Before the High Court: the legal systematics of Cannabis

Abstract

ABSTRACT This article examines the history of a legal-scientific controversy: the challenges to criminal prohibitions on marijuana, which invoked contested scientific views of the taxonomy of the cannabis plant. Facing prosecution in the 1970s, numerous defendants raised the ‘botanical defence’, an argument that relied on the expert testimony of scientists to dispute the classification and nomenclature of genus Cannabis. This article analyses judicial opinions from the three nations where the botanical defence was raised – the United States, Canada, and Australia – where the meaning of the name, ‘Cannabis sativa L.’, was found to be in the domain of judicial, not scientific, authority. Although this satisfied the need for closure in the criminal cases, the article draws attention to the ongoing consequences of the taxonomic debate for the regulation of the cannabis plant under intellectual property laws.