Applied Test 1

Major Theories & The Sociology of Law

• Marx: Class conflict under capitalism, also reflected in law

  • Instrumental Marxism: The bourgeoisie wins because their interests are protected

    • Look at what laws are made. Examples: Squeegee kids (interests of middle-class commuters, and middle-class ideas about work), vagrancy laws (interests of factory owners).

  • Law creates more inequality

    • Eg. Western & Pettit (imprisonment policies), Pager (mark of a criminal record).

  • Capital wins, even when you think otherwise

    • Look at what laws are followed or avoided. Eg.: English Factory Acts.

  • Structural Marxism: There is inequality internal to the system

    • Repeat Players in the system do better than “one-shotters” (Galanter)

• Durkheim

  • Instead of class division, focus on what keeps society “together”

  • Example: punishment

    • Expression of the conscience collective

    • Often violent and passionate

    • Reinforces the conscience collective, and “society.”

  • Changes in punishment

    • But how far do those changes go?

    • Still have some very violent punishments

    • Is a fine sufficient? Community service? (Doob and Marinos)

    • Re-emergence of “shame punishments”. Why? Think about social meaning and onlookers.

recap of marx and durkheim

• marx saying that law is an instrument of the state

• durkheim

  • act of punishment helps us express and relive our norms

    • moments of expression reminds us about what we agree on and reinforces social solidarity

Legal Consciousness

• Law is ‘everywhere’

  • Ways in which law becomes a regular fact of life

• Law regulates life and is constant (living the law everyday), but we don’t really think about or pay attention to it

  • only think about the law sometimes when certain moments trigger the act of contemplation of law

• law regulates and organizes life

• the way people perceive, experience, and interact with the law in their everyday lives

Ewick and Cavicchi on legalfacts

• Legal regulation is only rarely a matter of active contemplation and calculation

• Legal objects, signs, forms, rules and decisions are understood, however, to be a special kind of fact, a legal fact.

• Perhaps we should collapse the distance between the words legal and fact to write legalfact to emphasize the procedures of law that are the grounds for constructing facts, that is, legalfacts.

• In other words, jurisprudence recognizes at its core that its truths are created only through its particular processes and that the relationship between legalfacts and empirical facts is at best only approximate

• legalfacts, the signs of law, are always mediated by social action

legalfact

something we do because it is legally required, but we don’t pay attention to it or recognize it until certain moments

• Snow chairs

  • In many Boston neighborhoods, it's a rite of winter: When the first flakes start to fall, out come the crates, the garbage cans, the sawhorses and the chairs, chairs, chairs, to protect what some residents insist are "their" spaces on the street.

• “If you use manual labor to get your car out, I think for 48 hours, a couple days, you can have it,’’ said Mayor Marty Walsh. “But they don’t own it.’’

• But what happens when, so often in unpredictable weather, there’s only a light dusting after the mayor declares an emergency? Or when cones show up before it even starts snowing? Or when people claim spots that haven’t been shoveled?

• A lack of hard-and-fast rules is part of this hotly debated, yet time- honored tradition. The laundry basket or trashcan remains a subtle threat and the people who place them are willing to back it up.

• Every winter, there are numerous police reports of vandalized vehicles or public disturbances resulting from space saving. It’s gotten to the point where the South End has officially banned space-savers on its streets. And while Philadelphia police have begun a “#NoSavesies’’ campaign, the practice is still common in snow-ridden cities like Chicago and Pittsburgh.

Locke’s labour theory of value related to snow chairs

• people claiming a space after putting effort into getting it

  • their labour makes it theirs

East Coast snow storm produces parking problems

• After shovelling their vehicles out from under more than 60 centimetres of snow, some people are setting up lawn chairs, pylons and sawhorses to guard their spots from poachers.

  • In Philadelphia, an unnamed shoveller made the same claim more succinctly: “If you park in my space, I’ll break your (expletive) windows. Have a nice day.”

Is law everywhere equally?

• Austin Sarat: ". . . The Law Is All Over": Power, Resistance, and the Legal Consciousness of the Welfare Poor

  • Is law everywhere in the same way for all people?

    • Lives of the welfare poor

      • “Welfare didn’t just come from nowhere. Somebody had to make it up. That’s why they got lawyers, you see, to make up rules for them ...” (352)

    • Interactions with the welfare system

      • Law vs. need

      • Maria finds it difficult to make her rent payments, utilities payments, etc all at once. In the winter of 1988, she was having difficult paying her heating bill, so she went to a private assistance program for help. They asked her to get a letter from her caseworker certifying that she was a welfare recipient and the amount of her payments. But her caseworker refused to write the letter. The caseworker said the rule was that the assistance program was supposed to ask the careworker directly.

      • “What’s she doing? Is she trying to kill me and my kids? How can anyone live with small kids without heat? You don’t do that to nobody, treat them like a dog (367)

law is not everywhere equally

• some people experience more or less troubles, hurdles, access, and engagement with the law

  • ex. welfare recipients getting benefits, which is mediated through the law

questions about relationship between people and the law

• what sustains the belief in the law when it fails us sometimes

• why do we follow law daily

• when do we turn to law to resolve our problems

Legal Consciousness: Ewick & Silbey

• What are the different conceptions of law that encourage some people to call a lawyer if their neighbour’s dog disturbs their trash, and others to accept the losses and pain that may be caused by defective products, unsuccessful surgery, or discrimination?

