Tag Archives: Society

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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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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Abortion: Natural vs. Postivist Law

For this week’s Food for Thought, I have decided to address the alternative option/topic that asks of us to discuss our forthcoming term paper. Although I originally had intended to proceed with this week’s original discussion of Derrida’s Deconstruction is Justice, I felt the opportunity to pre-emptively present my paper in a condensed form was too great of an opportunity for feedback than I could pass up. For the remainder of the blog, I will be focusing on three areas of interest, rights surrounding abortion (or the abortion debate as many know it), the concepts surrounding Natural Law (Natural Law Theory), and the Positivist approach to legal thinking (Positivism). Moreover, it should be noted that when looking at such a volatile subject such as the abortion debate, I felt it was only appropriate to ground the theoretical landscape in an equally strong debate that is known as the Hart Fuller Debate. Before I begin dissecting the two analytical approaches previously mentioned, I will begin by framing topic at hand with a break-down of the abortion debate as we know it.

Abortion

For the last half century there has arguably been no other subject, no other debate as polarizing as the abortion debate. Undeniably connected to the modern Women’s rights movement, a flurry of opinion has swirled around the conceptions of individual rights, whether they are for women or an individual woman, an unborn child, or even the potential father of unborn children. Because of this, debates surrounding abortion, abortion rights, and rights of unborn children continue to be heard, with many different perspectives being put forward in an effort to strengthen one side’s perspective over the other. Although the temptation to advance my personal feelings and perspective on this topic is strong, I will, for the sake of this blog post, refrain from advancing such ideas; rather I will focus an effort to flesh out how the two previously mentioned legal theories would approach the subject. Many have tried to advance theories relating to different aspects of abortion, including how general attitudes will sway dependent on several variables. However, even though there appears to be some predictability of attitude related to sex, religion and education, the results are not indicative enough to proclaim undeniable certainty (Bryan 1992). Regardless of attitudes, one could sum up the abortion debate by forwarding the ultimate question of whether or not an unborn fetus is or should be considered a person. This point is forwarded by Earnhart et al. (1999) when they state” Sooner or later in the debate about abortion, the question of “the person” must arise” (p.128) Continuing, Earnhart et al. (1999) explain in regards to the question of the person “this is the question on which all other questions of abortion depend” (p. 128). Because of the previously statement, we must frame our discussion of Natural Law and Positivist legal theories around this topic while, at the same time examining, comparing, and contrasting the rights of other parties involved (Women and Men).

Natural Law

When examining Natural Law, or more pointedly, the work of Lon Fuller, we are told a fictitious story of King named Rex (as I have discussed this story at length in a previous blog I will forgo an in-depth discussion at this point). However, what should be noted, is one criteria (of eight) that distinguishes a “internal morality” needed to claim a law valid, this criteria makes the distinction that law itself must not be contradictory in nature (Pavlich, 2011). Within this specific criteria we can begin to see the abortion debate frame around the theoretical perspectives of Natural Law; this must be looked at with the Canadian Charter of Rights and Freedoms in mind, specifically section 7 where it states “Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.” Arguably, this section of the charter can be taken to support both pro-choice and/or pro-life provisions. Potential forthcoming discussions of this argument are quite plain to see if one was to place the The Charter, Natural Law, and Abortion Rights next to one another. However, the debate begs the question of how can the laws of Canada protect both the life of a woman (the mother) and the life of an unborn fetus; the contradiction is both obvious and disconcerting. One could not be faulted to suggest the Canadian Government needs to make a firm decision and proclamation on this subject rather than double speak and allow the debate to swirl around the legislature, sporadically entering for debate time and time again.

Positivism

When considering laws just or rather valid, we have seen for Naturalist, the law and morality must compliment one other, meshing as one in order to proclaim validity. However, for the positivist, morality within a code is not of a concern, rather it is the basis of fact, whether it is law or not, that is what drives Hart`s focus. This point is reinforced by Pavlich (2011) when he states “legal positivism seeks objective and morally neutral ways to study law as an observable fact in the world” (p. 43). This description of Positivism can be seen as the basis for its position regarding abortion, a position that eliminates the boundaries of morality (intangibility) while only considering tangible assertions. This in itself should be seen as problematic by those in the pro-life camp as one could suggest a legal theory not grounded in a quest guided by morality cannot appreciate or defend an action (abortion) that is so vigorously opposed due its immoral nature. Although legal positivism may not be grounded in morality as a basis for claiming justifiable, valid law, it attempts to ground its framework in empirical evidence (tangible concepts) that suggest, reinforce, and validate positivist claims regarding law. Although much more can be said regarding positivism at this time, one can see how positivistic approaches to law would broach the subject of abortion and abortion rights.

*For a brief clarification and summary of the two before mentioned legal theories, please refer to the videos linked below*

Ultimately, when examining both Natural Law and Positivism in relation to Abortion Rights, one can see the landscape laid out for an enthralling and lively discussion of legal thinking. Speaking directly about the abortion debate, it must be restated that although we all may have our own personal feelings regarding this subject matter, this blog post was intended to simply lay out the forthcoming debate/discussion rather than proclaim a preferred view, or even winner. As we live in increasingly complicated times, it is only through responsible, respectful discussion and debate, that we will be able to iron out our differences and beliefs in order to reach the ultimate goal of a better future for all.

