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Sovereign Power, State of Exception & Resistance

It would be difficult in my perspective to be able to live a life where you were born with rights, and at any moment can be stripped of those bare rights. Having any kind of accessibility to rights signifies your existence, your right to be human, whether you are an offender or ordinary citizen. As we look back in history, we can look at the concept of the way people lived. You could essentially look into the whole concept of being exiled or banished to exemplify what it would feel like to have your basic rights taken away. In Agamben’s perspective of “bare life,” it leaves you with nothing with being forced in some notion to follow a sovereign that does not recognize these individuals as beings because of their lack of status; I would not blame these people if they decided to form a resistance against the sovereign power.

For those people who have the status of “homo sacer,” there are various possibilities for acts of resisting against the sovereign that is controlling them because their overall limitation under homo sacer, deprives them from bare essentials as people. If a governmental power declared a state of exception in a crisis situation, it would be an appropriate measure to carry out considering that the government and society is at stake. Society would have to obey to this order in a crisis situation or else it will lead to resistance. A nation is supposed to look out for the public’s safety, but in reality the main purpose of declaring a state of exception is to control the public so that the government is not threatened or harmed by its people; in this reaction by the state, it leads to society being stripped out of the ordinary sphere of ‘normal legality’ to resist sovereign power. One can only imagine what it could be like in such a situation where you could not use any form of legal protection that you would normally use when you are being deprived of freedom. I would not blame these individuals to find a loop hole in a sovereign’s state of exception if they are putting them in danger.

When sovereigns declare a state of exception for instance, they should be aware that people will resort to means of violence to get what is rightfully theirs if the state of exception is not justified. According to the thoughts of Walter Benjamin, there are two types of violence that are experienced in order to gain some kind of legal status from the sovereign powers by the people (Palvich). The first kind of violence that he talks about is that law is always creating violence; when you are depriving the right to have rights, you get a group of citizens who would fight back in gaining that right back; For example, the right to travel freely between two nations with a borderline being the barrier.

I came across an article that provides a very interesting analysis of sovereign authority at the borders of two sovereign states, India and Bangladesh. The article further goes into interviewing some residents from both nations who cross the border frequently. Among them was a woman (Moushumi) who worked as a servant for a wealthy Bangladesh family, and would travel quietly in the night to visit her son in a neighboring village in India. Prior to the 1947 partition that took place in India, her sons’ village used to be in the same territorial land and the short trip was simple. However, the impact of the new sovereign states drew a line between her village and her sons. Should the acts of this woman be depicted as a criminal act because she violated the laws of both India and Bangladesh? Or is it due to her poor status of not being able to understand the concept of state sovereignty, or is she part of the resistance that contests the borders that divide the world into territorial defined states? We see this woman being deprived basic rights to freely enter another sovereign to see her son when the cause of this was the consequences of sovereignty (Jones, 2011). I came across an image of a woman who stares back at the borderline fence between India and Bangladesh and find it a great image that might resemble to how Moushumi sees this line barrier between the two sovereigns that used to be on one territorial land.

Moreover, the sovereign gains authority not by creating and enforcing laws in a given area, but rather through the deployment of that state of exception, a time and space where people in that area have to follow laws, but the sovereign power can operate outside the typical legal system if it perceives a threat to its authority (Agamben). There are various examples across the globe where people are living under divided sovereign powers that used to be under one territorial regime. The partition in 1947 India showed a great deal of people being divided into new sovereign nations. Muslims, who lived in India at the time, had to leave their ties in India and move to their new state of Pakistan. Many of these people had grown up and established a living from generations with lots of territorial land that belonged to them and this partition led to them losing everything they had and were essentially forced to move to their belonging new sovereign power.

This is another great example among many that I find strips people of their right to live where they want. We can really see how state politics harms the citizens by making them abide by what they say or else they turn into a threat to the nation. The partition in India also brought a lot of rebellion by the citizens who did not want to leave their current land. A resistance against the sovereign’s power was definitely portrayed during this time, but in the end after thousands were killed, the partition happened. It is interesting how the land you live on belongs to different sovereigns and if a state of exception occurs or evens a divide in powers, it really doesn’t matter anymore.

