Author Archives: obalcarcel

Larsen’s theorization of the of the Kingston Immigration Holding Center vs Agamben’s theory of the camp.

Larsen’s theorization of the of the Kingston Immigration Holding Center  and Agamben ‘s theory of the camp have similar and different view of the effects that a state can do when an emergency occurs. Firstly, Agamben’s theorization of the camp is a theory of normalized exceptionality. For Agamben the camp is the place that is created when the state of exception begins to become the rule. Moreover the state, can achieve all this through sovereign power. Additionally, the concept of the camp can explicate the legal space created by normalized exceptionality. The theorization of KIHC presented by Larsen and Piche in their Canadian Journal of Law and Society article states that the KIHC can be understood as spaces of normalized exceptionality. In addition, the main difference between the theorization of KIHC presented Larsen and Piche are the zones and the spaces of the prisons. Exceptional practices and organizational mandates are discussed by Larsen and Piche because sovereign power and counter law allow extraordinary actions. Both authors mentioned that legal exception harm individuals and violate their rights. These individuals are not treated as they are supposed to be treated because of the power giving to these organizations by the government. In addition, Larsen uses the theory to assimilated to modern times and to explicate the legal exceptions and the power that the State has during emergencies. On the other hand, Agamben demonstrated that people live in a society where the state is constantly on emergency and utilizes the law as an instrument to manipulate individuals (Pavlich, 2011). Additionally, Larsen explicates that exception happen because when the state is under danger, exceptions arise.  However, Agamben argued that the government always had the power to control individuals through different ways.

Both Larsen and Piche, were not in favour of the security certificates for their purpose to punish individuals. The government of Canada authorized the Ministers of Public Safety and Citizenship and Immigration to sign a document that allows detaining an individual without Canadian citizenship status. That person would be inadmissible to Canada; the person would be detained and expulsed. Moreover, the state exception takes the form of counter-law – laws against law or rules about exception to rules. The key tenet is that precautionary logic demands acts intended to ward off imagined source of harm (Pavlich, 2011). However, when individuals are detained harm is performed to them. These organizations are distorted by states of exception. The author mentioned “what begins as an exercise in (in) security problem solving can, overtime, evolve into a set of “best practices, stable partnerships and even new institutions” (Larsen, 2013). Certainly, I agree with his views that sometimes certain legislations arise due to certain emergencies. Some violate individual’s rights but at the same time it is necessary to have new legislation; new crimes are emerging into society and it is necessary to have people decide what type of measures should be taken because the state cannot detain individuals for no reason and have them incarcerated to a long time and at the same time violating their rights.

References :

CRIM 3305-Law and Society Handout-Mike Larsen

Lecture CRIM 3305-Law and Society October 23th 2012- Mike Larsen

Pavlich, G. (2011). Law & Society Redefined. Don Mills, Ontario: Oxford University Press.

Larsen, M. and Justin Piché. Exceptional State, Pragmatic Bureaucracy, and Indefinite Detention: The Case of the Kingston Immigration Holding Centre.

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Sovereigns except themselves from their own laws.

According to Agamben certain norms nowadays are utilized by states in emergency circumstances in order to take control of chaos. During a chaos, the idea is to allow sovereigns to be excluded from their own laws. This allows the state to declare suspension to certain functions or rights during emergencies.  This can also be utilized to suspend rights and freedoms, even if the rights and freedoms were guaranteed by the Charter of Rights. For instance in Canada we have the Emergencies Act which permits to take unusual measures for a small period of time during national crises. However, this act can be utilized for a certain time, sometimes for 90 days. For instance during the notorious FLQ crisis, the state amended certain rights. Additionally during World War I, when the threat of communism was a problem in Canada, rights were also suspended and in World War II, when the Japanese Canadians were regarded as a threat. States of exception come into being when the nation is under threat. Additional, legal subjects are considered to have rights that enforce limits on the decisions of state power.

All individuals are subject to the law, but also subjects in the law. Sadly, only sovereign is he who decides on the exception and decides if the case is exceptional. Martial laws, states of emergency, War measures, declaration of disasters are ways in which a state of exception can come into being. These decisions are based on a claim to necessity. It suspends the rule of law for a certain period of time. Sovereign power is capable to function without restrictions of law, with comparative impunity.  Moreover, modern governments utilize the power to displace the rule of law in order to solve chaos.

Furthermore, individuals are stripped of legal status, civic and political rights becoming legally unclassifiable beings. Sovereign power relates to them as bare life because they are abandoned by law and exposed to sovereign violence. These individuals can be mutilated with impunity but not murdered. Bare life is treated as disposable. The idea is that these individuals are incorporated in the law and in the political community only through a relationship of exclusion. In short, legal statutes and norms may cease to have the force of law, while actions that have no legal content may obtain legal force.

References:

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

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Crime as an essential and necessary element in society: Durkheim Socializes the Law.

Durkheim proposed that crime was a normal part of society, and that crime in necessary and essential. Justice was seen by Durkheim as a moral value that was attached to the social world in various ways. Society played an important role in morality. Members of society become “individual” moral beings capable to comprehend conception of justice because they are capable to induce their notions to society and to socialize. Durkheim emphasized that moral values are always tied with other essential conditions, for instance morality is always attached to the solidarity of a social form (Pavlich, 85). In fact, with regards to Durkheim statement, one can comprehend that justice cannot be understood as a single idea but needs to be attached to the growth process of society.

