Person as a Metaphor
Facts: When determining the definition of a legal person, the biological link cannot be assumed. A‘legal
person’is not necessarily a human. This metaphor reflects and communicated who is considered as a legal
person and as a human. The person as a metaphor, is not to be taken literally, but is needed in defining
what a “legal person” entails, in which to define the scope of law.
Issue: When courts interpret this metaphor further they have a hard time defining what this metaphor
really is. However, the lack of clarity allows judges to exercise discretion in defining the term and
applying it to the case at hand. The expressive dynamic through which law communicates norms and
values to society renders impossible a clear divided between the legal definition of person and the
colloquial understanding of the term. Another issue that arises is the connection between non-humans and
their relation to human rights.
Relevance: This term is relevant to the course because this raises the fundamental question of who counts
for the purpose of law, essentially why we, as a society, need law. As law is also an abstract term, it is
difficult to define. This shows how everything in law can be given an abstract perspective to be
interpreted in many different ways. It illustrates how we can now see how aspects of law that are meant to
protect humans can also now protect non-humans, like corporations.
Laws Expressive Function
Facts: The ‘legal person’equates to the object of legal power and the law constructs the object of its
power. In doing so law expresses the “norms and values to society”. This function shapes behaviours;
reflects scandals. This function has the duty, expectations and abilities of law.
Issue: The problem with law having this function is that it becomes subject to interpretation. There is no
single way of shaping behaviours and norms. Society’s ideals are constantly changing and evolving. It is
not always provable, tending towards contradictions. Through law’s expressive power, “person” becomes
a “legal fiction”.
Relevance: The legal person is an object of legal power, through law’s expressive function this “person”
can be identified and is subject to certain behaviours that are favourable and often reflects the norms and
values of society that are reflected in the law.
Facts: Legal fiction is a social construct. Through law’s expressive power in shaping the behaviour of
people, that legal “person” becomes a “legal fiction”. This term is a legal construct, it does not exist in
Issue: It is contestable because it is prone to contradiction, such as slaves, and is subject to interpretation,
such as corporations. Legal fiction is considered a product of judicial failings, as the judicial do not
consider philosophical arguments when deciding cases and the inconsistent application of theories of law.
The fictions become open questions that are up to discretion to be answered.
Relevance: Legal fiction makes us consider the power of judicial interpretation. Through legal fiction we
question judicial discretion and inconsistencies. However, theses legal fictions are an object of social
values and in that sense are also subject to change through the constant evolution of ideals of the majority.
This is relevant to see how legal fictions shape our controversial laws. Human non person: Slave
Facts: This term comes from the fact that slavery raises fundamental issues of legal personality. Slaves
are regarded as persons, but their treatment is as though they are property.
Issue: Judges tend to use legal personality in the limited number of situations in which they wanted to
treat slaves as legal persons, but readily treated to a narrower, citizenship-oriented notion of legal
personality when this characterization better suites their purposes. However, the ability of judges to inject
their own views on the legal personhood of slaves’codes, created a body of statutory rules that rendered
common law adjudication less necessary.
Relevance: Theses 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 were to be considered as “persons” for the
purpose of the common law crime of murder. The slaves were also held accountable for their crime as
non-slaves. Slaves’could still not enjoy the rights and privileges that came from being a “person”.
Facts: The denial of basic humanity of another. This might involve the animalization or infantalization of
humans. This term is central to genocide.
Issue: All human beings are born free and equal with dignity and rights. By denying an individual of these
rights, it is essentially stripping the individual of their humanity.
Relevance: Human beings have basic rights to retain their humanity and their identity. This is enforced by
the United Nation’s Universal Declaration of Human Rights in 1948. The implementation of this
document was spurred on at the end of World War II, the genocide of Jewish people by Nazi-Germany.
Distortion of Human rights
Facts: 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 being.
Issue: “Distortion” suggest a shift away from an acceptable understanding of human rights. If human
rights apply to “persons”, does that include corporations? The power of large corporations has expanded
and have gained the rights to intellectual property and free speech. The rights of corporations are now
seen as first step in expanding human rights in general.
Relevance: Therefore the issue is important due to the fact that non-human entities, such as corporations
have been given and exercised rights that are traditionally intended for humans, against humans.As a
result this causes confusion between “humanity” and a “legal subject person”. Asset Seizure
Facts: Asset seizure is when the police department seizes, takes the personal wealth and or property of the
person under arrest. This includes but not limited to vehicles, money, house, etc.
Issue: Police force operates using the money and property they have seized from arrests. This could be
considered unethical because the seized goods, could very well be stolen, that would mean the police
would be operating on stolen goods. As well, more often than not, assets are seized without reasonable
cause and even after people are found innocent of the crimes charged against them, their belongings,
including any money seize, is not returned to them. In addition, asset seizure is subject to racial
discrimination, profiling and random pickings rather than careful investigations. This relates to the
growing distrust citizens have towards the police and their seemingly corrupt nature.
Relevance: This is relevant because it is a major debate in society whether it is right to just be able to take
someone’s possessions. It also becomes another reason why more cops prefer working the drug side of
crime and less cops focus on more arduous crimes like rape and murder.
“Just Say No”
Facts: Acampaign started by Nancy Reagan, which provided a more “motherly” approach to the war on
drugs. It involved mass use of propaganda, media with black individuals smoking crack repeatedly. Led to
the notion that this was a norm, a fact of life.
