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LAWS 1000 (529)
Jane Dickson (108)
Lecture 2


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LAWS 1000
Jane Dickson

Lecture 2 Legal Studies LAWS 1000-C LAW IN SOCIAL LIFE Required readings: I. Course Reader, 1(a)-(c). Case: Aman sexually assaults a passed out woman at a bush party while intoxicated. He wakes up the next morning • next to her dead body. • What do you charge him with and how do you defend him?” Charge: • Man slaughter? • Interfering with a dead body? • Moral obligation causing death (moral obligation vs. legal obligation? What does morality have to do with law?) • Sexual assault — She did not consent (she could not consent if unconscious) [consent is the most important factor in sexual assault case; most sexual assault trials break down to “her word against his”] • Perjury (forswearing):Act of swearing a false oath or of falsifying an affirmation to tell the truth, whether spoken or in writing, concerning matters material to an official proceeding. (lying to the Court) Defend: • No evidence that she was not already dead before he had intercourse with her. The woman might have died from drinking too much (she was unconscious) No evidence that she did not wake up first (he woke her up) and give consent, because she is dead • He did not intend to murder her (it was an accident — man slaughter vs murder) • • No solid, reliable evidence — man was intoxicated, girl was unconscious/dead Actual charges: • R v Leduc case: *R = Regina = Crown • Charge: Interfering with a dead body. • He refused to plead guilty. He claimed that he did not know that she was dead — he thought she had just passed out (therefore, sexual assault). However, sexual assault has worse legal consequences than tampering with a dead body; therefore, he pleaded guilty to indecently interfering with a dead body. • Self-induced Intoxication is NOT a defence - Criminal Code of Canada: Section 33. 1 (1) It is not a defence to an offence referred to in subsection (3) that the accused, by reason of self-induced intoxication, lacked the general intent or the voluntariness required to commit the offence, where the accused departed markedly from the standard of care as described in subsection (2). - Ex. Regina v Daviault case [1994] — Supreme Court of Canada decision on the availability of the defence of intoxication for "general intent" criminal offences. The Leary rule which eliminated the defence was found unconstitutional in violation of both section 7 and 11(d) of the Canadian Charter of Rights and Freedoms. Instead, intoxication can only be used as a defence where it is so extreme that it is akin to automatism (the performance of actions without conscious thought or intention) or insanity. - Daviault was arrested and charged for sexual assault. - Daviault testified that prior to the event he had drunk over seven beers at a bar, and after drinking some brandy at the woman's house he has no recollection of what had happened until he woke up naked in the woman's bed. - At trial, he argued that during his blackout he was in automatism-like state brought about by intoxication; therefore, not aware of his actions. The trial judge found that Daviault was unable to form a general intent to commit the crime and therefore could be acquitted. - The Quebec Court ofAppeal overturned the acquittal ruling that intoxication to the point of automatism cannot negate the mens rea requirement for a ‘general intent’offence (i.e. offences where mens rea can be implied from the commission of the act). Lecture 2 Legal Studies LAWS 1000-C - The issue before the Supreme Court was whether "a state of drunkenness which is so extreme that an accused is in a condition that closely resembles automatism or a disease of the mind as defined in s.16 of the Criminal Code constitute a basis for defending a crime which requires not a specific but only a general intent?” - Within months, Parliament passed an amendment to the Criminal Code as section 33.1 under the heading of Self-induced Intoxication. WHAT IS LAW? What is law’s function in society? • U-hold moral authority/order (authority of each individual)? NOT EXACTLY — because people have different morals. - Authority of the majority? - Tyranny of the majority/Tyranny of the masses — phrase used in discussing systems of democracy and majority rule. It involves a scenario in which a majority places its own interests above those of a minority group, constituting active oppression comparable to that of a tyrant. Ex. Harpers government — anti- tobacco law/smuggling law directly targeted towards mohawk people living along the Canada/US border. • Maintaining the status quo? - Status quo: the current situation; the way things are now. - Economic model in Canada — Capitalism. - Capitalism: an economic and political system in which a country's trade and industry are controlled by private owners for profit, rather than by the state. - Capitalism relies on INEQUALITY in order to keep us all moving (need means of production and people to fuel the means of production — labour workers.). - Status quo in capitalist countries, therefore, requires inequality. - If only 10 people in the country can do a job, they will make a lot of money. If 10,000 people can do the job, they can be paid dirt — Proletariat vs Bourgeoisie. - Bourgeoisie: the upper class, typically with reference to its perceived materialistic values or conventional attitudes. - Proletariat: workers or working-class people, regarded collectively (often used with reference to Marxism). - Supply and demand. Ensure order in society for predictability (single most important thing law provides for us), stability, safety? • -** Order does not work too great in society. Law favours a certain type of order. - Police force would be a regular force