• To what degree do Americans understand their lives through legal processes and concepts?

• When do people choose to mobilize the law?

• When do people resist the law?

Ewick and Silbey - Questions about Relationship between Law and People

• How do Ewick and Silbey answer these questions?

  • Accounts of ordinary people

  • Legality is not sustained solely by the formal law, ... rather legality is enduring because it relies on and invokes commonplace schemas of everyday life.

• Recall the question:

  • Have you ever gone to court to fight a traffic ticket?

Law in everyday life: methods

• Constitutive approach taken up by Ewick and Silbey: 430 interviews, through which they develop categories of how law is lived.

• We asked these people about the circumstances of their everyday lives. We inquired about any problems, conflicts, or events that were not as they wished them to be, and how they responded to these problems. We listened in their answers for the times when they invoked the law and legal categories to make sense of these events, and the moments when they pursued other non-legal means of redress or accommodation. We were as interested in the silences -- the times when law could have been a possible and appropriate response and was not mentioned -- as we were in the times when law was mentioned, appropriately or not.

• We did not ask explicitly about formal legal actions or agents until the very end of the interview. We waited to see whether, where, and how the law would emerge in our respondents' accounts. The interview was specifically designed to access the actor's interpretations of legality, not to check the quality of their "legal knowledge," according to some professional judgment of what constitutes the law and legality.

Three narratives

• Before the law

• With the law

• Against the law

Before The Law

• In this account the law is defined by its impartiality.

• Who wins: Haves vs. have nots?

  • Haves do not come out ahead, and both the haves and have notes are on equal grounds

    • the law is impartial and fair

• there is an understanding that the law has a certain space and time, and will only call the law when necessary

• Rita Michaels

  • What was her experience with the law?

    • Her divorce vs. neighborhood conflict

  • When would she mobilize the law?

    • “I don’t use my police that way.”

With the Law

• Here legality is described and “played” as a game, a bounded arena in which preexisting rules can be deployed and new rules invented to serve the widest range of interests and values.

  • Example: traffic court?

• Who wins? Haves vs. have nots

  • both groups have the opportunity to win if they have the right resources, skills, knowledge

    • if they know the rules of the law/game and how to play it

• Ray Johnson:

  • “There is no justice. You either win or you lose. As long as you can accomplish your objectives, you win. I’m not concerned about justice.”

• If law is a game, who are the players?

  • Importance of lawyers

    • lawyers give people hope of winning (ex. Flammable)

• the law has rules, but you don’t always need to play them

Against The Law

• In this story, law is presented as a product of unequal power. Rather than objective and fair, legality is understood to be arbitrary and capricious.

• Mired in formal procedure, captured by bureaucratic structures and remote from the real concerns of citizens, the law is unable to effectively resolve disputes, recognize truth, or respond to injustice

• Law is often inaccessible to people (see example of Bess)

• Recognizing themselves as the “have-nots” facing more legally, economically or socially endowed opponents, people use what they can to get what they need.

• Unwilling to stand before the law, and without the resources to play with the law, people often act against the law, employing ruses, tricks, and subterfuges to evade or appropriate law’s power

  • Masquerade: One night, frustrated by his earlier unsuccessful attempts, he called the police, raised his voice several octaves higher, pretended to be a woman, and reported the same incidents. The police arrived immediately.

• Who wins? Haves vs. have nots

“against the law” being more marxist inspired

• the law works against everybody, even the capitalists/people with economic power sometimes

• law is more like a battle field than a game

• the haves usually win, but the have are not just people with economic power

  • also includes people with knowledge, resources, skills to help them through law

Example: Bess

• The apparent irrelevance of law in Bess Sherman’s life is an illusion. In fact, Bess’s life is shaped by law in many ways. Indeed, the apparent irrelevance of law to her everyday affairs reflects its defining power over her life.

• In describing her adopted nephew Kevin, Bess willingly appropriates the legally sanctioned designation to define her relation with Kevin. Here legality fulfills her desire.

• Her lack of property, her sense of insecurity outside of the apartment, even the terms within which her illness was diagnosed similarly are shaped by the operation of law.

• In this sense, the law is not so much absent from Bess’s life as it is often camouflaged and inaccessible, lying just beyond her vision or her reach. Most important, Bess Sherman understood all this.

• For Bess, unlike Rita Michaels, the gap between the law and her life is not a source of law’s majesty. In the gap, Bess Sherman recognizes the power, but not necessarily the grandeur, of law

People & Law

• When people describe the law as magisterial and remote (before the law), they see themselves as supplicants.

• When they describe the law as a game (with the law), they see themselves as players.

• And when the law is depicted as an arbitrary body of rules constructed to advantage the powerful (against the law), they cast themselves as resisters.

Legal consciousness as an ensemble

• These different stories of law were expressed by nearly everyone in the sample.

• Why does this matter?

  • it is precisely because law is both god and gimmick, sacred and profane … that it persists and endures

all of us have the conflicting accounts/narratives of law

• all the three types can be experienced by one person at once

  • exist all at once, can’t be separated

• law is the combination of many conflicting themes at once

  • god and accessible, sacred and profane

  • the existence of the conflicting themes all at once is why law is so powerful and can endure

    • we understand that the law fails us, but we also know that we can win and change the law

      • a hope that we can get what we want

Legal consciousness as an ensemble (continued)

• Before the Law, and With the Law are both necessary to sustain it (gives hope)

  • Example of Don Lowe

    • Says the jury is rigged, people selected based on their characteristics

    • But he also concludes that “justice prevails” and the “system works”

Situating Legal Consciousness: Experiences and Attitudes of Ordinary Citizens about Law and Street Harassment Laura Beth Nielsen

• When you hear a racial or sexist slur, the last thing on your mind might be law.

