AN ARCHAEOLOGY OF DRUG LAWS
Desmond Manderson draws attention to the way in which the style of drug laws has changed over time as has their focus and the reason for their enactment. In doing so, he departs from a traditional historical approach and asserts that it is through an analysis of the sound, character and semantics of the language used in drug laws that we can perceive both its similarities across a variety of jurisdictions and its changes over time.
INTRODUCTION: CONSTANCY AND CHANGE
Don't listen to the insignificant details, the variable minutiae of offences and penalties controlling the use of substances such as the opiates, cocaine and mari-juana. Eisten instead to the awful sameness, a sameness of character and ferocity, which is universal. What is the nature of that sameness, and what does it betoken?
In the Philippines and Jamaica, in Malaysia and Singapore, drug trafficking is an offence punishable by death. In the several states of Australia, the trafficking of a 'commercial quantity' of a drug may typically lead to a penalty of 25 years' imprisonment and in addition a fine of up to A$250 000. In some jurisdictions the guilty are liable to A$500 000 fines and to life imprisonment (Customs Act 1901 (Cwth), s.235;
Drugs Poisons and Controlled Substances Act 1981-1983 (Vic.), s.71; Controlled Substances Act 1984 (SA), s.32(5); Drug Misuse and Trafficking Act 1985 (NSW), ss. 23(2),24(2),25(2) and 33; Drugs Misuse Act Amendment Act 1990 (Qld); Drugs of Dependence Act 1989 (ACT), s.164). In Canada likewise, and in the UK, trafficking in a narcotic drug or even possession for that purpose are punishable by life imprisonment (Narcotic Control Act, RSC, 1985, s. 4). As Bob Solomon and S.J. Usprich have argued, theNarcoticControlAct (Can.) and itsmany analogues are extraordinary, not simply as a result of the severity of particular provisions but through the fact that so many exceptional devices are therein harnessed together (Solomon and Usprich,1991; com-pare Carney,1987; Blackwell and Erickson, 1988; Fortson, 1988). Other laws also provide for harsh penalties; for mandatory sentencing; for a reverse onus of proof, requiring defendants to prove their innocence; for expanded police powers of search and seizure: but only in 'drug' laws do all these measures coincide. The result is that modern drug laws are a collection of extravagances, an expression of fury in legislative form.
So it has been for 100 years. Even the crime of possession, keystone in the arch of legislative drug policy, is highly unusual. With rare exceptions the law penalises acts and not potential acts: we do not punish the murderer for mere possession of a knife or the coster for his blackjack. This is still more apparent in the field of health law. Smokers are prevented, if at all, from smoking in designated areas; alcoholics are punished for the consequences of their acts, whether for drunk driving or public nuisance. But who would provide a jail term for the possession of cigarettes in an airport, or whisky in a car? Yet that is exactly the structure of the law of possession, which penalises not the harmful consequences of drug use, or even the fact of use itself, but merely the possession of the goods. When we see the crimes for which similiar provision is made the possession of machine guns, stolen property or state secrets - we begin to see the company which drug users are treated as keeping.
I want to understand why this virulent hostility, which has made it so hard to accomptish any kind of amelioration of the legislative framework, continues to seem so desirable for so many people. I have in pre-vious research taken a resolutely historical approach, demonstrating the real forces and pressures which have driven drug laws, in Australia as around the world (especially Manderson, 1993; see also Musto, 1913; Berridge and Edwards, 1981). This remains my focus. But at the same time it is important to recognise that the reasons for the enactment of drug legislation have not, of course, remained static. Vastly different purposes and priorities have led to similarly oppressive laws, indifferent times andplaces. It is not the reasons or rationalisations advanced in support of drug laws, or beliefs about the harm that 'drugs' are said to cause, which have remained constant for over a century; on the contrary. Rather, it is simply the ferocity of the social response. An awareness of this truth - that drug laws around the world and over time have shared not a certain logic, misguided perhaps but nevertheless amenable to reason, but instead a visceral hatred expressed in legislative form - will lead us in the right direction: towards addressing the emotions and sym-bolism that drug use conjures up in the community, rather than the transient reasons advanced for its sup-pression (and see further Manderson, 1994).
To pursue this point, my argument is both compar-ative and historical. It proceeds through two phases.
First, I wish to highlight that the style of drug laws has changed over time. Second, and in greater depth, l wish to draw attention to the way in which the focus of drug laws and the reason for their enactment has also varied. But I do not take a traditional historical approach. Rather, my argument is linguistic and semantic. It is through an analysis of the sound and character of the language used in drug laws that we can perceive both its similarities across a variety of jurisdictions as well as its changes over time.
The interest and novelty of this approach, then, lies in the kind of materials marshalled and the use made of them. If we focus on the meaning and reso-nance of key words in the history of international drug regulation, distinct patterns of constancy and change emerge. This analysis demonstrates the kind of insight which a semiotic approach provides through a sensi tivity to linguistic subtlety. We find important aspects of the history of drug laws encapsulated in a few words and placed into sharp focus. And what this linguistic -; archaeology reveals is that drug laws, understood as a coherent international phenomenon, have varied in f their rationale, their concerns and their style. At the same time, as I have noted, the anger they express has remained remarkably constant. Difference beneath sameness, then, and sameness beneath difference. Given these two points, I suggest that we need to look elsewhere to explain this constancy- to our aesthetic reactions to the drugs themselves, perhaps, and to the emotion that drug use generates. Not as a product of reason but of feeling have drug laws been born and grown; not in response to the voice of the mind but of t the senses have they proved so impervious to reform. For reformers therefore the message is clear: it is not just the logic of drug laws that must be challenged in , public discourse, but their aesthetics.
