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LS 101 Final Exam Terms, Questions

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Legal Studies
LS 101
Susan Brophy

Bolded Terms: 1. Person as a metaphor: Facts The term „legal person‟ has no true definition – person as a metaphor depicts the ambiguous definition of what counts as a person in law. As a result, the vagueness of a legal person allows the judge to exercise judicial discretion and ultimately manipulate the provisions of a legal person. Person as a metaphor also assumes that the biological link has no definite relationship with what is considered as human – not humans are considered person and –to a certain, controversial extent- some nonhumans are considered as persons. Metaphoric conceptualizations of a legal person include the human nonperson, the nonhuman person, and the borderline human. Issues The problem with „person‟ as a metaphor involves the ability in which judges are allowed to exercise judicial discretion in particular laws that do not specify its object as a human being. As a result, judges can thus manipulate the definition and provision of a legal person depending on his or her desired outcome, creating inconsistency and –some may argue- unfair ruling. Because the biological link cannot be assumed in order for one to be considered a legal person, this can cause a controversy regarding the morale of the law. The issue is largely developing due to the fact that the provisions of personhood is extending to even nonhuman persons like corporates while it can exclude borderline humans like fetuses. Relevance Person as a metaphor uses law‟s expressive function to communicate who “counts” as a legal person and (to some extent) a human being (for example, borderline fetuses). Person as a metaphor is also heavily related to law in general because by defining the definition of a legal person, it defines scope of law regarding who/what possesses legal personality and can therefore have the right to be provided and protected by the criminal and civil laws. 2. Law‟s expressive function Facts Law acts as an expressive function as it constructs and communicates the definition of „legal person‟ who possesses legal personality. Law also acts as expressive function as it is an expression of the norms and values of society which in turn constructs who has the right to legal personality. Law shapes behaviour while reflecting social ideals. Issues Because law reflects social norms and values (which is constant in nature), the scope of law is never truly predictable or consistent. What may be considered legal today may be illegalized tomorrow; therefore enabling a sense of unpredictability in the legal system. Law‟s expressive function as a reflection of society as well as a legal communicative tool also renders an unclear distinction between issues in a legal context and issues in a social context. Relevance Law‟s expressive function relates to the broader scope of law as it strives to both represent and communicate social norms while remaining objective to the various opinions and differing norms of society. Law‟s expression function also relays to society the ambiguous definition of personhood . 3. Legal fiction Facts Legal fiction is of legal construct. It is a product of failed judicial references to philosophical arguments as well as an inconsistent application of jurisprudential theories in resolving problems. Example of legal fiction in relation to the definition of personhood includes the human nonperson, the nonhuman person, and the borderline human. Issues Because legal fiction is a product of judicial interpretation, it can in turn be a subject to interpretation by players of the court. Players can thus manipulate the definition of, for example, personhood to achieve a particular outcome. Also, because legal fiction is a product of failed philosophical support and is a legally constructed assumption based on jurisprudential theories, legal fiction is open for contradiction, especially when it creates an inconsistency in the legal system. Legal fiction, which is related to the common law, has an ability to shape specifically controversial laws as it also relates to judicial activity. Relevance Legal fiction makes us question the power of judicial interpretation and whether or not judicial activity is present in the legal system today. 4. Human nonperson Facts The human nonperson is a legal fiction, included in one of three areas of contested personhood definitions. The others are nonhuman person and the borderline human. The human nonperson is a human without recognized legal personality, therefore coined as the term “human” “nonperson”. An example of the human nonperson are the black slaves in American history. The human nonperson were also recognized as humans that could be tried under criminal law but not be protected under the provisions of civil and criminal law. Issues Because the biological link is not assumed in a legal person, the human nonperson holds controversy and questions the morale as well as the ultimate goal of justice and equity of the legal system. It is an example where the legal system is particularly flawed in its biased judicial discretion and ambiguous statutes that do not specify the rights of a human. Judges that have stressed the humanity of slaves had also failed to apply their views in statutes. They recognized that it was a felony to kill slaves but did not recognize slaves as a legal person. Finally, slaves as human nonperson were subject to a double standard. They were seen as nonperson in statutes regarding their civil rights and criminal law provisions; however, they were denied the identity as a nonperson if they committed a crime. Relevance The human nonperson leads to the question regarding the dangers of legal fiction and judicial discretion. Historically, judges were biased against the African Americans and although it would have been within their power to exercise sympathy and recognize the legal personality on the slaves, they manipulated the metaphoric nature of a legal person to forge the desired outcome. It also relates to the possibility how we can use legal fiction to change law and fulfil one‟s agenda. Due to the flexibility of the law and its core reliance on judicial discretion, it causes us to doubt the fairness of our legal system today. 