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Articles - Law and treaties
Written by Lorenz Böllinger   


Lorenz Böllinger




It is more than 70 years since the use of certain drugs was first criminalized in Germany. After a series of harsh intensification's of illicit drug control during the past 20 years and on the eve of yet another wave of drug repression associated with the lifting of European borders in 1993 it is high time to stop and reflect. What are the apparent and underlying reasons for continuing the intensification of drug controls in spite of their evident failure? I will approach this question by looking at drug policy in it s international context and then analyzing it under theoretical aspects: the functions and "hidden curriculum" of drug policy and social science hypotheses to explain them.

1. European Drug Policy

1.1. Development of Drug Policy in Europe

The development of drug policy in Western Europe is very diverse so far. While the theoretical extremes of total prohibition on one side and uninhibited legalization on the other do not exist there is indeed a wide spectrum of practical emphasis leaning to either pole. But due to the European unification process there is going to be increasing pressure to homogenize the drug control system (along with many others). All visible drug control systems practice formal criminalization in dealing with illicit drugs. At the same time they employ various practices of more or less formal or at least de facto de-penalization or de-criminalization, usually in combination with some kind of treatment compensation of users.

In some countries consumers and small-scale user/dealers are being largely decriminalized while traffickers of "hard" drugs are heavily criminalized. Treatment and other social compensation measures are usually optional and available to a variable extent. In Germany treatment is practically forced as there is only the option between prison and therapy. Also in some countries (GB, The Netherlands, Switzerland, Spain) there is almost total de facto de-criminalization of Cannabis use.

The Dutch approach is especially worth mentioning as it poses a tricky combination strategy: separating drug traffic and consumer systems by differential criminalization: tough enforcement of illicit trade, transport and production; relatively stringent enforcement of heroin possession of quantities beyond one months supply; less stringent enforcement of cocaine trade; defacto decriminalization of possession of heroin up to one month's supply and of small-scale trade and use of cannabis as well as some synthetic drugs.

Germany alone practices a dual system of harsh repression and an "accepting" drug policy. The repression includes determinant sentences, prison detention, even including the cannabis consumer. Probation and parole are only given under the condition of a "voluntary consent" to undergo a long term treatment program in specialised drug free programs. That means at least 9 months of confinement in remotely located, closed institutions. In fact this represents a system of forced therapy.

The draconian repression in Germany is at present being softened a little as a new non-repressive "paradigm" of drug control is on the advance: so called "Accepting Drug Policy". It implies, in the short run, that low threshold approaches that do not require total abstinence are being applied in any kind of counseling, therapy or social measures. This acceptance-paradigm is easily gobbled up by the traditional drug control system: In order to facilitate the approach to the user while still insisting on abstinence - only with "softer" methods. It also results in net-widening and a more profound system and profession involved in behavior control. An important force in the policy making process is now constituted by the lobby of an influential "treatment industry" and the tens of thousands of jobholders in that field (social workers, psychologists, doctors etc.).

In March 1994 a decision of the Supreme Constitutional Court called for a more stringent implementation of existing decriminalization rules pertaining to cannabis users. Beyond its very limited legal content this verdict has had a immense symbolic impact on the German drug policy discourse in the direction of generally accepting drug use.

1.2. Supra-national developments in Europe pertaining to drug control

Two main features signify the development of the present international system of illicit drug control: 1) The transition from an economic to a moralistic paradigm, serving functions of generalized social control;

2) The internationalization and centralization of drug control, first under US hegemony then by the UN drug control system, with the US continuing to dominate. Most recent is the attempt of homogenizing European diversity in the European Union (EU) integration process, thus establishing US standards against liberalist tendencies.

The slow but seemingly irresistible process of merging national states within the EU has already been paralleled and even strongly surpassed by transnationalizing and establishing new institutions of social control. This pertains mainly to the police, which receives a dramatic increase in resources and takes on even more clandestine forms and methods.