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by | December 5, 2013 · 2:44 am

Historical treatment of Aboriginal Canadians and Genocide

 

The term genocide was coined by Raphael Lemkin. It can be defined as the destruction or elimination of a certain groups of people. In terms of the historical treatment of aboriginal people in Canada, it may not seem as genocide on the surface to most people, but to others more familiar with what occurred during this time, it’s indeed genocide because the Canadian government employed several harsh methods to oppress and eliminate aboriginal people.

When thinking of genocide most people assume the extreme forms, like the Holocaust or the genocide in Rwanda were millions of innocent people were killed. This is a misconception people hold, it is not only the mass killing of a certain groups of people, but there is a wide array of other acts that fall under genocide.  According to the United Nations definition of genocide, in addition to the killing of members of a group, it includes causing serious mental or bodily harm towards a group, preventing birth in a group, transferring children by force from the group and imposing conditions designed to physically destroy the group of people (Bolen, 2013). Aboriginal people in Canada faced a form of cultural genocide or ethnocide, as Andrew Woolford states in his article. (Woolford, 2009). It can be defined as cultural genocide because the Canadian government in a way wanted to eliminate the beliefs and traditions of aboriginal people and assimilate them into Canadian culture.

Naming the historical treatment of aboriginal people genocide would indeed be an act of demystification or clarifications. This is the case because it falls into several categories of the conventions definition. Firstly, it falls in the category of forcefully transferring children from their homes. This is the case because the government removed 20 000 aboriginal youth from their homes from 1960 to 1980, these children were eventually adopted by white families (Bolen, 2013). Although, this method of genocide does not employ the method of extreme killing, it is still genocide because the government is removing the future of a group to make sure it does not exist in the future. Secondly, the historical treatment fall under the conventions definition of genocide because, the Canadian government ignored the spread of tuberculosis in residential schools and did not provide significant health care to these children. There were also high levels of malnutrition at these residential schools. This is genocide because thousands of young aboriginal children were killed by disease and the government could have taken steps to reduce the spread of disease, but no action was taken. What the government did was an obvious example of disregard for human life. In addition to death at these residential schools, children were sexually, physically and mentally abused. There were also many children that committed suicide. Finally the government passed policies that starved aboriginal people to make room for immigration. This is genocide because several aboriginal died as a result of this policy and it was targeted towards a particular group. Although all these events did not involve direct killing they all constitute genocide because the goal was to eliminate a culture of people.

The outcome of naming these historic events genocide would be bitter-sweet for native communities, this is because it does not change what happen, but it shows the government is taking greater accountability for their horrific actions against innocent aboriginal people. In my opinion it should already be considered genocide because it falls under the UN definition of genocide, what is the point of having such a descriptive definition of genocide if you ignore event that clearly represent genocide. It is an embarrassment in my opinion that the UN has not recognized these events as genocide; Phil Fontaine and Bernie Farber should not have to write letters to the United Nations for this recognition. The United Nations definition either needs to be revised or the horrific treatment that aboriginal people faced should be recognized as the aboriginal genocide.

Monture would also employ the word genocide because after reading her work she takes a strong stance against the historical oppression of aboriginal people and parts of Canadian law. Several innocent people were killed after these targeted government actions to get rid of aboriginal people. She was previously a lawyer who is use to reading the criminal code, which is sets of rules that help govern society. Similarly the UN convention has an outline of what is considered genocide and the actions of the Canadian government clearly fulfil those categories, so Monture after looking at the definition of genocide would agree it was genocide.  To conclude, my belief is the events need to be recognized as genocide. There also needs to be more teachings in schools about what happen at these residential schools. I have taken several Canadian history courses that do not even mention aboriginal people or residential school experiences. There needs to be a greater inclusion in school curriculum’s of this oppression. To this day there is a negative perception towards aboriginal people from some members of society. The media plays a huge role in the thinking society has towards aboriginal people, for example several television programs portray aboriginal people as constantly intoxicated. This is an example of a prejudice or a pre-judgement people have towards aboriginal people before knowing them. Greater knowledge and education of aboriginal traditions and culture would improve this problem. I admit, I had this problem at one time but, after learning about their culture and talking to aboriginal friends the media portrayal of aboriginal people has been removed from my head.