during strikes ex. when people began to unionize to demand fare wages, safe workplaces, pension, benefits. During strikes, Bourgeois stay in their office. Police physically and in every other way separates the rich from the proletariat mass (poor). Perfect example of inequality in capitalist countries. • WE WANTTHE LAW TO PROVIDE JUSTICE - …When we feel we have been harmed or somebody caused a problem to us. - In order for the law to provide justice, we need a way to execute law — we need a set of structures and functions (We need an idea of what law looks like). What are the structures through which it executes those functions — that is, what does law look like? • Fundamentally, law is about coercion (the practice of persuading someone to do something by using force or threats). Max Weber: • “An order will be called law if it is externally guaranteed by the probability that coercion (physical or psychological), to bring about conformity or avenge violation, will be applied by a staff of people holding themselves specially ready for that purpose.” • Weber was a German conflict theorist. He was really interested in the relationship between law and capitalism. • He saw law as playing a very pivotal role in the rise of capitalism in society and in the rise of capitalist economies. • Lecture 2 Legal Studies LAWS 1000-C • He was interested in studying the extent to which people actually go along with the law — what makes people conform to legal order? Even when we disagree with laws, we tend to go along with them. Why do we do that? Is it out of fear that the full repressive powers of the state will be brought to bear against us if we stand up against the law that we do not agree with? Is it because we want to conform? Or is it because we actually do agree with most of the laws? • Weber was intrigued by conformity and why we do that. He was especially interested in why people go along with laws when they do not have to. • Ex. Why do we not just walk into the store and steel what we want. Fear and morals. Consequences for actions? But if you are good at steeling, you might not get caught, so why not shop lift? We are raised with certain fundamental ideas about right and wrong: do not take things without paying for them… What is most effective in making us behave is not necessarily that we have this incredible moral compass that is always pointing in the right direction — It is that we have internalized this feeling that we are being watched, that somebody will see. Never underestimate the power of surveillance. We have a fear of the consequences of law. • Conformity is over-rated. Too much order can be a bad thing. Just like too much of any good thing can be a bad thing. We should be questioning and challenging; Ex. “No, I will not sit at the back of the bus because I am black…” • Weber was very much interested in the relation between coercion and conformity, but he was also very interested in what he saw as two key dimensions of the law — formality and rationality. - He referred to formality as the employment of a set of standards, criteria, logic in the legal system.Alegal system reaches a level of formality when it has a set of rules and processes that it has developed internally and which apply essentially only to it. - Rationality is found in a legal system when that legal system uses criteria such that decisions made in one case will apply to all similar cases. Ex. in Canadian law, Weber would have been really happy with our level of rationality because we have a system based on stare decisis (the legal principle of determining points in litigation according to precedent), where courts stand by the decided case. Weber believed that laws become fully rational when legal rules are applied fairly and equally to equally situated people; when those legal rules are clearly situated and administered without preferential treatment to anyone. • But have we established full rationality in Canadian society? You decide. Karl Marx: • Law as a “pervasive legitimizing ideology” that masks the relationships of exploitation that are integral to capitalism. Pervasive: (especially of an unwelcome influence or physical effect) spreading widely throughout an area or a group of people. • Rejected the notion that the “best possible society can be realized through state-mediated justice”. - Marx was not very interested in law. He was interested in the material forces in history and how those things shape society/how they shape class formation. How they shape the economy — the mode of production.And how those things in turn influence social and political life. - Marx was not the biggest fan of capitalism. He felt that capitalism fundamentally was a form of concealed domination over the worker. - He felt that law plays a role in reinforcing that domination. In reinforcing the relationships that are central to capitalist order. - Instrumental marxism argues very clearly that the state exists to serve the interest of the ruling classes. - We know that the state and the laws that the state creates cannot only ever work in the interests of the ruling class. Every now and then, you got to throw everybody else a bone, because if you do not an uprising is possible, descent is likely. - But for instrumental marxists, when you are talking about law, you are talking about something that is bound up very closely with the interests of the state — the maintenance of the status quo. Because of that, the law is going to play a role in maintaining relationships of exploitation that are central to the capitalist economic form. Where people come from within that structured inequality — that informs capitalist societies that really affects how they see that order (Marx). Or as Marx put it: “it is not the consciousness of the people that determines their existence, but their social