The Law

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RevolutionPlease RevolutionPlease's picture
The Law

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RevolutionPlease RevolutionPlease's picture

I'm not likely to keep up with the highbrow conversation but 6079 brought up an interesting topic in another thread:

Quote:

Even when it needs to be changed or resisted, the law is one of the most important things there is, and we ignore it at our peril.

I'm of the casual camp, the law is an ass. I'm also cognizant and in favour of the basic rule of law. The subsequent execution and writing of said rule is where I disagree.

If the law is written by men, how can it create equity for women?

If the law is written by white folk, how can it create equity for the other?

If the law is written by rich folk, how can it create equity for the impoverished?

In short, the law is an ass.

6079_Smith_W

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.

 

 

RevolutionPlease RevolutionPlease's picture

Thanks 6079, I didn't realize how easily you could elucidate how I should see it. Going back to thinking about it. And in a way I can see how the law should really help us as progressives.

Unfortunately, I can't come up with examples off hand, but for some reason I've still got this lingering feeling it generally doesn't work how it's theorized. For every Insite you can offer, there's plenty more wrong about it.

Thank you for engaging, I'm very curious about this and peoples attitudes toward it.

NDPP

"Truth is the summit of being. Justice is the application of truth to affairs."

Ralph Waldo Emerson

epaulo13 epaulo13's picture

..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.

6079_Smith_W

epaulo13 wrote:

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.

 

epaulo13 epaulo13's picture

6079_Smith_W wrote:

epaulo13 wrote:

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.

6079_Smith_W

epaulo13 wrote:

..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.

epaulo13 epaulo13's picture

6079_Smith_W wrote:

epaulo13 wrote:

..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?

6079_Smith_W

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.

 

Catchfire Catchfire's picture

6079_Smith_W wrote:
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.

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.

Unionist

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.

 

6079_Smith_W

@ 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.

 

Catchfire Catchfire's picture

Unionist wrote:
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.

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.

6079_Smith_W

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.

 

 

Catchfire Catchfire's picture

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.

Unionist

Catchfire wrote:

Unionist wrote:

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.

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.

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.

Catchfire wrote:
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.

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.

 

 

 

Slumberjack

Catchfire wrote:
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.

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

6079_Smith_W

@ 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.

6079_Smith_W

Unionist wrote:

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.

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. 

 

 

6079_Smith_W

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. 

Slumberjack

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.

Ripple

Thanks, all for this discussion.  This poem is framed at home.

Quote:
MY NAME IS HAMMURABI
By David Morgan

My name is Hammurabi, Law Giver
and I speak to you, my people
in the beloved land of the two rivers,
I speak to you across the centuries.
I, Hammurabi who gave the law to my people
in order that the strong
should not oppress the weak
and that the widows and orphans
should be rightly protected,
I speak to you in your hour of need
in an hour when this beloved land
is oppressed from afar by the strong
who lay-siege to it like a city
who cause the water channels to dry up
who make the farmer's land into a desert
who bring great hunger and starvation
who bring disease and death to our children.
This, while many of the people
in the lands of the strong,
in the lands of your oppressors,
know-not what they do,
and many who know, care-not;
I speak to you, beloved people
in this hour of pain and sorrow
and I say to you:
Be comforted.

For did I not set out in this land
the words of the law?
and did I not cause this law to be written
on pillars of hard stone for all to see, in many places?
and did this law not grow from the ancient customs
and the wisdom of village, town and city?
and did this law not bring justice and peace
to our beloved land of the two rivers
so that water flowed in all the channels
so that our fields rippled with grain
and so there was laughter and song in the villages?

And through these many centuries
has the law not spread to all lands,
Even to the lands of your oppressors?
And is it not written and set out there,
for all to see in many places?
And do the laws of your oppressors
permit and allow the strong
to oppress the weak?
And do they fail to protect
the widows, the orphans and the little children?