The most striking feature is that all of this development has taken place and keeps on taking place virtually without democratic legitimization: there has been no conscious, visible public process of formulation either of political or constitutional aims and values. Or of constitutionally sound ways and means to implement these aims and values. There has been no debate in the public, in the media or in parliament. Subsequently there is no parliamentary/judicial control of these activities either, and public opinion is largely unaware of what is taking place. This incidentally holds true for much of the EU administrative processes. There is a politically dangerous lag and parliamentarism and judiciary vacuum. There is also a lack of awareness and control by the media. All this undoubtedly has adverse effects on democratic systems. These dangers are enhanced as drug control resorts more and more to the cryptic and largely uncontrollable methods of nationally and internationally operating secret services, which reflect the very structures of the drug Mafia's they are meant to combat.

2. Analysis of Factual Drug Control Structures

There is no such thing as an homogeneous "European Drug Policy" yet. Maybe it will never exist in the sense of a single and efficient concept and practice. Factually there is only a process of "slowly growing together" with a lot of particularism remaining. The more centralism and bureaucracy there is - the more chaos and dysfunctionality is going to come out of it. So maybe one shouldn't dramatize. Looking at it superficially one could also argue - as some conservatives do - that too much homogenization weakens national autonomy and identity, or - as some liberal pragmatists do - necessitates enforcement, causes disorder by resistance of particular interests, groups, life-styles, ethnic substructures and thus counteracts integrative social concepts.

I believe, however, that these reflections do not aim at the core of the phenomenon of an empirically counterproductive drug policy. The logic of the existing drug policy is not (and this is my thesis) an approach to eliminate drug use. It's logic is rather a high degree of symbolism which is being used for purposes of social control. I'll try to analyze this on a more fundamental level incorporating social, socio-legal and socio-psychological theory.

As a first step the etiology and function of factual structures have to be analyzed. As a second step rd like to resort to fundamental German legal and constitutional theory in order to lay foundations for a new orientation of drug policy.

We have - throughout our discussion - to differentiate between "law in the books" and "law in action". As far as "law in the books", law in theory is concerned, we obey a law instituting a certain drug policy largely consistent with the US and UN drug policy. We are dealing with a distinct dualism of criminalization/repression for producers and traffickers; and relative depenalization/decriminalization/treatment of users.

But we have to look for an underlying informal "second code" which appears in law enforcement practice. We should first take a look at the behavioral side of drug use and why the law is systematically mistaken. We shall then take the interactionist perspective and look at the social reaction system in order to advance toward the assumed underlying reasons.

2.1 Behavioral aspects

The drug problem is not simplistically reducible to drug as the singular cause. We are dealing in reality with a multi-factorial, interactive process which leads to the observable state of a death-ridden and wayward junkie. It is - in the sociological sense - a career of dynamic interactions between primary individual disposition, system of differential opportunities, system of societal reactions and individual coping with social reaction, all that within the framework of a given cultural system.

It is beyond doubt that some addictive drugs may cause harm. But they do not have to invariably. Whether they do or not depends entirely on the way they are being consumed: it is the quality, the dose, individual disposition, social and situative surrounding as well as the consumption modality which account for different outcomes.

Repressive drug enforcement as practiced in Germany fails for systematic reasons to reduce the risks inherent in some drugs. Negative highlights are the following:

  • Prohibition causes a black-market and extremely high prices which in turn causes secondary criminality and dissocial development.
  • Law enforcement officially aims at dangerous dealers and Organized Crime. In reality users and small dealers who are dealing to finance their consumption are being caught.
  • Contrary to the official legal program repression dominates by far over compensation: about 50% of the prison population of 60.000 is confined for drug or drug related offenses. Drug users and HIV infected persons evidently suffer much more severely from confinement than other categories of prisoners.
  • Prisons themselves multiply risks of - officially denied - drug use and sex practices by refusing syringe exchange and condom programs.
  • Rather than heroin abuse it is non-dangerous cannabis use which is being prosecuted: more than 70% of those convicted for drug offenses have been convicted for some kind of handling of cannabis.
  • Only about 30% of those convicted receive the "benefit" of treatment and it is thus mainly the cannabis users who are forced to treatment even though they are the least in need of it. Also the kind of dehumanizing compulsory treatment offered is hardly working at all. Genuine psycho and socio-therapeutical efforts are severely hampered.
  • In practice it is the lowest classes and social drop-outs who get caught, not the inconspicuous middle class consumer.
  • Drug enforcement prevents "safe use" and thus creates high risks for HIV infection.
  • Drug enforcement drives consumers in deviant, negligent and self-destructive behavior: no health care, unprotected prostitution etc. It thus adds to the risk of HIV infection and to the weakening of the psycho-immune system and speeds up the manifestation of AIDS.
  • Drug policy makes black-market prices skyrocket and causes increasing economic and political power of all the types of organized crime, like the Mafia, thus ultimately undermining democratic procedures and structures.