Link – short video of aboriginal experiences at residential schools

References

Bolen, M. (2013, Oct 18). UN urged to declare Canada’s treatment of aboriginals ‘genocide’. The Huffington Post Canada. Retrieved from http://www.huffingtonpost.ca/2013/10/18/genocide-first-nations-aboriginals-canada-un_n_4123112.html

Monture, P. (2006). Standing against Canadian law: Naming omissions of race, culture and gender. In E. Comack (Ed.), Locating law (2 ed., pp. 73-93). Halifax: Fernwood Publishing.

Woolford, A. (2009). Ontological destruction: Genocide and Canadian aboriginal peoples. Genocide Studies and Prevention4(1), 81-97. Retrieved from http://aboriginalhealingincanada.com/resources/4-1.1.woolford.pdf

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by | November 3, 2013 · 11:17 pm

Ordeals, witches and Weber.

Trial By Ordeal

Trial by ordeal was a way of medieval trial. According to Kerr, Forsyth and Plyley (1992), traces of it date back to 1118, but had a much more widespread use during the span of 1166 to 1215 in England. Eidleberg (1979) even makes note of its use as early back as the year 500 in Roman and Greek law systems. Trial by ordeal is exactly what the name describes it as; a trial for someone who has committed a crime, that is put through a test, or an ordeal, to determine their guilt or innocence. As it was utilized elsewhere other than England for longer, I believe that it is important to make note that “[t]rial by ordeal was an essential part of the judicial system of the pagan Germanic peoples, and was preserved and further developed following the conversion of these peoples to Christianity” (Eidelberg, 1979, pg.106).  The fact that it was refined and developed more once the Hot IronGermanic peoples were converted to Christianity, easily explains its acceptance in England. An originally pagan judicial way, was embraced by the God fearing Christians of England. Kerr et. al make use of a quote from Morris saying “an instance in which God’s guidance was merely hoped for; it was required for the normal administration of justice. Men were convinced that they could not run a system of justice without securing specific rulings from God” (1992, pg.574-575). Trials were usually made very formal. Somewhat of a religious spectacle, complete with ceremonies (Eidelberg, 1979). Popular ordeals were of cold water, and hot iron. For cold water, a person would be submerged in water. If they floated, it was said that they were guilty, and innocent if they sank. Only some interpretations of this ordeal mentioned an innocent person actually being pulled from the water. Ordeal of hot iron was when a scalding piece of iron was placed into the accused’s hand. They had to hold it for a certain amount of time before being able to drop it. Their hand would then be wrapped up, for about three days. After the three days, if the hand was badly burnt/infected/pussing, then the person was deemed to be guilty (Kerr et. al, 1992).

Witch Trials

In the 17th century, there were three largely famous witch related events in towns in Germany, France, and most well known to us in North America, Salem Massachusetts (Rapley, 2007). The practice of witchcraft was something seen as very serious, with a punishment of death (Goss, 2008). Everything with witchcraft at this time had to do with God and Satan. Witches were seen as people who called on satanic powers, and dark spirits in order to tell the future, or harm other people. These witches were seen as an enemy of the church (Goss, 2008). Very few of the people who were ever deemed to be a witch actually practised any form of witchcraft (Goss, 2008). Alongside that, Goss (2008) also makes note of the massive increase of executions from 1500 to 1700 in Europe.Witch trial In the United States, the numbers weren’t as high. People would be accused of being a witch by their neighbours, or from what I have read, people that just plainly didn’t like or get along with the other person. These people would go to a trial, and luckily, not all were found guilty of witchcraft. There was even a case where the acquitted ‘witch’ was able to successfully counter sue her accuser (Goss, 2008). From all accounts though, it seems that witches were used to help keep people in line. I believe that the use of the witch was the medieval way of creating a moral panic, as a means to promote a solely Christian faith based society. The examples of burning witches at the stake was a way to allow the church to show people what would happen if they strayed from the church.

