1. Person as a metaphor
• Fact: Not necessarily a human. Used as a metaphor. There is no one true definition of
law (abstract concept), same is true for a legal person. Lack of clarity can be used as an
advantage – allows judges to exercise certain amounts of discretion when it comes to
applying the category of a legal person (when you want to recognize a human/non-
human as a legal person)
Category of legal person can be manipulated depending on the desired outcome. (can
be narrowed or broadened) eg. I don’t want slaves to be recognized as humans. The
idea of a person becomes expanded and metaphorical – cannot assume a biological link
between a person and human (a legal person does not need to be a human. Eg. can be a
corporation) If we take the meaning of a person and detach it from its biological link,
this leads to the expansion of scope of law.
•Issue: When courts interpret this metaphor further, they have a hard time defining
and finding out what this metaphor really is. However, this lack of clarity can actually
be useful since this allows judges to exercise discretion in defining this term and figure
out what this metaphor represents. Another issue that arises is the connection
between non-humans and their relation to human rights.
•Relevance: It is relevant to this course because this raises the fundamental question
of who counts for the purpose of law, which basically means why we need law. As law
is an abstract term, same goes for this "legal person". It is very difficult to define. This
basically shows how everything in law can be abstract and can be interpreted in many
different ways. It is also relevant because it illustrates how we can now see how
aspects of law that are meant to protect humans can now protect non-humans
(corporations for example). This is also relevant because it leads to legal fictions and
contradictions in law. The person as a metaphor has come about because of the
conservative principle of law.
2. Law’s expressive function
Facts: Law as a metaphor leads to law’s expressive function.
By expanding these relationships, law constructs the object of its power. In doing so,
law expresses norms and values to society. This function of law shapes behaviour and
reflects social ideals. The legal person becomes attached to all these new ideas and
expectations (new standard of norm). Law’s power, ability to coerce, limits of law.
Issue: The problem with law having this function is that it is subject to interpretation
since there is no single way of shaping behaviour and norms. It is a construct; depends
on the specific social setting within which these decisions are being made. Societies
ideals are changing, evolving and varying. It can be contradictory (ambivalent) – might
point to two different aspects. Eg. right now, humanity of slave is recognized but in ten
years this may change and it is refused to recognize this. Through law’s expressive
function, the “person” becomes a “legal fiction” – not necessarily provable, but is a
construct. There is no factual evidentiary basis; legal fictions must be constantly
proven. They are always open questions.
Relevance: The legal person is an object of legal power. Through law’s expressive
function, this “person” can be identified and is subject to a certain behaviour that is
favourable to society as expressed by norms and values reflected in law. 3. Legal fiction
•Fact: A legal fiction is a fact assumed/created by courts used to apply a legal rule that
was not necessarily created for use in that way. Legal fiction is a legal construct.
Through law's expressive power in shaping behaviour of people, that legal "person"
becomes a "legal fiction". This does not exist in nature. It is highly contestable – can be
tested or challenged.
Product of judicial failings – judges themselves do not consider philosophical
arguments when they’re deciding cases. If they attempted to develop a central thesis,
and engage all the debates around idea of “human” then they would be forced to
maintain a consistent view. Because judges do not do this, they are not forced to have a
continuous non-contradictory view. Judges do not apply theories of law consistently
Prone to contradiction (one judge may see it in one way, another judge sees it
differently). Subject to interpretation. Open questions – there is no one answer that can
be pointed to.
•Issue: Prone to contradiction such as slaves, subject to interpretation such as
corporations, product of judicial failings because they don't consider philosophical
arguments and apply theories of law inconsistently, open questions
•Relevance: Legal fiction makes us consider the power of judicial interpretation.
Through legal fiction we question judicial discretion and inconsistencies. However
these legal fictions are an object of social values and are subject to change through the
changing ideals of the majority. This is relevant to see how legal fiction shapes our
controversial laws. Due to law being set by precedents there are rulings that contrast
each other and they seem inherently contradictory. This is because law is not defined
by one undercurrent of philosophy but decided based on the precedent of past
cases. Possibly a viewpoint on how judges may have too much discretionary power/
the conservative principle of law means that legal fictions cannot be remedied quickly.
