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The Law
December 14, 2011 - 11:54am
You can't edit the first post.
First off, I'd say the law is inevitable, since there is always some sort of enforced power, whether it is codified or not.
Any way you cut it, the powerful are going to try to use any situation to their maximum advantage. That is true whether you have a the rule of law, or whether there is no law.
(I'd say this is true in almost all large societies although certainly small societies can operate on consensus)
The difference is that when you have law there is at least some opportunity for the not-so-powerful to protect themselves.
That's part of the reason why I think that although there is a time and a place to resist the law, you have to be very careful when you make that decision, because you also also undermine the protection it might give you.
On the other side, most of the reforms we enjoy have only been enforced by the power of the law. And an example that is even closer to home, the only thing that has stood in the way of Harper doing a number of things - shutting down Insite, for one - is the law.
So RP, I agree with you on all your points about the imbalance. I just think we have no choice but to work with the law as much as we can. Plus there are odd occasions when, thank fortune, the law works really, really well.
"Truth is the summit of being. Justice is the application of truth to affairs."
Ralph Waldo Emerson
..for the reasons RP pointed out i woud hazzard to say that the law controls us more than it protects us. what protects us is the fear of uprisings.
I wouldn't say that is true, at least not in our society. Virtually all the violence and unrest we see is created by the powers that be, and any reaction on the part of victims just gives the authorities more of an excuse to exert more power. They aren't afraid of violence at all.
As for a nation-wide uprising and overthrow, this country is nowhere near that point, nor would I wish the level of widespread oppression that it would ever come to that.
..i see things differently. it is because we have had uprisings outside the rule of law that the benefits we have today were won. it is precisely because we have not rebelled on a larger scale that the powers that be have been able to wage violence against the peoples of the world via globalization, environmental degradation, war and poverty.
Which uprisings are you talking about?
I mean, I can think of uprisings which have changed history, but they didn't always turn out that well. There are at least as many (and probably more) cases of reform coming about by enforcing the rule of law AGAINST unrest.
More often (at least in terms of our history) it is a case of an uprising or revolution failing, and then people being inspired by that example, getting organized, and setting about to make change through more conventional means.
As for winning our benefits through uprisings, it is rarely that simple. It sure sounds good, but then soldiers dying for our freedom is also a stirring rallying cry.
..twice now you have connected uprisings with violence. this is not my view though i concur that violence at times occurs. i also make the distinction that uprising are not a revolution though they may grow into one. it is my contention that uprisings occur all the time and for the most part don't make it into the history books as such. i will speak of the one uprising that i am most familiar with in that i participated in it. i understand that you may disagree with me but also know that this doesn't make me wrong.
..cupw was born from an uprising. after years of broken promises and abuse the montreal postal workers wildcatted in the late sixties. it was totally illegal for them to do so. one other point i'd like to make is that the montreal local was very much a part of the left in quebec at the time so very into separation and very open to the idea of non violent revolution. toronto and vancouver followed and to make a longer story short the government was freaked by the notion that workers, when even they got the notion, could go on strike even if they did not have the legal right to do so. this was untenable for them. these workers were out of control.
..to get them into control they gave postal workers the right strike and bargain collectively. Since then they have legislated postal workers back to work 90% or more of the time. so legalization as a form of control. granting the postal workers union rights forced the government to provide the same for the rest of the public service.
..the government never got over this and from the get go there began a pitched battle for control of the shop floor. for me, this battle continued until the late 80's when i left the po but don't see any change in the struggle. many people see the strike as the the determining factor in winning concessions but is see the strike as a validation of the struggle that has been occurring on the shop floor, the level of which i can only see is an uprising that began in the late sixties.
..now my question to you. why do you view uprisings in such a narrow way?
I don't, actually.
I didn't use the word violence to describe the actions of those who rise up, and in fact when I think of it it is more violence acted UPON those who stand up (and I said so already) - in Estevan, Regina, Toronto, Vancouver, Montreal or Winnipeg, or any number of other places. Nor do I discount the importance of uprisings when people are pushed to that point. But it is important to remember that those uprisings are, like war, often the actions of last resort, when everything else has failed.
My point is that the fruit of those actions - real change - usually only come about afterwards, once people have gathered the resources to beat the oppressors at their own game, using the power of government and the law.
And also, that there are plenty of cases in which progressive change comes through imposition of the law - and I'll offer struggles like civil rights, reproductive choice, protection of children, marriage equality, public health care, and the birth of democracy in this country - as just a few examples where the forces of opposition went outside of the law to try and resist change.
