Author Archives: helmcken

Looking Ahead: Deconstruction and Justice

At first glance, my reply to Derrida’s claim “Deconstruction is Justice” is that of agreement. For all its clarity and poignancy, the answer is not easily deduced. To make sense how the agreement came to be, the internal workings of the text require critical analysis. The practice of deconstruction is to unlock provisional conventions and to make space for unanticipated patterns of being (Pavlich, p. 170). The presence of concepts and of definitions is at all times over the horizon. It is a reflexive relationship between openness and closure. The modus vivendi—our way of life—carried with our language and our text will always stand on the end of a new frontier. For Derida and all human beings, everything is language. The power of language and of words comes to define us, unite us, and separate us from others and from ourselves. To ascribe a single definition to a word is to take away its vitality. Justice, like language, is something that is in constant ebb and flow. Weber (2005) claims that justice is “of the incalculable and the unpredictable” (p. 38). It is through the process of deferring to other terms and to calculable externalities—such as law—where infinite concepts, like ‘justice’, may create “meaning, being, and presence” (Pavlich, p. 170). In this sense, one cannot revise a few definitions to the exclusion of all others.

The concept of justice is circular. The end is unknown and its beginning is undistinguished. From where I stand, Derrida (1997) is not mistaken when he claims that “Deconstruction is Justice”. The concept of justice is something that is on the verge of becoming but requires an externality to make it known. For instance, at one point in time it was legally permissible for a husband to rape his wife in Canada without legal ramifications involving responsibility (Criminal Code, 1970). In 1983, Bill C-127 was introduced into legislation to create space for conversation and to make martial rape a criminal offence. From this perspective, it can be said that justice could not be materialized in and of itself; it required the externality of law. Justice may also be observed as a measure that asks for or demands others to state what it is or what it is not. Although it is held that “law does not guarantee justice anymore than justice guarantees good law” (Pavlich, p. 173). Consequently justice, like deconstruction, is provisional and subject to reversal.

The concept of deconstruction is something that happens from within that which already exists or is said to exist. It is shaped by one’s sociological and political context (p. 174), which creates meaning and understanding through language. Deconstruction as a practice is holistic as it opens up concepts that have not been fully unpacked. For concepts and texts that appear fixed or fully understood, deconstruction becomes crucial. In summary, both deconstruction and justice are concepts that favour innovation and development; bridging the gap between theory and process, abstract and concrete. To deconstruct justice is to make possible the unattainable and provisional moments in time. Justice cannot be made a reality in and of itself. It is constantly evolving, changing shape and is in need of other words, subjects and objects that are not present. Life is not static and neither is the praxis of deconstruction or justice.

References

Bill C-127, S.C. 1983, c. 125.

Criminal Code of Canada, R.S.C. 1970, c. C-34.

Derrida, J. (1997). Deconstruction in a Nutshell: A Conversation with Jacques Derrida. Edited with a commentary by John D. Caputo. New York: Fordham University Press.

Pavlich, G. 2011. Law & Society, Refined. London: Oxford University Press.

Weber, Elisabeth (2005). “Deconstruction is Justice”, SubStance 34(1): 38-43

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Wasted Resources: Implications of the NYPD’s Stop-And-Frisk Program

A new documentary on the New York City Police Department’s controversial stop-and-frisk program has prompted nearly 800,000 viewers on YouTube to gain an insiders perspective into cases of police misconduct and public discontent. The New York City Police Commissioner, Ray Kelly, and Mayor Michael Bloomberg have been proponents of the program since its inception nearly a decade ago and defend its use today. Bloomberg has been increasingly assertive of the program and New Yorkers have been subject to a six hundred percent increase in the number of stop-and-frisks since his first year in office (NYCLU, 2012). Implications of the policy reveal inequalities in its application as the stops have disproportionately affected visible minorities within the community. In fact, 87% of pedestrians stopped were either African American or Latin American (ibid). Despite the application of the Draconian law, around 87-89% of the total stops displayed no evidence of any illegal or dishonest behaviour; and about 49-55% of persons stopped were between the ages of fourteen and twenty-four. Officers, however, reportedly feel pressure from those who hold higher positions of authority within the department to achieve a certain quota; though New York State law that prohibits the use of quotas for arrests, summonses and stops (Law S2956A). Regardless, officers risk disciplinary action, such as working alone in known high-risk areas, if quotas do not meet or exceed the previous years number of people stopped, questioned, and frisked.