The most important part in this social process, and particularly in the consumption or withdrawal setting, is played by drug policy itself: it is the prohibition and law enforcement that forces users and traffickers underground, constitutes a black market without any chance of controlling substances and heeding subjective health standards. In short: the drug problem Is really a drug policy problem.

2.2. Social reaction aspect

2.2.1 Symbolic functions

These basic attitudes may have their role in the explanation of why such evidently inefficient drug policy and why the myth of all illegal drugs being invariably damaging can resist rational Insight so long. Albeit there are other factors which are at least evenly important. The process of moralizing the issue is of a high symbolic value and effectiveness in the sense of social integration and stabilizing power: the anti-prohibitionist morale represents and condenses the puritan and bourgeois ideology of having to work rather than indulge (Max WEBER).

Even more important, it seems, is the symbolic of patriarchy and paternalism. The logic of paternalism is pre-democratic as it implies decisions on the basis of disparity and force, contrary to decision making on the basis of parity, rational consensus or agreement, compromise and contract. Drug policy keeps individuals from freely determining their own body and mind and thus exerts a psychological, an inside regiment over them. Open profession for that kind of tutelage reflects feudalist or absolutist residues in democratic societies. We actually have a sort of a cut-off democracy, a "Neo-Feudalism". Another pertaining indicator I find in the above mentioned development of increasing police and drug enforcement power without parliamentary legitimization or judicial control. The official mythology has virtually invaded the media which in their rhetoric readily adopt hystericizing messages.

In a socio-psychological perspective paternalism is phylo- and ontogenetically rooted in human development. This would to some extend explain not only its residual quality but also the fact that in sort of a collective regression any society may "fall back" on the democratic scale of development. By the same token it can also be interpreted as a "social-sanitary" process of projecting ubiquitary human tendencies, which are socially labeled "bad", "dysfunctional" onto appropriate objects. This has become even more important as a traditional enemy representing the evil has virtually disappeared: Communism. So now it is not the Cold War but the "War on Drugs".

2.2.2. Streamlining social control

Labeling Drugs and "Organized Crime" as the evil per se serves perfectly as a legitimization of keeping up and even tremendously tightening social control. This is being done symbolically (as already mentioned) by imposing certain ideologies. And it is being accomplished instrumentally by net-widening and intensification of control-measures and techniques. Thus a general inert tendency toward more and more intensive control is being geared and streamlined by a useful scapegoat: the illicit drug.

This especially implies appropriately modernized methods of refined "soft control" by forced counseling and psychotherapy. This constitutes intervention into most intimate spheres of subcultures, ethnic and other groups, families and the individual, all of which originally are entitled to protection of their freedom, pluralism and multi-culturality by declared Human Rights as set forth in the German and other Constitutions.

3. Consequences for modern western democracies regulated by Constitutions featuring Human Rights, Rule of Law and Social Welfare

3.1 Functional level

On a functional level it can be said that all the measures of tightening control might have some effect in terms of symbolic function. Though even that is to a large extent counteracted by processes of delegitimisation due to unappropriateness, inefficiency and disproportionality of the measures (credibility gap). Their dysfunctionality is total on the instrumental side.

