Category Archives: food for thought

Food for Thought: Gender, Sexuality, and the Law

We are reading two chapters from Comack’s (2006) Locating Law this week – One by Karen Busby entitled “Not a Victim Until a Conviction is Entered: Sexual Violence Prosecutions and Legal ‘Truth'”, and another by Kirsten Kramar entitled “Victims of Justice: Homophobia, Ageism, and Whorephobia”. Both chapters explore issues at the intersection of gender, sexuality, power, and law.

In thinking about these chapters, and about the questions posted below, it is helpful to review Comack’s (2006) discussion of ‘the feminist frameworks’ in her essay on “Theoretical Approaches in the Sociology of Law”.

I have two ‘food for thought’ questions for this week.

First, in relation to Homophobia and the Law:

Kramar (2006) uses a case study of the ‘Project Guardian’ operation to explore the social construction of a homophobic moral panic in 1990s Ontario. This study offers a number of examples of ways in which unequal, gendered, and sexualized social relations find expression in law (and law enforcement campaigns). It is important to note that Canadian law, politics, and culture have undergone significant shifts in relation to LGBTQ rights over the last several decades – as evidenced by anti-discrimination laws, hate crime provisions, the legalization of same-sex marriage, and the recognition of adoption rights for same-sex couples (among many other developments).

One of our teach-in groups for this week drew on Kramar’s analysis to examine the ongoing case study of Russia’s new law prohibiting “propaganda of nontraditional sexual relations“. The Guardian reports that the passage of this law has contributed to an increase in homophobic violence in Russia; the law sends a message of officially-sanctioned exclusion that has emboldened groups inclined to engage in homophobic violence.

As part of his BBC series ‘Out There’, British broadcaster / comedian / filmmaker / actor / activist Stephen Fry interviewed Russian lawmaker Vitaly Milonov to discuss the new law:

With this week’s food for thought post, I would like to explore the role of law in the social construction of social problems (see Kramar 2006: 286-287).

The questions that should inform your blog post are as follows:

How, in general, does law facilitate the social construction of certain issues or groups as social problems? How does this apply to the Russian law in question? In other words, how does this law facilitate the social construction of a social problem, and what precisely is the nature of the social problem that is constructed through this law?

An English translation of the text and rationale for the law can be found here, and you should refer to this material when writing your post. Your post should also engage with material on the social construction of social problems (Kramar 2006 is a good start). Please also copy-and-paste my question (indented above) at the top of your blog post so that our readers will know what you are responding to.

Second, in relation to Karen Busby’s (2006) article “Not a Victim Until a Conviction is Entered”,

During this week’s teach-in on sexual violence prosecutions and legal ‘truth’, our research team reported on conversations that they had with a Crown prosecutor and a professor specializing in gender and the law. When asked about the nature and prevalence of gender bias in the criminal legal system, both respondents emphasized the complexity of the issue. While they gave different answers, both mentioned the importance of locating gender discrimination in relation to discrimination on the basis of class and race. One suggestion was that women qua women are not discriminated against by the courts during sexual violence prosecutions – rather, women are treated differently on the basis of their social class and race or ethnicity. Without supporting this assertion, I want to highlight it as an important example of the concept of intersectionality.  Intersectionality, as a concept, recognizes the existence of complex and intersecting forms of hierarchy, status, and identity. For instance, it problematizes ‘single-axis’ approaches that examine questions of class without considering the ways that class intersects with gender, race, citizenship, and other categories or modalities.

Fort this week’s food for thought post, first conduct some research on the concept of intersectionality (there are many excellent academic articles available through the KPU library, and Comack addresses the concept in her essay on ‘Theoretical Approaches in the Sociology of Law’). Then write a post that:

  1. Introduces and explains the concept of intersectionality, and describes how it relates to critical legal studies, and;
  2. Uses an example (a case study, news media article, policy, or other phenomenon) to illustrate how the concept of intersectionality can be applied to the study of law & society.

This is a particularly useful question for those of you who are using feminist legal theory, critical legal studies, or critical race theory as your theoretical perspective for your term paper.

Posts in response to this question should be submitted prior to our next class.

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Food for Thought: Class Interests and the Law

We continued our discussion of Critical Legal Studies this week, looking at two studies on class interests and the law – Eric Tucker’s (2006) “Locating Labour Law: The Regulation of Occupational Health and Safety” and Mosher’s (2006) “The Construction of ‘Welfare Fraud’ and the Wielding of the State’s Iron Fist”.

As with last week, I have two food for thought questions for you to dig into.

1. Regarding Labour Law

Tucker (2006) applies unitarian, liberal pluralist, and Marxist theoretical frameworks to make sense of the law (and politics) surrounding the regulation of occupational health and safety. As we discussed in class, occupational health and safety law is one of many legal regimes that apply to labour. Others include legal regulations around collective bargaining, equality of treatment, the length of the work week – and the minimum wage, which is the focus of this food for thought question.

