The social and ideological context of law
1. Introduction
A simple definition of law is misleading and harmful. Law is seen typically as a system
of rules but comprises other elements including values, customs and conventions.
Furthermore, there exist in society many rules that are not law, such as rules of
professional organizations, clubs, associations, gangs, families, workplaces and so on.
Accordingly, law is best understood not by trying to distill its essence into a concise
definition, but by identifying and analyzing its key elements and its various perspectives.
A person’s identity includes not only personal traits such as age, height, weight, physical
features, personal beliefs and values etc. but their relationships with other people, places
and things. For example, in describing to someone else who you are, you will likely
identify your parents, place of birth and residence, your status as a student of the
University of Lethbridge, your employment, religious beliefs or affiliation, etc. You will
also be identified by others as a friend, a rival, a mother, a father, a daughter, son, an
employee, a patient, a mentor, a colleague, a musician, a guardian angel, a crook, and so
on. To limit your nature and identity to just a few of the many aspects of your being, and
relationships, would provide a rather incomplete picture of who you are. Furthermore, a
large part of “who we are” resides in the perceptions of others.
Legal theory involves complex concepts and different perspectives. While detailed
coverage of those concepts and perspectives of law is not the main task of this course, it
is important to consider how our perceptions of law are influenced or even determined by
various perspectives and ideas, some of which have been around for centuries.
Five perspectives of law will be considered though there are many variations on them. It
is important not to view such perspectives as “right” or “wrong” but as highlighting
different aspects of law and reflecting the experience of different individuals or groups in
society. This is appropriate given the development of freedom of thought, belief, religion,
and expression as cornerstones of Canadian society, subject to certain limitations.
2. Law and social order
The 18th Century English philosopher Thomas Hobbes viewed law (rules or commands of
the sovereign of a state) as essential to a society’s survival, and that, without such rules
and sanctions for breaking them, life would be “solitary, poor, nasty, brutish, and
short”. The task of the sovereign was to establish and enforce laws binding on all
members of society, including the sovereign.
The Library Reserve readings (a) Talcott Parsons , The Law and Social Control and (b)
E. P. Thompson describe elements of the “social order” functions of law. Some theorists
see the power of law as akin to orders backed by threats. If you do X, then the unpleasant
consequence Y will happen. The unpleasant consequence might be a fine, torture,
imprisonment, or execution. It might be a law suit by an aggrieved party seeking
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compensation or the loss of a benefit that would have been otherwise available to you if
you had followed the law. For example, a worker might lose her legal entitlement to
workers’ compensation benefit for injuries and loss of earnings incurred in the course of
employment by failing to submit to a medical examination required by the law.
While there is an element of coercion in most law, a distinction is often drawn between
the threat of punishment or sanctions for breach of law and the threat made by a gunman
to inflict harm if you don’t hand over your cash. Such difference appears to lie in the
perceived legitimacy of the law that the gunman lacks. This draws attention to the
importance of voluntary acceptance of the legitimacy of the rules and processes of law,
even though particular legal rules and processes might impose some disadvantages on us.
If we do not steal or murder because we accept that these are unacceptable social
practices, this is qualitatively different from our decision to avoid such conduct out of
fear of sanctions for doing so.
Theorists such as H.L.A. Hart (The Concept of Law) note the importance of habitual
obedience of law by people who accept its authority. If law is habitually disobeyed by a
sufficient number of people in a society, it likely loses its legitimacy, effectiveness, and
its status as law. Recent events in Afghanistan, Bosnia, Liberia, Iraq, Sudan, and other
countries illustrate circumstances when “law” breaks down and is replaced by force that
lacks legitimacy within the country and in the international community.
As Noam Chomsky observes in “World Dominance or Survival?”, much of the
preoccupation of legislators and other political elites in the USA and most other nations is
to manufacture the consent of the proletarian “beast” to the laws that define property and
the rights and duties of members of society. As George Orwell notes in “1984”, coercion
is an inefficient method of social control because human beings tend to resist coercion.
Rather more effective is to persuade the governed to accept the legitimacy of laws
defining their status in society.