There are also internal contradictions to the system of net-widening and police homogenization in Europe and all over the world. There are unhappy voices from the Police arguing that too much centralization and homogenization is not necessarily in the interest of law enforcement: in democratic societies it would necessitate formal legislation on a highly abstract level in order to incorporate all the different substructures. It seems largely impossible to find compromises on specific values in that field between so many participating countries. Any official legislation also would imply much more judicial and therewith media control of executive measures. Law enforcement authorities prefer to silently cooperate on a pragmatic level, respecting each others values and normative systems. And they can operate more freely with less centralized administrative control and hardly any judicial or parliamentary control.

But we should not only argue on that functional level as one of these days surely somebody will present new methods promising that this time it'll really work. The anti-prohibitionist logic must be fundamentally criticized in view of constitutionally guaranteed human rights, general values and universal principles also. In the Supreme Constitutional Court decision which I already mentioned the following legal interpretations have not found in the majority opinion of the court. There is, however, a dissenting vote by one of the judges putting forward some of my arguments.

3.2 Level of basic societal values and constitutional principles

Basic principles of modern pluralistic and multi-cultural society are set forth in the German Constitution. That "Grundgesetz" is an example of a highly liberal and modern regulation system in the sense that it has found a working compromise between individual liberties, state control and social guarantees and protection.

Measuring German drug policy and especially drug laws by the standards of the constitution obliges the legislators to set new goals and margins in the field of drugs. This criticism is increasingly being shared by German judges. There has been one case in February 1992 where a Lubeck judge for the first time interrupted a penal case in order to let the German Constitutional Court - partially an equivalent to the Supreme Court in the US - decide on the constitutionality of the prohibition of cannabis. Upcoming is another case where the same question will be set forth concerning the consumption of Heroin. Among the materials that judge based his decision on was an expert brief of mine which I had written for the Deutsche AlDS-Hilfe (DAH: German AIDS Service Organization). I shall now sketch out that German constitutional approach.

The basic logic of the liberal democratic state is that citizens have a basic right to dignity and freedom (Art. 1 I and 2 I GG1). Any behavior of the citizen is free as long as it doesn't harm certain defined individual rights and social values. A number of basic rights which are all derived from those basic rights - and which are to some extend identical with the European Human Rights Declaration - specify that freedom and guarantee protection and advancement for those rights. To be mentioned in our context are especially the following: Right not to be confined without judicial verdict (Art. 2 II 2 GG); right to physical and mental health (Art. 2 II 1), equality (Art.3 I), freedom of conscience and belief (Art4), speech and opinion (Art.S), marriage and family (Art. 6), school (Art.7), assembly (Art. 8), associations and coalitions (Art.9), discretion of mail and phone (Art.10), free choice of stay (Art.11), freedom of profession (Art.12), privacy of the home (Art.13), private property (Art.14), guarantee of citizenship (Art.16), petition (Art.17), resistance (Art.20 III). The state can only - be it through law or by singular administrative acts - infringe that general freedom when this is formally and substantially legitimized by the constitution and by appropriate laws and procedure based thereon (Art.20 I, II). Laws which justify such infringement of freedom - like the Penal Code - have to be consistent with the Constitution. If they are not they have to be interpreted as to be justified constitutionally. If interpretation would exceed the wording and original intention of the law they have to be changed or eliminated.

My main thesis is: The statute law clauses §§ 29 pp. Betaubungsmittelgesetz (BtMG, German Narcotics Act of 1981) criminalize any dealing with certain defined drugs - except strictly personal consumption. These clauses are - at least as far as possession of illicit drugs for personal consumption is concerned - not in concurrence with the Constitution as it ought to be. The mere phrasing of these clauses as well as their implementation in law enforcement constitute a number of breaches of the constitution. Therefore the law has to be changed. Though only in outline I shall proceed according to the German theory and method of constitution interpretation and testing the constitutionality of a law.

3.2.1. Violation of the general "right of personality" and "freedom of action", Art. 2 I GG

§ 29 BtMG is violating the basic right to personal and general freedom of action guaranteed by Art 2 Par. I GG. This clause represents the most basic freedom right and is of course limited by the human rights of the other people. Personally consuming drugs of any kind is an element of that personal freedom of action.

