Author Archives: ajitdusanjh

Minimum Wage and Society

Minimum wage positions are typically learning wage positions—they enable workers to gain the skills and knowledge necessary to become more productive on the job. As workers become more productive they command higher pay and move up their career ladder. During the Great Depression, with jobs scarce and many job-seekers, workers frequently found themselves exploited and their wages hitting rock-bottom. In 1938, President Franklin Roosevelt signed into law and “congress instituted the minimum wage… as part of the Fair Labor Standards Act” (Sterk, 2013). The Fair labor Standards Act establishes wage guidelines for businesses with hourly employees. The purpose of the minimum wage during this time was to stabilize the post-depression economy and protect the workers in the labor force. The minimum wage was designed to create a minimum standard of living to protect the health and well-being of employees.  The first minimum wage was set to 25 cents an hour, in 2007 changed to $7.25, reaching its highest in modern times U.S. in Washington State at $9.19. The minimum wage law serves the purpose of establishing a “living wage”–mostly for lower-class families that depend on labor jobs which often pay the least.

Brook and Watkins’ argument against minimum wage explains that “minimum wage doesn’t ensure everyone can earn a living… it doesn’t guarantee that everyone is paid fairly” (Brook & Watkins, 2013). This is a broad statement about minimum wage. Brook and Watkins are simply stating that the minimum wage does not allow one to save/ earn anything, and it denies you the right to decide what pay rate to offer or accept by your employers. Watkins gives a great example of himself when he was seventeen years old as he applied for his first job at the local mall for an entry- level position as a ticket taker at the theatre. He explains how he was offered $5.35, just above the minimum wage at the time, with little to no experience in the work field. The only reason he took the job was because no one else was offering more at the time. If he were offered $5.00 and tried to counter offer to get todays minimum wage of $7.25, he would have never gotten the job. The only reason Watkins accepted the offer of $5.35 was because no one was offering him that much at the time, and with no experience he was eager to start and understood that he was not worth more yet. He knew that it was not about the pay rate. It was about building your resume in order to move up the ladder to earn more than the minimum wage. To conclude Brooke and Watkins’ argument, they state that “it isn’t low pay that’s unfair—it’s preventing people from offering and accepting jobs that are unfair” (Brook & Watkins, 2013). 

There are three major schools of thought that have shaped the study of labour law. The first, Unitarianism—envisions the capitalist labour market as a realm of freedom and an engine of economic growth. The second, Liberal Pluralist—believe that the labour market is characterized by an imbalance of power between the individual worker and the employer. The third, Marxists—argue that capitalism produces crisis and that over time capitalist relations of production (the wage relation) become a restraint on economic development.

In relation to the three schools of thought, Brooke and Watkins’ argument falls under the Unitarianism view. Unitarians see labour laws as the product of special interest groups that have distorted the political and legal process for their own selfish ends. They believe that without labour law workers and employers can share a common set of interests which include maximizing their individual liberty and in gaining from the wealth generated by capitalism. They believe that labour law should provide a legal framework within which workers and employers can freely negotiate the terms of their relationship. In Brooks and Watkins argument that is exactly how they feel. They feel as if the government is sitting there at the interview table with the employer and the job- seeker, but the employer and job- seeker are not the ones negotiating the wage, the government is doing it for them by implementing the minimum wage.

The liberal pluralists claim that capitalist is a powerful engine for producing wealth, however the joint efforts by the workers and employers are not fairly divided and the workers interests and voice are insufficiently recognized and protected. Their counter- argument to the article is that they think for the state to protect vulnerable workers they need to set minimum standards which would produce fairness in the labour market. This kind of delegation of power protects labour law. The article argues that minimum standards does not provide fairness, therefore abolishment of minimum wage is required. The article states that “the problem is that the minimum wage doesn’t ensure everyone can earn a living—it ensures that many of us can’t earn anything. And it doesn’t guarantee that everyone is paid “fairly”—it unfairly denies us the freedom to decide for ourselves what pay to offer or accept” (Brook & Watkins, 2013). It contradicts with the liberal pluralists as they argue for the idea of having labour laws that set out minimum standards, as labour laws do not provide fairness matter of fact it takes freedom away from both the worker and employer to negotiate what pay to accept.

