saizai
17th November 2008, 11:49 PM
(Crossposted (http://saizai.livejournal.com/901852.html) from my blog.)
First, I'd like to give one of the most blatant examples I know of.
I'm not interested in discussing drug policy here; this is simply an illustrative example.
Definitions per the Controlled Substances Act:
Schedule 1: high abuse potential, no medical use, and no safe use under medical supervision
Schedule 2: high abuse potential, has medical use, abuse may cause severe psych/physical dependence
Schedule 3: less abuse potential than s.2, has medical use, abuse may cause moderate/low physical dependence or high psych dependence
Schedule 4: low abuse potential vs s.3, accepted medical use, abuse may cause limited physical/psych dependence
Schedule 5: low abuse potential vs s.4, accepted medical use, abuse may cause limited physical/psych dependence vs s.4
The legislature has found that GHB (which is dual-listed as S.3 under the trademark Xyrem O.o), pot, various opiates, MDMA, psilocybin, LSD, etc etc., have "no medical use" and no possibility of safe use even under medical supervision - despite studies on all of them demonstrating medical efficacy and safe usability.
However, certain other drugs are not scheduled:
* nicotine: at least moderate abuse potential, minimal medical use, abuse can cause severe dependence with mild to severe adverse health consequences (cancer, lung problems) and mild risk to others' health (2nd hand cancer / lung problems) - Schedule 2? 3?
* alcohol: high abuse potential (AA anyone?), minimal medical use (efficacy of small amounts is still under debate), abuse can cause moderate to severe dependence with mild to severe adverse health consequences (Korsakoff's Syndrome) and significant to severe risk to others' health (drunk driving) - Schedule 2? 3?
My point here is not to make any argument about drug policy per se, but rather that the current legislative "findings" violate the specifications listed in the law - the specified class members neither fit the class as described, nor are a complete set of the things that fit the class as described.
However, the justification of the law is based on the specifications, not the findings as such.
Therefore I propose the following (very rough) draft of a meta-law.
Every legislative finding that declares the members of a class must be based, where possible, on the preponderance of currently available scientific evidence (PCASE).
If any finding is not based on PCASE, or if available evidence has significantly changed since the last review of the finding, then any citizen may challenge the finding to be revised in accordance with PCASE.
The legislature's findings shall be interpreted by the courts as being an initial decision based on the legislature's review of PCASE, rather than an element of the law per se. If any part of the law is a mere list of members of a class that is otherwise explicitly defined, or whose underlying composition can be understood based on the legislative intent, then that list shall be interpreted as a finding in this sense, and the definition of the class as law.
Wherever possible, the courts shall interpret findings in the light of the classifications specifically expressed in the laws, and when reviewing a challenge to a finding, shall ensure that the revised finding constitues a sensible category.
Wherever possible, courts shall combine ongoing cases that deal with review of the same finding, using the combined evidence cited in all such combined cases.
[insert something here to prevent "special casing" things as a way to get around proper classification, e.g. "things that are foo, plus bar because we feel like it" should be interpreted as nothing more than "things that are foo" ]
[insert something here to prevent legislative prevention of scientific investigation that might disprove findings, unless there is PCASE to believe that even attempting such investigation would be very likely to result in severe public harm, and that this requirement should be interpreted with a strong bias towards freedom of science]To finish the example above, in order to not have alcohol and tobacco classified as Schedule 2-3 substances, the legislature would need to change the law so as to allow for certain classes of drugs to be used recreationally. This wouldn't necessarily require reclassification from Schedule 2-3, so much as an additional classification (perhaps on the basis of the expected damage and likelihood of dependency, psychological benefits, etc).
To not have a bunch of drugs *de*classified, again, the schedule definitions would need to be changed - for example, to explicitly outlaw hallucinogenic substances (even when medical efficacy, safety of use, and low abuse potential have been established).
Which way the legislature in their infinite wisdom choose to rule is up to them; they would simply be required to be consistent about it, and in accord with what the law says it does.
The draft obviously needs a lot of work, but I would hope that the final form would be less than a page in length; the intent is straightforward enough, though it is indeed quite broad.
It'd need to be passed as a proposition no doubt, since no legislature would ever restrict themselves to this sort of truthfulness.
In any case, the intent is basically: the legislature has the power and responsibility to make laws, decide what classes of things are treated in what manner, etc, and this proposition does not challenge that.
However, we should not have cases where non-evidence-based findings are used to create laws that do not, in fact, do what they say they do. If you want to make something legal or illegal (or whatever), say so explicitly, and do so in a way that deals with conceptual categories of things.
I'd appreciate suggestions from people who understand and agree with my intent for how to better construct this, and reasoned arguments from people who don't as to why it's a bad idea (or what I should explain to make it more understandable).