FULL OF SOUND AND FURY . . .
Since the first laws prohibited the possession of a 'opium suitable for smoking' around the turn of the century - in parts of the USA and in Australia first, then in Canada and later still in the UK (e.g. Aboriginals Protection and Restriction of the Sale of OpiumL- Act 1891 (Qld); Opium Act 1895 (SA); Opium, Smoking Prohibition Act 1905 (Vic. ); Sale of Opium Act 1908 (Can. ) ) - the detail of these laws has undergone considerable change. But baldly and with an almost biblical simplicity, they established a precedent which has not been questioned since. This is a paradigm of the style they adopt (Opium Smoking ProhibitionAct 1905 (Vic.)):
1. This Act may be cited as the Opium Smoking Prohibition Act 1905.
2. No person shall smoke opium.
3. No person shall sell or deal or traffic in opium in any form suitable for smoking.
4. No person shall prepare or manufacture opium in any form suitable for smoking.
5. No person shall have in his possession order or disposition opium in any form suitable for smoking.
Northrop Frye has argued (1982, pp.207-208), in relation to the Authori2ed Version of 1611, that the numbering of verses enhances the monadic quality of each fragment. Like a shattered mirror, each shard of which equally reflects the world, the verses of the Bible are each and all a gateway to the same holistic truths. The terse discontinuity of the Bible partadoxi-cally binds its sprawling narrative together. In this simple Act, too, the enumeration does not detract from the rhythmic insistency of sections but rather enhances their strength.
Poetry, for Frye, is the language of command: 'Let there be light'; 'Thou shalt not kill'. The democratic discursivity of prose seeks to persuade and to cajole, but a poem is a statement not an argument. Its aphoristic form brooks no dissent hut with majesty declares. Is there not something of the same resonance in these early laws? - a declaratory style which idealises, as do the Ten Commandments, the effect of words upon behaviour? In part this faith is embodied not only in the brevity and absolute nature of the provisions, but in their tense. Like 'Thou shalt not kill', 'No person shall smoke opium' attempts to describe a future world which becomes realised in the very making of the enactment. Illegal conduct is not presumed here: after the passage of this Act, we are told, no person shall smoke opium. We find the same style in many other criminal lawsofthe time, all of whichreflect the moral certitude of the late Victorians, and their wholesale faith in the power and justice of the law.
Admittedly, not all the laws passed at this time are of the same tenor. The first Canadian Act, for exam ple, which dates from 1908, begins:
1. Every person is guilty of an indictable offence and liable to imprisonment for three years, or to a penalty not exceeding one thousand dollars and not less than fifty dollars, or to both, who imports for other than medicinal purposes . . . any crude opium or powdered opium, or who manufactures, sells,or offers for sale, or has in his possession for sale, for other than medicinal purposes, any crude opium or powdered opium.
Unlike the previous example, we here begin with an assumption oftrespass which will not be forgiven. It is the wrong-doer who is the focus of the law and not the law-abiding citizen. There is undoubtedly a greater realism at work here, because the law foreshad-ows a world in which the importation of opium for other than medicinal purposes, although illegal, con-tinues. Nevertheless, the law is simple and to the point. Indeed, for all its density it is shorter than the Victorian Act. Although it is structured as a threat and not a promise, it still carries us along with its cer-tainty. It is this terseness and certainty which charac-terised early opium laws around the world.
Over time, the beauty of simplicity, with all the legislative arrogance that implied, has given way to a monumental complexity. In this change we can wit-ness the confidence of law-makers, being replaced by a dogged determination. The original Victorian legis-lation of six sections has expanded to over one hun-dred, supplemented, moreover, by in excess of a thou-sand regulations dealing with everything from the granting of licences to the format of medical prescrip-tions. In Canada, the Narcotic Control Act remains a relatively modest 28 sections long, although the con-solidation and amendments proposed in Bill C-85 would bring the weight of Canadian law in line with that of other Commonwealth jurisdictions. At the same time, the number of controlled drugs has expanded enormously. The original control of opium or opium suitable for smoking was soon modified to include heroin, morphine, cocaine and ecgonine. But now the relevant drug schedule of any jurisdiction includes close to 150 substances ranging from the common or garden to the most obscure products of the laboratory chemist's art (e.g. Prohibited Substances Control Act, Bill C-85 (Can. ); NarcoticControl Act, RSC, 1985 (Can.); Drugs, Poisons, and Controlled Substances Act 1981 (Vic.); Misuse of Drugs Act 1971 (UK); Drug Traffic Offences Act 1986 (UK)).
This enormous growth reflects not only the extent to which these substances are attempted to be controlled in society but the way in which the law itself has become not just a means of declaring behaviour but a way of supervising it. The law has changed its mood, from imperative to indicative. In this we can read not only the increasing intrusion of the law into life but also its failure. The inability of bland and sim-ple laws to prevent 'drug abuse' has not at any stage led to a questioning of the aim or effects of those laws; rather, it has led to an exponential increase in both the objects and detail of drug control.
AN ARCHAEOLOGY OF THE TITLE
The bureaucratisation and intrusiveness of drug laws is one way in which drug laws have been transformed over the years, and we have only to listen to the style and feel the weight of drug legislation to appreciate that a profound change has taken place. It is language that reveals the scope of this change, its mood and tense. The rhetoric used to explain the need for drug control has undergone ever more significant change over time. The historical record clearl! indicates the protean face of public concem around the world: from the anti-Chinese hysteria which motivated the enactment of the first opium laws (in Canada, Australia and the USA, though not in the UK), through the emerging power of the medical profession, the growing fear of addiction, the influences of international opinion and petty bureaucratic rivalries, and, latterly, hostility to 'hippies' and the counter culture (compare, for example, Small, 1969; Musto, 1973; Bonnie and Whitebread,1974; Helmer, 1975; Berridge, 1978;
Morgan, 1978, 1981; McCoy, 1980; Berridge and Edwards, 1981; Courtwright,1982; Solomon and Green,1982; Manderson, 1988,1992,1993; Giffen, 1991). Drugs have come to symbolise very different fears at different times. Now we have entered into another phase in which it is the connection of drugs with 'big business' and organised crime that provokes fear and anger. Severe drug laws are beginning to be justified on economic and not on moral or health relatedgrounds (Manderson,1993, pp.181-84).
