Law and Racialization
Today’s Agenda
- Announcement
- The Colour of Law (Chapter 4)
o Critical Race Theory and Concepts
 There are a couple of theories and perspectives that help understand legal decision
making and how people talk about legal decision making
 These concepts will help understand crime and identify why people’s actions are
problematic
o Some examples
 Racial Profiling
 Incarceration
 Immigration
The Colour of Law
- Critical Race Theory
o Critical race (critical legal studies)
 Using the word critical can be problematic  everything before wasn’t critical (this is a
constant debate)
 Looks at and examines inequalities in the production of law (particularly around race)
 Only focuses on race
 Holds the view that we have multiple experiences and we are made up of multiple
identities
 This has been named intersectionality  The intersection of multiple identities
(race, gender, sexuality, etc.)
 Being a woman is one identity, but being a woman of a particular class is
another identity
 What we fail to acknowledge is that you can be in one group, but it doesn’t mean that you
share all commonalities with them
 All women are not the same  Each woman has different experiences, etc.
 If you are in the legal system and you want to make a claim about being discriminated
against because of your gender or race; the legal system wasn’t always able to understand
that these things are not the same
 Examples
 It is NOT racist to ask for assistance that relates to their culture (you may want
to ask an Italian for tips to make tomato sauce and you might ask an Asian to
help with learning how to use chopsticks  this is positive and something to be
proud of, not racist)
 It IS racist to sit beside an Asian because all Asians are smart
 When thinking about how someone looks, where they came from, and where they go
often makes us think about assumptions
 It is important to be proud of yours/one’s heritage but not to be racist
 Canadian examples both explain and illustrate what racism and racialization is in practice
 Legal system does not integrate the principles of Aboriginals
 Cannot accommodate these principles (argue that this is not the case and there
could be integration)
 Different dialects
o We all have multiple experiences and are made up of multiple identities (intersectionality)
o Examines the role of law in creating and enforcing racial categories and the resulting experiences
of people of colour
o Race, then, is “not objective, inherent, or fixed” but instead is a social construction (what does this
mean?)
 This means that it is a social construction
 Social construction  We give it a meaning, but this meaning varies over time and place


“Don’t murder”  principle we uphold; one of the only ones that haven’t
changed over time
 Gay Rights  There was a time where being gay was a crime; gays were hunted
down, villainized, and beaten up; this is not legal anymore, or at least is not as
prevalent as it once was
Deviance is also a social construction
 Marijuana usage  People would often say that it “Makes everyone crazy”; but
it didn’t actually do that
Some Concepts
- Race
o The concept of race and what it means
 Race is socially constructed
 But, where did it come from?
 Race can be biological or seen as partially biological
 It is often seen as; social practice, cultural, and biological
 Race can also be attached to language
o First applied to humans in 1775 by Johann Friedrich Blumenbach
 Came up with this classification of the five different races
 Caucasian, Mongolian, American, & Malayan
o 19th century understanding of race as biological
 Race as fixed inherited
o Challenged by law and society scholars
o Notion of race as biological functions to support the maintenance and dominance of the British
over other
o races across the globe
o Race is socially constructed classification of persons that is tied to beliefs about differences in the
physical make-up of different individuals
o
o
o
How and why do people have discussions around brain capacity
 This is extremely problematic for one
 Race was related to mobilities
 There are different brain hereditary factors
Made this idea about hereditary factors  clean cut, easy answer to talk about differences as some
dysfunction (in terms of intelligence)
 Easy and efficient
 Increases publics feeling of safety and legitimacy  these practices still exist today; but
we are still fighting the existence of these ways of knowing
o
o
If we can argue these concepts are socially constructed (fabricated for the better of the upper half)
if we can argue they will be less likely to believe that there is a biological difference between
people
Since these concepts are around must be true that this is not the case
Just because it has been here for a long time doesn’t make it legitimate
o
o
Race  social practices, cultural, biological
Racism  only going to go away if we start changing people’s minds
Racialization
- Racialization is built on this idea and concept of race, but not necessarily something that people understand
in the same way
o Example
 By presenting someone physically we are assuming something negative
 ‘White’ individuals  if you’re not white you fall beneath another category
(which seems like a deviant category)
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Refers to the process whereby physical differences come to assume certain meanings and expectations for
human behaviour and interaction
Refers to the social meaning attributed to race – including whiteness
o How ‘whiteness’ gets constructed as the norm, through which all other races are constructed and
measured
o E.g., immigration
o E.g., symbol and myths of the Canadian nation
What is the role of law in constructing categories of race and their meanings
o What do we know NOW about race? (in the present)
 Race is a modern identity
 Race has no genetic bias (despite how differently we might look – those differences are
so small)
 The human subspecies does not exist
 Most traits are inherited independently from one another
 There are no distinctions within people even from the other background
 Race is justified and used to justify social inequalities (not natural)
 Race isn’t biological; but racism is still very real
 “Colour-blindness” will not end racism
 Race is very cultural
 The problem with this perspective is that it is always measured against the
dominant culture (Western-European)
 We understand race, but we are always doing it in contrast to the dominant
group
 Assimilates to the dominant norm; is that something that you think of as connective to
what we understand Canadian society to be about?
 Is that what we do?
o No, we welcome diversity
 Is that what happens in the United States?
o Yes, they want everything to be the same
 Canada is open to diversity and inclusion, but in practice is this actually what
happens (we have a policy) and who enacts them?
o People (often, white males)
o We have human beings who have different perspectives
o Three ways
 Racial profiling
 Incarceration
 Immigration
Some examples:
- Racial profiling
o This idea that we begin with is this notion that a particular person is most likely to engage in a
particular crime
o Begins with a specific crime and generalized description of offender
o Application of racial stereotypes to define an “offender”
o Example: Carding
 Massive debates around this practice
 Police officers ask you for identification on the street, and ask where you are heading
- Incarceration
o Canada’s incarceration rate is higher than the rates in most Western Europe countries
 Canada’s incarceration rate has been the highest but it is now going down
o Canada’s incarceration rate was 117 per 100,000 (compared to U.S. race of 743 per 100,000)
o Incarcerated population
 Aboriginal population
 Black population

o
Aboriginal and Black population is the smallest representation in the overall
population but they have the highest incarceration rate
o Something is wrong with the system, not the groups of people
What are the consequences of racial profiling and high incarceration rates among people of colour
(especially men?)
 More likely to get a severe sentence
 Creates more poverty in the families
 Lack of trust in the system and it loses legitimacy
 Takes away opportunities form them (specific groups)
 Incarceration rates do not actually commit the crime
Immigration
- Canada has always presented themselves as an inclusive and diverse country; Canada does not always
operate that way
o If we were to go back and look at the history of police it is quite races
o Southern Europe  Use to be easy to come in
o Southern Asia  Use to be harder to come in
 Nowadays we see the reverse with Southern Europe and Southern Asia
- Canada’s racist immigration laws and policies
- ‘White Canada’ policy
o Favour European immigrants
o Who counts as white?
o Labour shortage  Chinese and the building of the CPR
- 1960’s – point system (formally colour-blind but racist effects)
o The point system was intended to be blind and to eliminate biases towards particular groups
- 1980’s – managing immigration  sanitary coding
- Post 9/11
o Other policies put in place to allow people in who weren’t working with terrorist acts
-
Policies are changing over time in response to particular social events and social position
o Managing by different entry requirements
Chinese Immigration
- CBC Digital Archive
- Chinese Immigration: Not Welcome Anymore
o Chinese workers in Vancouver were attacked, their homes and businesses were destroyed
o These individuals had to leave their wives and children in China because of the cost until they
made enough money to bring them into Canada
o Restricted business licenses – they were forced into Chinatowns to do their businesses which were
eventually restricted by the white people there
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1880’s
o
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o
o
o
o
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1907
o
o
o
Canadians brought in a bunch of Chinese individuals to work
Their wages were half of a white man’s wage
1/10 died from malnutrition, accidents, or murder
Their community was very restricted and they had nowhere to go
Everybody came to Canada on their own will (they would pay tax for economic reasons)
Their hard work never stopped
Chinese had no ways to bargain for better unions
“Kick out the chinks”  signs that were being used
American labour leaders came to speak at the anti-Asian lead just blocks from China Town
Windows were smashed, people were beaten up and looted
China town kept growing; there were hoard of Orientals who were trying to destroy the British
ways of life
-
1923
o
Ottawa passed a racist law (Chinese exclusion act)  All of the Chinese individuals had to
register
Who Gets In?
- By Barry Greenwald
- National Film Board
o 80 million people are in the situation of not being able to come to Canada
o Political refugees  once they heard refugee, they had to let you in
 About 1000 individuals a week were using this method of buying a plane ticket to
directly come in
o Now individuals are brought to a panel and if they do not believe your story they deport you
o Now Canadians are making the rules  you are more often likely to apply from their country and
then come to Canada once they are approved
o It is no longer Europeans coming to Canada; it is people who are fleeing the developing world
o First apply at the Canadian High Commision where there is a quota for the amount of Canadians
that can be let in each year -permission is even needed to visit
o Mike Molloy
 Head man, chooses the “right people” to allow into Canada, said he refuses “rascals”
which there is apparently a lot of
o Rules are tougher without family
o Requirements can change at any time
o Africa has the 2nd largest number of refugees in the world
Critical Reflection
- Using the clips and film (located on the previous slides) answer the following question in groups
o Using examples from the film, describe the strengths and drawbacks of discretionary decisionsmaking practices? Is there a better alternative? If yes, describe. If not, describe why not.
