Way back in the early 90’s there were several attempts to prove that cannabis couldn’t actually be illegal, that the law was not only “immoral in principal and unworkable in practice” as the famous 1967 petition in the Times put it but was actually in and of itself illegal. A book was even published by “The Family Council on drug awareness (FCDA)” entitled “The Report” which set out a legal argument which was claimed to be a defence against a criminal charge bought under the Misuse of Drugs Act (MDA).The FCDA site explains:

Cannabis is officially exempted from all legislation, regulation or control founded on ‘harm’ criteria. All private cultivation, trade, possession and use are vindicated. Based on the research-established esoteric Empirical Evidence, THE REPORT is an authoritative insight into the real, but concealed, illegal reason behind Prohibition: ulterior money-motive.

This was taken up by several poor souls who went like lambs to the slaughter, defending themselves with all the confidence of sleepwalkers.

There have been several other attempts to prove the illegality of making cannabis illegal over the years, all of which have got nowhere at best, or at worst resulted in prison terms.  The whole approach had become an example of the definition of stupidity – the idea that if something didn’t work, all you have to do is to keep trying and eventually it will.

So it was a feeling of “oh no, not again” that greeted a post to the UKCIA forum from “Sunshine band” imploring us to “Stop saying ‘legalise cannabis’

Every time someone says ‘legalise cannabis’, ‘illegal drugs’ etc they create an equal and opposite reaction to their expressed wish. The key is in the language, we are fooled – really truly and it is NOW time to change language. When you think about it you will slowly realise that cannabis or any controlled drug is an object – objects are NEVER legal or illegal.

Oh dear, here is someone else telling us cannabis is not really illegal – and it’s not just on our forum, he’s been popping up all over the interweb with this argument over the past week or so. The government certainly doesn’t agree, as the Home Office will tell you in their standard letter they send out to anyone asking for cannabis law reform

The Government’s message has always been that cannabis is a harmful and illegal drug that should not be taken.

However, Darryl Bickler – his real name – comes from the “Drug Equality Alliance” with the wonderful acronym “DEA” which is at present making a very interesting case against the application of the MDA. Darryl’s argument is not that the MDA is a bad law at all, indeed the DEA supports the principles that underpin the act, but that the law is being misapplied. The argument that cannabis is not illegal may seem semantic and at first hearing in plain English terms it is, but we are talking about the law here and the law works by strict definitions.

As Darryl explains

Drugs are controlled under law, so that human actions concerning them are criminalised such as the actions / states of being such as production, cultivation, importation, supply and possession – these are property offences. It is not the property which is illegal, it is what you do with it. Nobody could legalise cannabis because it doesn’t have a status – sure we all know what you mean – but the meme you create is one of legality / illegality. In fact the law does not describe drugs in this way, they are ‘controlled’.

Ah yes, “controlled drugs”, that old chestnut, of course the one thing you can’t claim is that cannabis is in any way “controlled” by the present laws, but we’ll leave it aside for the moment.

Darryl has a  site on Facebook where the argument is expanded, but essentially it isn’t drugs that are illegal, restrictions are imposed on what we’re allowed to do with them and that is correct in law.

We need to go back to the intention behind the MDA. The act sets out to control drugs which are likely to cause harm through abuse by imposing these restrictions on property rights, ie restricting the trade or possession of them. So far so good and indeed the act itself is thus quite reasonable and few would argue with the basic intention. The problem comes when politicians decide what constitutes a “drug” and what doesn’t – and of course what constitutes “control”.

Alcohol and tobacco are not included in the MDA because they are not listed (or “scheduled”)  as drugs which should be included and this is where it gets messy. These two drugs are not scheduled for cultural reasons, yet there is no provision in the MDA for such an exception. Truth is, when they wrote the act the people who wrote it were all alcohol and tobacco users who didn’t consider themselves to be drug users. Drugs were something foreign people or weird subcultures used, the distinction is not only arbitrary but also discriminatory and hence the law is being misapplied. This is why we often see the totally absurd phrase “alcohol and drugs”, as if there is some distinction – alohol isn’t really a drug is it?

