Author Archives: sgahunia

National Security vs. Human Rights: Bureaucratic Pragmatism & Legal Exceptions

“Human rights are praised more than ever—and violated as much as ever but accepted in states of emergencies”

Agamben’s theory of the camp and Larsen’s (2012) theorization of the Kingston Immigration Holding Centre (KIHC) do not differ in regards to explaining the effects produced by the sovereign’s legal exceptions and suspension of law within states of emergencies. Instead Larsen expands on Agamben’s theory in a more contemporary context. Both individuals understand that such sovereign legal exceptions completely violate the rights and freedoms of certain people and leave them outside the realm of law and its main purpose of protection.  It leaves the sovereign unaccountable. They don’t differ on the injustice and wrongs that legal exceptions or the KICH mandate both produce per se, but rather on the views of sovereign reign.  They differ because Larsen (2012) has a more modernist perspective in regards to sovereign power and legal exceptions.  Agamben’s theory generalizes overall that we live within a rule of legal exceptions and constantly in a state of emergency where the sovereign manifests itself as totalitarian and uses law as its tool (Pavlich, 2011).  However, Larsen (2012) explains that this is not the case; exceptions do exist, however, they are subtle in comparison to Agamben’s pessimistic view of the state. Legal exceptions tend to come to effect when there are substantial threats to national security. Usually, national security threats mostly arise from some form of terrorism or a war on terror. Now, people may have different views on what constitutes as terrorism (e.g. ETA in Spain, Al Qaeda, unjust USA wars), but it is still a paradigm that establishes a serious threat. Larsen (2012) views these legal exceptions as ad hoc situations but does not rationalize that it is the norm overall. Agamben views sovereign rule from an older perspective where government was fully centralized within a state instead of noting that government sovereignty has expanded among various governmental management regimes nowadays (e.g. CBSA, CSIS, CSC, CIC). Larsen (2012) views the KIHC issue as a way to emphasize how modern inter-departmental agencies or government can  counteract the law or their own agency’s legal powers to enhance legal exceptions in order to solve problems pre-emptively case by case (Larsen & Piche, 2009).  Consequently, we can lean towards Larsen’s (2012) point of view more often as society is not within a realm of continuous state of emergency at the moment but it is important to realize that both Larsen and Agamben hint at the repercussions that can occur if legal exceptions do take over. We see it already with Guantanamo Bay, the Patriot Act, security certificates and memorandums of understandings that tend to be in secret and which are not restrained by the law. With frequent suspensions of the rule of law as Butler (2004) suggests “a new version of ‘unaccountable’ sovereign power [can emerge]” (as cited in Pavlich, 2011, p. 160) which can be detrimental to human rights and freedoms (e.g. Patriot Act).

The nature of Larsen and Piché’s (2009) argument against the KIHC and security certificates is basically about how vital and unjust it is for governments to impose mandates or agreements in the form of bureaucratic absolutism, which sustain legal exceptions (which violate human rights)and are used for the sake of national security (Larsen & Piché, 2009). They argue that the bureaucratic pragmatism process of creating counter law to circumvent law itself is at the heart of the security certificate paradigm and that adopting such counter laws is clinically masked to depict the government(s) as being “pre-emptive” as opposed to “reactive” in cases of national security (Larsen & Piché, 2009). Furthermore, their argument takes the tone of claiming how security certificates operate as legal tools of normalized exceptionality yet they agree that this mechanism does not suspend the whole Canadian rule of law itself like Agamben believed it would.

Consequently, I agree with the authors’ argument in respect to outlining the injustice and lawlessness that the security certificates produce in the name of suspicion and pre-emptive action in responses to national security; however, at the moment if we abolish such a practice, there will be no way that the citizens of Canada can wholly play a role in developing legislation that effectively balances threats to national security and violation of rights. Taking the parliament way and democratically developing provisions or laws to combat national security threats is very complex and can eventually  reach a point where we’ll have to make a serious choice of violating rights in the end. Although I don’t like the precedents that counter laws can leave behind in regards to enabling exceptional detention or giving agencies the power to circumvent their legal mandates, I still would rather accept such subtle, case by case suspension of certain legislation for managing national security. Having it as a case by case basis and amending certain legislation proficiently is better than completely suspending the rule of law entirely and ending up with chilling legislation such as USA’s Patriot Act that affects all citizens—not just immigrants or refugees.

References:

Pavlich, G. (2011). Law & Society Redefined. New York: Oxford University Press. 152-166

Larsen, M., & Piché, J. (2009).Exceptional State, Pragmatic Bureaucracy, and Indefinite Detention: The Case of the Kingston Immigration Holding Centre. Canadian Journal of Law and Society, 24(2), 203-229.

Larsen, M. (2012, April). Kingston Immigration Holding Centre Closes, Legacy Remains. Prism Magazine. Retrieved from http://prism-magazine.com/2012/04/kingston-immigration-holding-centre-closes-legacy-remains/.

