Nobody is Above Natural Law, Everybody is Above Positive Law

The law library of the Fraser Regional Correctional Centre is modest: one small cupboard full of law books and journals, a few tables and chairs, and no bathroom. You’re not allowed to ask for a bathroom break while you’re in there and they don’t let you know that you are going to the library until a minute before. Of course, my first and only visit to the library came immediately after I drank a bunch of soup and water so it was a bit distracting and a bit painful. I managed to find a few nuggets of truth in there, nonetheless.

It helps to know what you’re looking for ahead of time. I was fortunate enough to find a copy of the October 30 Vancouver Sun floating around my unit, where I read reporter Ian Mulgrew’s article entitled, “High Minded Drug Policy is Not Above the Law“.

In the article, Mulgrew points out that Judge Galati noted the Supreme Court did not buy my arguments and neither did he: “used properly, cannabis may well be a remarkable substance”, but no one is above the law.

Though the Supreme Court disagreed with me about Section Seven of the Constitution: protecting harmless people from being harmed, they did agree with me in paragraph 100 of their 2003 decision that cannabis, used properly, is harmless.

Now, if it’s true that most people use cannabis properly and to their benefit, then it’s also true that most cannabis users, growers, and dealers are harmless. If it’s true that most of the cannabis community is harmless, then the criminalization of this harmless community can be said to be an act of oppression and scapegoating.

What does history teach us about those who resisted oppression and scapegoating? Were they above the law or just more in touch with the law than their oppressors?

For example, was Martin Luther King Jr. acting above the law when he repeatedly took part in civil disobedience? In his 1963 letter from a Birmingham City jail, he argued that there were two kinds of laws: just laws and unjust laws, and that it was every citizen’s duty to disobey unjust laws. I believe MLK wasn’t above the law, at least not above the just laws. He may well have been above the unjust law of racial segregation.

And a good thing, too. For, if individuals like him didn’t rise above segregation, it might still be around. I wonder if Judge Galati thinks that jailing MLK would have been the right thing to do to punish him for resisting his particular oppression based upon his harmless characteristics.

Or take the Nuremberg war trials for another example. Often, the Nazi oppressors excused their oppressive activities with the ‘just following orders’ argument. In fact, many were also following the law, as well. The Final Solution was the law of the land. Were those who defied it above the law? Didn’t the victorious Allies tell the defeated Nazis at Nuremberg they had a duty to disobey orders or laws when they were, on the surface, unconscionable? When they were obviously an attack on harmless scapegoats?

I wonder if Judge Galati thinks that jailing Germans who defied the Final Solution would have been the right thing to do. Obviously, sometimes people are above the law when the law itself is creating harm.

This bring me back to my adventure in the Fraser Regional Correctional Centre. I was looking for a precedent in Canadian law that delineated just laws from unjust laws; one that didn’t rely on our disappointing constitution. I think I found it.

It’s called Chabot v. Les Commissaires d’ecoles de Lamorandiere, 1957 B.R. 707 at 721-22 – from the Quebec Court of Appeal. I found it on page 177 of the Canadian Law Dictionary from 1998 under the heading “Natural Law”. The passage states:

This law, which is different from man-made law, is set forth by God through human reason to conform man’s human nature, meaning his whole mental, moral, and physical constitution. Knowledge of natural laws may be attained merely by the light of reason, from the facts of their essential agreeableness with the constitution of human nature. Natural law exists regardless of whether it is enacted as positive law.

In other words, natural law is pure reason and the source of law, and positive law is the human attempt at manifesting natural law. When positive law and natural law differ, we should abandon positive law and replace it with a new positive law that is more reasonable. In that way we are all above positive law and we are all subject to natural law – all of us – MLK, Germans living in Nazi Germany, and members of the cannabis activist community.

I found another quote about natural law on page 1055 in the 8th Edition of Black’s Law Dictionary. It states:

Natural law, as it is revived today, seeks to organize the ideal element in law to furnish a critique of old received ideals and give a basis for formulating new ones, and to yield a reasoned cannon of values and a technique of applying it.

From Roscoe Pound, The Formative Era of American Law

By the way, I also had time to look up positive law in the Canadian law dictionary but didn’t have enough time to write it down. I remember it was defined more or less as ‘law enacted by political superiors on their inferiors’. Positive law, like segregation or the Final Solution, was created by our superiors and challenged by inferiors. Something tells me we need to reevaluate the legal definitions of ‘superior’ and ‘inferior’.

One last thought: if anyone wants to find a copy of Chabot’s or any other natural law case or a harm principle within sentencing case and send it to me at Fraser Regional Correctional Centre, I would greatly appreciate it. Something tells me it’s not in the cupboard.

Send legal cases or supportive letters to:

David Malmo-Levine
Fraser Regional Correctional Centre
PO Box 1500,
Maple Ridge, BC

David Malmo-Levine is a Vancouver marijuana activist incarcerated at the Fraser Regional Correctional Centre in Maple Ridge, BC, for his establishment of the Vancouver Herb School. Please click here and here for more information on David’s case.

David Malmo-Levine



  1. Anonymous on

    it was agreed that parliament should respect the charter as a show of law from time immemorial.
    this has never been refuted, instead is an entrenched right.

  2. Anonymous on

    I argue, that under
    (Article 29)un declaration human rights
    If the exercise of rights and freedoms is subject to limitations determined by law and
    Declares that no state, group, or person has any right to engage in activity to perform any act aimed at destruction of any of the
    rights and freedoms.
    Then with the protection of the freedoms under the “United Nations Declaration of Human Rights”,
    The Canadian Charter, and The Bill of Rights of England.
    which all share a common heritage and the reinforcement of the
    Magna Carta, specifically stated and with expansion upon the definitions of right and freedom provided within.