existence that determines their consciousness.” Where you start (lower, middle, upper class) has a lot to do with how you think the world works. Marx really believed that state mediated justice (when the state is responsible for the courts, legal system, the laws, the maintenance of order, the control of Lecture 2 Legal Studies LAWS 1000-C the status quo. when they decide which morality is going to be in place) is not going to be possible because the state is too bound up in a very specific set of interests to truly achieve justice. In some ways he was right. - Prominent in his idea about law — coercion, force, order. E.Adamson Hoebel: • “Asocial norm is legal if its neglect or infraction is regularly met, in threat or in fact, by the application of physical force by an individual or group possessing the socially-recognized privilege of so-acting.” • Legal anthropologist • He believed in his study of Western law systems and non-Western law systems that, in the end, law might look different in different societies/cultures, but for the most part, law always does the same kinds of things through the same kinds of structures and processes. • Because of that, he thought that he could take the Western concepts of law that he is familiar with and can walk into the Cheyenne nation and use those western concepts to find Cheyenne law. • His theory of law is based on that work that he did with indigenous nations. What is interesting about his work? He was able to locate within Cheyenne society, the same kinds of structures and processes that he knew and was familiar with from Western law (Ex. Soldier society is the police. the chiefs are the court). • Would Hoebel have seen state-mediated law in the Cheyenne nation as much more likely and possible than Marx would have seen in the European context that he studied? Maybe Donald Black: • “…law is essentially governmental social control” that is, “the normative life of a state and its citizens such as legislation, litigation, and adjudication.” • Different societies will give rise to different laws & legal structures, that is, law is a “quantitative variable.” • Idea about law — coercion, control (especially law is governmental social control). • Clear connection between the society and the kind of legal systems that crop up in that society. Societies create a particular kind of law and legal structure. • He said different societies will produce different types of structures, but like Hoebel, he believed that there would be a lot of commonalities across the jobs that we expected the law to do. Black also saw law as a quantitative variable. By this he means that you will find more law in some kinds of • societies than you will in other kinds of societies (a very large complex society will have more law than a smaller, simpler society [simple in terms of political organization] (smaller societies often have very few laws)]. • Does that mean we have more/less crime/conflict? • Black — no matter what kind of society you are looking at/no matter what legal structures, courts, tribunals, for the most part will fall within at least one (and sometimes more) of the styles of social controls listed below. • Posited four styles of social control 1. Penal: punitive, law-breaking leads to apprehension & punishment. (Not always true, but this is a theory) 2. Compensatory: crime & conflict violate ‘social contract’& leads to debt and restitution to redress the debt. (when you join a society, you agree to live by its rules. This is what the social contract tells us. If you violate the social contract, then you must make good on any of the harms that you have caused by the violation of the social contract.) 3. Therapeutic: medical model, crime/conflict is a result of abnormality which requires help or treatment. (people commit crimes because they are unwell/in a state of imbalance. Therefore, to get rid of crime/ conflict from society, do not need to punish people — need to find out what is wrong with them and fix it. 4. Conciliatory: crime/conflict is a social conflict between individuals which requires resolution; responsibility for conflict is irrelevant. (Crime/conflict is a breach of social relationships; therefore, goal is to try and bring the parties to the conflict to some measure of resolution) - Penal and compensatory systems are controlling systems - Therapeutic and conciliatory systems are remedial systems. - In Canadian legal system, we have all four systems — penal, compensatory, therapeutic, and conciliatory. SUMMARY 1. Weber: Focused on question of conformity • Conformity and Why do people conform? 1) Fear of the repressive apparatus of the state (cops, getting charged, going to court, going to jail). 2) Because they just believe its the right thing to do (all sorts of external forms of Lecture 2 Legal Studies LAWS 1000-C coercion if you violate the behavioural norms of society). 3) The most powerful forces are the rules that we have internalized (people do not break the law because they think that breaking the law is wrong — internal sense that the law is good, the law is correct, the status quo is fine, and we are, therefore not going to go against it. We are conditioned in this way since day 1. • Formality & rationality in the legal system • Formal: clearly defined system • Rational: laws are applied in a uniform way and fairly — applied equally to equally situated people • Rational — fair; ex. rich people can pay off fines easily, poor people cannot. Court gives time to pay off fine and time + default. Court judge asks “how long do you think it will take you to pay off this fine?” If the charged person does not pay it off in time and they do not go back to court to ask for more time, they will go to jail. For rich people fines are like a tax for wrongdoing — they pay it and then carry on. Rational legal system apply clear rules fairly to equally situated people • • There can be a formal legal system that is not rational 2. Marx: relationship between law and capitalism • Capitalist Societies create a unique form of law and legal system which reinforce relationships of inequality • Interested in capitalism and how various structures in society implicate different approaches to social control • Marx says if you live within a capitalist economy, capitalist economies produce very particular types of law and legal structures. They produce legal structures that are very effective at reinforcing the status quo. In capitalism, the status quo is fundamentally a set of exploitive relationships because relationships of exploitation are absolutely crucial to the success of the capitalist endeavour. 