we introduce a “dope sick ontology,” drawing on the slang term used in some drug circles. Repurposing “dope sickness,” we argue that the realization of legal rights, including the rights to freedom of movement, association, and political participation, depends on assemblages of human and non-human bodies. We argue that this way of thinking about how human rights “work” has important implications for rethinking the relationship between human rights law and drug policy, and for how we conceptualize justice.
Introduction
In November 2022, a group of people came together at the Australian Parliament House in the nation's capital, Canberra, for the first national conference on drug-related stigma. The conference had been organized by Australia's national, government-funded drug user organization, the Australian Injecting and Illicit Drug Users League (AIVL), in celebration of their 30th birthday. AIVL advances the health and well-being of people who use drugs in Australia, contributes to policy and research on drug issues, and develops a national workforce of peers to work in harm reduction and related areas. Those who attended came from various institutions including universities, service providers, policy, drug users and health organizations, and there were talks from drug law and policy experts, current and former politicians, and people who use drugs. The gathering unfolded in the parliament's “Great Hall”: a magnificent, cavernous space quite literally at the heart of the parliamentary precinct. Although often used on formal parliamentary occasions, the Hall can also be hired by members of the public, as it had on that day. The Australian Parliament House website describes the Hall in this way: As the doors open, revealing soaring ceilings, polished timber floors and a stunning full-height tapestry, the grandeur of the Great Hall is revealed. Impossible to surpass in terms of sheer impact, there are few more impressive settings for gala events and prestigious dinners. This striking space showcases the integration of architecture, craft, and art into Australian Parliament House. Pulling focus at the far end of the room, the tapestry depicts towering eucalyptus trees as a homage to the majesty of the bush—quintessentially Australian, it was designed by the great 20th century artist Arthur Boyd and made by weavers at the Australian Tapestry Workshop in Melbourne. Entry to the Great Hall is past the sweeping staircases and marble-clad columns of the Marble Foyer - an ideal setting for pre-dinner drinks. As we are sure you are aware, the security at Parliament House is no different to that of an airport or a prison. These usually consist of X-ray-type screening machinery and metal/explosives trace detection wands. All visitors to Parliament, including [… event attendees] will have to undergo security screening and inspect their personal possessions. It would be in your best interest to keep any personal equipment/ paraphernalia at your accommodation or off-site.
Attendees were also reminded that “Prohibited or offensive implements, drugs, or other substances are not permitted and must be surrendered to the Parliamentary Security Service Officer” (AIVL, 2022, p. 10). Partway through the day, one of the attendees rose to ask a question about what it meant to hold an event on drug use, stigma and discrimination in the seat of government. They wondered whether others who used drugs felt safe there, surrounded by politicians and policymakers. They asked whether others had felt uncomfortable about passing through the security screens on the way in, or past the many guards that lined the parliamentary entrance. What did it mean to be talking about stigma and discrimination in the place from which the very laws that enable such stigma and discrimination emerge? And what did it mean to do so when people who use drugs were unable to use or possess drugs within the building? For some of us present (including the first author), these were important provocations. To what extent can people who use drugs participate in public events, including those which are specifically—and perhaps paradoxically—focused on stigma and its elimination? How can such events or processes be accessible to people who use drugs, if at all?
Building on recent scholarship on drug policy representation and participation, such as Annie Madden's work (2022) on drug user involvement in high-level policy settings, this article considers the challenges of political participation for people who use drugs. As political participation is also not simply an esoteric concept or subjective ideal but a supposedly universal and fundamental human right, we also consider the human rights dimensions of political participation for people who use drugs. In thinking about the human rights dimensions of political participation, we situate our study within the burgeoning field of drug policy and human rights, including calls for drug policy to be reformed through human rights, and calls for the human rights of people who use drugs to be better realized in policy settings. Our analysis takes us to debates about the nature and meaning of law and legal compliance, including questions about law's materiality, and the implications of materiality for questions of political participation. Drawing on 30 interviews we conducted with human rights experts and activists, many of whom also identify as people who use drugs, as well as Margaret Davies’ (2017) work on law unlimited, and Daniela Gandorfer's matterphorical approach to law (2019, 2020), we examine entanglements of rights, law, drugs, bodies, borders, methadone, doors, prescriptions, languages, suits, airplanes, and security scanners. Through these entanglements, we introduce a “dope sick ontology.” This concept aims to capture the complex relations that unfold when realizing legal rights in practice, including the rights to freedom of movement, association, and political participation. Our use of the term involves a deliberate use of the slang term “dope sick”—sometimes used to describe opiate withdrawal symptoms (see, for example, Bourgois & Schonberg, 2009)—repurposing and extending it here to describe the way that rights and human rights law in particular depend on assemblages of human and non-human bodies in intra-action (after Barad, 2007). We argue that this way of thinking about how human rights “work” and the laws and legal systems on what such rights depend, has important implications for our understanding of the relationship between human rights, law, and drug policy, and for how we conceptualize suffering, accountability, and justice.