So I say to you: Be comforted.
For though your oppressors are strong
and come against you with great weapons of thunder
yet their purposes are small
and they have no vision,
and those who do not obey their own laws
shall come to nothing.
For the centuries are full
of those who brought fire and destruction
of those who did not follow the law
and those who lacked wisdom:
the stiff-necked, the haughty,
the cruel and the greedy,
and the nations that they led
have vanished and their names
have become a curse
in the mouth of mankind.
For the law is more enduring
even than hard stone
and the nations that have no law
and the nations that mock their own laws
come quickly to an end.
So your oppressors shall not endure
they will crumble and blow away like dust;
like a house of mud in the desert wind
they will vanish and be gone.

by David Morgan, Vancouver BC, 6 April 1998

 

6079_Smith_W

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.

 

 

 

NDPP

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.."

 

 

RevolutionPlease RevolutionPlease's picture

Just wanted to make it clear that I did not start this discussion in a vein of questioning the rule of law. Perhaps my hyperbolic "the law is an ass" wasn't helpful. I thought it useful to question how it is put into effect. And I really appreciate the discussion, as it's helping me to understand it more.

NDPP

It's a good thread  RP - lots happens under its auspices. Canada is supposedly a "country based upon the rule of law"...

Catchfire Catchfire's picture

Unionist wrote:
My introduction, if you want to understand it (because you didn't)...Apparently you were looking for something to disagree with, and you found two things! Well done.

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.

Slumberjack wrote:
Sounds like the Foucauldian approach.

I'll never tell.

epaulo13 epaulo13's picture

6079_Smith_W wrote:

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.

..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.

6079_Smith_W

 

@ 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.

 

 

 

 

NDPP

I also find the history idealized but as it seems to be a pitch to the broader citizenry to support a case that's stonewalled by the US Supreme Court - the appeal to 'save' the supposedly good and great Constitution is sugared up accordingly. As you say though an interesting attempt to pit law against judiciary, legal and political establishments.

epaulo13 epaulo13's picture

..the martin administration is a perfect example of the fear i speak of. the last days brought forth reforms, such as the kelowna accord, the likes that would have been interesting to say the least if the libs had been re-elected.

6079_Smith_W

@ NDPP

True, 

I can see a lot of people just shutting their brains off if he tried to pitch it to them any other way. 

epaulo13 epaulo13's picture

..i have a theory that uprisings go on all the time. there is an uprising from the peace movement, the anti poverty groups etc. we as individuals rebel constantly against being controlled. we are alienated from one another more than is healthy for us. we are struggling to find ways to come together. the state knows this very well as does the 1%. it uses laws, amongst other things, to distract people from doing what comes natural..overthrow them all. in the same way they declare their love for democracy.

Maysie Maysie's picture

First, thanks for that amazing poem, Ripple.

Catchfire wrote:
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. 

Ack! While I know you don't agree with this, Cathfire, repeating it this way only epitomizes the fact that the contributors to this thread have experienced the privileged side of the law and the criminal justice system. People of colour, new immigrants, refugees, and other marginalized groups feel the law as a boot on the neck, every day, in various forms.  

Smith wrote:
 Many of the colonists came to the new world to avoid the protections afforded by the rule of law

Ack ack!

Without realizing it, Smith, you've hit on part of the problem. The law was indeed created by the settlers/colonizers/ruling classes and it was indeed created to benefit them and only them. The fact that sometimes it happens to benefit other folks is merely happenstance. "Other folks" meaning the professional middle classes, the working classes, the educated classes, and others.

The law is regressive. The law is reactive. Laws that protect the so-called marginal classes come into being after months and years of lobbying. The Persons Act? Suffrage? Same sex marriage? It's not as if the legal system took the initiative on any of these improvements. In fact, it took considerable work, energy, effort, time and resources to bring about all of these changes in the law(s). 

As for those who don't have the energy, time and resources? Such as the most vulnerable? Migrant workers, sex workers, youth under 18, abuse victims of all ages and genders? The law pretty much says to them "fuck you". For example, women who are staying in shelters to escape abuse who are then deported by Canada Border Services. This is perfectly legal. And despicable.

