Why are some things legal and others not?

SOCIAL STUDIES - Published Monday June 15th, 2009

Why are some things legal and others not?

Alcohol is legal, even promoted, while marijuana is illegal, for example. Alcohol does go back in recorded history a little longer. Apparently beer first came on the scene during the Neolithic period around 10,000 BC. Wine is first seen in Egypt around 4000 BC.

At the same time, Marijuana was first used "medicinally" in 4000 BC in China. Zorastrian and Hindu religious practices dating from 3,000 years ago liberally use marijuana; and the first European use seems to have been around 500 BC when the Scythians brought it north.

As recreational drugs they are probably about on a par, and they would probably cause an equal amount of strain on the health system as both destroy the body in some way.

So why is one legal and one illegal?

How about prostitution?

This has always seemed rather stilted to me. Think about what I am allowed by law to sell in terms of my own body. I can be a labourer and use my strength to make a profit. I can use my mind and fingers to type this column. I can volunteer for psychological and medical testing. I can cook for someone, or even become a taster. I can sell my sperm, or my eggs, or become a surrogate mother; I can even choose to leave my organs behind after I die. Heck I can get paid for taking off my clothes, but if I want to use any sexual skill I might possess it is illegal?

The point I am trying to make is that a lot of laws are as much cultural as they are legal. North Americans have a real problem on the whole with sex and so most of our swear words are sexual, and most of the "worst behaviour" we can imagine revolves around sex.

Europe, by contrast, has different hang-ups and so sexuality is not seen us such a terrible thing. Prostitution is legal or just ignored in a lot of places.

If you don't think that laws are influenced by culture, just look at slavery during the 1800s. It was totally legal almost everywhere. Not only legal, but the vast majority of people could not even fathom a world without slaves. It was only when culture began to change, first in England and then in North America, that slavery went out of fashion and then became illegal.

Although I very much believe that we would eliminate many of society's problems by legalizing prostitution and marijuana; for example, unnecessary court and prison time; secondly it would reduce violence; third it would give prostitutes legal rights they do not have right now: the main point of using them as an example was simply to say that our cultural norms decide what is legal and what is not when it comes to things that are based on "moral" understandings.

Not only that, but what is written down as a law and the importance we give to that law is based on our feelings more than on any quantifiable test.

For example, speeding in a subdivision when children are playing is really, really wrong. Speeding on a four lane highway, is really not so bad.

I bet any one of us could come up with other laws, or variations of laws that we feel really aren't "bad" to break.

And so we do not condemn people with outraged voices when they break laws we think are silly anyway.

There were a slew of philosophers in the Enlightenment who took this on as a hobby. What they eventually got to was that there must exist certain axial laws or understandings that are primal. There must be laws which just have to be true. Some believed there were, and some argued that it all comes down to practicality. For example, it is easier to stay alive if you do not kill other people. Once you start killing, someone is going to come after you, so it is a practical decision not to kill.

In the end, rules are a socially agreed to contract that are based on the idea that we have to keep our group moving together with as little friction as possible. We all somehow agree to certain rules in order to make it work better. Do not steal helps us to keep a handle on ownership. Do not kill helps us to guarantee our old age. Do not walk on the grass makes landscaping easier. Keep your dog tied up means less dog bites or destroyed gardens.

The question is, do we blindly follow the laws of the past, or do we consciously rewrite them to fit our current societal norms?

This is no abstract question. We are in a period of great change and uncertainty. For the most part people seem to be trying to fix the world's current problems by re-invigorating the rules and laws already in place. No one seems to be stepping outside and taking a broader view and asking, if it brought us to this place of war, environmental destruction, and economic ruin; might there not be a better way to live?

I hope someone starts coming up with the answers. Perhaps if we all work together we can bring about a cultural shift in the way we see the world and everything will be all right.

Euripides, a Greek playwright in the 400s BC wrote something we need to adopt as our slogan: --Question everything. Learn something. Answer nothing."