First, please read this article – To Protect The Defenseless, We Must Abolish The Minimum Wage, by Yaron Brook and Don Watkins, from Forbes Magazine.

Then write a food for thought post that does the following:

  1. Briefly explain the origins of the ‘minimum wage’, how this concept has been enshrined in law, and the purpose of the minimum wage.
  2. Briefly summarize Brook and Watkins’ argument against the minimum wage.
  3. Drawing on Tucker (2006) (and other sources if you wish), locate Brook and Watkins’ argument in relation to the three major schools of thought that have shaped the study of labour law. Which school of thought does their argument fit into? Which school of thought would provide a counter-argument?
  4. Conclude by presenting your own response to Brook and Watkins’ position.

2. Regarding the Construction of Welfare Fraud

One of our research teams prepared and delivered a teach-in on the construction of ‘welfare fraud’, drawing on the work of Janet E. Mosher (2006). Their teach-in incorporated a number of statements from people directly involved in and impacted by welfare law, including a single mother on welfare (let’s call her A). This exchange really stood out to me:

[Researcher] Do you think welfare fraud is intentional or accidental?

[A] The system is set up for dependency and fear. When you’re tying to feed your kids and pay rent and utilities and whatnot on the minimal funds they give you , any excess cash or income you make you don’t want to report because it comes off your check and then your kids can’t eat next month. I think that the government has given the welfare agencies the ability and encouraged them to make ‘monsters’ of the people relying on welfare benefits. They are forcing parents to do illegal things, like not report income, just to survive and try and give their kids a better life than what they have. You can’t save any money on welfare because welfare just takes it out of your check”.

Mosher’s analysis of the social construction of welfare fraud is informed by Wacquant’s (2001) observation that “The ‘invisible hand’ of the casualised labour market finds its institutional complement and counterpart in the ‘iron fist’ of the state which is being redeployed so as to check the disorders generated by the diffusion of social insecurity”.

Food for thought:

Respond to A’s remarks. Does this interpretation of the nature and function of the welfare system reflect Mosher’s (2006) analysis?  [You could also choose to relate it to Wacquant’s analysis]. If A’s interpretation of the system is correct, what can we (drawing on Critical Legal Studies) say about the role of welfare law in neoliberal societies?

Posts should be submitted before our next class. 

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Food for Thought: CLS, Racism, and Law

This week marked our first of three teach-in weeks, with two teach-ins based on works by Monture (2006) and Jakubowski (2006).

Locating Law – Standing Against Canadian Law: Naming Omissions of Race, Culture, and Gender (Monture), pp. 73-93

Locating Law – “Managing” Canadian Immigration: Racism, Ethnic Selectivity, and the Law (Jakubowski), pp. 94-122

The general theme of the class was an introduction to Critical Legal Studies, with a special emphasis on racism and law.

There are two food for thought questions for this week. You are welcome to write a post in response to either of them (but not both).

Food for thought 1:

Monture’s (2006) chapter is subtitled “Naming Omissions of Race, Culture, and Gender”. ‘Naming’, in this context, reflects the commitment to demystification – critically examining official narratives and dominant ideologies – that informs the Critical Legal Studies and Critical Race Theory perspectives.

Recently, and not for the first time, there has been some debate regarding the appropriate way of naming the historical oppression of Aboriginal peoples in Canada. Some have argued that the actions of Canadian governments in relation to Aboriginal peoples constitute genocide, according to the Convention on the Prevention and Punishment of the Crime of Genocide.

Article 2 of the Convention reads:

genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such:

(a) Killing members of the group;
(b) Causing serious bodily or mental harm to members of the group;
(c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;
(d) Imposing measures intended to prevent births within the group;
(e) Forcibly transferring children of the group to another group.

Phil Fontaine, Bernie Farber, and others recently co-signed a letter to the UN Special Rapporteur on the Rights of Indigenous Peoples arguing that the residential school system, the ‘Sixties Scoop’, policy of forced starvation under John A. MacDonald, and recently revealed nutrition experiments performed on children, taken together, are indicative of a prolonged campaign of genocide.

Monture (2006) explains the historical role of legal processes in the reproduction of systemic racism and oppression directed towards Canada’s Aboriginal peoples. She is deeply skeptical about the prospect of achieving transformative change through the mainstream justice system, arguing that it is simply incapable of engaging in the macro-level reflection necessary to confront structural racism.

Question: Would naming the historical oppression of Aboriginal peoples in Canada genocide, according to the Convention, be an act of demystification? What would be the outcome or effect of such an act of naming? How do you think Monture, based on her argument in Standing Against Canadian Law, might respond to this call to employ the moral and legal language of genocide? What is your own position on this question?

