Tag Archives: Douglas Hay

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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Law as Ideology

In Hay’s view, the written laws serve the powerful while law as an ideology functions to mask that intention. In the specific time period that Hay references, law is in place to protect property owners. Inequality under the law then, takes the form of unequal representation of people who don’t have property facing execution for property crimes. Mass numbers of executions of poor people for stealing property is somehow allowed to continue. Hays explanation of how the poor did not rise up to stop this is explained in through the internalization of law as an ideology. Law as ideology is split into three aspects: Majesty, Justice, and Mercy. Each serves the greater purpose of masking the inequality of the system and to give it legitimacy in the eyes of the masses in order to prevent them from reforming or overthrowing the system.

Majesty refers to the spectacle that surrounds the judges and the systems of law. The judges would come in to town like rock stars and be greeted as such. Everything from the way that judges dressed to their literal high seated position symbolizing their power helped give them legitimacy. Legitimacy is important if you’re handing out death sentences. Justice refers to the strict procedural rules set forth in the carrying out of the trials as well as notion that all people, rich or poor must follow the law. This helped give the courts legitimacy by giving people the impression that the law was unbiased and that they had a chance to win inside of a court no matter their situation outside of the court. The sometimes absurd rules that made for cases being thrown out gave the impression that judges work under rules and were not making them up as they saw fit. The main attraction however was seeing a rich person being executed just as they would execute a poor person. This gave the impression of legitimacy through having everyone equal under the law. The final ideological aspect is Mercy. Judges had the power to use discretion and pardon people from being executed. This helped regular people accept and buy into the system of law as it put some power back in their hands in an appeal process. They had the ability to persuade the judge to plead for their lives or the lives of their community members. Victims of crime also had some say in the fate of the person who wronged them. Offenders who were pardoned also felt blessed to still be alive and were more easily moulded into productive community members.

The religious similarities in the ideology of law are apparent as Hays notes. The theatricality and procedural nature of mass and the priests garb give the impression that there is a higher purpose to the proceedings. Judges also have god-like qualities in that they encompass both the power to kill you as well as show mercy. Like the Christian god, the judge can, through mercy, leave the sword dangling above the pardoned persons head in order to scare them into becoming more productive in their society. The threat of the punishment also applies to everyone in both the law and religious context. Legitimization and acceptance through fear and fantasy has proven to be the best way to gain mass support for any cause throughout the history of human society.

I believe there is some truth in Hay’s argument that law functions to secure consent and maintain the status quo. Hay can go further into Marxist territory with his idea of Majesty, Justice and Mercy. It seems that this structuring of the institutions of not only law but family, religion, government, capitalism, education and others could be seen through this lens. All of these institutions evolved throughout history to gain their status despite the obvious major flaws and gross injustices contained within them. All of these institutions have the elements similar the Majesty, Justice and Mercy that legitimize them. The elements in these institutions have developed to put blinders over the eyes of people who learn to accept these institutions as the ideal and maintain the status quo of the same groups that run them. The thought of making changes to any of these systems is socialized within us to be felt as radical. Whether there is a more literal, conspiratorial Marxist viewpoint that the systems were designed and created to serve that purpose is up for debate. More likely institutions rose to power or fell through a sort of Darwinian natural selection of social institutions. Those that are able to establish legitimacy survive while those that are not get overthrown.

The implication of this kind of thinking creates a deeper hole for society to dig out of if the goal is justice not only in law and criminal proceedings but also in social justice. The powers that be are only in place to reproduce their own power and do the bare minimum to please people enough to not get overthrown using the blinders of socialization to give people the impression that they hold society together. This type of institutional setup is difficult to combat as the victims become its unknowing soldiers. Law reform projects will be possible as long as they don’t try to uproot the institution.

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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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