From: ralf@ark.abg.sub.org (Ralf Stephan)
Newsgroups: alt.drugs
Subject: The Lubeck Lecture - Part 4
Date: 11 Aug 92 16:02
Organization: Private Coherent 3.2.1 site waiting for 4.0


First, I wanted to translate "Recht auf Rausch" to "The Right To Be High",
but now I think that "The Right To Be Intoxicated" is more precise and
objective. Anyway, this part is most interesting - it is startling that
a court is able to draw such (correct) liberal conclusions.

---------------------------------------------------

               Consequences for the constitutional law
               =======================================

  With respect to all above stated factors of effects of alcohol on one
  side and of cannabis on the other, the court is convinced that, from
  the constitutional view, there is no objective and clear reason to
  punish the commerce and use of cannabis products and to let the same
  of alcohol be unpunished.  To keep up this unrealistic differentiation
  would disregard the fundamental concepts of justice in the society [ref].
  [...]

      Application of the "Principle Of Equality" to the criminal law
      --------------------------------------------------------------

  It has to be considered separately that the here discovered - and from
  view of the court, arbitrary - differentiation is handled with punishment
  at all.  The freedom that comes from the Principle Of Equality is narrowed
  additionally if a differentiation is enforced by the strongest means of
  governmental sanctions [ref].  Criminal law should be the "ultima ratio"
  in the legislator's toolbox. He may only use it carefully and reservedly
  [ref].  Therefore from the constitutional view, a particularly severe
  standard should be applied to the reasons that move the legislator to
  differentiation and unequal treatment. Hereby the legislator is demanded
  to check consecutively his forecasts he made at law creation and to
  adapt the once won understanding to newer knowledge [ref].  Because of
  the statements the experts made and with which the court agrees, the
  estimates, appraisals, and forecasts, on which the legislator first based
  the punishment of cannabis users, can no longer be supported.


             The decision of the Supreme Court (17-Dec-1969)
             --------------------------------------------------

[In 1969 the SC decided against cannabis. It stated:]

  "The legislator does not essentially treat equal things unequally when
   he confines himself to prevent the upcoming of narcotics from foreign
   cultures, as long as it is not definitely certain that the risks for
   health and society are not greater than those of alcohol abuse."

  The Supreme Court obviously proceeded from that it is not definitely
  certain that the dangers of cannabis [...] are equal to those of alcohol.
  Regarding the knowledge the court has won, such a position can no longer
  be justified. The statements the court has made prove that the health and
  social dangers connected with hashish use have to be classified as far
  smaller than those connected with alcohol use (likewise the Swiss Supreme
  Court). These statements lead, when one looks at the 1969 decision, to
  a violation of the Principle Of Equality.


                "No equal treatment within unjustice"
                -------------------------------------

  Finally, a violation of the Principle Of Equality cannot be negated with
  the indication that there should be "no equal treatment within unjustice".
  In the constitutional sense, it is not "unjust" if the legislator renounces
  to control commerce and use of alcohol by the means of the criminal law.
  This cannot be criticized constitutionally. So it cannot be argumented
  - from a constitutional view - that, if the legislator "accepts" such a
  dangerous drug as alcohol, he is not forced to "accept" further dangerous
  drugs as well. In politics, it is possible to argument that way.
  Constitutionally, the Principle Of Equality puts limits to the political
  possibilities of the legislator. These limits are violated regarding
  the above explanations about the case.



        Violation of The Freedom Of Development Of The Individuality
        ============================================================

  The punishment of the commerce of cannabis for the use by the owner is
  incompatible with GG 2.1.  GG 2.1 protects free development of the
  individuality.


  "The Right To Be Intoxicated" as a central part of human self-determination
  ---------------------------------------------------------------------------

  It is a basic part of human self-determination, which is protected by GG 2.1,
  that one can decide responsibly, what food, semi-luxuries, or intoxicands
  the citizen can have. Intoxicands are inseparably connected with human
  history. They are as old as the human race. Drugs are known to the cultural
  human for millenniums. Wild plants like coca, hemp, or poppy were domesti-
  cized to cultural plants. In the times of early high cultures it already
  was differentiated between plant drugs, animal drugs and mineral drugs.
  According to effects and application they were associated with medicaments,
  spices, flavors, or reeking. In Greek and Roman times there were efforts
  to take under control the lucrative drug trade [ref].  History of drugs
  proves also that humans, though the use of drugs caused important social
  and individual problems, could not or did not want do renounce the use.
  "Whatever causes the oblivion of every-day life, they imbibed it." [ref].
  Therefore intoxication belongs, like eating, drinking, and sex, to the
  fundamental human needs.  The more technicized, faster or functional a
  society is built, the stronger is the need to break out of this encircle-
  ment. In a consumers society - like the ours - the wish for intoxication
  is a consequence of the social bindings and possibilities.  The intoxication
  is a means to escape social forces and to find refuge in the high.

  Therefore the court has the understanding that "The Right to Be Intoxicated"
  is protected by GG 2.1 as a central part of human self-determination.

-------------------------------------

Coming up next: The Right To Be Intoxicated and self-damaging, proportionality
and more...

--ralf
-- "... a particularly severe standard should be applied to the reasons that
   move the legislator to differentiation and unequal treatment. Hereby the
   legislator is demanded to check consecutively his forecasts he made at
   law creation and to adapt the once won understanding to newer knowledge."
                                              (From The Lubeck Sentence)