Author Archives: coryrypkema

Exploring Disciplinary Power

When attempting to summarize disciplinary power in my own words, the word surveillance continues to jump at me. It does seem to me to be a collection of modes of surveillance by which “techniques of control and training” or “technologies of the body” are enforced. Surveillance jumps at me because according to Pavlich, disciplinary power is “most efficient when its operations are invisible” (p. 143). The class handout restates this by saying that “disciplinary power is decentralized and often invisible”. This supports the notion of it being an invisible, almost “background” method of observation and control. Beyond the example of the panopticon, CCTV cameras are the most obvious example. I recall in class that many convenience store cameras did not even record because of the inconvenience of changing short-duration tapes constantly.

In summary, I will take the three general characteristics of disciplinary power listed on our handout: Hierarchical observation, normalizing judgments, and micro-penalties and rewards.

Hierarchical observation seems to be surveillance, monitoring, and recording. It operates by way of subjecting people to a “perpetual gaze”, or the idea of potentially being watched “gazed at” at any moment.

Normalizing judgments are a sort of “measuring stick” with goals, standards and expectation that subjects must adhere to. Training, repetition and testing serve to “normalize” these measurement standards.

Micro-penalties and rewards seem to be small incentives. Perhaps an example would be that an inmate in prison receives something extra in a meal or a bit of extra yard time in exchange for their submission to disciplinary power.

So disciplinary power seems to be mechanisms by which subjects are trained to adhere to certain rules and standards, understand that they may be under surveillance to ensure their compliance at any time, and are given small rewards or punishments to match their level of cooperation. Disciplinary power seeks to normalize these rules, and eliminate any deviance from them. It is important to remember as well that disciplinary power does not rely on force and coercion.  This process is how disciplinary subjects are created.

What strikes me is how prison is so often used as an example for this. I immediately question the validity of this. Disciplinary power is supposed to be decentralized and often invisible, yet the authority system in a prison is not entirely composed in this way. There are security cameras, yes, but the main source of authority that prisoners must obey comes from the correctional officers themselves, and these officers most certainly do carry the potential for physical coercion.

If I can use an extreme example, the first prison that pops into my head is… you might have guessed it… Abu Ghraib. Though it has been several years, Iraqi insurgents were imprisoned there and subjected to any kind of torture the American soldiers guarding them could think of. This is a prison where Foucault’s definition of disciplinary power does not apply. The power held over the insurgents there was physical and mental torture, and had nothing to do with “normalizing” them by imposing rules and surveillance.

This week we were shown a new surveillance approach by way of a news article. Professor Kim has resorted to using his students as “snitches” to report on other students’ laptop activity during his class. I see this as effective, yet dangerous.

In Qualitative Research Methods, we learned about “breaching experiments”, or experiments that violate social norms. I certainly think Professor Kim’s approach falls under the category of a breaching experiment. This has the potential to generate some social discomfort… and Kim admits this, hoping that the discomfort not only of being caught but of being the one asked to report on another will help curb the inappropriate use of laptops in his class.

Disciplinary power operates by “rendering its subjects visible to a ‘perpetual gaze’ in which the many are observed by the few”. I agree that this approach will help keep students in line as they will be aware of the perpetual gaze of others who may be asked to report on you at any point in time… However this is ruling by fear, and I see danger in that kind of approach in an educational setting. The only reason the students will “behave” with their laptops is due to the fear of being caught.

The distractions of Facebook and the internet in general are why I do not bring my laptop to class anymore and have not for several years. Paper notes might seem more archaic, but I find I am able to pay better attention when I do not bring my computer and when I put my phone on silent. I agree with the point that it is disrespectful to the professor and other students and so something should be done about laptops in classrooms. While Kim’s approach has merit, I would suggest that an outright ban on laptops, or perhaps some sort of mechanism for blocking their internet access all together during class time would be more effective, rather than the use of a fear tactic.

Also, Foucault said “there is no power without potential refusal and revolt” (Pavlich, 2010, p. 141). So what happens if some students refuse to comply with this practice? Or is the power possessed by the professor (an authority figure) enough to subdue any potential revolt to this strategy?

