Author Archives: attiladashun

An Examination of the Customs Act by Fuller and Agamben

The topic I chose to write about for the term paper involves an analysis of the Customs Act in Canada, in particular Section 13. As many people know, the Customs Act has been a consistently challenged and contested area of legislation. Additionally, many people do not actually realize what the authorities, both mandated and discretionary, of Canada Border Services Agency (CBSA) officers are while they are conducting their duties with relation to enforcing the Act. I intend to analyse this law from both the view of Fuller and that of Agamben. Ultimately, I seek to convey that although many may suggest that the Customs Act is a detrimental invasion of privacy and promotes a normalized “state of exception,” it is actually vital to protecting Canada’s border integrity and the citizens residing in Canada from threats to public safety and national security. A government report will demonstrate supporting statistics.

Under Section 13 of the Customs Act, people who are seeking entry to Canada or who are in a Canadian customs-controlled area are obliged to do the following:

13. Every person who reports goods under section 12 inside or outside Canada or is stopped by an officer in accordance with section 99.1 shall

(a) answer truthfully any question asked by an officer with respect to the goods; and

(b) if an officer so requests, present the goods to the officer, remove any covering from the goods, unload any conveyance or open any part of the conveyance, or open or unpack any package or container that the officer wishes to examine.

Many legal challenges have arisen with relation to the Canadian Charter of Rights and Freedoms as a result of seizures made by CBSA officers while exercising their authorities under the Customs Act. Those who challenge the legality of the seizures namely reference Section 8 of the Charter, which states:

8. Everyone has the right to be secure against unreasonable search or seizure.

Lon Fuller would explain the Customs Act by saying that lawmaking is a craft that has an “internal morality.” The main purpose of the law is to both act as an instrument for social control while also remaining as a facilitator of human interaction. Just as the Canadian Charter of Rights and Freedoms, the Customs Act is a law that has been created through rational activity for a distinct purpose and is governed by internal morality. The distinct purpose of the Charter is to protect what has been decided to be the inherent rights of people within Canada and in the process, has become the measure to which all other laws are compared to. However, the Customs Act deliberately contradicts the Charter by allowing anyone to be searched and have their good seized, with the distinct purpose of finding any threats that may be attempting to enter the country. A journal article will be used to support Fuller’s approach.

Giorgio Agamben would explain the Customs Act by saying that the government is exercising its power to circumvent the law (e.g., the Charter) in an attempt to resolve a certain issue (e.g., drug/people smuggling, threats to national security and public safety). Agamben would consider a Customs-controlled area as being a space of normalized exceptionality. A journal article will be used to support Agamben’s approach.

In the discussion, I will evaluate Fuller and Agamben’s approaches by comparing lawmaking as a craft and states of exception. The conclusion will be a brief overview of the two analyses and my suggestions for any possible further areas of interest.

References:

Pavlich, George. “Chapter 2.” Law & Society Redefined. Don Mills: Oxford UP, 2011. 27-39. Print.

Pavlich, George. “Chapter 10.” Law & Society Redefined. Don Mills: Oxford UP, 2011. 152-166. Print.

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Are there Exceptional States of Exception?

The “state of exception,” as interpreted from Agamben, is a status imposed by the ruling government body that fundamentally exempts it from their own rule of law. These states of exception usually occur in a state of emergency such as war (e.g., War Measures Act) but they can also occur in situations where governments have decided to utilize for more sinister means (e.g., Nazi laws targeting Jews). The legal status of subjects in a state of exception are that they realistically have no human status and as such, anyone can be regarded as an “outlaw” or in some cases, a simple less-than-human physical being that bears no dignity. One may be able to view the “state of exception” as a necessary mechanism incorporated into the sovereign ruling body’s constitution because it enables that ruling body to seize ultimate control over the decision-making process by streamlining crucial choices in emergency situations. The major disadvantage of this is that during the streamlining process, people’s individual rights are considered null and are therefore inevitably violated without regard.

