Author Archives: Mike Larsen

Food for Thought: Applying Critical Race Theory

This week, we studied Critical Race Theory, with an emphasis on Michelle Alexander’s (2012) The New Jim Crow as a case study. My lecture notes include the following overview of CRT:

Critical Race Theory shares many of the commitments and ideas of the broader Critical Legal Studies movement – the deconstruction of ideologies (especially legal ideologies) that support social hierarchies, consciousness-raising, and law reform in the pursuit of egalitarian social relations. To this list, we can add a number of key ideas that inform CRT:

  • The recognition that racism is no (simply) a matter of individual prejudices and biases, but a phenomenon embedded in and reproduced by social structures and institutions – including legal institutions.
  • An emphasis on exploring the historical basis of contemporary forms of racism and racialization embedded in law.
  • A commitment to ‘reconstructing’ and reforming law in order to eliminate identifiable forms of racialized hierarchies.
  • A commitment to taking the lived realities and experiences of racialized groups as a starting point for analysis. This implies the use of narrative accounts and interdisciplinary approaches.

For this week’s ‘food for thought’ question, I would like to encourage you to apply CRT to a case study of your choice.

Food for thought:

Select a contemporary or historical example of a legal institution or process involved in the reproduction and perpetuation of racialized social hierarchy. You could focus on a particular statute, a broader legal regime, or an illustrative case study. You need not select a Canadian example. You may not choose ‘racialized mass incarceration in the USA under the New Jim Crow’, as we have covered Alexander’s analysis. You may not choose R. v. Kahpeaysewat, as this was covered by Pavlich (2011).

Write a post that:

  • Introduces and briefly describes the example you have selected, with reference to supporting source materials (this should account for no more than 1/3 of your post).
  • Draws on Critical Race Theory to explain how your selected example is illustrative of the role of law as a mechanism for the reproduction and perpetuation of racialized social hierarchy.
  • Explains how individuals, groups, or movements have responded to this issue by attempting to reform and ‘reconstruct’ law.

Be sure to engage with relevant sources (ex. Pavlich 2011; Comack 2006; Alexander 2012). While you cannot reproduce Alexander’s analysis, you can certainly draw on her observations.

Posts prepared in response to this question must be submitted before class on November 4, 2014.

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Food for Thought: Feminist Legal Theories and the Construction of Categories

One of the threads that runs through the various schools of feminist legal theory is the idea that law and legal processes play a role in the construction of Women as a category (and as a subjectivity). For liberal feminists, this involves treating women as a group (and thereby creating ‘women’ as a generalizing legal category), rather than as individuals before the law. For radical feminists, the law – like the state – is regarded as malecentric and patriarchal, and it is implicated in the normalization of inequalities based on sexuality and gender. For postmodern feminists like Smart, law is gendered – legal discourse employs, reproduces, and constructs particular gender categories.

For this week’s food for thought question, I would like to explore some examples of the construction of gendered categories / identities / subjectivities through law.

Food for thought:

Select a particular approach to feminist legal theory. Then, write a post that:

  • Opens with a brief overview of the main features and ideas of your chosen theory;
  • Introduces a case study (a legal case, process, statute, etc.), and;
  • Explains, drawing on your chosen theory, how the case study demonstrates the role of law in the construction of a particular (gendered) understanding of women.

Further requirements:

  • You may not select R. v. Kahpeaysewat [2006] as a case study
  • You must engage with Pavlich (2011) and Comack (2006), and, where appropriate, Smart (1992)
  • You must engage with additional sources to describe your case study

Posts prepared in response to this question must be submitted before class on October 28

 

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A Weberian Perspective on Restorative Justice