RP, your opening comment "the law is an ass", is exactly my sentiment. Don't go changing. Smile

Unionist

Maysie wrote:
... that the contributors to this thread have experienced the privileged side of the law and the criminal justice system. People of colour, new immigrants, refugees, and other marginalized groups feel the law as a boot on the neck, every day, in various forms.

While you know how much I've learned (or tried to learn) from you over the years here, Maysie, sometimes your posts leave me bewildered.

Your knowledge of "the contributors to this thread" is necessarily limited, so how about making your points based on their written views, rather than your assumptions? But at least in some cases, you must already know some things. For example, you know that some have experienced their family being murdered by a racist occupying force, acting in flagrant disregard of both the laws of the occupied country and indeed of their own laws. Does that feel like "a boot on the neck, every day"? Maybe not by your definition. But if it drives and inspires someone to get up every morning and fight alongside the forces of progress and peace and justice in the world, then yeah, maybe, a little bit.

Then there are the workers. There are some in this thread. Maybe they fit into what you called "marginalized groups". You don't think they "feel the law as a boot on the neck, every day"? Did you know that if two workers at a unionized workplace decide they've had enough abuse piled on them at work, and they email each other and say, "Let's stay home today till jerkface realizes how much he needs us" - that they are acting unlawfully? It's called "concerted action", is defined as a strike, and is prohibited outside a narrow window of time every few years.

And when they do exercise their legal right to not come to work during that narrow window, the government just, well, changes the law, and forces them to show up on pain of fines or imprisonment. But that's not a daily boot, right? Nor is the fact that the people who produce everything own nothing except their own personal possessions, while those who produce nothing (the owners) own everything, fully protected from the evil workers' uprisings by the full force of the law?

 

Quote:
The law was indeed created by the settlers/colonizers/ruling classes and it was indeed created to benefit them and only them. The fact that sometimes it happens to benefit other folks is merely happenstance. "Other folks" meaning the professional middle classes, the working classes, the educated classes, and others.

No, it's not happenstance, it's the result of relentless struggle - but time marches on, and the legal victories which served those in struggle are turned against them - and the struggle must resume.

Quote:
The law is regressive. The law is reactive.

Of course it's "reactive", because it's the product of struggle. But how does that make it "regressive" in all cases?? The very laws you cite below were reactive, but regressive?? By conflating those two notions, you display the very skepticism about the rule of law which Catchfire claimed above was so non-existent among people in this thread that it wasn't even worth mentioning.

Quote:
Laws that protect the so-called marginal classes come into being after months and years of lobbying. The Persons Act? Suffrage? Same sex marriage? It's not as if the legal system took the initiative on any of these improvements. In fact, it took considerable work, energy, effort, time and resources to bring about all of these changes in the law(s).

Exactly. Positive changes in the law come from struggle, from below, not from above. Who even hinted that it's the "legal system" (whatever that may be) that initiated these changes? But once the struggle has shown some small successes, and has forced the adoption of laws that protect workers, that prohibit discrimination in employment and lodging and public services, that prohibit gender discrimination in all spheres of public life, and I'm not even going to attempt a full list... you then go on to applaud the statement that "the law is an ass"? At least take a moment to make a distinction between the laws that we fight to obtain and those that we fight to abolish?

Quote:
As for those who don't have the energy, time and resources? Such as the most vulnerable? Migrant workers, sex workers, youth under 18, abuse victims of all ages and genders? The law pretty much says to them "fuck you". For example, women who are staying in shelters to escape abuse who are then deported by Canada Border Services. This is perfectly legal. And despicable.

Yes, exactly. But it's not "the law" that says "fuck you" to them. It's the capitalist system, and the people who run it, which allows the owners and the wealthy to access all the laws (good and bad) and gives little or no access to the rest of us. Your last statement is the conclusive evidence that fighting to reform the law can never be enough, because the spoils of victory will either be snatched back or never allotted fairly in the first place. But to blame "the law" or "the legal system" is, in my opinion, equivalent to taking a long nap when there's work to be done.