  • A) Examination of the law on a formal level - the first step of the due procedure - leads to the conclusion that the clauses in question violate the constitution for formal reasons and are therefore nil. The law making procedure of those clauses violates a binding set of rules about the construction of penal law. These rules are defined by the constitution itself and are as follows:
  • 1. As laws in general and criminal law in particular have as a general purpose the appeasement and solution of substantial social conflicts as well as the prevention of substantial damage they should be constructed in a rational and efficacious way (Zweckrationalitat, MAX WEBER). Punishment by law is not justified to protect any particular moral as long as none of the basic rights of anybody is in effect substantially impeded (Rechtsguterschutz) .
  • 2. If Penal Law is to be used against dangers of such damage it has to be proved that such risks materially exist and that punishment is a viable way to fight or reduce that danger. The necessary evidence has to be raised by all possible means, especially by referring to modern science.
  • 3. Penal law is the most severely infringing state measure and therefore even when substantial threats to basic civil rights have been proven (see 2) - has to be used only ultimately, as a last resort, and only when it is in proportion to the quality of the perpetration, to the damage and individual guilt. It should always be examined whether laws and measures can regulate the social problem without punishment and other infringements of basic rights
  • 4. Penal law has to define dangerous behavior very precisely in order to really sort out non-dangerous behavior.
  • 5. When constructing penal law and at least after some time of implementation the lawmakers have to analyze and reflect whether the outcome and consequences of applying that law do not by themselves surpass the dangers of damage the law was aiming at in the first place Folgenreflexion). The state may under no circumstance harm anybody without substantial reason.
  • 6. Penal law should not ignore normative mind-sets in the society, it should on the other hand not blindly and opportunistically follow social trends and calls for action by public opinion which is always published opinion.
  • 7. Modern penal law should be consistent with other state measures in modern society in aiming at rationally and humanely solving social problems by restitution, causal treatment and prevention rather than by administering abstract justice or by practicing vengeance (in the sense of HEGEL) and thereby denying basic rights to the perpetrator. This also means that penal law and its application have to heed social reality as far as it can be explained and understood by science and social discourse.
  • 8. Consequence of all those postulates is that laws have to be checked from time to time whether they still fulfill the criteria. The evaluation procedure should take into account that standards of implementation of basic civil and human rights are changing. In a formerly very authoritarian state like Germany the meaning of freedom has changed in the sense of an increase in value and esteem. Infringing freedom of action therefore means harder humiliation and suffering for the individual, a relatively higher intensity of the punishment than formerly.
  • B) The drug criminalization clauses also materially violate Art. 2 I GG by legally proclaiming the aim of total abstinence from illicit drugs and sanctioning non-abstinence by criminal punishment.
  • Abstinence or non-abstinence with regard to drugs is a question of individual and private attitude, morale and lifestyle, in short: an aspect of the general freedom of action and thereby not a possible subject to prohibition. Somebody who is abstinent from anything has no right to have the state make others heed the same lifestyle.
  • The justifications for the infringements are not valid. There is no evidence that personally consuming illicit drugs invariably poses relevant dangers to anybody including the self. It is on the contrary proven that the drugs which are today labeled illegal can under different social conditions be consumed without relevant risks of harm (see above).
  • Even if such risks were proven that would be normatively irrelevant as by the act of possession for private consumption no one else is endangered. It is unrealistic to assume some kind of psychological infection risk by exhibiting drug taking behavior. Furthermore it is disproportionate to base punishment on the assumption that somebody who possesses might hand the substance to somebody abstinent so far.
  • Even if that was assumed in a social system where individual freedom is normatively of highest valuation it would take an individual act of the "infected person" to consume the dangerous drug. The state has no right to interfere in that individual act - except when the person is not capable of freely exerting willpower, like minors and mentally disturbed persons or when a person is deceived about what he is doing.
  • Citizens have a basic civil right to damage and even kill themselves: suicide is not punishable, neither is assistance toward somebody's suicide. It is on the other hand not allowed to kill somebody even when he asks us to. So directly administering an illicit drug could by that logic be punishable.
  • The main justification of the German Narcotics Law (as set forth in parliamentary documents and in commentaries) is a postulation of a basic value named "Volksgesundheit", which means something like "public health". That is a very general and abstract value which is alien to the German system of very basic human values protected by penal law. "Public Health" cannot be substantiated as a "legal good" (Rechtsgut) and can thus not serve as an adequate legitimization of punishment.
  • C) Also the instruments to realize the aim of total abstinence from illicit drugs materially violate Art. 2 I GG
  • The ways and means to accomplish a certain aim and value set forth by the constitution evidently also have to comply with the constitution. Even the highest aim does not justify any means.
  • The postulated means of deterrence and prevention by punishment and the threat of punishment violates the supreme guideline of the German constitution, the Principle of Relativity (VerhaltnismaBigkeit). This measure is normatively and dogmatically constructed in three perspectives: Efficaciousness, necessity and proportionality of the law:
    • Firstly, punishment is not efficacious toward the aim: drug use strongly motivated either by avoidance of stress and personal problems or by conscious indulgence and personal lifestyle cannot be demotivated through punishment. On the contrary elements of protest and spite or fear and anxiety are enhanced by punishment and in turn may even strengthen the motivation to use drugs.
    • Secondly, punishment is not necessary to attain abstinence as there are other and better means to reach that goal if it has to be reached at all.
    • Thirdly, punishment in the amount provided for in the German Narcotics Act (BtMG) is totally out of proportion in relation to the assumed damage and danger possibly caused by the users and in relation to their "guilt" (Schuld) - which in Germany is the legal basis and gauge for punishment.