The very history and morphology of the nomenclature of drug laws highlight these currents and eddies. Indeed, it is possible to construct a whole study of drug laws from the perspective of the terminology used by and contained in them. This terminology, although it appeared natural at the time, is in a constant state of flux. As it changes, its reveals through its unconscious and unmediated use of language, the changing values and priorities of the community. Law is a part of society, its mirror as well as its mould, and its language is not that of a hermetically sealed formalism. Let us consider, then, the short titles of drug legis-lation around the world as a way of discovering evidence about the concems and fears of legislatures at different times - evidence found through carefully evaluating those few words which, as talismans at the head and origin of legislation, summed up law's approach to the problems that drug use presented.
What after all is a title but an attempt at suzerainty over meaning (compare Derrida, 1981; Genette, 1988; Horn,1994) ? On the borderline between text and context, it seeks to define in advance the boundaries of meaning of the words contained within or beneath it. Like a literary title, the title of an Act is no merely an administrative convenience; as Eco writes it 'is already - and unfortunately - a key of interpretation' (in Genette,1988, p.719). The title is therefore a normative and interpretive argument which participates in the power struggle for the legitimacy of its subject matter. lt defends - and no more clearly than in the field of drug law - the justice of force which lies at the heart of all law (Derrida,1990) by demanding that the problem it addresses be looked at in a certain way.
The concept of legal title defines a space of land in a particular fashion and consequently engages in the power struggle for possession of it. So too, the short title defines a social space in a particular fashion and simi-larly claims legitimacyfora certain view of powerrela-tions. It tells us: this is how a certain problem shouldbe looked at; this is the way in which the social event, dealt with within this framework, should be described and defined. A short title is indeed like the frame of a painting - it organises the space within it a certain way and tells us where and how to look. But as Derrida (1987) also emphasises, a picture frame is not neutral . It purports to act as an objective boundary between the relevant and the irrelevant: but there is nothing objective about sucha delineation. The picture frame and the short title alike are part of the work as well as before it.
Appropriating Foucault (1973), we may speak of the 'archaeology' of the short title as a powerful means of excavating, strata by strata, the differing purposes which drug laws were meant to achieve from time to time - purposes that showed, in their language, remarkable changes over time and a striking similarity between jurisdictions. In titrating the potential of this kind of approach, to show what it reveals of commonality and difference in the comparative history of drug legislation, let me begin by noting that the first laws dealing with the control of drugs were contained in Poisons Acts, such as those of the UK and cognate legislation throughout the Empire (Sale of Poisons Act 1852 (UK); Sale and Use of Poisons Act 1876 (NSW); Sale and Use of Poisons Act 1876 (Vic.)). Accordingly, they are concerned with the dangers of accidental or deliberate poisoning. For most drugs, including opium and morphine, minimal controls simply ensured that they were properly labelled, so that people would not be killed by consuming them unknowingly. The danger of a poison lies in igno-rance. There was no attempt to control the conscious use of these drugs, whether habitual, recreational or otherwise . Wilful ( mis ) use was not, as yet, problemat-ic or corrupt.
As the thought that people might be poisoning themselves with these substances became less impor-tant, other preoccupations began to develop, aalddrug legislation was by and large removed frbm the province ofthe Poisons Acts. (Theone solitary excep-tion was in Victoria, where drug laws remained part of the Poisons Act until as late as 1981: see; for example, the Poisons Act 1915 (Vic.), the Poisons Act 1962 (Vic.) and the Poisons (Drugs of Addiction) Act 1976. InNew South Wales, drug laws were transferred back to the Poisons Act in 1966 but relocated again in 1985: see Poisons Act 1966 (NSW) and Drug Misuse andEraffickingAct 1985 (NSW).)
There emerged instead Acts such as the Opium Act of 1895 in South Australia, An Act to Prohibit the Importation, Manufacture and Sale of Opium for Other than Medicinal Purposes - passed in 1908 in Canada and, about the same time, the international Opium Convention signed at The Hague in 1912.
What these Acts have in common (the Opium Convention less so) is a preoccupation with one particular drug, opium. The reason for this is not hard to find: it is because opium was associated with the Chinese, a hated and alien minority in places such as Canada and Australia. The language of the Victorian legislation is even clearer. Its short title is the Opium Smoking Prohibition Act 1905. Not opium taken in the form of morphine or laudanum, not opium swallowed or injected, but only the smoking of 'prepared opium' was banned, because only the Chinese smoked their opium (Manderson, 1988, 1993; see also Helmer, 1975;Green,1979; Boyd,1984).The shift of emphasis from 'poison' to 'opium' is therefore significant. It indicates a change in the kind of concern which was driving the developing area of 'drug laws'.
