Category Archives: Musing

An Examination of the Customs Act by Fuller and Agamben

The topic I chose to write about for the term paper involves an analysis of the Customs Act in Canada, in particular Section 13. As many people know, the Customs Act has been a consistently challenged and contested area of legislation. Additionally, many people do not actually realize what the authorities, both mandated and discretionary, of Canada Border Services Agency (CBSA) officers are while they are conducting their duties with relation to enforcing the Act. I intend to analyse this law from both the view of Fuller and that of Agamben. Ultimately, I seek to convey that although many may suggest that the Customs Act is a detrimental invasion of privacy and promotes a normalized “state of exception,” it is actually vital to protecting Canada’s border integrity and the citizens residing in Canada from threats to public safety and national security. A government report will demonstrate supporting statistics.

Under Section 13 of the Customs Act, people who are seeking entry to Canada or who are in a Canadian customs-controlled area are obliged to do the following:

13. Every person who reports goods under section 12 inside or outside Canada or is stopped by an officer in accordance with section 99.1 shall

(a) answer truthfully any question asked by an officer with respect to the goods; and

(b) if an officer so requests, present the goods to the officer, remove any covering from the goods, unload any conveyance or open any part of the conveyance, or open or unpack any package or container that the officer wishes to examine.

Many legal challenges have arisen with relation to the Canadian Charter of Rights and Freedoms as a result of seizures made by CBSA officers while exercising their authorities under the Customs Act. Those who challenge the legality of the seizures namely reference Section 8 of the Charter, which states:

8. Everyone has the right to be secure against unreasonable search or seizure.

Lon Fuller would explain the Customs Act by saying that lawmaking is a craft that has an “internal morality.” The main purpose of the law is to both act as an instrument for social control while also remaining as a facilitator of human interaction. Just as the Canadian Charter of Rights and Freedoms, the Customs Act is a law that has been created through rational activity for a distinct purpose and is governed by internal morality. The distinct purpose of the Charter is to protect what has been decided to be the inherent rights of people within Canada and in the process, has become the measure to which all other laws are compared to. However, the Customs Act deliberately contradicts the Charter by allowing anyone to be searched and have their good seized, with the distinct purpose of finding any threats that may be attempting to enter the country. A journal article will be used to support Fuller’s approach.

Giorgio Agamben would explain the Customs Act by saying that the government is exercising its power to circumvent the law (e.g., the Charter) in an attempt to resolve a certain issue (e.g., drug/people smuggling, threats to national security and public safety). Agamben would consider a Customs-controlled area as being a space of normalized exceptionality. A journal article will be used to support Agamben’s approach.

In the discussion, I will evaluate Fuller and Agamben’s approaches by comparing lawmaking as a craft and states of exception. The conclusion will be a brief overview of the two analyses and my suggestions for any possible further areas of interest.

References:

Pavlich, George. “Chapter 2.” Law & Society Redefined. Don Mills: Oxford UP, 2011. 27-39. Print.

Pavlich, George. “Chapter 10.” Law & Society Redefined. Don Mills: Oxford UP, 2011. 152-166. Print.

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Looking Ahead: Deconstruction and Justice

At first glance, my reply to Derrida’s claim “Deconstruction is Justice” is that of agreement. For all its clarity and poignancy, the answer is not easily deduced. To make sense how the agreement came to be, the internal workings of the text require critical analysis. The practice of deconstruction is to unlock provisional conventions and to make space for unanticipated patterns of being (Pavlich, p. 170). The presence of concepts and of definitions is at all times over the horizon. It is a reflexive relationship between openness and closure. The modus vivendi—our way of life—carried with our language and our text will always stand on the end of a new frontier. For Derida and all human beings, everything is language. The power of language and of words comes to define us, unite us, and separate us from others and from ourselves. To ascribe a single definition to a word is to take away its vitality. Justice, like language, is something that is in constant ebb and flow. Weber (2005) claims that justice is “of the incalculable and the unpredictable” (p. 38). It is through the process of deferring to other terms and to calculable externalities—such as law—where infinite concepts, like ‘justice’, may create “meaning, being, and presence” (Pavlich, p. 170). In this sense, one cannot revise a few definitions to the exclusion of all others.

