Category Archives: food for thought

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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Food for Thought: Functionalism in a Liquid Modern World

Pavlich (2011) provides an overview of Durkheim’s theory of law, with an emphasis on the links between repressive and restitutive forms of law and mechanical and organic forms of solidarity. For Durkheim, there are essential links between law, morality, and the division of labour in a given society at a given point in time. Put differently, we could say that Durkheim encourages us to appreciate context.

Consider our current socio-historical context. We live in what many sociologists (ex. Giddens) describe as ‘late modernity’ or ‘liquid modernity’ (ex. Bauman) . Liquid modernity is characterized by (among other things) interconnectedness, global flows of capital and commodities, increased diversity, and increasing – perhaps pervasive – uncertainty.

For this week’s Food for Thought question, I would like to think about whether and to what extent Durkheim’s ideas about law, the division of labour in society, and social solidarity are applicable in the context of late modernity.

Food for thought:

Write a post that:

  • Begins by briefly outlining the characteristics of ‘late modernity’ or ‘liquid modernity’. You will need to do some research. I recommend the works of Anthony Giddens, Jock Young, and Zygmunt Bauman. Your overview does not have to be too long – just long enough to give your reader a general sense of the concept. You should use hyperlinks to point your readers towards useful resources for further reading.
  • Answers the following question: What is the role of penal (repressive) law in a context of late / liquid modernity? Does it / can it function to foster social solidarity, as envisioned by Durkheim? Explain your response.
  • Answers the following question: What is the role of restitutive law in a context of late / liquid modernity? Does it / can it function to foster social solidarity, as envisioned by Durkheim? Explain your response.

Your response should give equal attention to each of the above components.

To further clarify, I would like us to think about whether Durkheim’s ideas about law and society can be said to ‘work’ in the context of an interconnected, globalized world.

Feel free to contact me with questions about this food for thought post. It may look abstract and challenging at first, but I think it will be really interesting once you get started.

Posts written in response to this food for thought question must be submitted before the start of class on October 7.

 

 

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Food for Thought: Insights on Insite

In 2011, the Supreme Court of Canada released its judgement in the case of Canada (Attorney General) v. PHS Community Services Society, 2011 SCC 44, [2011] 3 S.C.R. 134. This case is often referred to as the Insite case, as it had to do with the operation of Vancouver’s Insite supervised injection facility (which is run by PHS Community Services Society). At issue was whether the federal government had the authority to revoke an exemption to the Controlled Drugs and Substances Act that allowed Insite to operate.

You can find the text of the judgement here.

The Court’s decision was controversial, and many argued that it reflected a power struggle between the government and the judiciary. Newspaper articles written in response to the decision debated whether and to what extent it represented ‘judicial activism’.

This week’s Food for Thought post requires you to engage with the Supreme Court judgement (linked above), as well as two short articles:

Makin, Kirk (2011). “Landmark Insite decision threatens peace between judges and legislators”, The Globe and Mail, October 10, 2011. 

McKay-Panos, Linda (2011). “SCC Wrongly Accused of ‘Judicial Activism’ in Recent Insite Case, ABlawg.ca, October 31, 2011.

Food for Thought:

Write a post (following the guidelines in the course syllabus) that addresses the following questions:

  • Which school of thought that we have studied so far best explains the Supreme Court of Canada’s reasoning in the Insite decision? Your response should briefly introduce and describe the school of thought and explain how it applies to the case. Be specific, and remember that readers of this blog may not be familiar with the material you are discussing.
  • The articles by Makin and McKay-Panos discuss the Insite case as an example of tension between ideology and social science evidence in Canadian law. What does this mean?

If you wish to prepare a post in response to this week’s ‘food for thought’ post, it must be submitted (at any time) before class on September 30.

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Food for Thought: Justice, Sentences, and Retroactivity

This question relates to our discussion of natural legal theory, and especially to the work of Lon Fuller and John Finnis. Both of these theorists explore the links between morality and law. Their theories can be used prescriptively, as frameworks that, if adhered to by lawmakers, will result in laws that meet minimum moral standards. They can also be used analytically, as frameworks that should allow us to differentiate between laws that are morally justifiable and laws that are not.

Pavlich (2011) uses both theories to analyze the Apartheid-era Prohibition of Mixed Marriages Act, and he asks us to consider “[w]hich of the two approaches … provides a better way to challenge unjust apartheid legislation” (p. 39).

This week’s food for thought question will also involve a case study.

The scenario:

The Government of Canada passed the Safe Streets & Communities Act, and it received royal assent in 2012. Among (many) other things, this act revised the Controlled Drugs and Substances Act by introducing a number of mandatory minimum penalties associated with the production of certain prohibited drugs. For example, in relation to marijuana, s. 41 of the Safe Streets & Communities Act provides that the minimum penalty for the production of marijuana is

(i) imprisonment for a term of six months if the number of plants produced is less than 201 and more than five, and the production is for the purpose of trafficking,

This legislation stands in stark contrast to current public opinion regarding marijuana. Polls consistently show that the vast majority of British Columbians, for instance, are in favour of decriminalization.

Imagine that a person who is aware of the current law regarding marijuana production decides to start a small hydroponic operation consisting of ten plants. He already has a (legal) home hydroponic setup that he uses to grow tomatoes, and it takes only a little effort to adapt it to grow marijuana as well. A portion of the product grown is for his own personal use, but he sells most of it to friends, neighbors, and colleagues. He reasons that this does not hurt anyone, and that – used in moderation – marijuana is considerably safer than many legal substances, especially alcohol. He further reasons that ‘times are changing’, and it won’t be long before Canada abandons its prohibition-based approach to marijuana and follows the lead of Washington and Oregon.