(edit)
But to get back to your point of uprisings being something that the government fears, I don't think so, and I see little evidence of it. At best I can think that there are some instances in which they need to deal with it as a price of doing business, but really, they gain far more from unrest than they lose, at least in our country.
Sorry if I perhaps didn't explain myself well.
This is a popular way of looking at the SCC--I often do it this way myself. There have been a number of times the Courts have relied on section 7 that seem to have thwarted oppressive actions of the state, even against classes the state and ruling classes actively work to marginalize and harm.
To take your example, InSite has been taken as a victory by many people in the DTES. And it's true things would be much worse if the SCC had ruled differently. But that doesn't absolve the Court of their role, nor does it turn them into a force of good, or good politics, or anything close.
First: InSite had to fight for its existence tooth and nail, for several years, before the court made what should have been a slam-dunk decision. If InSite did not have the dedication of its people behind it, or if its benefits to the community were harder to see or not as emphatic, it might not have made it. In fact, without the institutional support of Portland Hotel Society or UBC, it wouldn't have. Which leads us to:
Second: The law cannot be reduced to its decision. It is process, resources, discourse and practice above all else. Would you say that InSite or the people it serves benefitted from anything except the decision? The answer is almost certainly no.
Third: an argument could be made that the courts actualy aided the state in its ongoing project of creating an isolated class unfit for the general rights of citizenship: to wit, the addict. I note that many activists and progressives fetishize InSite as a panacea (or close enough) to many of the problems of the DTES (much in the same way it entered this conversation here). The discourse surrounding InSite and this case of served to forge a coincidence in public consciousness between addicts and the DTES, further entrenching stereotypes of Vancouver's most vulnerable citizens as drug-users above all else. The limit of care was set by the courts in this case: free access to safe drug use. Not: homes, health care, food, social programs, womens' shelters, protection from developers, responsible policing or any number of other things whole human beings deserve.
If you spend any time in the DTES, it's very difficult to see the State's work as any thing except cynical. And the law is an agent of the state, even if it seems like it's working against it (à la Harper and the SCC). It's important to note that many progressive advances the SCC have made, however contrary to government policy at the time and even those which result from long struggles of activism and lobbying (SSM, abortion, etc.) have also benefitted the status quo at the time of implementation and were quickly picked up by all mainstream electoral parties. So what role do the courts play in such instances? Are they merely the consciences of our parliament? It's a question worth asking, as RP does above.
Too many things going on at once in this thread. Some views:
- I can't imagine progressive-minded people questioning whether there should be rule of law in human society. The issue is who makes the laws, and for whose benefit.
- There are unjust laws which deserve to be resisted, through a variety of means - lawful, and sometimes "unlawful". Epaulo13 gives an excellent example. The rule of law, and civil disobedience of various forms, are only incompatible when one takes a narrow view (or if one is working for the ruling class).
- The courts (including the SCC) is supposed to interpret the law as well as ensure that the legislators are not running afoul of the constitution. Sometimes the Supreme Court has done good things. Other times, they have struck down progressive legislation.
One of the most horrendous decisions in recent years is Chaoulli, where the SCC struck down Québec laws which prohibited private insurance coverage for medical services covered by medicare, and prevented doctors from providing private surgical or emergency services in publicly funded hospitals.
If we, the people, were in charge of making laws, we would respond to harmful court decisions by changing the laws for the better. Instead, Charest's Liberal government responded by saying, "well, we have no choice, we have to expand two-tier health service".
Ultimately, it makes no sense to me to blame or credit the courts. The question remains, who makes the laws, and in whose benefit.
@ Catchfire
I agree with your assessment that the court decision is only part of it. That is why I pointed out that I don't discount the importance of uprisings, but that neither are they the end of a process. They are what happens when there is no other recourse.
But also, I would make a distinction between the government and the law. Even though technically the court is part of our government, one would hope that if it functions properly it is distinct from the government of the day and its policy. And if we look at how Harper is attacking the foundation of our courts, and our access to them, he sees it as a threat to his power.
As I said above, I don't think there is any way around it, because no matter what sort of system we live in, there is always going to be a law - whether that is enforced in an orderly way, or by sheer might.
I think it is in our best interest to make things work in the first way as much as possible - especially for in the interests of those of us who are most vulnerable.
I can't find anyone who want to remove the rule of law in this thread, but I also can imagine it. So I guess I disagree twice. As for the second bit, this is part of it, of course--but the issue is also who is part of the process, who develops that process and who is allowed judgement. It's a myth that "interpretation of the law" (which is a process and practice, not a thing) developed objectively and without influence from ideology. Indeed--it is ideology.
Then we may be talking past each other, Catchfire, because I am under no illusions about the fact that the law is often applied unfairly.