3. Hoebel: law is product of society • All societies will create rules & structures for responding to rule-breaking & rule-breakers • Discussed the relationship between law and society through the work that he did using western constructs of law to research legal systems and structures within non-Western societies/cultures. • He told us that you can transfer this Western ideas into non-Western settings, because virtually all societies no matter where they are situated, no matter what the cultural makeup, no matter what the nature of the social relationships, by the very nature of a society being a place where people come together to live cooperatively, you will require some kind of rules and structures for responding when the rules are broken and consequencing those who break the rules. • Four functions of law that you can find in every society if you are looking at law. (See below) 4. Black: law as quantitative variable • Complex vs. simple societies/formal vs. informal law • Different measures of law visible in different types of societies • Very simple, cohesive, coherent societies do not need a lot of law. They do not need intensively beaurocratic legal systems. Because people understand each other and the rules. They are prepared to love by those rules and as long as everybody knows the rules and the rules are fairly simple and straightforward and they adhere to them, all you will need is a very basic rudimentary type of system that can respond when mistakes are made or conflicts arise. • In a society such as ours where we have people from all kind of different backgrounds and all kinds of cultural and social groupings, who may have different ideas of right and wrong and appropriate behaviour; where relationships are every complex and predictability can be quite low, you need much more law and a much more sophisticated system for regulating relationships. • Four styles of social control (can have more than one — overlapping styles of social control): 1. Penal (punitive system) 2. Compensatory (violation of someone’s possession such that restitution is required) 3. Therapeutic (medical model — people commit crime because they are unwell / in need of help) 4. Conciliatory (fault it irrelevant; crime is a violation of social contract and what you really need to do is bring the parties together to some form of resolution, predominately a private form of resolution) IS THE RELATIONSHIP BETWEEN LAW AND CRIME INVERSE? Lecture 2 Legal Studies LAWS 1000-C • Example: Hoebel and the Cheyenne Nation (above): Black also saw law as a quantitative variable. By this he means that you will find more law in some kinds of societies than you will in other kinds of societies (a very large complex society will have more law than smaller, simpler society [simple in terms of political organization] [smaller societies often have very few laws]). Does that mean we have more/less crime/conflict? • Not necessarily! • Law in homogeneous and heterogeneous societies • Formal v. informal social control Formal versus Informal Social Control: • Formal Social Control: Large, complex, heterogeneous societies. • Informal Social Control: Smaller, simpler, homogenous societies. - Less law (ex. cheyenne is smaller, simpler society with less law); therefore, more crime? Not necessarily. More social consequences in small communities because everybody knows each other (gossip works in a small town as a sanction — public shaming [poop throwing]); therefore, less crime in homogeneous communities. Violating relationships and hurting other people has more consequences. However, people share same values and morality, want same kind of rules and order, … the people who don’t, decide to leave (and go to the big city, where you don’t know everybody). People in large, complex societies do not agree on everything, people do not necessarily have a connection, people do not depend on each other. Big cities are transient (lasting only for a short time; impermanent) societies. Large, complex, heterogeneous societies are, therefore, more prone to crime. Law is about regulating relationships. - Donald Black used to study small Welsh villages, and he said that one of the most effective sanctions in controlling behaviour in this village was that if somebody stepped out of line, they would walk down the main street of the community and people would throw cow poop at them/stuff hay in their chimney so their houses would fill with smoke. — form of public shaming. • Fundamentally the differences that we see in law as it exists between homogeneous and heterogeneous societies is the degree of difference between formality and informality. Formality is needed in large complex societies because one of the things that is fundamentally lacking in these societies is trust. versus In small communities, of course you are going to admit that you did something wrong, these people know you. they know that you are a good person, therefore it is safe to admit guilt. th
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