3. Positivism
Much of contemporary academic and professional legal study focuses on the substantive
and procedural rules of law promulgated by the “sovereign”, and much of this course
deals with a small element of such rules as applied in Alberta and Canada.
This perspective of law is usually referred to as “positivism” with its focus on what the
law “is” and on the procedural rules that determine how a particular rule attains the status
of law. The positivist approach to law embraces, too, the interpretation of law by courts
or other bodies authorized to interpret the substantive and procedural rules of law. The
essence of positivism is its focus on what the law “is” not what it “ought to be”. The
latter is considered by positivists to be the domain of the political process in any society,
and involving ethical and political debate not questions of what the rules of law are.
Modern positivism tends to replace the concept of the personal sovereign contemplated
by Thomas Hobbes and John Austin with the concept of basic laws or and constitutions
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that are habitually obeyed by the citizens of a country and recognized internationally as
legitimate. Habitual obedience does not mean universal compliance with all laws. Rather
it involves sufficient popular recognition and acceptance of the validity of the laws and
the process by which they were created. Clearly, doubt arises about the nature of law in
the process of civil war or revolution.
4. Law and morality
Traditionally, positivism defines law not by its content but by its form. That is, in Canada
a rule is a law if it is passed by a provincial legislature or by Parliament in accordance
with constitutional rules and conventions. Many individuals may criticize, object to, and
even violate, a law but, according to the positivist perspective, such a law is no less a
valid law if it is disobeyed. Differences of opinion about the value or desirability of a law
are viewed by positivists not as matters of legality but questions of politics and ethics
about which citizens of a democracy are entitled, indeed, expected to disagree. Scottish
18th Century philosopher David Hume contributed much to distinguishing the
“prescriptive” questions of what the law ought to be from “descriptive” (positive)
questions of what the law is. As we shall see later, it is not in practice as easy as one
might think to separate what the law is from what it ought to be.
5. Natural law
Hume’s distinction between ethical (prescriptive) and positive (descriptive) questions is
useful but it does not resolve all disputes about the nature and definition of law. In
medieval times in Christendom humankind was obligated to obey “God’s Law” and was
not free to set it aside, ignore it, or alter it. If a secular law were passed (by a ruler or
state) requiring or permitting an individual to ignore God’s Law, it was held by the
Church to be no law at all, and not be obeyed.
Such a view was propagated by Thomas Aquinas, based on a view of the supremacy of
God’s law over the purported laws of humankind. The Pope, as God’s vicar on earth was
believed to have the authority to proclaim and interpret God’s law particularly in matters
of marriage, parent/child matters, the application of secular law to the clergy and other
matters. Note Henry VIII’s “marriage” to Anne Boleyn while his wife Catharine was still
alive was declared a nullity by the Pope because it offended “God’s Law, which required
monogamy and prohibited divorce. When the early 16th Century Debate at Valladolid
determined that aboriginals of the Americas were “not fully human”, the conquistadors
were free to commit genocide of Aztecs, Incas etc. because they did not violate God’s
commandment “thou shalt not kill”.
The religious aspect of natural law gave way in the 17th and 18th centuries to a “rational”
basis of natural law led by the Dutch philosopher de Groot (Grotius). For human law to
be true law it had to be not only validly passed by a recognized state authority but had to
meet a test of “rationality”. Why? Because, it was assumed that a true law could not be
irrational. If it was irrational, it was not a law. Among the 18th century intellectual elite in
the age of the Enlightenment, irrationality had no place in human affairs. The concept of
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natural law begs the important questions “who decides the rationality or the ethical
quality of a law?” and “who decides what “God’s Law is.
In Canada, there appears to be an ethical imperative that the law ought to be obeyed by
persons, including the state itself. However, difficulties arise on at least two fronts. Prior
to and during World War II, Nazi Germany passed laws permitting, indeed requiring, the
extermination of Jews and other “undesirables”. In Nuremberg, at the end of the War, the
Allies occupying Germany put on trial some German military personnel and others who
allegedly carried out orders to dispossess, imprison or kill Jews and others in accordance
with German “positive” law at the time. The defence of “carrying out lawful orders” was
not accepted by the Nuremberg court and those convicted of “crimes against humanity”
were either executed or imprisoned. Essentially, the court stated that those on trial had an
obligation higher than that of obeying the orders given to them in accordance with the
“law” in force in Germany at the time. In effect, the war crimes court was saying that
such “laws” were not laws at all, in spite of their formal appearance as laws duly passed
in accordance with the process of lawmaking in effect at the time of their enactment.