The Critical Legal Studies (CLS) approach highlights the conjunction of how ‘law’ and ‘society’ arose out of an anti-establishment ethos, and explores issues of social inequalities, social hierarchies, and how to create change in law from an altered system (Pavlich, p. 120). Applying a CLS approach to the stop-and-frisk program would explore the debate of how NYPD’s program invariably “reinforce(s) presumptions of ideologies that fuel existing hierarchies” by exposing inequalities resulting from the program (p. 121). Specifically, the method would examine how the legal institution of law and practices support a pervasive system of oppression. Without a doubt, visible minorities—notably the African American and Latino communities—face an unscrupulous over representation among the number of persons that are stopped and frisked in a given year. Critical Legal Studies arose in a period of civil unrest and civil rights movements. For that reason, proponents of CLS would be committed to reversing and removing the NYPD’s program that seems to serve wealthy, Caucasian Americans by placing resources on visible minorities in the street. In regards to race, Critical Race Theorists would suggest that the law and policy of the NYPD is responsible for reproducing unequal race relations (p. 130). Since Critical Race Theorists examine the legal racially constructed category, they would investigate how the program perpetuates the notion that certain negative attributes are associated with specific ethnic backgrounds. By looking at the results of the program, it is possible to mistakenly interpret that visible minorities commit a disproportionate amount of crime, despite the fact that most persons stopped are innocent. The Critical Legal Studies movement would further point out that the program reflects positions of inegalitarian relations and hierarchies by focusing predominantly on adolescents and young adults. Karl Marx and Friedrich Engels would highlight how the NYPD’s stop-and-frisk program consequentially creates alienation among visible minorities and youth as it impinges freedom to move about the city, as citizens may fear persecution from a lack of “egalitarian social connection” (Gabel and Harris, p. 371).

In relation to the notion of equality, a Feminist Jurisprudence approach aims to achieve a tolerant “social and political environment in which women and men of all ethnicities, class backgrounds, sexualities, and abilities are equally valued and empowered” (Pavlich, p. 125). When looking at the data from the NYCLU website, sex is one of the variables taken into account when officers create a report for a stop-and-frisk. Within the illustrated data sets, however, gender is not included in the analysis as the focus remains on race and age.  Moreover, I was not able to gather information on how many men and women are stopped in a given year. The day-to-day application of the stop-and-frisk program is, for the most part, focused on young males that are visible minorities. It is interesting to note that statistics from the NYCLU amalgamates both females and males, with no distinction or particular focus on the female segment of the population that may be affected by this policy.

In terms of changing the law surrounding the controversial program, Smart (1989) makes a compelling argument that suggests, “law cannot be a vehicle for consequential social change—other struggles are more likely to achieve this” (p. 5). On the other hand, Matsuda (1989) explores how we are a “legalized culture” and if “law is where racism is, then law is where we must confront it” (Matsuda, p. 2341). Given the complexities of modern society, neither model is effective on its own as each holds unique strengths and weaknesses. A holistic approach to the problem is necessary in order to critically examine the complex phenomena. In any case, the NYPD’s stop-and-frisk program is an extraordinarily problematic policy as it gives law enforcement carte blanche to search and detain individuals under a broad definition of what constitutes “suspicious behaviour.” In summary, the program is an exemplar of how law governs behaviour within the context of rules. Law enforcement has discretion and therefore the ways they interpret, apply and implement the written law is subject to variance. The stop-and-frisk program is not blatantly racist or discriminatory, however its application is detrimental to specific demographics in the community.

References

Gabel, P. & Harris, P. (1983). “Building Power and Breaking Images: Critical Legal Theory and the Practice of Law.” New York University Review of Law and Social Change 11, 371.

Matsuda, M.J. (1989). “Public Response to Racist Speech: Considering the Victims Story”. Michigan State Law Review 87, p. 2341

New York Civil Liberties Union. (2012, May 9). New NYCLU Report Finds NYPD Stop-and-Frisk Practices Ineffective, Reveals Depth of Racial Disparities, http://www.nyclu.org/news/new-nyclu-report-finds-nypd-stop-and-frisk-practices-ineffective-reveals-depth-of-racial-dispar (accessed on November 3, 2012).