For some time the focus on opium - that is, on the Chinese - continues alongside an increasing interest in other drugs used for recreational purposes. Thus in 1911 the Canadians passed An Act to Prohibit the Improper Use of Opium and Other Drugs. Notice, then, the bifurcation between 'opium' and those 'other drugs' which, although not opium ( not taken by the Chinese) are nevertheless worthy of control. Notice, too, the use of that word 'improper' which sug-gests that we are not concerned with the safety of con-sumers, such as might be the brief of a 'poisons' Act, but with their propriety. In a way that was not true in relation to Poisons Acts, or even in relation to the Chinese smoking of opium, we have entered upon moral legislation (Gusfield, 1963, 1968; Duster, 1970). Octavius Beale, anAustralian Royal Commis-sioner paranoid about (Australia,1907, pp.26,418) drugs wrote (among other things):
It is said that 'you cannot make people moral by Act of Parliament.' But that is precisely what you can do, and it is the only way . . . This doctrine of laissez-faire, of unrestraint, [is] in diametrical antithesis to the Christian philosophy, which we surely cannot be expected to ignore.
The first comprehensive British legislation parallels this transitional phase. Enacted in 1920, it was entitled An Act to Regulate the Importation, Expor-tation, Manufacture, Sale and Use of Opium and Other Dangerous Drugs. In the UK, without theexpe rience of large scale Chinese migration, the question of opium was less important than elsewhere, and the Act was known as the Dangerous Drugs Act 1920. But there is another significant linguistic shift here. We are beginning to explore why the uncontrolled con-sumption of drugs such as morphine, heroin or cocaine was deemed 'improper'. It is because they are 'dangerous' that consumers cannot be trusted with a freemarket. Legal control is justified not simply because of what the drug is, as it was in the case of the 'opium smoking' laws, but because of their power. The use of the term 'dangerous drugs' to describe the objects of legislative control, then, indicates an expansion in the drugs covered by legislation, a developing rationale for that expansion, and perhaps also a recognition of the need to develop such a rationale.
The vagueness of this rationale, as it says nothing about why certain drugs are to be considered 'dangerous', was undoubtedly another reason for its utility for a time. The terminology of 'dangerous drugs' was commonly used to cover substances as diverse as opium, morphine, heroin, cocaine and marijuana: the rele-vant UK legislation remained the Dangerous Drugs Act from 1920 until 1971; in South Australia the Dangerous Drugs Act was in force from 1934 to 1974; in Victoria the Dangerous Drugs Regulations 1922 provided the meat and substance of the legislation contained in the Poisons Acts; even in New South Wales, the sections of the dragnet legislation called the Police Offences Act dealing with drugs (Police Offences Amendment ( Drugs) Act 1927 (NSW) and its successors) were commonly known as the 'Danger-ous Drugs Laws'.
The implication that these Acts were entitled to treat a congeries of substances similarly because they were all 'dangerous' begged the question. Why did society respond to their apparent 'danger' by either proscribing their use utterly ( in the cases of opfum for smoking and, later, heroin and marijuana) or, more typically, permitting their consumption only under medical supervision? Some justification was required which would define the issue of drug-taking as a medical problem and not a social one. It is for this reason that the use of the word 'narcotics' comes to be com-monplace. First in Canada, where the Opium and Narcotic Drug Act was enacted in 1929; it was re-enacted as the Narcotic Control Act in 1961. Then in the States of Australia, with Victoria leading the wayh defining all drugs covered by the relevant Part of the Poisons Act (1930) as 'Narcotics'. Later we find the Health (Narcotics) Act 1956 (Vic.), the Common-wealth Narcotic Drugs Act 1967 (Aust. ) and the Narcotic and Psychotropic Drugs Act 1970 (SA) .
It is only in the 1970s, indeed, that the term begins to lose its currency, as new priorities and concerns began to take shape. From the 1930s to the 1960s, the word 'narcotics' was the standard general term used to cover these substances. This was particularly noticeable and influential at the level of the international community, where the Convention for Limiting the Manufacture of and Regulating the Distribution of Narcotic Drugs (1931) exercised a powerful normative influence on national legislation. In 1946 the Advisory Committee on the Traffic in Opium, the administrative body established by the quondam League of Nations and responsible for the growing machinery of international cooperation in this area was renamed the Commission on Narcotic Drugs. In 1961 a new treaty consolidated and replaced the pre-vious dozen international agreements in the area. It was called the Single Convention on Narcotic Drugs.
This kind of linguistic history is more difficult to trace in relation to the USA, because of the unique traditions of that country, at once both highly ratio-nalist and highly individualist. The individualism has led to a practice of naming important Bills for their authors, such as the Harrison Act 1914 (USC, Title 26) which had the effect of prohibiting the use of hero-in absolutely. The rationalism has led to the incorpo-ration of all legislation into the complex structure of the US Code. Accordingly, the law relating to illicit drug use is scattered throughout various Titles of the Code, some parts contained, for example, in the Title dealing with 'Food and Drugs' and others under the rubric 'The Public Health and Welfare'. It is the requirement that legislation conform to a pre-existing logical structure which has lead to this fragmentation. Nevertheless, even here, we may note that the rele-vant Part of Etle 21 (Food and Drugs) of the 1946 Code dealt with 'Narcotic Drugs', and that of 1952 contained, under Public Health and Welfare, provi-sions concerning 'Narcotic Addicts and Other Drug Abusers'. As early as the 1920s, the Division of the Department of the Treasury which investigated breaches of the Harrison Act was restructured and renamed the Federal Bureau of Narcotics.
What is the effect of the endemic use of this word ?
It implies that the substances previously identified only as 'dangerous' are united in their medical and pharmacological nature as well as by their legal status. There is a patina of scientific legitimacy attached to that crucial word 'narcotics'. By using it, the title tells us to expect a certain kind of scientific substance to be dealt with. The frame gives medical legitimacy to the like treatment of the substances dealt with in the Act.