• “But our ideas about law, both conscious and unconscious, shape how people make sense of such interactions, what types of speech they consider problematic, and what remedies or responses they believe are possible”

Nielsen cont’d

• Why study offensive public speech?

  • central to personal identity

  • it connects, reinforces, and perpetuates exist hierarchies

  • law is implicated in the speech

  • it's an ambiguous area of the law

• How does this contribute to our understanding of legal consciousness?

  • Are attitudes towards law influence by social class? Race? Gender?

  • Is it contingent on the issue being discussed (e.g. offensive public speech vs. noisy neighbours?)

Nielsen Cont’d - Why are they so hesitant to regulate public speech?

• Four paradigms:

  • Freedom of speech

    • Variation by race

    • (whites more likely)

    • Slippery slope

• Autonomy paradigm

  • women

• Impracticality paradigm

  • women more than men

• Distrust of authority paradigm

  • African American men

just because we see something as a social problem…

doesn’t mean we need the law to intervene

durkheim vs. legal consciousness

similar accounts allow the law to endure vs. we all have different accounts that allows law to endure

Nielsen in the context of Ewick and Silbey's theory

• Nielsen/Ewick and Silbey's theory

  • The distrust of authority paradigm expresses some sentiments that are similar to Ewick and Silbey's description "against the law"

  • Women within the autonomy paradigm espoused a sentiment similar to Ewick and Silbey's subjects who are "with the law," treating law instrumentally to serve their purposes when it can be made to do so

  • Those within the First Amendment paradigm express some sentiments that are akin to Ewick and Silbey's (1998:79) "before the law," privileging law above even their own life experiences.

• Again, remember that even a person who says one thing that is similar to one of Ewick and SIlbey's “type” may in their next sentence reference a different "type" of legal consciousness, right?!

• So it's not that some "people" are more likely to have one type of legal consciousness, but it is about uncovering that we all have these different perspectives, and how taken together they maintain law’s legitimacy.

Nielsen conclusion

• There is near unanimity that offensive public speech is a social problem

  • And that is should not be legally regulated

• But the reasons for this belief vary

• Is there law here?

  • Nowhere?

    • many people do not favour legal intervention

  • Everywhere?

    • their reasoning ... was based upon their understanding of "law" in the broadest terms

Legal Consciousness and Dispute Resolution: Different Disputing Behavior at Two Similar Taxicab Companies, Elizabeth A. Hoffmann

• What would you do if something was wrong on the job?

  • shout at a cheating coworker or slash the tires of his car? approach a manager who treated you unfairly or bring a formal grievance? accept unfair treatment without taking any action, or quit outright?

  • Argues that the way we resolve disputes is predicted by the grievance culture of their specific company

Hoffman cont’d

• The study: worker cooperative, appropriately named Coop Cab, the other privately owned and organized hierarchically, named Private Taxi.

• Formal Grievance Procedures at the companies:

  • Private Taxi's grievance system was a single procedure.

  • Coop Cab developed a two-pronged formal grievance system

• Workers at the two companies brought grievances for similar reasons

  • to appeal decisions that impacted their paychecks and, to a lesser extent, to resolve conflicts between coworkers

• BUT: how these workers named their problems and what sort of action they felt was appropriate contrasts the legal consciousness of the employees at the two cab companies.

Hoffman cont’d - How did they resolve grievances?

• When faced with interpersonal problems, workers could

  • learn to tolerate the offending behavior,

  • leave the company,

  • use the formal grievance procedure, or

  • engage in various forms of informal grievance resolution.

    • Informal grievance resolution included:

      • talking to the coworker or manager with whom one had a grievance;

      • aggressively confronting the person with whom one had a grievance; and

      • seeking unofficial assistance from a manager, owner, or member of the board.

Hoffman cont’d - results for Private Taxi

• Private Taxi: only three of the four approaches: toleration, informal resolution, and resignation.

  • Toleration

    • one simply could not let oneself get upset and that toleration, or "lumping it," was often the best strategy

  • Leave the company,

    • For example, Hank, who had been with the company for over seven years, expressed only mild commitment to the job: "The ultimate thing is, we can always quit. It's just cab driving. It's a nice job, but it's just a job. It's just cab driving. It's not like it's a profession. You can always quit."

  • Informal

    • Drivers at Private Taxi often discussed ways they tried to resolve problems by themselves… taking the "friendly way" or being "nice guy(s)”

    • Confrontation …

Private Taxi

• You're not supposed to steal other people's calls. There're not really rules about that. But there's sort of an etiquette: You just want to be fair to everyone. If you start stealing people's calls, then everyone will get mad. Then everyone else will start stealing all your calls.

• We did this to someone a couple weeks ago who was being a real problem. We decided, like for a night, we were going to steal every one of this person's calls. And we did. At the end of the night they'd made $20 in 10 hours. They were broke, right? So you just sort of do things like that, sort of like teach them a lesson: "Be good!"

• So how many of you were doing that?

