Tag Archives: Prohibition

Food for Thought: Justice, Sentences, and Retroactivity

This question relates to our discussion of natural legal theory, and especially to the work of Lon Fuller and John Finnis. Both of these theorists explore the links between morality and law. Their theories can be used prescriptively, as frameworks that, if adhered to by lawmakers, will result in laws that meet minimum moral standards. They can also be used analytically, as frameworks that should allow us to differentiate between laws that are morally justifiable and laws that are not.

Pavlich (2011) uses both theories to analyze the Apartheid-era Prohibition of Mixed Marriages Act, and he asks us to consider “[w]hich of the two approaches … provides a better way to challenge unjust apartheid legislation” (p. 39).

This week’s food for thought question will also involve a case study.

The scenario:

The Government of Canada passed the Safe Streets & Communities Act, and it received royal assent in 2012. Among (many) other things, this act revised the Controlled Drugs and Substances Act by introducing a number of mandatory minimum penalties associated with the production of certain prohibited drugs. For example, in relation to marijuana, s. 41 of the Safe Streets & Communities Act provides that the minimum penalty for the production of marijuana is

(i) imprisonment for a term of six months if the number of plants produced is less than 201 and more than five, and the production is for the purpose of trafficking,

This legislation stands in stark contrast to current public opinion regarding marijuana. Polls consistently show that the vast majority of British Columbians, for instance, are in favour of decriminalization.

Imagine that a person who is aware of the current law regarding marijuana production decides to start a small hydroponic operation consisting of ten plants. He already has a (legal) home hydroponic setup that he uses to grow tomatoes, and it takes only a little effort to adapt it to grow marijuana as well. A portion of the product grown is for his own personal use, but he sells most of it to friends, neighbors, and colleagues. He reasons that this does not hurt anyone, and that – used in moderation – marijuana is considerably safer than many legal substances, especially alcohol. He further reasons that ‘times are changing’, and it won’t be long before Canada abandons its prohibition-based approach to marijuana and follows the lead of Washington and Oregon.

One of the man’s customers is stopped by the local police department and found to be in possession of a small amount of marijuana for personal use. When asked where he purchased the marijuana, the customer identifies his source. Police obtain and execute a search warrant, and they find the hydroponic room and its ten plants. The man is subsequently charged with production for the purpose of trafficking. He pleads guilty. The sentencing judge, following the law as set down in the Safe Streets & Communities Act, imposes the mandatory minimum sentence of six months in provincial prison. The case is clear-cut.

One week after the man is sentenced, a federal election results in a change of government. The winning party is elected with a majority of the vote. A major component of their platform is the promise to fundamentally change Canada’s approach to marijuana because – in the words of the party – “the prohibition of marijuana is and has been an unjust, immoral, failure of public policy, and its continuation is contrary to the values of the people of Canada”. The new Government’s first order of business is to pass legislation to legalize and regulate the production, sale, and possession of marijuana. The legislation passes quickly, and marijuana is effectively decriminalized in Canada.

Through a quirk of fate, the man in our scenario turns out to be the last person in the country convicted of production for the purpose of trafficking (and indictable offence) under the previous legal regime. It is now perfectly legal for an adult to cultivate marijuana in his or her own home, and to sell marijuana to other adults.

A public advocacy campaign is quickly organized to lobby the courts and the federal government to release the man from prison and commute his sentence. Proponents of this action argue that it would be unjust to continue to punish the man for actions that are no longer subject to criminal sanction. They suggest that a person should not be jailed for an act that is no longer unlawful. Opponents of this campaign argue that even though public opinion and the law of the land have changed, the fact of the matter is that the man clearly broke the law as it existed at the time that he committed the acts in question, and that his sentence was – and remains – the product of a fair and lawful trial.

Food for thought:

Write a blog post (see your syllabus for guidelines) that addresses the following questions:

  • Would releasing the man from prison and rendering his conviction null and void reflect the underlying morality of law, according to Fuller? Explain your response.
  • Would insisting that the original sentence still stands be in the interests of the common good, as understood by Finnis? Explain your response.
  • According to your own perspective, what would be the just course of action in this case? Explain your response.