You started your post by praising Ripple's poem. Yet it stands for the opposite of your "law is an ass" proposition. It condemns to extinction those oppressors who do not even obey their own laws. It is a ringing tribute to the rule of law.

Slumberjack

Maysie wrote:
.... contributors to this thread have experienced the privileged side of the law and the criminal justice system. People of colour, new immigrants, refugees, and other marginalized groups feel the law as a boot on the neck, every day, in various forms.

But we're the only ones on the board for the most part.  Other than acknowledging the obvious and attempting to learn something of it, I don't know how any other criteria could apply which would enable anyone to carry on with such a conversation with any legitimacy.  Here it's really a preference between engaging in a discussion about the law from a privileged perspective, or nothing at all.  I can't imagine conservatism wanting these matters openly discussed either.

Slumberjack

Unionist wrote:
No, it's not happenstance, it's the result of relentless struggle - but time marches on, and the legal victories which served those in struggle are turned against them - and the struggle must resume.

I don't think it's happenstance either, but relentless struggle just might have some influence when it comes to legal victories.  I would say that no rights are given over unless there is some benefit to the power structure enabling the rights.  When they have the final say as to what exceptions will be put in place in any given situation, ranging from security certificates or random police arrests and beatings of the disenfranchised, we can see that rights are acknowledged or removed at the pleasure of the dominant structure.  Regarding happenstance and struggle....of what possible benefit to the economic power would the extension of a few rights to as many productive workers as possible be to an industry based society which requires stability in order to maximize profit?

Catchfire Catchfire's picture

Unionist wrote:
 By conflating those two notions, you display the very skepticism about the rule of law which Catchfire claimed above was so non-existent among people in this thread that it wasn't even worth mentioning.

Wtf? Is this a drive-by? I don't even know what it means, let alone what I am meant to have "claimed." 

Quote:
 it's not "the law" that says "fuck you" to them. It's the capitalist system, and the people who run it, which allows the owners and the wealthy to access all the laws (good and bad) and gives little or no access to the rest of us. 

This is about the crux of what I've been saying--the law is not separate from capitalism, anymore than we are. The law is a catalogue, an index, an oral history of our society--as such it cannot be separated from the socioeconomic system we have created to govern us. It is, in fact, the law which says "fuck you," in chorus with all the other institutions and practice which oppress and marginalize people in the service of the system which binds us. "Concerted action," as you know, doesn't change the law--it changes consciousness, and the law always follows suit. It has to.

Unionist

Catchfire wrote:

Unionist wrote:
By conflating those two notions, you display the very skepticism about the rule of law which Catchfire claimed above was so non-existent among people in this thread that it wasn't even worth mentioning.

Wtf? Is this a drive-by? I don't even know what it means, let alone what I am meant to have "claimed."

In [url=http://rabble.ca/babble/humanities-culture/law#comment-1301689]post #14[/url], you said, "I can't find anyone in this thread who want [sic] to remove the rule of law...", in response to my statement that I couldn't imagine progressive-minded people questioning whether there should be rule of law in human society. So no - it's not a drive-by - it's a walk right in, sit right down, and #Occupy!

Quote:
"Concerted action," as you know, doesn't change the law--it changes consciousness, and the law always follows suit. It has to.

Correct. And the law which emerges from that is an "ass"? That's the proposition that I'm opposing here. The one that opened the thread and which Maysie is applauding.

 

6079_Smith_W

Maysie wrote:

Smith wrote:
 Many of the colonists came to the new world to avoid the protections afforded by the rule of law

Ack ack!

Without realizing it, Smith, you've hit on part of the problem. The law was indeed created by the settlers/colonizers/ruling classes and it was indeed created to benefit them and only them. The fact that sometimes it happens to benefit other folks is merely happenstance. "Other folks" meaning the professional middle classes, the working classes, the educated classes, and others.