A prime example of this is the War Measures Act, which was sanctioned by the Canadian government in WWI, WWII, and the October Crisis of 1970. The Act allowed for the federal government to seize ultimate control over its citizens and authorize its agents, in the form of the military and police, to mobilize in order to carry out any hastily planned orders. When the Act was initiated in 1970, the police and military were given full powers to conduct searches without cause on citizens, the intention being to discover and identify the terrorist members of the FLQ. In most cases, the argument can be made that the reasoning behind the “state of exception” is to temporarily quash citizens’ individual rights for the greater good of society as a whole by confronting national issues with the strongest response possible. Under this same ideology, the government can ironically be seen as protecting these people’s individual rights from being compromised permanently by enemy forces. Once that threat or issue is resolved, the government can reinstate individual rights once again.

Unfortunately, regimes have existed that abuse these ultimate powers such as the one in Nazi Germany during the 1930s-1940s. This state of exception came into being through coercion and persuasive nationalistic and racist doctrines. The Nazi government had imposed executive laws that essentially made it a crime to be Jewish, gypsy, homosexual, or opponents otherwise decided by the government. By criminalizing these beings over a period of years, the “state of exception” dangerously became the norm in German society, which then also became the norm in other countries as the Germans invaded and occupied more nations in WWII. When one was decided to belong to one of these “criminal” groups, they were stripped of citizenship and sent to jail, in the form of concentration camps. Because they were no longer considered citizens, these people were demoted to a subhuman status that only opened the legal opportunity for the Nazis to impose cruel and sadistic atrocities against them.

States of exception exist from precarious legislation that gives the government ultimate power over the people. In Canada, it can be argued that rights were temporarily suspended under the War Measures Act so that they could be preserved at a later time. In Nazi Germany, one could say that the motivation was to seize all power to impose a dictatorship of cult-like ideologies. The outcomes of such states are truly dependant on the motivation behind the ruling government’s rationale.

References:

Pavlich, George. “Chapter 10.” Law & Society Redefined. Don Mills: Oxford UP, 2011. 152-166. Print.

       

 

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Durkheim is Right: Crime is Inevitable

Durkheim’s claim that “crime is a normal part of society, and that it is necessary and indispensable” means that crime acts as a type of moral check and balance in society. Crime exists as a by-product of societies striving to create a moral order and organized structure that is free of chaos and confusion. In most cases where people break the law, they are choosing to defect from the larger collective morals of society. In cases where laws may not always be just and in the best interest of the people they command, there will always be individuals that exist who will break those laws in an attempt to adjust the moral order to benefit the collective consciousness. As Durkheim states,

“…we should not say that an act offends the common consciousness because it is criminal, but that it is criminal because it offends that consciousness. We do not condemn it because it is a crime, but it is a crime because we condemn it” (Pavlich 2011, p. 79).

This statement explains that the inherent morals of society serve as the true definition of justice. Crime will always exist because not everyone’s morals are in sync with the majority of society’s or because society’s laws are not in sync with the collective morals of the people.

I believe Durkheim to be correct in his analysis of the sociology of law. Crime is always going to exist all over the world for various reasons, no matter how hard one attempts to eradicate it. When something is deemed outlawed, many times there will exist individuals who will discover new opportunities to profit from breaking the law. Additionally, depending on the crime, those individuals may even have limited to no competition when conducting these lucrative illegal business ventures. Examples of this can include cases of human smuggling, where a facilitator contravenes Immigration laws by smuggling people into a country as a way to make immense amounts of money quickly for themselves. A case that I had firsthand experience with was the Mikael Prone file, in which Prone smuggled two individuals into Canada by means of utilizing fraudulent passports, which he later then attempted to hide. The official CBSA News Release can be found at this link: http://www.cbsa-asfc.gc.ca/media/prosecutions-poursuites/pac/2012-07-06-eng.html

In other cases such as laws that were found to be just at one time but are now considered absurd, society has voiced its collective consciousness to the ruling government body when the time came to change the law. An example of this is when, at one point, it was considered completely legal for a man to sexually assault his wife. As the times changed, women eventually gained stronger voices and were able to successfully have a law enacted that would make this act illegal. Changing moral values enabled this transition to take place and redefined what was considered “normal.” As mentioned in the textbook, Durkheim believed that “without crime…there can be no sense of what is normal and what is not” (Pavlich 2011, 80).

