Cannabis isn't just a pet peeve. At the time of writing, only a handful
of countries around the world do not criminalise it. So naturally it raises
that favourite issue - "The Rule of Law". In no country where it
has been labelled as criminal has that criminality ever been put even
to the limited democratic tests currently available. And even if it were,
and even if it passed such tests, I for one would still be advocating
any and all non-violent methods of destroying such a law. As I would for
laws forbidding atheism, eating meat, reading books, masturbation, climbing
mountains, consensual sex, being out on the streets after dark,
homosexuality, singing in the bath or even - despite my distaste for it
- religion. All these issues - and thousands of others you can no doubt
think of yourself - belong to a class of behaviour in which the democratic
constituency consists only of those directly involved in the activity
at the time. This, folks, is where Government has lost the plot. They
are all, after all, so fond of telling us that they are our servants -
not our masters.
Neither Government nor Society itself has any mandate to regulate or
even observe our private behaviour. If that isn't an SBO, then I can't
imagine what is!
Such examples form a line, as it were, beyond which no rational case
can be made for society to step - either in the shape of "the Law" or
any other form of social pressure to conform. How this principle, when
eventually widely understood and accepted, will be spelt out in a constitution
I cannot foresee, although the Constitution of the USA ought to provide
some guidance both in terms of how to spell out the principles and an
object lesson in how merely getting some of the principles right doesn't
offer serious protection. The citizenry of that country have one of the
most liberal constitutions on the planet but the successive ruling elites
have long since destroyed many of the protections built in to it.
The clear line of distinction must be made on the basis, as we discussed
in Chapter 8,
of a) who is directly involved and b) how that involvment is determined
for any particular case. I would argue that the starting point must always
be that until or unless any given behaviour can be shown to directly
effect a third party (or even a second come to that!), then the assumption
must be that there is no such third party interest and thus that the behaviour
is not appropriate for regulation by the social decision making process.
It is also clear to me that there will be different degrees of third
party involvement which would justify different levels of social control
of the behaviour. For example, tobacco smoking is not only harmful to
the smoker but, to a lesser degree, individuals in the vicinity of the
smoker. This gives non smokers a reasonable basis for controlling the
smoker's behaviour in their presence. It does not give them any
grounds for control over his behaviour at other times. However, it is
also the case that the damage smokers cause themselves is extremely costly
to society, particularly in medical terms. On this basis, society can
reasonably demand that the smoker should pay the full costs of his habit
into the social fund.
Neither of these positions is controversial, nor significantly different
to what already happens. Smokers are increasingly restricted to smoking
alone or in the presence of other smokers and they already pay considerably
more than the cost of their health care through the very high taxes placed
on tobacco sales. (more so here in Europe with almost universal socialised
medicine than the US, but as individuals there often have to pay their
own health costs in any case, further heavy taxation for that purpose
might be a trifle unjust!) In fact, smokers in the UK pay more than 1600%
of the cost of their subsequent care bills! Indeed, the treasury must
have nightmares about what would happen if Britons gave up smoking in
droves. Income and other taxes would have to rise by around 2%. The smoker
is actually subsidising the rest of us. And killing himself into the bargain.
So next time you see one or more of these tragic nicotine addicts, go
up to him or her, shake them warmly by the hand and thank them for their
social contribution and selfless altruism.
Essentially the current social policy on smoking is - with a proviso
about only charging the actual cost and not grossly profiteering - a pretty
good model for any other behaviour which, though essentially individual,
has a social impact. Society can reasonably insist that our individual
behaviour shouldn't cost them anything and shouldn't, under, any circumstances
make other - non consenting - individuals directly suffer in any
In case you hadn't guessed, this word directly really is crucial.
Lets return, for a moment, to the female circumcision case. I am not,
apparently, directly involved - yet I argue that we could validly
interfere, at least to the extent of taking part in a debate on whether
or not it should be permitted. Is this a double standard I am trying to
exercise here? No. The vital difference is that with female circumcision,
we are talking about whether or not we should let an adult mutilate a
child. The child, like any other child in a relationship with adults,
will have no way of affecting the decision, and isn't even aware of the
implications of what is happening to her. We are, in this case, acting
on behalf of a potential victim who is not in a position to defend herself.
