Terror, Leniency and Law’s Ideology

Hay’s concept of Terror, Leniency and Law’s ideology, depicted in “Property, Authority and the Criminal Law”, is rooted empirically in the role of judges and their discretion in the 17th, 18th and early 19th century. He considers criminal law to be an ideological system that offers three distinct yet overlapping principles: Majesty, Justice and Mercy.

Majesty is based on the principles of the image of a ruler being of higher power, even that of divine proportions, as well as of higher status in society. Hay describes the actions of the population upon instances of the arrival of the travelling courts as majestic and elegant. They would arrive in carriages with escorts sent from the wealthy within the town and their ritualistic mannerisms would situate themselves above all others. The ‘divine’ power they held was also an aspect that produced the fascination over their decisions, as they could give life and take it away. This decision was also met with ritual, the wearing of a black cap on the head meaning someone would be sanctioned with capital punishment, and the elegant white gloves representing no punishment of death to be imposed. These theatrical aspects of the travelling courts held the judges at this level above all others, which aided in the legitimization of their decisions whether agreed upon or not by the people, one did not dispute this power.

Hay’s second principles of law’s ideology to be that of Justice. The equality, fairness and following of strict procedures in the essence of the proper administration of justice. The equality is structured in the law, those of higher status can still be sentenced to death, most commonly due to forgery. This equality is not seen to be just in all cases as even though it deems that stealing is a capital punishment, those who are of wealth and power would have no reason to steal, thereby limiting this concept of equality. The fairness is inclusive to the following of strict rules of the application of law and the proceedings of the courts. If the courts gave someone an incorrect title or their name or the date was incorrect it was deemed to be in fault of the proceedings thereby allowing the accused to get off. This strict necessity of “absurd formalism” (Hay 33) in the proceedings is what created its inefficiency yet also created its stronghold of legitimacy. If someone who committed a crime is let off due to being referred to as a farmer while at the same time a person of high status is condemned due to the act of forgery the system is seen as legitimate by the greater population.

The principle of Mercy and it’s representation of the ideology of criminal law is through ruling with the use of “delicacy and circumspection” (Hay 49). This form of ruling stemming from the Justices of peace all the way to the higher court judges. Mercy is based on the ethical and/or practical decisions made by judges on the matters pertaining to the accused, their discretion was not based on an absolute reliance of the law, despite being written to be imposed as such. Their discretion could lead to many alternative decisions to capital punishment: a bond not to re-offend, repayment for crimes, threat of future prosecution if activity persists or a royal pardon. This being said capital punishments were still administered by the judges yet the discretion used by them did not lead to a great rise in capital punishments carried out despite the huge rise in capital offence punishable offences.

Hay’s argument of law functioning to secure consent and the perception of legitimacy despite the manifest inequality of the social order most definitely hold true in the current context. The Canadian Criminal Justice system follows the three principles of Hay, Majesty, Justice and Mercy, in a similar fashion to which Hay described in Property Authority and the Criminal Law. The first in the current context can be directly viewed by the attire of the judges, their social status within society and their formal attire within the court room. The attire at the Supreme Court level, with exception to the black hat and white gloves for deciding matter, is very similar. This gives court the overall idea of court to be something formal and fair, thereby creating a system perceived to be legitimate through these means. The principle of Justice can also be held within the current contexts of courts through the procedural laws in which a court must abide by as well as the charter of rights and freedoms that protects individuals from a number of harms that could otherwise be performed by the government and its officials. These procedural laws are not as absurd as those in which Hay described yet they do still allow for cases to be dropped or fail due to “technicalities”. The charter is also utilized by individuals to ensure the procedures are followed and if not they use the charter to defend themselves. The final aspect of the ideology of law is that of Mercy, which can be seen at many aspects throughout the C.J.S.. This can initially be seen by extra-judicial measured employed by police officers, the judges having discretion whether there is initially enough evidence to even bring a case to court, the sentencing of judges which are influenced by many aspects of the accused especially those of aboriginal heritage. R.v.Gladue playing the major role in the sentencing of those of aboriginal heritage within the Canadian Criminal justice system which directly results in judge’s discretion and mercy of the accused. All three of these ideological principles of the legal system can be seen in the present day concept yet the upper class still influences many aspects of these.

