Author Archives: philipbre93

Law, Sovereign Power, and States of Exception

What possibilities for resistance exist for those whose status is that of homo sacer?  Put differently, is it possible for those who are subject to a state of exception and therefore cast outside of the sphere of ‘normal legality’ to resist sovereign power? If so, how?

Yes in answering the question of whether or not the homo sacer (basically someone who is banned, has no rights etc.) can resist sovereign power the answer would be yes. I do believe it is possible for the homo sacer to resist, however it depends on the situation and on the type of regime/government this individual (homo sacer) is under. For example last week in class, we talked about the men that were held in Canada in a jail for terrorism. I don’t remember the exact reasons why they were held, but in relation to this particular issue the individuals went on a hunger strike and basically said they were not going to eat until their case was resolved (these men were being held in jail without a charge and they could not know why they were being held or on what grounds). So this would be an example of a case where the homo sacer was able to resist sovereign power (through the means of a hunger strike which eventually made the government take action).

However I must say I do not feel that normally there is much of a chance for the homo sacer to resist. I believe most of the time where sovereign power problems like this occur, they occur in an undemocratic country. Because of this there is really no motivation for government to comply because the citizens already do not have a voice. In relation to what happened in Canada initially no one really protested the unjust locking up of these individuals without charges laid against them. This had to do with the moral panic that resulted from 9/11 and widespread fear of terrorism. So when these individual were held on supposed grounds of terrorism, no one really questioned the legitimacy until years after 9/11 had occurred and the hype had died down.

On a related note, if it is the exercise of sovereign power that creates the juridico-political space of the camp and places people into this space, how can people exit the camp? Is it possible for persons to move from the status of homo sacer to a ‘legal’ status, despite the decision of the sovereign? If so, what kind of power are they exercising?

For this twofold question I would answer no for both of them. To argue my point I am going to bring up the historical example of the Nazi concentrations camps. I would argue that it is impossible to exit the camp unless the sovereign is overthrown or changes the laws that make the individual a homo sacer (person without right). Again for the homo sacer, I do not believe it is possible for him to move from his current position into a legal status. In relation to exiting the camp I would think this would be highly unlikely. Again, only if the sovereign decided to change the laws keeping these people in the camp. If one is talking about exiting the camp if form of escape, this would possibly be possible. However even this is unlikely. Two summers ago I went on a holiday to Europe, while I was there I got to visit one of the old concentration camps from world war 2 (Dachau). During the tour, the question was brought up about why the prisoners did not rise up and try fight their way out. There were a number of reasons, torture, psychological abuse, and of course armed guards. One has to remember in relation to the concentration camps, these prisoners were exposed to (either directly or witnessed) brutal beatings, tortures, and the constant smell of ovens burning the bodies of those prisoners who died.  This all served as psychological means to keep these prisoners in check.

So basically, I do not see how it is possible to think it is possible for people to exit the camp, nor do I believe that they can get legal status, unless somehow the sovereign creates laws that define what exactly makes a homo sacer. Then I guess it can be argued that in some aspect they have legal status, in the sense that they are legally recognized as people with no rights.

Sources:

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

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Oppression of Aboriginals People and Genocide

Oppression of Aboriginals People and Genocide

Response to Food for Thought Question 1

According to this convention, yes making and naming the oppression of the Aboriginal people in Canada genocide, would probably be an act of demystification. According to the convention referred to in the question, genocide is described as meaning any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such:

(a) Killing members of the group;
(b) Causing serious bodily or mental harm to members of the group;
(c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;
(d) Imposing measures intended to prevent births within the group;
(e) Forcibly transferring children of the group to another group.

There have been cases of killing member of the group. Many deaths have been reported, specifically in relation to the residential schools. For example, Tuberculosis was one disease that spread through the schools. Even though many children were near death, they were found to still be forced to sit through class. Those with tuberculosis and those who had not contracted the virus yet, were mixed together in the same classes. And since this was a disease that originated in Europe (or at least aboriginals had not been exposed to it yet), these native children had no immunity to it and became sick rapidly (Akhtar, 115-16). Mortality rates rose from between 35-60% in these residential schools in just the first five years of these schools being opened! (Akhtar, 115) .

The Canadian government definitely caused serious bodily harm and/or mental harm to aboriginals, If you look for example at the residential schools, these were strict school, forcing the children learning to agree and learn religion that they had not been brought up with, and there was no choice, it wasn’t like the parents had any power. They could not even take these kids out of school.

Canada also deliberately inflicted on the group conditions of life calculated to bring about its physical destruction in whole or in part. For example, in the Indian Act there were laws such as it was illegal to sell produce to people off the reserve, that they (aboriginal) grew on their reserve. This basically meant that the land they were given was useless. They could make no money off the fruits of their lands, so it forced aboriginals either into poverty or making them look for work off reserves.

Canada also imposed measures that intended to prevent births within the group; things such as marriage to an outsider (someone not aboriginal) would result in the individual losing their status and losing the ability to give their status on to their offspring. There were also forcible transfers of children from one group to another. This would go back to the residential schools, one of the key goals of these schools was to separate the Indian child from their parents and by doing so assimilating them into Canadian culture. (Monture, 86-88).

The outcome of naming the actions against Aboriginals as genocide would definitely cause many problems for Canada as well as global embarrassment. I believe it would complicate the entire situations even further then it already is. However from another point of view it may actually help with closure for First Nations People and Canada. It may just be that naming the acts as such will finally put it to rest and bring around the possibility for a new start with the Aboriginal people of Canada.

Monture, based on her argument in Standing against Canadian Law, might respond to this call to employ the moral and legal language of genocide with agreement. I believe she would probably agree based on the facts of the violation that have been committed against aboriginals. It is hard to determine what her view of this would be. The chapter in our textbook that she wrote, really focuses on aboriginal injustices in the legal system and injustices to women in particular. It is hard to really know where she would stand.  Above is listed article 2 of the Convention on the Prevention and Punishment of the Crime of Genocide, which was adopted by the United Nations (UN) on December 9, 1948. I do believe she would definitely agree that there have been violations to Aboriginal people in all aspects of this article 2. So perhaps she would agree with this call to employ the moral and legal language of genocide.

My own position on this argument would be, that I find it hard to make a complete judgement of what I think is the correct answer. I do agree that Canada has violated the First Nations People in the ways described above, but whether that is what constitutes genocide might be going too extreme.  I am not an expert on this subject and with the amount of knowledge I have, I believe it would be insufficient to make a concrete judgement. I do agree that there have been violations and that they do need to be dealt with. Injustices still remain. I believe full closure will only happen when all issues surrounding this topic are resolved. This could take a long time yet, but awareness is a step in the right direction.

Sources:

Akhtar, Zia “Canadian Genocide and Official Culpability.” International Criminal Law Review 10.1 (2010): 111-135. Academic Search Premier. Web. 5 Nov. 2013

Monture, Patricia. Comack, Elizabeth Ed. Standing against Canadian Law: Naming omissions of Race, Culture, and Gender. Fernwood Publishing, 2006. Print

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