Readings
- Calavita  Chapter 4 (The Colour of Law) pp. 59-85
o The feeblemindedness Theory
 Quite prominent in the 20th century
 Tests (e.g., IQ tests) were given to many individuals who struggle within society
o Minorities, prisoners, individuals with mental health issues
 This theory triggered a very large testing campaign, resulting in them
conducting that feeblemindedness influences/makes individuals commit crimes
 This theory was quite popular and it was the blame for other social problems for
a lot of the 20th century
o Alcoholism, divorce, suicide, poverty, etc.
 Henry H. Goddard
o Believed a lot of “defectives” were entering the country
o A lot of immigration restrictions targeted towards the southern and
eastern Europeans entering the country largely based on this racist
theory
o Policymakers made eugenic practices to rid the US of the feebleminded
 including forces sterilizations, warehousing of people in institutions
for “feeblemindedness”
o The feeblemindedness theory has since been dismissed; however,
variations of it persist  because of its consistency with racist, sexist,
homophobic, etc. assumptions
o Race law
 A term developed by Angela Harris
 Refers to laws, like those behind the feeblemindedness theory, maintain racial categories
and shape interactions among racial groups
o Interest Convergence/Material Determinism
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A term developed by Ricard Delgado
Means that material interest produces the concepts of race and determines the content of
racial categories including their changes over time
Racial profiling
 The use of race or ethnicity as groups for suspecting someone of having committed a
crime
 Many consequences
 Example: high incarceration rates for men of colour
White Consciousness Literature
 Helps us understand thinks like how conceptualizations of whiteness got constructing as
so normative that even violent outlaws become pillars of Americana Whites as “Masters
of National Space”
 Whites as Masters of National Space  the assumption that white people are the
standard in comparison to which other minorities which are differentiated
Lindberg  ‘What Do You Call an Indian Woman with a Law Degree? Nine
Aboriginal Women at the University of Saskatchewan College of Law Speak
Out
Aboriginal women are underrepresented in law schools in Canada
There is a higher demand for Aboriginal women in law right now as the Aboriginal representation
in prisons are reaching record numbers
Aboriginal women have concerns that are similar to and different from those of Aboriginal men
Aboriginal individuals must be considered in law school
No group better understands the indicators of Aboriginal success than Aboriginal people
Aboriginal women are particularly susceptible to negative performance factors at the professional
and graduate levels of university training
Aboriginal women are united by race and gender, there are a multitude of personal, social,
economic, and political factors that both separate and unite
Grace Adam

Had four daughters and one son
 Most giving and strongest group of individuals
 First Indian women in the province to graduate from Lebert Residential School, to obtain
a university degree and she was one of the best teachers in the province
She is here because of Grace Adam
Overheard women in class talking about who was and who was not Indian  mainly based off of
physical attributes
22
Legal Pluralism
Legal Pluralism
- Legal pluralism is not extremely old  it is a fairly recent concept (20th century)
- There are various definitions because competing ideas of what legal pluralism is and what it means is to
engage in legal pluralism  reflecting and dealing with challenges throughout the 20 th century
- Definition: “two or more sets of laws and legal practices operating (more or less) at the same time in the
same place” (Calvita: 74)
o Definition: Creating a dual or multiple functioning legal system/tires to address the issues
(understand the issues and the injustices in the legal system
o It tries to get us to think more broadly about how law is and to consider why law isn’t functioning
the way it should
- Legal pluralism is the idea of the coexistence of the legal system and the legal order (doesn’t have to be
formal, and can be part of order)
- It is a Western and non-Western world  doesn’t only happen in North America; it does happen where
there is a lot of diversity
- A lot of conflict between Islam law and Western law; it tries to address, understand and incorporate the
value
- Legal pluralists  scholars that are focusing on this
- The notion of talking about different legal systems existing isn’t new
o What does this mean?
 There is a concept of law that needs to be more broadened, and it needs to be thought
about differently (start saying that we understand that there are various factors within the
legal system, and that we can deal with, but the problem is HOW we deal with these
issues  we have to alter the structure or the problems within the structure)
- Legal pluralism creates a double face with the law
o People who believe in the legal system do not agree with legal pluralists, but more so legal
positivists
- The legal system is made and intended to change and reflect social norms
- Legal scholars want us to understand the relationship between law and society and how they are much more
complex (needs to address the diversity that now exists)
o Understand that narrow mindedness of the system had to do with when and how it was once at the
time
o In these contexts, the law is often closed  closed, does not like to be intertwined, it likes to be
autonomous and independent
 These descriptions are somewhat ambiguous
o They still need to consider and develop on these ideas
- There is a need for the desperation of legal order
- E.g., Canada – federal, provincial, and local/municipal laws, lawlike rules/processes
o Exist within the Canadian system
- Minimum wage, income tax laws, local property tax systems, neighbourhood associations
o All of these things vary depending on where an individual lives
- Domestic/international human rights law (setting human rights standards locally throughout the world)
o These all vary across time
Globalization
- Globalization has created an integration of different sharing’s of goods, of jobs, etc.
o Because of all of these new integration’s globalization has created you must think about trade
agreements
- Creation and spread of supranational institutions that govern/regulate national and local practices
- E.g.,
o Free trade agreements
o World Trade Organization
o World Bank
o International Monetary Fund
o United Nations
o
Multi-National Corporations
Legal pluralism in the beginning
- We know that there are differentiations in opinions of the law
- Types of legal pluralism include
o State Legal Pluralism  states put authority of what it is/might not do this but does exert power
 Example: Laws being imposed in Canada; municipal, federal, provincial
o Customary laws  plural laws imposed
 Example: Customs, practices, and social norms; have a formal legal system and another
layer of customary laws to address the cultural and dominant notions around how to
regulate and control
o Deep pluralism  Laws that we observe but are not accustom; cannot decipher but can tell if they
are integrated by the principles
- There is a general framework of legal pluralism but they all operate different in different countries
- Scholars that are writing in this area are implicitly and explicitly illustrating that we need to go beyond the
existence of legality
- Legal Pluralism says  we need to move beyond that because it is limited to only seeing systems
coexisting beside each other
o We need to have coexisting systems within the state
- Within the last 10 years this has really dominated the literature within legal pluralism and there has been a
huge response to globalization
o What makes this debate distinct?
 We are now much more focused on using it as a way to integrate indigenous forms of law
 The absence has created many challenges for dealing with indigenous issues and
challenges
o The way in which individuals respond to indigenous law is not properly relating to their culture
o We need to engage in this
o We need to value and approach the correct needs of indigenous groups
- Why is the concept ‘legal pluralism’ useful to exploring colonial and postcolonial contexts?
o The one legal framework is colonizing other legal practices
o Transporting of European legal systems to colonized territories (private property, contracts, wages,
family law)
o The production of hybrid legal systems (customary law and judicial law)
 Often retain customary ways of handling disputes
 Often, we reframe from customary law because we do not see customary
practices as legal
 There is a bit of customary law in everyday practices
o Law as a mode of control/mode of resistance (pg. 89)
Merry’s Thoughts
- Merry (2004) describes legal pluralism as the existence of more than one legal system working at the same
time within the same social sphere. This allows for different layers of law to be applied, each with different
levels of power. Legal pluralism is seen amongst indigenous people who have their own form of law
working along the colonial legal system. This reshaped the law into something new […] The new form of
colonialism, globalization, has spawned a reinvented form of legal pluralism. According to Merry it is legal
technologies, law and legal institutions working within a global space, among different countries.
o Sally Merry
 She is very diverse in this are; she describes the existence of one or more legal systems
working at the same time in the same social sphere allow for different levels of law to be
applied with different power
 This idea reshapes the law into something new
 Not only trying to rework this law, but make it into something new
 According to Merry, it is legal technologies, law and legal institutions working together
Strengths of Legal Pluralism
- A lot of different theorists have commented on whether or not legal pluralism is a strength or is a drawback
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Legal centralism (Griffiths 1986)
o Desousa Santos
 Identifies in the wrong way “the key concept in a post-modern view of law is this idea
that we need to lead to have multiple”
 Among the most electric components is moving away from legal centralism
 Legal centralism is attending to these other arrangements and making room for other
scholarships
 What they are focusing on is identifying ways to make legal pluralism work
 It is much more difficult to implement something like legal pluralism
 It expects a lot  revamping new systems from old systems, or starting fresh
 What would that look like  changed regulations and how we act, how we train
lawyers, and how the legal system worked
 **IN CLASS** Someone asked “Would we have to retrain all lawyers” Answer “All
factors would have to play in if we wanted it to be done right”
 The law is no longer treated as unproblematic  legal system identifies this authority
figure it wants to be (we think it is) legal pluralism brings up questions about this
 Also, cannot claim that the law is a product of top down order (power operates in various
ways; and we see this when examining the legal system)
 Power is NOT from the top down in legal pluralism
Creates conversations around normative order
o Conversations about what normal order is has opened up closed discourse, and a space for
permeability  raises issues about ideology and brings up stuff from the past
 Example: How do we define law?
o Legal pluralism wants to explore and has justified that these are good questions
o Starting to talk about this and notice that multiple forms of something (e.g., law) can exist
Opens up ideas of Justice
o The outcome has been directly linked to justice  there are different forms of justice depending
on the context
 Example: The individual (victim, victims’ family, victim survivor) all have different
forms of justice
 They could be compensated for their losses  some people might just want money to
help with emotional damage or to fix something they did
 ***IN CLASSS** In the US they have the death penalty, and in Canada they have
extradition measures
 extradition measures  for young offenders you can have deviated meetings
with the victim; open (facility) and closed custody (can be a group home with
higher security)
 Both parties have to agree with restorative justice
 People feel like they are getting justice if they feel like they are being treated
well
o Procedural elements (seeing the police officer, the lawyer going to
court)  people will feel as though they are being treated
o If you are charged, and put into jail, etc.  distributive justice
o **IN CLASS** In Saudi Arabia  beheaded 81 people for deviant ideas
o Legal systems say they are here to give individuals justice  shouldn’t the victim have control of
the justice the person deserves
o Justice shouldn’t be defined by the institution but it should be defined by the person and their
experience (legal pluralism can allow us to start to think about this)
o The law self regulates the semi-autonomous field  defining the law in terms of differential and
reinstitutionalization norms (primary and secondary ideas)
Santos
o “A body is a body of regularized procedures and normative standards, it is considered justifiable in
any given group and contributes to the creation and prevention of any groups”
Legal pluralism asks us to reconceptualize how we understand law
The Need for a Concept
- If law is based on perspective how we define it?
