‘Illegal’ drugs: a nonsensical construct
Lawyers often need to explain legal jargon in clear everyday language, yet because legal constructs are made from precise words in particular order, sometimes we can inadvertently mislead. The example I wish to draw attention to is the use of ‘transferred epithets’ and how we can readily presume a false equivalence between common parlance and legal drafting.
A transferred epithet is a linguistic shortcut that may remove the human element of an expression and effectively attribute that quality to the object. Take for example the idea of a ‘condemned cell’. If we were to take the expression literally we would imagine that this cell had been inspected and deemed unfit for use because of some inadequacy in its design or condition. Of course, we know what the expression means: it was a cell which contained a condemned prisoner (thankfully now a thing of the past in the UK). So what is the problem? In this case and generally, absolutely nothing. Yet we are so accustomed to this form of speech that it has found its way into the very fabric of describing legal norms. I suggest that in so doing we do a great disservice to the rule of law and the status of the legal subject.
Perhaps the most ubiquitous example is the invention of ‘illegal’ drugs and their corollary, ‘legal’ drugs. Of course, no actual law or worthy legal text would ever use such a term, but they are used by lawyers, policy experts and laypeople alike. Indeed, the whole of the recent Global Commission on Drugs Report features this quasi-legal construct.
Yet there is a huge conceptual distinction between legal reality and this notion. The law specifies a list of substances with respect to which we are ‘controlled’, and employs a different transferred epithet to identify them, namely ‘controlled drugs’. Notwithstanding that many might consider this term to be an oxymoron in practice (given that the authorities seem to have lost control over ‘controlled drugs’), I simply cannot abide the replacement of this term with the nonsensical construct of ‘illegal’ drugs that side-steps the whole idea of proportionate control. The legal subject has become subsumed by the object and is now devoid of all agency regarding activities with ‘controlled drugs’. The Misuse of Drugs Act 1971 sets out a raft of regulatory provisions (see sections 7, 22 and 31) to create licences and exemptions, and yet these are ignored except for a few chosen exceptions. It is also worth noting that there is no offence pertaining to the use of ‘controlled drugs’ except for opium (section 9).
It is my contention that the misuse of language supports the prohibitionist doctrine and the current regime of administrative function beholden to the false binary between ‘legal’ and ‘illegal’ drugs, which is in essence a dehumanising, nuance-free inequality of treatment between people concerned with all potentially harmful drug-related activities.
Solicitor (currently non-practising), Leeds
Well said Darryl