Clearly the language of the title is a nonsense: neither cocaine nor cannabis is a narcotic (i.e. sedative). By categorising them using a technical medical term, however, their legal treatment was shored up with scientific authority, all the while underscoring the belief that 'drug use' itselfwas a medical problem. 'Narcotics' in the first place gives the illusion of a scientific basis to legal policy and, second, presents the drug question as a medical rather than a moral issue. The word acts as a legitimation and a defence of government intervention. Here, then, we see the power of the language of the title to construct a reality, to expropriate authori-ty by the use of persuasive words, and to redefine a social event - the consumption of cannabis, for exam-ple - by placing it within a frame so that it becomes seen to be scientifically dangerous and medically unjustifiable.
The language of narcosis, however, while it reflected and effected a focus on the medical dangers of drug use alien, for example, to the language of the Opium Acts, was, by the 1970s, no longer an adequate description and justification of people's fears. The concern over drug use which began to crystallise from about 1970 is a moregeneral one, to do partly, it is true, with the non-medical or recreational use of drugs - recall, for example, the Royal Commission of Inquiry into the Non-Medical Use of Drugs (Canada,1973), or the South Australian Royal Commission which, six years later, bore exactly the same title (1979), and indeed the use of similiar language in academic scholarship (e.g. Solomon and Madison, 1976-77;
Solomon,1977-78). But it is the social symbolism of non-medical use, that is, the way in which it had come to represent non conformity, which was by 1970 seen tO be particularly alarming. For in the-light of drug controls which provided a familiarframework of abso lute medical power and potent legal sanctions, illegal use challenged both medical sovereignty and legal authority alike. Any illicit use, whether 'dangerous' or 'addictive' or not, whether of 'narcotics' or otherwise, was seen to constitute an affront to the established order and to professional power.
The language ofthe law mirrors this refinement. In 1970, that Part of Title 21 of the US Code which had previously dealt with 'Narcotic Drugs' became entitled the Drug Abuse Prevention and Control Act.
The next year saw passage in the UK of the Misuse of Drugs Act 1971. So too we may note the Drug Misuse and Trafficking Act 1985 (NSW) and the Drug Misuse Act 1986 (Qld). In the substantive provisions of many other Acts there is likewise growing reference to those who 'misuse' or 'abuse' drugs. 'Misuse' and, even more so, 'abuse', both return us to a suggestion of impropriety based on legal and social norms as much as medical ones. The drug user may not be suffering from any medical problem but he or she is nevertheless 'abusing' drugs. In fact, the power of the language comes exactly from the intentional conflation of use with misuse and abuse. Medically, it is possible simply to 'use' a drug without suffering harm, whether cannabis or heroin, but in the language of these laws, this is not conceivable. The use of the word 'misuse' or 'abuse' to describe any unauthorised consumption of controlled drugs immediately taints the behaviour as deviant. Again, the short title, by telling us what we can expect to find within the substantive provisions that follow it, help persude us that anyone who breaks the law is in fact 'misusing' or 'abusing' drugs. The lan-guage encourages us to characterise certain kinds of behaviour in a certain way, and thus exerts a signifi-cant normative force in the ostracism of (mis)users.
Nowhere is this clearer than in the Misuse of Drugs Act 1971 (UK) which describes itself as 'An Act to make new provision with respect to dangerous or otherwise harmful drugs'. Observe, therefore, that the rationale for the law is no longer the fact that drugs are 'dangerous'. Some are not dangerous - not, therefore, a threat to the health of users - but remain 'otherwise harmful' - a threat to society instead. The Act goes on to define its terms. 'Misusing a drug', it explains placidly (s. 37(2)), means 'misusing it by taking it'. There is no such thing as taking it without misusing it. The effect and purpose of the Act is to label all illegal drug use as misuse. Itreflects aconcern in which it is no longer the medical aspects of drug use that are seen as terrifying, but rather its place as a species of social deviancy or pathology. In the UK and in other jurisdictions in which this terminology is taken up, therefore, severe legislation is now justified because the Acts in which it is contained do not simply deal with objects, that is, with drugs that are 'dangerous' or 'narcotic', but with their 'misuse' or 'abuse' by legal subjects.
The power of the word 'misuse' comes from the establishment of an isomorphism between users and misusers; its function is to focus on the inappropriateness of the user's criminal rebellion rather than the dangers of the drug. However it is not true to say that all users were equally blamed. Increasingly we see attention being paid to those who sell drugs: the pedlar, the distributor and the trafficker. Indeed, through the 1970s and beyond, it is the seller who does not use who becomes a new image of evil. He is portrayed as a vulture who, unlike his clients, remains in complete control of his choices and, in calculated fashion, chooses to distribute dangerous and corrupting poisons. New legislation and legislative amendments reflected this new priority. Courts had always, in practice, been harsher on the trafficker than the mere user; in the 1 960s, both New South Wales and Victoria consolidated this practice into specific legislative provisions establishing separate and more severe penalties for the sale of controlled drugs (Poisons Act 1962 (Vic.), ss. 32 and 34(2); Poisons Act 1966 (NSW), ss. 21 and 32; Poisons (Amendment) Act 1970 (NSW), ss.21 and 45a). In 1980, the Australian Royal Commission on Drugs recommended the development of a separate Drug Trafficking Act to provide the police with the powers, provisions and penalties necessary to deal with 'the drug trade1 ( Book F). In all Australian jurisdictions there are now sepa-rate and significantly harsher penalties for those who traffic in illegal drugs, or for those who are convicted of being in possession of a quantity of an illegal drug deemed for the purposes of the Act to be 'traffickable' (to which reverse onus provisions apply) .