This post was written by CRIM 3305 student MGee89

Restorative justice, a practice widely used in Canada and many other countries, has emerged recently as an alternative to traditional criminal justice methods. The UN Economic and Social Council adopted a resolution in 2002 in regards to practices and policies on restorative justice for all its participating states (Public Safety Canada, 2014), and from then on, restorative justice has become a popular approach.  The criminal justice system is adversarial in nature, and has often relied on retribution and punishment as a form of dealing with crime. Restorative justice is an approach that looks at crime as a harm done to relationships, an outlook that is anti-adversarial and not retributive. Restorative justice practices allow for a safe environment where all those affected by the crime (offender, victims, and the community) can address their needs in a way that is meaningful to all involved. It is a voluntary practice where accountability for the crime is acknowledged, as well as the harm done, in order to achieve closure, mutual understanding and reparation (Correctional Service Canada, 2012). It allows for the victim to convey to the offender what they felt, and allow the offender to be accountable for their actions by understanding the harm they have caused to another. The offender can explain themselves and their motivations and needs, as well as address the needs of the victim and allow the victim to explore with the offender the root cause of the harm (Correctional Service Canada, 2012). The end goal is to help the victim heal from the harm caused, allow the offender to take accountability and help mend the harm, while reintegrating the offender back into the community as a responsible citizen. This process entails the offender and victim agreeing on possible terms of reparation, and this type of procedure does not have any rules in place. Unlike most of the avenues for accountability for those who committing crimes, restorative justice is an extra judicial sanction and once it is chosen as an appropriate action in a criminal case, it heavily relies on emotions and needs of those involved.

Max Weber, a prominent legal sociologist, focused on how individuals interpret and find meaning within social relations.  His theory was founded on the fact that Western society was becoming more capitalist, and with capitalism came new ways of interacting with others that were based on rationality (Pavlich, 2011). Rationalization meant that authority and power now originate in obedience to impersonal rules, rather than originating from specific individuals, such as monarchs or the police.  He developed ideal types, or ways to easily categorize construct, and he categorized law into 4 types based on two variables – formality and rationality. Formal systems of law refer to systems that use internal legal rules and procedures that are applied to the facts of a particular case. On the other hand, substantive systems rely on external criteria (such as political, moral, religious, etc.) and emotional factors in making decisions (Pavlich, 2011). Both of these systems are also categorized on the variable of rationality, to make four categories of law. Rational system are intellectually formed, and governed by rules and logic, while irrational systems do not follow clear rules or prior decisions, are arbitrary and do not differentiate between legal and extra-legal methods (Pavlich, 2011). In formally rational systems of law, there are clear internal rules that must be both defined and followed, and law specifically differentiates itself from politics, religion or any other extra-legal perspectives. This allows for predictability in decision making, as decisions are based on prior cases. Canadian law is formally rational – it follows the due process model and comes to decisions based on considering similar cases and applying the facts of a particular case to prior ones. It follow internal rules, such as our Constitution and the precedent system, and uses logical application of rules. For Weber, rationalization of law is can only be applies to Western society, in particular, where a staff of bureaucrats is specifically trained to be in charge of applying legal concepts impartially and without bias (Pavlich, 2011). Restorative justice is a substantively rational technique – it refers to emotions in solution of conflict and to extra judicial criteria. Although the road to a restorative justice process is formally rational by nature, with the judge agreeing to allow the individuals involved to participate if they voluntarily choose so. However, once the process is initiated, there are no official rules for reparation. The victim will often explain their story, the offender will listen, take responsibility for the harm done and try to explain their position as well. At that point, a resolution can take the form of an apology, a restitution, or a mutually agreed upon solution that satisfies both the victim and the offender. This process is based on affect, emotion and mutual understanding. It does not allow for the predictability of a resolution, like is found in formally rational systems. Overall, although Canadian law has stayed rational, It has recently become more substantively rational for certain sanctions, with discretion and extra-judicial measures being enacted, such as community service, anger management, therapy, and conditional sentencing. In particular, extra-judicial sanctions are common for youth offenders, where first time youth who committed a non-violent offence are diverted from the court and are given warnings or therapy (Department of Justice, 2013).

