3. Law, conflict and change Flashcards
(42 cards)
Common def of justice
1993 legalistic definition: the upholding of rights and punishing of wrongs by the law
Procedural jutice
- perception of treatment during decision-making processes
- closely linked to ‘due process’
- following rules of procedure
- properly applying the law e.g. apply equally to all
- evidence people accept an adverse legal judgement relating to a law they do not support if processes are seen as fair and just
Justice as equality (substantive)
- like cases treated alike
- via precedent
- equality unless significant and relevant difference
- what differences are significant and relevant and justify different treatment?
- Equal Opportunity Act: gender, race
- McHugh, Waters v Public Transport Corporation (1991): discrimination can be direct or indirect – disproportionally, negatively effect certain groups e.g. mandatory sentencing effect on young Indigenous Australians
- e.g. gender pay gap, Equal Opportunities Commission in WA – to ensure equality of outcomes not accessibility
Justice as desert ‘retributive justice’ (substantive)
- people ‘get what they deserve’ – culturally/politically influenced
- punishment in proportion to harm caused and blameworthiness
- consideration in contract requires performance of other party
- retributive justice high in US: appearance of ‘tough on crime’ policy stance
- however research has found not effective: reducing spending on prisons and increasing spending on education has been found to reduce crime
Justice as entitlement/rights (substantive)
- 17th – 18th century: rights derived from nature
- developed by Western males – problematic as applied universally in international law, closely linked to Christianity (rights given to everyone by God)
- revolutionary notion that people have natural rights to life, liberty and property
- contemporary idea of fundamental human rights – now inherent rights applied to all
- 19th century: rights derive from law
- legal positivism: critical of natural law, view of law as ultimate source (not naturally sourced)
- utilitarianism strong association (strand of liberalism): surrounds what benefits the most people, pragmatic approach
- Bentham: regarded natural law “nonsense on stilts”, supporter of utilitarianism
- Bottomley and Bronitt: “many of the hard questions in law boil down to a conflict between the protection of individual rights and the promotion of collective utility or welfare”
- deontological liberalism basis (deon = duty)
- Kant (1724-1804): formulated Kantian Deontology
- individuals are ends in themselves, not means to an ends – therefore cannot focus on collective
- prioritises the right over the good
- ideas that rights exist irrespective of the content of law – rights as inherent, reflected in contemporary law
- neutral as to consequences of an act, but argues for actor’s right to do the act
- Sandel (1998): “society is best arranged when it is governed by principles that conform to the concept of right, a moral category prior to the good and independent of it”
- teleological liberalism (telos = goals)
- acts are evaluated for their consequences for reaching the goal
- Bentham: utilitarianism
- Bottomley and Bronitt: good life = “one that promotes the greatest happiness for the greatest number” what is morally right = what maximises the ‘good’, that is the happiness/pleasure of the majority
- that is, individuals can be used as a means to an end
John Rawls and the ‘veil of ignorance’
- theory of justice as equality
- social contract theory: a contract that free, rational people concerned to further their own interests accept in an initial position of equality as defining the fundamental terms of their association
- veil of ignorance: mechanism by which people decide principles of justice for a society where they do not know their particular role in society (so solution does not favour just one individual and their role)
- original position: assumes ‘clean slate’, no one knows their place/class position/social status/fortune – distribution of natural assets and liabilities/intelligence, would lead to
- equal right to liberty: each person is said to have an equal right to the most extensive basic liberty compatible with a similar liberty for others
- difference principle: fair equality of opportunity, permit inequalities in distribution of goods only if those inequalities benefit worst-off members of society
- original position: assumes ‘clean slate’, no one knows their place/class position/social status/fortune – distribution of natural assets and liabilities/intelligence, would lead to
Critiques
- of liberalism: emphasis on justice in a way in which justice is conceptualised, primacy of individualism, dominance of liberalism
- of rights e.g. cultural relativism debate – dominant construction of rights is Western but still promoted, problematic due to colonisation and seen as continuation of Western dominance
- Sardar (1998): “universalising principle of Western civilisation has always been to see its way as the only way and therefore the universal way”