- How do we know what is law?
o Do we need to know what the law is?
o Do we need to have structural elements that we had before?
o Structure?
o Do we need to distinguish law from other things?
 The new forms of law and organizational systems that provide rules for society have
questions like; how do we distinguish what the law is and what the legal norms in society
are
 Look at the different ways in which something looks like laws, and acts like
laws
 If you break a social norm, there is a reaction to that social norm (there can be a
reaction or punishment)
 These structural elements inside and outside of the legal system still exist
 These are the ways in which legal pluralism helps us to think differently
 We need to be able to distinguish what the goal of the legal system is
o THAT GOAL IS TO OBTAIN CONTROL AND ORDER
 The majority of us do what we are supposed to do, so why do we need a formal
system to regulate?
 The population outside of prison is bigger than those in
 All engage in customary laws (what looks like that but isn’t really law)  those
principles are stronger than anything else
 Question becomes  do we need a definition of law
 Some say that we can compare morality to legal norms; we can show the
difference and we should; norms and etiquette
 We compare and contrast  accusation, evidence, charge, consequences (this is
law)
 Legal theory has a lot more than just in it (what makes legal pluralism so special?)
 Indigenous forms of law, and how they operate  created debates, discussions, which
legal pluralism looked at
 The need for defining the law is an instrumental issue  we need it to conceptualize (but
do we actually need it?)
 Different laws in different countries
 How is legal pluralism different  how do we define the law (the law differs
based on perspective)
 Instrumental (what is law – different concepts of what law is; people don’t agree what
should be included and excluded)
 All sorts of normative orders (that is the key) not attached to the state (there are
normative orders)
 Is the law everything?
 If we include everything in law, we create another problem (every sort of system
of agreement or action seems to be a form of law so when we do that we are
creating another problem)
 What happens when everything becomes law?
 The law loses its value, it loses distinctively, loses legitimacy
o Is all social control a form of law?
 How do we differentiate social norms from legal norms?
 Hopeless to do so  both forms of social control; some more effective from
other
 Social norms are the greatest control in society
How do Legal Pluralism Theorists Define Law
- Look at 2 basic categories
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Patterns of behaviour within a social group  legal pluralism was generated and based on this idea that
anthropologists…
Terms of institutionalized norms of enforcement  consequences and punishments; what is an appropriate
reaction
Both of these categories are based around needing to maintain social order
When you disrupt the system, you’re put into jail, community service, integration process, restitutions
Defining the law in terms of finding patterns  makes us want to include everything (challenging but some
argue it is essential to include everything)
Law and religion is not fully separate, hide into ethnic customs (e.g., around people wanting to wear
uniforms  incorporating turbans into the uniform), high schools and elementary schools (children cannot
show their shoulders  law in fashion, etiquette)
Cannot include everything in the legal system because it devalues it, but all of the factors that are included
are interconnected
Social relationship with the legal system
Several definitions  commonality is the idea that in order to identify law, we need to look at these social
institutions and order
Challenges to this Approach
- Law often does more things
- What maintains social order? Is it the law itself or is it social norms? Does law not at times create social
disorder? Can we assume it is simply an instrument of order?
- NON-ESSENTIALIST PERSPECTIVE OF LAW
- Is the law functioning and functioning well?
o No
 Challenges does more things and used to do more things more often than we do now; it
enables things, facilitates things, infers status, instrument of harassment
- The law in itself  “the saving grace once we introduce the legal pluralist perspective; but that is only if
the functions in the way it should (it helps people; and hurts people)”
- If the law in itself if problematic  does the law create social order and social disputes?
- Is there such thing as some kind of instrument that creates law in a just way?
- Need to come up with a non-essentialist view of law  if this possible (if we are not looking at institutions
and norms, are we even looking at law?)
Readings
- Calavita  Chapter 5 (Many Laws, Many Orders) pp. 85-110
o Legal Pluralism
 Two or more sets of laws and legal practices operation (more or less) at the same time in
the same place
 The best example to think about is the federal, state, and local laws in the USA
that are often nested in or complementary to each other, with each jurisdiction
having its own responsibilities
 Issues come about from time to time, when a jurisdiction trumps another in a
legal space/system
 When legal orders are conflicted, one of them may be nullified, if not officially
then at least in practice
o One will essentially cancel out the other
o Administrative Law
 Refers to the legal order that establishes, interprets, and implements the rules and
regulations of administrative agencies
 Example: Organizations like the Social Security Administrations or Immigration
and Customs Enforcement
o Example of a place where legal pluralism often occurs
Mid the Gap: Law-on-the-Books VS. Law-in-Action
Today’s Agenda
- Mind the Gap: Law-on-the-books VS. Law-in-Action
o Where do we see the gap?
 Routine non-enforcement
 Selective enforcement
 Selective enforcement
 Structural-institutional dilemmas
 Police work – discretion and corrupt/misconduct
 Constitutional principles and their realization
Routine non-enforcement
- Historical Example
o Vagrancy laws (e.g., trespassing)
- Contemporary Example  something that is not a routinely enforced law that we break
o Downloading copyrighted material without paying
 File sharing is ramped, don’t see a lot of charges, 2010  new copyright law – easier to
go after for downloading
 Artist reaction  some removed music, some gave it away for free and didn’t care
o Jaywalking
o Environmental law
 Often about penalizing corporations, white collar crime
 Only enforced when something becomes very public, usually mild punishment
o Health law
 BC government deliberately and consciously decided not to enforce laws that protect
patients from user fees charges by doctors for serviced covered by public health
insurance
Environmental Law
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Good example of something we do not enforce (routine non-enforcement)
o Littering, fuels put into the air, oils
Health Law
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Good example of something that does not have a lot of enforcement (routine non-enforcement)
Selective enforcement
- The ability to enforce the law against some people and not others – often racial and/or class bias
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Historical example
o Vagrancy laws – motivated by class and race
 Vagrancy laws were not meant to apply to everyone
 Way to control the lower working-class kids and kids of colour
Contemporary example
o Loitering
o Ontario Safe Streets Act, 1999
 Aimed to get rid of the ‘undesirable’
 Banned all aggressive panhandling, aggressive charge – purpose of law was to hide
poverty, eliminate public view that social problems exist
o Drug Laws
 Latino’s and blacks disproportionally affected
 More blind eye turned against white people involved in drug transactions
 Look at rationales for why particular types of laws are put into place for some people and
not others – reaction, hide something, control
 Example: Asian girl gangs – protect society from Asian women, all fabricated,
push surveillance
Structural-institutional dilemmas
- Gives us a different framework to think about policy revisions/how to move forward
- Instead of saying the law is BAD and people are racist  they understand there are competing ideas at
play, and it is not necessary or intentional
o Try to understand how they are operating
 Within the system they operate
 Our job is to control the borders to insure people are okay
- E.g., U.S. Immigration and Customs Enforcement
o Widely criticized
o Sits between competing interests – economic (cheap immigrant labour) and political (national
security)
o Kitty says “immigration officials are damned if they do and damned if they don’t”
- Canadian environmental law
o Bad international reputation
o Conflicting interests – economic (job creation/economic growth) and environment
o Canadian immigration plan implemented, 1 million immigrants over the next 3 years
 Sits between competing interests; economic interest (e.g., cheap labour) and political
interest (border control)
 Immigration officials are damned if they do, damned if they don’t; accountability, careful
about who they let in, same with parole boards
- Symbolic Law
o policies that have little impact on objective conditions but serve the purpose of placating the
public
 Refers to the policies that have little impact on objective conditions  they have little
effect but they make the public feel better
 Example: Announcing loudly but enacting a law that has loopholes
Police Work
- Discretion
o Enormous discretion in interpreting ambiguous statues
 Need to ensure that we have codified rules around this  we want officers to have
discretion
o We WANT officers to have structured discretion
 We need a bit of space for people to interpret the law
o Need to ensure we institute things to give us some kind of structure
- Misconduct/corruption
o Inspectors who make ‘inappropriate’ remarks to co-workers
o Driving under the influence
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o
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Improper use of government credit card
Abusing police-officer status
Publicity criticizing the force
Mishandling prisoners
Pickton Case
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Even though there were many reports of family members saying their family was missing, but police did
not engage
Indigenous women were kidnapped and fed to pigs
They selectively decided to investigating these cases because of the indigenous population it concerned
(racist discretion)
Trudeau has given money to research to try to help the indigenous people for so long
Police and Discretionary Power
- G20 in Toronto (June 2010); Occupy Toronto (October 2011 – ongoing)
- Guaranteed Charter Rights: 2(b) and (c) of the charter – freedoms of expression and peaceful assembly
- Laws and regulating protest in Canada give the police a lot of discretion in deciding what assembles count
as ‘peaceful’ and when peaceful protests are not allowed
- Laws that regulate street protests
o S. 63 of the Criminal Code prohibits ‘unlawful assembly’ (disturbing the peace)
o S. 31 of the Criminal Code gives police power to detain people for ‘breaching the peace’ (what
counts as a breach of the peace?)