 

Nice of you to take one sentence, and twist it out of context  rather than actually reading the whole of what I wrote.

And "without realizing it"? That is simply insulting. 

I think I may have mentioned the colonizers making their own law in that same post. Did you read it?

In fact I addressed most of the points you bring up already, and agree with most of them. Except sorry. I think your second last sentence is simplistic nonsense. Yes I am aware of the powers that dominate the law. I think I mentioned them in my first post. But any reforms we now enjoy are also brought about through through hard work and changing that same law.

 

 

Unionist

Slumberjack wrote:
I would say that no rights are given over unless there is some benefit to the power structure enabling the rights.

I would say you're mistaken - except in the most simplistic sense. The U.S. retreated screaming from South East Asia in the early 1970s, thus "giving" various countries their independence. The "benefit" to the U.S. was to avoid more body bags coming home, or to avoid the messiness of maybe pushing the nuclear button and having one pushed back at them.

The Canadian Parliament "gives" couples who are not of the same sex the right to marry lawfully. The "benefit" to the power structure is to avoid further struggle, embarrassment, inconvenience, for diminishing returns... when the struggle for human rights has already changed the consciousness of a majority of Canadians.

Surrender is always a "lesser of evils" scenario for the defeated party. That's no reason to diminish the significance of the victory of popular struggle... nor of the concessions which the people wrench from the unwilling hands of the oppressors.

If winning of any rights, even the most minor, were truly contingent on the elimination of the entire "power structure" (which your post implies), then the level of struggle and resistance would diminish, out of frustration and cynicism. We'd have to wait for the system to collapse of its own weight, while playing no role on a daily basis in bringing it down.

 

6079_Smith_W

@ Catchfire #39

I don't want to give the impression that I don't understand what you are talking about. I do. 

But the fact is what you are talking is theory on the same order of whether there should be no law at all. 

Fine for parlour conversation and a good thing to keep in mind, but it has almost no relation to how we deal with systems of power in the real world, or how we work with the law to change society. 

In short, I think we all know that many parts of the law are dominated by the powerful. THat fact is unlikely to ever change no matter who is running the show, so while it is instructive, it doesn't offer much practical guidance.

 

 

 

Catchfire Catchfire's picture

Unionist wrote:
In post #14, you said, "I can't find anyone in this thread who want [sic] to remove the rule of law...", in response to my statement that I couldn't imagine progressive-minded people questioning whether there should be rule of law in human society. So no - it's not a drive-by - it's a walk right in, sit right down, and #Occupy!

Yeah, I still don't really get what you are driving at. Maybe you could specify what you mean in the section I quoted of #36. I can't get it to make sense.

6079_Smith_W wrote:
Fine for parlour conversation, but it has almost no relation to how we deal with systems of power in the real world, or how we work with the law to change society.

Glib dismissal aside, how is "the real world (sic)" working out for you? And "working with the law to change society"? This fantasy operates under the dangerous assumption that those in power don't have theory.

6079_Smith_W

Not a glib dismissal, Catchfire. I recognize those dynamics just as you do. The point is that it is what we have to deal with right now, and whether that law was made by the capitalists , or the Romans, or Moses, or the rich white guys sitting around the Magna Carta, or by Sengbe Pieh, doesn't really change that fact.

And frankly, I don't think the nuts and bolts of it will ever change -  and certianly not if we imagine that it is just a tool of the oppressor and refuse to engage it.

The real world? It's a struggle and requires work. Always has, and always will.

 

M. Spector M. Spector's picture

Quote:
Here’s the other difference between the one percent and the rest of us –

The crimes of the one percent inflict far more damage on society than those of the 99 percent.

And they tend to get away with their crimes.

While we tend to get nailed.

The big multinational corporations, which are the primary delivery systems of wealth to the 99 percent, have rigged the justice system so that when they get in trouble with the law, they either aren’t prosecuted for their crimes, of if they are, they get special treatment – non prosecution or deferred prosecution agreements.