The foregoing case raises legal issues beyond the actions of those responsible for the
death or captivity of Jews, persons with disabilities, gypsies, homosexuals, and others.
For example, should a person assuming lawful ownership of the property of a person
dispossessed by the Nazi regime retain ownership of the property if the original owner (or
an inheritor) subsequently claims it? If not, why not? This raises difficulty because of the
general acceptance that laws should be obeyed by virtue of their being laws. While it is
relatively easy to determine if a rule meets the procedural test of being a law (that is,
enacted in accordance with constitutional rules and procedures of lawmaking by the
state), difficulties can arise if the validity of a law depends on its ethical content rather
than its form.
Current federal law in Canada requires the registration of firearms. Does the substantial
opposition to this law in Alberta render it any less a law? If it is valid law, are there legal
and moral duties to obey it? Canadian law renders it lawful for the authorities to detain
suspected terrorists without specific charge and without hearing the evidence against
them. Is such a “law” invalid because it offends established legal principles that persons
are entitled to face their accusers and to hear the evidence against them? If so, is there a
higher duty upon persons to disobey such “laws”?
Prior to 1964, laws in certain US states required black citizens to occupy only the rear of
a public transit bus. Civil rights activists challenged such laws and brought about their
repeal. Did they have the right to disobey such laws?
These questions highlight the problem associated with a natural law theory of law. If
there is disagreement over religious or ethical values or about what is rational or
irrational, who should settle the matter? Is one view of the legitimacy or illegitimacy of
same-sex marriage superior to the other to the extent that neither could be considered
law because it lacked rationality or ethical validity?
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EXERCISE
IS THERE A DUTY TO OBEY A LAW SIMPLY BECAUSE IT IS THE LAW?
Scenario 1
A man with dual American and Canadian citizenship returns to his home in Calgary from
Houston, Texas. Authorities in Texas issue a warrant for his arrest on charges of first
degree murder and seek his extradition to Texas by Canadian authorities. If convicted of
the alleged crime, the man is likely to incur the death penalty. Canada and the USA have
an extradition treaty and individuals have been extradited to and from Canada and Texas
in the past to face charges for alleged crimes. There is no death penalty for murder in
Canada. Should the Canadian authorities extradite the man? Why? Does the man have a
moral duty to return to Texas to let the law take its course?
Scenario 2
A woman with dual citizenship of Canada and a Middle-East country is lawfully married
to a man who resides in the latter. The woman cohabits in Canada with a dual citizen
from the same Middle-East country, and gives birth to their child in Canada. Her husband
learns of this and reports the matter to authorities of the Middle-East country, which
charge both the couple with the crime of adultery. Such crime is punishable by death by
public execution in that country. Canada and the Middle-East country have an extradition
treaty and the latter applies for their extradition. Should the Canadian authorities comply?
Does the couple have a moral obligation to return to face the charges?
Can the two scenarios be distinguished to justify different actions by the Canadian
authorities and the respective parties?
Another question is whether there exists in Canadian society (or other societies) universal
agreement on what can never be valid law due to what it requires citizens to do or refrain
from doing.
6. Marxist and anarchist perspectives of law
There are many historical examples of oppression of minorities by government through
the exercise of laws. The sovereign power itself may be the perpetrator of violence
through “laws” passed authorizing the state to imprison, exile, dispossess of property or
put to death members of society considered to be enemies of the state. Examples of such
state laws include Hitler’s Germany, Stalin’s Soviet Union, Chile under Pinochet, Canada
during World War II in its arrest, internment, exile, and dispossession of Canadians of
Japanese origin, China under various regimes, and the USA in its imprisonment without
charges or production of evidence of illegal activity or intent. The Pilgrim Fathers left
England to escape religious persecution by the state. Many other past and current
instances of oppression by states against their inhabitants can be identified.