5. Dehumanization Facts Dehumanization is the deprivation of someone‟s basic rights that are shared by humanity. These rights are recognized as respect, dignity, and civility. Dehumanization is also central to genocide (for example World War II‟s concentration camps, Rwanda, etc.). It can be used to ridicule a human being, strip them away of dignity and respect, and deny them of their status as humans. The result of dehumanization is more than merely physical harm, but also emotional and psychological as well. Issues The major issue with dehumanization involves the techniques that are involved. Animalization and infantilization are examples of dehumanization in which humans are treated not as humans but as animals. Dehumanization can cause a great deal of psychological and emotional stress that can severely damage a person‟s ability to contribute to society in the future. Another issue with dehumanization is the fact that it is very much in present in the world today. Although the Universal Declaration of Human Rights was constructed nearly 60 years ago, dehumanization has taken in another form such as human trafficking, cheap labour, and treating wives as property. This furthers its severity and causes us to question whether or not dehumanization can ever be solved. Relevance Dehumanization relates to the development of the Universal Declaration of Human Rights. It was a document developed by the international community in 1948 after the horrors of Nazi concentration camps were discovered. It legitimized the respect and dignity required of every human being. Dehumanization also relates to the broader scope of law in its aspect of person as a metaphor. Dehumanization is the product of not recognizing humans for their humanity and biological link, a concept similar to the issues of person as a metaphor. The dangers of person as a metaphor is that it ultimately leads to dehumanization, just as slaves (who were human nonpersons) were deprived of their human rights. However, the horrific aspect of the dangers involves the fact that due to legal fiction, dehumanization can be in a sense legal if the courts fail to recognize the value of being human to be allowed to possess legal personality. 6. Distortion of human rights Facts The foundational basis of human rights involves the notion of what it means to be „human‟. Distortion of human rights, specifically, suggests the shift away from the general understanding of human rights. Distortion itself is the product of the gap between a legal person and a living human being. An example of the distortion of human rights would be the recognition of certain constitutional rights for large corporations. Their rights involving intellectual property, free speech, and legal barriers are slowly becoming more recognized through law. Issues The issue of distorted interpretations of human rights provisions revolve around the fact rights are slowly extending to provide to non-humans, such as animals, plants, and inanimate objects. The original objective of human rights was to provide for specifically humans, but even the objective is being contested. Secondly, distortion of human rights is also shifting accountability of specific entities, specifically corporations, to something else. Distortions are slowly benefitting corporations more and more. This causes a major problem regarding the remaining tools left in society that can be used to protect people from corporate power. Relevance The ugly truth of the distortion of human rights relates to the gap between a legal person and a human being. Because the legal system has yet to acknowledge their relationships, nonhumans such as corporations can now find a means to be included in the provisions of human rights despite the fact that they are not humans. Distortion of human rights can also relate to the possibility of dehumanization when the focus of granting human rights is shifted to granting nonhumans human rights. The irony revolves around the fact that law acts as expressive function and the legal system aims to protect society and its individuals, however the main object –humans- are always subjugated to the possibility or actual deprivation of rights as those, in a more conflict theorist approach, with more money. Distortion of human rights also relates to the blurring of the human. Human itself has an ambiguous definition as who counts as a human being must first be answered in order to acknowledge who then receives the rights. Borderline humans are largely contested to not be humans, and that itself is a controversial topic. Secondly, what makes an entity human is also a contestable topic especially with the development of technology. 7. Asset seizure Fact Asset seizure is when the government or state confiscates materials (or assets including vehicles and cash) under their discretion. Confiscated materials are usually related to the crime itself and are usually used as evidence. Asset seizures are usually used during drug raids. Issues The issue with asset seizure revolves around the community‟s suspicion as a means of funding the police rather than seizures of important evidence use to convict a criminal. Police had previously been found seizing vehicles from citizens who are unable to retrieve back their asset afterwards. Due to the source of income provided by asset seizures, police have been suspected of racial discrimination, profiling, and random raiding where they have no significant evidence to support their seizures. This adds to the growing distrust between the police and community. Relevance Asset seizure is a relevant to the War on Drugs as it is enforcement means to “crack down” on drugs. However, because of its abuse, asset seizure has become one of the several reasons why the War on Drugs can never truly be won. Enforcement abuse and corruption has caused the communities to distrust their police and ultimately not cooperate with the campaign to stop the drug market. 