Tag Archives: Official Version of Law

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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A Conversation Between “Friends”

If the Official Version of Law (OVL) Advocate, Feminist legal theorist, Racialization and law theorist, and Postmodern theorist were to sit down, their conversation would look something along the lines of this…

Official Version of Law (OVL) Advocate: 

Have you been to the court recently? They have installed an excellent new statue of Lady Justice. Very impressive – and a perfect symbol for the legal system. The legal system is, after all, an impartial, neutral and objective system for resolving social conflict.

It is autonomous, separate from political and social influences – and therefore free from external values and corruption. Legal decisions are based on facts and rules, not individual or group values external to the law.

Lady Justice symbolizes the Rule of Law, which is a central feature of the legal system.

Ultimately, the legal system is just. It is committed to equality – so committed, in fact, that it deals with people as abstract legal subjects. This ensures that everyone is treated the same.

I’m sure that you will agree …

Feminist legal theorist:

It’s ironic how you say the law is fair and equal, so you construct a statue of the lady of law when in reality the men call the shots. The main administrators in the justice system (the judges) are Caucasian men. There is a political and social influence when it comes to the law. Those old white men are caught up in how they think the law should be from ages ago, they do not consider that the times have changed. How is that fairness and equality. Lady Justice to me is a false representation, because she is holding a scale which is showing perfect equality, which is no need in practice in the justice system. To me, the law is used in favor of men to dominate and to oppress the women’s interests and rights.

Your attempt at explaining what Official Version of Law is, may convince the general population that the official version of the law stands on such grounds of freedom of external corruption, unbiased judgement, and equality, you will not convince me. You claim to preach such equality within, when myself and others are aware of the inequality and unlawful judgement of many under your naive practices of the law. Victims of these practices include people of other sexual orientations, non-Caucasians, and women. I try to take part in genuine equality, you give off the impression of an equality that does not exist. We need genuine equality, which will incorporate not only gender issues but with race and sexual orientation.

Racialization and law theorist:

Feminists try to speak of a humanitarian utopia. The official version of the law attempts to create equality and rightfully fails. Racialization exists for a reason, not everyone deserves to be or is equal. If we treated everyone as equal, the lesser humans (colored people, women, and immigrants) would demand things like adequate social welfare and proper medical coverage which would only further damage the economy.

It is often said that social interaction is infused with a privileged / non-privileged dynamic which is defined by racial identity and is a very complex issue. Racialization hurts the privileged because they have to give up their hard earned money to those who do not deserve.

Without a social hierarchy you will have failed laws and a failed economy, you will not convince me otherwise.

Postmodern theorist:

I completely disagree with both the official version of the law and with racialization in the law. In order for laws to work successfully within a system they need to be practiced equally. I am aware of the social issues within laws surrounding race, class, gender, and sexuality. Without addressing these concerns and accepting diversity and multiplicity for what they are, laws are meaningless. Laws are established within a society to protect everyone, not just those of the correct skin color, social class, sexuality, and gender.

I have a contradiction with racialization and law theorist in terms of privileged and non privileged people. If we speak of fairness and equality, why is there a separation between the two? Clearly the rule of law insists that the “us” likes to dominate the “them.” The justice systems segregate everything; it is inevitable that if a middle class “colored” male was to go to court he will be treated differently than the Caucasian male.  We all know of the Trayvon Martin case, who was shot by George Zimmerman. Zimmerman assumed because he was an African American wearing a hood, he was up to no good. There was altercation which led to the death of Martin. Surprisingly, Zimmerman walked! How is that possible, that in the justice system a man walks when clearly it can be said he committed the murder? In comparison if an African American had pursued the same result he would be given a guilty verdict.

Now you tell me, is that fair? Is Lady Justice really representing what you say she is, or is she in representation for the privileged. We need to have an unbiased perspective and be aware of that diversity exists. On paper the Official Version of Law is golden but in reality it is a cover up for the untold.

In order for laws to work, both males and females should have a say in the practice of law. If you only get one side, which is usually males, it will not show a fair representation. By including all ethnicity’s and genders it ensures that laws are created just and fairly. Times have changed and it is not just the white males who have a say in what happens in society.  There are a variety of norms within society and those need to be considered. There are many different cultures around us as well. We have to look at all factors to ensure that there is equality for everyone. There are many diverse values and norms, which must be considered in order to have a well functioning society. If we paint everyone with the same brush it does not ensure that the law is being carried out effectively and efficiently.

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Food for Thought: “Four sociologists walk into a bar …”

This week, are looking at Elizabeth Comack’s (2008) excellent survey of “Theoretical Approaches in the Sociology of Law”. The essay begins with a discussion of the Official Version of Law, which Naffine (1990: 24) describes as “what the legal world would have us believe about itself”. Comack goes on to discuss the relationship between the Official Version of Law and various classical and contemporary socio-legal perspectives. In class, we reviewed the functionalist, liberal-pluralist, and Marxist approaches and discussed their responses to the claims of the Official Version of Law.

This ‘food for thought’ post will make use of a scenario, and invite you to write a script or dialogue.

The scenario:

The annual Law & Society conference has just wrapped up, and, as is custom, some presenters have decided to sit down at the campus pub to continue their conversation. Four colleagues share a table. The first, who works for the Department of Justice, is a staunch supporter of the Official Version of Law. He believes that the OVL accurately reflects the values and practices of the Canadian legal system. The second is a feminist legal scholar, who has worked in both the radical and socialist traditions. The third works in the critical legal studies tradition, and specializes in race and the law. The final participant is a postmodern legal theorist.

As is often the case, the representative of the Official Version of Law begins to make some sweeping statements about the legal system. The other three decide that this would be a good time to intervene and respond to their colleague’s claims.

Instructions:

Write a post in the form of a script for a conversation between these colleagues. I will start things off by providing you with the opening statement made by the representative of the Official Version of Law. Your task is to prepare responses for the other three. Remember: this is a conversation, and the participants should speak in the first person. Their responses should reflect their theoretical affiliations. You may draw on Comack (2008), but avoid direct quotes. Note that you do not have to provide an overview of the main features of each perspective. You need only script the participants’ responses to the claims of the OVL (in general – you do not have to respond to every point). Top marks will go posts that make creative, convincing arguments that make use of illustrative examples. Have fun!

Responses to this food for thought question will be accepted until 19:00 on September 18.

Official Version of Law (OVL) Advocate: Have you been to the court recently? They have installed an excellent new statue of Lady Justice. Very impressive – and a perfect symbol for the legal system. The legal system is, after all, an impartial, neutral and objective system for resolving social conflict.

It is autonomous, separate from political and social influences – and therefore free from external values and corruption. Legal decisions are based on facts and rules, not individual or group values external to the law.

Lady Justice symbolizes the Rule of Law, which is a central feature of the legal system.

Ultimately, the legal system is just. It is committed to equality – so committed, in fact, that it deals with people as abstract legal subjects. This ensures that everyone is treated the same.

I’m sure that you will agree …

Feminist Legal Theorist:

Racialization and Law Theorist:

Postmodern Theorist:

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