Making Nature Against the Law

In the twenty-first century the illegal status of cannabis in Canada is ‘immoral, unjust, and intolerable’. The first drug law implemented in Canada was the Opium Act of 1908 when Deputy Minister of Labour Mackenzie King was concerned with an increase of use among Caucasians (Grayson 2008, p. 73). Opium was the Chinese migrants drug of choice. The cannabis plant achieved its criminal status when it was added to the Opium and Narcotic Drug Act in 1923. Today, the possession and trafficking of marijuana falls under the Controlled Drugs and Substances Act (S.C. 1996, c. 19) as a schedule II narcotic. As a first conviction, offenders face a maximum penalty of 6 months in jail or a $1000 fine, or both, when possessing 30 grams of marijuana or less. Without a doubt, the debate over cannabis illegality is neither new nor unique. With this in mind, it is recognized that many others believe the law to be one that is unjust and intolerable. I often wonder how citizens in a “free and liberal democratic society” claim such status when the people do not hold sovereignty over their own bodies? It is often argued that the use of cannabis is potentially harmful, however it is destructive to the welfare of our nation state and humanity when living organisms becomes prohibited. John Finnis’s framework on Law and Flourish Human Life can be used to argue that Canada’s cannabis law is unjust, as it does not further the common good by criminalizing personal choice and suppresses sociability and friendship by forcing users to partake in secrecy. For Finnis, “justice is about fostering the common good in a community” and concerns interactions and duties with others (Pavlich 2011, p. 37). Likewise, Pavlich would argue that the law prevents the formation of shared objectives that serve everyone. This point could be applied to any arbitrary law and be taken out of context, although this law is unique to others as it is victimless. Criminalizing the production, usage and distribution of cannabis essentially causes more harm and victims than if it were to be legal. For one, the production of the plant often involves the stealing of electricity and bypassing usage meters in order to meet the markets supply and demand while keeping their costs low and workers off the electrical grid (Dehaas, 2012). This then places higher cost onto the legal customers to pay for the lost power. Secondly, the usage of the cannabis plant has been proven to be less harmful than other legal counterparts such as alcohol and prescription painkillers (CBC, 2012). Thirdly, the vast distribution and demand for cannabis has resulted in billions of dollars in revenue for organized crime (Nelson, 2010). The current illegality of the organism appears to be one of hegemony—the way in which elites have their interests be adopted as the common interests—through successful lobbying on behalf of those who are benefitting by it’s illegality (e.g., law enforcement, prison industry, pharmaceutical companies, etc.) as it ensures job security for its ‘combatants’ and produces wealth in industries profiting off of its synthetic counterparts in modern medicine. The time to end prohibition of this plant is long overdue.

“If people let government decide which foods they eat and medicines they take, their bodies will soon be in as sorry a state as are the souls of those who live under tyranny.” – Thomas Jefferson

References

CBC. (March 23, 2007). Alcohol, tobacco worse than pot, ecstasy: study. CBC News, Health, http://www.cbc.ca/news/health/story/2007/03/23/alcohol-tobacco.html (accessed on September 21, 2012)

Controlled Drugs and Substances Act (S.C. 1996, c. 19)

Dehaas, J. (June 23, 2011). Grow-op electricity thefts “like a five per cent surcharge”. Macleans, News, http://oncampus.macleans.ca/education/2011/06/23/grow-op-electricity-thefts-like-a-five-per-cent-surcharge/ (accessed on September 21, 2012)

Grayson, K. 2008. Chasing Dragons: Security, Identity, and Illicit Drugs in Canada. Toronto: University of Toronto.

Nelson, A. (April 20, 2012). How Big Is The Marijuana Market? CNBC, News, http://www.cnbc.com/id/36179677 (accessed on September 21, 2012)

Pavlich, G. 2011. Law & Society, Refined. London: Oxford University Press.

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3 Comments

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3 responses to “Making Nature Against the Law

  1. This is an interesting post.

    I would be interested to hear your analysis of how and why cannabis became criminalized in Canada. What were the socio-political dynamics that gave rise to the Opium and Narcotic Drug Act?

    Your use of Finnis’ framework for moral law is effective – particularly the observation that laws can have the effect of pushing proscribed behaviors ‘underground’. This is certainly a demonstrable phenomenon.

    Note that you could draw on Fuller here as well – from the perspective of the internal morality of law as craft, the Canadian criminal legal regime related to drugs suffers from a high level of incoherence. Is there an overarching rationale that explains all aspects of federal drug policy? As you note, there is no consistent connection between potential for harm and prohibition.

    Would it be possible to devise a prohibition-based legal regime that would meet the morality tests of Fuller and Finnis, or does the idea of prohibition itself contain inherent, irreconcilable flaws?

    Looking forward to future posts.

  2. helmcken

    In my opinion, prohibition itself contains antagonistic flaws to the government’s attempts. It appears that the so-called “war on drugs” is a complete failure and has been neither effective nor prohibitive. Apart from the morality of law argument, the prohibition-based legal regimes ought to revisit the laws surrounding our drug laws if we are to look at prohibition from a business model. What results have been produced? What are the social, jail, court, and enforcement costs? Does the business model work? How many are charged and convicted per dollar spent? I see no point in convicting people for using a substance that hurts no one aside from the “user.” If we are to believe that humans are free and rational beings, shouldn’t we allow them the freedom to make decisions for themselves as adults? Governments need to go ahead and end the prohibition on cannabis. There are far more harmful crimes that affect society and that affect us all each day other than someone deciding to use cannabis, a natural occurring organism. Being that it is a natural plant, I do not understand how governments can prohibit any life in general. Simply put, I cannot foresee any logical argument on why it should remain illegal.

    • You have made a compelling argument. You may be interested in the work of Jeffrey Reiman, who advances the pyrrhic defeat theory of social control. Prohibition clearly fails (spectacularly) to meet its own stated objectives, and could, for that reason, be considered a failed social policy. Reiman takes this as a starting point and asks: in what ways could this situation be considered a success, and to whom? Put differently, what kinds of organizations have a vested interest in the perpetuation of a system of prohibition that does not meet its stated objectives? How could this persistent failure be interpreted as a success? See also the work of Nils Christie and Eugene Oscapella on this issue.