    Therefore with precedent of 21 July 1995 Justice May ruled, the courts ability to
    provide fair trial is prohibited by parliamentary proceeding and aims to destroy rights and freedoms of the person as declared.

    With the rights and freedoms defined by the Magna Carta and not refuted but reinforced. They are in other words IMMUTABLE.
    Therefore if Parliament is IMMUTABLE then they have to follow the basics of rights and freedoms defined in the Magna Carta to which
    the evolved constitutions and Bills of Rights and Charter elaborate upon but do not provide a definition to.

    Part of that definition (1765) was that because Parliament could legislate on anything it could potentially even legislate the impossible as valid law if not practical policy.
    The respect of the charter was agree upon in so far as to say,
    The law is the Law,
    The Law is Supreme
    able to stand scrutiny of lawful judgment of peers.
    Justice May’s decision reinforces this theory I have.

  3. Dave on

    No, I think I know what they’re trying to say. They’re a bit like me; have trouble expressing thoughts into words. Write them down? Well that’s another chore all together. I don’t think they are American as in US; sounds more like American (Canadian/US) First Nations People. As we know, the crown has not been good to them either.

    So now David, what makes you think the crown (law) has yours’ and its other subjects’ best interest at heart. They don’t, it’s all about control. And as far as I can see they protect their control through copyrights. In other words, you need to join their society to get the keys.

    We, and you also David, the common-sense-people, naturally go with natural law = common law = constitutional law and to us that means no victim no crime. But according to some, our courts no longer operate in that jurisdiction.

    They operate in equity and admiralty jurisdictions; mostly admiralty. Admiralty, if I’m not mistaken, is international law. Equity being contracts and admiralty being contracts with criminal penalties.

    I’m pretty sure David that your cases were held in admiralty jurisdictions. That’s why your no victim no crime makes sense to us and maybe even to the judge but not the court. What you did was like trying to defend a parking ticket in a criminal court. Talk all you want, bring all the experts you think you need; they won’t listen because you’re in the wrong room preaching to the wrong crowd (crown/clown)! According to them, you broke their rules and admitted to it so they have to even the score. Eh David, if that’s not balance then what is?

    They know we are common people who naturally operate in common law. And so they keep us busy tangled-up in their web of procedures in the wrong jurisdiction. No wonder we lose or go away frustrated and fearful.

    Just like the comments above, deep down it’s like this stockholm syndrome. We have respect for our oppressors and can’t understand why they won’t let us all the way into their inner-circles. Well don’t covet their inner-circles and you will get glimpses of how they operate against us.

    You know David since I’ve been researching this, supreme court cases make more sense. Not common sense but more like dollar and cents! And you know, rather than defending ourselves against them why don’t we start suing them in their own courts?

  4. slade420 on

    Does anyone know if the application of Natural Law would be worth mentioning at the senate hearings on bill C-15? I noticed lawyer, and friend of CC, Kirk Towsaw will be appearing before the senate committee. He might be able to find something worth telling them.

  5. Mr.Duckets on

    The above two posts are an excellent reason why America should stop spending so much on drug prohibition and start spending a little more on the education system. Do us all a favor and never leave the United States. You, and people like you, are the reason I have to apologize for us whenever I travel outside of the USA.

  6. Anonymous on

    Why? After 500years why? should the rest of the world CARE?? WHAT Happens to a bunch of europeans who wont even obey there own rules?(NOT OURS?) Why should anyone world wide, risk anything for a failed plan and a bunch of failers? The only thing you and marc has changed is just your addresses? Enjoy the cage! Thats why the queens gone here, maybe all of you should wake up and smell the crowns BULLSHIT! But then again your only subjects?

  7. Anonymous on

    Your QUEEN is above the law? Oh yea and all her family too?Your plan up there FAILED! Why should any group or person should follow it? When you have that answer we might listen then. Till them enjoy the europen cage?

  8. Anonymous on

    Who would be more qualified to assess whether Cannabis should be under the same controls as heroin, 7 Supreme Court judges or the AMA? The AMA says Cannabis has accepted medical use and should be under similar controls as liquor. Some Canadian judges seem to think that Cannabis causes schizophrenia so it must be brutally suppressed. Weird thing is that nobody actually ever heard of anybody who was perfectly normal then smoked a joint and suddenly became a raving schizophrenic. Does anybody know anyone whose father or mother died from liver problems directly related to alcohol abuse? I sure do. Direct health care costs related to alcohol are 45 times more than from Cannabis, yet it hasn’t been classified as a narcotic or prohibited. That clearly demonstrates that Canadian drug laws are not based on the harm produced by them.

    Nobody actually has a viable answer to why Cannabis is treated as a dangerous narcotic, so they make some up by pointing to the few people who became schizophrenic and coincidentally also used Cannabis. Who do these judges think they’re dealing with, morons like them? Those judges just got their bluff called by the AMA. Now what are they going to think up the NEXT time somebody appeals to the Supreme Court AND includes the AMA’s report in their statement to the court? Will they tell us that they are far more qualified than the AMA to determine the properties of a drug? Considering how arrogant they are, probably yes.

  9. Anonymous on

    In disregard of how much I love seeing you outsmarting them time after time Dave, from my perspective I’m affraid that once you are delivered to the great good of justice…

    Eventually it’s all up to the litle brain activity your judge might be able to pull off.

    Sure wished it to be different thougH.



    Only thing that falls me in is trying to come up with some complete and radically altered new aproach that excludes the whole of our judicial system.

    Let’s brainstorm something together now while we’ve got the time for it mate.