Background
Historically drug policy and law was made without direct input from people who use drugs—at least in terms of their explicit, formal involvement. Over time, this has been the subject of extensive critique, with many pushing for people who use drugs to be included in debates about current legal approaches and possible law reforms. The call to be included is generally encapsulated by the slogan, now commonly used in drug policy circles, of “nothing about us without us” (Jürgens, 2005; see also Madden et al., 2021). In April 2006, the 17th International Conference on the Reduction of Drug-Related Harm was held in Vancouver, Canada. Around 1300 people attended from 60 countries (Strathdee et al., 2006). A key outcome of the conference was the “Vancouver Declaration,” which dealt with the issue of “why the world needs an international network of activists who use drugs” (INPUD, 2006). Among other things, the Declaration highlighted the importance of people who use drugs being able to come together “to raise our voices as citizens, establish our rights and reclaim the right to be our own spokespersons striving for self-representation and self-empowerment” (INPUD, 2006). The Declaration called for various measures for people who use drugs to “have meaningful input into all decisions that affect our own lives,” including by being able to serve on relevant consultative fora and to challenge national laws and international conventions that prohibit drug use. These calls eventually led to the development of the International Network of People who Use Drugs (INPUD), and there are now numerous drug user organizations around the world, some funded by the government, and some funded in other ways including by private philanthropic donors (see Madden, 2022).
From these developments, an important body of literature has emerged, examining the views of people who use drugs on legal and policy questions including their perspectives on drug law reform (e.g., Askew et al., 2022; Greer & Ritter, 2020). Some of this work considers the extent to which people who use drugs are involved in the development, implementation and evaluation of drug policies, laws and services, or considers the assumptions and effects of policy processes and practices. For example, some researchers have examined what “representation” actually means, who gets to speak for whom, and under what conditions (Bartoszko, 2021). Of course, in a broader sense, criminalization and stigmatization affect the extent to which anyone can speak publicly about their drug use, although these possibilities are often shaped by a range of factors including gender, race and class (e.g., Ross et al., 2020). Others have considered how the “credibility” and “legitimacy” of such “representatives” are established or maintained, and what effects different forms of drug user “expertise” might have on knowledge, policy, and law (Pedersen et al., 2022). Sticking with the question of what policy processes and practices make possible, more broadly, some have highlighted the ways that policy processes help to constitute the “publics” that are thought to proceed them, and who are otherwise affected by policy (Fraser et al., 2018).
While these issues are all important, existing research does not typically engage with detailed questions about human rights law and legal processes (see, for example, Bone, 2020; Lines, 2017; Takahashi, 2019). This matters because of a surge in “rights talk” (see Zivi, 2012) in drug policy circles, and the making of rights claims by people who use drugs (for a discussion, see Seear, 2020; Seear & Mulcahy, 2024; Zuluaga, in press). This includes moves by people who use drugs in which meaningful engagement in drug policymaking is articulated as a human rights concern. For instance, the aforementioned Vancouver Declaration called for a “drug policy that respects people's human rights and dignity instead of one fueled on moralism, stereotypes and lies” (INPUD, 2006). In early 2019, the heads of all 31 United Nations agencies released an important communiqué on a range of drug policy matters (United Nations, 2019). It recognized the importance of input from people who use drugs on all relevant drug policy issues. Their call for meaningful input from people who use drugs was also accompanied by a call for drug policy to be reformed through human rights. To progress human rights-based reforms, international experts have issued a set of international guidelines for drug policy and human rights that approaches rights compliance as a systematic exercise that can be undertaken in each jurisdiction around the world (World Health Organization, UNAIDS, UNDP and the International Centre on Human Rights and Drug Policy, 2019). The guidelines call for each country to conduct a systematic analysis of their laws and policies as a first step to understanding whether their practices are compliant with human rights. If not, reforms are encouraged. They expressly mention meaningful participation in public life as a foundational human rights principle that requires assessment. These calls are themselves essentially an extension of the human right to political participation, which is enshrined in Article 25 of the International Covenant on Civil and Political Rights, and itself linked to other human rights such as freedom of assembly, speech, and expression.