Please stay away from the issue of drug policy per se, as that is completely tangential to the topic at hand.
First, I'd like to give one of the most blatant examples I know of.
I'm not interested in discussing drug policy here; this is simply an illustrative example.
Definitions per the Controlled Substances Act:
Schedule 1: high abuse potential, no medical use, and no safe use under medical supervision
Schedule 2: high abuse potential, has medical use, abuse may cause severe psych/physical dependence
Schedule 3: less abuse potential than s.2, has medical use, abuse may cause moderate/low physical dependence or high psych dependence
Schedule 4: low abuse potential vs s.3, accepted medical use, abuse may cause limited physical/psych dependence
Schedule 5: low abuse potential vs s.4, accepted medical use, abuse may cause limited physical/psych dependence vs s.4
The legislature has found that GHB (which is dual-listed as S.3 under the trademark Xyrem O.o), pot, various opiates, MDMA, psilocybin, LSD, etc etc., have "no medical use" and no possibility of safe use even under medical supervision - despite studies on all of them demonstrating medical efficacy and safe usability.
However, certain other drugs are not scheduled:
* nicotine: at least moderate abuse potential, minimal medical use, abuse can cause severe dependence with mild to severe adverse health consequences (cancer, lung problems) and mild risk to others' health (2nd hand cancer / lung problems) - Schedule 2? 3?
* alcohol: high abuse potential (AA anyone?), minimal medical use (efficacy of small amounts is still under debate), abuse can cause moderate to severe dependence with mild to severe adverse health consequences (Korsakoff's Syndrome) and significant to severe risk to others' health (drunk driving) - Schedule 2? 3?
My point here is not to make any argument about drug policy per se, but rather that the current legislative "findings" violate the specifications listed in the law - the specified class members neither fit the class as described, nor are a complete set of the things that fit the class as described.
However, the justification of the law is based on the specifications, not the findings as such.
Therefore I propose the following (very rough) draft of a meta-law.
Every legislative finding that declares the members of a class must be based, where possible, on the preponderance of currently available scientific evidence (PCASE).
If any finding is not based on PCASE, or if available evidence has significantly changed since the last review of the finding, then any citizen may challenge the finding to be revised in accordance with PCASE.
The legislature's findings shall be interpreted by the courts as being an initial decision based on the legislature's review of PCASE, rather than an element of the law per se. If any part of the law is a mere list of members of a class that is otherwise explicitly defined, or whose underlying composition can be understood based on the legislative intent, then that list shall be interpreted as a finding in this sense, and the definition of the class as law.
Wherever possible, the courts shall interpret findings in the light of the classifications specifically expressed in the laws, and when reviewing a challenge to a finding, shall ensure that the revised finding constitues a sensible category.
Wherever possible, courts shall combine ongoing cases that deal with review of the same finding, using the combined evidence cited in all such combined cases.
[insert something here to prevent "special casing" things as a way to get around proper classification, e.g. "things that are foo, plus bar because we feel like it" should be interpreted as nothing more than "things that are foo" ]
[insert something here to prevent legislative prevention of scientific investigation that might disprove findings, unless there is PCASE to believe that even attempting such investigation would be very likely to result in severe public harm, and that this requirement should be interpreted with a strong bias towards freedom of science]To finish the example above, in order to not have alcohol and tobacco classified as Schedule 2-3 substances, the legislature would need to change the law so as to allow for certain classes of drugs to be used recreationally. This wouldn't necessarily require reclassification from Schedule 2-3, so much as an additional classification (perhaps on the basis of the expected damage and likelihood of dependency, psychological benefits, etc).
To not have a bunch of drugs *de*classified, again, the schedule definitions would need to be changed - for example, to explicitly outlaw hallucinogenic substances (even when medical efficacy, safety of use, and low abuse potential have been established).
Which way the legislature in their infinite wisdom choose to rule is up to them; they would simply be required to be consistent about it, and in accord with what the law says it does.
The draft obviously needs a lot of work, but I would hope that the final form would be less than a page in length; the intent is straightforward enough, though it is indeed quite broad.
It'd need to be passed as a proposition no doubt, since no legislature would ever restrict themselves to this sort of truthfulness.
In any case, the intent is basically: the legislature has the power and responsibility to make laws, decide what classes of things are treated in what manner, etc, and this proposition does not challenge that.
However, we should not have cases where non-evidence-based findings are used to create laws that do not, in fact, do what they say they do. If you want to make something legal or illegal (or whatever), say so explicitly, and do so in a way that deals with conceptual categories of things.
I'd appreciate suggestions from people who understand and agree with my intent for how to better construct this, and reasoned arguments from people who don't as to why it's a bad idea (or what I should explain to make it more understandable).
Please stay away from the issue of drug policy per se, as that is completely tangential to the topic at hand.