And what of the language itself- the Drug Misuse and Trafficking Act 1985 (NSW), the Drug Traffick-ing Offences Act 1985 (UK) and the Convention against Illicit Traffic in Narcotic Drugs and Psy-chotropic Substances 1988 ? Nowhere is the ability of the title to legitimate a reality more in evidence. (!om-pare, for example, the Victorian Act passed at the same time, entitled the Drugs, Poisons7 and Con-trolled Substances Act 1981 (Vic.), whicSh does not just dealwith'drugs' buttreats them in theircontextas part of a broad family of 'substances' such as 'poisons'. The language of this Act does not set drugs apart from the rest of the world, but attempts to a limited extent to normalise them and to strip them of their emotive connotations. The Controlled Substances Act 1984 ( SA ) is even more pointed in this respect. The title of this Act, probably the most liberal legislation to emerge from any comparable jurisdiction, makes a studied effort at neutrality. We are not dealing with 'drugs' - only with 'substances' of all sorts. Moreover, the title does not attempt to justify in any sense the content of the Act. These substances are 'controlled' . Instark contrast to the apparentlyobjectivebut in fact value-laden titulation we have been noting, no justifi-cation for this 'control' is offered. Rather, the title emphasises thefact of legislative intervention and no more.
Compare the emotive effect of the word 'traffic'. 'Trade' is a word too neutral in its connotations; 'traffic' conjures up images of the slave trade or electoral bribery. To be involved in traffic is already to engage in something morally reprehensible and worthy of repression. The use of the word itself justifies the measures taken in relation to it. Indeed, the word 'drug' also shares some of this notoriety. It is a word redolent of indolence and somnolence, hedonism and heinou-. power. In the context of 100 years of hysteria, a 'drug 'trafficking' Act both proclaims itself a response to this fear, and does more than its fair share in perpetutating it.
More than this, however, a 'trafficking Act' establishes the importance of traffic as a subject deserving of special concentration. Language here structures reality, and law exerts a normative force over how we understand the world. The law defines a particular social space - that occupied by the trade in drugs - as opposed to the infinite other possible ways of under-standing the world and the relationships within it . An Act about 'traffic' prioritises this kind of drug-related behaviour as something that ought to be foreground-ed and the focus of legal attention: not the species of drugs used ('opium' and 'other'; now, indeed, there is normally a distinction between 'cannabis', for which less severe penalties are provided, and 'other' drugs) or the kind of use ('medical' or 'non-medical') or the extent of use ( 'recreational' or 'addictive' ) are held at this stage to be conclusive legal categories. Rather the language of the law encourages us to make j udgements about people on the basis of the degree of their involvement in the drug economy.
The New South Wales Drug Misuse and Traffick-ing Act 1985, for example, provides different penalty regimes depending on whether the amount of the drug in question was a 'small quantity', a traffickable quantity, an 'indictable quantity' or a 'commercial quantity' (ss.29, 30-33 ). (I use the term 'traffickable quantity' analogously with the language of other j uris dictions on the basis of the deeming provisions of s.29. )
The law establishes a moral taxonomy based prin-cipally on the amount of drugs involved, which is itself seen to reflect the economic status of the criminal. Monetary and quantitive categories determine and structure our understanding of the degree of wrong doing, and validate the severity of the law. In the orig inal Greek, kategoros was a public accusation; this is the meaning to which we are closest here. Drug laws categorise, and in so doing they define, they set apart, they accuse and they blame.
We need also note here that the very tocus on drugs as an economic problem indicated by the priority of the concept of 'traffic' marks a significant shift in the priorities of the law. The new image of evil associated with drugs was centred on wealth, corruption and organised crime. By the 1980s, it was the business of drugs which aroused people's greatest anger and was used to justify the power of the law. Victorian M.L.A. Mr Williams spoke in high rhetorical dudgeon of 'multi-million dollar financiers' who were 'wicked men' and 'evil monsters' (Victorian Parliamentary Debates, 1982-83, pp.3531-32; 1983-84, p. 2113). Likewise the Victorian Minister of Health, giving the second reading speech of the Drugs Poisons and Con-trolled Substances Bill 1983, insisted that 'the new dimension of drug abuse was its promotion for profit, the involvement of organized crime' (Victorian Par-liamentary Debates,1983-84, p.5294) . The new sym-bol of evil was a businessman whose wickedness stemmed from his respectability, his power and his wealth. As the focus on the drug 'traffic' suggests, the drug trade was no longer a question of health or moral ity, but of economics and power.
. . .SIGNIFYING?
In drug laws in particular, the brute force of the law is manifest . But this power is sustained by the communal belief in its legitimacy, which in turnis upheld by strategies of rhetoric, the use of languagie and of rea-son. It is exactly those argumentative strategies which we have seen the short title deploy with great variety and to considerable effect. The linguistic analysis I have adopted has demonstrated the range and chang-ing focus of those arguments in a variety of countries, and has emphasised, moreover, the normative and persuasive power of that language. We have seen the legislative voice trace (forus) and help determine (for them) a shifting reality in which only the decibelage and timbre of that voice have remained, to a striking degree, constant.
It will do no good, therefore, to try and elaborate reasons for the maintenance of current policy or, for that matter, to use logic to criticise it. For it is not rea-son that isoperative here. Aswe have seen, the reasons for the continuing hostility of and severe penalties exacted by the law have remained no more constant than the substantive laws themselves. I am suggesting here, then, an argument somewhat counter to that of Himmelstein (1978) and the 'drug politics school'.
For while it is undoubtedly true that drug laws have never really been 'about' drugs at all, it is equally evident that what they have been about has varied dramatically. Yet the oppression and fury of the legislation have remained. There must, then, be something about the social construction of drugs which has allowed them to be used in this way. The constant anger which finds expression in drug legislation has been pressed into the service of a range of causes and beliefs. But that only makes the constancy ofthe anger all the more puzzling. We must look beyond reason and argument and politics, therefore, to learn why drugs - differently defined, differently understood, but always vilified- have consistentlygenerateda climate of fear and virulent legislative reaction. Only then, moreover, will those fears begin to be addressed and perhaps even, by dint of understanding them, loosen their grip upon us . To face our fears is to begin to disarm them.
