Perhaps the major impediment to rational decision-making is the tendency to think only in terms of the legal system in general and of the criminal justice system in particular. This thinking is certainly understandable, given the history of marihuana's involvement with the criminal law. Nonetheless, the law does not exist in a social vacuum, and legal alternatives can be evaluated only with reference to the values and policies which they are designed to implement and the social context in which they are designed to operate.

Legal fallacies are apparent on both sides of the marihuana controversy. Many of the persons opposed to marihuana use look exclusively to the law for social control. This reliance on the law is stronger today because many of our fellow citizens are uneasy about the diminishing effectiveness of our other institutions, particularly when the non-legal institutions have been relatively lax in controlling drug related behavior. Increasing reliance is placed upon the legal system to act not only as policeman, but as father confessor, disciplinarian, educator, rehabilitator and standard-bearer of our moral code. Little or no thought is given to what impact this over-reliance on the law has on the viability of other social institutions, not to mention it's effect on the legal process.

A society opposed to marihuana use need not implement that policy through the criminal law. Non-legal institutions, such as the church, the school and the family, have great potential for molding individual behavior. Accordingly, the policy-maker must delicately assess the capacity of the legal system to accomplish its task and must consider the mutual impact of legal and non-legal institutions in achieving social objectives.

We recognize the short-sightedness of an absolute assumption that the criminal law is the necessary tool for implementing a social policy opposed to marihuana use. But equally short-sighted is the opposing contention which attempts to analyze the law separately from its underlying social policy objective. This argument assumes that if the law isn't working, or if the costs of enforcing the law outweigh its benefits, the law should, therefore, be repealed.

If society feels strongly enough about the impropriety of a certain behavior, it may choose to utilize the criminal law even though the behavior is largely invisible and will be minimized only through effective operation of other agencies of social control. Laws against incest and child-beating are good examples. In weighing the costs and benefits of a particular law, one must provide a scale and a system of weights. The scale is the normative classification of behavior, and the system of weights is the largely subjective evaluation of the importance of the values breached by the behavior. This weighing process is what is open to dispute.

In sum, no law works alone. Where an unquestioned consensus exists about the undesirability of a particular behavior and all social institutions are allied in the effort to prevent it, as is the case with murder and theft, the law can be said to "work" even though some murders and thefts may still be committed. Where society is ambivalent about its attitude toward the behavior and other institutions are not committed to its discouragement, the law cannot be said to be working, even though many people may not engage in the behavior because it is against the law.

The question is whether the social policy, which the law is designed to, implement, is being achieved to a satisfactory extent. To determine the role of law regarding marihuana, we must first look to society's values and aspirations, and then define the social policy objective. If we seek to discourage certain marihuana-related behavior, we must carefully assess the role of the legal system in achieving that objective.