  • We had at least 10 people—and that was downtown. So if you have 10 people downtown, it's a really small area, so you can pretty much always have someone really close to the call [who can get to the passenger before the assigned "stealing" cab driver]. And the dispatcher was helping because he was upset too.

Hoffman cont’d - results for Coop Cab

• Coop cab: used only three of the four: toleration, formal resolution, and informal resolution

• Formal grievances:

  • People aren't afraid to bring grievances if they feel they've got one. We're encouraged to use [the grievance procedures] if we feel that we have a grievance. ... I think there's a sort of a sense that there are very few jobs where you have that opportunity, so make the most of it.

  • "[I'd bring a grievance if management's action] was not fair ... if it wasn't accurate in the information that was presented and I thought it was a personally based [discipline] letter. That's what you should do.“

• Note: informal resolution is never confrontational, and they also did not use resignation

Hoffman cont’d - comparing Coop Cab and Private Taxi

• How could it be that in two companies, both with formal grievance procedures, we find such different behaviours and attitudes?

• A key difference between the two companies was their grievance culture

  • Grievance system vs. on your own

• Differences in grievance culture stem from the different ways the two businesses are organized

• Differences in how workers anticipated resolving disputes

  • availability of the grievance procedures

  • I've been in situations where I've had wages illegally withheld, where I've not been paid overtime, where I've not been paid Workers Comp, where I've been sexually harassed, where I was disciplined on the job—a lot of the general gamut of experiences for women in low-wage jobs. [And you didn't bring a grievance then because?] There was no grievance process. As Julie, a phone answerer, said, "I think I would be more likely to bring a grievance (at Coop Cab) and a lot more likely to be more assertive about it. I think I would just quit another job."

cab drivers had similar issues across both companies, but the way they resolved their disputes different based on the company

• coop cab used formal grievances, while private taxi does not

  • even when they have the option to use it

• why?

  • it was explicitly stated at coop cab that employees can go through the formal grievance route

    • normalized, encouraged, understood that they have those rights

      • creating, teaching, helping to develop the rights consciousness

Creating grievance culture

• However, Coop Cab workers' legal consciousness did not develop by chance.

• Several aspects of Coop Cab were more ritualized and explicit than at Private.

  • For example, at Private Taxi, joining the company involved a brief interview with an owner or manager, while at Coop Cab, members went through panel interviews and several "informational" sessions.

  • Senior members made deliberate efforts to teach new members that they had certain rights, such as grievance procedures, and to convince them to use the

    • Special education efforts, including posted lists of formal grievance advocates, were necessary because many new members joined without experience in asserting their workplace rights.

  • Over two-thirds of Coop Cab's members believed that the grievance procedures and rights consciousness essential elements of their identity as members of a worker cooperative: egalitarian, less hierarchical …

Conclusions of Hoffmann’s study

• In constructing their legal consciousness, people create meaning for themselves: what they name as actual harm, what they feel is appropriate blame, and what they claim as possible remedies. However, this is not done in isolation

• Legal consciousness is collectively constructed and is constrained by its setting as well as by people's own interpretation of meaning

• Merely having certain structures in place, such as formal grievance procedures, does not guarantee a certain legal consciousness.

• The environment of an institution, such as the grievance culture at Coop Cab versus Private Taxi, has a great impact on workers' legal consciousness.

Ewick & Silbey: Law and Labs

• “Oh there is no law here. You will be wasting your time.”

• However…

  • “Well, it used to be that all the professor's offices were, for example, ensconced in the laboratories themselves, and that was part of the general ethos which was eating, sleeping, drinking and making love in the laboratories. It was all allowed. Or if it wasn't allowed, people did it anyway. I mean they lived their lives in the lab. Now, there's none of that… Offices as you can see are cauterized from the laboratories, and if I see somebody eating, smoking, or doing anything in the labs, they get fined $100. It's tough.”

Ewick & Silbey: Law and Labs

• While in the laboratory, he might be required to wear protective clothing.

• An eyewash station and decontaminating shower would be available in the laboratory.

• Information (for example, material safety data sheets) would be filed on site detailing the composition of and hazards associated with all chemicals.

• Containers would be clearly labeled.

• Specific procedures would be in place relating to the disposal of harmful chemicals.

• Signs would be posted on storage areas containing dangerous materials and equipment.

• Dangerous procedures would be confined to specially equipped and protected locations.

• Government inspectors (OSHA) would make unannounced visits to ensure compliance with all regulations.

Ewick & Silbey: Law and Labs

• Design of the lab

• The images and symbols displayed in the lab

• The space then shapes science itself – and what it means to be a scientist

  • "I liked the life; I was a lab rat. I enjoyed being in the lab."

the law fundamentally changes how we think about something and act

• law changes action and action changes law

• there are changes on the individual and organizational levels

• the person changes

  • their actions, understandings of certain topics

"Flammable" tells the story of Villa Inflamable a shantytown on the edge of Buenos Aires, hemmed in by a petrochemical complex and the festering waters of the Río de la Plata, and which was named for a ship explosion just offshore.

It is, as Auyero and Swistun tell it, a story of urban relegation and environmental suffering, of people whose lives are shaped in profound and permanent ways by the toxic environment in which they live, and by the confusion, longing, and resignation produced by indifferent state bureaucracy, duplicitous corporations, and prying journalists (and, it must be said, researchers).

• A 2010 study found that 29 percent of people under six years old were anemic, while 34 percent had psychomotor development issues.

