ENCOD

Legal Analysis of Cannabis Persecution from the Aspect of the Theory of Law and Fundamental Principles of the Creation of Law

The submitted legal analysis is based on various aspects of evaluating material sources of law, leading to the definition of Cannabis family plant handling. The basic emphasis in put on the platform of international law definition containing and forming the approach of the participating countries – the Single Convention on Narcotic Drugs of 1961, as amended.

The existence of the state as a public law corporation with its internal repressive and regulatory legal mechanisms, directly influencing human rights in the global perspective, is tightly connected with the above-stated initial position.

A democratic state as a public law corporation bases its existence within the natural law doctrine on the concept of the so-called social agreement, based on which each human, born into this social formation naturally and voluntarily gives up part of his or her personal autonomy for the benefit of bodies created within the state, to ensure his or her own human, social and security needs. The doctrine presented this way, author of which is a Philosopher of the Enlightenment Era - J. J. Rousseau, is the basic justification of the origin and existence of a state based on the concept of natural law, which is a prerequisite also for the origin of further social standards, presented through the structure of internal state or international law. It is a positive law constructed through legislatively formalized procedures.

From a deeper, philosophical and legal aspect, it is thus about acknowledging the deduction or dependence of positive law on the natural law. Thanks to this consideration, we come to the evaluation of the international convention of 1961 itself – the Single Convention on Narcotic Drugs, approving, legitimacy and validity of which is fully subordinated to theoretical and legal standards, solidly anchored and throughout the years presented by the legal science.

One of the basic principles of creating any legal act is the strict requirement to use logics, rationally and factually comprehensible facts. No agreement which is in conflict with the elementary logics itself and does not follow rational outcomes of material sources of the created consensus is valid - either completely or in its part that contradicts construction rules of logics.

If we choose a higher being – God, nature or Buddha nature as the source of natural law, we always express the principle of belonging to our environment, which is the prerequisite for the existence of not only each individual, but as we learned above, also the state. The convention subject of which are certain substances, thus substances which can be labeled with a chemical formula, cannot involve a plant family. To define a plant family as something which is prohibited is incompatible with the doctrine of natural law which is the prerequisite for the origin of the state and thus positive law created by the human - more so in case of a repressive type of document prohibiting or substantially limiting handling of the given substances. No convention outlawing a part of living nature can be valid; from the aspect of legal science, this convention is totally invalid, at least in the part containing such definition.

Humans cannot exclude what is a condition of themselves, of their existence - that is the nature, though “only” its certain part. In other words, a subject of definition worded in such a way  dealing with narcotic and psychotropic substances – involving the whole plant family – means the genocide of the whole plant family “consecrated” by an international convention.          That is unacceptable, it is against the doctrine of natural law as well as against basic logics, thus the convention is invalid in the part mentioning the plant family and is not binding for any human being on this planet.

On the other side, if ratifying countries persecute their citizens based on such a politically forced construct, they commit the worst case of violation of human rights. At this moment, the repressive policy of the state must be replaced by regulation policy. Sanctioning of people dealing with plant cultivation, thus establishing an intimate relationship with the nature as a natural law entity, is in contradiction with human rights which are also a product of natural law doctrine and have priority to the positive law. That is even contained in the constitution – if a country adopts laws violating human rights, citizens shall not be obliged to follow them. The result of the last-mentioned ideas of this analysis is ´ius resistendi´, being a legitimate and even legal (guaranteed by the constitution) instrument of citizens´ protection against the oppression of the state.

Therefore, I am asking you to exclude all plant families from the current international conventions on drugs.

In Vienna, 12. 11. 2013

 

_______________________________________________________          Bc. František Písařík with help of JUDr. Vladimír Zemko