Additionally, crime was considered by Durkheim to be a social problem that could only be regulated with justice. Crime was viewed as an “unambiguous violation of societal norms that must be eradicated from normal society” (Pavlich, 79). I believe that Durkheim was correct because crime is always tied to particular types of societies, and it is important as he stated “it’s normal because it is linked to the fundamental conditions of all social life” (Pavlich 79) because “there cannot be a society where individuals do not diverge more or less from the collective type” (Pavlich, 79).

Moreover, crime is always present in all societies around the world, and crime according to Durkheim is necessary because it ‘fundamental to social life, because without crime there can be no sense of what is normal and what is not. Crime performs indirectly because crime could only stop to exist if the conscience dominated the individual conscience. It also performs directly but occasionally. As a matter of fact, certain ordinary crimes in societies can alter in time and can change and be performed in different ways. Crimes are different and often offend different parts of society but are punished in different ways. Furthermore, Durkheim states that crime is normal and is an essential element in any society for many reasons. I personally believe that he is correct because any society has its crimes and in both parts crime is necessary.

With reference to a contemporary example, marijuana would be a good example because according to Marcus Felson, American soldiers in 19th century marijuana with them as a normal matter. In fact marijuana did not become a public issue until the 20th century. Indeed, consuming a small amount of marijuana is a felony in one place and a misdemeanor in a second place (Felson, 30). Actually, some jurisdictions enforce marijuana laws strictly and others mildly or sometimes rarely (Felson, 30). Not to mention, a marijuana statute can be enforced in one decade and be viewed as normal, can be ignored in another decade, and repealed in a third decade.

In fact, crime creates social solidarity because it held society together. Crime keeps people to come together because people look for a response in order to resolve social problems. Indeed, society needs crimes to live, because equilibrium is necessary and essential. Another contemporary example would be the case of Amanda Todd, how she committed suicide. Her action could be viewed by Durkheim as lack of solidarity, because repressive law would deal with penalizing actions that society as a collective view as wrong. Indeed, her behavior is wrong according to society, because it violates the social norms and social values.

In short, crime is a social fact, and is a normal element of any society because it is both “universal and necessary” to the performance of society. I certainly believe that Durkheim was right in a certain aspect about crime. Many examples were given to explain how society shapes individuals and how crime evolves in society.

References:

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

Simpson, S.S. (Ed.). (2000). Of Crime & Criminality: The Use of Theory in Everyday Life. 

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Anti-Semitic Laws Challenged by the approach of John Finnis.

The Nazi race theories in the fascist regime are unjust because this regime violates many rights that individuals deserve to have. Nazi race theories made Hitler to create prosecution policies, genocide, racial extermination and utilized the ‘final solution’ to exterminate the Jewish population. Certainly, this regime is unfair because everything has to benefit the state, and absolutely nothing must be against the state. It becomes intolerable because individuals are not important, and are utilized to obey order without choices.

The laws of this legal system can be challenged by using the work of Finnis. Finnis would concentrate on its “legitimacy and whether it gives the common good” (Pavlich 36) for society because these laws did not provide a common good for everyone. He would examine to what extent it allows subjects to pursue the basic goods. However, this regime does not allow subjects to pursue the basic goods because the policies are not providing the choices. The valuing and transmission of life are violated because this regime killed and exterminated the Jewish population. However, the valuing and transmission of life was respected for individuals that were part of the perfect race. This law does not facilitate with the interest of common good for society, it violates the requirements that law serve the common good of all people in society. It only facilitated the interest of the perfect race. This regime is intolerable because uses individuals to act in favour of the regime itself and demands active participation and passive approval from individuals.

Law was misused by the leader and did not equally serve the population. This anti-Semitic law clearly violated Finni’s basic aspects of well being and the value of sociability that requires ‘a unity of common action’ and the formation of shared objectives that serve the population (Pavlich 36). Objectives were not shared and unity was destroyed  because Hitler wanted to eliminate Jewish population. The law was unjust because it does not provide the common good in society. This law presented pain and problems to all people. It destroyed many forms of “human flourishing” especially “sociability and friendship, across a social body” (36).  Finnis sees law as species of “legitimate rules emanating from a rule-bond authority working in the common good” (37) because the function of law is to shape and order human interaction. If a ruler’s law offends against the common good, “it forfeits a moral right to govern its subjects and justice is always about securing and nurturing that common good” (35) because these principles come from the theory of universal human good and it is necessary to secure it.

Finnis argued that a healthy community requires a common code of conduct that “orders and coordinates interactions to achieve a common good” (35) but the laws destroyed human interaction. In addition, these laws can be challenged by religion because religion was one of the main causes for these anti-Semitic laws.  Jewish people were killed and prosecuted for their religion because it played a major role in this legal system. However, Finnis disagrees with the idea that unjust laws should not be obeyed because sometimes “when an unjust law should be obeyed so as not to weaken the legal system overall” (Pavlich 36).

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