CRIM 135 Lecture 2: Law, Criminal Justice, and Legal Theories

CRIM 135 Lecture 2 - Charter came into force 1982 - Sets "rights and freedoms Canadians believe are necessary in a free and democratic society" - One part of Constitution - All other laws must be consistent with Charter - Rights: - Not absolute/ limitations -...

CRIM 135 Lecture 2 - Charter came into force 1982 - Sets "rights and freedoms Canadians believe are necessary in a free and democratic society" - One part of Constitution - All other laws must be consistent with Charter - Rights: - Not absolute/ limitations - E.g. freedom of expression - Protects all people in Canada - Canadian citizen, permanent resident, newcomer - Exceptions: right to vote (sec. 3), right to stay (sec. 6) - What is law? - Set of rules generally obeyed and enforced within a politically organized society - Apply equally to everybody - Rules made by government that forbid certain actions that are enforced by courts - Attempt to resolve the most basic human tensions between needs of the person/ member of a community - Helps us live in the community with each other - According to Canadian DOJ: law provides a way to resolve disputes peacefully - What is law for? - Prevent recourse to violence - Safety - Resolve 'chaos' - Give order to life - Stabilize interactions - Peaceful conflict resolution - Resolve disputes - Ensure and enforce rights - Harmonize relations - Set expectations of behaviour - Law tells us about our society, our politics, our economy, our morality and ethics, etc. - Tells us who/what we care most about - Theories of Law - **Natural Law:** - Long history (back to early Western Philosophy) - Law derives from moral principles that should govern all human conduct - Law connected to and informed by christian and Judeo-Christian values - God given morality (e.g. 10 Commandments) - But also, different theological belief systems: Islam, Buddhism, Sikh law, etc. - Has MORAL CONTENT - Part of moral theory/ethics - Represents moral standards/rules - Constrained by morality - IF A LAW IS UNJUST, IT IS NOT LAW (lex injusta non est lex) - Examples of laws resting on natura; law ideals: (both seen as moral---not just legal---documents - Charter - U.S. Constitution - Problems: - No single, clear morality to guide the operation of legality - Which law and which morality count? - Shouldn't law be secular/product of compromise? (especially in diverse country like Canada) - Doesn't/can't explain change - **Positivism:** - Dominant framing of the law today - Socially constructed (by us, not God) - Law is the rules encompassed in the law - Created by legislatures or common law (precedence) - Valid because enacted by the Sovereign (the state/government) or derive from previous legal decisions - Our SOCIAL CONTRACT---ties individuals and collective in democratic arrangement - System which contains its own logic - Stability, certainty, predictability = important - Technical---up to elected officials/ judges - Content- less important than following correct LEGAL PROCESSES - Separate law & morality - Valid regardless of its moral content - Lawmakers: interpret law rather than make moral choices - NOT AMORAL - Not judged by its justice or humanity or moral content, only the way it was created - Validly created= valid law - **Legal Realism:** - CRITICAL THEORY - Idea that law is a rational exercise with judges making logical connections, per natural law and positivism - Much more recent theory - Core purpose: core work of lawyer= PREDICT THE LAW - "life of law not logic, but experience" - Core idea: to predict and understand the law, have to UNDERSTAND CONTEXT AND LAW AS A PRACTICE - Political, social, economic, etc. context - Includes personality, temperament of the Judge, and their track record (decide based on factors other than the just what the law says---moral convictions---and then rationalize their decisions) - Can be applied on all sides of the political spectrum - Do not necessarily agree with each other on what the context is - *The Hungry Judge Effect* - 'extraneous factors in judicial decisions' - **Marxist Theory of Law** - Karl Marx & his theories on communism, history, etc. - KEY: your position in society is dictated by the ECONOMIC CLASS you are in and your relationship to the means of production - Law determines place in society and works in favour of the bourgeoisie and against the others, especially the workers - Critical of the way that law functions to UPHOLD AN 'ORDER' THAT PRIVILEGES CERTAIN CLASSES over others - Without revolution/ communism, law will subjugate workers and oppress the class - "dictatorship of the proletariat"---rule by and of the people - Empower those without power - Law may not be relevant anymore if people are equal - **Critical Legal Theory** - Since late 1970s - "illusory certainty upon which the language of law is based" - Looking BEHIND what law says it is - Look at how law is intertwined with social issues and therefore certain biases (e.g. systemic racism, gender biases, etc.) - Recognize that POWER LIES BEHIND THE LAW - Determines how people experience the law - Law purpose: MAINTAIN THE STATUS QUO - Law is written for those who make the law - Often acts to marginalize certain people/communities - **Feminist Theories of Law** - Multiple feminisms and tensions and debates between them - Different 'waves' of feminism over time - Point out how history, politics law and legal institutions are gendered - Most laws written by men, for men - Contains and projects MALE VALUES (e.g. public and private divide via the Charter and human rights) - Focus: GENDER AS A MEANS OF POWER - Gender orders social relations in a patriarchal society, serving the interests of men over others - Contributed immensely to law and legal practice and theory - Tensions remain, e.g. [Bill 21] - Increased focus on INTERSECTIONALITY--- "lens through which you can see where power comes and collides, where it interlocks and intersects" (Crenshaw) - **Anarchist and Libertarian Views** - ANARCHISM: suspicious of all forms of government and state power - Government action and law viewed as CONTROL - Government action---and therefore law---is likely just another form of oppression - People should be EQUAL, and inequalities of wealth and power between people should be overcome - LIBERTARIANISM: celebrate individual rights but GOVERNMENT'S ROLE IN PEOPLE'S LIVES SHOULD BE MINIMAL - INDIVIDUALS should CHOOSE what they want, and state shouldn't impede (e.g. taxes, social security, sexual orientation, family life, etc.) - People should be allowed to "run their own lives as they wish" (David Friedman) - Government protection (via law) = government overreach - **Indigenous Law and Legalities** - Colonial violence separated Indigenous peoples form the land, language, community, and legal traditions - Indigenous law is different from the law that 'applies' to Indigenous peoples in Canada - LEGAL PLURALISM -\> multiple legal systems at once - Different premises - Anishinaabe law: no analogue to rights discourse of settler law (though human rights 100% matter!) - Not like Canada's constitutional order - Differences among Indigenous peoples - Metis, Inuit, First Nations (and diversity within) - Not uniform or homogenous - Different 'all the way down' (different in *kind*) - Some themes common to many: - Gift-giving - Believe everyone is gifted, those gifts are important, and need to be reciprocated/ received - Reciprocity - Kinship - Reconciliation (contrast to retribution) - Seeking to heal relationships when harm is done, rather than punishment - Focus is on the relational - Link to land and to language - Law can't be separated from the land with both mind and body - Land is a teacher in its own right - REVITALIZATION OF INDIGENOUS LAW AND LANGUAGE IS THE KEY TO RECONCILIATION