Author Archives: jonlow15

Employment Concerns Due to Previous Usage of ATI/FOI

The terms freedom of information and access to information may be used interchangeably. Generally, FOI refers to freedom of information and are usually requests that are made under provincial acts whereas ATI known as Access to Information are requests made under federal acts.  At the federal level, the Privacy Act governs the use, disclosure, and collection of personal information which all individuals are permitted to only access information about themselves through a process of request. Since, access to information and freedom of information recognize the legal right for an individual to access public records about themselves; there has been concern that individual who request information may be using information given by the state to gain further research information of the government secrecy. Therefore, these individuals are more inclined to be under the radar of the government surveillance. In addition employment within the field of government would increase difficulty in seeking a job position.

Drawing from Michel Foucault’s theory looks into the importance of how power, knowledge and subjects all work together to create social forms, laws etc.. Furthermore, Foucault emphasises “We should admit rather that power produces knowledge…that power and knowledge directly imply one another; that there is no power relation without the correlative constitution of a field of knowledge, nor any knowledge that does not presuppose and constitute at the same time power relations…the subject who knows, the objects to be known and the modalities of knowledge must be regarded as so many effects of these fundamental implication of power-knowledge and their historical transformation” (Pavlich pg.139). In this sociological theory from Michel Foucault we observe that the value of power, subjects, and knowledge working together as a team to form laws as well as social norms. The power of knowledge through the work of a subject that hold knowledge which leads to power can make historical transformations as Foucault states. In this particular theory I believe it is strongly related to a concern to those who want or plan to seek an occupation within the government. Reason being, with individuals who possess knowledge have a clearer understanding of how the government functions and therefore with more knowledge leads to greater power once employed into a position within the government.

Another sociological theory Michel Foucault looks another type of power which is governmentality. The word government did not refer to political structures or the management of a state, but rather it was designed as a method in which the conduct of group or individuals might be directed towards (Sokhi-Bulley, 2014). The power of governance is a way of gatekeeping which individuals are employed and whom does not. This has largely to do with the definition of governance and how it’s definition may be warped overtime. Since individuals who seek information through the process of access to information or freedom of information. The secrecy and privatization of the government has an impact in determining who gets employed into a government position.

Theory of law has always been about power. Finnis looks in the area of natural law where he believes that natural law is nothing other than a theory of good reasons for choice. He emphasis that practical reasoning is crucial not only to law but generally to how we live our lives, because practical reasoning allow us to hold the basic values of human existence and thus, too, the basic principles of all moral reasoning (Pavlich, pg. 34)

Practical reasoning is a way to reveal moral ways of acting, moreover it cannot be derived from human nature but practical nurturing of the human to use moral reasoning. Yet, in regards to determining those who seek employment in the government. However, the practical reasoning of determining who gets employed and who doesn’t should base its reasoning not by who has used a process of ATI or FOI, but be unbiased towards individuals who have used ATI and FOI to gain information about themselves.

Moreover, Finnis argues, “It is never possible to have a value free description and analysis of law. By expressly focusing on the moral dimensions of law, he argues that ‘natural law theory tries to do openly, critical and discussably, what most other analytical and descriptive theorists do covertly and dogmatically” (Pavlich, Pg.36).  ATI and FOI should have its acts such as the Access to Information Act, as well as Freedom of Information and Protection of Privacy Act. These should be open to the public’s right to access information about them and should not then be further questioned or put under the radar for the assumption of gaining information about them which translates to a greater possibility to harm governmental procedures.

References:

Bal Sokhi-Bulley, B. (n.d.). Governmentality: Notes on the Thought of Michel Foucault. Retrieved December 5, 2014.
Pavlich, G. (2011). Law & Society. Canada: Oxford University Press.

https://www.youtube.com/watch?v=2aI65Tu5Eus

1 Comment

Filed under Contributor Post

Douglas Hay’s Law as an Ideology & Marx’s Superstructure

Based on Douglas Hay’s “Property, Authority and the Criminal Law” it reveals three aspects of law as an ideology. With the combination of Majesty, Justice and Mercy these define the courts and most importantly the prestige of the law.  The discussion of whether contemporary Canadian Law has changed in regards to these three different aspects of withholding the value of the image of law. Majesty as Hay describes it is, “The symbolism, ritual and visual representations of the power and authority of the state” (Hay, 2004). Hay furthermore describes the court’s design and meaning behind each architectural structure. The judge would have sat in the courtroom on an elevated bench. This would translate to authority above all and individuals in the court would have to look up towards the judge in respect and emphasize of acknowledgement of power and authority. In addition, courts officials wore elaborate outfits including wigs and robes (Hay, 2004).  Moreover, in the English legal system, before a death sentence or unresolved capital punishment cases judges would need a certain type of ceremonial outfit or attire to fit the occasion of the ceremony. Nowadays, the contemporary Canadian Law system also holds similar values in the court (Hay, 2004).  I believe this standard has not fallen far from the original standards but has changed minimally to fit the standards of some legal differences from the English legal system to contemporary Canadian law.

Hay’s definition of Justice in the English legal system was, “Movements to establish the rule of law, rules of legal procedure, legal professionalism, and the primacy of individual rights. As a result, the court became worried about the legal formalism. Many acquittals were based not on the weight of facts, but on violations of legal procedure (Hay, 2004). Furthermore, courts had several miss-trials and acquittals, based on weight of facts, and violation of legal proceedings this affects the formalism of the courts. In the English legal system, there was occasional use of criminal law and executions to reinforce the idea of equality before the law (Hay, 2004).  In contemporary Canadian law we still uphold justice by following precedent cases. In addition, to apply appropriate punishment for each specific crime. To also engage in jury trials where there is the opportunity for public interest`s voice to be heard and not only justice from the courts or judge.  In Canadian law there is also the Charter that protects us from injustice. However, the English legal system may not have the same benefits as the contemporary Canadian system now. Yet, I believe majority of the standards have not changed dramatically.

Lastly, mercy in the courts were exercised frequently mainly through discretion (Hay, 2004).   Discretion is the freedom to decide what to do in a particular situation or case. This these circumstances the judges are able to use discretion in court to minimize the damages the offender or accused will have to face due to how the judge believe in the likelihood of the offender or accused to commit the same offense.  In the contemporary Canadian law I believe we use discretion at a greater extent. For example, the sentencing of aboriginals are significantly minimized due to the acknowledgement of trauma this particular ethnic group has suffered from. Another example would be NCRMD  (Not Criminally Responsible on Account of Mental Disorder), these particular individuals have a great amount of discretion when it comes down to sentencing. In the case of Vince Li, he had decapitated another individual on the Greyhound Bus due to his mental illness. He was then acquitted by discretion of the judge to acknowledge his medical condition and his state of mind in the act of murdering another passenger.

Marx`s take on how law functions in a Capitalist Society, “First, they suggest that the state comes into existence when class conflicts become irreconcilable, providing a context for it to position itself as an external arbiter of such conflicts. Although the capitalist state is ultimately a creation of the ruling class, developed to secure its overall interests, that real power needs to be obscured and legitimated. Here law plays an important role: it obscures that power by extending rights equally and universally to all- but it does so within a fundamentally unequal social context” (Pavlich, 2001). Marx’s statement is that law is located within the superstructure of society and that law arrives from the socio-economic base. The superstructure functioned upon the base of social relations as well as the means of production. Without these fundamentals, law would have been built on nothing.

1 Comment

Filed under Contributor Post