In fact this is entirely consistent with what I said a few paragraphs
ago. - until or unless any given behaviour can be shown to directly
effect a third party, then the assumption must be that there is no such
third party interest and thus that the behaviour is not appropriate for
regulation by the social decision making process.
The behaviour in this case, is the circumcision carried out by
adults. The victim is the girl being mutilated. Clearly, in this case
there is very much a "third party" affected by the behaviour and this
is what justifies Social intervention.
No such case can be made for the lone smoker, the drinker, the masturbator,
the atheist, etc etc. Their behaviour can be conducted in such a way that
either no other individual is directly involved or, those that are involved
are involved with informed consent. The mere fact that some religious
fundamentalist is offended by my atheism gives him no more right to interfere
with my behaviour than my opposition to his religion gives me the right
to stop him practising it - much as he or I might dearly like to be able
to justify such intervention.
In other words, simply disapproving of someone's behaviour isn't sufficient
grounds for Social intervention. You must be able to show a direct and
unwanted negative consequence of that behaviour on an unwilling third
party. And that consequence must be something "material". It must, for
example, physically prevent the third party from doing something they
want to do, or, physically force them to do something they do not want
to do. Or it must force them to be an unwilling "first hand" witness to
such offending behaviour.
I would be committing an offence, in this context, for instance, if I
was to storm into a church and start ranting and raving about the nonsense
inherent in religion. This would be "forcing" the unwilling third parties
to be exposed to my behaviour. They would be fully entitled - as far as
I'm concerned - to take whatever measures were necessary to evict me from
the church. Similarly, if they invade my territory and insist on trying
to preach the word of god after I've made it plain that I do not want
to hear it, then I too have the right to take whatever measures are appropriate
to evict them.
I would have the same right to evict anyone else who tried, in my own
home, to prevent me masturbating, smoking cannabis, drinking or whatever.
That should, I hope, give a clearer idea of how and where we draw the
line based on direct involvement. How we will spell out the consequences
of that in formal constitutional terms I leave to the legal wordsmiths.
Lets just make damn sure that they get the principles right.
Something along these lines would seem appropriate:
1. The sole legitimate function or purpose of the Law is to regulate
interactions between people in order to settle disputes, to prevent
such disputes arising or to prevent individuals being deprived of their
own freedom of action by the actions of others. (Thus no Law is valid
if and when it seeks to regulate private behaviour)
2. No Law is valid unless it has been democratically approved.
3. At any time, following an appropriate procedure (eg a petition with
sufficient signatures), the people can amend or discard any Law
Private behaviour, in this context, is defined as behaviour affecting
only the individual acting out the behaviour or, if more than one individual
is concerned, ALL those affected must be capable of showing their informed
consent. It should, where practical, also be carried out in a private
location, or at least a location where it is reasonable in the circumstances
to assume that no objecting third parties will be present.
Informed consent: Informed means being able to demonstrate
- if necessary - that the individual is broadly aware of the facts.
The Facts are any relevant scientific consensus regarding the
possible consequences of their actions. They are to be defined by expert
witnesses - not by politicians or lawyers. The facts also include details
of any material cost incurred.
Consent means, in this context, that, armed with that awareness,
and without any evidence of coercion, the individual is freely able to
confirm their desire to proceed with the relevant behaviour.
If private behaviour has any unwanted material effects beyond
the group of consenting individuals, then those outside the group who
are subjected to such effects have a legitimate complaint and can seek
to regulate such behaviour including invoking any relevant Law or by seeking
to persuade their fellow citizens of the need create a new Law. We can
also anticipate that in cases (like female circumcision) where the unwilling
victim is unable to defend or even speak for themselves, that society
will seek to intervene on their behalf and introduce laws which prevent
such abuse even without requests from the victims for such protection.
Unwanted Material effect can be defined as a consequence of the
behaviour which interferes with the ability of the third party to exercise
their own freedom of action. It specifically excludes mere disapproval
of the behaviour arising from knowledge that the behaviour is going on.
However, being unable to avoid witnessing the offending behaviour MAY
be considered as an unwanted material effect. (if, for example, the obligation
to seek a private location has not been met)
Democratic Approval means a majority of the relevant electorate
are in favour of the policy or Law.
and the Relevant Electorate are those affected by the decision.