In my opinion, I agree that a person should make a wage according to their skill set and experience. I also believe that minimum wage is necessary as it helps those in poverty. Minimum wage also stops companies from exploiting those with little employment options. I agree with the article as the article states minimum wage takes away freedom from both the worker and employer. However, minimum wage is necessary for the unprivileged group, who do not get to discuss/negotiate their wages with their employers. Minimum wage is required so the employer has a standard of paying his workers. This keeps the employer from abusing the employees’, if the company is losing money the employer cannot just cut the employees’ wages. This was a common issue in the industrial revolution, where the emergence of the labour laws needed to come about and did.

Sources:

Comack, E. (2006). Locating law: race/class/gender/sexuality connections (2nd Ed.). Halifax, NS: Fernwood Pub.

What is Minimum Wage: Its History and Effects on the Economy. (n.d.). The Heritage Foundation. Retrieved November 8, 2013, from http://www.heritage.org/research/testimony/2013/06/what-is-minimum-wage-its-history-and-effects-on-the-economy

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Weber on Ordeals and Witch Trials

Max Weber’s (1864- 1920) ideal-typical categorizations of legal thought is a great tool that gives us a broad understanding of pre- modern rules and decisions that were established and how they were implemented in medieval times. Weber notes two fundamental activities in the field of law: creating law and finding law once it is created (adjudication). Both activities operate either in formal systems of law (self- sufficient and use internally specified rules and procedures to make decisions), and substantive systems of law (referring to external criteria [e.g., religious, political, ethical values]—that either make or adjudicate laws). In addition for laws to be either formal or substantive, legal systems are either rational or irrational. “Systems are to be rational if they are rule- governed, systematic, ‘use logical interpretations of meaning’, and are intellectually framed” (Pavlich, p.109), and irrational systems are exact opposite of this. My main focus will be to analyze both formally irrational and substantively irrational ideal types of legal thought which correlate to trial by ordeal, and witch trials in pre- modern Europe.
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Trial by ordeal

The institution of “trial by ordeal”, as practiced in England was a system of justice used between the 12th and 13thcentury.  It was a system based on the medieval superstition ‘Iudicium Dei’, meaning ‘The Judgment of God’.  This system was used to prove a person’s innocence or guilt. If a person committed a crime, even the smallest offence, most of the time they had to go through a ‘trial by ordeal’. Very few people were ever executed straight away. This system of justice was not very accurate or fair but some scholars believe it worked because the people of the day really believed in it, they believed the innocent would be saved and the guilty would be punished. Because of this thought, many people who were guilty and knew they would be punished confessed to their crimes so they did not have to undergo the ordeal. The innocent were self-assured that God would save them so they agreed to endure the ordeal. The authorities knew that only an innocent man would keenly undergo the ordeal, so they worked it in their favor, to prove that person was indeed innocent. For example, they could make sure the red hot iron bar that they had to hold in their hand was not too hot.  The whole concept was actually quite effective in some ways, the guilty would confess or leave town but many who were actually innocent were killed because of the barbaric tests they had to endure.

“Anyone, who shall be found, on the oath of the aforesaid [jury], to be accused or notoriously suspect of having been a robber or murderer or thief, or a receiver of them … be taken and put to the ordeal of water”(Douglas, p.441). This is one type of test people had to go through during this period to be proven innocent or guilty. Overall, there were three main types of ordeals, Ordeal by Fire, Ordeal by Water and Ordeal by Combat.  The type of ‘ordeal’ you were put through depended on your status as well.  It was usually only noblemen who got the opportunity to be a part of the Ordeal by Combat which was the only ordeal where you could win by your own skill.

  Ordeal by Fire involved either putting your arm into a boiling cauldron and removing a stone or holding a red hot iron bar and walking three paces. The wound was then bandaged and if it had started to heal after three days then you were innocent, “a priest, who would pronounce that God had intervened to heal it, or that it was merely festering—in which case the suspect would be exiled or executed” (Boyce, Mary). If it was clear that the wound was not healing you were guilty.

 Ordeal by Water involved being strapped to a chair and thrown in a lake, if you sank you were proven innocent, if you floated you were believed to have been guilty and would have been executed soon after. Either way, the person would die. If innocent, he or she believed that they were going to God.

 Ordeal by Combat if a noblemen was accused of a crime he would have to fight his accuser. Whoever won the battle was thought to be right, the person that lost was wrong and they were usually deceased at the end of the fight.