Such interrelated appeals—for drug policy reform, and more meaningful engagement of people who use drugs in drug policy reform—are vital and should be welcomed. But what if the mechanism for ensuring the human right to political participation is not straightforward? As Annie Madden (2022, p. 187; original emphasis) has argued, in her work on meaningful engagement in high-level policy settings, drug user representation is not only done through practices and effects of becoming of events, or even just in the room or at the table but is part of a wider set of practices, including the assemblages of international travel, being in unfamiliar (or unsupportive) formal settings and even managing risky and hostile environments.
Theoretical Approach
To situate our analysis, we draw first on Margaret Davies’ (2017) work on “law unlimited.” Although her focus is on law in general, rather than human rights law specifically, Davies’ work is a useful starting point for sensitizing us to the complexities of law, and to why questions about legal or human rights compliance are inherently complex. As Davies (2017: viii) explains, traditional conceptualizations of law see it as bounded in many respects including in the senses that law is “associated with a state, that it is derived from particular institutional sources, that its meanings are evident though interpretable, that it is created by intentional human agents, and that it is separate from politics and morality.” Davies sets out not to “delimit” law, but to “unlimit” it, which entails suspending law's “conventional conceptual, doctrinal, and institutional boundaries in an effort to imagine different modalities for understanding law” (2017, p. viii). The process of unlimiting law involves challenging these boundaries, including those: associated with an ability to think (about) law as a thing at all: that it takes the form of identifiable abstract norms, that it exists outside the self, and that it is part of human culture and is not of the physical world. These constraints are the consequence of distinctions ingrained in Western philosophy between mind and matter, culture and nature, and subject and object. (Davies, 2017, p. viii; original emphasis)
Daniela Gandorfer developed similar ideas in her work on “matterphorics.” The key insight of matterphorics is that “matter and law are co-constitutive” (2020, p. 334). As she puts it: Addressing legal questions in relation to their complex entanglements is crucial as law, with its Enlightenment roots and understood as an abstract system, constantly veils its materiality in order to claim universality and objectivity. (2020, p. 247)
When not breaking world records, Baumgartner is an outspoken nationalist and critic of refugees, decrying what he has called their “infiltration” of his country. He has also been openly critical of Islam and expressed support for far-right politicians in Europe. Acknowledging the irony here, Gandorfer makes the point that “some bodies move freer than others,” and that: legal boundaries, limits, borders, and spaces operate differently depending on which kind of body aims to approach or cross it. (2020, p. 181) In paying attention to (legal and physical) spatiality and to various, complex entanglements that constitute and enable Baumgartner's fall towards Earth, the idea that law is an immaterial system expressed in language, applicable and afflicted onto the material world cannot hold. (2020, p. 215)
Although human rights law is not an explicit focus in Gandorfer's work, her interest in the matterphorical dimensions of how bodies move, which bodies move, and who gets to participate in activities of different kinds, makes it well suited to human rights questions, including questions about the right to movement and political participation. Her approach—like that of Davies—matters, both because it is a distinct account of how law works and because it has implications for how we understand the way laws might be resisted, reformed, or remade, or how, for present purposes, rights such as the right to political participation might be actualized. In the next sections, we take up the provocations offered by both writers to trouble traditional readings of how human rights law operates, including the notion of law as text, and the notion that rights compliance can be approached as a process of reason.
Method
This paper draws on findings from a project on the relationship between human rights and drug policy. In one stage of the project, which is our focus here, we conducted 30 semi-structured interviews with human rights experts, drug policy experts and advocates from around the world, approximately half of whom publicly identified as people who use drugs. Reflecting on her own approach to sampling, recruitment and writing, Annie Madden (2022, p. 53) writes of a moment within her research where she began: to think critically about some of the possible implicit assumptions underpinning the division my cohorts into the two categories of ‘drug user representatives’ and ‘other stakeholders’. At first, these categories seemed fairly obvious, that is, they appeared to make sense for what I wanted to explore […] I began to question whether dividing my cohort based on these binary constructs might have inadvertently served to reinforce some of the very discourses/practices, categories and stereotypes I was seeking to question and challenge through my research.