• In fact, everyone DW spoke to in Villa Inflamable and Villa 21-24 had health scare stories to tell - encompassing everything from skin rashes to cancer.

• After the situation reached a crisis in 2008, Argentina's Supreme Court finally ruled that the basin needed cleaning up.

• The court also decreed that many of the most at-risk families - those living in makeshift slums right on the shores of the river, in places such as Inflamable and Villa 21-24 - would need to be relocated.

• Coco Rivera is one of about 60,000 people who live in Villa 21-24. When asked if anything has improved since the courts ordered the clean-up here four years ago, his answer is clear. "It’s clear that from a social, socio-economic and sanitary point of view, there has been no great change," he told DW

How do People Think About Law? - Flammable

• Auyero and Swistun, “Tiresias in Flammable Shantytown: Toward a Tempography of Domination” (2009)

• Highly contaminated barrio in Argentina, Flammable shantytown

• Toxic uncertainty: Environmental suffering, social domination, and … law (or is it?)

• What role does law play in how residents think about the future in Flammable?

  • giving them hope, especially the lawyers

    • sometimes, understandings of the law comes from lawyers

Flammable: Empirically, what does Law do?

• María: " Maria believes. She is hopeful about the outcome of the lawsuit and plans to move out of Flammable with the money she expects to receive.

• “I think there’s going to be a lawsuit against the companies”; “we are waiting for the lawyer … the [company] should give us a lot of money.”

• Jimena: Despite all her suffering, her complaints, and her anxieties, Jimena has hopes, all of them placed on her "wonderful lawyer. Thank God we have that lawyer, who came and saved us all."

• Marta [facts]: “There is shit in the water, we have everything on our side … The lawyer told me: “Marta, get ready, because you are going to have a good reward. We are about to win the lawsuit.”

• How are court rulings understood? “a piece of paper signed by three judges … The companies will pay us to leave.” “Will it be 30,000 pesos or 50,000?”

• What do residents think about the waiting time for lawyers?

Life in Flammable is also characterized by a hopeful waiting time: waiting for the lawyers to come…

They lived their lives, organized their daily routines, and established further roots in this poisoned place, all the while expecting something will soon change…

Consider the authors’ conclusion: “Flammable residents are impotent onlookers of what the future has in stock for them.”

How can we explain this?

• Why do people believe law will save them?

  • Do they have any evidence of this?

• Use Flammable to think of your past weeks in the course

  • Why do we continue to believe that law represents the conscience collective (Durkheim)?

  • How do we reconcile this with generally knowing that the haves come out ahead (Galanter)?

examples for lecture 4

• snow chairs

• Bess

• street harassment

  • related to three types of narratives

• taxi cab companies

• laboratories and the law

• flammable shanty town

Review: Marxist theory

• Marx viewed society as primarily an uneasy relationship between two groups with incompatible economic interests: the bourgeoisie and the proletariat.

• Base & Superstructure

Marxist approaches to law

• What is the role of law in modern society?

• This explanation takes as its core class divisions, and so asks: How does capital affect law?

  • Needs of capital dictate law (base → superstructure)

    • (e.g. Chambliss)

  • In those instances where the state tries to regulate capital, capitalists find ways to avoid it

    • (e.g. English factory acts)

  • Capitalism is also a set of ideas, including ideas about the value of work, and this can be expressed through law (though not only)

    • (e.g. Safe streets Act)

review of marx

• law is used to help the capitalists

• law legitimizes social and economic inequality

• haves are the repeat players who have different goals

  • focus on changing law to benefit them, rather than winning the case

• crime is seen as something that benefits the capitalists

marx focusing on _____, while durkheim focusing on ______

conflict, solidarity and connection

Galanter, Marc. “Why the ‘Haves’ Come Out Ahead: Speculations on the Limits of Legal Change”

• Instrumental vs. Structural Marxism

• The superstructure (such as the laws on vagrancy) is not merely determined by an economic base

• “Structural Marxism”– what are the internal processes through which the ruling classes come to dominate, and deflect challenges to that position?

  • Law has some autonomy from the ruling classes

Durkheim

• Social solidarity & conscience collective

  • society can only function if there first exists a shared framework of meanings and moralities

• Primitive → modern societies

  • Mechanical & organic solidarity

mechanical vs. organic solidarity

• pre-modern

• solidarity from collective consciousness

• everyone does similar tasks, which creates connection

vs.

• modern

• solidarity from inter-dependence

• everyone has different skills and tasks

  • a division of labour

Durkheim and types of societies

• Modernity and industrialization

• Changes in division of labour

• Mechanical solidarity:

  • Because people spend their days doing the same kinds of work as their neighbors, they view their world in the same way, hold much the same values, and react similarly to external stimuli. There is little sense of individual identity, and the collective conscience is relatively powerful.

• Move to organic solidarity:

  • At the opposite end of the evolutionary scale, Durkheim found modern industrial societies, with characteristically complex division of labor. In complex societies, occupations and social roles are highly specialized. Butchers and bakers, teachers and priests all pursue their tasks with apparent autonomy, and roles are institutionally differentiated over the life course. In such societies, individuality is highly valued because roles and occupations can be differentiated only when people come to define themselves more as autonomous individuals than as members of a single unidimensional group.

Durkheim & Law

• Law is a visible form of social solidarity

• Is punishment just about law & order?