    3.2.2 Violation of the right to physical and mental health (Art. 2 I1 1 GG)

  • A) § 29 BtMG indirectly damages drug consumers physical and mental health as the practice of drug-law enforcement results in misery, pauperization and all sorts of forced dissocial behavior by many of those who choose to use illicit drugs as part of their lifestyle. Due to the reasons mentioned above there is no rational and proportional justification for that violation of individual rights.
  • B) On the other hand this basic right entitles not only abstinent people but also the drug user to all health care and social welfare and security provisions every citizen has a right to. Factually the drug user is deprived of those protective services as illegal drugs are practically available in great quantities albeit there is no control whatsoever as to their quality and concentration. Also there is no legal way for learning and practicing "safe use" under sanitary conditions (e.g. syringe exchange, "shooting galleries") and with potential help in emergencies (e.g. overdose). The state may not withhold such services with the argument that the dangers are selfadministered or that the rights have been forfeited.
  • This criticism is especially applicable to penitentiaries where health hazards induced by drug policy are the highest.

    Also drug consumers basic right is violated by their difficulties to obtain - if they wish - adequate treatment for their addiction. The official method offered as a substitute for punishment in reality equals punishment and cannot be considered as valid therapy. On the other hand valid alternatives like methadone treatment are not at all or not easily available.

    3.2.3 Violation of the equality principle (Art. 3 I GG)

    The constitutional equality principle means that essentially equal subjects and situations have to be valued and treated equally. This also implies that disparate subjects have to be dealt with unequally. The illegalisation of certain drugs, especially cannabis but also heroin etc., in contrast to provably dangerous legal drugs (nicotine, alcohol) is an arbitrarily unequal treatment of matters essentially equal. On the contrary: speaking in terms of health hazards it is nicotine and alcohol which bear greater risks than cannabis and even heroin.

    If at all so-called "hard" drugs could be proven dangerous, there would have to be adequate differentiation between them and cannabis which is beyond doubt not harmful to any relevant extent.

    Furthermore the equality principle is violated by the fact that drug repression most often hits certain subgroups of society which are socially deprived in the first place. And the users of illicit drugs are treated unfairly as they are practically forced to undergo a certain kind of therapy while users of legal drugs have a free choice of treatment. For the scientific reasons mentioned there is no justification for differentiation.