(as discussed in detail here and in earlier chapters)
So now, you might insist, what about "the Rule of Law?"
And once again I respond to the question with another question: "Which
If you mean Laws created as outlined above my answer is that, as a participating
member of a democracy, it is probably advisable to take heed of such Laws
in deciding your own actions. The chances are that you will agree with
most of them anyway so they don't raise any significant issues. The few
you disagree with may or may not be a severe constraint on your freedom
of action. Ultimately, though, only you can judge the importance of a
particular Law and the way it affects you. If you feel the effect is so
serious that breaking the law is necessary then all I can advise is to
proceed with extreme caution and try very hard not to get caught. I can
and will not say that you are "wrong" in any way to break the Law as this
is a moral judgement, and morally, the Law itself may be "wrong". Just
because it represents - in this scenario - the "will of the people" doesn't
mean it has to be "right". Indeed, if the system I advocate were introduced
today, we can be pretty sure that many of the Laws created, at least initially,
would be no more liberal, perhaps even less so, than many currently in
place. So the case for trying to stay within such laws (or any, come to
that) is not in any way a "moral" case - merely a pragmatic one. If you
don't stay within the law you can expect society to react with its enforcement
procedures and those may be worse for you than simply accepting the restrictions
required by the Law.
When it comes to obeying the Laws currently in place my advice is slightly
different. Yes, for pragmatic reasons, it may still be advisable to accept
the restraints of existing Laws for the simple reason that you are outgunned
and, so far, outnumbered. Again, though, if you do find it necessary
to step outside existing Laws then do your best not to get caught. However,
with existing Laws, many of which would fail to meet any of the criteria
above, if you do get caught and prosecuted, you have a third option. You
can try to challenge the Law, regardless of the facts of the case
(i.e. even if you are obviously "guilty" as defined by their Law), by
persuading the Jury to use its powers of Jury Nullification.
Remarkably few potential jurors know of or understand the full extent
of the powers still invested in the Jury system. Moreover, the judges
and lawmakers haven't exactly gone out of their way to educate us. Intriguingly,
the Labour Government has recently announced its desire to ensure that
all secondary school pupils are taught "civics" - their rights and duties
as citizens. It will be interesting to see if the resulting curriculum
even touches on this most fundamental of citizen rights.
In short, Jury Nullification can cancel ANY law for no other reason than
one or more jurors holds the Law to be unreasonable! (unless the judge
has indicated he'll accept a majority verdict, in which case you may need
3, 4 or sometimes an actual majority of jurors) I'm not joking!
A Jury really does have this power. Hear these extracts from an essay
by Robert Anton Wilson in 1984: (emphasis mine)
In a once popular formulation, the doctrine of Jury Nullification
holds that "a jury may judge the law as well as the facts in the case."
Since Magna Carta this has been repeatedly upheld by courts in both England
and America, only occasionally denied by lower, and currently remains
the law of both countries, although judges have no legal obligations
to inform juries that they possess this right.
If you are still in any doubt, check out this link to the Fully
Informed Jury Association, (from where you can link to dozens of other
relevant sites) or even ask a lawyer!
As Lord Denman wrote (in O'Connel vs. Rex, 1884): "Every jury in
the land is tampered with and falsely instructed by the judge when it
is told that it must accept as the law that which has been given to
them, or that they must bring in a certain verdict, or that they can
decide only the facts of the case."
In the landmark William Penn case in England in the 1670's, the State
proved beyond doubt that Penn "was guilty"; i.e. he did consciously
and deliberately violate the law by preaching in a public street a religion
not that of the Anglican Church. The jury refused to convict, finding
religious persecutions repugnant. The judge, in a fury, confined them
to the Tower of London until they would agree to convict. After those
twelve ordinary unheroic Englishmen had served enough time in the Tower,
public opinion forced the judge to reverse himself and admit the
jury had the right to decide the law as well as the facts. And that,
children, is how religious liberty came to birth in the modern world
after 200 years of bloody religious wars: 12 simple men who felt
sick and tired of religious bigotry and refused to enforce an intolerant
Did you know that you had this power when sitting on a jury? I
certainly didn't. In the early 1980s I served as chairman of a jury and
no one explained our rights and none of us knew them. We were half way
through a case featuring a fairly trivial theft (of a bicycle) and up
to that point we were all inclined to dismiss on the grounds that the
police had simply not presented unequivocal evidence that the defendant
had committed the crime. Without any kind of explanation, we were suddenly
informed by the judge that the defendant had changed his plea and we were
"instructed" to find him guilty. To this day I do not know if - as chairman
- I had any choice in the matter. I'm ashamed to admit I "just followed
orders". It would appear that I may have had the right to say "hang on
yer honour, we don't actually think he's guilty" (although I suspect that
the change of plea would be a bit of an obstacle!)