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It is also easy to lose sight of the fact that the “glue” which keeps a society together
extends far beyond legal rules. Much of the ideology of business across the western
world calls for less regulation and intervention by governments. This is anarchist in
principle as it calls for absence of government to allow the participants in business to
interact according to conventions, negotiation, moral suasion and the like. Clearly
business, trade and commerce can be conducted successfully without the rules and
processes of law. Indeed, in some business cultures, rigid insistence on one’s legal rights
is frowned upon, and likely to be subject to moral sanctions. A department store is
typically not required by law to refund your money for an item returned because it does
not fit you, but frequently stores act in accordance with what they see as their business
interests, which may not coincide with their strict legal rights. A company that breaks a
contract may find itself more effectively sanctioned by the loss of its good name in
business than by a court award for damages for breach of contract.
In the business world, to which much law applies in our contemporary western societies,
there remain many moral rules and sanctions that have no force of law, but strong
influence on social conduct. The key point here is that, while law may be significant, and
even necessary, in our contemporary society, there is evidence of significant commercial,
and other social, interaction operating independently of legal rules and processes. Family
and social life also thrives by and large amid anarchy.
The success of anarchy in business and domestic areas does not imply that law is out of
place in such activities. Criminal acts of parents against children or executive officers
against companies may be more effectively dealt with by law than moral sanctions.
However, the success of anarchy does illustrate the importance keeping in perspective the
role of law as the glue keeping society together. On the contrary, law itself may be
counter-productive or oppressive in such matters.
Marx viewed the government as the “executive committee of the bourgeoisie”,
committed to law and social policy designed to support the class interests of the
bourgeoisie to the detriment of workers. Illustrations of such bias in the law might be the
inequality of the employment contract due to the lack of any property of workers in their
jobs, the hurdles facing workers who attempt to form unions, the unequal access of the
poor to the legal system, legal definitions of property that protect money, goods and
chattels but much less effectively protect individuals against air, soil and water pollution
and the health and economic damaged caused by it. Also, the attention of police
authorities is arguably greater against shop lifting or social security fraud than against
corporate and white collar crimes, which are perhaps more damaging to society than the
former.
Marxist and other radical critiques of law (e.g. by radical feminism, and by the critical
legal theory school at Harvard) see law and its bureaucracy as illegitimate domination by
coercion, clothed in the rhetoric of legitimacy. Much of the value of radical perspectives
of law is that they highlight the impact of imbalance of social power on the content, and
degree of enforcement, of law.
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7. American Realism
The American jurist Oliver Wendell Holmes noted early in the 20th Century that law is
“what the judges say it is”. While there is more to law than judicial rulings, Holmes drew
attention to the importance of judges as interpreters of legislation and the constitution.
The interpretation of law is not merely a mechanical technical exercise but depends on
the values and beliefs of judges.
If judges are exclusively white, middle-class, relatively old, conservative males, the
exercise of their discretion in the interpretation of law, constitutions and case law
precedents is likely to be substantially influences by such background. This alerts us to
the potential value in encouraging diversity within the judiciary, and in all positions of
power in society. Failure to do so risks the creation and application of laws that feel to
address the needs and values of some people in society.
The corruption of legal systems do to systemic bias can be illustrated by sectarianism in
Northern Ireland and the systemic disadvantage of the minority Roman Catholic
population. Other examples include the USA, where the absence of black Americans
from the legal and political life of the society contributed to the US Supreme Court’s
decision not to find racial segregation in schools to be in breach of the US Constitution.
By 1954, black Americans had emerged as part of public life, including the judiciary and
it is significant that the Supreme Court reversed its earlier decision. Parallels are apparent
in the development of family law by the judiciary in Canada providing greater protection
for women in the event of divorce. This coincided with the emergence of women in the
legal profession, including the judiciary. Today the Honourable Beverly McLachlin is
Chief Justice of Canada.