Pavlich, G. 2011. Law & Society, Refined. London: Oxford University Press.

Smart, C. (1989). “Feminism and the Power of Law”. Sociology of Law and Crime. London: Routledge.

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Status Quo Sui Generis: Is It A Myth?

The Merriam-Webster Dictionary (2012) defines “status quo” as the “existing condition or state of affairs.” Objectively, law and society is in continuous change. The degree of change, however, is dependent upon the factors that influence and shape the world around us. Approaching this question with an administrational framework in mind, it would be argued that the purpose of law is to inhibit and challenge status quo. This stream of thought is supported by the idea that our country operates on a system of common-law whereby precedent holds influence over future cases thereby ensuring the state of affairs changes, and it certainly does (Act to confer the Electoral Franchise upon Women, 1919; The Constitution Act, 1982; Sexual Assault: Bill C-127 (1983); Firearms: Bill C-68 (1997)).

The problem with the administrative approach is that it is not human in nature or in character, and the status quo is integrated within our social and political systems. In other words, the purpose of law can exist sui generis but the status quo cannot; it requires social networks. The question then becomes: can the status quo exist sui generis? The purpose of law is in constant ebb and flow, and its character is shaped from contemporary milieu and the powers that be.

Applying a critical approach to the question at hand, some argue that the purpose of law is in fact to preserve the status quo. Taking this one step further, the purpose of law can be seen as a hegemonic form of imperial dominance as status quo is retained through the use of force and law. In terms of criminological orthodox theories, the focus has fundamentally concerned the individual, non-elite criminal who is ultimately punished. Various areas of law then further perpetuated the issue at hand as corrections system fail to regularly employ other methods of deterrence, as they were intended ad hoc.

Jeffrey Reiman argues the criminal justice system is designed to legitimize the status quo, which benefits those in control of wealth and resources by justifying the divisions of power (Reiman, 2000). In other words, those who have the power to change a system benefit from the way it currently (mal)functions. He refers to this a “pyrrhic victory,” meaning that a significant amount of harm is done unto society through the criminal justice system as it fails to deal with elite crime, shapes the status quo and ultimately impacts more people than street-street. Inherently, the judicial decision-making process of our court systems influences the status quo by way of precedent; though it can be proactive in terms of social issues or social movements challenging the existing state of affairs. The purpose of law, however, also serves to shift public dissatisfaction in opposition to low-level street crime rather than elite crime. And when it goes after the elites, it is designed to fail. This is because it is a reactionary force. In this respect, the purpose of law is to some extent a “pyrrhic defeat” as it is a win for the wealthy, and beneficiary power holders, but it is loss to society.

Accordingly, both the purpose and enforcement of law helps to maintain the status quo. The purpose of law is then seen as a victory as the story that it tells is that we should be afraid of street-crime, accept the status quo, accept domination and obey the social contract. If by chance you step out of line and try to challenge the status quo, perhaps then you shall bar yourself from attaining employment or land yourself in a prison cell for obstructing the law. This was the case for protestors of the 2010 G20 summit in Toronto. Despite this, their demonstrations were deemed to be “socially useful” as they directly positioned themselves against a more global status quo whereby mega-corporations hold enormous coercion over legal regimes (CBC News, 2012).

There is no doubt in my mind that the purpose of law is a combination of these two steams of thought. It is difficult not to feel positioned in the middle of these arguments as I live and operate within our society but have also had the opportunity to study criminology and sociology at university. On the one hand, the legal system is inherently structured to promote change in status quo. On the other hand, major structural changes to law and society can take years, decades or centuries to take shape and thus may feel as if the status quo is unchanged. Meanwhile, more often than not, slow and progressive change is necessary for the populace to understand the law and the status quo, equally. In the end, our common-law system is a playground whereby judicial decision makers playfully interact with the status quo each day. Perhaps there is a purpose of law, but maybe the purpose and the law has taken on a life of its own.

References

CBC News. (July 13, 2012). Crown Wants Jail Time For G20 Protester, http://www.cbc.ca/news/canada/toronto/story/2012/07/13/toronto-g20-protester-sentencing.html (accessed on October 2, 2012).