As for myself resisting disciplinary mechanisms, I do it at work as well. We have CCTV cameras installed throughout the store. These are, however, only allowed to be utilized in cases of theft or any other criminal offence. However, these cameras are the “perpetual gaze” that seeks to stop people from standing around and talking. They are often placed in areas where a shoplifter would never go, and serve as a visual deterrent to the employees. It works too. Employees become well versed with the “blind spots” in the store to avoid this method of hierarchical observation. Even though people know that the cameras cannot be used to discipline us for talking, for example, we are all still very careful and aware of where the cameras are in relation to us if we choose to chat. Also, as one of the union representatives in my store, I wield a form of disciplinary power over management. I observe them (though it is not an instance of the many observed by the few, so it does not quite fit with hierarchical observation), and also make sure to apply normalizing judgments on them. Treating people with respect and dignity, adhering to the rules of the collective agreement, etc… Micro-penalties and rewards? Rewards are that I am not causing trouble, and penalties are that I call my superiors to take things to the next step. It is an interesting dynamic at my work place in that regard where both “sides” have disciplinary power over the other in some way.

References

Pavlich, G. (2011). Law & Society Redefined. Canada: Oxford University Press.

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Is Modern Canadian Law Formally Rational?

The food for thought question this week asked us to discuss whether modern Canadian law falls under Weber’s category of being “formally rational”. I will go piece by piece through Weber’s definition to establish the answer to this question.

According to our handout (Which I refer to because it is easier to pick apart than going through the Pavlich text), Weber defines formally rational law as having rules that are clearly stated and followed. I would argue that modern Canadian law definitely fulfills this requirement. We have law written in statutes such as the Charter of Rights and Freedoms and the Criminal Code of Canada. These are clearly stated (in most cases), and are able to be followed relatively easily.

Another requirement is that rules are applied to all similarly situated cases in an identical manner. I cannot say that this happens 100 percent of the time, as other factors sometimes are entered into a judge’s decision. It is well known that sentencing decisions can often be modified by aggravating or mitigating circumstances of an individual such as economic situation, past crimes committed, etc (Section 718 of the Criminal Code of Canada lays out sentencing rules). Judges are also human, and though they are bound by precedent, there can be disparity in sentencing for similar crimes.

This gives way to another requirement, that there must be “high predictability in decision-making”. There is some predictability because of precedent, but as I just mentioned, there can be sentencing disparity for a variety of reasons. Two people that commit the same crime can be reasonably sure that they will receive similar sentences, but they cannot be absolutely certain of this.

The final base requirement laid out for us on the handout was that there must be no external criteria applied. Pavlich defines external criteria as things like religious, political or ethical values that laws refers to (Pavlich, 2011, p. 109). This is does not completely fit with modern Canadian law, but we are moving in that direction… somewhat. Religion has become more detached from lawmaking and politics, but it still exists. Political and ethical values, on the other hand, are the reasons why members of parliament bring bills to the table. Our legal system exists based on political and ethical reasoning. Politicians introduce bills that will get them re-elected. Politicians also introduce bills that speak to issues they find personally important. The example of this type of law is the due process model. To try and explore this further, I looked for other people’s perspectives on the typology and found an example that someone had laid out:

“If, in truth, a person has killed another person, substantive justice requires that the killer be punished according to law. However, if the killer is illegally tortured by the police to confess to his crime and, as a result of the confession, the police find conclusive evidence (i.e., evidence proving guilt beyond reasonable doubt), such as the weapon, the body of the victim, etc., for the court to convict the killer (which results in substantive justice), there is no procedural justice because the process of finding guilt has violated the basic rights of the killer who, before the conviction, is a citizen entitled to the full protection of the Bill of Rights.” (http://www.oycf.org/Perspectives2/5_043000/what_is_rule_of_law.htm)

This is an American example but correlates to the due process and crime control models. If we have a formally rational system of law, the murderer will receive his due process rights and the system will be, as put by the author above, “more concerned with process and procedure than with the end result.” This is a common critique of the due process model, as it can sometimes allow criminals to get off on technicalities or violations of rules by police officers. If our justice system allowed for coerced confessions from suspects and evidence tampering, it falls more towards a substantively rational system of law which follows the crime control model. With crime control, the ends justify the means, as long as society is safe.

Another point that takes our system away from being formally rational is jury trials, again noted on our handout as being outside this typology. A system that uses jury trials is noted as substantively irrational, as there are external criteria applied and low predictability in decision making. Juries are not bound by precedent, only by the judge’s instructions and their own personal belief systems.

So to answer the question, “Is modern Canadian law formally rational?” the answer is… sort of. We certainly have many elements of a formally rational system, but elements of other parts of Weber’s typology leak into it (Elements of a crime control model as substantively rational, jury trials are substantively irrational). I think we are moving in the direction of being formally rational, and Weber might agree with me as Pavlich (2011) says modern law is “increasingly tending towards being formally rational in either empirical or logical ways” (p. 115). It is, in my opinion, the most ideal of Weber’s types of law but we have not quite reached it yet. Society and politics still cling too tightly to the idea of incarceration as well as swift and harsh punishments as effective measures for crime. Due process is still seen by too many as an obstacle to get through rather than as a shield against discrimination, bias, and unfair treatment within the legal system.