If they end up in the civil courts, they also get special deals – like neither admit nor deny consent decrees.

True, they pay fines, often in the tens or hundreds of millions of dollars, but this is pocket change to them – the equivalent of a parking ticket for serious wrongdoing.

They marinate the halls of power with campaign cash, flood them with lobbyists, and lubricate the revolving door – all to undermine our system of justice.

Out of the more than 500 stories we’ve written for Corporate Crime Reporter this year, here are the Top 100 – selected by our crack editorial team.

[url=http://corporatecrimereporter.com/top10012162011.htm]Top 100 Corporate Crime Stories of 2011[/url]

Slumberjack

Unionist wrote:
I would say you're mistaken - except in the most simplistic sense. The U.S. retreated screaming from South East Asia in the early 1970s, thus "giving" various countries their independence. The "benefit" to the U.S. was to avoid more body bags coming home, or to avoid the messiness of maybe pushing the nuclear button and having one pushed back at them.

The Canadian Parliament "gives" couples who are not of the same sex the right to marry lawfully. The "benefit" to the power structure is to avoid further struggle, embarrassment, inconvenience, for diminishing returns...

You appear to be saying that it mightn't be entirely evident to some others in the thread that the economy based power never gives up anything unless a benefit is taken in exchange, and so perhaps a little peripheral context might be helpful? 

Quote:
That's no reason to diminish the significance of the victory of popular struggle... nor of the concessions which the people wrench from the unwilling hands of the oppressors.

No, I believe struggle plays a role because if we are talking about internal movements for example; especially in a historical context before economy developed the sophisticated techniques it employs today, the general impact on productivity from strikes and other forms of direct action eventually led to the negotiations.  Struggle as an argument doesn't yet, however effective it may be, diminish facts which tell us today in every wretched detail that the economy has never before enjoyed such dominion.  How can it be said that power lost anything through negotiation?

Quote:
If winning any rights, even the most minor, were truly contingent on the elimination of the entire "power structure" (which your post implies), then the level of struggle and resistance would diminish, out of frustration and cynicism. We'd have to wait for the system to collapse of its own weight, while playing no role on a daily basis in bringing it down.

In places where they have brought things down, something else always appeared to bring in a renewal of sorts.  Today we have to wonder if anything was ever truly brought down that remained down.  Diminishing returns as you mention is a handy reference to examine the condition of the struggles we see in the West today.  In the political fun houses where they party like they're 1999ers, and from a largely barren street that hasn't seriously challenged anything in ages, we can see the long road ahead which is only partially obscured for the moment by environmental extinction.  There's little option within the general stasis but for everyone to wait.

No one is saying there isn't a role to play in the script handed down.  It's that there are only too many roles.  But that really takes us away from discussing the law and how people understand it.

6079_Smith_W

@ SJ

Little option within the stasis but for everyone to wait? 

Well I suppose if you see the whole thing as a completely rigged game rather than one with difficult odds you might be tempted to do that.

And as for the law and how people understand it, it might be worth recalling the words of the guy that fine poem was written about: 

"The purpose of government is to protect the weak from the strong".

 

Slumberjack

6079_Smith_W wrote:
Well I suppose if you see the whole thing as a completely rigged game rather than one with difficult odds you might be tempted to do that.

It's the way things are that makes it difficult to change, but that's utterly different from believing a secretive international cabal is responsible for everything.  It's more like having to contend with a monster of our own devising that has gone beserk, where we've given up in futility the important work of damage control by saying we'll simply have to learn to live with it while it goes about destroying everything.

Quote:
"The purpose of government is to protect the weak from the strong".

The fact of the matter is that you're not interested in having a serious discussion.

6079_Smith_W

Really, SJ? 

Show me where I say that the powerful do not abuse, and control much of the system.

As for getting serious, the only thing I see from those who think it is a completely rigged game is fatalism. I said nothing about learning to live with it; I am not the one who said we have no choice but to wait.

I said we have no choice but to use it to fight back. 

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