Weber

Max Weber categorizes legal thought into what is referred to as ideal types.  He looks at the formal vs substantive law systems (rules and procedures vs external criteria), and how they are irrational or rational (Pavlich, 2011).  This leads to the four types of ideals: substantively irrational/ration, and formally irrational/rational.  As Pavlich (2011) notes, nothing will fit perfectly into one type.  But for us, trial by ordeal and witch trials fit enough into one each.  I believe that these two old practices fall under Weber’s formally irrational category of legal thought, and substantively irrational category of legal though, respectively.  Let’s go through the criteria of the formally irrational type, and see what kind of matches can be made, before switching to the other (class handout, Larsen, 2013).

1. “Decision-making rests on magic, prophecy, or revelation.  These means are inaccessible to the intellect.”

I think it is safe to say that this fits with a system of judgement that was entirely faith based.

2. “Formal in the sense that particular rules are to be followed – often in a complex ritualistic fashion.”

Each ordeal had set rules to be followed in how it was to be administered, as well as the religious rituals to go along with it.  “A framework of religious ceremonies including celebration of mass and the reception of communion prior to the actual ordeal” was a standard thing (Eidleberg, 1979, pg.106).

3. “Outcomes of decisions are not predictable.”

Outcomes were wildly unpredictable in medieval times.  Just the nature of the ordeal left too much up to chance, or even just the simple physics and nature of the ordeal.  In modern science, Kerr et. al (1992) applied scientific tests to the ordeals, and only the ordeal of cold water is readily predictable. This was done by comparing a persons body density with that of water.

As stated, I believe that the criteria given for the substantively irrational type fit well for the witch trials (class handout, Larsen, 2013).

1. “Lawmakers and law discoverers refer to one or more external criteria, but do not follow general rules or norms.”

It could be argued that the prosecution and execution of people claimed to be witches turned into the norm, but I will argue that it was not.  These people who were deciding that these witches were real, and needed to be dealt with, definitely were using external criteria, and not following general, or normal guidelines.  Religious views, wild emotions go the better of people in power to create and enforce laws.

2. “Decisions are made on an ad hoc basis, with no formal efforts to maintain consistency.”

From what I gathered, there was no consistency.  Claiming people were witches,  charging people with witchcraft, and even holding them were all very inconsistent, and not much like legitimate judicial trials and arrests.

3. “Each concrete situation determines the decision.”  &  4. “Outsiders cannot predict the outcome of like cases”

Each case was looked at independently, and because all the people were different, and being accused differently, there was a lack of uniformity which didn’t allow for any sort of consistent judgments from case to case.

Interestingly enough, Rapley (2007) relates witch hunts of then, to terrorist hunting of now, which can start a whole new conversation; what systems in place today, still fit into these almost barbaric way of deciding on how to enact a law?

Eidleberg, S. (1979). Trial by Ordeal in Medieval Jewish History: Laws, Customs and Attitudes. Proceedings of the American Academy for Jewish Research, 46/47, 105-120.

Goss, K. D. (2008). The Salem Witch Trials: A Reference Guide. Westport, Connecticut: Greenwood Press

Kerr, H.M., Forsyth, R. D., & Plyley, M. J. (1992). Cold Water and Hot Iron: Trial by Ordeal in England. The Journal of Interdisciplinary History, 22(4), 573-595

Pavlich, G. (2011). Law & Society: Redefined. Ontario, Canada: Oxford

Rapley, R. (2007). Witch Hunts: From Salem to Guantanamo Bay. Montreal, Canada: McGill-Queen’s University Press

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by | October 29, 2013 · 11:21 pm

Is Snowden A Hero Or A Criminal?