Your post should dedicate roughly the same amount of space to each of the three questions. Be sure to refer to Pavlich (2011) and follow proper citation procedures. Feel free to draw on additional sources and make use of hyperlinks, images, and videos.

If you choose to prepare a post in response to this question, it must be submitted before our next class.


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Prohibition Laws by Durkheim and Marx

The paper I am writing about will be on laws governing prohibited substances.  Laws prohibiting illegal substances have been created and repealed many times throughout our society, with the infamous alcohol prohibition in the early 1900’s to the recent legalization of marijuana in Washington and Colorado.  Both Durkheim and Marx provide differing opinions on this issue and what the causes and effects are.  For Durkheim, his belief is that law shapes society, meaning that our society’s norms are reflected in our laws.  Marx suggests the contrary, that our society is what shapes law.  This is in regards to his beliefs that society’s common interests must arise from our methods of production.  A State does not directly form a society; rather it develops based on the social conditions at the time.  He argues that a society cannot be based on old laws that were created from previous social conditions.

Durkheim’s theories of society and its structures covered a broad range of topics, but “he was mostly concerned with social solidarity, or how society is held together” (Pavlich, 2011, p. 73).  This social solidarity can be separated into two different categories dependant on the type of society: ‘Mechanical solidarity’ and ‘Organic solidarity’.  Mechanical solidarity occurs when “a certain number of states of consciousness are common to all members of the same society” (Pavlich, 2011, p. 77).  In this type of solidarity exists a ‘repressive’ system of punishment (e.g. criminal, penal).  The reason for this type of punishment is because of the strong collective morality that is offended by a crime.  Organic solidarity is a modern type of society where it is comprised of several independent systems that all work together in cohesion.  With this society comes a new type of ‘restitutive’ punishment (e.g. civil, administrative).  This involves “a complex division of labour that generates disputes around individual property rights, commercial transactions, torts, administrative regulations…” (Pavlich, 2011, p. 77).

He would explain prohibition laws as performing collective functions for the benefit of society.  In general, he argues that crimes would inform individuals of what not to do and act as a deterrence.  Crime is an inevitable part of our society, so naturally we would need laws based on social norms to prevent it.  However, there would need to be a shared value among individuals that illegal substances are against the norm which Durkheim calls ‘social facts’.  It is best to look at this issue with a functionalist perspective as Durkheim would do.  In this perspective, laws would be analyzed to gauge their social impact in two ways.  Laws can either perform restitutive affects or reinforce the norms of a society.  What prohibition laws could do with this perspective is force offenders to make some sort of amends for their crime(s).  Also, if this were a regulatory society (i.e. organic solidarity), we would be able to reduce the occurrence of illegal substance use due to increased sanctions that could possibly make obtaining these substances more difficult.  Another method that drug prohibition laws could change society is by reinforcing the collective norms against that illegal behaviour.  More specifically, it could strengthen the bond between individuals to reaffirm their social norms.

On the other hand was Karl Marx, who believed that law is a product of society and not the other way around like Durkheim suggested.  One major difference between Marx and Durkheim was that Marx focused more on the economy and politics in his ideas about society.  In particular, he focused on ‘materialism’ or the production of our needs society.  He viewed this economic system as a constant struggle between the capitalists, who own the land and employ the workers, and the working class.  The legal system comes into play to uphold the capitalists’ means of production.  In particular, criminal law exists to keep the capitalist class stable against any sort of organized revolution against them.

Crime, in a Marxist approach, occurs as the result of the conflict between the opposing classes.  Marx would explain prohibition laws as being based on the social conditions during the time they are enacted.  He would suggest that these laws came into place in an effort to control the working class.  By the capitalists imposing social control over the working class, they would be able to continue their means of production.  In essence, law and the State are one and they reflect the current economic state.  Moreover, Marx would also suggest that the legal substances today that used to be illegal, such as alcohol, are accepted because of the financial gains the capitalists make from it.  To them, alcohol is a profitable business, which is why it is in their best interests to keep it legal.


Pavlich, G. (2011). Law and Society Redefined. Ontario, Canada: Oxford University Press.

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