Of interest: Andrew Woolford’s article on ‘Ontological Destruction’

Food for Thought 2:

Lisa Marie Jakubowski, in her chapter “‘Managing’ Canadian Immigration”, explores the explicitly racist history of Canadian immigration policy and the role of immigration law in perpetuating forms of systemic discrimination.

The 2010 MV Sun Sea incident represents a major ‘moment’ in recent Canadian immigration policy and politics.

Question: First, provide a brief description of the events surrounding the arrival of the MV Sun Sea. Then, briefly explain any shifts in immigration policy that followed from the incident (including policies and laws associeted with the issue of ‘irregular arrivals’). Finally, apply Jakubowski’s arguments to this case. Has the response to the MV Sun Sea incident represented a continuation of the pattern that Jakubowski describes?

Posts in response to these questions should be submitted before our next class.

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Food for Thought: Weber’s Categories of Legal Thought

This week’s class was dedicated to exploring Max Weber’s work on law and society. We focused on Weber’s ideal types of authority, his ideas regarding the nature of bureaucracies, and his work on the rationalization of law in modern societies.

We spoke about four ideal types of legal thought identified by Weber, and spent most of our time looking at the forms most associated with modernization and bureaucratization.

For this week’s food for thought question, I thought we might look at some examples of pre-modern forms of law.

Instructions:

Write a post that:

  1. briefly describes the institution of trial by ordeal, as practiced in England. Be sure to draw on – and cite – some sources of information.;
  2. briefly describes the institution of the witch trial, as practiced in medieval Europe or in the United States.
  3. Explains how both of these institutions fit into Weber’s ideal-typical categorizations of legal thought.

Your post should be submitted before next week’s class.

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Food for thought: Law, Ideology, and Capitalism

This week’s class focused on theories of law & society informed by the work of Karl Marx, with an emphasis on the argument that law is an ideological instrument. We explored Marx’s historical materialism and his analysis of the dynamics of capitalist society. We considered contemporary revisions of Marxist theory, as well as some criticisms of Marx’s ideas. As a case study in the role of law as ideology, we reviewed Douglas Hay’s classic essay on ‘Property, Authority and the Criminal Law’.

CRIM 3305_Hay

Food for thought:

Douglas Hay distinguishes three aspects of the law as ideology: majesty, justice and mercy.

Write a post that:

  1. briefly explains what Hay means by this. How does the law (and legal system) represent ideology, according to Hay?
  2. considers the operation of law and legal systems in the present context. Does Hay’s argument still hold true? Does law function to secure consent and the perception of legitimacy despite the manifest inequality of the social order? Provide supporting examples.
  3. concludes with a short commentary on the implications of your response to part 2 – does law necessarily operate as ideology, and if so, what does this mean for law reform projects / movements? [be sure to read Pavlich pp. 96-97 before responding].

Your post should be submitted before 19:00 on October 23.

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Food for Thought: Durkheim, Law, and Solidarity

This week’s class was devoted to a review of the work of Emile Durkheim. Durkheim regards law as a ‘visible symbol’ of social solidarity – a representation of a society’s collective consciousness and, simultaneously, a mechanism for responding to violations of group norms and settling disputes. Generally, he argues that law functions to promote collective solidarity.

Pavlich (2011) invites us to critically examine this claim. He asks:

Does law ever function in ways that stifle, rather than promote, collective solidarity?

This will be our food for thought question for the week. 

Write a post that (a) responds to Pavlich’s question and provides one or more illustrative examples, and (b) discusses the implications of your argument in relation to Durkheim’s theory of law. Be sure to write your post with a public audience in mind.

Responses must be submitted before 19:00 on October 16. 

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Food for Thought: The Hart-Fuller Debate Revisited

This week’s class included a discussion based on the famous debate between HLA Hart and Lon Fuller about the validity of Nazi-era laws. Hart defended the positivist approach, while Fuller’s position was informed by natural legal theory.

Food for thought:

This is a two-part question.

1. Write a post that takes a stand on the Hart-Fuller debate. You will need to explain which position (Hart’s or Fuller’s) is more persuasive and why. Remember: This is a public-facing blog, so your post should also provide enough descriptive and explanatory content for it to be understandable to a public audience.

2. Explain what is at stake in the Hart-Fuller debate. Why does this debate matter? What are the implications of accepting one stance vs. the other? You can approach this question in relation to the specific case that Hart and Fuller were discussing, but remember that this case was an opportunity for them to have a broader discussion about positivist and natural legal perspectives.

Feel free to refer to excerpts from the Hart-Fuller poster distributed in class.

Posts prepared in response to this question should be submitted before 19:00 on October 2.

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