8. The influence of the foregoing perspectives on Canadian law
Each of the foregoing perspectives has helped shape Canadian law through their
influence on policy makers, judges and the broader public. While there is significant
legal regulation of business in Canada, there remains a fairly strong culture of freedom of
action according to market forces. Contract law still provides substantial freedom for
private individuals and corporations to define and self-regulate their relationships. On the
other hand judge-made and statute law regulate conduct in many areas and reflect values
that judges and lawmakers believe to represent a social consensus in Canada or a
particular province. By and large in Canada there is sufficient social consensus that laws
are typically accepted as legitimate even by those who oppose their impact on themselves
or others. Law in Canada can be viewed from the positivist stance of rules and
procedures established in accordance with the constitutional rules and conventions
established in Canada for passing, administering and enforcing laws. Governments and
judges are often
criticized but typically their pronouncements on what the law “is” is accepted as
legitimate.
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There is also a strong influence of “natural law” on Canadian law. The introduction of
the Canadian Charter of Rights and Freedoms reflects the view that lawmakers are
capable of passing laws that are formally valid from a positivist perspective (that is, they
have the formal stamp of authority derived from their source in Parliament or one of the
provincial legislatures) but offend some “higher” value or principle that renders the law
invalid. Such values include freedom of thought, religion, conscience, expression,
peaceful assembly and association (section 2 of the Charter). These protections, which
are not absolute, reflect a consensus in Canada that such activities are essential to a free
and democratic society and to be protected against infringement or derogation by
Parliament or provincial legislatures, even if they are elected by voters.
There is also the right to equal protection and benefit of the law without discrimination
on various grounds including age, sex, race, disability, etc. (s. 15). The Charter also
protects citizens against arbitrary arrest, detention, search and seizure. Arbitrary
imprisonment is unconstitutional.
Such rights and protections reflect the natural law perspective that lawmakers, even in a
democratic society may pass laws that offend some value that is higher than the value
that positive law must be obeyed. Judges in Canada can strike down laws offending the
Charter or refuse to apply the law to an individual’s circumstances.
Natural law values are also embedded in the procedural and substantive law of Canada.
Breach of contract involves the breach of a promise and is unlawful at least in part
because it offends a fundamental societal value in Canada that promises ought to be kept.
Tort law reflects a value that persons should provide compensation or restitution for harm
that they cause intentionally or negligently to others. Legal procedures such as treat
similar case in a like manner reflect a “rationality” and fairness that is essential for good
law. The convention of judges to follow legal precedents reflects this principle of
rationality and fairness.
The influence of American Realism is apparent in the recognition within Canadian law
that access to the law as a judge, practitioner, interpreter of the law in some position of
authority, or as a litigant is better served by encouraging social diversity in all aspects of
the law. Women are much less than before systemically excluded from the practice of
law and the bench (judiciary). Systemic discrimination remains in the law but there is a
consciousness about the need to address this.
Marxist and other radical critiques of the impact of laws on workers and other marginal
groups such as persons with disabilities have encouraged legal intervention to protect
workers, such as no-fault workers compensation for injuries at work, unemployment
insurance and social welfare and human rights legislation to help inclusion of certain
disadvantaged persons in workplaces and society at large. Marxist, feminist, and
anarchist philosophers continue to question the “blindness” of law and continue to remind
makers and administrators of law of the constant need to ensure that rights and freedoms
are guaranteed for all citizens not just the rich and powerful.
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Furthermore, those who advocate less state regulation of business and commerce are
(perhaps unwittingly) advocating anarchist principles of law and governance in which
ethics, trust, conventions, and mutual self-interest direct action rather than laws. The
sanctions for breaking these non-legal rules can be even more powerful than legal
sanctions, for example refusal to do business with a person or organization that does not
adhere to good business practice.
To conclude these notes, students should recognize that law is only part of the glue that
binds society. The ethical and traditional underpinnings of society are perhaps even more
important and are essential if law is to work in the interests of social cohesion, equality
and justice. Each of the perspectives considered has a significant impact on the values
and beliefs of politicians, law makers, judges, those who administer the law as well as
individuals and groups who are affected by the law.
Students should supplement these notes with the various library reserve readings on the
perspectives of law and Chapter 1 of the Yates Textbook and Smyth and Soberman.
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