o Municipal by-laws can prohibit street protests that are not peaceful because they interfere with
local interests (e.g., excessive noise? after 11pm?)
o Community law powers – such as S. 42 (3) of the Ontario Police Service Act – gives the police
power that are necessary to discharge their duties, such as preserve the peace
- Give the police enormous amounts of discretion. Is this acceptable? Are institutional interests the same as
public interests? What needs to be done?
o Clear guidance by courts and legislatures
o Clear notice to public of what is and not lawful
Vancouver Sun
Constitutional Principles and Practice
- Fundamental Freedoms
o FREE SPEECH IS A MYTH, there is a protective speech, but NOT free speech
o Everyone has the following fundamental freedoms
 Freedom of conscience and religion
 Freedom of thought, belief, opinion and expression, including freedom of the press and
other media communication
 Myth  the right to speak has its limits and are contrary to popular opinion
 Form and informal  age determinations 13, 18+
o TV shows are reviewed before they air, there is a body put in place to
regulate what is said and how it is said
 Absolute tolerance for speech  not reflected in jurisprudence or constitution
 We have protected speech and non-protected speech, but NO FREE SPEECH
 Example: Obscenity, defamation of character, child pornography, black mail,
threats, hate speech, solicitations of crime, treason  NOT protected
o Trying to minimize harm
o Speech not protected by law  perpetuates harm
o Hate speech  purposed to negate specific pressures to societies
vulnerable groups  aims to undermine the laws premise that we are
all equal  visible expression of hatred that we do not protect
o NON PROTECTED SPEECH = anything that creates harm
 Freedom of peaceful assembly; and
 Freedom of association
The Myth of Free Speech
- Broadcast television: censorship
- Can you really say what you want?
o Speech that is not protected
- Speech that creates harm is not protected
Hate Speech: Are we protected? Why not?
- The US hate speech is tolerated
- Charlottesville: Race and Terror
o Why is this a problem?
- Canadian Hate Laws
o It was not used
o Comprise
o Criminal Code
- Is the very presence symbolically meaningful?
Proud Boys
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The Proud Boys are a fraternal organization of Western Chauvinists who will no longer apologize for
creating the modern world. Our values center on the following tenets
o Minimal Government Maximum Freedom, Anti-Political Correctness, Anti-Drug War “AntiMasturbation Closed Borders, Anti-Racial Guilt, Anti-Racism, Pro-Free Speech (1st Amendment),
Pro-Gun Rights (2nd Amendment), Glorifying the Entrepreneur, Venerating the Housewife,
Reinstating a Spirit of Western Chauvinism
o Through these are our central tenets, all that is required to become a Proud Boy is that a, am
declare he is “a Western chauvinist who refuses to apologize for creating the modem world.” We
do not discriminate based upon race or sexuality. We are not an “ism”, “ist”, or “phobic” that fits
the Left’s narrative. We truly believe that the West Is The Best and welcome those who believe in
the same tenets as us
o *We are by no means prudish Victorians. We merely believe that this energy is better spent going
out, meeting women, getting married, and having children
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What is this? Do we regulate this behaviour? Why or why not?
Police Checks and Privacy Rights
Governing Homelessness through Land-Use (Zoning)
- Ranasinghe and Valverde
o Examine the problem of homelessness in Toronto, especially a municipal effort in the late 1990s
to expand and spread homeless shelters equitably across the city
o Why are municipalities ill-equipped to address problems of homelessness?
o TWO REASONS!!!!!
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1999 – Task Force created to investigate homelessness in Toronto
Final Report: “Taking Responsibility”
o 105 recommendations
o Prevention and long-term approaches
o All 3 levels of government must take ownership of the problem and responsibility for solving it
o Advocated for inclusionary zoning  the city would be permitted to locate homeless shelters
where it pleased as long as it met other zoning criteria
City council endorsed recommendations of the Task Force
Faced with much resistance from the public  Not-in-my-backyard sentiments
Are these arguments justified?
Do the needs of homeless people outweigh those of well-to-do citizens?
Should limits be placed on public consultation in order to limit NIMBY-attitudes?
Article
- Examines homelessness in Toronto
o Politics built into the decision
o 1990’s  drastic increase in homelessness due to closure of homelessness in Toronto
o Integrate streets act
o City of Toronto  authors argue that all these attempts made by the municipality was bound to
run into problems
 Structure of a municipal government has unsubstantial status in Canadian law
 Not able to actually exercise
 Approached by increasing zoning laws; regulating spaces and not people
 To focus on how land functions  ends up segregating spaces, and therefore you are able
to segregate groups
 Second issue to address  public participation in creating these policies
Critical Reflection
- In your groups, discuss and substantiate three reasons why there should be limits to individual rights
- In your group, discuss and substantiate three reasons why there should NOT be a limit to individual rights
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Ranasinghe, P. and Valverde, M
o In this paper, focus on the particular effort undertaken by the city of Toronto, in the late 1990’s to
address the problem of homelessness, namely, the attempt to build more homeless shelters and
equitability spread them across the city
o Argue that any attempts made my municipal governments to address issues of homelessness – are
more broadly, matters of social justice – are intended efforts to provide a temporary roof over the
heads of those who find themselves without shelter, are likely to be thwarted, significantly delayed
or deviate drastically from their original intentions on the one hand, or at the other extreme, fail
miserably
o When municipalities attempt to address issues such as homelessness, and matters of social justice
more generally, these issues are often funnelled into the awkward machinery of zoning law, one of
the few legal fields within municipal jurisdiction
o Zoning law governs uses and spaces, not persons
o This basic legal fact is shown to have an important effect on the outcome of political conflicts, and
this problem is exacerbated when a hot-button issue such as where to locate shelters is opened up
for public input and consultation
o This case study thus suggests the importance of closely studying the specifics of the legal
architecture within which municipal politics are waged
o
o
If you are allowed to put a shelter anywhere you want in a city, it takes away a fundamental right
of the public to have a meaningful input into what occurs in their city (Paul Sutherland, Toronto
City Councillor)
In the 1990s there was a dramatic rise in the number of homeless people in many North American
cities; including Toronto
Law and Social Change/Justice
Today’s Agenda
- Discussion Topic
o Law is an instrument for Social Change VS. Law is a tool of the state/powerful to maintain the
status quo
o
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Think about the different perspectives that have been dichotomized throughout this entire class;
which side do we sit on
o What this perspective is doing  law is here to improve the lives of the rich, powerful, and white;
or law is a place where we can make change as a source of all different groups
o Meet somewhere in the middle (FOCUS OF THINKING TODAY)
o Can we transform the basic structures of society to reproduce and produce the inequalities
o The law in itself is not what controls our actions everyday (all we do to fit in is through engaging
in social norms – outside of the legal system)
o When we violate these social norms  there are consequences (when you make a racial or sexist
comment; should be a consequence)
o Want to increase the mechanisms in place for the individuals who are able to exercise bias
o How can we use the knowledge that we’ve gained to change how individuals think
Martha Minnow
o On the one hand law is an instrument for social change (law has changed over time, how it has
benefitted marginalized groups)
 E.g., gay rights, and lesbian rights  being able to marry
o Social change = reflecting how society is moving along
o Law also maintains status quo
 E.g., blaming the victims for sexual assault (masculinity)
Example: Immigrant workers come into the country, and know that they have the right to minimum wage
(they know the worker will pay them 1/3 of the amount, and if you ask for a raise, you have the possibility
to lose your job or be deported)  not given citizen rights so individuals are taking advantage of their
vulnerability
Law and Social Change and Justice
- What are some of the conditions that must be present for the law to advance real social change?
o Effectiveness  tied into this idea of enforcement; something is only effective if there is an
effective enforcement strategy
 Why is it important to have effective and consistent enforcement for social change: deters
bad actions from continuing in the future, eliminates bias, it makes the legal system seem
more fair and legitimate
o Public Opinion
 Why do we need public opinion?
 It matters because it can dictate social norms and discontent with social norms;
social norms are what is supposed to dictate the law
o LGBTQ+ rights  once a group of individuals came out and spoke
about how they should be treated, a change started to occur
o Women’s rights (Me Too Movement)  Harvey being in the news the
way he was, public opinions was there
o Indigenous rights
o Supportive political and ideological climate
 Need the conditions to be right for change
 Not going to start talking about a different issue during a different movement like the Me
Too movement
 Don’t want to just be a ‘local’ thing → want it to be a ‘global’ thing
 People coming together to accomplish one common goal amongst everyone
o Energize politics
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The law is very good at doing because when the law sucks at something; that is a great
way to know how to improve it
Learn from something that you have done wrong
Avenue for individuals who have been marginalized or ignored
Factors that Limit Social Change and Justice
- Institutional structure and procedural requirements
o Institutional structure refers to the legal system
 Which is made up of different procedures and legalese (the process, the procedures, etc.)
o Circumstances
o Show that the rules and the governing of the legal practices that exist are difficult to operate and
understand
- Repeat players
o Been in the legal system various times
o Experience, legal teams or part of company (legal system liabilities in place, insurance in place)
o Attached to your life
- One-shotters
o Not be clear on what it is that you have to do
o Person outside of the legal system who only enters in once
o Usually individuals with limited resources
o Do not have the ability to go to court
- Why are courts important to social change?
- How and why do critical legal scholars critique human rights?
o Why do they do this?
 Much of the oppression people face today doesn’t come from a lack of rights in the legal
system but it comes from a form of….