Analysis
The Importance of Participation
The importance of being able to participate in advocacy and political debate emerged repeatedly and spontaneously amongst our interviewees as a key concern. This focus on political participation demonstrates its central importance in debates about human rights and drug policy (although it is not the only right of concern, of course). When we asked David, for instance, what human rights looked like or meant to him, he explained that it “is a framework that guarantees political participation, economic participation, regardless of race or creed.” For many interviewees, political participation includes being able to attend high-level policy events and advocate for the interests of people who use drugs, including through sharing details about their own experiences under prohibition. For instance, Elizabeth felt that lived experience in relation to human rights advocacy was “crucial and should never be neglected.” She explained her memory of when the first person who used drugs addressed [the Commission on Narcotic Drugs at the UN] and identified himself as such, and it was pretty amazing, much more than I expected. And it kind of had people on the edge of their seats. And it's shocking that it took as long as it did in the life of that body. But now […] people who use drugs are so much better organised at the international level and the national level in so many places, at a regional level as well, that really their voices are the one that has to be centred.
As Jessie explained, the need to stand up for oneself or speak in ways that engage human rights does not always or only happen just in the context of attending large domestic and international meetings, where opportunities to advocate might arise, but in everyday interactions and encounters, including with health systems, which in her view often operate “in that very paternalistic way, you know, that very ‘we know better for you,’ rather than listening to the person who knows themselves best.” Participation matters for drug policy and law reform too, in part because those responsible for designing reforms need to know: are the reforms we’re advocating for creating an environment for real reform or are we just moving the deck chairs on the Titanic, you know? Are the people, you know, who have been historically thrown under the bus of prohibition continuing to get thrown under that bus in some different way with whatever we’re describing? The communities that have historically cultivated marijuana are fucked up, sorry, that have suffered so much violence from the war on drugs–these people have been excluded from the marijuana regulation, and they keep suffering from violence […] These communities must have active participation in the regulation process.
As Bernadette argued, however, the extent to which people who use drugs are routinely engaged in these conversations differs, and tends to be dominated by specific groups: It's true obviously that who does the laws and who does the studies and who does the academics and all this stuff – experts – usually are white people and people with privilege, you know. But I think that in the last year there are more people from these [other] populations engaging in the development of these policies. I think this is the trend and there are many, many voices for example in the drug users population. It's very clear when they say ‘Nothing about us without us’ and they are saying, ‘Why are you doing our policies without us? Why are you deciding without conversing with us?’
The desire for people who use drugs to be involved in all stages of drug policy development, implementation, and evaluation was a common theme among the experts we interviewed. But many also talked about embodied barriers to participation, to which we now turn.
Embodiment and Participation
At one point in the interviews, we asked participants to reflect on language commonly deployed within a human rights context, in particular the meaning of the terms “dignity,” “equality,” and “freedom.” When reflecting on what these terms meant, David returned to the question of political participation, noting that: You know, at the end, if I cannot go into a place, if I cannot study in a certain place, if I get fired from my job, then I definitely don’t have any freedom. You know, if I don’t have the possibility to speak what I think on these issues, at least it has happened to me before I came out as a drug user, I was invited to many roundtables and spaces for the government, talking about drug policy, because I was a specialist, as soon as I came out as a drug user, I haven’t been invited […] So it's definitely – freedom is the possibility to also to do that, to participate, to be there when policies are made, you know, to have your voice be heard and have the processes, […] practice […] institutions or anyone else or organisations, to include us, include our populations.
In some instances, our interviewees expressly identified these barriers as forms of “stigma,” while noting that such stigma could also become internalized, making participation difficult. For instance, Gerry described barriers to participation as a “massive” challenge for people who use drugs, explaining that “this was the one key point that we just continued to make over and over again” in recent policy debates he had been a part of. He felt that stigma was a significant impediment to people's ability to advocate in this context, noting that It's a massive thing, especially self-stigma or internalised stigma. I face it every day and I have to really fight to not diminish myself a lot. You know, like I’ll be in a meeting and I’ll be talking, or I’ll have to challenge somebody about something they say and you know, I see other healthcare professionals, they kind of – they, to a certain degree, some have self doubt, but then this is in particular kind of this self-stigma about not being worthy or something, and I have to kind of often stop myself from saying things like, ‘Oh, but what would I know? Or, but I don’t know much about this’, or, you know, shit like that.