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NYPD Stop & Frisk; Protected Ideology of the Elites

The Critical legal studies theory was an ideological movement stemming from the late 60’s movement of civil rights and anti-establishment (Pavlich, 2011, p.117). It viewed law as a political ideology which sustained itself by supporting interests of the group or class that created it. The legal system maintained the status quo which in turn depicted the enshrined hierarchy power relations and inequalities present in society. Law was virtually seen as a tool to oppress certain classes of people and maintain the elite in their positions within the social hierarchy. We can correlate such concepts to the NYPD stop and frisk program and witness such inequalities and social conflicts. A big component of classical critical legal studies rested on the concept of “alienation,” where certain individuals don’t have the ability of reach power and certain freedoms due to the powerful oppressing the less well off (Pavlich, 2011, p. 120). We can think of it as Caucasian supremacy, where interest of the elite are of more importance and the institutions and social structures that are in place embrace such power, which leads to social inequalities and racism. This applies to the stop and frisk program where minorities are the ones to be seemingly living under the economic alienation and thus are likely to be racially profiled. The program seems to come from the collection of beliefs and prejudices that embraces injustice with a mask of legitimacy. It is a tool to maintain the status quo and keep the powerful in their correct place within the social hierarchy.

The example with the sergeants who are in command depicted critical legal studies’ concept of how mainstream legal thought supports inequalities and racism. The commanders put pressure on their officers to do unreasonable things to meet quotas and even embraced a tone of violating rights. They normalized it. It stemmed from the top down (hierarchy). As a side effect, the pressure on officers lead to them to have no choice but to follow the status quo and lean towards oppressing certain classes of individuals and further the interest of the ruling class (privileged).

The only part of feminist jurisprudence and critical race theory that could correlate to the NYPD stop and frisk program is the agenda to have all people of gender, class and race equally valued (Pavlich, 2011, p. 125). The feminist agenda would be difficult to install within the NYPD program since the issues of class differences and race have developed overtime and established within the socio-capitalist societies. With pressure put on by an ideology (NYPD department), the police officers will develop their own perspective of who would looks suspicious depending on their own social upbringing as well. This in turn will most likely reflect mainstream society’s views and point the finger at those that are statistically likely to offend: minorities and the poor.

Consequently, although the law and the NYPD stop and frisk program is another tool masked to be proactive, it fails within itself as the ideology of the interest group that created it maintained the status quo of the elite. It separated trust and rapports from the citizens and police and lead to racial profiling. However, it does give us a view of how mainstream legal thought can depict social inequalities present within legal institutions and how certain established ideologies keep being protected.

References:

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

http://thesocietypages.org/socimages/2012/10/15/nypds-stop-and-frisk-policy/

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The Importance of Crime for the Sake of Social Evolution

“Aside from the fact that crime is important because it keeps me employed… I take a look at how its normality emerges through social evolution…”

Emile Durkheim’s proposal that crime is a normal paradigm within society stems from his key concept of social solidarity; especially, mechanical and organic solidarity (Pavlich, 2011). Embracing social solidarity allowed society to view crime as a violation of the collective morality or norms that have been established and internalized within a society. As a result, law and punishment were the mechanism used to preserve and assure the universal status quo (morality).

He viewed crime from a functionalist perspective. Crime served a purpose in regards to evolving social life and morality. It provides us a moral framework to work with and allows society to push the moral boundaries over time. It gives us the ability to illuminate what normality is and establish acceptable behaviour. As a result, Durkheim saw crime as impossible to get rid of and supported the notion that crime was healthy for society since human evolution would always create new complex problems and contradictions to the social norms (Pavlich, 2011). He knew that social cohesion could weaken when societies were transitioning from primitive to modern (Pavlich, 2011). Social behaviour correlates with the changes in the social structures that are present; thus, transitional societies will develop new values and new norms that may create strain among the collective conscious (Pavlich, 2011). Durkheim described this in his concept of dynamic density and understood that it would loosen social solidarity, which would be a precursor for anomie and deviance (Pavlich, 2011).

We can relate this concept to the current class system around the world. As societies became modern, the division of labour changed significantly as certain individuals exceeded in certain skills and became more individualistic. This resulted in the collective consciousness to weaken as social structures put people in different economic and social positions. Hence, Durkheim proposed that societies with weak social solidarities would allow individuals to have different opinions on whether certain laws are just, which could lead people to justify criminal acts (e.g. white collar crime) (Hamlin, 1999).

I believe Durkheim is correct about crime being normal within society, especially with the correlation of social solidarity and social evolution. Among modern societies, Durkheim described certain problems that affected solidarity. One was anomie, where quick economic development can lead to unprepared social structures (justice system) to produce regulations (Pavlich, 2011). As a result, the collective agreement on what is illegal behaviour may not be set fast enough for people to inherently understand; thus, creating confusion on what the new norms should be (Pavlich, 2011). An example is the white collar crime issue. White collar crime became difficult to punish as there was issues on how to measure the harm done. Courts did not know how to punish the harm done as victims were not physically injured and intention became hard to prove (Hamlin, 1999). This ties in perfectly with Durkheim’s anomie problem. Societies were evolving at a fast pace economically and social norms were shifting to a more materialistic/individualistic tone. Social solidarity began to weaken and thus the opportunity for a new wave of crime arose (Hamlin, 1999). At the same time, people could not fully grasp what white collar crime was as society had linked crime with damage to an individual or possession. Consequently, the white collar crime phenomenon establishes evidence on how crime will always exist and can be functional for society as it allowed us to expand the boundaries of morality and acceptable behaviours. New norms are created to punish new criminal behaviour and the collective consciousness for understanding the new behaviour is internalized for that specific moment (Hamlin, 1999). As a result, new legislation was developed for white collar crime (Hamlin, 1999). However, societies will keep evolving and as Durkheim claimed, organic social solidarity will produce new complex issues towards social norms (Pavlich, 2011.) This cyclical process is why crime will always exist and will allow societies to remodel social norms.