• So how IS punishment a moral form of social action?

• Begin with crime:

  • Crimes are not ‘given’ or ‘natural’ categories

  • Crimes are those acts which seriously violate a society’s conscience collective

    • Compare to how we define what is a crime according to Marx

      • Base/superstructure

law is how we document the things we agree on - a visible form of social solidarity

• we collectively and consensually define what a crime is

  • collective agreement

Durkheim

• What causes crime to be punished (rather than dealt with in other ways)

• Some crimes violate sacred values, which leads to outrage

  • Our commitment to these values has the character of religious attachment

• Is punishment a calculated instrument for the rational control of society?

• The third element: the onlookers

  • the public witnessing the crime taking place

punishment is not just used to punish those who violate the rule, but also to express public outrage regarding violations of the law

• punishment is emotional

• we are collectively offended by violations of the law

• collective outrage reminds us of our shared norms and what we all believe in

Durkheim

• The passions provoked by crime are spontaneous

  • BUT these reactions are voiced collectively and give rise to an important social consequence

• When a crime occurs, norms are threatened, but the reaction to them then strengthens norms

• This completes the circle

  • sacred moral order → passionate reactions → that demonstrate and reinforce the moral order

durkheim seeing law and crime as a consensual and collective agreement/definition

laws are used to uphold collective norms, values, and ideas

Durkheim: Punishment/Law in Changing Societies

• The function of punishment is unchanged throughout history, but the way we punish has changed.

• Primitive societies → repressive laws

  • Cause suffering

• Modern societies → restitutive laws

  • The character & values of modern society

    • What are crimes in modern society?

  • How do we punish in modern societies?

    • Look to the values/morality to understand the punishment

      • Focus on the individual

      • Respect for human dignity (both in protections and in punishment)

        • Thus limit severity of punishment

        • But since we are interdependent, imprisonment (which is solitary) is actually quite severe!

How do we punish in modern societies?

• Look to the values/morality to understand the punishment

  • Focus on the individual

  • Respect for human dignity (both in protections and in punishment)

    • Thus limit severity of punishment

    • But since we are interdependent, imprisonment (which is solitary) is actually quite severe!

Capital Punishment as a modern form of punishment

History of the rise of the “electric chair” as a form of capital punishment in the United States was seen as an ADVANCE as a MODERN form of punishment

punishment also reflects our values

• we value individuality and freedom, so punishment today is orderly and keeps some respect and dignity for the criminal

  • capital punishment (death penalty) still exists because it is seen as not cruel and civilized to a degree (modern and advanced)

Banishment/Community Notification as an example of punishment

• Megan’s Law was created in response to the 1994 murder of Megan Nicole Kanka in New Jersey.

  • Unbeknownst to Megan Kanka and her family, a violent predator previously convicted of a sex offense against a child was living across the street before he abducted, sexually assaulted, and murdered Megan.

Changing Social Relations to Space: Law, Crime, and Community Notification

• “Had I known that there were three paedophiles living across the street from my home, I never would have allowed Megan to walk out of the door of my house alone”

• ‘Why,’ … had they not been told?’ (1994)

• 100,000 petitions signed in 1 week

Banishment as a social ritual

• Banishment marks the offender as someone who has violated the collective conscience—the shared moral framework that holds society together.

  • Expulsion doesn’t just remove a dangerous element; it also reminds the rest of the group of their own belonging and moral commitments.

• (as an aside, banishment vs. stigma)

megan’s law as a way to expose violent people in a community

• letting the community know that person is a violent criminal (sex offender)

  • doesn’t punish the offender, only informs and teaches the people so they can protect themselves

Megan’s Law: Community Notification

• Where does this fit for Durkheim?

  • The Registration and Notification Laws are not retributive laws, but laws designed to give people a chance to protect themselves and their children.

  • They do not represent the slightest departure from our State’s or our country’s fundamental belief that criminals, convicted and punished, have paid their debt to society and are not to be punished further.

  • They represent only the conclusion that society has the right to know of their presence not in order to punish them, but in order to protect itself (Doe v. Poritz, NJ).

Notification and Society

• Conscience collective and the legal language of community notification:

  • “Spectacle of offenses committed by neighbors”

  • “Highly publicized and horrific offenses”

  • To protect “the children of society”

• Cohesive idea of society

  • “adjusted their lives so as to appear no more threatening than anyone else in the neighborhood”

  • “slipped anonymously into the life [they chose]”

• View of society as acting through law

  • We do not perceive in this case a society clamouring for blood, demanding the names of previously-convicted sex offenders in order to further punish them, but rather families concerned about their children who want information only in order to protect them …”

Incarceration and its alternatives as an example of punishment

• an overreliance on incarceration across many countries

  • the main form of punishment across the world

• form of punishment and also banishment

Prisons - Critique

• The Bureau of Justice Statistics reckons that the United States spends more than $80 billion each year to keep roughly 2.3 million people behind bars.

• Total (federal, provincial and municipal) public spending on criminal justice in Canada per year is about $20 billion. Of this, nearly $5 billion is for jails and prisons, of which about 55% is provincial and 45% federal

• Imprisonment is harsh and degrading for offenders and extraordinarily expensive for society. Nor is there any evidence that imprisonment is more effective than its rivals in deterring various crimes.

