HIGH TIME? THE POSSIBLE LEGALISATION OF CERTAIN DRUGS - A LAWYER'S PERSPECTIVE
by Martin BURR, Barrister-at-Law
I am happy to say that (unlike the two previous speakers this afternoon) no-one has stolen my thunder. I am accustomed to being given the "graveyard slot" after the luncheon adjournment at the John Keble Conferences. I am unsure whether this is because my contribution is regarded as the least important or whether it is because my contribution is considered to be a particularly efficacious antidote to insomnia. I am also unsure whether my removal to the last slot in the afternoon (which I believe in the opera house is styled the overcoat slot) represents a demotion or is amenable to that veritable Christian principle, the first shall be last and the last first.1 Anyway, I am flattered not to be speaking to an empty room.
However that may be, this is s serious topic and must be treated accordingly. Is the possible legalisation of drugs a legal topic? This is perhaps the most crucial question with which this paper is concerned. The question is simple. The answer is not. The answer might at first blush seem to be simple, but in fact this is not so. There are a number of factors which are relevant to answering this question. Let us look at the more important ones.
THE FUNCTION OF THE LAWYER The task of the lawyer is to enforce the law as it is, and not to seek to enforce it as he or she thinks it ought to be. The judiciary too tend to take the view (officially at least) that law reform is a matter for Parliament and not for the courts: See eg Shaw v. DPP  A.C. 220 per Lord Reid. Also when W.S.Gilbert's Lord Chancellor in Iolanthe says of the law, "It has no kind of fault or flaw," he is at the same time making a joke and accurately reflecting legal theory.
This picture is correct in theory and theoretically in practice, but it oversimplifies. Whatever legal theory may be, I am sure no judge or lawyer these days would claim the status of Papal infallibility for the law. Also whatever lawyers do in court and in practice, they are often concerned with law reform in private. The Law Commissioner is mainly staffed by lawyers. There are a large number of lawyers in Parliament.
Whatever the strict theory may be, even the judiciary do in real life indulge in law reform, particularly in a common law jurisdiction such as England and Wales, as distinct from the Civil Law systems which are found on the Continent of Europe. Briefly the way in which the common law system works is that the law is to be found in decided cases (or precedents). These decisions of the courts can be overruled by a higher court or by Act of Parliament, but subject to that once a higher court has made a decision in a particular case, that decision constitutes a precedent and that precedent determines and declares what the law is. However, although in real life this is the judiciary making law, in strict theory the judges are merely declaring what the common law is and indeed what it always has been: cf eg Kleinwort Benson v. Lincoln City Council  U.K.H.L 38;  2 A.C. 349;  3 W.L.R. 1095. A particularly interesting example of this is the recent case in which the courts overturned a rule over 300 years old and held that a man might rape his own wife: Rv.R  1 A.C. 599 (overruling R.v. Lord Audley (1631) 3 St.Tr. 401).
The implications of this are, however, wider than the common law. The 18th century French philosopher, Montesquieu, following in the footsteps of the English philosophers, Locke, Berkeley and Hume, developed a theory called the separation of powers. Briefly this theory is that there are thee wings of government: (a) the legislature (which makes the laws - Parliament in the English system); (b) the executive (which runs the process of legislation - broadly the Cabinet in the English system); and (c) the judiciary (who interpret the law - the judges in the English and indeed in any other legal system). The theory is that each of these three wings must remain separate and none of them may dominate any of the others. The reason for this is to prevent tyranny and this is a theory which is still cherished by the European court of Human Rights by and others.
So there are very sound philosophical and theoretical reasons for not having lawyers too closely involved in questions of law reform, including the possible legalisation of certain types of drug. Having said that, where lawyers do have a major contribution to make is that they may be able to give first hand experience of how the law actually works in practice and where there is need to improve or streamline how it is working. They may also be able to make constructive comments on how proposed changes to the law are likely to work out in practice.