 Documenting human rights in a coded book does not do anything
 Groups that are often fighting for human rights?
 Vulnerable groups who do nt have the money, time, capacity, or knowledge
o Counter rights
 Rights of sexual minorities
 In Uganda, it is illegal to be gay
 We see a lot of refugees coming to Canada in order to combat these issues
o Human rights
 We cannot protect these larger contexts
 We want something like human rights to exist when in actuality it cannot
 Who is in the position to be critical of rights?
 Dr. Ballucci has the privilege and luxury; able to lead discussions and teach as
she pleases
 Who should have the secure rights
 All of us should, but we do not
 Example: Debate around fetus and a mother
 Whose rights would take precedent  the life of the mother or the fetus (when
only one could live)
o Is it the rights of a woman, or the rights of a fetus
 Individualized decisions
 Occurring in different contexts
- Law can offer us some ways of thinking of social change
- Law can help us
o Not as an entity on its own; we have to see it as a tool box
- Put it in a constitutional act (don’t have to be a lawyer to create a policy, or to counter the law
- Any time you face the legal system it is extremely time consuming, financially draining, etc.
- Contemporary research  talks about limits to social change and the legal system
o Against you if you do not have the time and the money
o Procedures are not fair in how they contribute the workload
o
o
o
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Outcomes are not always there
Even when these cases go through; outcomes are not as great as you want them to be
Remember progressive legislation can also be neutralized through courts; we can have a law in
place that sounds pretty, perfect, and non-bias  but how that law gets taken up, how and if it gets
used, the real meaning of the law
Law is a place that can be used for resistance
Bedford V. Canada
- Superior Court Justice in Ontario struck down all 3 Criminal Code provisions that made prostitution illegal
o Communicating for the purposes of prostitution
o Living on the avails of prostitution
o Owning/operating a bawdy house
Youtube: Panel on Law and Social Change
- Radcliffe Institute for Advance Study: Harvard University
o If we don’t pay attention to the courts, the legal system and their language
o Why is language important in courts and legal system?
 The way you frame things can shape the outcomes
o You sensor what you say in front of certain groups
 Language is an extremely important indicator that gives you a sense of something
o Judge “If you didn’t want to get raped, you should have closed”  language in itself predicts
social change
o Keep courts in the legal system in play  creates debates and room for controversy
o Creates a dialogue and space for the argument to continue
o Courts represent society (morality, justice)
 Because legitimized institutions backing up the change’s society  hopefully see a
reverse where everything mixes together
o Critical legal scholars;
 Why did they do this?
 Much of the oppression people face today doesn’t come from a lack of rights in
the legal system but it comes from a form of
Debate
- Law is an instrument for social change
o What conditions must be present for the law to advance and real social change?
o Why are courts important to social change?
o Why is the language of human rights important to social change?
- Law is a tool of the state/powerful to maintain the status quo
o What factors limit law’s potential for social change?
o On what grounds do Critical Legal Scholars critique human rights?
Readings
- Calavita  Chapter 7 pp. 135-171
o Judicial systems are limited in their accountability to accomplish progressive social change (they
already need public approvals, minimal backlash, institutional structure and procedural
requirements, ect.)
o Repeat players vs. one shooters
o The Myth of Rights
 The concept of referring to the misplaced faith in rights discourse to advance in social
equality and empower the subordinated
 Termed by Stuart Scheingold
 He says “premised on a direct linking of litigation, rights, and remedies with
social change,” but rights are a blunt weapon with a tendency to boomerang
Readings: Post Midterm
Aboriginal Women at U of Saskatchewan College of Law by Lindberg
 Need for native women &men in law schools (representation)
 Native women are susceptible to negative performance factors at the professional and
graduate levels of university training

Grace Adams was one of the first women to
 graduate from lebret residential school
 University degree
 Best teacher in province
 9 native women at this school
 Majority are over 25
 3 Metis, others are treaty Indian
 Many have children
 Talk about their examination of the accommodation of native women in the curriculum,
class teachings, materials and understandings of law school
 Goals apply to law school were to help native people, get a job, dare, options it offers,
wanted to be a lawyer, etc.
 Alienation based on perceptions of their race based on physical attributes
 Major concern is racism and community wellness
 Need support from college during exam time, community and family concerns and
assignment due dates
 Patricia Monture: physical proximity of native people often means safety
 Describes criminal law classes that allude to the perspective of the victim,
especially in sexual assault crimes
 Never had courtesy extended to her
 Something missing feeling- prep for real world (not native)
 Native women found that non-native student’s knowledge on their issues was quite low
 Current image of the native women and peoples are dated, and their concerns are not
considered priorities
 Faculty’s inability to see native people as individuals, often seen as group members
 Native women in upper years were more likely to identify, recognize and experience
oppression
 Some were gender based
 Native women are essential and intrinsic to the circle of life
 Some concepts taught in school do not fit well with native notions of nationhood,
property and peoplehood
 Not a constitution, belief system
 Property law- very difficult for them to understand
 Holistic thinking transformed to linear thinking
 Canadian justice system seen as racist and oppressive
Zoning by Ranasinghe and Valverde
Textbook Readings- Kitty C.
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Chapter 4: The Color of Law
American psychologist in 1913 reported Jews, Hungarians, Italians and Russians as "feebleminded/morons"
 IQ test to immigrants, prisoners and recruits in the US army
 Feeblemindedness makes people commit crime
 Hereditary which is why POC more likely than native-born Caucasians
Racist theories such as "feeblemindedness" were practiced on innocent people
 Forced sterilization (elimination of forming life) against their will
 Racist assumptions in the self-interest of the wealthy individuals interplayed the definition
of race and law
 Idea of race being naturalized as biological facts and inscribed in social policy
 Forming eugenic policies, immigration restrictions, criminal justice practices, etc.
Angela Harris (2002)
 Race Law: laws, like those based on the feeblemindedness theory, that maintain racial
categories and shape interactions among racial groups
 Legal actors struggle to fix racial boundaries
 Boundaries are often driven by instrumental interests
 "Interest Convergence or "Material Determinism": material interests produce
the concept of race and determine the content of racial categories
 (Deglado and Stefancic)
American slavery flowered global capitalism
 Enriching the economy through exclusion
 Apparent in CJS too
 Black offenders were put into horrifying networks of "special reformatories" and
work assignments (outdoor labor)
 Where there was economic interest in exploiting slave labor or appropriating land,
people could be counted on to develop theoretical justifications
 Congress pronounced the Chinese "an inferior race" and "a distinct race of people... wholly
incapable of assimilation"
 Chinese Exclusion Law (1882)
 Convinced of biological basis deflecting the challenges of their relatively light skin color
Debates on scientist determining who's considered Caucasian should be based on their head
shape and cranial development
Believed that Chinese people and African Americans were not to come in contact
American Indians were called "savages"
Group racialized non-white based on material and economic interests of the labelling audience
 Particular immigrant group willing to/condemned by destitution or illegal status to perform
low-wage work under precarious conditions= nonwhite regardless of skin color
Americans who identify as white can fall out of that status if they became poor
California prisons reinforce racial categories through a sorting process and the segregated
housing arrangements
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Constructed nature of what is taken to be natural, biological fact, and law's complicity in
that construction based on this racial classification
Studies on racial identity + role of law
 Race is "not objective", inherent or fixed
 It is a "social construction" and ordinary, difficult to cure or address
 Racial identity confirms we are all formed of multiple experiences and incorporate
numerous identities and social realities
 Intersectionality: intersection of our race, gender, sexual orientation, class, and other
such statuses
 Conflicting overlapping identities
 Crenshaw, Intersectionality disempowered women of color and disallowed as
legally irrelevant when it has to empower then
 Obasogie reveals that the visual features we take to be central to definitions of race are
constituted from microlevel social practices and interactions
 The blind "see" race in the same way as the sighted
 We actually "see" what we've been trained to consider relevant
 Experience structures visual observations
 Learned through social practices and interactions
Police brutality has increased against minorities/POC
The "color of law"
 Racial profiling
1. Perpetration of a specific crime
 Ie. Questioning any minority who "fits" the description due to race
2. Racial stereotypes
 Ie. Young minority men perceived to be potentially criminal because they fit the
stereotype of an offender in general based on profile
 Criminality lies at the heart of racial profiling in law enforcement
 Victor Rio's Punished: Policing the Lives of Black and Latino Boys
 Targeting these boys as delinquent has long-term consequences and is confined
to law enforcement
 Culture control/ youth control complex
 It criminalizes them as they have higher chances of recidivism
 Institutions reinforce delinquency
 Elicit subcultures of hypermasculinity and crime
 Culturally dominant stereotypes get enshrined in daily CJS
 The fear of crime is common due to the moral entrepreneurs/political actors
 Economic benefits of imprisonment
 Michelle Alexander (2010) "The New Jim Crow"
 Discrimination is carried out under cover of felon discrimination
 Wacquant (2010) "mass incarceration" = "hyperincarceration of black men from
imploding ghetto"
 Whites and black fear crime
 Black ppl fear the system
 Racial + crime fear
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Moral entrepreneurs determine what is criminal
 School shooters = white kids with psychiatric malfunction
 POC killing one another= thugs
The role of law creates racial categories and conceptualizes the experiences of POC
 Everyone must develop "white consciousness"