rife, I mean, it's just throughout – everywhere I go, you know, I see it and the really insipid part of self-stigma in particular is you never know if it's actually stigma or whether you’ve got it wrong and there's some other reason, you know? […] So I'll give you an example […] This is a good one because I was late for this meeting, right, so when I’m busy and I’ve got a meeting, I’m you know bending over to help someone with a study or something, and then they don’t turn up on time and it's 15 minutes late and I’m thinking, ‘these people don't respect my time, you know, they just think I’m a junkie,’ you know? And then they jump on, you know, and you’re fucking getting all emotional, and then the person jumps on and says, ‘Oh shit, I’m so sorry. You know, I’ve got my kids crawling all over me and the babysitter was late’, you know, and you go, ‘Oh’, you know? And that emotional – it happens everywhere you go. Like you get an email, and you see things that even aren’t even there, you know, and it makes it really difficult and really emotionally draining.
In Gerry's account, stigma is an embodied, visceral, psychological, physical, and affective experience that shapes the energy, enthusiasm, and capacities of people who use drugs to become involved with or continue in political processes that affect them. Stigma is felt in and through the body, its absence and presence inseparable from the possibilities of meaningful participation. As we will show, this sense—of participation as embodied and material—became a common theme across the interviews (see also Ettorre, 2008).
Embodied experiences of in/security and un/safety also shape people's experiences of participation and the extent to which rights to political participation can be realized. Elizabeth argued that “meaningful participation of those most affected, in decision making and advocacy and telling stores is really indispensable, if they can do it without putting themselves in danger.” But as Zenon put it: you are putting yourself at risk every time you are at the TV doing an interview, you know, every time you publish a report about the human rights situation in research, academic journals or whatever. It's like you are challenging people that are profiting from that situation […] and I am from a context that is, like, very violent. Indigenous guy who at the end won this process, and what he said is, ‘I had to learn Spanish, I had to dress in a suit, I had to travel to the city, to Bogota, I don’t know, 25 hours drive, to speak to these guys that were all white, in their own language, in their own perspective, and they don’t care how we allow ourself and how we govern ourselves’ […] We have no choice than to adapt […] because at the end we have to change the idea – or we have to put in the Western mind – that they are the colonisers and to make them understand what they have done and what they keep doing.
As these examples suggest, stigma, security, safety, race, coloniality and class all affect the political participation of people who use drugs in efforts to reform drug law and policy, as well as to participate in discussions about drug policy, implementation and evaluation. Crucially, and for the purposes of the argument we make here, political participation is made possible by a range of material-discursive practices and structures, and is an embodied phenomenon performed by forces in intra-action (Barad, 2007). In Davies’ (2017, p. 71) sense, law, including rights of movement and participation, is “embedded in social relations” of value and worth, and found in connections, or intra-actions of various kinds. It is “performed, assumed, located, relational, and material,” made through networks and relationality (2017, p. 89). We consider these dynamics in more detail in the next and final section of analysis.
The Matter of Participation
As one of our experts, Rebecca, describes, political participation is not only about context, recognition and proper recompense but an embodied, material experience shaped by access to drugs themselves: I went to [an overseas drug policy conference] and me and the person I went with were like looking for tin foil [… In that country, the people] are not like into tin foil really. Like we couldn’t find any the whole time we were there, and we were dope sick and, you know, it was just like a big mess. And that was supposed to be a drug user organising experience and [… but] the luxury of thinking about human rights was not, that would be a luxury we couldn’t really think about because it was more survival.
This was an issue raised by a few of our interviewees. We asked Olivia, for example, how easy it was to travel to major international human rights meetings and participate in discussions about the needs of people who used drugs. As she put it, “I have been waiting for people to ask me whether it's easy or hard. And that [travel] is the hardest thing to do.” Olivia had visited many countries, including countries in Europe and Asia, as well as the Philippines, which she described as having “the harshest” drug policy of all. As she explained: Being a drug user, an active drug user, I do have [to be] cautious, and [have a] network around me which I can move around with so I can [attend]. Before I go there, I will ask, seek around the network, ‘Do you have this, this, this?’ because I need to have my substance ready or else I won’t be functioning as how you see me now. So, knowing that travelling schedules and all that I need to pre-plan everything. It's not easy and sometimes I do bring substances, like secretly bringing out the substances that I am using because it's going to be hard to get from there. So without telling anyone where I hide it or how many, but I don’t bring a lot […] Whatever happens to me, it's my responsibility. Yeah, managing my – my take – my term is like managing my substance use because I only bring this much [gestures a small amount] so after this, there is no more, so no, but you would have to be really careful not to go more or if it's less, I am not going to be as productive for if it's a longer period.