4. Human nonperson
Fact: One of three areas of contestation (human nonperson, nonhuman person and
borderline human). Throughout history, some humans were never given a “person”
status under the law. This includes slaves, women, immigrants etc. Although
recognized as humans or part of the species, these people faced certain discrimination
that lead to their own legal categorization, in which they received less rights and
harsher punishments. There is a stigma around nonperson humans that suggests these
humans have shorter capabilities and thought processes.
Issue: This term comes from the fact that slavery raises fundamental issues of legal
personality. Slaves are regarded as persons, but their treatment is as that of property.
Judges tend to use legal personality in the limited number of situations in which they
wanted to treat slaves as legal persons, but readily retreated to a narrower,
citizenship- oriented notion of legal personality when the characterization better
suited their purposes. These rules generally sidestepped the issue of legal personality by making it a felony to
kill a slave, rather than by taking a position on whether slaves counted as persons for
the purpose of the common law crime of murder. The slaves were also held
accountable for their crimes as non-slaves.
Slaves could still not enjoy the rights and privileges that came with being human
Killing a slave is not punished as severely as killing a legal person (slave is considered
property – human nonperson).
What happens when a slave kills a person? Due process is limited
Nonhuman person: Corporations given status as legal person gives them more
protection and arguments in their favour (eg fundamental freedoms), granted all sorts
of rights without necessarily the duty. Massive issue when it comes to accountability
Relevance: The relevance of this categorization in history is to show the disparity and
inconsistency of law. This further develops the idea of a “person” being a metaphor in
legal context. To be a human is not necessarily to be a person, and to be a person does
not require you to be human. This is also relevant to the “legal fiction,” because the
way that slaves are treated depending on the context or desirability of outcome is a
legal construct and does not actually exist.
Fact: The denial of the basic humanity of another, and their universal rights. This can
involve infantilization or animalization of another human being. Central to Genocide.
United Nations’ Universal Declaration of Human Rights (1948, WWII)
Article 1: “All human beings are born free and equal in dignity and rights. They are
endowed with reason and conscience and should act towards one another in a spirit of
brotherhood.” (note “reason” and “conscience” as defining features)
Article 6: “Everyone has the right to recognition everywhere as a person before the
law.” (note: universal right to be recognized as a “legal person”)
Human rights help battle “the forces of dehumanization”
By limiting the scope of “personhood”, much damage can be done
Issue: All human beings are born free and equal with dignity and rights; by denying an
individual of these rights, they are stripping them of their humanity.
Relevance: Human beings have basic rights to retain their humanity and identity. This
is enforced by the United Nation’s Universal Declaration of Human Rights from 1948.
The end of the Second World War encouraged the implementation of this document.
6. Distortion of human rights
Fact: Distortion of human rights is the idea that there has been a shift away from an
acceptable, universal understanding of human rights. The reason for this distortion is
the gap between the concept of a legal person and a living human.
Issue: If human rights apply to persons, it is questioned whether they apply to
corporations due to the power of large corporations. The rights of corporations are
now seen as a first step in expanding human rights in general. For example, the gold
mines in Latin America have legal barriers such as workplace safety and environmental protections that must be removed before a corporation will set up shops and hire
locals. Rights gains already made: Intellectual property, free speech.
Issue: 2 rights distortions that favor corporations:
Distorted interpretation Human rights were meant to protect people from injustice
and harm. Using human rights as tools for corporate expansion and protection distorts
Distorted accountability Problem of holding corporations accountable when they
use human rights to exercise power.
What tools are left to protect the people from corporate power?
Consequences of Distortion Non-human corporations exercise human rights against
Consequences of confusion between “humanity” and “legal subject/person” Cannot
establish whether a person should be defined as metaphor or legal fiction.