There was a piece on CBC radio this morning about a spike in black people in prisons (up 50% in the last five years) - in Ontario, I believe it is.
And while I am not accusing RP of wanting no law whatsoever, to say that the law is an ass raises the question of what purpose it serves at all.
I am just saying that to uphold the rule of law as much as possible, and to do everything we can to make it be more fair is our best option - and in fact our only reasonable one.
There are enough people who would love to see their will done through upheaval and overthrow of the law, and not all of them are our friends. I am thinking specifically of people who would like to act on their religious beliefs, but there are plenty of examples, some of which I already mentioned.
And for that matter, our governments (and I include police as an arm of government) often don't act with in the law except when forced to, And I don't think they are afraid of uprisings or resistance at all.
Winston, I was addressing Unionist. So I guess I was talking past, you but not in the way you suggest.
We in the West like to think of the law as objective. As a perfect, holy thing rather than an historic assemblage of oral histories, usually (if not always) uttered by the powerful. See, you can't create a new law. Whatever law we have as a society will always be built on the law we already have, the law we already inhabit. So it will always (already) be flawed, biased, damaged--yes, unjust.
That's why I can imagine a world without "the law" as such--in the same way I can imagine a world without a police force, without a military, without a president. But I also imagine we'll get there by making laws, pracitices, and agents for and by the people who it has historically targeted and victimized.
@ Catchfire
I know you were speaking to him, but I was thinking of the assumption that some of us think the law is objective. I know that it is not. Well the term is meaningless, actually.
And in case I didn't make it clear enough, I don't see civil disobedience as incompatible with the law either. As I said, I think on just needs to be careful and aware when one engages the law in that way. Because ideally, civil disobedience is not an act of disrespect, but done in order to improve the law by changing it.
Realizing that you and I see a good many things differently, I do see strong parallels in part of how we are approach this. And I think we see some of the same flaws in the law.
But looking at how reform has come about, in most cases it is through stronger protection under law. If I read the last part #16 correctly, we may agree in part on that.
My introduction, if you want to understand it (because you didn't), was aimed at telling 6079 that we needn't debate in the abstract whether it's good or not to have laws, because I couldn't imagine progressive people putting forward such a viewpoint. Apparently you were looking for something to disagree with, and you found two things! Well done.
Well, I agree with that. But I was kind of focusing on priorities as I see them. If "the people" can write the rules, and the popular will is then consistently undermined by judges who don't share the same ideology, then we can deal with the judicial system. If, on the other hand, you can think of significant examples of progressive laws that are being undermined by reactionary judicial interpretation, I'd like to hear about those. My impression is that they exist (I gave an example in this thread), but that the opposite is more frequent. There are many heartening recent examples of courts telling the executive branch that it's violating the law (the latest being the CWB decision). Enforcement, of course, is difficult, when you're living under a dictatorial regime, and where the "Opposition" puts limits on itself and on everyone else.
Sounds like the Foucauldian approach. I think a reading of 'Discipline and Punish' might be of assistance to people in trying to understand where our modern system of law and justice evolved from, and what is its design today. Here's a brief overview for anyone interested:
Discipline and Punish
Well we are just talking, after all.
And I don't see any problem getting it out there and out of the way. I am not pointing any fingers here, but there are some people who are opposed to laws in principle. It's not that outlandish an idea.
Not wanting to drag other threads in here, but we have run into this very same point elsewhere - not whether there should be no law, but whether we can just choose to obey it or not - which is essentially the same thing.
And if we're going to talk about the purpose of the law it doesn't need to dominate the thread, but it's a fair question.
Before I get called on it, I should point out one exception about civil disobedience, and other challenges to the law - that of jurisdiction. For instance, that a certain law should not apply on a First Nation.
I don't believe anyone here would prefer a society of complete lawlessness, even compared against the injustice inherent with many of our existing laws. An objective view of the practice and application of the law in this country though would probably be a worthwhile objective for purposes here. Just as an example, if we were to consider the recent polygamy ruling from BC, we could ask what were the major influences to the decision. If we were to say protection of women and female children was paramount and therefore the ruling was a just one, we could certainly accept that at face value, but then we'd have to ignore the many other instances and situations in this society where after many decades of judicial intervention and rulings, the protection of women and children doesn't appear to have been the primary concern either then or now. And so in the case of rulings against the practice of polygamy, what other influencing factors could we examine? Ideology as CF suggested would immediately spring to mind; certainly as well the influence of the dominant theology, even perhaps Victorian sensitivities spanning across three centuries. We'd end up imagining an entire range of unobjective influences that could potentially hold sway over the determination of one single case out of countless thousands dealing with social policy. And this would be before examining anything to do with criminal law and the prison system.