THE FUNCTION OF THE LAW ITSELF The relationship between the law and morals and whether the law should or should not enforce morals has been a matter of heated debate for many centuries and there have been eminent thinkers, both philosophers and jurisprudentialists (and even theologians), on either side of that debate. At one extreme there are those, such as Bentham, Austin and Hart, who think that there is no connection between the law and morals. At the other there are those, such as St Thomas Aquinas and the Roman orator, Cicero, who think that there is a necessary connection between the law and morals. Thinkers such as Fuller stand in the middle.2 Even Shakespeare considers such questions, for example in Measure for Measure.
A particular problem arises in a multicultural society such as exists in England to-day. If the law is there to enforce moral good, the question arises, Whose morality do we enforce? Catholic, Protestant, Jewish, Moslem, humanist, utilitarian or what? Do we allow each group to regulate itself - the Ottoman Empire came close to this? If one argues that because of this situation, then the logical position becomes that the law is only there to keep the peace and not to enforce morality.
One can argue as to whether the legalisation of certain types of drug is purely a matter of morals. Plainly if and in so far as it is likely to lead to breaches of the peace, it is not. Plainly if taking drugs is likely to lead directly to an increase in crime, the law has every reason to intervene. It also raises the question of how far it is the function of the law to protect people from themselves. Suicide used to be a crime (as Robin Oakapple in Gilbert & Sullivan's Ruddigore learned to his great advantage), but this is no longer so. Following on from that, there is the question of which drugs are to be legalised and just how dangerous (or otherwise) those drugs are to those who use them. Equally there is the question of how far the vulnerable members of our society (such as children) need to be protected from those who push drugs. Plainly that is not a mere matter of morals. It is important to note that while all these questions have major implications for whether or not the law should intervene, they are not themselves legal questions. They are medical questions. They are social questions. They are political questions. They are factual questions. But they are not legal questions.
It is interesting to note in this context that the Lawyers' Christian Fellowship has not taken up a particular stance on either side of this debate.
None of this is a matter of washing one's hands of what is without question a very important issue, but it is a matter of keeping things in perspective, not allowing emotive issues to cloud one's judgment, and of identifying with the necessary total clarity what the real questions are and in what arena they need to be debated.
WHAT IF THE LAW IS BEING FLOUTED? Where the law is being flouted, this is a matter of concern to everyone. It is certainly a matter of concern to lawyers. If the law is being openly and blatantly flouted, that brings the law itself into disrepute. Though philosophers may argue about the precise mechanics of this, the law is necessary to hold society together and to protect individuals. Therefore it is necessary for the law to command the respect of the populace. Plainly the potential adverse consequences of failing so to do are a threat to everyone. They are particularly so to lawyers, partly in their personal capacities as individuals, partly as a matter of professional pride, but (more importantly) partly because lawyers are particularly well placed to appreciate the gravity of the situation.
Where the real problem is that the police cannot cope, the question is whether it is better to change the law or to provide the police with more resources. This is a political question and not a legal one, though again lawyers may well be able to make a valuable and constructive contribution to the debate.
It is perfectly possible for serious moral and philosophical questions to arise, in very special situations, as to whether it is legitimate to flout the law, particularly where, for example, the law of the land conflicts with religious law. This question is a very ancient one and was considered, for example, by the ancient Greek tragedian Sophocles in his play Antigone. However, this is not so where the question is whether or not drugs should be legalised.
WHAT HAPPENS WHERE A CHANGE IN THE LAW IS NEEDED? As a matter of strict legal theory, the law remains what it is unless and until it has been changed. Equally the law should be obeyed again unless and until it has been changed. However, in practice here it is clear that the law needs to be changed, the judges do tend to make allowances.