8. “Just say no” Facts “Just say no” is a campaign against drugs developed by Nancy Reagan during the American Age of War on Drugs. It was an advertisement targeting children to „just say no‟ to drugs as a means to prevent drug use and decrease the rate of addicts. The campaign was successful in increasing awareness of drug use and ultimately established a correlation with the mildly decreased rate of drug use and the youth. Issues Although “just say no” was mildly successful in bringing awareness to the community, the issue with the campaign revolves around the fact that it was a costly campaign with mild successful and ultimately its just as mild impact on the rate of drug use. Just say no soon became a mere catchphrase rather than an influential campaign to stop drug use amongst the youth. Secondly, “just say no” also failed to recognize several other social issues that were happening back then, including poverty, unemployment and family problems. Although they were social issues of their own, they were also social factors that had a part influencing children to use drugs. “Just say no” did not acknowledge the possible sources to drug use and therefore was not unsuccessful. Relevance “Just say no” is an example of one the many ignorant ways that the American government had attempted to decrease drug use rates by ultimately analyzing the problem regarding drug use. It failed to recognize that the possible source of drug use would be unresolved social issues and governmental technique that have not made the victory over the war on drugs easy. 9. Disparity in sentencing Facts Disparity in sentencing relates to the imposition of mandatory minimums and the 100:1 ratio approach. Criminals convicted with drug possession have been sentenced with a minimum of 5 years despite having to only possess a small amount of drugs. The 100:1 ratio standard is the regulated treatment of person possession 5 grams of crack cocaine as a someone with 500 grams of powder cocaine. Despite the disparity between the two situations, harsh sentences have continued to be sent out as a governmental attempt to crack down on drug use. Issues The problem of disparity in sentencing is its one size fits all approach. It prevents judicial discretion in America to sentence a punishment more proportionate to the seriousness of the crime. Disparity in sentencing has also caused a dramatic increase in incarceration rates – it throws people that do not necessarily have to be in jail into prison. Due to the hike in incarceration rates, society is suffering from increase of taxation to fund the number of people being thrown in jail. Racial discrimination can also be reflected in disparity in sentencing. Although studies have shown that more Caucasians use crack cocaine than African Americans; however, 90% of crack defendants are African Americans. Relevance Disparity in sentencing relates to judicial discretion and the fairness of the legal system. Due to mandatory minimums, it discredits judicial discretion and undermines common law by prohibiting judges to sentence a convict with a punishment more proportionate with its crime. Disparities in sentencing is an example of a flaw in the legal system in which it does not achieve justice. Disparity in sentencing also relates to the chain of destruction as introduced by the documentary The House I Live In. It recognizes the fact that convicts are not given a second chance and are harshly sentenced into a life that does not offer rehabilitation and ultimately no second chances to rejoin society as a contributing member. 10. Chain of destruction Facts Chain of destruction is a process of destruction recognized by the documentary The House I Live In. It is a progress that has been evident in the American attempts in their War on Drugs Chain of destruction consists of 5 steps: 1. Identification – society targets a group of people in which they view as a source of the problems in society 2. Ostracism – society begins to treat the group poorly and isolates them 3. Confiscation – soon the group loses their home, their place in society, and ultimately their civil rights 4. Concentration – the group is then concentrated into prisons 5. Annihilation – through retaining of medical care or food or –worse comes to worse- killing Issues The issue with the chain of destruction it does not provide a chance of rehabilitation or a chance for the group to re-enter in society as a contributing member. Society ultimately refuses them a place in society and ultimately when they return from the concentrating stage, the group is not given a job and a home and in turn it becomes a vicious cycle of drug and alcohol abuse until they return to prison. Chain of destruction is also largely related to racial discrimination. African Americans are usually identified as the source of the problems in society, and that is evident in the makeup of the crack defendants in the federal system – 90% are blacks when studies have shown more white people use crack cocaine than blacks. Relevance The chain of destruction is being recognized in the development of various judicial approaches that attempt to bridge punishment with rehabilitation. Approaches including therapeutic jurisprudence and medicalization aim to help the drug addicts and ultimately recover them into a society. It also exemplifies why the War on Drugs is a difficult war to fight. Society is unconsciously constructed to ostracize groups of people (usually criminals) without giving a way to return to society. 