Whites are "masters of national space"/"enactors of the Law"/ "governors' of the nation"
 Self-interest and self-declared racial superiority of those with obligations to exploit others
 Conceptualization of whiteness get constructed as normative that violent outlaws become
pillars in their interest
The concept of race has been used to justify the suppression and exploitation of those declared
inferior
 Its power lies with biological and natural facts
Chapter 5: Many Laws Many orders
Legal Pluralism: two or more sets of laws and legal practices operating (more or less) at the
same time, in the same place
 Ex. Federal, Provincial and Municipal Laws
 A Fed law may be signed and approved by the PM but each prov has the right to have
their own laws
 Often jurisdictional conflicts
Administrative Law: legal orders that establish, interprets, and implements the rules and
regulations of administrative agencies, with the prototype being federal agencies such as Social
Security Admin or Immigration and Customs Enforcement
1. Decentralized field of law with many decisions-making authority members
2. Mediators exercise substantial discretion, though they tend not to be institutionally
independent of the agencies whose actions they adjudicate/mediate
3. Little independent oversight or appeal
 Decisions are influenced by adjudicators individuals’ preferences and attitudes
 Talyor (2008), "strategic model of judging"
 Admin judges are affected by the institutional, structural and political pressures they
face
 Biases in decision-making within their own agencies
 "has bedeviled administrative law from its inception" (2008)
 Federal, Provincial, municipal jurisdictions and their various levels of appeal are
shaped by their institutional contexts and the leanings of their judges
 The plurality of judicial decisions is arguably even more pronounced in the
administration in the administrative law realm, where the rules of the game are
often amorphous, oversight can be lax, and political-institutional independence
severely circumscribed
Homeowners' associations operate at the most local level (inside layer of the regulatory-legal
onion
 Individuals subscribe to libertarian principles of small government, minimum regulation and
maximum individual freedom
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Valverde (2012): Everyday Law on the Street
 Observed enforcement official, city councilors, neighborhood associations, local activists
to enact and enforce regulations relating to such things as street-food vendors,
affordable housing, taxi permit system, begging and noise
 Regulations are numerous and the value commitments underlying them frequently
conflict with each other and on occasion backfire
Boyle(2002)
 Documents the different roles of players at various levels and locations in the genital cutting
controversy, from international institutions with "soft" legal authority to NGOs, sovereign
nation-states, local officials
 Study of international legal and normative pluralism and the ways the various levels
within these normative orders relate to each other
Sousa Santos (1995)
 "globalized localism" describing the exportation of all sorts of artifacts, including law, from
the local contexts where they are produced to become global phenomena
 Ex. Spread of Coca-Cola and fast-food chains like McDonald's
 "localized globalism’s" refers to local phenomena that have been refashioned by global
processes imposed from above
 Impact of trade agreements on developing countries, programs and natural resources to
pay down debts to global powers
 Result of a series of "class, national, gender, ethnic, religious, and generational conflicts"
between wealthy and poor countries
The "white man's burden", "manifest destiny" and lengthy elaborations to provide authority for
the colonizing agenda and are found throughout legal documents of the colonial era and
beyond
 Due to racialization
 The transplantation is the importation of European legal systems into their colonized
territories
 Indigenous legal systems and European systems produced a hybrid in the colonized
territory
 Legal orders were produced that were effectively "a combination of the two"
 The Western legal codes and practices furnished a counterpoint and sense of coherence to
disparate tribal traditions
 Providing an indigenous consciousness of "law and custom" where none had previously
existed
Gavigan's (2012): Hunger, Horses, and Government Men
 Resistance by indigenous people within legal pluralism
 Indigenous people were not only criminalized by the new laws as other scholars have noted;
instead, indigenous leader used the new courts to extract benefits
 The "low law" of the Canadian plains, the legal cases that made their way into regional
courts as opposed to the "high law" of the upper courts- reveals the dexterity of indigenous
leaders in using the new legal system to advance FN interests whenever they could
Darian-Smith: Law and Societies in Global Contexts (2013)
 Dimensions of Legal Pluralism
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Myriad levels of law, both formal and de facto, in one location
 What's considered law here is not confined to official products of the state but
includes the popular artifacts as well
 The multitude of global legal regimes, none of which is entirely disconnected from the
others or is even a discreet place-based entity
 "domestic law is, constitutively linked to issues of global economic, political, and
cultural power"
 While law is always everywhere multifarious, some
Klug (2002)
 There are many orders and dimensions of law, and this legal pluralism may have profound
consequences for social change in a wide variety of contexts, including the colonial,
postcolonial and newly democratic
Legal pluralists have shown that while formal systems of law may be imported into territories
by a colonial power, these societies often also retain their customary ways of handling disputes
Sometimes legal systems overlap but do not conflict or compete
Chapter 6: thee Talk vs. The Walk of Law
Gaps between "the law on the books" and "the law in action"
 Ex. Sign indicating no access on Cliff walkway vs. The de facto policy of granting access
 Routine nonenforcement
Vagrancy Law: homelessness without regular income or employment; devised to expand the
workforce and contain the upward spiral of wages resulting from labor shortages
 Target for lower class to coerce into agriculture
1997 in US law against copyrighted internet files; federal felony punishment with up to a
$250,000 fine and a 3-year prison term
Race was added to vagrancy
 Vagrancy, the offense of a person not being able to prove at a given moment that they're
employed
 And many African Americans were arrested of this without committing any true crimes
 Vagrancy was key to neo-slavery
 System put together to provide a cheap labor force to a wide variety of employers and
industries
 Mass arrests of black ppl added advantages to those interested in reinforcing racist
ideas about blacks' predisposition to criminality
Loitering Law: illegal in certain public venues to stand in one spot without doing nothing
 Prohibit behavior that many of us engage in and encourage discretionary/discrimination
action in law enforcement
 Ex. White boy did study of loitering and was not arrested due to white privilege. He and his
friends did not look like a threat to the security
 Idea that POC/minorities are a threat
 Racial difference is apparent in CJS
 CJS is blind to what whites are involved in
 Laws that are neutral are applied disparately
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Other laws target the kinds of people to eliminate from public view "undesirables" and the
social problems they embody
 Policies "banish" certain people from a certain place
 Often against homeless people
 "illegal lodging" and "anti-camping" laws to get them away from the streets
 Selective enforcement has been shown through the distinction between the use of a
blanket to "cover" oneself as homeless do (which is forbidden) and using blankets to
"sit on" for picnic use (allowed)
Gaps between "the law on the books" and "the law in action" are structured by policy makers
and enforcement agents
Symbolic Law: policies that have little impact on objective conditions but serve the purpose of
placating the public
 Empty political gestures
 Ex. Cheap immigrant labor and pressures from the employers and industries profiting from
it, vs. Political pressure exerted by public demands
 Discretionary decisions are designed to minimize trouble for their organization by warding
off anticipated intervention, avoid negative consequences and not alienate potential
powerful constituents
 Protects self-interests to shape "real law"
Administrative law judges
 Frontline officers in the immigration service and in social services exercise substantial
discretion but their actions are partially circumscribed by the courts
 Courts mediate L-O-T-B and L-I-A
 Administrative law courts are themselves sources of variable law-in-action
 Plurality and variability of administrative law outcomes expose the contingent process
through which law-in-action is made
Police departments use their discretion to interpret ambiguous statutes
 Hate crimes impose more severe sentences on those whose animus against certain
specified groups contribute to their motivation to commit a crime
 Those identified by race, gender, sexual orientation, or nationality
 Grattet+Jenness(2005) claim police sheriff departments sometimes follow the lead of
other agencies in defining hate crime
 State guidelines for advice, seek approval and turn to the local community
 Law enforcement agents sometimes "take the law into their own hands" through
corruption and misconduct
 Motivated by a self-interest mentality
Kairys (1982) explores deviations from stare decisis ("let the decision stay")
 The common law principle requires judges to be guided by precedent decisions
 Court was guided by precedent only when it served the decision it preferred for ideological
and political reasons
 What constitutes a precedent is in the eye of the beholders and the beholders come from
distinct perspectives that shape their point of view
Law and society scholars who study books-action gap focus on legal meaning making in police
stations, border enforcements, courts, malls, and anywhere else law is enacted daily
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Law is violated
Gap between formal and real law are results of racial, political or class biases
Goffman and Venkatesh were "extreme ethnographers" as they enmeshed themselves in their
subjects’ daily lives over without much regard for their own physical safety or legal liability
 Experienced/encountered raw life of CJS vs minority groups
Chapter 7: Law and Social Change
Post-Civil War highly segregation communities for "Whites" and "Coloreds"
 Dual society in American life
 The lack of direct enforcement powers is dependent on the will of others
A decision might be legally sound, but its impact can be nullified by social forces
 Decisions favor "the haves"
 Courts are "passive" institutions
 Lawmakers are unaware of many social realities
Galanter
 "Repeat Player" (RP): those who continually have multiple cases heard in court
 Able to shape their interpretations of significant rules to their advantage as they have
"advance intelligence"
 Ex. 2 litigation, gov agency vs corporate entity
 "One-Shotters" (OS): only have one or very few
 Look for look for best possible remedy as soon as possible
 Ex. Parental custody cases, divorce, neighbors suing, etc.