• For these reasons, theorists of widely divergent orientations—from economics-minded conservatives to reform-minded civil libertarians—are united in their support for alternative sanctions

Alternative Measures to Incarceration

• The range of acceptable measures that can form part of an alternative measures program authorized by the Attorney General of Canada can include:

  • community service,

  • restitution or compensation in cash or services, mediation,

  • referrals to specialized programs for counselling, treatment or education

    • (for example, life skills, drug or alcohol treatment, anger management),

  • referrals to community, aboriginal or youth justice committees,

  • victim-offender reconciliation programs and similar measures aimed at restorative justice,

  • a letter of apology or essay,

  • and other reasonable alternatives or measures

Fines in replacement of incarceration

• Historic/ancient use

• As of the end of the nineteenth century and into the twentieth century, due to increase in employment and real living standards that provided the conditions under which the fine could have become a more generally applied sanction (Rusche and Kirchheimer 1939), many European countries, legally and practically, began restricting the use of short-term imprisonment replacing it by criminal fines and suspended sentences

Example: “Penal Equivalents”

• Why do we rely on imprisonment? Can’t we just replace it with something else, like fines?

• The expressive dimension of punishment (need to express condemnation)

  • people prefer incarceration for more violent offences, but fines for more minor offences (property offences)

    • many countries use imprisonment instead because the other forms of punishment don’t adequately express our outrage

Why do the US and Canada not rely on Alternative Measures?

• What accounts for the resistance to alternative sanctions?

  • Kahan: The political unacceptability of alternative sanctions, I will argue, reflects their inadequacy along the expressive dimension of punishment

“What Do Alternative Sanctions Mean?” (Dan Kahan)

• Proponents of alternative sanctions:

  • the central theoretical premise of the case for alternative sanctions is that all forms of punishment are interchangeable along the dimension of severity or "bite." The purpose of imprisonment, on this account, is to make offenders suffer. ... On this account, it should be possible to translate any particular term of imprisonment into an alternative sanction that imposes an equal amount of suffering.

• They fail because it ignores the expressive dimension of punishment

One option: Community Sanctions?

• Community Service vs. Imprisonment

• Miami-Dade Police Department

• This program, consisting of offenders arrested for illegal dumping and other related environmental crimes, are deployed into various communities to clean and restore blighted areas that have been used as illegal disposal areas. … Offenders are often required by the courts, as a condition of their sentence, to perform Community Service hours, usually ranging from 100 to 300 hundred hours

• why does the public balk?

  • community service is something we value and aspire to do

    • can’t imagine it as a form of punishment

Another option: Shaming Punishments

• Stigmatizing publicity communicates the offender's status to a wider audience.

• Literal stigmatization is the stamping of an offender with a mark or symbol that invites ridicule.

• Self debasement penalties involve ceremonies or rituals that publicly disgrace the offender.

• Contrition penalties come in two forms.

  • The first requires offenders to publicize their own convictions, describing their crimes in first person terms and apologizing for them. These penalties combine stigmatizing publicity with an element of self debasement. the sincerity of the offenders' remorse seems largely irrelevant.

  • Apology ritual. -eg car thief ordered to apologize to church congregation. Because many of these penalties contemplate genuine rapprochement, apology rituals seem to be used primarily in cases in which the offender is connected to the victim by family or close community ties.

Stigmatizing publicity communicates…

the offender's status to a wider audience (ex. personal income tax list)

Literal stigmatization is…

the stamping of an offender with a mark or symbol that invites ridicule - ex. An Ohio judge ordered two 19-year-olds to walk a sign-wearing donkey through the streets as punishment for defacing a statue of Jesus on Christmas Eve 2002.

Self debasement penalties involve…

ceremonies or rituals that publicly disgrace the offender

Contrition penalties come in two forms.

• The first requires offenders to publicize their own convictions, describing their crimes in first person terms and apologizing for them.

  • These penalties combine stigmatizing publicity with an element of self debasement. the sincerity of the offenders' remorse seems largely irrelevant.

• Apology ritual.

  • eg. car thief ordered to apologize to church congregation.

  • Because many of these penalties contemplate genuine rapprochement, apology rituals seem to be used primarily in cases in which the offender is connected to the victim by family or close community ties.

It turns out that publicly shaming violators of provincial securities laws is an exceptionally poor way of collecting unpaid penalties, but some Canadian regulators say they will continue to operate the websites anyway.

In the five years since the Ontario Securities Commission launched its "delinquent respondents list," a website page designed to expose violators of securities law who haven't paid their fines and other sanctions as ordered, only 16 of 432 names have been removed — 13 because they paid up and three because they've started payment plans.

But they say naming them online is worthwhile because it offers vital information to investors and is a low-cost way to encourage at least some violators to pay up.

"It's kind of a name-and-shame that puts miscreants under the spotlight," said James Sinclair, general counsel for the OSC, Canada's largest securities regulator.

publicly naming an offender as a form of punishment

• shaming as a way to punish and express outrage

  • sometimes we realize that shaming goes too far and violates our other moral codes, norms, and values

Self-debasement (the act or process of lowering your own status, character, dignity, or self-esteem) penalties

• A judge in Tennessee orders convicted burglars to permit their victims to enter their homes and remove items of their choosing.

• In New York, a slumlord was sentenced to house arrest in one of his rat-infested tenements (where tenants greeted him with the banner, "Welcome, You Reptile!").

• 'Hoboken, New Jersey, requires Wall Street brokers and others who urinate in public to clean the city's streets.

