For the purpose of my term paper I have chosen to look at the war on drugs, which was a prominent issues in the 1970s in the United States. This era was ushered in very closely after the civil rights movement in which people were given equal rights, and efforts to subsidize class differences were successful. Under the guise of the war on drugs, a large portion of government spending was allocated to combat this ever-present problem. In addition a plethora of laws were passed which allowed the government to detain and convict people who were suspected of using or selling drugs. Although this movement was directed towards all levels of society, the reality is that the people who suffered the most were the lower class and the middle class. Under these new laws they faced lengthy terms for possession of small amounts of illicit drugs. This is very evident when looking at the amount of people who were incarcerated during that period. Furthermore these new laws allowed for prison demographics to change drastically, which is a contributing reason for why a large portion of inmates are of minority ethnicities. To support my ideas I have decided to look at the Marxist theory and critical race theory, to help explain how racial and status marginalization was achieved through the war on drugs.
The Marxist theory has often been criticized for its very harsh and pessimistic views of society and governing authorities, and it is often been tied with encouraging rebellion and the demise of the government. Although these views are very harsh and unrealistic, the theory makes an excellent point in noting that the law is simply a tool for the ruling class to exercise control over society. This notion fits in very well with the changes that occurred after government officials declared the war on drugs. For example laws were drastically changed and the very famous “three strikes” rule was implemented. Furthermore the length of sentences received by people was also increased which was very detrimental to individuals who were being incarcerated for petty offences. The government also set aside a large sum of money for these programs and increased funding for new departments such as the Drug Enforcement Administration (DEA), which has often been criticized for the large scope of powers it received.
In addition to the social class differences, which are exemplified by the war on drugs, race was a prominent indicator of the people who were effected most by the war on drugs. A conspicuous example of this is the amount of African Americans and Hispanic individuals who were incarcerated after the new laws were implemented. Although these individuals were the only groups of individuals who consumed or produced drugs, they were the ones who received lengthier sentences and were most commonly targeted by law enforcement. Furthermore the propaganda that was associated with the war on drugs, presented drug use as something that ruined homes, families, bred violence and most importantly was deemed to go against the American dream. People often associated drug use and production as a normal occurrence in lower class communities which were predominantly composed of ethnic minorities who has either recently immigrated to the country, or had previously been neglected by the government. These new laws only perpetuated the stereotypes and created an unprecedented divide in social class and race, which is still present in the United States.
Chapter 10 of Law and Society Redefined highlights an intriguing and controversial provision of the state of exception. This state of exception is when sovereigns declare itself an exception from their own laws. Examples in the text include the arbitrary detention of suspected terrorists in Guantanamo Bay, and also the War Measures act, which came into effect in Canada in the 1970s. The state of exception allows the government to legally carry out policies and other actions, which are normally not permitted in society. This also allows them to bypass the adversarial system and detain people in a manner, which is against our charter of rights and freedoms.
These states of exception come into being when the government or political leaders believe that the situation at hand is deemed an exceptional state of affairs, and that rule of law in not adequate to solve the crisis at hand. For example as highlighted in chapter 10, the War Measures act came into effect after a separatist movement threatened the lives of government officials. At this time government officials were kidnapped and detained until the government met their demands. This case depicts circumstances, which are extremely rare in a democratic country such as Canada. Since this crisis was completely out of the norm, and time sensitive the government had to react in a swift and effective manner to save peoples lives. In this case the rule of law and ordinary laws that govern our every day lives would have been ineffective because the procedural aspect is very time consuming.
A very important aspect of the state of exception concerns the legal status of the subjects involved. As seen in the detention of suspected terrorists in Guantanamo Bay it is very evident that their basic human rights have been violated due to the exceptional circumstances surrounding their detention. While the need for quick detention is necessary for some circumstances, the inhumane torture that was administered in the prison is inexcusable. Furthermore as Guantanamo Bay is not located on American land, and technically not considered a part of Cuba, the laws of the land are very unclear. This lack of clarity simply fuels the misuse of the state of exemption. This horrific treatment of prisoners creates circumstances in which the government is able to exercise a tremendous amount of power over people who are unable to seek counsel like all other citizens. I believe that although the state of exception is necessary in certain circumstances, similar to a leader being able to declare state of emergency in times of disaster, there always needs to be some rules put into place to protect human rights.
“Law’s repressive coercive (material) functions are obscured by its ideological (symbolic) functions that portray it as equal, universal, and just”.