Case study: Indigenous deaths in custody
- long history of disproportionate number of Indigenous people being detained or imprisoned and dying in custody at a greater rate than non-Indigenous people
- contributing factors:
- e.g. putting people in prison for non-payment of fines (often related to driving offences, especially remote communities as no licensing centres/expensive yet need to drive to access crucial services/goods), unjust? - financially costs more to imprison someone however for people – easier option to go to prison rather than pay fine
- socioeconomic disadvantage leads to greater crime
- mandatory sentencing: removes judicial discretion
- Stolen Generation massive impact
- ethnic profiling by institutions such as police
- WA: history of Indigenous deaths in custody and prison
- Royal Commission into Aboriginal Deaths in Custody 1991, sparked by death of Patt
- just response – implement recommendations, yet many not implemented and Aboriginal deaths in custody continue e.g. Mr Ward, Ms Dhu
- treatment of Indigenous people: can lead to institutionalisation, effect on mental health and quality of life when children are still taken away from parents, greater recidivism after imprisonment
Ms Dhu case study
- imprisoned for unpaid fines of around $3000 in 2014 at South Hedland Police Station
- indirect discrimination: failure to pay fines, certain groups cannot pay
- died in custody at 22 from septicaemia (had 2 broken ribs sustained 4 months prior from family violence that got infected), police told medical staff she was “faking” illness
- WA coroner: found death could have been prevented (if temperature was taken and given antibiotics), health deteriorated significantly in custody
- unconscious bias in doctors and nurses: doctor diagnosed her as having behavioural issues in response to her complaints of pain, need to be educated greater on this bias (as well as police)
- injustice of situation: described treatment of Ms Dhu unprofessional and inhuman yet did not recommend anyone to DPP, no one held to account
- institutional racism: in UK and Ireland following MacPherson Report (on Steven Lawrence murder) led to widespread serious education and training on this and restructuring of view on racism – yet this has not occurred in Australia even after a Royal Commission
Miscarriages of justice
- issue with statistics: need to have knowledge a miscarriage of justice has occurred, yet need a CJS that is open to the idea that miscarriages of justice occur within it
- factors contributing
- immense societal pressure on police to find culprit for crime
- prosecutors in adversarial have pressure to achieve ‘success’
- issues with scientific evidence e.g. incorrect DNA sample matches
Case study: Mickelbergs and the Perth Mint Swindle
- robbery of gold bars from Perth Mint worth around $2 million today
- police alleged three Mickelberg orchestrated robbery
- 1983: found guilty and sentenced to 20, 16 and 12 years in jail
- 2004: convictions overturned
- correction:
- 2007: public apology offered by state
- 2008: compensation ***
- justice undermined by police corruption
- Lewandowski and Hancock - former police officers admitted they had lied and faked (perjured) evidence during the trial, had fabricated confessions from the brothers
- Peter Mickelberg was stripped naked and beaten by interviewing officers during the investigation
- ticking bomb scenario: there is a ticking bomb and a terrorist suspect in custody – would you torture them? – rights of individual v. collective
- formulated by Bentham
- evidence: torture produces unreliable evidence and not most effective way of obtaining information from someone (cooperation and trust building better method for better outcome)
- Buti (2011): wrote book on case, corruption subjects our “system of justice upon which the coherence and stability of our society depends”, has wider impacts than just the case in point
- corruption can lead to: less respect for the rule of law, distrust of police (can lead to underreporting of cases)
- reports of these cases has destabilising effect on justice system
Emergence study - vagrancy
- Chambliss (1964), vagrancy laws: throughout history approached differently
- 13th century: relief for religious houses giving food and shelter to travellers
- 14th century: vagrancy statutes were designed express purpose: to force vagrants essentially into enslavement to landowners, to insure the landowner an adequate supply of labour at a price he could afford.”
- 16th century: extended to include ‘ruffians who shall wander, loiter or idle use themselves and play the vagabond, meant anyone could be detained even if it couldn’t be proved they had actually committed a crime = cleared the trade routes
- Chambliss (1964), vagrancy laws: throughout history approached differently
- 13th century: relief for religious houses giving food and shelter to travellers
- 14th century: vagrancy statutes were designed express purpose: to force vagrants essentially into enslavement to landowners, to insure the landowner an adequate supply of labour at a price he could afford.”