Relevance: This issue is therefore important due to the fact that non-human
corporations exercise human rights against humans. As a result, this causes confusion
between “humanity” and a “legal subject person”
7. Asset seizure
Fact: Police can take property of anyone they pull over for a crime. Money seized goes
to police department even if no charge if issued. “War on Drugs was never about drugs”
Issue: it could essentially be considered stealing because it is someone else’s money,
also it could be that the police take the money without reasonable cause and often even
after people are found not guilty, their belongings (including any money seized) are not
returned to them.
People get stopped illegally and unconstitutionally rights violation
Asset seizure is also subject to possible racial discrimination, profiling, and random
picking rather than careful investigations. This relates to the growing distrust citizens
have towards their police as well as their corrupted nature. EX. g20 summit
Relevance: These ideas pose a bigger question: are human rights more important or is
maintaining a stable police operating system? If these arrests are arbitrary then why
are assets being seized based on unnecessary power given to governments and their
enforcement officers? These questions make us re-think the power of the state against
citizens and how more human rights should be enforced.
It is a major debate in society as to whether it is right to just be able to take someone’s
possessions. Also another reason as to why more cops focus on drug crimes and less
cops focus on crimes such as rape and murder.
8. “just say no”
Fact: Started by Nancy Reagan, provided a more “motherly” approach to the war on
- Involved a lot of media with black individuals smoking crack repeatedly. Led to it
being viewed as a fact
- Mandatory minimums were implemented to deter individuals from selling drugs ->
caused the population in prisons to increase (predominantly black) Issue: The negative attention poured upon the black community would not sit well.
This would cause a public uproar amongst African American youth. As a result of this,
trust between not only the black community, but other minorities could ensue. People
who belonged to minorities may feel marginalized by the police and ruling class
Relevance: It shows us this war on drugs has been around for a long time and it will
continue to be around for a long time. It shows us that there have been many
approaches implemented to attempt to fight this war on drugs, however many of the
approaches (Just Say No being one of them) have failed. “Just Say No” is just one more
approach that did not work, and in fact backfired, instead of doing what it was
intended to do.
9. Disparity in sentencing
Facts: Sentencing disparity is defined as "a form of unequal treatment that is often of
unexplained cause and is at least unfair and disadvantaging in consequence.
S.C determined that judges should be given back a certain power of discretion. Not held
to mandatory sentencing. Differentiation between hard and powdered crack.
Issue: Minorities are targeted by mandatory minimums 100:1, minorities who use
crack cocaine get harsher sentences, which is a form of unfair treatment. Whites who
typically use powdered cocaine get less harsh sentencing. Due to minorities being
targeted by this sentencing method, it may lead to distrust between them and the
police (which can result in public unrest).
Relevance: contributes to the debate as to whether equality actually exists and makes
people question the legal system. Also relates because it determines prisoner inflow &
outflow. Reinstating judges’ discretion can help eliminate prison overcrowding and
save taxpayer dollars.
10. Chain of destruction
Fact: A process of destruction as it relates to America’s War on Drugs. Composed of 5
(1) Identification – a group of people is identified as the source of the problems in
society, and society thus begins to perceive the group of people as bad or evil. These
groups of people’s lives become worthless.
(2) Ostracism – society ostracizes the group of people through hate and isolation. Soon,
they are forced to lose their home and are physically isolated from society.
(3) Confiscation – the targeted group loses their civil rights and freedoms. Laws are
changed to make it easier for the target to be searched and to confiscate their property.
(4) Concentration – State begins to concentrate the target into prisons and take away
their rights and family.
(5) Annihilation – Can be indirect through withholding of medical care, food, or birth
preventions. Can also be direct by physically harming or killing the target.
