In this blog, I will talk about the events surrounding Ferguson, Missouri and how I can apply the ideas of Ericson and Agamben to this situation. On August 9 2014, Michael Brown, an unarmed black teenager, was shot and killed by Darren Wilson, a white Ferguson police officer. Protests have erupted as a response to Brown’s death. Most of these demonstrations started out peacefully but escalated to a point where people started vandalizing and looting stores. This resulted in the police responding by firing tear gas and rubberized bullets at people and arresting dozens of them. It doesn’t help that the racial tensions were getting high as the dominant black community had to answer to a majority white police force. Although some of these police measures have caused most demonstrations to simmer down, there are still a small pocket of demonstrations happening. There are many that have criticized the way the police have handled the situation, seeing that they have begun to be more militarized. The use of the military to enforce civilian law requires congressional approval, but what happens when the police become so militarized that you can no longer distinguish between military forces and police forces? “Though Ferguson has already been under an unofficial state of martial law, there is no more debate. The militarized police state is not technically the military, but now it can not be denied. Ferguson is under martial law” (Garrison, 2014). Missouri Governor Nixon had declared Ferguson a state of emergency and deploying national guards in anticipation to the results of the grand jury that would determine whether or not Darren Wilson is guilty.
Due to the increasing civil unrest within Ferguson, it has led to Gov. Nixon to enter Missouri into a state of emergency and imposing a curfew and deploying the National Guard fearing the result of the grand jury’s decision. A state of exception is where a persons right is temporarily suspended. In this state of emergency, we can see how the rights of these citizens are being suspended as a form of national safety in case the decision of the grand jury upsets the citizens. The events surrounding Ferguson Missouri have been one of the most televised in media and has been a powerful way of framing the position of the government on this whole situation. Due to current state of Ferguson where there are some protestors that actively loot and vandalize properties, it was deemed that Ferguson was in need of reinforcements. However, are heavily armed soldiers that have sniper trained on protestors really necessary? According to Ericson, we are now relying on the state to reduce our fear by creating environmental and political initiatives to change our perceptions of the world around us. Even though much of our fears embedded through the use of different tactics by the state (Ericson, 2007). Society is shown via the media that they are under some sort of dangerous threat by the state that can lead to irrational fear and the only way to deal with this is by letting the state handle it by using their own initiatives. Sometimes It can be good that society is preparing for the unknown danger ahead but can it be justified? According to Ericson, Counter law takes on two forms. Law against law and surveillant assemblages are where “new laws are enacted and new uses of existing laws are invented to erode or eliminate traditional principles, standards and procedures of criminal law that get in the way of preempting imagined sources of harm (Ericson, 2007). According to Agamben, he characterizes the West as a totalitarian, in which exceptional measures have become normal, so that states of exception are more or less models for their governance (Pavlich, 2011, p.158). Agamben goes on to say how normal legal principles, standards and procedures are suspended because of a state of emergency. It becomes a slippery slope when legal order is broken in order to preserve social order. Agamben fears how the state of exception is no longer an exception but is now a normal state (Agamben, 2005). We can see how this has being introduced to our society be it post 9/11 America where counter law is used to manage terrorism risks. One could say that by issuing Martial Law it could be used as a preventive measure if the people were to riot after the decisions are released. However, the people of Ferguson have their rights essentially stripped away from them as a preventive measure for riots if the decision of the grand jury prove to be unfavourable.
- Garrison, D., (2014). It’s Official! Martial Law in Ferguson: Governor Brings in National Guard taken from: http://www.dcclothesline.com/2014/08/18/governor-brings-national-guard-ferguson-now-officially-martial-law/
- Pavlich, G. (2011). Law and society redefined. Don Mills, Canada: Oxford University Press.
- Ericson, R. V. (2007). Crime in an insecure world. Cambridge: Polity.
- Agamben, G. (2005). State of exception. Nova srpska politička misao, (1-4), 135-145.
In today’s society, one can say that the criminal justice system is far from perfect. Recently, the restorative justice movement has started to emerge more and more in Canada. In 1996, the Criminal Code of Canada was changed to include a community-based sentencing that also applied restorative elements. This aimed to help offenders take responsibility for their actions so they could make amends to both the victim and the community. Restorative Justice are often characterized by for main values: Encounter, Amends, Reintegration and Inclusion. The restorative justice program gives offenders, victims and the community a chance to discuss about the crime, to see how they can right the wrong, to restore both victims and offenders as a whole again and to also include other parties involved to be a part of this resolution.
Retributive justice employs punishment that is proportionate to the crime and focuses on the establishment of blame and guilt. The idea of proportionality states how the punishment scales relative to the severity of the offence. Although this type of system is very common to many societies throughout the world it can fail to take into account multiple factors that can result in unjust decisions. For example, a poor offender might be fined a certain amount which he could not pay but a rich offender will have no problem in paying it. Restorative justice then is the shift that believes in supporting offenders by helping them turn away from crime and behave in socially acceptable ways.
If we apply a Weberian perspective to the retributive justice system we can see how this type of system shows to be similar to the formally rational law. Weber developed the idea of the four Basic Categories of Legal Thought for law making and finding. The four categories include: Substantively Irrational, Formally Irrational, Substantively Rational And Formally Rational. Formally Rational law would best fit the retributive justice system since they tend to have rules that are clearly stated, followed, applied in similarly situated cases and are highly predictable in decision-making. Weber talks about the idea of Power which according to him is, “the probability that one actor within a social relationship will be in a position to carry out his own will despite resistance, regardless of the basis on which this probability rests”. We are slowly becoming obedient to these impersonal rules and also valuing these rules above all. In addition, the growth of the bureaucracy in the criminal justice system only serves to dehumanize society by being too rigid and technical in their dealings. But this system is slowly changing due to the retributive justice failing to recognize mitigating factors or the financial state of offenders which could lead to unjust decisions.
Weber believes that Law is a type of social action which gives meaning to a person’s action. The public remains an important factor in determining how the law is used . Furthermore, he believes that modern societies are starting to move towards the rational thinking phase. Restorative justice then becomes a kind of criticism to the retributive justice system. The legitimacy of law is often difficult to be certain since people can respond to law in different ways. Retributive Justice may favour a particular group while at the same time ignoring the needs of another group. This can lead to very impersonal rules that dehumanizes society as a whole. In comparison, restorative justice appeals to all members affected in the crime be it offender or victim. Restorative justice aims to understand crime in its social context so we can understand the root cause of it and break the cycle. This system is much more flexible in terms of resolving its conflict by offering mediation, circle sentencing or restorative conferences. This is a stark contrast to retributive justice with its strict adherence to legal principles which aims solely to punish the offender, we are slowly starting to see the shift of change towards a restorative justice system,. Weber believes that law is never absolute and is prone to change, he would categorize this change as a mix of both traditional and value rational action. Restorative Justice represents in many ways the values and practices characterized in aboriginal groups while at the same time allow people to realize the importance of these values.
In the end , we can see how laws can change and are affected by the people. In a Retributive Justice system we can clearly see its formally rational roots and has been a staple system used commonly in multiple societies around the world. We can see how restorative justice rejects the ideals and values of a formally rational legal system by applying laws that adhere to traditional and value rational action. Finally, the restorative justice movement is slowly growing and starting to show everyone how this method can reach resolution without having to adhere to such strict legal rules that serves only to empower a particular group.