If you'll pardon my self indulgence in returning to the Cannabis case
for a moment, can you imagine what will happen when Cannabis users - as
a classic example of invalid Law - start using this approach in the courts?
What I have in mind is that we create a "Cannabis Declaration"
or "Manifesto of the Marijuana Movement" or something like that with an
appropriately snappy title.
This spells out not only the case for repealing prohibition but also
the tactics we need to employ to achieve this end. Amongst other tactics
we will include a passage on Jury Nullification spelling out in at least
as much detail as I have here, just how far that power extends and how
ANY juror is free to exercise a completely unrestrained option to reject
bad law by casting a not guilty verdict.
We then advise all future cannabis hostages that on arrest, and having
been "mirandad" the only statement they make to the police, is that "to
understand my actions you must read the Manifesto of the Marijuana Movement".
Now - I am not a legal expert. That may not be the optimum form of words.
I'm sure the legal eagles will improve on it - and perhaps the exact "post
arrest game plan".
The object is to leave the court with no option but to allow the jury
to read the Manifesto as it is the only item of evidence the defendant
will offer to the court.
If we can achieve that - then eventually we are going to hit paydirt.
Possibly even the first such trial. When that shit hits the fan, the opposition
will go absolutely Ape!
You will see attempts to ban trial by jury for drug defendants. You will
see attempts to get a constitutional amendment to end jury nullification.
In the process, most of the adult population will get to hear about it
and many will even read it. Where it goes from there - who knows? But
I've got a good feeling that if we could get that ball rolling, we might
well get a lucky strike...
I have drafted a document which attempts to do the job. Here
A number of precedents for such action have occurred in recent years,
most frequently in cases of Euthanasia, where Juries, on hearing the details
of the cases have decided that although the Doctors involved have been
technically in breach of the Law, their motives and rationale have been
far more humane than the Law. They have been acquitted so regularly that
the Police (in the UK at least) are now officially reluctant to prosecute
such cases. Most recently you may remember the case of David
Perhaps the most famous UK example in the second half of the twentieth
century at least was the case of Clive Ponting - the whistle
blowing Senior Civi Servant who breached the Official Secrets Act by revealing
details showing that Conservative ministers had misled the Commons about
the sinking of the Belgrano during the Falklands war (yes it was sailing
away from the Islands at the time it was attacked). Despite his
confession in open court, the jury acquitted him unanimously - presumably
having decided the Law was grossly unreasonable. We have to say "presumably"
because the deliberations of the jury room are sacrosanct. No-one, not
even the judges, (ESPECIALLY not the judges!) is allowed to question what
went on in the Jury room.
The business of "The Law" is very straighforwardly defined as those socially
(i.e. democratically) agreed rules which have the sole purpose of regulating
the interactions between people. Period. Where behaviour does not
involve interaction (other than with informed consenting individuals)
the Law simply has no place.
And this is not some new axiom I'm trying to lay down. It simply a consequence
of all the steps we have taken up to now. If anyone disputes that,
point out my errors and I'll redraft accordingly.
Having arrived at this position, problems with existing Laws become glaringly
obvious. Most alarmingly, present social Laws cross the personal barrier
as if it wasn't there. The last chapter dwelt heavily on a classic example
of that. Society has no case, whatsoever, for regulating my desire to
smoke cannabis. It is reasonable for Society, if it is concerned at possible
third party harm, to insist that I don't smoke it in the presence of non
consenting individuals. If they can show that my use of cannabis is likely,
later on, to invoke social costs through additional health care burdens,
then it is reasonable for Society to ask me to provide for such costs.