The concept of justice is circular. The end is unknown and its beginning is undistinguished. From where I stand, Derrida (1997) is not mistaken when he claims that “Deconstruction is Justice”. The concept of justice is something that is on the verge of becoming but requires an externality to make it known. For instance, at one point in time it was legally permissible for a husband to rape his wife in Canada without legal ramifications involving responsibility (Criminal Code, 1970). In 1983, Bill C-127 was introduced into legislation to create space for conversation and to make martial rape a criminal offence. From this perspective, it can be said that justice could not be materialized in and of itself; it required the externality of law. Justice may also be observed as a measure that asks for or demands others to state what it is or what it is not. Although it is held that “law does not guarantee justice anymore than justice guarantees good law” (Pavlich, p. 173). Consequently justice, like deconstruction, is provisional and subject to reversal.

The concept of deconstruction is something that happens from within that which already exists or is said to exist. It is shaped by one’s sociological and political context (p. 174), which creates meaning and understanding through language. Deconstruction as a practice is holistic as it opens up concepts that have not been fully unpacked. For concepts and texts that appear fixed or fully understood, deconstruction becomes crucial. In summary, both deconstruction and justice are concepts that favour innovation and development; bridging the gap between theory and process, abstract and concrete. To deconstruct justice is to make possible the unattainable and provisional moments in time. Justice cannot be made a reality in and of itself. It is constantly evolving, changing shape and is in need of other words, subjects and objects that are not present. Life is not static and neither is the praxis of deconstruction or justice.

References

Bill C-127, S.C. 1983, c. 125.

Criminal Code of Canada, R.S.C. 1970, c. C-34.

Derrida, J. (1997). Deconstruction in a Nutshell: A Conversation with Jacques Derrida. Edited with a commentary by John D. Caputo. New York: Fordham University Press.

Pavlich, G. 2011. Law & Society, Refined. London: Oxford University Press.

Weber, Elisabeth (2005). “Deconstruction is Justice”, SubStance 34(1): 38-43

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Deconstruction in Law: a contemporary case

Derrida saw law as limited calculation, thus deconstructible. As the author mentioned in the previous blog, according to Pavlich (2011), “deconstruction does not destroy meanings in a language; it reorganizes the use of language by realigning the oppositions (i.e.- male and female, gay and straight, etc.), thus making room for unexpected meanings and patterns.” It is the author’s intension to use the following case as an example to illustrate that deconstruction shifts between laws and justice and that new unexpected meanings of law and justice can emerge depends on who is on trial.

In 2006, Taiwan’s former president Chen Shui-Bian was involved in a corruption scandal that could have caused him to step down from presidency before the end of his second term in 2008. On November 4th of 2006, “the Public Prosecutor’s Office of Taiwan’s High Court formally indicted Mr. Chen’s wife, Wu Shu-Shen, on charges of issuing fake receipts to extract about $450,000 from a fund that the president controls to support Taiwan’s diplomatic initiatives overseas.” (Kahn, New York Times, 2006) Ms. Wu was accused for using the funds for personal expenditures such as diamonds and other luxury items for her family. She was also involved in another bribery scandal whereas she was rumored to have accepted a large sum of gift certificates from a department store chains (ps- a really big company with branch stores all over Asian and South-East Asian countries) for government favors.

Throughout Mr. Chen’s presidency, Chen’s family did not provide any evidence that the funds were not used improperly. Close to the end of Chen’s presidency, Ms. Wu and her family were involved in transferring the funds to over sea personal accounts in Sweden. The Court requested them to return the funds but they were unwilling to cooperate. The Court had to make a request with Sweden and the bank the funds were deposited in to retrieve the money, however, the money retrieved was clearly short compared to what had shown on record. Again, Ms. Wu and her family showed no signs of cooperation to return the money in full.

After the trial had started, Ms. Wu had requested to postpone the trial 16 times due to sudden hypotension as of April 2008. After she had been sentenced to 19 years in prison, she was not locked up due to health issues and after a prison’s auxiliary hospital refused to admit her. The government did not want to bare any responsibility that might result in any possibility on “negligence resulting death.” The court here deconstructed the laws and added elements of human rights to their likings. If the person on trial was just a regular Joe, there would be no way that the court would grant so many postpone and let alone not being locked up due to “health issues”.