Weber believed every social action had a component that was behavioral (as in the action taken), as well as a motivational component behind that behavior. Weber wanted to explore the subjective meaning of behavior, and believed that a behavior, or social action, is only social if it is purposely oriented towards others (Pavlich, 2011). Restorative justice attempts to promote dialogue between those affected by the conflict in order to gain mutual understanding behind the needs of the action as well as its consequences. Without a victim, restorative justice cannot work. The action must have had consequences on a person, as behavior is oriented towards others. Restorative justice allows us to take into account the meaning or motive behind the crime rather than just punish the behavior. It explores the motivation behind an action through open dialogue. Regular criminal justice procedures only punish based on the facts of the case (the behavior) rather than trying to understand the need (the motive), often without consideration of all of those who are afflicted by the criminal action. Often, neither the victim nor the offender are satisfied in an adversarial system, but restorative justice allows for rebuilding of relationships and trust.  Therefore, restorative justice fits well within Weber’s theory of social action as it focuses on both the behavior as well as the motive behind the crime in order to achieve mutual understanding and promote healing.

References:
Pavlich, G. (2011). Law & society redefined. New York: Oxford University Press.
Department of Justice. (2013). Extrajudicial measures. Retrieved from Department of Justice
website: http:// www.justice.gc.ca/eng/cj-jp/yj-jj/ycja-lsjpa/sheets-feuillets/measu-<http://www.justice.gc.ca/eng/cj-jp/yj-jj/ycja-lsjpa/sheets-feuillets/measu->
mesur.html
Public Safety Canada. (2014). Restorative Justice. Retrieved from Public Safety Canada website:
http://www.publicsafety.gc.ca/cnt/cntrng-crm/crrctns/rstrtv-jstc-eng.aspx
Correctional Service Canada. (2012). Restorative Justice Factsheet. Retrieved from Correctional
Service Canada website:
http://www.csc-scc.gc.ca/restorative-justice/003005-0004-eng.shtml

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Community Policing as an Ideology

This post was written by crim3305student, a KPU CRIM 3305 Law & Society student

The politically correct version of community policing looks to strengthen the interrelationships between citizens and police organizations. Through community partnerships and crime prevention initiatives a community’s social issues can be effectively addressed. Often a veneer of community policing gives an image of a cop working with a home owner to prevent graffiti or cop being patient in a dispute between citizens. Community policing is a modern ideology relative to Hay’s ideological concepts of majesty, justice, and mercy. The ideology of community policing is perpetuated through the criminal justice system and has been adopted by most police departments.

The term community policing is a hegemonic term in itself because it assumes that police and community interests are one in the same. The ideology of community policing enables terms like partnership and cooperation which portrays a positive image of police to the working poor. The term community policing reinforces the dominance of the status quo by presenting police in a positive image to encourage complacency. Hegemony involves the creation of ideals that convince the working poor that the goals of economic elites and the working poor are one and the same. Hegemonic “ideologies … mask interests of capitalist exploitation and deflect attention away from capitalist society’s real interests; naked oppressions and structural inequalities” (Brook & Schissel, 2008, p. 59).

Community policing ideology re-enforces the status quo by distorting the role of police officers. The image of police officers is altered to re-enforce the ideals that the police are there to protect citizens by enforcing the law. Community policing is an ideology used when convenient to legitimize the function of the police. The ideals of community policing are swept aside in issues of dissent, protest, and corporate crime. Citizens that start protesting or expressing dissent are often met with force or excessive violence. Citizens that protest root causes of exploitation in capitalism through anti-globalization protests are preemptively arrested. The 1997 UBC protests involved students expressing their concern over Suharto whom was a dictator from Indonesia. Suharto was scheduled to speak at the Asia Pacific Economic Coalition summit at UBC. Suharto was accused of mass killings of protestors and indigenous populations in Indonesia. The students protested both Suharto’s crimes against humanity and the non transparent meetings of global economic elites. The RCMP preemptively beat and arrested the university students protesting on campus. The video link shows a CBC report on the protests: (http://www.youtube.com/watch?v=fmJiTX8adIs). Eventually news came to light exposing that the Canadian government ordered the RCMP to deal with the protestors. Reports also came to light of a protestor named “Jaggi singh” (Klein, 2002, p. 152) who was arrested by non uniformed police officers the day before the protests took place. Jaggi singh was arrested on school grounds and put into the back of an unmarked vehicle. Community policing ideology was neglected during the APEC summit while the students of UBC were met with force. The excessive use of force by the RCMP alienated community members and exposed that state agents represent interests other than those in Canadian communities.