- 16th century: extended to include ‘ruffians who shall wander, loiter or idle use themselves and play the vagabond, meant anyone could be detained even if it couldn’t be proved they had actually committed a crime = cleared the trade routes
Emegence study - Marijuana control in US
- interpretations of the origins of the act:
- Becker (1963): before an act is viewed as deviant, someone must label it as a social ill, people must be made to feel that something ought to be done about it, class of people then labelled and treated as outsiders for committing the act and rule made defining act as deviant
- Dickson (1968): explanation is in the needs/self-interest of the Federal Bureau of Narcotics, which was under funding pressure and facing organisational challenges, prohibiting marijuana would increase prestige of FBN
- Galliher and Walker (1978): law emerged to control Mexican-Americans when jobs were scarce
- 1969: Leary v United States, Supreme Court ruled act unconstitutional
burns and wounds – 19th century vitriol (sulphuric acid) throwing
- damage caused was extensive e.g. blinding, maim
- various acts for physical assaults not resulting in death all referred to wounds, which were defined by the instrument that produced them e.g. knife, gunshot, commonly associated with breaking of the skin
- medical terminology: vitriol throwing classified as burns which were not a type of wound
- Lord Ellinborough’s Act (1803): precise terms implied that other forms of injury were excluded from the provisions of the law
- Ann Morrow (1835): threw vitriol at John Wade blinding and seriously burning him
- surgeons disagreed whether injury caused was wound
- judge decided injury was not under def. of wound and Murrow was acquitted of felony, sentenced to 2 years of imprisonment
- 1836: due to similar acquittals, inquiry sparked into law and a change to amend the form of words to embrace all acts of violence
Current examples - society and law
- glassing: again redefining definitions of violence to update law
- marriage equality: law in Australia behind what most people consider normal in society
- piracy: law reflected historic idea of pirates from 1800s, allowing them to continue harmful acts without fear of law
- financial laws: GFC allowed to occur and affected rest of the world
- sexting
Legal history - Donoghue v. Stevenson (1932)
- formed ‘neighbour principle’, a general principle of law surrounding duty of care
- intellectual history: influenced by the Christian Bible – good Samaritan
- prompted a 60-year long collision between contract and tort laws
- influenced negligence laws, liability principles, industrial tribunals, consumer laws
- supports idea that out of situation there is potential for a law-changing moment
Law as legal control
- Bottomley and Bronitt (2012): “lawyers have generally not been too concerned to inquire very deeply into the connection between law and power”
- reasons for avoiding analysis of power
- too hard
* contested and complex concept involving theoretical tools outside lawyers’ education - threatens liberal underpinnings of law:
- individual rights and responsibilities rather than groups and institutions
- equality before the law and legal neutrality
- control of abuse of power by state institutions
- how does law control our behaviour? deterrent
Control as a sanction
- Anleu (1998): formal sanctions are associated with legal control and may be:
- repressive/punitive e.g. deprivation of life or liberty (criminal)
- restitutive e.g. damages, compensation, apology, aims to restore the status quo (civil)
- regulatory, which aims to achieve compliance with a legal-admin regime via sanctions, e.g. denial or forfeiture of licenses, orders to cease and desist, deportation, etc.
- sanctions control our actions
- we forfeit certain civil liberties to allow government to act more effectively, control us better and protect against someone taking these further away
Main ways law can affect us (Cotterell)
- Empowerment
- can use law as a means of exercising or achieving power “to coerce, influence, make things happen, and get things done…[we can] invoke the aid of the state or, at least…make use of certain procedures, practices or circumstances of state agencies to further or protect [our] interests”
- examples:
- facilitate binding agreements through contracts
- organise family relationships
- legal action in courts can stop other people doing things or allow us to obtain compensation
- Disempowerment
- “involves feelings of vulnerability and insecurity, of being subject to official control or interference. It is often an experience of being threatened in precise, calculated, and complex ways by other individuals, agencies or collectivities, which are able to invoke law against the person…It may also be an experience of being made helpless by the technicality and obscurity of regulations and practice, which one does not understand but which nevertheless envelop and entrap the individual”
- examples:
- criminal law prohibitions
- zoning restrictions on how we use property
- censorship of books and movies
- Protection and security
- can provide the experience ‘of social peace, or of dangers held at bay; the sense for example, of safe streets and secure homes, reliable transactions with others, and of plans and investments in which reasonable expectations will not be frustrated. The experience of legal security is based on the belief that power is being used in unseen ways to protect citizens from unknown others (individuals, corporations, groups of various kinds) who might pose threats through unpredictable or irresponsible action, and from political or military authorities that might otherwise seem uncontrolled or unaccountable’
