Author Archives: akb2012

Sovereign Power and Counter Law

Food for Thought:

  1. How does the theorization of KIHC presented by Larsen and Piché in their Canadian Journal of Law and Society article differ from Agamben’s theorization of the camp?*
  2. “Exceptional State, Pragmatic Bureaucracy, and Indefinite Detention” is a largely descriptive article. However, the authors also make a normative argument in opposition to the KIHC and to security certificates more generally. What is the nature of their normative argument? Do you agree or disagree? Explain.

The theorization of KIHC presented by Larsen and Piche in their Canadian Journal of Law and Society differ from Agamben’s theorization of the camp because their ideas are built from the ideas of Butler and Ericson. Butler believes that the state of exception is governmentalized. The power is given to officials who have the authority to decide who will be tried, and who will be detained and can also determine whether someone can be indefinitely detained or not. Ericson believes that the state is legalized. The state of exception takes the form of counter law which is law against law or rules about exceptions to rules. It involves the use of legal mechanisms to circumvent procedural barriers imposed by law . Counter law involves the enactment  of new laws to eliminate forms of criminal law that get in the way of causing harm. Larsen and Piche take both these theories into consideration and believe there is a blurred of mandates  as carried out through counter law which plays a key role in the emergence of states of exception because the sovereign is able for example to replace criminal law with forms of immigration law. Also the power given to officials is crucial because they have the authority to keep people detained.

In “Exceptional State, Pragmatic Bureaucracy, and Indefinite Detention” the authors argue that security certificates are just the beginning for these people who are deemed to be a threat to national security. They believe that the certificate process begins with changing certain provisions under immigration law which leads to many other things. There is a cause of trial and error to see which effects will work. The certificate process is expansionary there is no clear answer. But at the end of the day people are still being held indefinitely. With most rights stripped, no access to evidence against them. Not being able to defend themselves in a court of law. This goes against everything most Canadians believe in without human rights we are nothing. I believe that the closing of the KIHC proves that the government does not have all the answers when it comes to what to do with people who have a security certificate against them because of the fact that this holding centre did not last they need to re look at the whole security certificate process and really be able to justify stripping people of their human rights.

Refernces

Larsen, M. and Justin Piché. Exceptional State, Pragmatic Bureaucracy, and Indefinite Detention: The Case of the Kingston Immigration Holding Centre.

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States Of Exception

Food for Thought:

  1. What is the state of exception?
  2. How do states of exception come into being?
  3. What is the legal status of the subjects of a state of exception

A State of exception is a process where the government allow the rule of law to be dismissed for a certain issue. (E.g. War Measure Act, Guantanamo Bay). The government usually gives the public reasons as to why they are choosing to override this rule of law so there is not an uproar from the public. “Italian philosopher Giorgio Agamben has elaborated on the historical effects of the juridical concept of the state of exception, recalling the definition of this concept formulated during the early 1920s by German legal theorist Carl Schmitt. According to Schmitt, the state of exception implies a “suspension of the entire existing juridical order.” (Bellina and Bonifazio) Carl Schmitt believed that a specific declaration is required for the government to implement a state of exception. He believed that crisis and emergency were the normal environment rather than an exception. Any government action that did not go through the full legal process was one that he believed was permitted to implement based upon a constant state of exception. A state of exception places the branch of government implementing such a state into a position of power much greater than that granted by the laws of a given country. The government wields power as he or she sees fit. Individuals no longer have the specific rights granted them by the organizing documents of their country. The government states that these individual rights are suspended in the best interest of the people and the country.

An example of the state of exception being used is the war measures act during the October Crisis which was a series of events triggered by two kidnappings of government officials by members of the FLQ during October 1970 in the province of Quebec. some of the things that this allowed the government to do was: (a) censorship, and the control and suppression of publications, writings, maps, plans, photographs, communications, and means of communication; (b) arrest, detention exclusion, and deportation; (c) control of the harbors, ports, and territorial waters of Canada and the movements of vessels; (d) transportation by land, air, or water and the control of the transport of persons and things; (e) trading, exportation, importation, production, and manufacture; (f) appropriation, control, forfeiture, and disposition of property and of the use thereof. This was to protect the safety of Canadians as prime minister Trudeau said in his speech. Individuals who are the arrested or suspected of being involved in anything that the government believes is not right are then stripped of their rights and civil liberties and the government has the freedom to pretty much do whatever they like to these people.

The state of exception gives the government all the power. We are lead to believe that this is for the greater good of all. But that is not always the case. People that are in Guantanamo Bay because of the war on terror are put under extraneous methods of torture. Many of these men are held with no evidence. this does not really seem to be helping anyone. The power which is supposed to help everyone and keep them safe has really changed to the US government in this case to hurt presumably innocent men for no real reason. We can see that even though we are led to believe that this is being done for the best interest of the public there is a hidden agenda and the government is given to much power and there is no consequences for their actions that is why they are able to continue doing the things they do.