Dickson states that the government has been monitoring peaceful protestors and university lectures (Dickson, 2014). The protests and lectures were critical of the state and often addressed issues unfavorable to capitalism. Issues surrounding workers rights, pollution, and transnational corporations were reasons for the RCMP and CSIS monitoring civilians. The RCMP’s unwarranted spying on civilians contradicts the official version of community policing. The current spying controversy exposes how community policing is an ideology created for elite interests. The politically correct version of community policing is:

“The ‘professional community policing model’ proposes a new philosophical, organizational and operational approach to policing in an urban setting. It suggests a partnership between the community and the police in ‘managing’ crime and public order as well as developing crime prevention programs” (Dubois & Normandeau, p. 113).

The ideology of community policing perpetuated by the super structure creates a perceptual disconnect in the actual functions of police officers. As seen in the 1997 APEC protests state agents will protect the will of the ruling class compared to the constitutional rights of civilians. The above definition of community policing fails to include police conduct in different protests across North America which include: the occupy protests, the Seattle protests, the G8 Toronto protests, the OKA crisis, the Ipperwash protests, and the Six Nation’s Reclamation. The above definition also fails to describe the unwarranted spying of civilians that are critical of capitalist modes of productions. The community policing ideology provides “mystification” (Larsen, 2014) to perpetuate the belief that state agents do not operate to protect capitalist modes of production. Structural Marxists hold that “the state acts on behalf of capital, primarily by reproducing capitalist class relations” (Larsen, 2014). Community policing ideology masks police functions in the guarding of the collection of capital, the modes of productions, and the social relations of production.

The super structure includes institutions that create and perpetuate ideology that legitimizes the relationship between the upper and lower classes. The community policing ideology attempts to portray citizens and police as equal partners in decisions of crime in communities. Ideology in this case helps create consensus and reaffirm that both police and society seek to deal with the same social issues. The ideology is symbolic in that community policing creates illusions of equality in a system rife with class conflict. Community policing as an ideology can potentially shift the focus of policing and criminal activity to the lower classes. Brooks and Schissel claim that the most serious crimes are perpetrated by corporations and the state. Brooks and Schissel explain that;

“in recent decades an ideological revolution – a corporate counter-revolution – has succeeded in persuading key elites in Canadian society that potentially profitable corporate acts are not wrong. Therefore, although they cause many more injuries and deaths, and much greater financial loss than traditional assault and theft, they are not defined as acts that merit criminal status” (Brook & Schissel, 2008, p. 279).

Community policing is one ideology amongst many in the Canadian legal system. Community policing effectively produces rhetoric that masks police functions that are unfavorable to working class interests. When the working poor express discontent about corporate crime and state transparency it results in police tactics that no longer resemble community based values.

Works Cited

  • Brook, C., & Schissel, B. (2008). Marginality & Condemnation: An introduction to criminology 2nd Ed. Halifax: Fernwood Publishing.
  • CBC. (n.d.). Pepper Spray – APEC UBC 1997 . Retrieved October 9, 2014, from youtube.ca: http://www.youtube.com/watch?v=fmJiTX8adIs
    Dickson, J. (2014, September 20). Harper government tracking hundreds of peaceful protests. Vancouver Observer .
  • Dubois, P., & Normandeau, A. Professional community policing in Canada. European Journal on Criminal Policy and Research , 5 (4).
  • Klein, N. (2002). Fences and Windows. Toronto: Vintage Canada.
  • Larsen, M. (2014, October 7). Law, Society, Class amd Ideology: The Contributions of Marx – Oct. 7. In class notes . Surrey, BC, Canada: Kwantlen Polyyechnic University.

 

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The Juxtaposition of a Capitalistic Welfare System

The following guest post was written by Kwantlen CRIM 3305 Zahra Sunderani

“While the pivotal point in the rule of law is ‘equality of all before the law’, the provision of formal equality in the legal sphere does not extend to the economic sphere. Thus the law maintains only the appearance of equality, because it never calls into question the unequal and exploitative relationship between capital and labour.”