The idea of 'disarming' fear is a suggestive metaphor. The idiom of war is commonly invoked in the debate on drugs. We speak of 'the undeclared war on drugs', of 'national campaigns' against drug abuse and 'drug wars' in the suburbs. But why does war occur at all? According to Scarry ( 1985, p. 121 and Part 11 ), the violence of war is a symbolic act and not merely an e-xertion of sheer force. War appropriates the human body as a symbol - but it is the very ambiguity of that symbol which gives it its potency. With weapons we inscribe meaning on the surface of human bodies; like a palimpsest we deface them with bloody ink. But each side means something different by their acts of violence. Deaths and injuries in war have opposite meanings - individual freedom or racial community, anti-communism or anti-colonialism, democracy or stability- until finally the dead and injured are appropriated by the winning side, and serve as a perpetual reminder of the symbols and issues previously left unanchored by the referential instability of the body. The power of the wounded body and the undeniability of death endow this interpretive act with meaning and legitimacy.
It is the plasticity of the human body as a symbol which makes its use as referent both possible and violently contested. The same is true of drugs. Drug use matters so much because it is a symbolic battlefield and a battlefield of symbols. It is a symbolism, moreover, based on aesthetics. Reasons have changed and modulated as we have seen; neither have our moral attitudes remained constant - witness, for example, the way in which marijuana in the 1930 ssignified sexual licence and indecency, whereas since the 1970s it has been presented as a downger to healthy sexual potency ( Himmelstein, 1983 ) . What has remained constant through all this has been the feelings of revulsion or seduction, of dirt and purity, which images of drugs have always provoked. It is something about the imagery and aesthetics of drugs themselves which is key here. The Australian Royal Commission of Inquiry into Drugs, which reported in 1980, provides an excellent example of the power of aesthetics as a way of under-standing drugs. Commissioned jointly by the States and Commonwealth of Australia and chaired by Jus-tice Sir Edward Williams, it was a document exhaus-tively researched and carefully compiled. Despite its detail and length, however, everything we need to know about this Commission is to be found in the six-teen pages of colour plates at the front of Book A (fol-lowing p. xx). The first picture is of a single opium poppy and the last, of a cannabis plant. They are beau-tifully photographed, elegant, simple, and lush. Between these images of beauty lie maps of world drug production and traffic routes, and page after page of photographs of the fruits of drug raids and custom searches, crudely displayed and harshly lVt Sticks of hashish are paraded alongside the dismanded radia in which they were found, sachets of heroin next to the objects in which they were concealed, and so on. The message created by these images is of the spirit of per-verse inventiveness by which the drug trade is carried on. Yet it is the drug itself that seems to be doing the hiding here. There are without exception no people in these pictures, only objects: agents of corruption and places of secretion. For Mr Justice Williams, the 'drug problem' is not a human problem at all, but simply a question of techniques of importation, law enforce-ment, and the interdiction of chemicals. Illegality and evasion constitute the sole focus of Justice Williams' investigation.
And what of the only two living things in these pictures? Our reaction to them is coloured by the harsh images which are their counterpoint. Our first reaction is perhaps to appreciate the beauty of the opium poppy, but by the time we reach the cannabis plant, this beauty has taken on an ironic tinge. In the context provided by the other pictures, the natural beauty of these plants seems seductive and deceptive. Papaver somniferum and Cannabis sativa may look harmless enough, but like a wanted poster, we are being warned. Theirs is a saccharine, cloying beauty, not of innocence but of depravity. It is the beauty of the femme fatale. Through our aesthetic reactions and not our ca pacity to reason, these images encapsulate a world view and present an argument. They tell us how to look at drugs - how to understand their beauty and how to resist their allure, which aspects of the drug problem matter and which are to be ignored. All these messages are conveyed simply through the operation ofthe visual, througha discourse that juxtaposesbeau-ty and brutality. The use of aesthetics here, therefore, is an effective way of analysing the approach and pri-orities of the Commission. But there is more to it than that. Aesthetics does not merely illustrate what beliefs are operative here; it is a powerful instrument in their construction. The design of the colour plates for the Australian Royal Commission of Inquiry into Drugs was neither a calculated manipulation of the emo-tions of the reader, nor a coincidence. Unconsciously perhaps, but no less genuinely for that, it reveals a response to the problem of drugs grounded in aesthe-tic reactions . A revulsion to certain images, and a con-cept of beauty as purity, guided the Commission throughout the execution of its task. In the imagery of the Royal Commission we can see that the constant hostility to drugs has not been driven by logic or ethics but by aesthetics. The war on drugs is a symbolic war, and ugliness, I would go so far as to suggest, is its enemy.
I have argued, then, that a linguistic archaeology of drug legislation reveals a flux of rhetorical strategies used to justify drug legislation around the world. At the same time, such as approach demonstrates the power which the framework and titles erected by the law exerts through characterising the subject matter of our lives. And I have further argued that, amidst all [ this changing rhetoric and rationalisation, it is the aesthetic, the visceral hostility to drug use, which has remained a constant and led to a constant - if by no means measured - response. I have done no more at this point than suggestpossible lines of enquiry into the complex aesthetic reactions which the idea of 'drugs' generates. A more specific and detailed enquiry into the aesthetics of drugs is both necessary and intriguing. Such an analysis is both descriptive and prescriptive: it seeks to explain a fraction of the world and it hopes to begin to change it. Focusing on aesthetics, we begin to explain the intensity of emotion which surrounds the question of drug use in society and of which the law is a clear reflection. And knowing what is really at stake, we may yet be able to address the aesthetic fears which drug use arouse. Perhaps we can move the focus of drug imagery away from the seductiveness of the poppy's juice and the devious hiding places of traffickers (evil secretions, both! ). Perhaps instead we can begin to focus on the faces of those who suffer because of the brutal drug legislation we continue to impose upon them.