References:

Government of Canada. “Canada Border Services Agency charges lead to sentencing in human smuggling case in Vancouver .” Canada Border Services Agency. July 06, 2012. http://www.cbsa-asfc.gc.ca/media/prosecutions-poursuites/pac/2012-07-06-eng.html (accessed October 21, 2012).

Pavlich, George. “Chapter 5.” Law & Society Redefined. Don Mills: Oxford UP, 2011. 72-86. Print.

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by | October 22, 2012 · 12:44 am

Safe Streets Act – Safe for Who?

The 2004 Safe Streets Act of British Columbia was originally widely believed to have been enacted as a response to “aggressive panhandling” in the city of Vancouver. Under this legislation, simply asking people for money became an offence for which one could be arrested. The Act calls the action of asking for money as “soliciting” and defines it as the “means to communicate, in person, using spoken, written or printed word, a gesture or another means, for the purpose of receiving money or another thing of value, regardless of whether consideration is offered or provided in return” (SBC 2004, C. 75). The Act further goes on to state that a person has committed an offence if they do any of the following, among others:

  • Solicits a person who is using, or waiting to use, a pay telephone or a public toilet facility;
  • Solicits a person who is in, on or disembarking from a passenger vehicle;
  • Solicits a person who is in the process of getting in, out of, on or off of a vehicle or who is in a parking lot (SBC 2004, C. 75).

Basically, a person who is simply asking you for your spare change (which you may willingly give to them) has now committed an offence under the law. The law does not take into account whether the individual is violent, threatening, or aggressive in any manner; the simple act of asking a question is now illegal.

Although there has been some considerable controversy regarding this law, it still remains as a means of enforcement. It can even be seen as a law that criminalizes the poor. In essence, they are the only ones that have any real motivation to ask for money from complete strangers. This motivation stems from a desperate and last resort means for survival. With this law in effect, one may even argue that the poor must resort to even more drastic measures to obtain money to sustain their existence. The reasonable alternative to harmlessly asking people for spare money is to then turn to harmful means of obtaining it, whether through stealing from property or persons.

According to Fuller, law can be used for two purposes:

  1. As a coercive instrument of social control;
  2. As a means to facilitate human interaction (Pavlich 2011, P. 30)

As an instrument of social control, the Safe Streets Act definitely controls the poor’s behaviours. It also intimidates those less fortunate by subjecting them to arrest by the state if they choose to contravene this law that contradicts their plight for basic survival.

As a means to facilitate human interaction, the Act certainly regulates the interaction between the lowest class of society with the rest  of the classes in the sense that it widens the social gap, alienates, and now criminalizes those in society who cannot fend for themselves.

The Safe Streets Act appears to be a quick fix to alleviate society’s issues of the poor instead of addressing the underlying the roots of why they are poor in the first place and attempt to assist them. By criminalizing their actions, a slippery slope starts to occur where the poor must not only live in fear of the realities of being homeless, but also in fear or the rest of society regarding them as common deviants.

References:

Government of British Columbia. “Safe Streets Act.” Safe Streets Act. Queen’s Printer, 26 Oct. 2004. Web. 22 Sept. 2012. <http://www.bclaws.ca/EPLibraries/bclaws_new/document/ID/freeside/00_04075_01&gt;.

Pavlich, George. “Chapter 2.” Law & Society Redefined. Don Mills: Oxford UP, 2011. 27-39. Print.

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