The need to manage one's own consumption extends well beyond drug use, however, with Olivia telling us that when traveling, especially internationally, it is important to not do anything that would help to draw attention to oneself including when crossing borders, going through customs, and dealing with authorities. So she does not create any fashion, don’t dye your hair blonde, you know, don’t pierce your nose or ears, don’t wear any clothes which are, like, you know, too open or whatever. Don’t create – don’t make all eyes turn to you, no. That's the thing that I have been practising for years already.
This is not just an issue for Olivia, but for the broader “network” of people who use drugs that she is a part of. She told a story about once being at an international event with a colleague who was on methadone, and her drugs ran out. She had what Olivia called a “nervousness effect” and a “panic attack,” and it “really took a toll.” Others at the event knew to go to her hotel room, take her food, and source her some methadone. As Olivia explained: It's hard when you don’t have your substance to be – to feel [as] productive as other human beings, by rights, she should have what she needs to move around and to present there and […] her right to medicine is denied, you know and she can’t even do the right things for herself.
Michelle also spoke of the importance of drug user networks of care and support as an integral part of participation in political, academic and other human rights and harm reduction meetings. Like Rebecca, Michelle describes participation through reference to “dope sickness,” noting that it is vital that: no one's going to be left on the outside, you know, dope sick in their hotel room unable to participate or, you know, maybe taking risks and going out in a city they’re not from, maybe don’t even speak the language, trying to score or something to get well, which is like dangerous. And you don’t want people coming in to places they’re not familiar with and taking those kind of risks.
Michelle said that it was “challenging” to travel, even in contexts where people who use drugs might be being celebrated, awarded, or invited to speak at major international events. She explained that: it's scary because if you’re travelling, what if you lose your [methadone] bottles? […] Yeah, something could happen. I’ve had them explode. You know, it's all like liquid here, so it's like I’ve had it explode in my damn bag and had to lick it out of my zip-lock bag like a weirdo. So, that's uncomfortable and, you know, makes you feel very precarious to be somewhere where you’re not certain that you would be able to, like, stay well.
As Olivia and Michelle’s accounts suggest, rights are lived and experienced through networks of material and affective relations that render citizens who use drugs as precarious subjects or as non-rights bearing abjects. In other words, political participation for people who are understood to be dependent on drugs becomes paradoxically dependent on networks of relation and care, and on various material and practical structures and supports (see also McLauchlan et al., 2022 ).
These accounts also remind us that political participation and freedoms of assembly, speech and expression can’t be assessed devoid of materiality, because rights are realized, experienced in and made matterphorically. Our participants’ accounts suggest that some bodies can move in and through spaces or participate in political processes more readily than others, in ways analogous to Gandorfer's work (2020) on Baumgartner—though the possibilities of movement and participation here are shaped by different forces to the ones at play in his case. The capacity to become or be political, rights-bearing subjects or drugs rights advocates is not immaterial, transcendent, disembodied, or capable of realization through seemingly objective, textual or intellectual exercises in definition, classification, and legal reasoning but entangled with drugs, borders, and sticky methadone formulations licked from zip-lock bags, as well as languages, suits, airplanes, haircuts and body piercings. Of course, it is also shaped by prohibition, and its accompanying apparatuses of law enforcement and state power, all of which shape the possibilities of participation.