11. Paternalism Facts Paternalism is a legal approach where the court acts paternally. It treats the offender like a child and ultimately disempowers the convict. Issues The problem with paternalism is that it refuses an offender‟s civil powers and responsibilities similar to incarceration. It does not prioritize an offender and addict‟s needs to regain a place into society through recovery. Paternalism, though a sensible approach, also does not recognize the medical attention that an addict needs in order to fully recover. Relevance Paternalism, like therapeutic jurisprudence and medicalization, are interesting approaches that differ to harsh sentencing. It aims to help an addict rather than confining them, and in a way it depicts law as an expressive function as it shows another side of society and their approach in dealing with addiction. 12. Therapeutic Jurisprudence Fact Therapeutic jurisprudence arose with problem-solving courts which attempts to bridge punishment treatment. Basic position that criminal addicts actually have an illness and therefore you cannot cure an addiction with a harsh sentencing. Therapeutic jurisprudence thus becomes a therapeutic approach when dealing with drug addict criminals. Issue Not every criminal addict gets to experience it. Although there are many criminal addicts who receive help on the basis that they are sick, there are many more criminals who are just thrown into a jail cell through the traditional system. There are eligibility criteria for someone to enter it in the first place which means different criminals face different treatment and this leads to inconsistency. Relevance 1. Instead of criminals being looked down upon as bad and evil, they are looked at as ill, which makes people judge them differently. 2. It can be seen to have positive long-term effects such as less imprisonment rates and less of a costly strain on the overall justice system. 3. Therapeutic jurisprudence might help criminals see themselves differently as well, which may be more of an incentive to „get better‟, which therefore benefits society once they are placed back into society on their own. 13. Medicalization Facts 1. A public health approach to help criminal addicts, similar to therapeutic jurisprudence. 2. The process of defining behaviour as a medicinal problem or illness and mandating the medical profession to provide treatment for it. For example, treating drug abuse and alcoholism as diseases, viewing violence as a psychological disorder. Issues 1. Civil commitment to medicalization were used to varying degrees depending on the changing perceptions of the political and medical communications in relation to the necessity to incarcerate or confine habitual users and serious addicts to appropriately deal with their behaviour. 2. The current issue is whether or not medical problem should be treated with a legal solution or a criminal problem treated with solution. Relevance 1. Medicalization is relevant to the field of legal studies because it is yet another alternative approach to help deal with the War on Drugs that the world, especially the United States, is facing. It is an example of a softer approach to criminal addicts that is aimed at rehabilitation. 2. Medicalization also proves that issues in law do not just stay within the legal system but in fact branch out to other sections of our society, such as health care. 14. Moralization Facts Moralization is a moral pronouncement enforcing a certain standard of behaviour. It attempts to reform or fix „bad habits‟. However, moralized subjects can be seen as preachy or judgemental. Moralization is consists of two parties – a moralized subject and a moralized object, and must consist of two aspects in order for a moralized regulation to be exercised – a bad act, and harm. Issues The issue with moralization is the fact that it is subject to the time and age in which the moralizing discourse takes place in. The exercise of moralizing regulation can be quite drastic but considered legal and accepted by society depending on the „bad act‟. For example, homosexuality could be morally regulated through death or torture decades ago. Another problem with moralization is that it can use law, which is an expressive function, to perpetrate the majority‟s views. The concern relates to the fact that it can involve someone‟s health, for example, if the majority were to attempt to morally regulate those using medical marijuana by illegalizing it, patients that uses the drug may suffer from it. Moralization also puts the blame and assign responsibility to a certain group. Lastly, moralization is a subjective issue. It is mostly effective when a particularly issue is shared by the majority, and as a result the views of the minority is neglected and ultimately ignored in this democratic society. Relevance Moralization can make up to the feature of the legal system – as an effort to morally reform certain individuals that act against the norm (for example, drug addicts, prostitutes), thus it reflects law as an expressive function. Moralization is also yet another subjective aspect of law that captures law‟s fluid nature. Because of the ever changing norms and values which in turn shape the views concerning what is a bad act and what is harm (for example, miniskirts would historically require moralization but are largely accepted in society today), it shows that law is constantly changing and therefore relates to the immoral continuum. 