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SOSC 1350 (51)

Gender and the Law - Theorizing Law.docx

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Social Science
SOSC 1350
Julie Dowsett

Theorizing Law  This section elaborates on how and where inequality intersects with the law’s claim to fairness, justice and equality  James Messerchmidt, a theorist, has a book called “Crime as Structured Action”  A key problem Messerschmidt addresses is the need to understand the interconnections between gender, race and class  Messerchmidt notes that gender, race and class are neither static “things” nor finished products  Gender, race and class look very different when acted out in corporate boardrooms by privileged white men than they do in encounters between young Aboriginal men on the street  The practices by which gender, race and class are “made” do not occur in a vacuum; they are influenced by social-structural constraints  Social structures are “regular and patterned forms of interaction overtime that constrain and channel behavior in specific ways” (Messerchmodt 1997:5)  Social structures are simply not out “there”  They are enacted in everyday interactions by knowledgeable human agents: “people who know what they are doing and know how to do it”  In Messerchmidt’s theorizing , then, structure and action are inseparable  “Social structures are realized only through social action and social action requires structures as its condition” (113) The Form of Law: THE OFFICIAL VERSION OF LAW  The official version of law – what the legal would have us believe about itself- is that it is an important, neutral and objective system for resolving conflict. (Naffine 1990: 24)  As Naffine suggests, impartially, neutrality and objectivity are the cornerstones of the modern age system  Representing the blindfolded maiden who holds the scales used to dispense justice  In both its form and method, law asserts its claim to be impartial, neutral and objective  Perhaps, the most doctrine of law on which law is founded is that of the rule of law, which encompasses two broad claims  First, everyone, even the sovereign or ruler, is subject to the law  Because the law is something separate and distinct from the interests of particular groups or classes  Second, the law treats everyone the same, as “legal”(Hunt 1976)  Main intent of this particular legal form is to ensure that the civil liberties of citizens are protected against the arbitrary exercises of power by the state  Thus, the law is held to be dispassionate, predictable, objective, impartial, and above all – just in its search for the truth  This legal form flows a set of procedural requirements, known as due process, that are designed to endure the prosecution of a criminal matter takes places in accordance with lawful procedures and fairness The role of Crown attorney  In Canada, both the Crown attorney and police can lay charges  The police must the file over to the Crown attorney’s office for prosecution  The office can decide whether or not to prosecute the charges laid by the police  In that case, Crown attorneys can substitute other charges or decide to stay the proceedings  The Crown attorney is responsible to advise the police officer to continue their investigation  Also, they have the responsibility in a criminal case to meet the burden of proof and establish the guilt of the accused “beyond a reasonable doubt”  Moreover, the Crown must establish the criminal liability of the accused in terms of action (actus reus) and intent (menus rea)  The Crown is required to prove that the accused intent was not diminished by forces such as mental disorder, extreme intoxication, provocation or dures  The decision of the Crown to prosecute is informed by two fundamental principles  Crown council is expected to continually re-evaluate the decision to prosecute throughout the entire trial process  The Crown is obligated to disclose to the accused the evidence that the Crown intends to rely on at trial  As well as any other evidence that may assist the accused The role of defence council  Under the Code of Professional Conduct of the Canadian Bar Association adopted by the law societies  The primary concern of lawyers is the protection of the public interest  The role of defence lawyers are to ensure that individuals are not convicted improperly  One of the central task of the defence is to ensure that Crown proves its case against in the accused “beyond a reasonable doubt” and that the accused rights are not violated during the investigation and prosecution of the offence  Defense counsel is not required to prove or disprove any fact (except in rare situation)  Defence lawyers are expected to vigorously cross-examine Crown witnesses to establish the truthfulness of their testimony  Defence lawyers could also raise reasonable doubt by introducing a legally recognized defence of the accused’s actions  Given that the criminal responsibility is premised on the Crown establishing that the defendant acted voluntarily and possessed mens rea  Individuals whose criminal acts are not of free will or whose actions are justified because of extraordinary circumstances can be deemed to be either less responsible or not responsible to for their behaviour  Self-defence, as a reasoning rather than an excuse of the accused’s actions, focuses on the context of the event rather than the accused’s “human infirmity” or emotional state  Prior to 1996 in Canada, the Criminal Code made no formal mention of the defence intoxication  The defence of intoxication could only be raised in crimes of specific intent (such as murderer, robbery, and break and enter), but not for crimes of general intent (such as manslaughter, aggravated assault, or sexual assault)  In 1994 the Supreme Court of Canada altered the traditional approach to intoxication by ruling that a defendant charged with a general intent offence (such as sexual assault) might use the defence of intoxication where extreme drunkenness had resulted in a “state akin to automatism or insanity”  Added to the Criminal Code in 1996, section 33.1 places limits on the use of intoxication where extreme drunkenness as a defence for general offences The role of the Judge  The role of the judge is to discern the “legally relevant facts” of the case  To find the “truth” about the matter brought before the court  That judges are impartial in their deliberations is reflected in the policy of the separation of powers; that is, the legislature (which makes the laws) is separated from the judiciary (which administers the laws)  The policy suggest that law is an independent, internally consistent system, divorced from the more political processes of the state  Further assisting the impartiality and fairness of the proceedings is the doctrine of stare decisisor (to stand by decided matters) according to which judges are bound to follow example  Developed under the common-law tradition of case law, precedent implies that “like case are to be treated alike”  In making their decisions judges are to rely on previous cases, and lower courts must follow the decision reached by higher courts The preliminary hearing  The opposing roles of Crown attorneys and defence lawyers are clearly marked at the preliminary hearings of a criminal trial  The purpose of the preliminary hearing is for a judge to determine whether sufficient evidence exist to warrant committing the accused to trial  The judge does not rule on guilt, but must decide if the Crown , on the face of it, has evidence on each of the specific elements of the crime that could prove guilt (Cunningham and Griffith 1997:182)  Strategically, the preliminary hearing is where the Crown ‘s theory of the case and evidence is revealed to defence counsel  The defence can forcefully cross-examine the statements of complainants and witnesses to challenge the credibility of the Crown’s case against the accused The pre-trial conference  Where a trier of fact determines the weight of the Crown’s case against the accused, proceedings can also include pre-trial conference  At this stage, the defen
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