Reference:

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

The Normality of Crime: Durkheim and Erikson. Retrieved from: http://www.d.umn.edu/cla/faculty/jhamlin/4111/Durkheim%20-%20Division%20of%20Labor_files/The%20Normality%20of%20Crime.pdf

Understanding White-Collar Crime: Definitions, Extent, and Consequences. Retrieved from: http://www.sagepub.com/upm-data/43839_2.pdf

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Same-sex Marriages Prohibition Unjust; A ‘common good’ point of view

The laws surrounding same sex marriages all over the world differ from country to country and even today remains to be a debatable issue in regards to these laws being unjust when it comes to equality. One cannot acknowledge same sex marriages without linking it with the issues of religion and morality which causes such controversy because everyone has their own views. Although Canada has legalized same sex marriages across the country in July 2005 in relation to Canada’s Civil Marriage Act, there are still many other places in the world such as; Australia, India and even states in the USA that currently prohibit same sex marriages (Coorey, 2012). The matter of the fact is that same sex marriages is a phenomenon that affects people’s lives, social norms, and beliefs and as such should be universal across the world in regards to it being legalized. The fact that there are still places in the world that prohibit people to get together in matrimony regardless of their gender is unjust in itself. If we have come so far as a society in regards to eliminating the issue of race when it comes to matrimony than I question why is it an issue for two individuals to unite regardless of their sex? Over the years, more attention has been given towards the position that religion and morality plays in shaping the legal definition of marriage.  Some proponents of same sex marriages have proposed that religion is the primary obstacle to redefining marriage to include homosexual unions. With that being said, when these laws were enacted in places such as the United States and Canada—laws in these countries were influenced largely by religious values and norms. For example; for evangelical Protestants, if the bible scriptures suggest that homosexuality is a sin and an abomination, they consider it to be so without further explanations (Warner, 2010). Furthermore, the Roman Catholic Church bases its views on homosexuality also of biblical scriptures and takes into account of what Fuller and Finnis touch base on of “natural law”—which is contended to be a part of the eternal or divine law of the universe (Warner, 2010). In regards to the concept of homosexuality, for the Roman Catholics, the purpose of sex is procreation and is restricted to two people of the opposite gender who are married. “Good and moral sex occurs only within marriage… homosexuality, which cannot result in procreation, is unnatural and immoral” (Warner, 2010, p. 103). There issue of what is moral is one that boils down to religion when looking at it from a Roman Catholic view. With that being said these laws that were created to prohibit same-sex marriages were done at a point in which religion was placed on a higher level of importance rather than what may be, as Finnis suggest, important for the “common good”—including the seven principles Finnis describes that lead us to human flourishing and basic aspects of well-being (Pavlich, 2011). Finnis touches base in his seven basic forms of human flourishing that moral and legal rules must be enacted that meet the standards of practical reasonableness. The important aspect to this is now that our society has come a long ways in having more choices, stating opinions and having options—there in fact should be more reasonableness placed as societies are developing and embracing equality rights. Statistics show that between 2006 and 2011, the number of same-sex marriages doubled across Canada (Smith & Harris, 2012). If that is the case here in Canada, could one not apply that to bigger population in countries such as USA in where majority of the states still ban same sex marriages although there may be a more demand for same-sex marriage rights due to a higher population? In my opinion, the prohibition of same sex marriages in places around the world such as certain states in the United States, is unjust because it does lacks Finnis’ rule of “common good” and suppresses forms of human flouring, just as the Mixed Marriages Act, of sociability and friendship.

References

Coorey, M. (2012). Australian parliament rejects same-sex marriages. The Globe and Mail. Retrieved September 15, 2012 from http://www.theglobeandmail.com/news/world/australian-parliament-rejects-same-sex-marriage/article4552991/

Messner, J. (2010). Religion and Morality in the Same-Sex Marriage Debate. Backgrounder, 2437, 1-6. Retrieved from http://report.heritage.org/bg2431

Pavlich, G. (2011). Law & Society Redefined. New York: Oxford University Press. 1-39.

Smith, T., Harris, M. (2012). Census: Gay couples are embracing marriages. The Vancouver Sun. Retrieved September 15, 2012 from  http://www.vancouversun.com/life/Census+couples+embracing+marriage/7267249/story.html

Warner, T. (2010). Losing Control; Canada’s Social Conservatives in the Age of Rights. Toronto: Between the Lines. 102-105.

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