If they can show that my use of cannabis impairs my ability to operate
heavy machinery in the workplace, or makes my driving more dangerous,
then they can reasonably insist that I don't drive or operate such machinery
while under the influence of the drug. But under no circumstances can
they justify telling me that I can't smoke it in my own home under conditions
which cannot possibly harm any other party. EVEN IF THEY COULD SHOW THAT
IT HARMED ME.
One last trip back to female circumcision to ram this point home. We
all accept that it is reasonable to prevent adults mutilating children.
However - if an adult woman, for whatever bizarre reason, freely sought
such mutilation, then there is no basis on which we could refuse her that
choice. She may find it difficult finding someone to perform the task
and she may even have to be prepared to mutilate herself. None of our
business. It would be difficult to justify intervention even if we were
inclined to judge her insane. Unless that insanity clearly manifested
itself in a number of other areas and a number of relevant independent
reputable expert witnesses could persuade us that her overall behaviour
was clinically insane then no such intervention could be condoned. Anything
less than that and you leave a huge loophole for the "controlling tendencies"
to grab back the territory of personal privacy. Like the old style Soviet
regime, they would simply define any individual behaviour of which they
did not approve as insane and thus justify, once more, their social intervention.
This is clearly the area where the wordsmiths will have to take most care.
All I can do here is highlight the danger areas. It is for others to erect
the safety barriers.
More topically two recent cases in the UK are screaming out for Jury
Nullification as I write. Tony
Martin is an obvious candidate. A lone farmer, defending his property
against 3 burglars of unknown disposition and weaponry, shot dead one
of the criminals. He's being charged with murder. The Jury can tell the
world, and all the burglars in it, that we don't think its a crime to
kill people invading our territory with such clear hostile intent. Once
the state has manifestly failed to protect us, we must retain the right
to simple self defence. And there are circumstances when we can
only effectively and sensibly defend ourselves by killing the attacker.
There will indeed be times when our actions are greater than, with hindsight,
may be judged "necessary". But that is acceptable because in this situation
the balance of consideration must rest with the person under attack and
not the attacker. In fact, it is in the interests of society at large
for the potential attackers to be fully aware that his victims have no
legal limits to the actions they can take in resisting their menace, whereas
nothing excuses any element of the attacker's behaviour.
Some argue that if we "up the ante" in this fashion, then "mere" petty
burglars would become more inclined to carry guns to protect themselves
and would also be more inclined to use them. I'd accept that those who
still felt inclined to burgle property might indeed react that way. But
I also suspect that there would be a drastic reduction in the numbers
of those prepared to burgle! Now whether the one would outweigh the other
is a very difficult social decision. Would we think one extra murder of
a defenceless householder was a fair exchange for 10,000 less burglaries?
I think we might. But what if it was only 10 less? hmmm...
It is a classic example of an issue that can only sensibly be decided
by genuine democratic consultation. But until we get to that utopian ideal,
all we've got is the jury - the one element of democracy enshrined in
the legal system. Ferchrissakes don't ever let us lose it. And more important,
don't forget to use it!
The other high profile case ripe for the Jury Nullification treatment
is the forthcoming trial of Lord Melchett, Director of Greenpeace, currently
bailed on a charge of destroying the crops in a Genetic Modification field
experiment. If ever there was an action clearly reflecting the democratic
consensus it is the destruction carried out by the GM activists. As it
happens, I disapprove of their actions in the purely academic sense that
I think their fears are exaggerated and misplaced. That, however, is utterly
irrelevant. The plain truth is demonstrated by the panic of the supermarkets
to be able to guarantee that their produce is unsullied by GM ingredients.
Asda, Tesco et al are not democrats by any stretch! But they do know that
they'll go out of business if they don't give the customer what s/he wants.
And their rush to be GM free is huge economic evidence of the views of
the UK consumer (and, increasingly, the European and US consumers).
So what Greenpeace, Friends of the Earth etc are doing is correcting
the democratic deficit in that the Government, without consulting the
people, gave permission for these trials to go ahead. For that reason
alone, Greenpeace's activities are likely to be more democratic than the
Government (i.e. they have greater popular support), and the Jury can
thus use their authority to make that point clear, not just to this Government
(which, in any case, is merely continuing the undemocratic precedent set
by its predecessors), but to ALL governments.