References

Pavlich, G. (2011). Law & Society Redefined. Canada: Oxford University Press.

http://www.oycf.org/Perspectives2/5_043000/what_is_rule_of_law.htm

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Does Law Follow the Status Quo?

The food for thought question this week was to explore whether the purpose of law and judicial decision making is to maintain the “status quo”. To begin my exploration of this question, I figured it best to clarify what the status quo is.

Status Quo: The existing condition or state of affairs.

So maintaining the status quo is to simply keep things the way they are. It means to “not rock the boat”, one might say.

Our case study for this week was that of the Buck v. Bell case, where Oliver Holmes, a judge in the United States decided to endorse a verdict that would allow Carrie Bell to be sterilized. As Holmes puts it “Three generations of imbeciles are enough” (Pavlich, 2011, p. 57). We can all be shocked and outraged at the decision and the fact that this was a reflection of how many people thought during this time, but it was the status quo. This was how people believed they were improving society. Holmes says that “sterilization of mental defectives, under careful safeguard, etc. can be of benefit to themselves and society” (p. 57). Stopping the “next generation of imbeciles” was the goal of eugenics, and was the status quo of that day.

Holmes’ decision reflected that status quo, and Carrie was not the only woman forced to be sterilized around that time. According to the below video, before World War 2, 35 states had some legislation in place to target the “feebleminded”.  It is part one of a small movie series looking at this time period.

http://www.youtube.com/watch?v=y3B-GUEvc-c

The fact that eugenics legislation had spread this far across America shows that law does at least partially seek to maintain the status quo and dominant lines of thought of the day. The interesting thing is how often Hitler’s name comes up during talks of the horrors of eugenics… and yet people forget that the eugenics movement had already picked up a lot of steam in the United States.

I tried thinking of a more recent example to try and further explore the issue, and decided upon the issue of marijuana. There is intense pressure to legalize marijuana right now in Canada.

http://www.rxdirect2u.com/marijuana_news/news-030716-01.html

http://www.forbes.com/sites/artcarden/2012/08/16/isnt-it-high-time-we-legalize-marijuana/

These links were just the top of the pile on a google search for the issue of legalizing marijuana. It is an intensely hot topic right now, and a recent poll suggests that 66 percent of Canadians are in favour of legalizing or at least decriminalizing marijuana use.

The point here is that if law really does support the status quo, we will likely soon see marijuana use become legal. It has already become an issue that police generally do not go after as much as they used to, unless there are large quantities or dealing/trafficking going on. The status quo is changing and so are the attitudes of society and government towards marijuana. The poll makes that point clear, and I believe that pressure from society will cause government (sooner or later) to modify the law.

More evidence is given to this if we look at gay marriage. Granted, it is still a movement in progress, but gradually people are coming around as the dominant line of thinking is changing. Homophobia is not as present as it was (or at least not as overt) and more public support for gay marriage has caused it to become legal and less frowned upon. The Harper government has legally recognized the marriages of gay couples.

So, really, the point here is that the current trends and issues of society can pressure law and judicial decision making (eventually) to conform and change itself to reflect society’s status quo. I believe it is at least partly political. If a politician today is advancing an anti-gay or anti-pot campaign, he likely will not be elected because that point of view is seen as intolerant in today’s society. The current frame of mind of society may be reflected in which politicians we choose to elect. This continues on to be reflected in the laws that those politicians advance, and that spills over into the decisions judges must make, due to new legislation, as while judges do have a lot of discretion and “wiggle room”, they must still follow the rules as created by politicians.

References

Pavlich, G. (2011). Law & Society Redefined. Canada: Oxford University Press.

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Legitimacy of Laws: Democrats vs Tyrants

The question for us this week was to discuss whether the laws of a tyrant were less legitimate than those of a democratic ruler, and what the differences between the two were. I think it is appropriate to begin with the basics.

Tyrant: A sovereign or other ruler who uses power oppressively or unjustly.
Democracy: Government by the people; a form of government in which the supreme power is vested in the people and exercised directly by them or by their elected agents under a free electoral system.

At first glance it seems an easy decision. Laws enacted by a government that was elected by the people that those laws govern would be more legitimate than those of a tyrant, who wields power in their own interests, often at the expense of their citizens. However, the positions taken by some of the theorists we are studying in this course complicate the picture a little bit.

