Author Archives: jaclaridge

The Exception To The Rule

This week’s discussion was detailing the historical and socio-legal implications of states of exception as described by Giorgio Agamben. The state of exception refers to a situation between the sovereign power and law with respects to perceived times of emergency. It allows the sovereign the power to decide when there arises a situation that requires immediate action and an exception to the rule of law. The sovereign has the power to suspend the rule of law for certain groups of people or areas while exempting themselves from it. Generally it is required that the sovereign create a moral panic to illicit the “consent” of the public and create a moral panic. We can see examples of this in the invocation of the War Measures Act by Pierre Trudeau in 1970 or the Declaration of a War on Terror by George W. Bush.

States of exception can come to be in a variety of ways for a variety of reasons. Martial law has recently become a reason to declare a state of exception due to the increasing hostility in the middle east and the ineffective nature of undemocratic styles of government. A state of exception can also be declared in the wake of a disaster or crisis, as a war measures act, or anytime where a state of emergency requires immediate action and exception. It is often used to skirt around law and procedure to get results faster. All that is required to pursue this option is a claim to necessity deemed sufficient enough to suspend the rule of law for the operation of the sovereign to be free from the constraints of the formality of law.

Subjects of a state of exception are referred to by Agamben as “Homo Sacer” or bare life. They are legally unclassifiable beings that may suffer the violence of law but do not retain the protection or benefits as a member of the human race. They are disposable because no law seeks to protects their ambiguous status. I find the most interesting part of Agamben’s theory is the notion that subjects may be killed, but not murdered. I find the paradox between law and the “greater good” to be particularly interesting. Law is based on definitions and context. The term murder cannot apply to an act unless the people involved are subject to the law. The term murder exists to define the act of killing a person who is protected under the law. We do not regard killing an animal as murder because animals are considered property according to the law. Similarly, Homo Sacer simply exists in the broadest sense of the word as a life. The subjects of a state of exception do not even gain the protection of property. They are therefore name-less and face-less in the pursuit of the greater good. To be a human being is to imply membership to a club designed to protect and govern the actions of other club members. Homo Sacer is a group that is exterior to the club because provisions have been made to exclude them by the sovereign power. Agamben’s concentration camp model illustrates this point very well. The legal status of the person depends where they are situated in the camp. It is possible to be “in” the camp, on the threshold, or outside of the camp. The state can be temporal or spatial in nature and the camp is a an example of a space that is created legally, but not a legal space.

References:

CRIM 3305-Law and Society Handout-Mike Larsen

Lecture CRIM 3305-Law and Society October 16th 2012- Mike Larsen

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Policy and Prejudice

The New York Police Department has implemented a “Stop- and- Frisk” program that allows police officers to stop and search any person who they believe to be participating in criminal activity. The policy allows for very broad discretionary powers by law enforcement officials. The way a person looks alone can determine whether they will become a target of a stop- and- frisk by police. It allows for glaring inequalities that some would say constitute racism. Officers are encouraged by quotas and possible disciplinary action to complete these types of investigations. The intention of this program is to take a proactive approach to crime control. The hope is that these “investigations” will prevent criminals from carrying out their intended illegal activity. It is a policy designed to make the public feel safer on the streets and show that the police are doing something to prevent crime from occurring rather than simply responding to it.

According to the United States Census bureau the racial breakdown in New York City for 2011 was as follows: 71.5% White, 17.5% black, and 18% Hispanic or Latino. Even if we combined the black and Hispanic race numbers, it does not even equal half of the white population. The Stop and Frisk video suggests that in the last decade more than 87% of those stopped were black or Latino. The remaining 13% of those stopped are split up between several racial groups including Caucasian. This suggests that the number of Caucasian people stopped by the stop and frisk initiative is very small. These statistics strongly support and argument towards racial profiling by police.

Over the years the public has seen several small insights into police mentality and subculture relating to race and gender biases. We can draw on examples such as the Rodney King case or the Neil Stonechild inquiry to support these claims. An over representation of a certain ethnic group within the criminal justice system is a very important issue that demands immediate address. These are long-standing issues of policy and practice.

Critical Race Theory examines the relationship between power, race, and law. To be able to understand how race plays a role in this structure, we must first define Critical theory in this context. Critical theory has influenced many philosophers and sociologists because of its broad application potential.  It concerns itself with the critique and modification of society as a whole to correct inequality. It strives to change law from within and raise consciousness. It explains how law can serve to perpetuate hierarchical structures within society.  Similarly, Critical Race Theory is closely tied with the civil rights movement of the 1960’s and promotes social justice and equality with the law. According to Matsuda et al. 1993: 5, critical race theory describes racism

“not as isolated instances of conscious bigoted decision making or prejudiced practice, but as a larger, systemic, structural, and cultural, as deeply psychological and socially engrained” (Pavlich 2011).

Proponents of Critical race theory strive for an overhaul of the criminal justice system and our principles and policies in order to be more sensitive to a critical race perspective.