A brief overview of harm caused by companies in comparison to those caused by individual citizens of the state will simply express this. In the U.S. it is estimated that there are around 100 000 deaths per year related to dangerous work conditions, unsafe products and environmental toxins (Simon, 264). This number is substantially greater than the number of deaths caused by guns for example, 11 000 (Simon 264). Yet with this information we see someone of higher status being charged with criminal negligence or another related charge and rarely with homicide. This charge is viewed by most as substantial as the main argument is they are a company it is not one person to blame and they provide jobs for society. This defence is seen as a legitimate argument and people continue along with their lives. Law is also created by those who are of higher status and therefor have an implicit, although sometimes explicit, to protect the interests of the upper class. The inequality in social order is just once aspect that the law utilizes to express legitimacy in a society in which it is a mere perception and misconception among individuals.

The law does operate as an ideology that is focused on the interests of the upper class over those of the lower or working class. As it
can been seen the upper class manipulate the creators of the laws to have them sway in their favour, the example above is just one of many ways in which those of high class get away with aspects of the law that regular individuals would be severely punished for. This 
creates difficulties for law reform projects and movements due to the fact that the interests of those in power are perceived as more important than others. The effects of this can be directly viewed within the labour laws context. Corporations are in the market to profit, and will exploit their workers in order to succeed, even if it means unsafe working conditions and minimal laws that protect individuals from these poor conditions. The progress of labour law throughout time hit may obstacles as it was the upper class protesting against the wishes of the working class and therefor a compromise was slowly met and the laws are very slowly, and continuously being changed to offer further protection Although this process has taken an extremely long time and many people have been injured or died as a result of this slow progression.

Sources:

Hay, Douglas (2004) “Property, Authority and the Criminal Law”, in A. Sarat (Ed.) the Social Organization of Law. California: Roxbury.

Simon, David R (2012) “Crisis”: Elite Deviance 10 ed. Pearson Education Inc. Upper Saddle River: New Jersey.

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3 responses to “Terror, Leniency and Law’s Ideology

  1. This is a great post – thoughtful and thorough. Good work.

    Question: As corporate crime and other forms of elite deviance become more blatant and recognizable, do you think that the capacity of the legal system to ‘mystify’ these and legitimize inequality will erode? In other words, are we reaching a point where the features of law as ideology that Hay describes will lose their ability to function?

  2. In order to answer this question the common sources of information the public utilizes to gather information pertaining to legal cases and current legal events must be considered.
    In my opinion with the larger number of resources the Canadian public now possess’ to provide information on legal cases and actions by the courts on cases of elite deviance will be a factor in eroding the false legitimization of inequality. Although many of the known mass media companies are owned and controlled by the power elite and also funded through other corporations run by elites. With the rise of alternative information resources the public is becoming more aware of these issues. With this growth and a more informed Canadian population, the capacity of the legal system to continue to legitimize a system of inequality will become impossible. In relation to ideology the that Hay sets forth, I do not believe that the features of this ideology will lose it ability to function as even with this change in perceived legitimacy, the courts would remain to be seen as a separate entity from the state, and separate from the bureaucrats. Therefor the principles Majesty, Justice and Mercy of Hay’s ideology of law would remain intact.

  3. Thanks for the follow-up.

    You make some interesting points. Regarding the exposure of elite deviance, you argue that:

    “With the rise of alternative information resources the public is becoming more aware of these issues. With this growth and a more informed Canadian population, the capacity of the legal system to continue to legitimize a system of inequality will become impossible.”

    As someone whose own research and advocacy work is geared towards the deconstruction of regimes of secrecy and the expansion of public access to information, I want to believe that you are correct! However, there is reason to be wary of the suggestion that increased information about elite wrongdoing will – on its own – result in a progressive change in social consciousness. It could also contribute to a sense of cynicism or apathy – a perception that could result in disengagement (“of course the system is corrupt …”), rather than a commitment to effect change.

    Regarding your final point about the perceived separation of law and politics, government and judiciary, remember this when we study Agamben and Butler. It will be worth returning to.