References:

Pavlich, G. (2011). Law & Society Redefined. Don Mills, Ontario: Oxford University Press.

http://original.antiwar.com/henderson/2010/10/17/trudeaus-war-measures-act-a-reminiscence/

http://www.thecanadianencyclopedia.com/articles/war-measures-act

http://www.c-s-p.org/flyers/9781847180216-sample.pdf

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Who Does Law Affect?

Food for Thought:

“Law’s repressive coercive (material) functions are obscured by its ideological (symbolic) functions that portray it as equal, universal, and just”.

What does this mean? Do you agree? Discuss! Use contemporary examples to illustrate your response.

This statement is referring to the fact that laws are made to be equal and are supposed to apply to everyone. But people are able to ‘get off’ because they may be part of the upper class and are able to use their connections to change the outcomes that normally should apply. For this reason as much as we might think that everyone gets treated the same way because that what we are supposed to believe we know that this in fact is not true. people are treated differently even depending were they are for example even within the same country there can be different laws within each province or state and there is really no justification on  how something is allowed or not allowed in one province or state and not in the other. “Ideology is used as a mask created to obscure inequality and the work of power”(Garth & Sarat, 1998). This quote refers to the fact that the reason that we believe that everything is fair and is because ideologies lead us to believe that we are all being treated equally and laws are being made with our well being in mind.

Karl Marx argues that in a capitalist society there is always someone with the power and everybody else is at the mercy of the people with power. ( Pavlich, 2011).  The people in power are the ones making the laws, therefore when these laws would normally hurt a normal individual the people in power are able to minimize any negative effects because of the power they have. We have seen countless examples in the last few years where people in power e.g. politicians are able to get off the hook for any wrong doing because they are in a position of authority and have the money and resources to minimize and negative outcomes of their behavior. Where as any regular citizen could not manage this because they have no power or authority and have to feel the full affect of the law.

I think that this is definitely the type of society we live in that some people have more power and authority than others. Most people just accept this because we have been accustomed to this our whole lives. We know that if people who have money, resources and power do something that is against the law they probably will not be punished or not punished to the full extent of the law. But we also know that if we were to do the same thing surely their would be different consequences for us. Everyone pretty much knows this and accepts it and does not question it and that reason is because we do not think that there is anything we can do about this, this is just the way it is. We are made to feel this way by the people with authority so that we do not question them when we know that they are doing something wrong or not fair.

References

http://web.mit.edu/anthropology/pdf/articles/silbey/silbey_justice.pdf

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Crime And Justice Needed for a Normal Society

Food for Thought: 

Durkheim’s sociology of law proposes that crime is a normal part of society, and that it is necessary and indispensable. What does this mean? Is Durkheim correct? Discuss, with reference to contemporary examples

Durkheim recognizes crime as being important to the well-being of society and suggests that challenges to established moral and legal laws act to bring together those that were not in opposition to the laws in other words the people who are not breaking laws come together as a collective force. He believes that society needs crime to function normally. Crime reinforces bonds between the general law abiding citizens . His theory states that there needs to be the perfect balance for crime too little would end the interaction of the public for solving problems and too much would lead to  a chaotic society. When there is good balance society is able to come together to create an interaction leading to solutions to problems. He states that “crime is important for the well-being of society because when people join together in a common purpose  that collectively constraining g force is greater than any one individual” (Pavlich,2011).

For Durkheim society needs crime and society needs justice therefore without crime we would not be able to witness this need for justice which ‘involves organizing the consciousness, rituals, and moral frameworks that compromise collective being in society in ways that promote fairness, meritocracies, and forms of social life based on equity of opportunity” (Pavlich, 2011). in other words Durkheim is saying that if we did not have crime society would not be able to learn what justice is and how everyone needs to treated fairly. Society has many rules for how one is sup[posed to act and behave and the needs to bring justice to people who are not following laws is just as important as crime existing in the first place.

As I was thinking about examples of how crime is needed for any normal society I remembered something one of my criminology professors pointed out. He was telling as how many police agencies especially in the United States do not receive much money from the government therefore they have to rely heavily on the money that comes from ticketing people. they need money to keep their agencies running therefore they need people to break the law so that they can receive money from these people so in turn they have money within their agencies for more important issues. it is funny to think that these police agencies almost want people to break the law so that they know they will have funds. But then that makes me question how valid the tickets issued are, did people actually break a law or did the police officers fabricate reasons to give people tickets.

References

Pavlich, G. (2011). Law & Society Redefined. Don Mills, Ontario: Oxford University Press.

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