“May a reasonable man take mere illegality to be sufficient evidence that an act is morally wrong…?”—M.B.E Smith. In other words, upon learning that someone has committed an unlawful act, should we automatically presume that he/she has disobeyed a moral code? A cursory look into the nature of positive law in the United States proves that the answer is a resounding “no” on the grounds that laws are arbitrary, inconsistent, and always evolving.
It is useful to consider substance use, or abuse, to demonstrate the arbitrariness of positive law, even within a governmental entity that upholds rule of law principals. The United States assumes the authority to determine whether the use, possession, and handling of certain substances are lawful. For instance, tobacco, an agricultural staple underlying US revenue, is legal despite that is addictive, increases the risk of lung cancer, heart disease and stroke, and accounts for 443,000 American deaths each year. However, marijuana, which is not taxed, has a smaller mainstream cultural acceptance and has given rise to a black market culture, is illegal even though it is not tied to any long-term health risks and can be used to suppress nausea, stimulate hunger, and treat glaucoma and gastrointestinal illness. If morality is intended to represent the common good, then the ethical argument should support the illegal substance and condemn the legal one.
In terms of inconsistency, there are conflicting laws even within the realm of the contiguous United States. The use of medical marijuana is currently legal in 17 states and illegal in the other 33. If legal violations are to be perceived as moral problems, it must follow that medical marijuana may be judged as moral in some places of the country but immoral in others. This dichotomy is simply untenable. Regardless of whether there is one absolute and fixed morality, as explained by Natural Law, or many changing moralities, as suggested by positivist thinkers, the same action cannot simultaneously represent both ends of the ethical spectrum due to the fact that it is occurring in different locations.
Finally, law is, by nature, an evolutionary process. Our founding fathers built our legal system to allow for laws to be challenged, reevaluated, and revised. So, while marijuana is illegal for recreational use today in the United States, it may be made legal one day in the future. Just as it is unfeasible for two actions to be concurrently moral and immoral on account of spatiality, the same logic applies to temporality. If smoking marijuana was made legal tomorrow, moral ideas would have to completely change from one day to the next in order for legal violations to be accurately judged in terms of ethics. Since morality represents an overall code used to distinguish between “right” and “wrong”, it cannot sensibly shift sides as abruptly as positive law.
Perhaps the 40% of American citizens who have used marijuana and those who continue to do so on a regular basis have already recognized that illegality does not necessarily translate to immorality and have chosen their own ethical orders above the nation’s laws. Just because people break the law does not mean its right, but just because the government declares an act illegal does not mean its wrong. If we consider the history of alcohol use in relation to the law, it shows that people are not inclined to change their behavior when it comes to substance use. People drank illegally during prohibition and continued to drink in a similar way when alcohol was again made legal. If history repeats itself, marijuana use may follow a similar course. Laws may one day change, but life will, more or less, remain the same.
–Brittany Perskin
Thinking About Law 
You provide a stimulating argument in regards to the legalization of marijuana. This post was written before November 6, 2012 where Election Day not only reelected President Obama, but allowed for the the adult use of marijuana to become legal in the states of Colorado and Washington. This supports the writer’s view that maybe the course of marijuana is changing. Aside from recreational purposes, it perplexes me that medicinal marijuana is still illegal in some states where cigarettes are legal in all 50 states. Cigarettes are known carcinogens and in a country where healthcare is such a debated topic, it seems that things that adversely effect health should be done away with. It will be interesting to see the amount of revenue generated from the sale and taxing of the marijuana industry. Marijuana use would stimulate the economy and eliminate black markets and the need for dangerous drug dealers.
I agree with you. Law and morality are by no means the same thing. And just because something is immoral, does not mean that it is illegal. I think your logic behind the eventual legalization of marijuana makes perfect sense, but I wonder if the same could be applied to other similar restrictions. Is it possible that the legal drinking age in the U.S. might also eventually be lowered? Underage drinking happens all the time, and is only becoming more of a problem as years pass. Why does the U.S. government deem drinking under the age of 21 “wrong” while Europeans deem it “right”? Right and Wrong are highly subjective criteria for creating the law, which makes me think that morality can’t really be the reasoning behind all law.
Excellent post. This is a very well framed argument, and I could not agree with you more. Law and morality, though they sometimes coincide, are not the same thing. I think there are several laws that attempt to abide by the rules of ‘morality,’ however, the two are separate entities.
On the issue of marijuana legalization, yes I think it should be legalized. I think It should be treated just like alcohol. Though I do not personally choose to partake, I think each are one’s own prerogative. Obviously, set laws that regulate it much like those that exist with alcohol (age, driving, etc). The side effects of weed are at most equal to those of alcohol and alcohol’s is legal, so why shouldn’t weed be legal too? If you think alcohol is immoral, then sure you can strike them both from legalization. But most do not, and this is evidenced in our country’s law pertaining to alcohol. It’s hypocritical to exclude weed from that discussion. Also, legalizing weed and issuing a federal tax on it would be a great way to stimulate our faltering economy.