One of the man’s customers is stopped by the local police department and found to be in possession of a small amount of marijuana for personal use. When asked where he purchased the marijuana, the customer identifies his source. Police obtain and execute a search warrant, and they find the hydroponic room and its ten plants. The man is subsequently charged with production for the purpose of trafficking. He pleads guilty. The sentencing judge, following the law as set down in the Safe Streets & Communities Act, imposes the mandatory minimum sentence of six months in provincial prison. The case is clear-cut.

One week after the man is sentenced, a federal election results in a change of government. The winning party is elected with a majority of the vote. A major component of their platform is the promise to fundamentally change Canada’s approach to marijuana because – in the words of the party – “the prohibition of marijuana is and has been an unjust, immoral, failure of public policy, and its continuation is contrary to the values of the people of Canada”. The new Government’s first order of business is to pass legislation to legalize and regulate the production, sale, and possession of marijuana. The legislation passes quickly, and marijuana is effectively decriminalized in Canada.

Through a quirk of fate, the man in our scenario turns out to be the last person in the country convicted of production for the purpose of trafficking (and indictable offence) under the previous legal regime. It is now perfectly legal for an adult to cultivate marijuana in his or her own home, and to sell marijuana to other adults.

A public advocacy campaign is quickly organized to lobby the courts and the federal government to release the man from prison and commute his sentence. Proponents of this action argue that it would be unjust to continue to punish the man for actions that are no longer subject to criminal sanction. They suggest that a person should not be jailed for an act that is no longer unlawful. Opponents of this campaign argue that even though public opinion and the law of the land have changed, the fact of the matter is that the man clearly broke the law as it existed at the time that he committed the acts in question, and that his sentence was – and remains – the product of a fair and lawful trial.

Food for thought:

Write a blog post (see your syllabus for guidelines) that addresses the following questions:

  • Would releasing the man from prison and rendering his conviction null and void reflect the underlying morality of law, according to Fuller? Explain your response.
  • Would insisting that the original sentence still stands be in the interests of the common good, as understood by Finnis? Explain your response.
  • According to your own perspective, what would be the just course of action in this case? Explain your response.

Your post should dedicate roughly the same amount of space to each of the three questions. Be sure to refer to Pavlich (2011) and follow proper citation procedures. Feel free to draw on additional sources and make use of hyperlinks, images, and videos.

If you choose to prepare a post in response to this question, it must be submitted before our next class.

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Food for Thought: Law, Sovereign Power, and States of Exception

We dedicated this week’s class to an exploration of the complicated and troubling questions about the relationship between legality, legitimacy, and power that emerge from the work of Giorgio Agamben and other theorists of exceptionality.

For our final ‘food for thought’ exercise for the term, I would like to offer two options. You may choose to respond to either of these questions (but not both!).

1. Regarding the rhetoric of exceptionality

During my presentation on this topic, I suggested that, in the context of late modernity, the invocation of a state of exception involves two related moments or actions:

  1. The sovereign decision, as discussed by Agamben. This involves the opening-up of a zone of exceptionality in relation to an individual (on the basis of a deemed status), a space, or a period of time, and;
  2. A discursive act whereby the sovereign decision – the exercise of sovereign power – is explained and rationalized through an appeal to necessity / crisis / emergency

A great deal of socio-legal research focuses on the first moment / act, but it is important to note that those able to exercise sovereign power generally seem to be compelled to give an account of their decisions that justifies the state of exception while simultaneously affirming a commitment to legality.

For this food for though question, I would like you to select an example or case study that fits the definition of a state of exception. This can be from any historical period, and any location. Your post should:

  1. Provide an introduction to the case study / example
  2. Explain how this case study / example demonstrates the exercise of sovereign power and the creation of a state of exception (drawing on concepts from Pavlich’s chapter)
  3. Explain how this exercise of sovereign power was justified rhetorically through an appeal to necessity

For part 3, I am particularly interested in primary source documents or direct quotes from politicians or government officials. Please provide links and excerpts.

2. Regarding bare life and resistance

To be the denizen of a camp or normalized state of exception is, according to Agamben, to be reduced to the status of bare life – life excluded from law / politics. In explaining this, I referred to Arendt’s important comment about “the right to have rights” (a right that one cannot claim as homo sacer or bare life). This raises some interesting and important questions, especially when we consider it in light of Foucault’s claim that all exercises of power necessarily imply resistance:

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? 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 your response, write a post that reflects on one or more of these questions. You should respond to the question and provide examples to support your position.

Posts written in response to either of these questions should be submitted before next week’s class.

 

 

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Food for Thought: Foucault and Law

This week’s class focuses on the work of Michel Foucault, with an emphasis on his discussion of forms of power and their relation to law.

Our Food for Thought question for this week will focus on Foucault’s work on disciplinary power. The question is straightforward:

  • Identify and explain an example of a technique of disciplinary power that applies (or likely applies) to you. Your post should ‘unpack’ this technique and explain how and why it reflects disciplinary power. Employ Foucault’s concepts where appropriate.

I am looking for posts that demonstrate creativity, originality, and an understanding of Foucault’s ideas. The more deeply you engage with the features of disciplinary power, the better (so, an application of the key instruments of discipline to your example is a good start, but an analysis that incorporates themes of resistance and internalization will be really impressive).

Posts submitted in response to this blog are due prior to our next class.

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