Desmond Manderson, University of Chicago Law School, 1111 East 60th Street, Chicago, IL 60657, USA.
REFERENCES*Australia (1907). Royal Commission lnto Secret Drugs, Cures, and Foods (O. Beale, Commissioner). Melboume: Govern-ment Printer.Australia (1980). Australian Royal Commission of Inquiry Into Drugs, Books A-F (Sir Edward Williams, Commissioner). Canberra: Australian Government Publishing Service.
Blackwell, J.C. and Erickson, P.G. (Eds) (1988) . Illicit Drugs in Canada: A Risky Business. Scarborough: Nelson Canada. Berridge, V . and Edwards, G . (1981) . Opium and the People . Lon-don: St Martin's Press.Berridge, V. (1978.) War Conditions and Narcotics Control:
The Passing of the Defence of the Realm Act Regulation 40B.Journal of Sodal Policy 7, 285.Bonnie, R. and Whitebread, C. (1974). The Marihuana Convic-tion. Charlottesville: University Press of Virginia.
Boyd, N. (1984). The Origin of Canadian Narcotas Legislation. Dalhousie L.J.8,102. tanada (1973) . Commission of Inquiry into the Non-medical Use of Drugs, FinalReport(G. Le Dain, Chair). Ottawa: Govern-ment Printer.
Carney, T. (1987) . Drug Users and the Law. Sydney: Law Book.
Courtwright, D. (1982). Dark Paradise. Cambridge, MA: Har-vard University Press.
Derrida, J. (1981). Substance,3 1,5.Derrida, J . (1987). The Truth in Painting (trans. G. Bennington and I . McLeod ) . Chicago: University of Chicago Press.
Derrida, J. (1990). Force of law: The mystical foundation of authority.CardotoLawReview,11,919.Duster, T. (1970). The Legislation of Morality. New York: Free Press.Fortson, R. (1988) . The Law on the Misuse of Drugs. London:
Sweet & Maxwell.Foucault, M. (1973). The Order of Things. New York: Vintage Books.
Frye,N. (1982). The GreatCode. Toronto: Academic Press.
Genette,G. (1988). Structure andfunctionofthe title in litera-ture.Criticallnquiry,14,692.Giffen, P.J ., Endicott, S. and Lambert, S. (1991) . Panicand Indifference: The Politics of Canada's Drug Laws . A Study in the Sociology of Law. Ottawa: Canadian Centre on Substance Abuse.Green, M. (1979) . A history of Canadian narcotics control: The formative years. University of Toronto Faculty Law Review,37,42.Gusfield, ). (1963) . Symbolic Crusade. Urbana: University of Illinois Press.Gusfield,]. (1968). On legislatingmorals: The symbolicprocess of legislating deviance . Califomia Law Review,5 6,54.Helmer, J . (1975) . Drugs and Minority Oppression. New York: Seabury Press.Himmelstein, J . (1978. ) Drug politics theory. Joumal of Drug Issues,8,37.Himmelstein, J . (1983) . From killer weedtodrop-outdnug. Con-temporary Crises,7,13-38.
Horn, N. (1993). Tityrus. Law /Text/Culture,1,48 62.
McCoy, A. (1980) . DrugTraffic. Sydney: Harper & Row.
Manderson, D. (1988.) The first loss of freedom: Early opium laws inAustralia. Australian Drug and ALCohol Review,7,439.
Manderson, D. (1992) . Trends and influences in the history of Australiandrug legislation.JoumalofDruglssues, 22,507.
Manderson, D. (1993). From Mr Sin to Mr Big: a History of Aus-tralian DrugLaws. Melbourne: Oxford University Press.Manderson, D. (1994). Metamorphoses: Aesthetics, symbols, and the social construction of drugs. Journal of Drug Issues, in press.Morgan, H. (1981). Drugs in America - A Social History 1800 1980. Syracuse: Syracuse University Press.
Morgan, P. (1978). The legislation of drug laws: Economic cri-sis and social control. Joumal of Drug Issues, 8,53.
Musto, D. (1973) . The American Disease. New Haven: Yale Uni-versity Press.Scarry, E. (1985). The Body in Pain: The Making and Unmaking of the World. New York: Oxford University Press.
Small, S. (1969). Canadian narcotics legislation 1908-1923: A conflict model interpretation. Canadian Review of Sociology and Anthropology,6,36.Solomon, R. (1977-78) . The evolution of non-medical opiate use in Canada - Part 2: 1930-1970. DrugForum,6(1),1-25.
Solomon, R. and Green, M. (1982). The first century: The his-tory of non-medical opiate use and control policies in Cana-da. Urliverisity of WestemOntario Law Review,20,307.
Solomon, R. and Madison, T. (1976-77). The evolution of non-medical opiate use inCanada- Part 1,1870 1929.Drug Forum,5(3),237-265.
S
olomon, R. and Usprich, S. (1991) . Canada's drug laws. Jour-nal of Druglssues,21,17.S
outh Australia (1979) . Final Report of the Royal Commission into the Non-medical Use of Drugs, South Australia (R. Sackville, Chair). Adelaide: Gillingham Printers.Vi
ctorian Parliamentary Debates, Sessions 1982-83,1983-84.