From a positivist perspective, law is separate from morals. The “proper description of law is a worthy objective and a task that needs to be kept separate from moral judgments… a descriptive, or at least morally neutral, theory of law is both possible and valuable (Bix, as cited in Pavlich, 2011, p. 40). Natural law, on the other hand, is concerned with a “higher, moral authority” that is said to be the foundation of law (Pavlich, 2011, p. 27).

So are the laws of a tyrant legitimate? Are they less legitimate than those of a democratic ruler? It depends on the situation. From a natural perspective of law, it is more unlikely that the laws would be as legitimate as those from a democratic ruler. For example, the perspective of John Finnis would not provide legitimacy to the laws of Nazi Germany (specifically, the example used in the chapter, and Nazi Germany is also commonly referred to when speaking of a dictatorship). Finnis’ perspective revolves around the “seven basic forms of human flourishing” (Pavlich, 2011, p. 35). They include:

1. The valuing and transmission of life
2. Knowledge for its own self
3. Play
4. Aesthetic experience
5. Sociability and especially friendship
6. Practical reasonableness
7. Religion or the value of spiritual experience

Finnis also declares that a ruler must pursue the interests of a common good (p.35). If we take the example from Nazi Germany (The woman reporting her husband for speaking ill of Hitler and his government), it is quite clear that this law would be invalid under Finnis’ definition. Punishment for speaking out against Hitler is death. At the very least this is a severe violation of Finnis’ first basic form of human flourishing, and only advances the interest of Hitler and his government, not the “common good” required by  Finnis.

Fuller would come to a similar conclusion as he states in his famous debate with Hart: “To me there is nothing shocking in saying that a dictatorship which clothes itself with a tinsel of legal form can so far depart from the morality of order, from the inner morality of law itself, that it ceases to be a legal system” (Fuller, as cited in Pavlich 2011, p. 41). Pavlich describes Fuller’s view as being that “the authority and legitimacy of law is, For Fuller, founded on morally guided practices of lawmaking that involve the consent of those whom it governs” (p. 32). One could say that the people of Nazi Germany did “consent” to Nazi laws, as they did after all elect Hitler into power. However, the counter-argument is that consent is not true consent if it is achieved by fear, terror, and threat of death.

Positivist theory, on the other hand, is a bit more difficult to use in tackling this issue. Since the main idea of positivist theory is to separate the “is” from the “ought to be” of law, morality is detached from the argument, and opens up potentially unjust land immoral aws to being legitimate. By this perspective, whether the laws of Hitler were moral or immoral, just or unjust, is an argument for someone else. In regards to the case discussed in the debate, Hart argues that “whatever the morality of the laws at hand, they were in force at the time and should be considered valid” (Pavlich, 2011, p. 43). Hart is not arguing that the laws are right are wrong, he is merely stating that the woman was obeying (albeit for selfish reasons) the law that was in force at the time, and the court was incorrect to apply a previous law based on the unjust nature of the current law.

Another point that Hart makes has to do with the legitimacy of social rules. Hart explains his “internal aspect of rules” by saying that “legitimate social rules are accompanied by a basic, if implicit, sense that they set a general standard to be followed by the group as a whole” (p. 46). This logic also gives credibility to the “immoral” Nazi law that nobody was to speak out against Hitler or the Reich. It is well known that the Nazis ruled by fear, and this type of law, enforced by fear, would have been a general standard to be followed by the German people, who would have feared retribution by Hitler’s soldiers. It does, however, show that not all Nazi laws may have been legitimate under positivist legal theory. If a general standard to be followed by the group (German citizens) then there are many laws that discriminated against Jews and other minorities that would possibly be declared invalid by Hart. This threat to legitimacy would be why (as we learned in class) every Jew going into a concentration camp was coerced into signing away their citizenship.

So to answer the question of whether the laws of a dictator are legitimate, I say yes, they can potentially be legitimate.  Law is law, and the morality of those laws is a different discussion from the legitimacy and justice attached to those laws. These laws were created by a dictator who was elected by his own people, and despite the atrocities committed with them, they were “legitimate” laws. They are clearly immoral and do nothing for Finnis’ “common good”, and so certainly cannot be labelled as “good” or “effective” laws, but they are legitimate.

Finally, the primary difference between a dictator’s laws and a democracy’s laws, in my opinion, is the level of fear and oppression involved. In a democracy, yes, we have punishments for violating laws, however violating a dictator’s laws would be punished much more severely. As an example, what would be the punishment for speaking negatively about Stephen Harper? Probably nothing, yet speaking negatively against Adolph Hitler was punishable by death.

References

Pavlich, G. (2011). Law & Society Redefined. Canada: Oxford University Press.

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