Edelman
 The law becomes what the interpreters make it
 Law-book-action gap
 Practitioners determine what real law is
Sorial (2013)
 Interpretation of what constitutes illegal hate speech turns on whether people with
expertise consider the speech in question a "reasoned argument" or an emotional
"incitement"
 Discriminates against those who don’t have education or skills to seem authoritative
and whose emotional arguments may appear to be inciting "rants"
 Those with racist or hateful and injurious views may be able to use the appropriate
language and deploy "manufactured" authority to disguise their speech as representing
a legit academic perspective
Ashar (2007)
 Campaign for worker justice in restaurant industry (NYC)
 Majority of workers are immigrants and undocumented
 Industry has a low unionization rate and low wages and benefits
 He links immigrant's meager wages and benefits to "neoliberal globalization"
 World Bank, IMF IMPOSE AUSTERITY MEASURES ON DEVELOPING COUNTRIES
TRIGGERING MASS IMMIGRANTS SCALED BACK WORKPLACE ENFORCEMENT AND
LET MIN WAGES STAGNATE
 Solidarity of workers and their advocates
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Legal studies were used to not shun rights but deploy it strategically
Scheppele (2004)
 Gould's struggle with cancer for 20 years
 His theory was on individuals caring about their own life trajectories which is why we
need "constitutional ethnography", where we examine under a microscope individual
specimen in all their complexity
L-O-T-B made it illegal to discriminate while L-I-A turned it into an advisory
Bell (1987)
 Heroin, Geneva, brings whites and blacks together
 "Amber Cloud Disease" children’s grades plummet that they can't focus and are alienated
from the rest of society
 Associated with urban poverty and racial discrimination
 Poor children are denied the cure, but the discrimination is not provable intent
African American man are imposed to death penalty in a racially discriminatory manner
 Blacks are 22x more likely to get death penalty for killing a whiter person
 They’re 5x more likely to get death sentence than white killing white
Galanter, law and society scholars have done structural analyses of courts that explain their
tendency to favor the haves
Rosenberg, investigations of law depends on prevailing ideology and public opinion
Massoud, law is manipulated through diverse poses
Bell+Dudziak, critiqued strategies and ambivalent qualities of the court’s commitment to racial
justice
Eldeman, documented the central role large organizations play in the creation of legal meaning
Hirschl+Tushnet+Massoud, exposed antidemocratic quality of some constitutional courts
Kennedy+Scheingold+Smart, critiqued rights talk
Wiliams+Matsuda, vindicated rights talks about the potential of law
Santos+Rodrigues+Ashar, did case studies of successful deployment of law by resistance
movements
Maveety+Grosskopf+Solomon+Schepele, conducting analyses of constitutional regimes that
serve as vehicles of reform
Economjc and legal systems are linked through the organizing principles of the marketplace,
private property, contracts, competitive individualism
Legal pluralism suggests the many types of law
 Book-action gap explain the trajectory of law being indeterminate
 Law is bent and shaped by social realities
Chapter 8: Reflecting on Law's Image: An Inward Turn?
Neoliberalism: free market trade, deregulation of financial markets, individualization, and the
shift away from state provision
Ethnographers measured the limits of and possible strategies for effective legal reform
 Cultural turn: focus on the subjective experience of law and culture and their deep
interpenetration
 Legal consciousness can be thought of as a form of law based on the images of law
produces in culture
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Law lives in images that saturate our culture and that have a power all their own
"culture" refers to a wide range of phenomena
Mezey (2003)
 Study of "law and culture"
 Law produces, performs, contests and transforms meaning
 Poverty of law over culture
i. Legal rules structure the baseline from which we negotiate our lives and form
our identities
 These legal grounds are nor visible law= more effective
 The realist position us that law is everywhere as it shapes our social practices
and cultural meanings
ii. The trumping power of local culture over formal law
 Ex. Speed limit is customary but it effects the determination of the official, legal
limit as not everyone truly follows it
 "law as culture as law"
 Culture is any set of shared signifying practices
Image of law like fatherhood, once powerful and powerless, potent and yet vulnerable
 Overly permissive
 strong
Image of law as soft
 Parallel of image of the feminine as weak
 Highly ignored by "real men"
Image of law as "straight-up corrupt/dysfunctional"
Macaulay (1989)
 "popular legal culture"
 "culture isn’t a tangible thing (but instead) is both ideas in people's heads and the stock of
symbols and stories recognized by at least some members of a group"]
Context in which law is portrayed in media based on story lines and characters evoke the legal
meaning of law.
Kennedy (1993)
 Focuses on the ways disempowered groups can contest and transform their positions
through harnessing the counterhegemonic power of cultural images
 Assumptions of resistant’s affect cultural identities and forms of victimization and the law
 Based on the way women dress and the rejection/omitting to listening
to minorities/women
 Women are objectified
 Social inequalities that structure gender and race relationships
Coombe (2003)
 Critical cultural studies of law
 Relationship between law and culture have been established and maintained in the
world creating new distributions of wealth and new inequalities of
power, legitimating some identities and delegitimating others
Rapping (2003)
 Racialized images in crime tv
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Volpp
 No such thing as "white culture"
 Clash between two cultures creating a cultural divide
 Culture is ascribed to immigrants’ "others" and made responsible for their behavior
 Exaggerated perception of ethnic difference that equates it with moral difference from
"us"
 Implied identity construction takes places such that "white ppl re individual actors;
people of color are members of groups"
 Irreconcilable tension
Chapter 9: Conclusion
Law is ambiguous through its open space and is not truly definitive
Law and society (and culture) are nested within the other
 Mutually embedded in a constitutive perspective
Law shapes how we live by its explicit mandates through its language and categorizations and
related legal consciousness
Gap between formal and legal law
 Law-on-the-books and law-in-action
 Written law is selectively enforced and put into practice
 Racial and class biases, nature of capitalist democracies
Critical race theory emphasizes the contingent quality of racial categories and the part law plays
in parsing those categories
 Ex. Decision of whom is considered "white"
 Focused on the "color of law"
Law and society often clash too
 Image of law is depicted in various ways which include informal controls
 Demonstrates a weak society
 Low social ctrl= no followed law = high criminality
 Law is out of synch with the surrounding social order
Legal pluralism conflicts the forms of law
Built law may be advantageous for makes
Hirsch and Lazarus-Black (1994)
 Law is both "hegemonic and oppositional
READINGS
- Ch. 7: Law and Social Justice
 Civil Rights Project report
o Public schools are more segregated in the Northeast, where the gap between
rich and poor is greater and more racialized, than in the South, where large
proportions of both blacks and whites live in poverty.
 Nothing in the diversity rhetoric or the individual inclusion policies it advances tamps
down broad social and racial inequalities
o Economic disparities remain entrenched, jobless rates for minority youth rarely
dip below double digits, exploding incarceration rates disproportionately affect
African Americans and Latonos, and residential segregation is as pronounced as
ever.
 Bell
o The failures of Brown epitomize the limits of the law and the courts in particular to
advance real social change.
o The courts unlike the legislative and executive branches are generally not
beholden to voters and soare nominally independent of public opinion; but their
inability to implement the changes they mandate means that their effectiveness is
tied to the enforcement actions or inaction of others.
 While law may generally be hegemonic, its orchestrating power is contingent on staying
in tune.
 Galanter
o 2 prototypical parties to litigation
 1) Repeat Players: those who have had and will continue to have multiple
cases heard in court
 2) One-shotters: those who have only one or very few
o The dichotomy of repeat players and one-shotters is really a continuum
 Cassidy v. Chertoff
 Law and society scholars have also shown that potentially progressive legislation can be
neutralized when courts abdicate the interpretation of that legislation to large private
organizations.
 Hirschl
o A strategy of hegemonic preservation on the part of the elites who feared a threat
to their continued dominance at a time of democratization and rising progressive
concepts of distributive justice
 Rights are blunt instruments for change
o Rights talk is politically neutral and progressive arguments about rights can invite
the opposition to talk about counterrights
 Rights depend on interpretation because they are never absolute
o Sorial: the interpretation of what constitutes illegal hate speech turns on whether
people with expertise consider the speech in question a ‘reasoned argument’ or
an emotional incitement
 1) discriminated against those who do not have the education or skills to
seem authoritative and whose emotional arguments may appear to be
inciting ‘rants’
 2) those with racist or otherwise hateful and injurious views may be able
to use the appropriate language and deploy manufactured authority to
disguise their speech as representing a legitimate academic perspective.
 Bumiller: civil rights claims for women and minorities do not end their subordination and
in some ways reproduce their victimhood
 Psychologists vs. sociologists
o
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Psychologists study individual behaviour
Sociologists study the social structures and processes that systematically propel
people over the side of the bridge.
McCann: disputants bargain in the shadow of law
o Even divorcing parties who do not go to court make decisions in the negotiation
process based on their predictions of what courts would do if they went to trial
People of colour they say may not be quite so ready to jettison a discourse they have
depended on and have a continued need to deploy
Rajagopal
o Popular struggles have an ambivalent relationship with law
o They tend to see law as a force for status quo and domination which must either
be contested as part of a larger political struggle or largely ignored as irrelevant
Constitutional ethnography: where we can examine under a microscope individual
specimens in all their complexity.
‘Amber Cloud Disease’
o Children’s grades plummet, can’t focus, they are alienated from the rest of
society
o Minority adolescents already suffer from this → urban poverty and racial
discrimination
The most fundamental limit of law as an instrument of radical change
o “Sooner or later, legals systems shape gets bent in the direction of their society…
medieval law looked, smelled, ad acted medieval.”
o Our late modern societies are rife with inequality and structured by a capitalist
economic system and nominally democratic politics
o Law will not get too ahead of the popular opinion.
o In capitalist economy the workplace is the private property of the employer, and
the employers make hiring and most other workplace decisions
Kitty Chapter 6 - Heta
Law on the Books vs Law in Action
Calavita, K. 2010. ‘The Talk versus the Walk of Law’ in An Invitation to Law and Society,
(Chapter 6) pp. 109-134, Chicago and London: The University of Chicago Press.
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Gaps between the “law-on-the-books” (the sign indicating no access) and the “law-inaction” (the de facto policy of granting access) are a central concern in law and society
research, and the pervasiveness of these gaps is one of the field’s founding ideas.