An interesting possible example of this was in the 1970s, when various dockers were sent to prison for contempt of the National Industrial Relations Court: Churchman v. Joint Shop Stewards' Committee of Workers of the Port of London  1 W.L.R. 1094 (C.A.). After the dockers had been in prison for a time, the Solicitor General argued that they should be released as having purged their contempt and indeed they were released. The case is interesting for a number of reasons. The Labour opposition of the time were very vociferous in claiming that the Solicitor General was trying to extricate the then Conservative Government under Edward Heath from what they said was the folly of its own legislation. The tricky and delicate question is how far this was true. Certainly the release of the dockers from prison lowered the political temperature considerably, but the judicial processes by which this was done were in fact perfectly normal and regular. The Solicitor General does look into the cases of everyone who is committed to prison for contempt of court (not just dockers) and judges always release those so committed after a short period, because they do not like committing people for contempt in the first place.
There is another possible and interesting example of this in the 18th century. In the case of Rex v. Wilkes (1770) 10 Geo. 3 B.R. 2527, Lord Mansfield was dealing with an order for committal to prison, which caused a riot. When asked to discharge the injunction, the judgment of his fellow judge, Yates J., contained the robust maxim: "Fiat Justitia, ruat Cælum." ('Let Justice be done, even if the heavens fall'). He then went on to find some highly technical fault in the order, which provided him with a ground for discharging it and thereby quelling the riot. We can all see what he was doing and why he was doing it.
Like Lord Mansfield, Lord Denning, throughout his judicial career, was very keen on keeping the streams of justice pure.
There is another example of this, though in a slightly different vein. I do not know how many of you, like me, are sufficiently long in the tooth to remember the sad case of Isobell Barnett. She was a personality (call her an English eccentric, if you will)3, who fell foul of the law. She was prosecuted, and indeed convicted, for shoplifting from the local shop. Sadly the disgrace of conviction was too much for her, and she committed suicide. However, that is not the point of the story, nor is it the end of the story: well, as Christians, we all know that death is never the end of the story. I have it on very good anecdotal authority, that the local populace felt that Isobell Barnett should never have been prosecuted, much less convicted, probably because they considered that she was old and frail and that there were thus extenuating circumstances. Following the court case the local shop which had prosecuted her found that its trade diminished to such an extent that it was forced to close. This was not a judicial act, but it does show how deficiencies in the law can be remedied by extra-judicial means.
How does all this relate to the legalisation of certain drugs? It shows what the judiciary (and others) can do when the law needs to be changed or when things go wrong. In the case of drugs, there is not too much that the judges can do as the law is mainly regulated by Statute and not by common law. The judiciary could pass lighter sentences on offenders, or develop the law to make convictions more difficult to obtain, or they could interpret the law so as to steer it in the desired direction. However, the English judiciary do not like trespassing into the political arena and (as discussed earlier) the question of whether or not certain types of drug should be legalised is a political, not a legal, question.
CONCLUSION Perhaps the point which I would like to come across most strongly from this paper is that this is an issue on which lawyers have an important contribution to make, but it is not really at its heart a legal question. There are moral issues here, but whether or not the law should enforce morals, the key question must be what the consequences of legalising certain types of drug will be. I am sure we all agree on the desired end, if possible eliminating (but at least minimising) drug taking: the question is how best the achieve that end.
1. Cf St Mark, 9, 35.
2. Their opinions may profitably be summarised as follows:- (1) Bentham and Austin think that there is no necessary connection between the law and morality. This is an extreme positivist position. (2) Hart thinks that there is no necessary connection between the law and morality, but that morality influences the law over a period of time. This again is an extreme positivist position. (3) Fuller thinks that order, coherence and clarity have an affinity with goodness and morality. This is a position in the centre. (4) St Thomas Aquinas thinks that the law and morality are parallel to each other and that they are two ways of looking at the same rules. This is an extreme natural law position. (5) The Roman orator and jurisconsult, Cicero, thinks that there is a necessary connection between the law and morality. This again is an extreme natural law position.
3. Perhaps she mad many friends among the clergy: I do not know å- Just for the record that is a compliment!
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