I find that the above quotation is one which reveals the way that the law can function in a capitalistic society. Karl Marx explains that capitalism is a system which maximizes persons’ labour in order to achieve surplus value. This surplus value is attained through the labour that persons invest into what they are crafting, which then can be sold at a higher price as a result. This unequal relationship between the labourers and the capitalists must take place in order for this system to flourish. Marx expresses how corrupt this system is by stating that “capitalists exploit workers to the detriment of all: ‘The more the worker produces the less he has to consume; the more value he creates the more worthless he becomes.’” (Pavlich, 90) Since capitalism is a system which must create inequality in order to function necessarily, the most equal the law can become within the confines of a capitalistic society is to simply hold its appearance.

The case study I choose to use in order to argue with Comack, is that of the social assistance (a.k.a. welfare) system in Canada, explored by Mirchandani and Chan in their text: Criminalizing Race, Criminalizing Poverty: Welfare Fraud Enforcement in Canada. This system has been scrutinized as being completely inadequate for those who are most in need. The policies are made to be strict in order to avoid welfare fraud, but the reality is that they are systematically disabling those who most need them. The authors reveal how welfare policies and procedures stigmatize recipients, and through welfare enforcement, the process of criminalization in an attempt at social justice, simply furthers economic inequality. (Mirchandani & Chan, 62)

In particular, the authors note the unlawful surveillance techniques that are used in order to detect welfare fraud in Canada. At any time, if a person is suspicious of committing fraud, an eligibility agent can visit the home of a recipient in order to make sure that what they are claiming on paper is the actuality of their situation. What is more, is that most recipients have expressed their discomfort with this invasion of privacy, but also feel pressured to comply for fear of not receiving a cheque from the government. In comparison with criminals, if police officers cannot simply barge into a criminal’s home if they suspect them of committing criminal activity, then how is it legal for an eligibility agent to carry such rights? (Mirchandani & Chan, 70)

There is also a “big brother-esque” surveillance technique called the Hot Line. This is a twenty four hour call centre which is set up in the case that a person wants to report the possibility of welfare fraud by a welfare recipient. There are no restrictions to who can call this line, which then leads to a home visit from an agent. This line then can be used as a threat to welfare recipients, forcing them to live in fear of being cut off from their assistance. This intense invasive treatment of welfare recipients may arguably be infringing on their right to privacy. It is dehumanizing, harsh, and ineffective, which once again exemplifies Comack’s statement. (Mirchandani & Chan. 73)

The idea that law tries to assert in supposedly treating everyone as equals under the law, cannot absolutely do so when it is working within the confines of a capitalistic society. Due to the inherent inequality that is the essence of a capitalistic society, the law tries to operate for all different persons of various economic situations, but is impaired in doing so equally.

Lastly, I want to offer a link to a sketch about the issues regarding capitalism. The sketch is done over top of a talk that was held by a Marxist geographer: David Harvey. It is very informative and definitely relates to what we have learned about in class. Also, it is thoroughly entertaining.

RSA Animate. “Crises of Capitalism.”June 2010. Web. 10 October 2014. http://www.thersa.org/events/rsaanimate/animate/rsa-animate-crisis-of-capitalism

References:

Mirchandani, Kiran & Chan, Wendy. Criminalizing Race, Criminalizing Poverty: Welfare Fraud

Enforcement in Canada.Winnipeg: Fernwood Publishing, 2007. Print.

Pavlich, George. Law & Society: Redefined. Ontario: Oxford University Press, 2011. Print.

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Food for Thought: Law, Ideology, and Legitimacy

This week’s ‘Food for Thought’ post concerns the work of Karl Marx, and Marxist legal scholarship generally. You have a choice of three (!) different questions to respond to. You may only respond to one question.

Option 1:

Douglas Hay’s classic analysis of England’s Bloody Code identifies three aspects of law as ideology: Majesty, Justice, and Mercy. During this week’s class, we discussed the applicability of these ideas to the contemporary Canadian legal system. We were in general agreement that these aspects of law as ideology are still applicable, but perhaps in modified or diminished ways.