This is a view of rights that we are here calling a “dope sick ontology.” This concept aims to capture the complexity of realizing human rights in practice (i.e., beyond their expression in text), including the rights to freedom of movement, association, and political participation. Although dope sickness is a term used by only some people who use drugs, in relation to specific substances and embodied experiences, its use by participants in this study matterphorically signaled, we suggest, the complex and mutually constitutive entanglements of rights, law, and matter under prohibitionist regimes. In other words, we provocatively apply and extend the concept of dope sickness as a means of describing the ways that rights and human rights law in particular depend on assemblages of human and non-human bodies in intra-action (after Barad, 2007). We argue that this way of thinking about how human rights “work” and the law and legal systems on which human rights depend has important implications for our understanding of the relationship between human rights and drug policy, and for how we conceptualize suffering, accountability, and justice. A dope sick ontology or dope sick account of human rights law is one in which drugs, law, and rights are thoroughly material, and where the realization of rights (and thus, law “itself”) is made through entangled relations of human and more-than-human forces, rather than by legal texts “themselves,” or texts imposed on passive recipients of law.
This approach asks us to think about drug policy and rights, including rights to freedom of movement, association, and political participation, in terms of how they are shaped in intra-action. It recognizes that thinking and talking about rights standards can only take us so far and that law cannot possibly be assessed apart from matter or relationality. Even then, it is multiple, in Davies’ terms, because “a diversity of types and genres of law necessarily emerge” (2017: ix) through embodied and relational expressions of law in/as intra-action (after Barad, 2007). This has implications for how we think about rights, political participation, law, and lawmaking and what a “rights-compliant future” for drug policy entails. If reforms are designed without these relational and material forces in mind, we will continue to fall into what Gandorfer calls the “trap” of naturalized legal thinking, thereby reinforcing the idea that rights compliance can be seamless, frictionless and disembodied, or outside the material world.
Conclusion
In this paper, we have sought to think and describe law “matterphorically” (after Gandorfer, 2020), thinking of law without limits, and as material, plural, and relational (after Davies, 2017). Seen this way, legal norms and indeed law “itself” are emergent, achieving what Davies (2017, p. 155) describes as “differing degrees of intensity in different contexts,” or relations. Here, we articulated an embodied, material account of human rights law in general and the right to political participation among people who use drugs in particular, arguing that this right is experienced in and emergent through networks of material relation. This is a similar point to that made by Annie Madden (2022) in her account of the challenges of involvement of people who use drugs in high-level policy settings, but goes a step further than Madden's work, by exploring how involvement is experienced as embodied and relational and what this tells us about the “nature” of law. We argued that the capacity to become or be political, rights-bearing subjects is not immaterial, transcendent, disembodied, or capable of realization through seemingly objective, textual or intellectual exercises in definition, classification, and legal reasoning but entangled with drugs, borders, and sticky methadone formulations licked from zip-lock bags, as well as languages, suits, airplanes, haircuts and body piercings, and embodied experiences of stigma and exclusion. We have also argued that this notion (of law as co-constitutive and emergent) matters for how we understand questions about how to “realize” human rights, or how to ensure that drug law is reformed so as to become “rights-compliant.” The possibility of rights realization or compliance is decidedly less straightforward in this matterphorical account of law and suggests that a singular, disembodied, immaterial approach is profoundly insufficient. Harking back to Daniela Gandorfer's (2020, p. 181) observation that “some bodies move freer than others,” and that law operates differently for different human and more-than-human forces in relation, we can see that the task of ensuring that people who use drugs can realize key rights is much more challenging. The challenge of rights realization must therefore be seen as more complex, or as embodied and material, through a “dope sick ontology.”
It is important to note some of the ironies of dependence at work in our analysis. In most cultures, “dependence” on drugs is viewed as a grave moral failing, and the key reason why those who use drugs must be so tightly governed, punished and/or “repaired” (Fraser et al., 2014). Here, we argue that the demands and contours of political participation in conventional fora, which require certain forms of engagement and presentation including international travel, often without access to drugs and other supports, help materialize subject positions including “dependent” subjecthood. Drawing from Suzanne Fraser's (2006) seminal critique of methadone maintenance treatment, including the common modes of delivery in which people must wait or queue to get it which “reproduce rather than depart from the model of waiting and dependence widely seen as characteristic of lifestyles associated with regular heroin use,” we suggest that legal practices and processes reproduce—rather than depart from—the forms of dependence (on networks, relations, and drugs) widely seen as characteristic of lifestyles associated with regular drug use. In so doing, these legal practices and processes can produce political exclusion, and disengagement that is too often assumed to be a feature of drug use “itself.” To be clear, we view these relations and “dependencies” as profound accomplishments of solidarity in the face of extreme, often relentless hostility. But it is worth noting that our participants do not experience their “rights” to movement, association and participation as straightforward or frictionless; instead, they are often shaped by fear, shame, precarity and dope sickness all the way through.