Edward Snowden, a former CIA technical assistant who has claimed responsibility for leaking information that reveals that the US intelligence community obtains and keeps information on American citizens accumulated off the Internet without ever issuing a search warrant or opening an investigation into that person. On June 14, 2013, the United States federal prosecutors charged Snowden alleging violations of 18 U.S.C. ¨ 641 (theft of government property), 18 U.S.C. ¨ 793(d) (unauthorized communication of national defence information), and 18 U.S.C. ¨ 798(a)(3) (wilful communication of classified communications intelligence information to an unauthorized person). Each crime carries a maximum sentence of 10 years in prison. Snowden fled the United States prior to the publication of his disclosures, first to Hong Kong and then on to Moscow, where he was granted political asylum within Russian borders by the government of Russia at the end of July 2013 and where he now resides at an undisclosed location. When asked about his motive behind becoming a whistle-blower, Snowden replied:

“When you’re in positions of privileged access like a systems administrator for the sort of intelligence community agencies, you’re exposed to a lot more information on a broader scale than the average employee and because of that you see things that may be disturbing but over the course of a normal person’s career you’d only see one or two of these instances. When you see everything you see them on a more frequent basis and you recognize that some of these things are actually abuses. And when you talk to people about them in a place like this where this is the normal state of business people tend not to take them very seriously and move on from them. But over time that awareness of wrongdoing sort of builds up and you feel compelled to talk about. And the more you talk about the more you’re ignored. The more you’re told it’s not a problem until eventually you realize that these things need to be determined by the public and not by somebody who was simply hired by the government.”

Clearly, Snowden had given up his well-paid employment of $200,000 per year and his privileged life because he had a moral obligation to allow the public aware of the abusive (immoral) activities of the government even if it meant to break the “law.” In order to determine whether Snowden is a hero who needs to be awarded or a criminal who needs to be punish, lets looks at the two most dominant legal philosophical prospective, Legal Positivism and Natural Law.

The famous Hart-Fuller debate is an exchange between Lon Fuller and H.L.A. Hart on morality and law, which demonstrated the divide between the positivist and the natural law philosophy. One of the issues at stake in the Hart-Fuller debate was how the post-Nazi West German legal system should respond to heinous acts committed during the Nazi period and purportedly authorized by Nazi law. Being a positivist, Hart argued that because these acts, however reprehensible, were lawful at the time they were committed. Any reasoning suggesting that Nazi laws were not valid laws because they were morally detestable would confuse what the law is with what the law ought to be. For Hart, law is the command of the sovereign backed by the threat of punishment. On the other hand, being a natural law theorist, Fuller maintains that law and morality cannot be divorced from each other and that the post-war courts were entitled to hold Nazi rules not to be law. To call the Nazi system legal and to call its rules laws was a false description of what they were. They were instruments of an arbitrary and tyrannical regime.

If this debate is to take place today, Hart would argue that Snowden’s justification in breaking the law based on morality is invalid. The law forbids acts of espionage and theft of government property; thus, the sovereign power (the US Government) has to grant Snowden punishment as stated by the law. Here the question of morality is irrelevant as morality is subjective and therefore is an obstacle in measuring law. On the other hand, Fuller would argue that Snowden is innocent because the law is immoral as it prohibits moral entrepreneurs, such as, Snowden, revealing the unjust practices of the government agencies to the public.

Ultimately, the question that we should be asking is: which approach to the law leads to greater benefits to the society? Do we as a society benefit from breaking laws that are unjust? After all, laws are made to allow society to flourish though order. Law is an expression of society; therefore, laws should reflect the values of the society. Morality is a set of inherent values of a society. Divorcing morality from law is an artificial concept that leaves a society in the wilderness as the society loses its direction. Whether a society is governed by a democratically elected government or a dictator, ultimately, a small number of people decide which rules should govern the rest of the society. History tells us that lawmakers, whether elected or unelected, often make laws that are detrimental to the wellbeing of the society. If we’re to accept such laws just because they’re laws, then the status quo, no matter how detrimental it is to the social wellbeing, will not be challenged and changed. It would leave the society stagnant and slow the process of progress. By breaking and challenging an unjust law, Snowden has taken the first step towards an amendment. For that reason alone, he’s a hero.

Furthermore, positivism inhibits justice. Imagine that Adolf Hitler (chancellor of Germany during the Second World War) was still alive and not found guilty for killing millions of innocent people simply because he was acting in accordance with the brutal and oppressive law. If this was true, how would the society consolidate the numerous victims of World War II? Rational thoughts dictate that oppressors should be punished not only to establish justice but also discourage any potential oppressors to commits such heinous crime in the future. Anyone disobeying an oppressive law of the Third Reich would generally be looked as a hero. In Snowden’s case, he disobeyed a law that is oppressive. Any law that allows the “Big Brother” to diminish civil liberty by unjustly spying on its population is not worthy to be considered a law. What Snowden did is comparable to a Nazi soldier refusing to carry out an order to shoot at innocent people. Therefore, Edward Snowden is a hero.