I wish to thank the moderator of this blog for the effort and time invested in the maintenance, advice and critique of all involved. Additionally, I wish to thank and congratulate all other contributors of this blog, the work has been tremendous and the discussions enthusiastic, it has truly been a pleasure, thank you.

The Abortion Debate Rages on:

Positivist Law:

Natural Law:

References

Bryan, J. W., Freed, F. W. (1992). Abortion Research: Attitudes, Sexual Behaviour, and Problems, in a Community College Population. Journal of Youth and Adolescence, Vol. 22(1). 1-22.

Earnhart, B., Gordon, D., Irving, D. I., Paul, R. Vieria, E., & Walker, J. (1999). Abortion And The Question Of The Person. International Journal of Sociology and Social Policy, Vol. 19(3/4), 48-52.

Pavlich, G. (2010). Law and Society Redefined. Ontario: Oxford University Press.

Canadian Charter of Rights and Freedoms, Part 1 of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11.

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Making Nature Against the Law

In the twenty-first century the illegal status of cannabis in Canada is ‘immoral, unjust, and intolerable’. The first drug law implemented in Canada was the Opium Act of 1908 when Deputy Minister of Labour Mackenzie King was concerned with an increase of use among Caucasians (Grayson 2008, p. 73). Opium was the Chinese migrants drug of choice. The cannabis plant achieved its criminal status when it was added to the Opium and Narcotic Drug Act in 1923. Today, the possession and trafficking of marijuana falls under the Controlled Drugs and Substances Act (S.C. 1996, c. 19) as a schedule II narcotic. As a first conviction, offenders face a maximum penalty of 6 months in jail or a $1000 fine, or both, when possessing 30 grams of marijuana or less. Without a doubt, the debate over cannabis illegality is neither new nor unique. With this in mind, it is recognized that many others believe the law to be one that is unjust and intolerable. I often wonder how citizens in a “free and liberal democratic society” claim such status when the people do not hold sovereignty over their own bodies? It is often argued that the use of cannabis is potentially harmful, however it is destructive to the welfare of our nation state and humanity when living organisms becomes prohibited. John Finnis’s framework on Law and Flourish Human Life can be used to argue that Canada’s cannabis law is unjust, as it does not further the common good by criminalizing personal choice and suppresses sociability and friendship by forcing users to partake in secrecy. For Finnis, “justice is about fostering the common good in a community” and concerns interactions and duties with others (Pavlich 2011, p. 37). Likewise, Pavlich would argue that the law prevents the formation of shared objectives that serve everyone. This point could be applied to any arbitrary law and be taken out of context, although this law is unique to others as it is victimless. Criminalizing the production, usage and distribution of cannabis essentially causes more harm and victims than if it were to be legal. For one, the production of the plant often involves the stealing of electricity and bypassing usage meters in order to meet the markets supply and demand while keeping their costs low and workers off the electrical grid (Dehaas, 2012). This then places higher cost onto the legal customers to pay for the lost power. Secondly, the usage of the cannabis plant has been proven to be less harmful than other legal counterparts such as alcohol and prescription painkillers (CBC, 2012). Thirdly, the vast distribution and demand for cannabis has resulted in billions of dollars in revenue for organized crime (Nelson, 2010). The current illegality of the organism appears to be one of hegemony—the way in which elites have their interests be adopted as the common interests—through successful lobbying on behalf of those who are benefitting by it’s illegality (e.g., law enforcement, prison industry, pharmaceutical companies, etc.) as it ensures job security for its ‘combatants’ and produces wealth in industries profiting off of its synthetic counterparts in modern medicine. The time to end prohibition of this plant is long overdue.

“If people let government decide which foods they eat and medicines they take, their bodies will soon be in as sorry a state as are the souls of those who live under tyranny.” – Thomas Jefferson

References

CBC. (March 23, 2007). Alcohol, tobacco worse than pot, ecstasy: study. CBC News, Health, http://www.cbc.ca/news/health/story/2007/03/23/alcohol-tobacco.html (accessed on September 21, 2012)

Controlled Drugs and Substances Act (S.C. 1996, c. 19)

Dehaas, J. (June 23, 2011). Grow-op electricity thefts “like a five per cent surcharge”. Macleans, News, http://oncampus.macleans.ca/education/2011/06/23/grow-op-electricity-thefts-like-a-five-per-cent-surcharge/ (accessed on September 21, 2012)

Grayson, K. 2008. Chasing Dragons: Security, Identity, and Illicit Drugs in Canada. Toronto: University of Toronto.

Nelson, A. (April 20, 2012). How Big Is The Marijuana Market? CNBC, News, http://www.cnbc.com/id/36179677 (accessed on September 21, 2012)

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

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