By the bye... Just checking on Melchett's name on the Web (now whoda
thought we'd ever be accusing a hereditary lord of being more democratic
than a landslide elected Labour Government?!!) and found this
site dedicated to the cause for anyone interested in joining in or
supporting the action. Then there was this self appointed 'media
watch' site with a somewhat more sceptical approach to their activities.
Judge them for yourselves. I do feel bound to respond to one argument
on the media watch site which was put as follows:
A particularly articulate leader in the Financial Times is indicative
of a media shift towards a more sceptical appraisal of activists' methods
and motives: "[their] violation of property rights is not a blow for
freedom, but an arrogant attack on a tenet of civilised society by a
minority group that represents only its own members." These pressure
groups continue to recycle the assertion, eloquently exemplified by
Andrew Wood of Genetix Snowball, that "the public has made it quite
clear that they do not want GM crops and there is no need for these
tests", but the refusal to allow such testing is finally meeting with
accusations of being undemocratic. Roger Turner, head of the British
Plant Breeders Association, said on Radio 4's Today programme that their
campaigns for direct action suggested that "the environmentalists had
lost the argument".
What does nonsense like this really tell us? The stentorian bellow of
"minority group that represents only its own members" is "progressive"
in at least this sense: The FT - and thus, we can presume, the elite their
readership represents - fully understands that we can only, in the modern
world, justify our actions if they meet with democratic approval. This
is why they consider it so impartant to try to paint the actions of the
protestors as unrepresentative. This approach contains within it the implicit
acknowledgement that if we can conclusively demonstrate that the majority
of our society is on the Greenpeace side of the argument, then there is
no further need for debate. The plants must be ripped up. Now if the representatives
of the ruling elite are so confident that Greenpeace only represents a
minority, they could quite easily settle the issue once and for all. Don't
just talk the talk boys, you gotta Walk the Walk. Campaign for a democratic
decision. Put it to the vote. Lets have a referendum on the question.
The government is already committed to a referendum on the Euro and I
would bet a months wages that, given a free choice, most people
will conclude that what they eat is a damn sight more important than how
they pay for it! So put up or shut up. Let the people decide.
Of course, there is not much danger of "Media Watch" or the Financial
Times campaigning for the people to be allowed to make a real democratic
decision. Now why do you suppose that is?
And as for the asinine comments ascribed to Roger Turner, the assertion
that direct action suggested that "the environmentalists had lost the
argument" might be pertinent when applied to the pro Indonesian Militia
in East Timor but hardly to the GM activists. In East Timor we KNOW that
80% of the population actually wanted independance. They voted for it
in the most spectactular turnout for a democratic plebiscite ever witnessed
- and they did so under the most hostile and intimidatory conditions you
can imagine. We know that the militia had very clearly lost the argument.
But what even remotely similar evidence has Roger Turner seen which persuades
him that the GM activists have lost the argument? And don't forget, here,
that I'm actually on Roger's side (in the sense that, for scientific
reasons I think the trials should go ahead - albeit in a modified and
somewhat more sensitively handled form - and that the public fears result
largely from a lack of understanding of the science) but frankly, I feel
that we - those who wish to see the trials continue - we're the
ones who have lost the argument here. The public is very very clearly
hostile to the current policy on GM crops. On that basis alone, as a democrat,
I have to accept that they should not be continuing - until or unless
there is an explicit democratic decision to allow such trials.
Now you may argue that the response of the Supermarkets, the opinion
polls and mere anecdotal evidence does not constitute a sufficient basis
for my assessment of the current democratic consensus. I may even accept
that argument. But the logic of that is, if we intend to argue about the
implementation of a policy on the basis of whether or not it commands
public support, then we are obliged to seek a more informed assessment
of where that support lies, not simply to trade guesses. Why? Because,
whatever that democratic consensus turns out to be, our public policy
has no business being anything less than 100% in line with it. And
whereas assessing public opinion used to be a massively expensive and
time consuming project which (almost) justified the extreme infrequency
of our plebiscites, the technology now exists to allow such consultation
on a much more routine basis. If you're reading this, then you are using
that technology right now! I know its a novel concept, but get used to
it. Don't hold your breath by any means, because there are one or two
"i"s to dot and "t"s to cross. But Democracy is on its way. Any
(First Draft - 3 May '99)
(Revised 29 Sept '99)