- examples: counter-terrorism legislation, police body cameras
Marxist perspective on law and power
- Hunt (1993):
- law is “inescapably political”
- law is “always potentially coercive or repressive”
- “the content and procedures of law manifest, directly or indirectly, the interests of the dominant class(es) or power bloc”
- class instrumentalism: law a means of maintaining economic power, blunt tool of the dominant class
- economic base, everything else is superstructure
- “crime in the streets” portrayed as more of a problem than “crime in the suites” (the privileged)
- but some laws benefit working classes: OH&S, social security, consumer protection, unfair dismissal, discrimination, human rights
- relative autonomy: later Marxist theory
- states and laws are not: wholly separate from ruling class interests or mere instruments of repression
- Poulantzas (1975): ‘by its very structure, gives to the economic interests of certain dominated classes guarantees which may even be contrary to the short term economic interests of the dominant classes, but which are compatible with their political interests and hegemonic domination’
Foucalt perspectives on law and power
- power is not just negative and prohibitory
- not held by one group or in one place;
- much more diffuse
- created, exercised by and within social institutions
- system of power relations
- not just held by law
-
Power/Knowledge (1980): what is power?
- “…must be analyzed as something which circulates, or rather as something which only functions in the form of a chain”
- “it is never localized here or there, never in anybody’s hands, never appropriated as a commodity or piece of wealth”
- “power is employed and exercised through a net-like organization… [Individuals] are not only its inert or consenting target; they are always also the elements of its articulation”
- channels for power:
- order is achieved through forces, techniques and devices
- all of which regulate decisions and actions of individuals, groups and organisations in relation to authoritative criteria
Forces of power
- legal
- economic contracts
- marriage rites (behaviours permitted/denied)
- land title (private property rights)
- architectural
- design and location of walkways, buildings and seating areas
- professional
- production of expert knowledge e.g. doctors control over body, psychiatrist control over mind, priests control over soul, etc.
- administrative
- time schedules (lectures, tutorials, deduction for non- attendance)
- following internal rules of bureaucracy (applying for leave)
- financial
- restricting economic power of individuals through imposition of taxes and fines or via adjustment of interest rates, prices
- social
- immediate peer group opinion, privileging expert opinion
Techniques of power
- notating
- recording
- producing documents
- auditing
- examining
- testing of knowledge or competence
- requires attendance at classes, workshops, training programs
- surveillance: video cameras, gaze of others
- testing of knowledge or competence
- computating
- manipulating numbers
- disseminating statistical data
- calculating
- knowing and managing risk - probability of being a victim of crime, having house burnt down, being in a car accident, etc
- evaluation
- providing ‘positive’ and ‘negative’ feedback - conform because tasks each of us perform are knowable to someone else
Devices of power
- surveys and charts: health, dress codes, political preferences via strategic release of ‘data’ - business forecasts, publication of criminal statistics, mortality rates
- systems of training: imprinting of routine, habit and discipline - work, army, school, family, etc.
- conceptual forms: circulation of stereotypes - normal citizen, normal child, normal vocation, normal economy, typical ways of knowing, normal political response, etc.
Law as a discipline
- law is a major player within the many types of power within society
- legal power is not a thing in itself, but a product of the interrelations between diverse and complex systems
- law’s power controls us not just, or even primarily, through prohibition, but rather through discipline— inculcating and naturalising certain patterns of thinking and behaving that we (re)produce
Law and culture
- law is a system of ideas:
- shapes & influences how people: think & act, view the world, imagine possibilities
- shapes concepts through which we understand social reality and relationships: property, contract, ownership, rights, duties
- Smart (1989): “power to define (itself and other discourses) is part of the power of law … in addition it is law’s ability to impose its definition of events on everyday life that interests me. For example, I shall examine how law’s definition of rape takes precedence over women’s definitions and how law manages to retain the ability to arrogate to itself the right to define the truth of things in spite of the growing challenges of other discourses”
- law is not separate from social structures and practices, but is a part of these things
- law controls social behaviour not as a set of rules imposed ‘from the outside’, but through internalisation as a way of seeing ourselves - the control that law has over us comes to seem obvious and natural to us