    3.2.4 Violation of freedom of conscience (Art. 4 I GG), opinion (Art. S I GG) and association (Art. 9 I GG).

    For citizens who profess to the casual use of illicit drugs as a lifestyle or as a matter of personal freedom the right to express and practice their belief as well as any utterance in public discourse and subcultural association is totally infringed by drug repression. There is no visible justification for penal measures. This judgment would not forego regulation of the problem, e.g. by interdiction of advertising and marketing of certain drugs.

    3.2.5 Violation of the principles of "rule of law" (Art. 103 II and III GG).

    The basic principle "nulla poena sine lege certa", which also has the status of a human right and is essential to all criminal policy, is violated by unspecified and uncertain terms in the drug laws. Also the fact that addicted consumers cannot avoid recidivism violates the principle that one cannot be punished more than once for the same crime ("ne bis in idem").

    3.2.6 Violation of the principle of human dignity (Art. 1 I GG)

    The fact that self-determination and personal identity of the consumers of illicit drugs are profoundly disregarded in spite of a constitution providing for a pluralistic and multi-cultural society constitutes a violation of human dignity. A citizen may not be made an object of brainwash or forced change of personality as set forth by the legal determination of forced therapy.

    3.2.7 Violation of the right to freedom from confinement (Art. 2 II 2 GG)

    By punishing drug users with imprisonment the basic right of freedom is unduly impaired. Although the clauses §§ 29 ff. BtMG provide for a formal justification of confinement they do not suffice by the standards of Art. 2 II 3 GG. Any law infringing freedom has to be materially in concurrence with the constitution For the reasons shown above, the penal occurrence with the constitution. For the reasons shown above, the penal clauses in question violate the constitution and are therefore to be invalidated.

    3.3 Conclusion

    The practical consequence of the position taken here would be, to change or scrap the penal clauses in the Narcotics Law. This opinion results in calling upon either the lawmakers or the constitutional court to take action in that direction. In the legal discourse, however, other positions can and will be taken. To hope that taking that stand will change anything just because of its particular logic would of course be idealistic and naive in the sense of believing in the power of science and in the objectivity of justice. The drug problem is a political problem so it is the political conditions which determine the outcome. And just as in the US the Supreme Court has been systematically filled with judges politically loyal to the government the German Constitutional Court is politically composed. But arguing on the level of constitutional law may support a political movement in society which is in opposition to the reigning one. I could help enhancing middle and long range tendencies which may eventually evolve to be what in German jurisprudence is called "herrschende meinung" - the prevailing opinion. Though it is beyond doubt that this will have to be fought for in the political spheres of society and not before the courts.


    Since the first definition and penalisation of illicit drugs in Germany (1921) and up until the latest intensification of punishment along with the compulsory treatment for users (1981) there has been a certain allegiance of German drug policy towards the US policy. The UN drug policy (Vienna Convention, 1988) and the European unification process (Accord of Schengen, 1990) have enhanced tendencies to intensify repression by penal law and actual law enforcement On the other hand the evident failure of traditional drug policy along with a change in the global political structure are - specifically in Germany - giving considerable rise to a movement for more liberal approaches, for decriminalization or even relative legalization of some hard drugs and at the same time for more national autonomy in that field. It can be shown that the evolution and implementation of drug laws are specifically being determined by political power and symbolic functions rather than by constitutional principles and economic rationality. Drug policy is thus of basic significance for modern legal theory and sociology of law. On the basis of this critical analysis an approach of modernizing legitimization of infringement of basic human rights is sketched out. Casual and even addictive drug consumption are just one aspect of general freedom of an individual. Drug consumption is if at all - harmful only to the consumer himself. Self-inflicted harm cannot be an object of state intervention. Also criminalisation of certain drugs does a lot of harm to those choosing to use those drugs as well as - through various social processes - to the fragile structure of a democratic society, the rule of law and due process principles in law enforcement's. The amount of these various kinds of harm is totally out of proportion to the possible but largely questionable positive effects of drug prohibition. Drug prohibition therefore has to be considered as unconstitutional.


    I GG means ''Grundgesetz'', the German Federal Constitution of 1949.


    Our valuable member Lorenz Böllinger has been with us since Sunday, 19 December 2010.

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