We want to close on a more hopeful note about the possibility of better worlds for people who use drugs. Although improvements to human rights mechanisms, including under domestic law, could be useful here, as we have explained in some of our other work (Seear & Mulcahy, 2025), we are here more interested in responses that empower people who use drugs and that work with law and matter. As such, we return to Davies’ (2017, p. 155) observations on law unlimited, including her reminder that subjects “participate in law creation as opposed to simply being the passive recipient[s] of law.” She draws inspiration for generating law through diffuse relations, including through “expansive” sites beyond the state, and through “fluid and participatory norm-creation practices,” such as specially established people's tribunals, “restorative justice processes, responsive and reflexive regulatory systems, truth and reconciliation processes, or community justice centres” (2017, p. 155). Davies hastens to add that these various practices should not be seen as deviations from or alternatives to the “real” law, but as legalities in themselves, in an approach guided by prefigurative thinking (see Cooper, 2022, 2020). It is for people who use drugs and drug user organizations to consider which practices, relations and processes might help facilitate the creation of new norms, laws and worlds, but we want to close with two quite tangible possibilities that are broadly in keeping with the theoretical approaches we have drawn on here. One possibility is to establish a people's tribunal involving public hearings about the impact of the war on (people who use) drugs. People's tribunals are forums for justice in which people come together to run public inquiries on various legal and human aspects of government decisions and actions (Byrnes & Simm, 2017; Paulose, 2020). They would work to establish new norms of participation and engagement for affected communities, while having “truth-telling,” therapeutic or restorative dimensions, among other things, and have been successfully used to highlight the effects of the Philippines’ war on drugs. 1 Holding these in person may not overcome the challenges of travel. Under a people's tribunal model, however, it would be up to people who use drugs to themselves determine the location and format of tribunals (e.g., whether in person, online or hybrid), rather than participation unfolding on terms determined by authorities, in pre-determined locations and formats.
The second possibility is one which Davies dedicates some time to, and that is an approach that follows the various feminist, queer and Indigenous judgement projects around the world (e.g., Chandra et al., 2021; Douglas et al., 2014; Hunter et al., 2010; Majury, 2006; McDonald et al., 2017; Stanchi et al., 2016; Watson & Douglas, 2021; https://www.queerjudgments.org). In these projects, scholars and activists reimagine and then rewrite real court decisions. Davies sees such projects as a powerful example of doing, living and embodying law differently. As she puts it, feminist judgment projects bring “to the surface the embodied subjectivities of all judicial officers” (2017, p. 120). She acknowledges that in one sense, the projects appear limited, because “there are still courts, statutes, precedents, cases, decisions” (2017, p. 120). However, she suggests that the state is altered here because the law “becomes composed of doings: active subjects, with their own experiences, interpretations, and narratives” as opposed to a singular, true or objective law (2017, p. 120; original emphasis). Recently, we have been involved in the world's first feminist legislation project (Batagol et al., 2024), which similarly aims to remake laws by rewriting them. This project is led by the first author and colleagues, and includes a piece by the second author (Mulcahy, 2024), and offers another way of embodying/producing law. We can imagine projects in which people who use drugs similarly rewrite drug law and drug judgments in just this way. An associated possibility involves critical drug judgment projects, where court cases are critiqued or remade in other ways, as in another project the first author has undertaken (Flacks & Seear, forthcoming). Crucially, efforts to make law are not purely intellectual or textual exercises, for the reasons we have described throughout. They necessarily take materiality into account and harness relationalities as always already inside the law. It is notable that these approaches have often embraced the performative aspects of law through forms such as tribunal or trial theatre, dance/law, and other arts-based methods of legal decision-making or dissemination. In this way, these approaches can remind us that drugs, and other human and non-human forces, are not simply law's objects or targets, but that they are always already inside the law, as a lively and vital part of the law's materialization.
Footnotes
Acknowledgments
We thank everyone who generously gave their time to be interviewed for this project, as well as members of our project Advisory Board. Thanks also to Alejandra Zuluaga, who assisted with interviews for the project.
Declaration of Conflicting Interests
The authors declared no potential conflicts of interest with respect to the research, authorship, and/or publication of this article.
Funding
This research was supported by an Australian Research Council Future Fellowship (FT200100099) awarded to Kate Seear.