15. Harm Facts Harm is one of two requirements for the grounds of moral regulation to take place – the other being bad act. Harm also happens to made up of two perceptions: specific, for example a husband who has cheated with a prostitute bringing home the „disease‟ back home to his wife, and symbolic, for example the harm to a women‟s purity. Harm is also related to the concept of what is „wrong‟. However, in this day and age of secularism, what is considered morally wrong is not as relevant as what causes harm on the grounds of specific or symbolic. Issues The problem with harm is the fact that there is no consistent or predictable example of harm. The perception of harm is entirely under the perspective of the moralized subject – what may be considered harm to one person may not be considered harm to another. Relevance Harm relates to the broader scope of moralization and law as an expressive function. Ultimately, harm is completely a subjective view. 16. Moralized subject Facts Moralized subject is the „source‟ that would be engage in moralizing pronouncements against the moralized object. Tend to be an entitled person or group (generally have access to authority), and could be anybody from anywhere, i.e. mom, dad, friend, boss, etc. Issues The issue with the moralized subject is that it is a subjective role. Everyone has differing opinions and values; therefore, the idea of what requires moralization truly is ambiguous. Secondly, the issue with moralized subject is the possibility of drastic measures used to enforce a certain moralizing regulation. Some moralized subject may use dehumanizing ways to morally regulate a moralized object; for example, in Afghanistan, brides have been mutilated with acid or weapons if they were accused of cheating by their husbands. Relevance In the broader legal scope, the entire society can be considered the moralized subject as they are the driving force for certain laws to criminalize a certain behaviour, for example MADD against drunk driving and the law banning the operation of a vehicle under the influence. The moralized subject also contributes to the debate concerning whether or not law is equal because it acts as an expressive function that can depict a value that differs from the views of another person. 17. Moralized object Facts Moralized object is the „target‟ that is under the scrutiny of the moralized subject, and is identified as those that need protection, reform, and control. Moralized objects are usually a particular group of people that may have a certain social disadvantage (i.e. immigrants, women, the poor, etc.) Issues The moralized object may find itself as under inequality and discrimination in society rather than put under scrutiny for a particular value. For example, during the Comstock Act of 1873, immigrants were the moralized object as the moralized subject (or the middle class) asserted their views of the dangers of obscenity with an ulterior motive fueled by middle class anxiety. The question remains as to whether or not the moralized object is morally regulated due to their actions or their identity. Another issue with moralized object is the possibility of moral regulation and abuse. Moralized subjects may attempt ways of moral regulation that can physically harm a moralized object. Relevance Moralized object relates to the broader scope of moralization and its impact. The question is whether or not the legal system can protect moralized objects. 18. Comstock Act (1873) Facts A US federal law created by Anthony Comstock in which make the distribution of obscene material via mail including contraceptives, education information regarding birth control illegal. Ultimate message was that out of control sexuality would mean social corruption. The moralized subjects were the upper and middle class, while the moralized objects were the lower class, adolescents, and immigrants. A law developed during the time where there were middle-class anxiety amidst the new era of immigration and their differing views on sex. Partly the reason why the Comstock Act was created was also the worry of the „lower classes‟ were procreating at a faster rate. Issues There were no legitimate reason for moralization, and yet the Comstock Act of 1873 made prohibitions under a false pretense. According to Nicola Beisel, these false pretenses were fabricated under pre-existing discriminative notions against the poor and the immigrants – built upon the image of ideal family, women as moral guards, the desire to protect sons, and the fear of immigrants as a contagion. The Comstock Act was merely a demonstration of power from the majority against the minority. Relevance The Comstock Act is an example of a moralizing attempt constructed under the ever fluid social norms and values – demonstrating the use of law as an expressive function. 19. Immoral continuum Facts Immoral continuum is the sliding scale depicting immorality. Because of the fluid nature of social values, what is immoral today may be considered moral in the future. For example, homosexuality back then was an immoral subject; however, homosexuality is largely accepted today and several pro-gay marriage has been passed in North America. Issues Immoral continuum asserts a sense of unpredictability that is not favourable for the legal system. Due to the fluid nature of the majority‟s views of immorality. Relevance Beisel claims that immoral continuum mainly protects the middle class. It reflects the views of the majority‟s social norms and values and therefore is usually the makeup of the middle class‟s ideals. 20. „The New Temperance‟ Facts A movement developed by David Wagner mainly focused on 1970s rise of moral politics and the reaction to the 1960s social upheaval. The New Temperance is a movement made to advocate the use of self-control in the age of alcohol indulgence. It promotes the fact that the petty bourgeoisie should live a thrifty and industrious life to attain success in modern society. The New Temperance also recognized Issues Wagner identified the case of middle class anxiety as a result of the need of moralization. The idea of self-control was also directed to the lower-class and their stereotypical habits of alcoholism. It is not necessarily the emergence of needing moral reform but rather, as how Beisel stated, a pre-discriminative notion in which the middle-class held against the lower-class. The New Temperance also focuses on personal behaviour – it makes
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