The stop and frisk program is a good example of a crime control model of law enforcement. Crime control asserts that police should have a very large amount of discretionary power to facilitate increased searches, seizures, and arrests. It focuses on a chain of assumption. We would assume that the accused is guilty based on the investigations of the police and their willingness to bring it to trial. It relies heavily on the determination of factual guilt under the law and leaves little room for circumstances or developing social norms. The idea is that enforcement is the key to controlling crime and the details are less important. The most important thing is results. Another good example in a Canadian context would be the safe streets and Communities act (Bill C-10). The portion of that act that deals with solicitation and panhandling is a good example of how the government is targeting the poor by handing out fines to people who already have no money. As a citizen I was not concerned with “squeegeeing” and panhandling before the government decided to “get tough”. It is an example of policy that creates moral panic and instructs citizens to be concerned with and report undesirable activity because it is now illegal. Critical theorists would argue that this kind of policy is maintaining a hierarchical structure or an “us and them” mentality. It divides society and allows for the continuation of discriminatory practices and laws.

The feminist jurisprudence perspective is relatively simple on this issue. Feminist movements strive to bridge the gap of inequality between men and women. Much has been said about the NYPD stop and frisk program relating to race, but there is no mention of the gender breakdown of these stops. The debate focuses on the disproportionate number of members of minority groups being stopped by the police and makes no note of inequality concerning gender. It is impossible to make any inferences as the the effect of this policy on females without more reported data.

Police quotas are, like in any profession incentives to increase productivity. There is a reason that so many agencies have implemented a quota system. The issue arises when a quota and threat of professional discipline is the sole determining factor in issuing a ticket or stopping an individual on suspicion.  As in anything, the devil is in the details and some policing initiatives are no exception.  The general public has been conditioned to fear crime and poverty by the government and media institutions. When a public panic arises it is up to the police to come up with a new way to cull these fears and restore peaceful order. The main issue with the stop and frisk program is not that it exists,  it is the extremely high level of discretion that comes along with it. When there is discretion, there is inevitably abuse of that discretion.

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Law. Society, and the Status Quo

The discussion this week pertains to sociological jurisprudence and judicial decisions as a vehicle to promote social change. The question is whether or not legal decisions are a key element in producing social change and maintaining the status quo of society. Status quo is defined by Merriam-Webster as :

 the existing state of affairs <seeks to preserve the status quo>” ( Merriam-Webster).

For our purposes the status quo refers directly to the sense of normalcy in society. The status quo is what most people are comfortable with or feel familiar with. When we are solely concerned with the status quo we can say we are effectively stalling some advancement towards social change. Social change generally occurs when a person or a group of people challenge the status quo in favor of a better or more representative alternative. We have seen throughout history that certain societal beliefs and laws have drastically been changed or altered over the years to line up with the changing views of society. For example Canada’s rape reform laws have drastically changed over the past few decades. The Globe and Mail describes Canada’s rape laws before 1983 as follows:

“Prior to 1983, rape was considered an offence outside of marriage. That meant a husband could not be charged with raping his wife, and a wife could only charge her spouse with indecent assault, common assault or assault causing bodily harm.” (The Globe and Mail 2009)

“Bill C-127 came into effect on Jan. 4, 1983, making sexual assault against one’s wife an offence. A wife can also charge her husband with aggravated sexual assault if the crime included a beating.” ( The Globe and Mail 2009)

By 1983 the views of society and the institution of marriage had changed so much that the government was forced to take action and change the laws. I believe that laws contrary to public morals and opinions defeat the purpose of law in itself. The essence of law has always been the interpretation of the social contract . We would not have law without the implied social contract. Merriam-Webster defines the social contract as:

            “an actual or hypothetical agreement among the members of an organized society or between a community and its ruler that defines and limits the rights and duties of each” (Merriam-Webster)

The implied rights and duties are the foundations of laws. It sets out a flexible approach to deal with the ebb and flow of social opinion. I would tend to agree that the purpose of laws are to maintain the status quo but only to the extent necessary to reflect the ideals and opinions of the larger population. The law is a standard by which to maintain order and peace amongst citizens, as such it strives for equality in application. As previously stated, being exclusively concerned with the status quo puts us at risk of stalling social change. The status quo is constantly changing and producing changes to laws. I firmly disagree with the assertion that it is the responsibility of the judiciary to further the progress of society. The role of the judiciary is to apply the existing laws. It is up to citizens to push the government to change the laws to reflect our views and opinions. The concept of the judiciary driving social change with respects to law undermines the very foundation of how Canadian government operates. The branches of government should always operate almost completely independent of one another. Our common law system allows for some very far-reaching and important changes to be made by judges. The laws themselves should never be made by the judiciary branch alone. Common law is set up to facilitate a certain degree of flexibility in accordance with practical reasoning and different circumstances. It’s intention is not to create laws but to help in the pursuit of equal justice.

