CASE TO BE MADE FOR RELAXED LAWS ON CANNABIS

After considering the alternative, most people are pleased to accept the
rule of law. Life without it is apt to be (as Hobbes put it) "solitary,
poor, nasty, brutish, and short". A state that obviously seeks to protect
its citizens from violent or predatory individuals goes a long way towards
securing their allegiance.

However, the domain of criminal law is much more controversial. For
instance, should we have laws not only against such acts as theft, rape and
murder, but also against suicide, assisted euthanasia, homosexual acts
between consenting adults, and the non-medical use of drugs? John Stuart
Mill contended in his famous essay, On Liberty, that criminal law should be
employed only for protecting the individual against harm from others. "His
own good, either physical or moral, is not a sufficient warrant".

Sinful conduct is not necessarily criminal. Consider "the seven deadly
sins". Although they may give rise to criminal behaviour, such passions as
envy, pride, lust and hatred are not themselves crimes.

In 1957, the expert committee established in Britain to report to
Parliament on homosexual offences and prostitution declared there must
remain a realm of private morality and immorality that is not the law's
business. They added: "To say this is not to condone or encourage private
immorality. On the contrary, to emphasise the personal and private nature
of moral or immoral conduct is to emphasise the responsibility of the
individual for his own actions."

I had not heard of this report and the subsequent classic debate between
Prof H.L.A. Hart and Judge Sir Patrick Devlin when I was appointed to a
committee set up by the Board of Health at the request of the minister to
inquire into and report on drug dependency and drug abuse in New Zealand.
However, I was soon made aware of the importance of the issues raised in
the "Wolfenden Report".

By the time we wrote our final report in 1973, all members of the Board of
Health committee (including commissioner of police Robert Walton) were
"firmly committed to the view that the law should be regarded not as the
first line of defence against crime but rather as the last resort, setting
the limits within which other and preferably positive sanctions should be
brought into play".

The term "sanction", I should add, is often used to describe the measures
used by a state to control the conduct of its citizens. Sanctions consist
of rewards and punishments. It may be unnecessary to create legal sanctions
against conduct that earns widespread social disapproval because other
sanctions are often more effective.

A policy of relying chiefly on legal measures needs ample justification for
several reasons. One is the heavy cost of detecting, trying and punishing
offenders. A second is that other sanctions may be more effective. A third
is that "the law" becomes subject to disrespect when parts of it are
difficult to justify and enforce.

A great worry of parents nowadays is that their children may be
experimenting with drugs before they have gained much understanding of the
risks, such as the development of drug dependence. Several school
principals have expressed their concern about the detrimental effect of
frequent cannabis use on the academic progress of some of their duller
pupils. Now, even such doughty libertarians as Mill have conceded that
minors cannot be granted nearly as much autonomy as adults.

It is clearly the duty of parents and teachers to try to protect youngsters
from the harmful effects of drug taking. However, it is no less clear that
present measures are largely ineffective. As stated in a recent editorial
in the Otago Daily Times

entitled "Setting the standard", this is mainly because the existing
sanctions are not sufficiently effective or enforced with committed purpose.

To understand why the so-called "war against drugs" is going badly it is
helpful to visit the one front from which most of the news is good. The
substantial decline in tobacco smoking in much of the western world is due
chiefly to the effective co-ordination of educational and other measures.
Because of widespread acceptance of the view that the tobacco habit is both
self-destructive and antisocial, social sanctions that had been of little
avail now have great force. They in turn have aided the enforcement of
legal sanctions.

Mike Moore may well have been expressing an opinion held by many other MPs
when he said "It's a crazy world where we will be banning cigarettes and
legalising dope." Nevertheless, that view is not supported by the facts.
Tobacco smoking has become the chief single cause of preventable deaths.
Even spokesmen for the tobacco industry have ceased to cast doubt on the
principal findings of medical experts.

Compared with tobacco, cannabis is almost innocuous. Commissions set up in
the United Kingdom, the United States and various other countries have all
found that the danger of taking cannabis has been exaggerated and that in
moderate use it is rarely harmful (a conclusion accepted by the health
select committee of the New Zealand House of Representatives in a report
published in 1998).

The ODT editorial mentions "the rot which set in to China with the
widespread use of opium". It does not mention that in China alone tobacco
is causing about 750,000 deaths a year and the mortality rate is expected
to reach about three million a year because of the increase in smokers. The
tobacco habit has become one of the greatest of all plagues. And yet there
are few calls for prohibition of tobacco. Is this not because experience
suggests that any attempt to prohibit possession and use of tobacco would
probably have the reverse effect to that intended?

I am not a cannabis user and do not advocate its use. Indeed, there was a
time when I, too, supported total prohibition of cannabis. However, like
other members of the Board of Health committee, I recommended continuation
of this policy only "so long as this can be shown to be largely effective".
If there ever was a time when the habit could be nipped in the bud, it has
long since gone. Prohibition has been unsuccessful, so we must tackle the
situation accordingly.

The value of drug education depends to a large extent upon its credibility.
Whereas the campaign against tobacco owes much to sound education measures,
the campaign against cannabis confirms US Senator Hiram Johnson's belief
that "the first casualty when war comes is truth". A huge credibility gap
has opened up between those who are trying to whitewash cannabis and those
who are trying to justify its prohibition.

The legal enforcement of morality requires justification because it is
wrong to punish anyone without proper cause. Hence the "crimes" created by
legislation on drugs should, as far as possible, be acts that are
reprehensible in themselves. For instance, legislation on alcohol is
concerned primarily not with possession and use of alcohol (which is seldom
directly harmful), but with serious misbehaviour arising out of the misuse
of alcohol. Such acts as being (in lay terms) "drunk in charge" and "drunk
and disorderly" are deservedly punishable. We should introduce similar
legislation for cannabis.

Because of the ease with which the cannabis plant can be grown in New
Zealand, it would be far more difficult to control the availability of
cannabis than that of alcohol. However, it should at least be possible to
remove the supply of cannabis from the gangs who are fattening on the
profits and who have a vested interest in selling much nastier products. In
the vain attempt to maintain prohibition, New Zealand governments have lost
control of the supply situation.