Reference:

Kahn, J. (Nov. 4, 2006) Taiwanese President and Wife Are Accused of Corruption. The New         York Times. http://www.nytimes.com/2006/11/04/world/asia/04taiwan.html?fta=y&_r=0

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

United Daily News. http://mag.udn.com/mag/abian/storypage.jsp?f_ART_ID=46154

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Sovereign Power and Counter-Law: Larsen and Piché compared to Agamben

Larsen and Piche’s article explains the exceptional state, pragmatic bureaucracy, and indefinite Detention within Kingston Immigration Holding Center, as compared to Agambens’ theories relating to emergency powers a state has during times of crisis. Agamben focuses on a general version of normalized states of exception, whereas Larsen and Piche focus on specific circumstances which give rise to institutionalized policy and counter-law.

Larsen and Piche in their Canadian Journal of Law and Society article differ from Agamben’s theorization of the idea of “Camp.” Agamben’s “Camp” refers to the imagery of World War II Nazi concentration camps, which is used as a key view point to examine exceptional states.  Agamben tries to analyze the rules of law surrounding the conduct and manner in which persons are maintained within these concentration camps.  Agamben tries to show that how physical nature can be manipulated and laws of unfavorable or unrealistic ideals before can easily change within an instance. The highlight of Agamben’s camp shows that sovereign power can oppose law and create a new environment which tries to justify its own actions. These sorts of sovereign regimes take power and create states of exceptions when in power to counteract laws which they find unnecessary or useless to themselves.

Larsen and Piche focused their research on the Kingston Immigration Holding Centre (KIHC).  Inmates who were placed in KIHC were those who were deemed a threat to national security; these individuals would have security certificates which were only issued to non-citizens. Those who were held under security certificates had lost almost or all of their fundamental rights. This sort of idea relates to that of  Guantanamo Bay, in which persons of high risk to national security would be held with no rights, and no way of being able to defend themselves by having a fair trial. The idea of this exceptional power which denies the basic rights and freedoms to those being held is an example of a government power as a counter law to deny the regulation of law to apply to those being held in these situations.  “While security certificates themselves allow immigration law to be used in place of criminal law in order to facilitate precautionary national-security policy, the Kingston Immigration Holding Centre MOU uses a legal contract to circumvent the correctional and criminal-justice aspects of CSC’s mandate in order to facilitate preventive detention (Larsen and Piché, 2009, p. 210).”

The idea studied by both parties is to examine the law behind the surrounding of how something like the KIHC and Nazi camps were conducted and allowed within. I agree with the nature of the argument due to the fact that it looks deeper into what the root cause that is plaguing the system while trying to gather information on what caused the issue to unfold in this manner.

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Food for Thought: Deconstruction and Justice

When analyzing Derrida’s claim, I would disagree with the statement “Deconstruction is Justice.”

Derrida’s claim “Deconstruction is Justice”. Do you agree or disagree with this statement? I would disagree when examining Derrida’s claim we have to view what the author means by deconstruction, what he believes it to be is “unpredictable and without warning in the silenced, supplemental, marginal excluded, and degraded elements of text (P.171, Pavlich).” Derrida explains in details how language and communication are a major focal point in law and how that misunderstanding others provides alternate meanings to what was initially trying to be communicated.

I would have to argue that deconstruction in the world of justice is a means to break down ideals which no longer hold substance or value in our lives; it is no longer the norm. This process of deconstruction is taken step-by-step and is predictable with trends in society and people become socially aware of what is taking place, and why a law or ruling is removed or modified.

When Derrida is looking at the deconstruction of law he uses his three unavoidable paradoxes that enable law to become fully examinable. First there is an irreconcilable paradox that attends to the ‘decisions of the judge’; to be just, a decision cannot simply follow a rule; it has to be more and by offering a fresh decision that treats each case in inquire terms. Secondly an undecidable, illimitable, and incalculable justice haunts all limited, calculated, legal decisions.  Finally, justice is never presentable, it urgently calls for calculation

My thoughts on the three paradoxes is that rules aren’t necessarily decided by the judge, but that they try to help shape the rule to what its natural state is supposed to be. By this I mean judges help give the contexts to what the law is and how it’s defined to people within society. I disagree with the second paradox as well, in which the limitation on which we set law is defined by social norms which we as community define; there is no set of laws that supress the will of the people, because the limitation is set by the people. I agree with the third paradox in which law is constantly evolving and continues to evolve needs to be added on or removed upon depending the state of society and its interactions which are or aren’t socially accepted depending on culture, people, ideology, and time frame.