Issue: The negative attention placed on the black community did not sit well. This would cause public
uproar against black youth, and as a result, mistrust between the black community and other minorities to
the white community ensued. Minorities became marginalized by the police and the ruling class (whites).
Relevance: The relevance of “Just Say No” campaign is that is shows that the war on drugs has been
around for a long time and it will continue to gone on for a long time. It shows that there have been many
approaches and attempts to implement fights on this war on drugs. However, many of these approached
and attempts have not only failed but also backfired in its intentions.
Disparity in sentencing
Facts: The unequal treatment that is often unexplained cause and is unfair and disadvantageous in
consequence. In particular minimum sentencing, where certain crimes are automatically given a minimum
sentence no matter the circumstances and discretion the judge would like to exercise.
Issue: Minorities become targeted by mandatory minimums, particular with the differentiation between
powdered cocaine and crack cocaine. Minorities that use crack cocaine receive harsher sentencing than
that of Caucasians that use powdered cocaine. Minorities get sent to prison longer and more often,
creating disproportionate population in prisons and increasing poverty in general. These minorities end up
paying for the public’s fear, and not their actual crime.
Relevance: This is relevant because it contributes to the debate as to whether equality actually exists and
makes people question the legal system. Chain of Destruction
Facts: Aprocess of destruction as it relates toAmerica’s War on Drugs and is composed of five steps: (1)
Identification – a group of people are identified as the source of the problem in society, thus society
begins to perceive the group of people as bad or evil. This group of people, their lives become worthless
in the eyes of society. (2) Ostracism – society ostracizes the group of people through hate and isolation.
Soon. They are forced to lose their homes 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 targeted
group to be searched and their property be confiscated. (4) Concentration – State begins to concentrate the
targeted group into prisons and take away their rights and family. (5) Annihilation – can be indirect
through the withholding of medical care, food, birth preventions. The targeted group can also be directed
at by physically harming or killing the targeted group. This becomes an endless cycle of pain that spans
Issue: This 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 chances of rehabilitation and
rather than reduce the
Target’s helpless state until they can never truly become contributing members of society.
Relevance: Chain of destruction relates to the varying judicial approaches that attempt to restore criminals
in society. Theses approached include therapeutic jurisprudence and medicalization.
Facts: When the courts act like the parent and treats the offender like a child. This takes away agency and
disempowers the offender. This becomes a different form of control.
Issue: How can you expect someone to act as a responsible adult if you insist on treating them like a child
and taking away their power?
Relevance: Wonder if this causes a greater chance of relapse and if it would disable the person to become
independent. Therapeutic Jurisprudence
Facts: 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
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 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
eventually leads to inconsistency.
Relevance: Therapeutic Jurisprudence is relevant because it sheds a new light on criminal behaviour.
Instead of criminals being looked down upon as bad and evil, they are seen as ill. This change in
perspective causes others to judge them differently. It is also relevant because it can be seen to have a
positive long-term effects such as lower recidivism rates and in turn less costly strain on the justice
system. This also helps the criminals themselves to see themselves differently which creates incentive to
‘get better’, and therefore benefits society once they can properly function in society on their own.
Facts: This refers to the process of defining behaviour as a medical problem or illness and mandating that
the medical profession provide a treatment for it. Examples of this would include treating drug abuse and
alcoholism as diseases, and viewing violence as a genetic or psychological disorder.
Issue: Civil commitment of custody for treatment were used to varying 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 States, is facing. It’s an example
of a softer approach to criminal addicts that aims towards rehabilitation. Medicalization also prove that
issues in law to not just stay within the legal system but in fact branch out to other sections of our society,
such as health care.
Facts: 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, judgemental and even self- righteous. It enforces a standard
of behaviour that may not be favoured by all members of society. Moralizing discourse can affect
regulation which in turn places the onus on the victims to prove harm done as opposed to the legal
Relevance: Moralization results in moral actions taken by members of society. It is in a way to reform ad
habits and clarify perceptions of harm. Harm
Facts: Harm is the way that we use moral discourse to determine bad acts. We determine bad acts by the
specific and 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: The catholic church looks at bad acts and in the past they used moralized discourse to come
up the Comstock act (religious people started moralizing acts) link to temperance because of the harms
religious institutions are looking into temperance of acts and limiting them and that is how they came up
with this act.
Facts: The moralized subject is a component of moral regulation. Amoralized subject as a source can be
an entitled person or group.
Issue: Everyone has different opinions as to what is moral and not making it very ambiguous.
Relevance: Contributes to the debate as to whether law is equal and if it is too ambiguous.
Facts: The target, usually a particular group like immigrants, women, poor, etc. identified by moralized
subjects as needing protection, reform, and or control.
Issue: This sets apart the challenges the idea of everyone being equal because some groups are looked
down upon. They also tend to be held under a double standard.
Relevance: This term applies to many groups in today’s society, like how from before we talked about
how the police target immigrants and lower class people more often than the high class non-immigrant
people, ComstockAct (1873)
Facts: Anthony Comstock worked at a post office and wanted to stop obscene ideas from spreading. It
then became a federal law in the US that no pornography, or methods of birth control or information
about methods of birth control could be distributed through the mail.
Issue: This came into effect because of the middle class anxiety. However, others wondered if it is fair if
it only directed at helping the middle class. The act took away women’s right to use birth control to
Relevance: This is relevant because it represents how the middle class anxiety causes moralization and
essentially changes laws.
Facts: It is a sliding scale as to what is deemed as immoral.
Issue: It is a slippery slope of moral regulation and harm