This is a very powerful argument in reality and can only be understood if, as Darryl explains, the fine distinction in the use of the English language is understood. Cannabis, the plant product – or indeed any other drug – are not in themselves illegal, they can’t be because objects cannot be subjected to the law.

The problem of course comes with the distinction between English as she is spoken and English as she is used to draft laws and such distinctions are easily lost. After all, if you get sent down for growing a plant then it would seem logical to assume the plant is an illegal one, and so any law reform campaign should set out to change that. But in reality the thing that’s illegal is the act of growing the plant. So the phrase “cannabis law reform” is correct, but “legalise cannabis” isn’t.

However, English as she is spoken is very important because it conveys whole concepts and this is nowhere more important than with the use of the word “control” in the context of drug law. The free dictionary defines control to mean

con·trol  (kn-trl)
tr.v. con·trolled, con·trol·ling, con·trols
1. To exercise authoritative or dominating influence over; direct. See Synonyms at conduct.
2. To adjust to a requirement; regulate: controlled trading on the stock market; controls the flow of water.
3. To hold in restraint; check: struggled to control my temper.
4. To reduce or prevent the spread of: control insects; controlled the fire by dousing it with water.
5.
a. To verify or regulate (a scientific experiment) by conducting a parallel experiment or by comparing with another standard.
b. To verify (an account, for example) by using a duplicate register for comparison.n.
1. Authority or ability to manage or direct: lost control of the skidding car; the leaders in control of the country.
2.
a. One that controls; a controlling agent, device, or organization.
b. An instrument or set of instruments used to operate, regulate, or guide a machine or vehicle. Often used in the plural.
3. A restraining device, measure, or limit; a curb: a control on prices; price controls.
4.
a. A standard of comparison for checking or verifying the results of an experiment.
b. An individual or group used as a standard of comparison in a control experiment.
5. An intelligence agent who supervises or instructs another agent.
6. A spirit presumed to speak or act through a medium.

The MDA defines drug control as  restricting the rights of people to do things with these objectes, not the objects – the drugs – themselves. It would therefore seem reasonable to argue that drugs covered by the MDA are not actually “controlled substances” as such. Does this matter? Well, yes it does and not just because it’s being used to lock people up.

The government constantly goes on about “sending messages” about drugs. The message they are sending is simply not true:  Drugs are not in and of themselves actually illegal and they are not themselves actually controlled.

This is important because “illegal drugs” (sic) so obviously are not “controlled drugs”; anyone can see that because there is no control over the vast and highly profitable trade in them, there is no control over what is sold and so on. A commodity – which is what drugs are – cannot be said to be controlled unless the trade in that commodity is controlled. We can all see the hypocrisy surrounding so-called “drug control” and this misuse of the English language  is at the heart of it. It conveys concepts which do not exist, which people then wrongly argue can’t be changed. It also explains how drugs like cannabis which are classed as “controlled” are in fact totally uncontrolled and yet drugs like alcohol which are not classed as “controlled substances” are in fact regulated by some very strict controls.

What we have is drugs which are subjected to restrictions on property rights and no more. It’s also a concept which is not an easy one to explain either, which probably explains why the whole law is in such a mess.

The DEA argue there is nothing wrong with the MDA, that as a concept it’s a good act, but that it is being misapplied by politicians and they have a good point. The MDA should certainly include alcohol and tobacco and should set out to properly control the trade in these substances. What we have now is a total mess.

So Darryl is right to argue there is no such thing as illegal drugs, we should go to the next stage and argue there is no such thing as a “controlled drug” under prohibition either. “Control” requires a legalised and regulated trade in that substance. The problem at the root of all this is prohibition.

Illegal drugs do not exist – a Facebook campiagn. Drug law may never be the same again!