Does Law Follow the Status Quo?

The food for thought question this week was to explore whether the purpose of law and judicial decision making is to maintain the “status quo”. To begin my exploration of this question, I figured it best to clarify what the status quo is.

Status Quo: The existing condition or state of affairs.

So maintaining the status quo is to simply keep things the way they are. It means to “not rock the boat”, one might say.

Our case study for this week was that of the Buck v. Bell case, where Oliver Holmes, a judge in the United States decided to endorse a verdict that would allow Carrie Bell to be sterilized. As Holmes puts it “Three generations of imbeciles are enough” (Pavlich, 2011, p. 57). We can all be shocked and outraged at the decision and the fact that this was a reflection of how many people thought during this time, but it was the status quo. This was how people believed they were improving society. Holmes says that “sterilization of mental defectives, under careful safeguard, etc. can be of benefit to themselves and society” (p. 57). Stopping the “next generation of imbeciles” was the goal of eugenics, and was the status quo of that day.

Holmes’ decision reflected that status quo, and Carrie was not the only woman forced to be sterilized around that time. According to the below video, before World War 2, 35 states had some legislation in place to target the “feebleminded”.  It is part one of a small movie series looking at this time period.

http://www.youtube.com/watch?v=y3B-GUEvc-c

The fact that eugenics legislation had spread this far across America shows that law does at least partially seek to maintain the status quo and dominant lines of thought of the day. The interesting thing is how often Hitler’s name comes up during talks of the horrors of eugenics… and yet people forget that the eugenics movement had already picked up a lot of steam in the United States.

I tried thinking of a more recent example to try and further explore the issue, and decided upon the issue of marijuana. There is intense pressure to legalize marijuana right now in Canada.

http://www.rxdirect2u.com/marijuana_news/news-030716-01.html

http://www.forbes.com/sites/artcarden/2012/08/16/isnt-it-high-time-we-legalize-marijuana/

These links were just the top of the pile on a google search for the issue of legalizing marijuana. It is an intensely hot topic right now, and a recent poll suggests that 66 percent of Canadians are in favour of legalizing or at least decriminalizing marijuana use.

The point here is that if law really does support the status quo, we will likely soon see marijuana use become legal. It has already become an issue that police generally do not go after as much as they used to, unless there are large quantities or dealing/trafficking going on. The status quo is changing and so are the attitudes of society and government towards marijuana. The poll makes that point clear, and I believe that pressure from society will cause government (sooner or later) to modify the law.

More evidence is given to this if we look at gay marriage. Granted, it is still a movement in progress, but gradually people are coming around as the dominant line of thinking is changing. Homophobia is not as present as it was (or at least not as overt) and more public support for gay marriage has caused it to become legal and less frowned upon. The Harper government has legally recognized the marriages of gay couples.

So, really, the point here is that the current trends and issues of society can pressure law and judicial decision making (eventually) to conform and change itself to reflect society’s status quo. I believe it is at least partly political. If a politician today is advancing an anti-gay or anti-pot campaign, he likely will not be elected because that point of view is seen as intolerant in today’s society. The current frame of mind of society may be reflected in which politicians we choose to elect. This continues on to be reflected in the laws that those politicians advance, and that spills over into the decisions judges must make, due to new legislation, as while judges do have a lot of discretion and “wiggle room”, they must still follow the rules as created by politicians.

References

Pavlich, G. (2011). Law & Society Redefined. Canada: Oxford University Press.

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1 Comment

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One response to “Does Law Follow the Status Quo?

  1. In your commentary on Holmes’ ruling in the Buck v. Bell case, you note that “We can all be shocked and outraged at the decision and the fact that this was a reflection of how many people thought during this time, but it was the status quo.”

    Was it?

    Certainly, the Supreme Court’s decision in this case was aligned with the growing eugenics movement and the popularity of social Darwinism. But it was also a major break with the prevailing case law. Holmes, as Pavlich notes, did not base his written decision on a formalist reading of rules and doctrines, but rather on a pragmatic interpretation of the statute based on ‘extra-legal’ factors. This seems like a recipe for changing the (legal) status quo, or at least for re-aligning it with changes in prevailing political and cultural sentiments.

    Regarding marijuana, I note that the courts have tenaciously upheld the legality of the Controlled Drugs and Substances Act, despite massive shifts in public sentiment. Prohibition is the status quo, and the legal system is firmly rooted in this paradigm. Faced with the manifest failure of prohibition as a philosophy and strategy, governments have fallen back on positivist assertions – “it’s against the law!” – and the courts have not opposed this (with the possible exception of the recent Insite ruling, though even that included an affirmation of the general features of the Controlled Drugs and Substances Act).

    Good closing commentary, and a well-written post.

    It occurs to me that the responses to this week’s food for thought question have illustrated the importance of engaging in further discussion about the nature of the ‘status quo’ as a concept.