 Witch Trials

The institution of witch trials, as practiced in medieval Europe between the thirteenth and nineteenth centuries, as many as one million individuals in Europe were executed for the crime of witchcraft. The majority of the trials and executions took place during the sixteenth and seventeenth centuries. During this period, the speed and volume of executions were astonishing: “in one German town, as many as 400 people were killed in a single day” (Midelfort, 1972). The victims were primarily women, mostly poor and disproportionately widows. The belief in the existence of witches goes back at least as far as the Old Testament of the Bible, which forbids the practice of witchcraft. For example, the book of Exodus (22:18) says: “Thou shalt not suffer a witch to live.” Pre-Christian cultures in Greece, Rome and Iceland, among other places, believed in the power of witches (Ankarloo and Clark, 1999). The history of systematic witch hunting, however, is primarily associated with the Christian church.

Starting in the mid-thirteenth century, however, it became widely accepted that witches existed, were capable of causing physical harm to others and could control natural forces. The first trials for witchcraft “emerged from the actions of the Catholic Inquisition” (Oster, p.217). During this period, witchcraft accusations made mainly by orthodox religious doctrine were accusations of prostration to the devil, than to criminal behaviour. The largest period of witch persecutions, lasted from the mid-sixteenth century to the end of the eighteenth. It is during this period that the majority of the executions (witch hunts) took place, and the trials spread throughout Europe and Scandinavia. These later trials were “conducted by both Catholics and Protestants, in both ecclesiastical and secular courts” (Oster, p.217).

A common witch-hunting method was “swimming” or “ducking” (based on the ordeal by water) whereby the accused was tied by their hands and feet and dipped in deep water. If the accused witch floated, the water (God’s creature) had rejected her and she was deemed guilty, and if she sank (and drowned), she was deemed innocent. The accused could also be pricked all over with a sharp instrument (known as ‘pricking’) in the search for insensitive spots where the Devil had visibly or invisibly marked them. Other, more traditional, tortures were also used to elicit confessions and accusations against accomplices, including thumbscrews, leg vices, whipping stocks with iron spikes, scalding lime baths, prayer stools furnished with sharp pegs, racks, and the strappado (hoisting on a pulley to pull the arms from the sockets). The witch trials of Salem demonstrate that their methods of proving innocence were not very plausible.

I believe that these two old practices fall under Weber’s formally irrational ideal types of legal thought, and substantively irrational ideal types of legal thought. In Pavlich’s text, Weber states “those lawmakers and adjudicators, with formally irrational understandings, include those endorsing prophetic revelations and oracular verdicts” (Pavlich, p.110). Making them irrational because they rely on magic and prophecies, rather than reason- based thought. This definition relates to both, trial by ordeal and witch trials. The judgments made, and the acts practiced during those times were based on the belief that witches were the main cause of physical harm or natural disasters, and needed to be killed to release the devil inside them. “When lawmakers and law discovers do not follow general rules or norms, and proceed in an ad hoc way, leaping to conclusions based on emotional evaluations that differ widely from case to case” (Pavlich, p.110), they operate Substantively but in irrational ways. An example of this would be ‘ordeal by fire’ described above. Weber, himself says this type of adjudication of law is irrational as it does not follow clearly articulated rules, and make no effort to link decisions to general percepts. It is substantive because they do not distinguish thoroughly between legal and extra- legal ways (e.g., ethics, religion) of grounding decisions.

To conclude this topic, I say that Weber’s definitions of formal irrational types and substantive irrational types fall under the categories of what lawmakers and practitioners were performing during the medieval times. The examples listed above depict the harsh realities people were enduring by the beliefs that lawmakers had at that time.

Sources:

            Boyce, Mary. “ĀTAŠ”Encyclopædia Iranica. Retrieved 2013-10-29.

The Assize of Clarendon, as published in English Historical Documents v ii 1042—1189, D C Douglas editor, Oxford University Press, London 1981, p 441.

Ankarloo, Bengt, and Stuart Clark. The eighteenth and nineteenth centuries. Philadelphia: University of Pennsylvania Press, 1999. Print.

Oster, Emily. “Witchcraft, Weather And Economic Growth In Renaissance Europe.” Journal of Economic Perspectives 18.1 (2004): 215-228. Print.

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