No rehab systems in prison, so criminals come out and just relapse back into their old
habits (higher recidivism rates)
Communities rely on these private prisons (they provide jobs) They go to the city and then the city buys the land for the private prison companies to
build a facility
After that, the prison pays the city for renting on the land, and then you need people to
go and fill these prisons (police officers, then they start looking for people who fit the
mold for a criminal)
Issue: The chain of destruction is very realistic in modern day society as it ostracizes
and slowly annihilates specific groups that have been targeted by society. The chain of
destruction takes away the chance of rehabilitation and rather reduces the target’s
helpless state can never truly be a contributing member of society. The chain of
destruction is also costly as it throws too many people in jail that do not need to be
there – waste of social resources and increases taxation.
Relevance: Chain of destruction relates to the varying judicial approaches that attempt
to restore criminals into society. These approaches include therapeutic jurisprudence
Fact: Courts act as a parent, treating offender like a child. Taking away agency, which
disempowers. Paternalism is just a different form of control.
Issue: how can you expect someone to act as a responsible adult if you are treating
them like a child and taking away their power?
Relevance: It is possible that paternalism could lead to a greater chance of relapse, and
it disables a person from becoming independent. This could also result in the criminal
lacking important skills to successfully contribute to society, thus increasing their
chances of poverty, which can lead them to crime (here begins a never ending cycle of
incarceration and possible drug use)
12. Therapeutic Jurisprudence
Fact: Therapeutic jurisprudence arose with problem-solving courts. This term is the
basic position that criminal addicts actually have an illness. It is based on the position
that you cannot cure an addiction with a harsh sentencing. So, as suggested by its
name, therapeutic jurisprudence became a more therapeutic approach to dealing with
criminal addicts. Therapeutic jurisprudence attempted to bridge punishment and
treatment. There was an obvious failing in the traditional court system so problem-
solving courts were created, with this treatment in mind, to respond to these failures.
Issue: The main issue with therapeutic jurisprudence is that 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. This therapeutic jurisprudence is used through the
problem solving court system however 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: Therapeutic jurisprudence is relevant because it sheds a new light on
criminal behavior. Instead of criminals being looked down upon as bad and evil, they
are looked at as ill, which makes people judge them differently. It is also relevant because 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. 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.
Facts: refers to the process of defining behaviour as a medicinal problem or illness and
mandating the medical profession to provide treatment for it. Examples of this would
include treating drug abuse and alcoholism as diseases, and viewing violence as a
genetic or psychological disorder.
Issues: Civil commitment or custody for treatment were used to carrying degrees
depending on the changing perceptions of the political and medical communities with
respect to the necessity to incarcerate or confine habitual users and serious addicts to
deal appropriately with their behaviour.
Relevance: 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. 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.
Fact: Moralizing discourse is an exercise of moralization. It is a generalized moral
pronouncement, which enforces a standard of behaviour. Moralization identifies bad
acts and links bad acts to harm. With this it identifies grounds for moral regulation.
Issue: Moralization can appear to be preachy, judgmental, and even self-righteous. It
enforces a standard of behaviour that may not be favored by all members of
society. Moralizing discourse can affect regulation, which in turn places the onus on
victims to prove harm done as opposed to the legal system.
“Boys will be boys, good girls have to be good girls” (slut shaming) Puts the
responsibility on the female not to be harmed.
Relevance: Moralization results in moral actions taken by members of society. It is a
way to reform bad habits and clarify perceptions of harm.
Purpose of moralizing discourse: Identify and control moralized practices. More than
blaming or promoting good acts; want to change behaviour at fundamental level. New
basis of self-control and self-monitoring (gets in your head). Legitimizes basis for
regulation. Create panic about apparently “bad” acts
Facts: harm is the way that we use moral discourse to determine bad acts. We
determine bad acts by the specific and symbolic harm.
Two types of harm: Specific harm (direct) or symbolic harm. Issue: We always have to look at who it affects, the moralized subject or the moralized
object. In prostitution the man would be the subject and the act would be the object
and consequence would be the harm to his wife.
Relevance: e.g. The catholic church looks at bad acts, and in the