Karl Marx was a pioneer in bringing forward the notion of law being a tool, which serves the ruling class. This train of thought had previously been understudied in the criminological enterprise and often omitted from crime statistics. Prior to the Marxist approach most studies regarding crime and deviant behavior revolved around the lower and middle class, and focused mainly on street level crime. These theories did not highlight elite deviance and corporate crime. The Marxist approach argued that law is simply a tool used to control the lower and middle class. This Marxist approach further supports the notion that law repressive functions obscure the ideological functions of equality and universality.
This approach is very radical in terms of the unique perspective it provides, however I believe that there is some truth behind these radical words. As society progresses there is an ever-present tie between the government and large corporations. These close links allow the wealthy to have a significant influence over politicians as well as government policies. Since the government is the main source of law in most countries these ties between governments and corporations have a tremendous effect over all societal classes. Although laws are made in a manner that is supposed to be equal and applicable to all people in society, it is often the lower classes that are scrutinized for the crimes they commit. This is due to the fact that the lower and middle classes are often in situations, both economically and socially that put them in a position in which they don’t have the means to conform to the laws. For example every member of society is required to pay taxes, and the amount of taxes you pay often increases with your salary and expenses. For the wealthy paying taxes is not difficult as they have the means to do so. However for someone who is working minimum wage paying taxes may be very difficult, as they don’t have much money to begin with. This economic factor drastically changes how equal and fair the law is applied to everyone in society. Although this law is just and applies to all members of society, extra-social factors effect how all individuals are able to conform to the laws. These social factors can put certain groups in an unwanted situation where they don’t have the means to follow the laws.
Furthermore the ruling class is also at an advantage in avoiding criminal sanctioning due to laws that work in their favor. For example laws regarding confidentiality of business deals, is put into place to serve only a portion of society. Although these laws are available to everyone the main group of people it protects is the rich. For example, Oprah was famously sued by a company for discussing the negative aspects of their product on her show. Laws like this prevent ordinary people from voicing their opinions, as they place limits on what you can and cannot say. The oppressive nature of these laws prevents them from being applied equally to the entire population.
To conclude, although laws are created equally and fairly to be applied to all there are some areas in which laws prevent certain groups of people from having the same privileges than others. This may not completely be due to the law making itself, but through societal application this phenomenon is very visible.
Food for Thought:
Durkheim’s sociology of law proposes that crime is a normal part of society, and that it is necessary and indispensable. What does this mean? Is Durkheim correct? Discuss, with reference to contemporary examples.
The concept of law and society can be discussed both as separate entities as well as intertwining phenomenon. Over the years many scholars have put forward debates regarding whether law influence society, or if society is influenced by law. Chapter five of the book Law and Society covers the issues concerning this ever-present topic. The previous chapters of this book looked at how law is a product of society and the norms and values associated with the period in question. Furthermore in this chapter Durkheim brings forward the notion that crime is a normal part of society, and that a society cannot exist without crime. This means that no matter how many laws and regulations are passed crime will always be a conspicuous part of society.
After reading and reflecting upon this chapter I have come to agree with Durkheim and his proposition that crime will always be a part of society. This is simply due to the fact that a vast majority of the laws present in today’s society are regulatory offences, which often have no moral basis. For example many laws we encounter in every day life include traffic laws and controlled substance laws. However with that being said since these laws do not reflect any moral premise, there is no unanimous social consensus. For examples while driving down most highways in the lower mainland, one will find that the speed limit is usually 100km/h, however many people have expressed the dissatisfaction with this speed limit, and people who do not follow this regulatory law many be subjected to criminal sanctions such as fines and in some serious cases losing their vehicle.
So what does this regulatory law mean? Does it mean that the people who do not follow the law are criminals or that others are simply conforming to this law? In addition if this law was changed to 120km/h would the people who prefer driving slower be ticketed for not following the new law? Regardless of how this law is manipulated, there will always be a portion of the society that does not agree with it and therefore there will always be crime. Another example pertains simply to peoples differing values and beliefs. For example laws regarding polygamy are accepted by many, however there will always be a group of people who believe otherwise, and no matter how many times this law is changed there will always be a group that conforms and a group that rejects the law. Likewise a law that goes against certain religious and cultural beliefs will never cease to exist due to the fundamental differences between different ideologies.
A recent and very interesting movement is the Anonymous movement, which has been criticized by the government as being detrimental to society, and their action have been widely condemned. However as time goes on and more people begin to support the movement there is a great chance that their activities may not be seen in a negative way and therefore be accepted by society. This may mean that people will no longer be deem their acts as being criminal. I believe that the notion of a crimeless society is very farfetched and unrealistic. The law is always subject to individual perceptions and those how agree will oblige and those who disagree will not, and as society changes this process of crime and criminality will continue to evolve.