From a Marxist perspective, law is part of the social superstructure, and it serves to legitimize (and rationalize, and justify) the underlying socio-economic base. Importantly, this means that the nature of the legal system in any given society at any given point in history will reflect (and legitimize) the particular mode of production that characterizes the society. It stands to reason, then, that there should be ideological aspects of Canadian criminal law that are particular to the present moment.

Food for Thought:

Write a post that describes an ideological aspect of contemporary Canadian criminal law, other than majesty, justice, or mercy. Your post must describe this characteristic, explain how it relates to the operation of the legal system, and explain how it operates as ideology. Note that we discussed several potential responses in class. You are welcome to pick one of these examples and elaborate on it in your post. Be sure to refer to supporting material, and cite your sources.

Option 2:

One of the defining features of the Official Version of Law (Comack 2006) is the notion of equality before the law. Comack (2006) notes that:

“While the pivotal point in the rule of law is ‘equality of all before the law’, the provision of formal equality in the legal sphere does not extend to the economic sphere. Thus the law maintains only the appearance of equality, because it never calls into question the unequal and exploitative relationship between capital and labour.”

Food for Thought:

Write a post that uses a case study* to examine this quote. You may support Comack’s argument, in which case you will need to use your case study to illustrate how “the law maintains only the appearance of equality”. Alternatively, you may critique her argument, in which case you will need to use your case study to illustrate how the law operates to extend equality beyond the legal sphere. Begin your post by quoting the above passage and explaining what it means (this should take up no more than 1/3 of your post). Then introduce your case study and develop your argument.

* interpret ‘case study’ broadly. You could select an actual legal case, a particular statute, a particular legal process, etc. Just be sure to pick an interesting and relevant example, and to explain it to your readers.

Option 3:

Food for Thought:

Briefly describe the Temporary Foreign Workers program and provide an overview of the recent controversy surrounding this practice (this should take up no more than 1/3 of your post). Then draw on Marxist legal theory to explain the program and the controversy.

If you decide to prepare a post in response to one of these questions, you must submit your post before class on October 14.

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Food for Thought: Applying Weber’s Typology of Law

This week, we studied Max Weber’s sociology of law. Weber’s theories continue to inform socio-legal scholarship, particularly in areas concerned with changes in legal systems over time, the ‘bureaucratization’ of law and government, the administration of law, and the legitimacy of legality.

Weber employs a typology of basic categories of legal thought – ideal-type descriptions of particular ways of understanding and acting in relation to law.

Food for Thought:

For this week’s Food for Thought exercise, I would like to encourage you to use Weber’s theory as an analytical and explanatory framework for making sense of a particular socio-legal phenomenon. You may choose one topic from the following list.

Possible topics (choose one):

  • The emergence of the Restorative Justice movement
  • Contemporary Canadian Access to Information / Freedom of Information laws
  • The current Canadian process for adjudicating refugee claims
  • The parole process and Parole Board decision-making
  • The Supreme Court of Canada’s decision in Tsilhqot’in Nation v. British Columbia, [2014] SCC 44
  • Mandatory minimum sentences associated with firearms or drug-related offences in Canada
  • The replacement of the Young Offenders Act with the Youth Criminal Justice Act
  • The Supreme Court of Canada’s decision in R. v. Stinchcombe, [1991] 3 S.C.R. 326
  • The Supreme Court of Canada’s decision in Askov v. R., [1990] 2 S.C.R. 1199
  • The recent motion passed by the Benchers of the BC Law Society that directs the Law Society to conduct a referendum of all BC lawyers regarding a proposed law school at Trinity Western University

Once you have chosen your topic, your task is to write a post that:

  1. Opens with a brief overview of the topic, with reference to supporting sources (this should take up about 1/3 of your post);
  2. Applies Weber’s theory – especially (but not exclusively) his ‘basic categories of legal thought’ to explain the topic.

The richer and more engaged your application of Weber’s theory, the better.

If you decide to prepare a post in response to this question, it must be submitted before class on October 14, 2014

 

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