Cognitive liberty and the constitutionality of criminalising psilocybin mushrooms in South Africa
Sebastian William Foster
South African Journal on Human Rights January 2, 2023 DOI: 10.1080/02587203.2023.2202875 (opens in new tab)
Study at a glance
AI-extracted from the abstract| Characteristics | Theoretical or philosophical paper Peer reviewed |
|---|---|
| Topics | Psilocybin |
| Keywords | Constitutionality Legislation Law Interpretation philosophy Human rights |
| Citations | 3 |
| Key points | Argues that the criminalisation of psilocybin mushrooms under South African law is not justifiable because it conflicts with the constitutional right to cognitive liberty protected under section 12. |
Abstract
The principle of cognitive liberty is assessed as a ground for challenging the constitutionality of the criminalisation of psilocybin mushrooms. To do so, s 12 of the Constitution of the Republic of South Africa, 1996, is analysed, determining that s 12(2) is not a numerus clausa and is capable of enforcing further protections and/or entitlements, such as cognitive liberty. Further, it is suggested that the interpretation of s 12(2)(b) offers protection to both body and mind, and as such, also protecting the cognitive liberty right. Having established that the Constitution protects the right afforded by the principle cognitive liberty, it is deduced that the current criminalisation of psilocybin mushrooms – a means through which an individual may exercise their cognitive liberty rights – in terms of the Drugs and Drug Trafficking Act and Medicines and Related Substances Act, conflict with the rights established in s 12 of the Constitution. A s 36 limitation of rights analysis is presented, detailing that the criminalisation of psilocybin mushrooms is not justifiable when the nature and importance of the limited right are weighed against the importance and purpose of the criminalisation. As such, this article concludes that the current criminalising legislation is not justifiable.
Comparable studies
Other theoretical and historical papers on psilocybin, most cited first.
| Study | Year | Design | Participants |
|---|---|---|---|
| REBUS and the Anarchic Brain: Toward a Unified Model of the Brain Action of Psychedelics | 2019 | Theoretical or philosophical paper | |
| Psychedelics as Medicines: An Emerging New Paradigm General population | 2016 | Theoretical or philosophical paper | |
| Theorizing that Psychedelic Assisted Therapy May Play a Role in the Treatment of Trauma-Induced Personality Disorders. | 2024 | Theoretical or philosophical paper | |
| What Geometric Visual Hallucinations Tell Us about the Visual Cortex | 2002 | Theoretical or philosophical paper | |
| Psilocybin-assisted therapy of major depressive disorder using Acceptance and Commitment Therapy as a therapeutic frame | 2020 | Theoretical or philosophical paper |