Tag Archives: Class

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: 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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Law, Ideology, and Revolutionary Social Change Facilitated Discussion Questions

As our facilitated class discussion was unfortunately cut short last week, we have decided to post the questions for discussion online in hope that this may generate further lass discussion this Friday. Enjoy.

  • Materialist conception of history
    • Understands modern society through an analysis of its mode of production and the changing forms of social divisions.
    • The division of labour develops out of struggles to own and control the ways given societies produce necessities to secure their survival.
      • Can this be applied to the creation and maintenance of Law

      Marx and Engels did note the “duplicitous face” of law: Its repressive coercive functions are obscured by its ideological functions that portray it as equal, universal, and just. What does the class think of this statement?

      Marx and Engels often caution us not to expect law to do much more than reform “surface” issues. Agree/Disagree? Why?
      Can law ever do more than simply replicate the interests of the ruling class? Thoughts?

      FINAL POINTS:

      1. The Granting equal and universal rights within structurally unequal societies often perpetuates, rather than alleviates, the inequalities
      2. The law reflects the common interests of the ruling group and may, on occasion, appear to work against the interests of particular capitalists
      3. The laws repressive coercive functions are obscured by its ideological functions that portray it as equal, universal, and just.
      “… society does not depend on the law. That is a legal fiction. The law depends rather on society, it must be an expression of society’s communal interests and needs, arising from the material mode of production, and not to the arbitrary expression of the world of the single individual. I have here in my hands that Code Napoleon, but it is no the code which created the modern bourgeois society. Instead, it is bourgeois society, as it originated in the 18th century and underwent further development in the 19th century, which finds its merely legal expression in the Code. As soon as the code ceases to correspond to social relations, it is no more than a bundle of paper. (Marx, quoted in Phillips 1980: 187).

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