Sources:

Palvich, G. (2011). Law & Society Redefined . Toronto: Oxford University Press.

RT. (2013, October 1). New Snowden leak: NSA is monitoring the Internet histories of millions of Americans. Retrieved from RT News: http://rt.com/usa/nsa-leak-internet-history-549/

Yin, T. (2013, July 15). Is Edward Snowden Guilty of US Espionage Charges? Retrieved from Jurist: http://jurist.org/forum/2013/07/tung-yin-edward-snowden.php

Yost, P. (2013, June 22). NSA leaker Edward Snowden charged with espionage, theft of government property. Retrieved from National Post: http://news.nationalpost.com/2013/06/22/nsa-leaker-edward-snowden-charged-with-espionage-theft-of-government-property/

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by | October 2, 2013 · 10:29 pm

Critique of the Quebec Charter of Values

Is there such a thing as an unjust law? Should a law be followed if it is not fair? So often these are seen as merely theoretical or philosophical questions but now these are questions that religious Quebecers, with their jobs and livelihoods on the line, will have to ask themselves if the Charter of Quebec Values passes into law.

Using Fuller’s “internal morality” approach to say that the lawmaking process will not allow unjust laws to be made is problematic. It is possible for lawmakers to create laws that fit within the standard of Fuller’s moral minimum. These circumstances are made possible when the lawmakers have the majority of the society in favor of unjust rules which are used to subjugate less powerful, minority groups. We have seen this throughout history – in racial segregation days in the United States, in South African apartheid and in Nazi controlled Germany. At the most critical time when a small population needs the protection of the law Fuller’s approach is not capable of giving a proper critique of these types of laws if the government implements them properly. In the case of the Charter of Quebec Values, the proposed law still fails King Rex’s test but Finnis has a much stronger case to oppose it.

The Charter of Quebec Values passes the majority of Fuller’s rules.  The charter contains rules and cases are not judged ad hoc. They are also publicized clearly and do not require subjects to act beyond their power to follow them. Subject will have time to orientate themselves to the new rules since they are quite easy to follow. Where Fuller would have issues with the proposed law is in the details. There is too much subjectivity in what is acceptable attire which creates uncertainty for citizens trying to follow the law. There is also confusion in that this legislation seems to contradict sections 2(a), 2(b) and 15(1) outlining the fundamental rights of religion, expression and equal protection in the Canadian Charter of Rights and Freedoms.

Finnis is able to give a more damning critique of the Charter of Quebec Values and it conflicts with his basic premise of that the law should advance individual well being. Clearly this charter has a xenophobic background as it negatively impacts non-Christian religions much more than it does the majority Christian population. It promotes the historically Christian Quebec as under the guise of promoting secularity and in doing so violates key tenets of Finnis’ template of well being such as promoting sociability and the ability to find one’s own spiritual experience. These violations conflict with what Finnis describes as each person having “values that lie at the heart of our human morality” (Pavlich, 34). Much like we don’t have to don’t have to reflect on why something is obviously bad like when we see a sign that says “Beach for White’s Only”, because we have the feeling in our gut already that something is not fair or just. I don’t think any argument of Fuller’s can top a feeling of a shared, innate knowledge of wrongness.

I believe this topic is more complicated than basing the decision on the freedom of religion and expression solely. The combating of patriarchal religions has much to do with the more targeted banning of the hijab in France. The French government is put in a no-win situation as they try to liberate women from being forced to wear the hijab while at the same time fighting women who want to wear it. I believe Quebec is failing to learn from France’s mistake and getting involved in this matter. It is a difficult question that perhaps Quebec should not try to answer with this type of legislation. Overall I don’t believe the Quebec Charter of Values has the force of law according to either Fuller or Finnis’ perspective and will not be accepted by parliament as it conflicts with the Canadian Charter.

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by | September 22, 2013 · 10:22 pm