Pavlich, G. 2011. Law & Society, Refined. London: Oxford University Press.

Reiman, Jeff. (2000). Rich Get Richer and the Poor Get Prison, The: Ideology, Class and Criminal Justice. Allyn & Bacon: London.

Status Quo. 2012. In Merriam-Webster.com. Retrieved October 4, 2012, from http://www.merriam-webster.com/dictionary/statusquo

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Making Nature Against the Law

In the twenty-first century the illegal status of cannabis in Canada is ‘immoral, unjust, and intolerable’. The first drug law implemented in Canada was the Opium Act of 1908 when Deputy Minister of Labour Mackenzie King was concerned with an increase of use among Caucasians (Grayson 2008, p. 73). Opium was the Chinese migrants drug of choice. The cannabis plant achieved its criminal status when it was added to the Opium and Narcotic Drug Act in 1923. Today, the possession and trafficking of marijuana falls under the Controlled Drugs and Substances Act (S.C. 1996, c. 19) as a schedule II narcotic. As a first conviction, offenders face a maximum penalty of 6 months in jail or a $1000 fine, or both, when possessing 30 grams of marijuana or less. Without a doubt, the debate over cannabis illegality is neither new nor unique. With this in mind, it is recognized that many others believe the law to be one that is unjust and intolerable. I often wonder how citizens in a “free and liberal democratic society” claim such status when the people do not hold sovereignty over their own bodies? It is often argued that the use of cannabis is potentially harmful, however it is destructive to the welfare of our nation state and humanity when living organisms becomes prohibited. John Finnis’s framework on Law and Flourish Human Life can be used to argue that Canada’s cannabis law is unjust, as it does not further the common good by criminalizing personal choice and suppresses sociability and friendship by forcing users to partake in secrecy. For Finnis, “justice is about fostering the common good in a community” and concerns interactions and duties with others (Pavlich 2011, p. 37). Likewise, Pavlich would argue that the law prevents the formation of shared objectives that serve everyone. This point could be applied to any arbitrary law and be taken out of context, although this law is unique to others as it is victimless. Criminalizing the production, usage and distribution of cannabis essentially causes more harm and victims than if it were to be legal. For one, the production of the plant often involves the stealing of electricity and bypassing usage meters in order to meet the markets supply and demand while keeping their costs low and workers off the electrical grid (Dehaas, 2012). This then places higher cost onto the legal customers to pay for the lost power. Secondly, the usage of the cannabis plant has been proven to be less harmful than other legal counterparts such as alcohol and prescription painkillers (CBC, 2012). Thirdly, the vast distribution and demand for cannabis has resulted in billions of dollars in revenue for organized crime (Nelson, 2010). The current illegality of the organism appears to be one of hegemony—the way in which elites have their interests be adopted as the common interests—through successful lobbying on behalf of those who are benefitting by it’s illegality (e.g., law enforcement, prison industry, pharmaceutical companies, etc.) as it ensures job security for its ‘combatants’ and produces wealth in industries profiting off of its synthetic counterparts in modern medicine. The time to end prohibition of this plant is long overdue.

“If people let government decide which foods they eat and medicines they take, their bodies will soon be in as sorry a state as are the souls of those who live under tyranny.” – Thomas Jefferson

References

CBC. (March 23, 2007). Alcohol, tobacco worse than pot, ecstasy: study. CBC News, Health, http://www.cbc.ca/news/health/story/2007/03/23/alcohol-tobacco.html (accessed on September 21, 2012)

Controlled Drugs and Substances Act (S.C. 1996, c. 19)

Dehaas, J. (June 23, 2011). Grow-op electricity thefts “like a five per cent surcharge”. Macleans, News, http://oncampus.macleans.ca/education/2011/06/23/grow-op-electricity-thefts-like-a-five-per-cent-surcharge/ (accessed on September 21, 2012)

Grayson, K. 2008. Chasing Dragons: Security, Identity, and Illicit Drugs in Canada. Toronto: University of Toronto.

Nelson, A. (April 20, 2012). How Big Is The Marijuana Market? CNBC, News, http://www.cnbc.com/id/36179677 (accessed on September 21, 2012)

Pavlich, G. 2011. Law & Society, Refined. London: Oxford University Press.

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