Issue is routine non-enforcement
Historical example: vagrancy law passed in aftermath of bubonic plague in medieval
england
o Devised to expand the workforce and contain the upward spiral of wages resulting
from labor shortages - lay dormant for a century after the conditions that produced
it had subsided
Contemporary example
o Copyright files on internet - US peer-to-peer law swapping copyrights file fines of
250,000$ and 3 year prison term
 Almost no prosecutions
Usually the gap between law on the-books and law-in-action is more subtle and textured
than that.
o
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2008, the Government Accountability (GAO) issued a report criticizing the Wage
and Hour Division of the U.S. Department of Labor for their lackadaisical
enforcement of laws relating to overtime pay and wage complaint
o enforcement investigations declined
o Unlike the pathway access at the Cli=s of Moher where the law-onthe-books is
completely voided in action, this nonenforcement of labor laws is partial and
sporadic. But it is meaningful and patterned nonetheless, and figuring out the
pattern and its logic is what interests law and society scholars.
Sometimes the pattern reveals selective nonenforcement.
o Original vagrancy meant to apply to lower classes to coerce into agricultural
workforce
o Later race trargeting was added to the mix
In Slavery by Another Name, Douglas Blackmon (2008) exposes this system of
neoslavery that lasted into the 1940s. It depended on the arrests of tens of thousands of
African Americans on trumped-up charges of vagrancy and other amorphous crimes. The
prisoners were then sold into bondage to the highest bidders, who put them to work in
coal mines, railroads, brick yards, plantations, lumber yards—anywhere captive labor
could be of use. According to Blackmon, even the U.S. Steel Corporation participated in
this labor scheme. As in the prior slave system, the captives were often bought and sold
multiple times by their “employers.” Over the course of almost a century, this convict
labor-tra<cking comprised a windfall for the private sector and for southern state
treasuries. Blackmon (2008, 1–2) begins his exposé by telling the true story of Green
Cottenham, an African American man in Alabama who was sold into forced labor:
This powerful and disturbing book makes it clear that the convict labor system amounted
to a return to slavery in all but name. Fabricated charges and targeted enforcement of
vague o=enses like “vagrancy” were key to this neoslavery. The system was put together
most obviously to provide a cheap labor force to a wide variety of employers and
industries. But it was also part of a wider e=ort by some southern whites to return African
Americans to a state of intimidation and dependence.
o Criminal justice equivalent of KKK raids
Loitering
o antiloitering laws were used to break up sit-ins and protests - partuclalrly black
paeople charged - martin luther king, rosa parks
o Enforcement against some ppl not others
o White student tried to get charged with loitering but didnt work
This law, which was technically a law against loitering (defined in this statute as
“remaining in any one place with no apparent purpose”), was struck down as
unconstitutionally vague by the U.S. Supreme Court in Morales v. Chicago (1999).
“Gang injunctions” have since been passed across the United States, with a concentration
in southern California. To pass constitutional muster, they target accused gang members
by name and designate the specific areas where they are prohibited from gathering. In
Los Angeles, these injunctions are in e=ect against presumed members of all major
gangs.
o They target kinds of ppl not actual criminal activity
Drug laws - targeting blacks and latinas
Racially neutral drug laws
o
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Police blidn to drug transationcs with whites
Laws thatre neutral on the face are applied disparately
Imposing taxes on illegal drugs in hopes of enhancing tax revenues but mostly bc its
easier to prosecute tax evasion than drug dealing
o Hoped these laws would be violated
“Undesirables” and social problems they embody
o Laws against illegal lodging and anticamping against homeless
the disparate treatment implicit in vagrancy, loitering, and anticamping laws
reflects the economic interests and biases of class societies, joined in the United
States and other racialized societies by racial stereotypes
Immigration agency - Instead, it has the misfortune of sitting at the fault line of a
structural contradiction between the economic demand for cheap immigrant labor and
political demands for border control.
The Bracero Program established a system of imported Mexican farmworkers
(“Braceros”) for U.S. agriculture that lasted from 1942 to 1964, with the immigration
agency the chief overseer of the program. Here potentially was an ideal solution to the
agency’s structural dilemma. Immigration o<cials soon learned that if they provided
growers with easy access to Braceros, they could reduce the number of illegal
immigrants, thereby allowing them to enforce immigration laws without incurring the
wrath of farm employers. But it was against the law to simply transform illegal Mexican
farmworkers into Braceros on the spot; instead, Braceros had to be contracted and
brought in from Mexico.
o Immigration and Naturalization Service escorted illegal immigrants across the
Mexican border and brought them back five minutes later as Braceros. The ritual
of having illegal aliens step across the border and come back as legal Braceros
was referred to ironically by immigration o<cials as “a walk around the statute”
A lot has changed but a lot remains the same
o Immigration, both legal and illegal, has increased dramatically
o Post 9/11 climate changed- increase security fears
 Intensify immigration agency problems
Despite increase in budget and staff - enfrocmeent plummeted
Sanctions against employers who knowingly hire undocumented immigrants were written
into law in the 1986 Immigration Reform and Control Act, ostensibly as a way to reduce
job opportunities to illegal immigrants and so reduce the flow.
o Enfrocement dropped
Symbolic law
o Murray Edelman (1964) used this term to refer to policies that have little impact
on objective conditions but serve the purpose of placating the public. They are, in
other words, empty political gestures
o Employer sanctions
o California voters passed Proposition 187 in a landslide in 1994 - never
implemented
 Symbolic action but still unleashed hostility and discrimination and casued
widespread fear among immigrants
 While the law-on-the-books may have been voided by the courts
and met none of its stated goals, it nonetheless had profound social
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and material consequences for immigrants and for many U.S.
citizens
Janet Gilboy (1992) has written about pressures immigration
o Studying immigration inspectors at O’Hare airport in Chicago as they sorted
arriving foreign nationals according to whether they were admissible or
inadmissible
o cues and profiling techniques that o<cials engage to facilitate
o even when there is no external pressure ahead of time, inspectors learn to
recognize which cases might lead to potential trouble for their already
beleaguered agency down the road
Young women coming to work as nannies on tourist visa is common - their employers
are wealthy - example of case where outside pressure allowed nanny to stay in country
adjudicators produce discrepant outcomes
o front-line o<cers in the immigration service and in social services exercise
substantial discretion but their actions are partially circumscribed by courts that
mediate law on books and in practice
o administrative law courts are themselves sources of variable law-inaction.
o asylum study is a perfect example of the conceptual link between legal pluralism
and the books/action gap
Police work
o found enormous variation in how these organizations interpret California’s hate
crime statutes
o police and sheri= departments sometimes follow the lead of other agencies in
defining hate crime, sometimes look to state guidelines for advice, sometimes
seek approval from national professional associations, and sometimes turn to the
local community.
o these departments are constructing legal meaning
o Because they represent local interpretations of what the law-on-the-books means,
and serve as rough blueprints for on-the-ground enforcement, these general orders
might be thought of as “law-in-between,” to borrow a phrase Jenness and Grattet
(2005) use in another context.
o patchwork of di=erent policies
o Many police studies show us that law enforcement agents sometimes “take the
law into their own hands” not just by virtue of their discretionary decision making
but through corruption and misconduct
 Rampart division of the Los Angeles Police Department in the late 1990s.
The Community Resources against Street Hoodlums (CRASH) was the
antigang unit of this division, which in retrospect appears to have itself
engaged in gangster behavior. Investigations, aided by the testimony of an
implicated o<cer, Rafael Pérez, revealed that o<cers in the CRASH unit
had systematically engaged in unprovoked violence and corruption,
including homicides, beatings, the framing of suspects, perjury, drug
dealing, and bank robbery.
Kairys - free speech work
o Also did work on “let the decision stay”), the common law principle that requires
judges to be guided by precedent decisions. Stare decisis is one of the
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fundamental building blocks of the Anglo-American legal system. Kairys’s
examination of how well this key precept lives up in practice to its promise onthe-books has powerful ramifications for the workings of the legal system as a
whole. Examining three U.S. Supreme Court decisions on the issue of free speech
rights in shopping malls, Kairys argues that the Court was guided by precedent
only when it served the decision they preferred for ideological and political
reasons.
o Kairys uses this trilogy of cases to show that what constitutes a precedent is in the
eye of the beholders, and that the beholders come from distinct perspectives that
shape their point of view; that legal decision making is thus based not just on
legal reasoning but on political and ideological points of view; and that the
rhetoric of law may be used to mask deviations from its own principles.
different kinds of gaps open up between formal law and real law, with di=erent
mechanisms at work. Some are the result of racial, political, or class biases; some are
written into the law for instrumental purposes; some follow the contours of an
institutional dilemma or structural contradiction; some are the products of organizational
actors pursuing their institutional interests; some are the creatures of local police
jurisdictions pragmatically hewing to community preferences; and some are the result of
police corruption, aided and abetted by a collusive environment. There are a few
constants though. Most important, the law-on-the-books is almost always ambiguous, and
this commodious quality of law is exploited to construct legal meanings consistent with
ideological, institutional, economic, or practical agendas.
Ch. 8: Reflecting on Law’s Image: An Inward Turn?
Gekko: Greed is good
Cultural turn: entails a focus on the subjective experience of law and culture and on
their deep interpretation
About how law is actually found within cultural images and practices
Mezey
Culture: any set of shared, signifying practices -- by which meaning is produced,
performed, contested, and transformed
Study of law and culture might follow 3 tracks
1) Power of law over culture
Traditional realist approach
The strictures of law are everywhere and shape our social practices and cultural
meanings
2) power of culture over law
3) law as culture as law
Focuses on the dynamic and constitutive relationship between the 2 -- or rather the
slippage between them as distinct concepts
Portrayal of law in films and other media