References

http://www.merriam-webster.com/dictionary/status+quo?show=0&t=1349846934

http://www.theglobeandmail.com/news/world/canadian-law-only-changed-26-years-ago/article1150644/

http://www.merriam-webster.com/dictionary/social%20contract

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What Is Democracy?

The central theme of this week’s chapter is that of legitimacy. Legitimacy is very hard to define because it seems to be a situational and multi-faceted term used to convey fairness. I would argue that legitimacy has nothing to do with fairness, only due process. Established legal systems have set our procedures by which legitimate laws are created, amended , and stricken.  Miriam-Webster defines the term legitimate as follows:

a : accordant with law or with established legal forms and requirements <a legitimate government>

b : ruling by or based on the strict principle of hereditary right <a legitimate king>

4: conforming to recognized principles or accepted rules and standards  <alegitimate inference>

 By definition legitimacy comes when something is in accordance with the law or conforms to established legal forms and requirements. This poses a problem for morality. The German Nazi’s in World-War II used the established legal forms and requirements to pass laws that governed the treatment of certain groups of people. The Nuremberg laws of 1935 were created through all proper legal requirements and therefore fit the definition of laws created legitimately. These laws effectively made people of Jewish backgrounds alienated and disenfranchised . They were no longer able to marry people of German blood lines , vote, or hold a position in government(USHMM,2012). As is well documented these laws soon led to one of the most horrific genocides in human history. It stripped Jewish people of all of their rights as citizens in a free and democratic society. The word democracy is something that is generally very loosely defined within the context of freedom and society. Miriam-Webster defines democracy as:

a : government by the people; especially : rule of the majority

b : a government in which the supreme power is vested in the people and exercised by them directly or indirectly through a system of representation usually involving periodically held free elections

Even in a government like Canada’s at present, I do not believe that the term democracy fully fits from a definitional standpoint. From my point of view true democracy must come from checks and balances exercised by society. For instance, our Current Prime Minister was voted into office through democratic means initially but has since been left to his own devices without any accountability to the people who elected him. A government by the people denotes that society ultimately has some control over the operation of Canadian affairs and procedures. Canadian’s ultimately do not have the “supreme power” as mentioned in the definition of democracy. The only power we have is to entrust others with our well-being. British Columbia’s recent HST debacle has proven that although elected by the people, the representative that we elect has sole control over everybody. Even if we disagree with the actions of said representative we must obey. In order to accurately distinguish between a democratic ruler and a tyrant ruler we must be able to effectively define the limitations of each. It is often a very fine line and difficult to separate on the basis of conventional definitions. For example, we generally categorize the Canadian government as being a democratic institution. Our Prime Minister is an elected official who is representative of Canadian society. The blurred line becomes apparent when we look at situations where the Prime Minister can be categorized by part of the traditional definition of a tyrant. Recently Stephen Harper was found to be in contempt of parliament.(The Globe and Mail 2011) This is the first instance of a Prime Minister being held in contempt in the history of Canada. This motion points to the first definition set out by Miriam-Webster of a tyrant.1a: an absolute ruler unrestrained by law or constitution”(Miriam-Webster). Therefore, Canada’s Prime Minister fits into at least one definition of a tyrant according to Miriam-Webster’s definition. Furthermore, there were very little repercussions stemming from this motion. With little repercussions we can clearly see that the Prime Minister does indeed appear to be “Unrestrained by law or constitution”. This  illustrates the difficulty of defining figures of government into tyrants or democratic rulers.

Miriam-Webster defines Tyrant as:

1a : an absolute ruler unrestrained by law or constitution

b : a usurper of sovereignty

2a : a ruler who exercises absolute power oppressively or brutally

b : one resembling an oppressive ruler in the harsh use of authority or power.

 There is little difference between “democratic” and “tyrant” rulers from a definitional standpoint. Either is able to impose their will on the larger populations without many (If any) consequences. I feel that the laws created by the tyrant ruler are more legitimate simply because a false sense of accountability does not exist in their job description. Tyrant rulers can do what they please without having to answer to any other person or body. A democratic ruler need only learn how to manipulate the situation to get past the lax checks and balances in place. In the minds of society I believe that the key difference is the severity in which rulers wield their powers.  Tyrant rulers tend to rule much more forcibly with serious consequences to those who question his authority. Democratic rulers tend to appear more sympathetic and fair to his public. For all intents and purposes we can say that any law that is created through the proper legal channels regardless of public opinion should be respected as legitimate in nature.

References:

http://www.merriam-webster.com/dictionary/legitimate?show=0&t=1349376621

http://www.ushmm.org/wlc/en/article.php?ModuleId=10005681

http://www.merriam-webster.com/dictionary/democracy

http://www.merriam-webster.com/dictionary/tyrant

http://www.theglobeandmail.com/news/politics/harper-government-falls-in-historic-commons-showdown/article4181393/

http://www.youtube.com/watch?v=9PbbiAMhEKY

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