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Legal Studies
LS 101
Susan Brophy

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. Legal Fiction 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 nature. 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”. Dehumanization 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 generations. 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. Paternalism 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. Medicalization 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. Moralization 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 system. 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. Moralized Subject 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. Moralized Object 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 prevent pregnancy. Relevance: This is relevant because it represents how the middle class anxiety causes moralization and essentially changes laws. Immoral Continuum Facts: It is a sliding scale as to what is deemed as immoral. Issue: It is a slippery slope of moral regulation and harm R
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