Douglas Hay’s Law as an Ideology & Marx’s Superstructure

Based on Douglas Hay’s “Property, Authority and the Criminal Law” it reveals three aspects of law as an ideology. With the combination of Majesty, Justice and Mercy these define the courts and most importantly the prestige of the law.  The discussion of whether contemporary Canadian Law has changed in regards to these three different aspects of withholding the value of the image of law. Majesty as Hay describes it is, “The symbolism, ritual and visual representations of the power and authority of the state” (Hay, 2004). Hay furthermore describes the court’s design and meaning behind each architectural structure. The judge would have sat in the courtroom on an elevated bench. This would translate to authority above all and individuals in the court would have to look up towards the judge in respect and emphasize of acknowledgement of power and authority. In addition, courts officials wore elaborate outfits including wigs and robes (Hay, 2004).  Moreover, in the English legal system, before a death sentence or unresolved capital punishment cases judges would need a certain type of ceremonial outfit or attire to fit the occasion of the ceremony. Nowadays, the contemporary Canadian Law system also holds similar values in the court (Hay, 2004).  I believe this standard has not fallen far from the original standards but has changed minimally to fit the standards of some legal differences from the English legal system to contemporary Canadian law.

Hay’s definition of Justice in the English legal system was, “Movements to establish the rule of law, rules of legal procedure, legal professionalism, and the primacy of individual rights. As a result, the court became worried about the legal formalism. Many acquittals were based not on the weight of facts, but on violations of legal procedure (Hay, 2004). Furthermore, courts had several miss-trials and acquittals, based on weight of facts, and violation of legal proceedings this affects the formalism of the courts. In the English legal system, there was occasional use of criminal law and executions to reinforce the idea of equality before the law (Hay, 2004).  In contemporary Canadian law we still uphold justice by following precedent cases. In addition, to apply appropriate punishment for each specific crime. To also engage in jury trials where there is the opportunity for public interest`s voice to be heard and not only justice from the courts or judge.  In Canadian law there is also the Charter that protects us from injustice. However, the English legal system may not have the same benefits as the contemporary Canadian system now. Yet, I believe majority of the standards have not changed dramatically.

Lastly, mercy in the courts were exercised frequently mainly through discretion (Hay, 2004).   Discretion is the freedom to decide what to do in a particular situation or case. This these circumstances the judges are able to use discretion in court to minimize the damages the offender or accused will have to face due to how the judge believe in the likelihood of the offender or accused to commit the same offense.  In the contemporary Canadian law I believe we use discretion at a greater extent. For example, the sentencing of aboriginals are significantly minimized due to the acknowledgement of trauma this particular ethnic group has suffered from. Another example would be NCRMD  (Not Criminally Responsible on Account of Mental Disorder), these particular individuals have a great amount of discretion when it comes down to sentencing. In the case of Vince Li, he had decapitated another individual on the Greyhound Bus due to his mental illness. He was then acquitted by discretion of the judge to acknowledge his medical condition and his state of mind in the act of murdering another passenger.

Marx`s take on how law functions in a Capitalist Society, “First, they suggest that the state comes into existence when class conflicts become irreconcilable, providing a context for it to position itself as an external arbiter of such conflicts. Although the capitalist state is ultimately a creation of the ruling class, developed to secure its overall interests, that real power needs to be obscured and legitimated. Here law plays an important role: it obscures that power by extending rights equally and universally to all- but it does so within a fundamentally unequal social context” (Pavlich, 2001). Marx’s statement is that law is located within the superstructure of society and that law arrives from the socio-economic base. The superstructure functioned upon the base of social relations as well as the means of production. Without these fundamentals, law would have been built on nothing.


1 Comment

Filed under Contributor Post

One response to “Douglas Hay’s Law as an Ideology & Marx’s Superstructure

  1. This is an effective application of Hay’s analysis to the contemporary Canadian court system.

    I wonder, though: can you identify any other aspects of law as ideology that apply to our current context? The food for thought question you are responding to asks you to:

    “Write a post that describes an ideological aspect of contemporary Canadian criminal law, other than majesty, justice, or mercy. Your post must describe this characteristic, explain how it relates to the operation of the legal system, and explain how it operates as ideology.”