My overall thoughts on how Derrida deconstructs law is arguable as in-between.  There are many points I agree with and also disagree with. The concepts of language and communication of law is open to a lot of interpretation of what is possible.

Pavlich (2011) – Chapter 11 – Just Events: Law and Society

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The purpose of law and particularly judicial decision-making is to preserve the status quo.

The discussion for this week is “The purpose of law and particularly judicial decision-making is to preserve the status quo. Do you agree or disagree”?  When examining the status quo it is a good idea to grasp the general concept of it.

Merriam-Webster Dictionary (2012) describes preserving and status quo as:

Preserving, Preserve:

1: to keep safe from injury, harm, or destruction: protect

2a: to keep alive, intact, or free from decay

            b: maintain

Status Quo; the existing state of affairs

When talking about status quo in judicial decision making a good idea is to examine social jurisprudence and legal formalism points of view to examine and identify the purpose of the law and to help explain the interaction of the law and courts play with one another. Once law is established one can examine the connections between law and society and how they interact with one another to help create the status quo and decision involving law.

Social jurisprudence is the study and theory of law, which tries to answer the questions of the problems with internal law and legal systems, and problems of law as a particular social institution as it relates to the larger political and social situation in which it exists.  When examining law, we must see how the law itself fits in with society social norms, not only does this law have to make sure it does not conflict with the charter of rights and freedoms, it must also carry the intentions implicated by society.  Natural law is a type school of jurisprudence which helps to specify rational objectives limits to the power of legislative rules. The foundation of law is accessible through human resources and it is from these laws of nature that humans gain whatever force they have. “Process of social control, laws main purpose is to ensure the survival and advancement of society (Pavlich 60).”

Legal formalism is a theory that law is a set of rules and principles independent of other political and social institution. “No more than the formal legal rules, doctrines, and principles underlying high court decisions; adding that law could only be discovered by carefully and systematic analysis of this case law (Pavlich 56).” Basically, the law is a code of conduct which clearly defines what a person can do or cannot do. This has been agreed upon by studying cases and coming together as society to initiated standards of behavior and action.

Therefore to answer the initial question, I would agree that the law’s purpose and particularly judicial decision making is to preserve the status quo, by helping regulate the needs of society and defining such rules and regulation. These laws are then interrupted and constructed with the intent to help instill preserve the survival and advancement of society by collectively creating guidelines which humans can live and abide by.

References

http://www.natural-person.ca/pdf/Charter_Rights_Freedoms.pdf

Pavlich, George (2011). Law & Society Redefined.

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Absolute Jusitice, Absolutely Unattainable

Renowned deconstructionist Jacques Derrida makes a distinction between law and justice. Law, Derrida argues, is the institution and structure of the judicial system; it is a construction of historical and social significance that operates in the present. Most notably, by the very nature of being constructed, law can be deconstructed – it can be amended and repealed – and this is what separates it from justice. For example, segregation laws were once in effect (constructed) in America, but in 1964, the government outlawed many forms of discrimination. Therefore, segregation laws were deconstructed, and the result was equality or justice for millions of Americans. For Derrida, justice is perfect; it is not deconstructible, like deconstruction itself. In fact, he declares that ‘Deconstruction is Justice.’ That is, deconstruction and justice are inseparable. I understand this to be that the deconstruction of law brings it ever closer to perfection, that is, justice. In drafting laws, human beings are consumed with the notion of justice, yet absolute justice is unattainable; it is elusive. But every act of deconstructing law brings human beings closer to finding justice.

The concepts of law and justice are man-made social constructions, and like their creators, they are imperfect. I think the notion of justice is relative to the individual. That is, all human beings experience justice uniquely. With this in mind, universal justice is impossible. So, I agree with Derrida that justice is unattainable, but we must continue to deconstruct laws to become ever closer to justice.

References

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

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