Thanks, all for this discussion. This poem is framed at home.
What an interesting and hopeful poem. Thank you.
I think another good way to look at it is the maxim that the law should be a shield and not a sword.
Not sure who the first source of that is; I know WIlliam Blackstone said it, and others have since.
(Blackstone also said that it was better that 10 guilty people escape than to have one innocent person suffer)
Although we should never forget the flaws and inequities in the law, I think is it important to remember that there have always been jurists, politicians, and lay people struggling to make the law the shield that it should be. It has never been just a one sided thing.
re: lawlawlaw as mask for imperialism and persecution masquerading as prosecution
Indefinite Detention Bill Passes in Senate
http://rt.com/usa/news/indefinite-detention-bill-senate-905/
"Exactly 220 years to the day the Bill of Rights was ratified, the US Senate today voted 86 to 13 in favor of the National Defense Authorization Act for Fiscal Year 2012, allowing the indefinite detention and torture of Americans.."
and this from the disbarred Canadian dissident legal theorist and international lawyer Bruce Clark
http://mightisnotright.org/revolution-redux.php
"The following article details the actually quite simple and straightforward legal procedure that needs to be implemented, by ordinary People to save themselves, their descendants and indeed just about everything else that moves in, on and above this shared earth, from the seemingly insurmoutable and arbitrary power of the new empire.."
It's a good thread RP - lots happens under its auspices. Canada is supposedly a "country based upon the rule of law"...
Oh poo, Unionist. It was a joke. How could I disagree with you more than once? In the same week let alone the same post? Preposterous.
I'll never tell.
..many times i have seen governments moved by fear of uprisings. fear that the population will judge their behaviours as being inappropriate and respond by “throwing the bums out” only to bring the other bums in. it's the police or the army (the tools) that are fearless. so disasters occur and laws get passed regarding the food we eat, the water we drink, the air we breath and practically anything else, all for public consumption with no intention of enforcement or proper regulation. and where real effort is forced on them they do so only to immediately begin the process of weakening the laws they have just passed.
..and then there's other laws that institutional the fleecing of the population through trade deals and international pacts that legitimize theft of other people's resources and wealth which can come full circle to be visited on their own population. the legal system is every bit as corrupt as the political or economic system and i am unable to see this as some kind real protection.
@ NDPP
That second link is quite interesting; I will have to give it a closer read, because it seems good.
Curious though, that he seems to think the U.S. was founded as an anti-imperialist democracy, and that it started out on the right foot. It's not quite the whole story.
Many of the colonists came to the new world to avoid the protections afforded by the rule of law - like religious tolerance which was eventually used to stop Massachussets theocrats from executing Quakers. Of course the myth they tell is the exact opposite - that they came for religious freedom.
And it is certain that many slaveholders saw the Somersett ruling in 1772 (which struck down the legal foundation of slavery in England) as a sign of what was eventually to happen throughout the empire. One more reason to cut ties.
In fact the people who drove the revolution were the most powerful bloc of the imperialists. They didn't seek to form a consensus - they drove out anyone who opposed them, and they did not represent anything like a clear majority - not among the Native people whose land was stolen, not among the slaves, nor even among other settlers, some of whose colonies they invaded, and others who they eventually turned into refugees. They didn't invite the people ofQuebec to join them in revolution - they went in with an army and tried to order them.
And their war of independence was bankrolled largely by offering themselves as a pawn in an imperialist struggle to an autocratic monarch.
Obviously there were many valid grievances, and many of the founders of the U.S. had noble ideals, but their states were far from unified, and the government and constitution they produced were far from perfect.
But that aside, I do want to read his material more. I don't know nearly enough about it to know if it is something that would stand up, but it is interesting, and the laws he is trying to oppose set that country back centuries.
But then again, it is not surprising, considering 10 years ago the U.S. started trying to redefine torture so it wouldn't fall under the law, and moved courts to Guantanamo, also outside the rule of law.
and @ epaulo
Yes, I know and I agree that there are some states which fear uprisings. But there are very few cases of Canadian administrations holding back, or making a decision because of such a fear - the 1918 strike in Winnipeg is one example, or perhaps perhaps RB Bennett trying to bring in 11th hour reforms in 1935. But he was afraid of what was waiting for him at the ballot box.
I am not trying to say that uprisings, labour actions or blockades have not produced anything, or have never been successful. I know they have; I just don't think they are something any Canadian government lives in fear of.
If anything, our governments have reacted harshly in many cases. Even in the conscription crisis of 1917, the government reacted by invoking the war measures act, and followed by introducing stricter conscription measures.