Contrition penalties

• Requires offenders to publicize their own convictions, describing their crimes in first-person terms and apologizing

• Another form of contrition is the apology ritual

Dan Kahan: “In this article, I renounce my previous defense of shaming penalties. Sort of”

My account of the expressive dimension of punishment was too flat. I emphasized that punishments, to be politically acceptable, must express authoritative moral condemnation. That’s true, but incomplete

What’s really wrong with shaming penalties, I believe, is that they are deeply partisan: when society picks them, it picks sides, aligning itself with those who subscribe to norms that give pride of place to community and social differentiation rather than to individuality and equality

witnessing punishments (executions specifically)

might be a way to express collective outrage - should it be something we do as a collective or not? why?

Penal Populism

• Durkheim told us that punishment is expressive. Crime provokes collective outrage, and punishment gives that outrage a public form. Punishment reaffirms the values the crime violated.

• Garland's penal populism shows us how this happens politically in a modern democracy.

  • When a notorious crime occurs, the public reacts with anger and fear. Politicians respond to that reaction. They pass new laws to show that they have heard the public. The new laws tend to be harsher.

  • For example Megan's Law was passed after the Kanka family campaigned for community notification.

• Garland's point is that these laws are not designed to reduce crime. They are designed to express the public's moral reaction to crime.

  • The criminological evidence often points in the opposite direction, but the political pressure to respond expressively wins out.

• This is the modern democratic version of what Durkheim was describing.

David Garland on Penal Populism

• people demand for laws to be put in place as a response to their fears

  • politicians and policy makers will give the public what they want

• people rely on law to express outrage and feel safer

• making law is mostly meant to help people feel safe, not to decrease crime or increase incarceration

  • we want to believe that the law does something

• the state steps in to please the public, even if the policies don’t work

  • fulfilling collective desires and needs

• the measures and policies may not work, but it doesn’t matter because the creation of new laws might be what the public want and needs to feel safe

  • public seeking validation through law

Caution! Examine the evidence

• Penal populism is usually characterized as a political force of great effectiveness that has played a prominent role in moving penal practice in a more punitive direction

• At least some populist measures have had much less impact on penal practice than is implied by the publicity that accompanied their introduction and by the critical attention they have received.

• A case in point is the “three strikes” sentencing laws of many American states—other than California—which, despite the hoopla, have had little impact on the actual pattern of incarceration.

  • California’s Three Strikes law was heavily used and substantially lengthened sentences, but even there the prison population did not grow faster after 1994 than it had before the law. In most other states, the laws were used so rarely that their aggregate impact was even smaller.

  • From a Marxist perspective, changes in law and sentencing helped produce the material expansion of incarceration; from a Durkheimian/Garland perspective, however, we also need to ask which punitive laws actually changed penal practice and which functioned primarily as symbolic displays of toughness.

• Penal populism is often drawn to highly visible, symbolic laws because their political value lies in showing the public that government is “tough on crime,” even when their practical effect on punishment is limited.

Case study in Canada

“… criminal justice policy is no longer about criminal justice per se. Rather, generally, and for sentencing in particular, policy choices provided opportunities for political pandering and to make basic statements about Canadian society and changes that need to take place. We substantiate this hypothesis below.” (Doob and Webster 2026)

Punishment as expression: from “doing policy” to “doing politics”

• For much of the twentieth century, they argue that sentencing reform was framed as “doing policy”: How can punishment be made fairer, more coherent, proportionate, and effective?

• Doob & Webster argue that, since the turn of the century, sentencing has increasingly become a way of “doing politics”

  • using criminal law to signal and reaffirm political and moral values.

• The message has differed across governments.

  • Conservatives emphasized punishment, public protection, and toughness; Liberals emphasized values such as equality and protection of vulnerable groups.

• Changing rhetoric of punishment in Canada

  • 1970s–mid-1990s: “Doing policy”

    • Language: fairness, proportionality, restraint, effectiveness

    • Example: Canadian Sentencing Commission — How can sentencing be made coherent and fair?

    • Reform was largely expert-led and aimed at improving how the system worked.

  • Harper, 2006–2015: “Tough on crime”

    • Language: protecting law-abiding citizens, punishing offenders, denunciation and deterrence

    • Example: mandatory minimums and Quanto’s Law

    • Criminal law became a highly visible way of demonstrating toughness and condemning wrongdoing.

  • Trudeau, 2015–2025: “Social values”

    • Language: equality, vulnerability, victims, Indigenous and racial disadvantage

    • Example: sentencing reforms emphasizing overrepresentation, gender equality, and protection of vulnerable groups

    • Criminal law was used to affirm a different set of political and moral values.

Changing rhetoric of punishment in Canada

• 1970s–mid-1990s: “Doing policy”

  • Language: fairness, proportionality, restraint, effectiveness

  • Example: Canadian Sentencing Commission — How can sentencing be made coherent and fair?

  • Reform was largely expert-led and aimed at improving how the system worked.

• Harper, 2006–2015: “Tough on crime”

  • Language: protecting law-abiding citizens, punishing offenders, denunciation and deterrence

  • Example: mandatory minimums and Quanto’s Law

  • Criminal law became a highly visible way of demonstrating toughness and condemning wrongdoing.

• Trudeau, 2015–2025: “Social values”

  • Language: equality, vulnerability, victims, Indigenous and racial disadvantage

  • Example: sentencing reforms emphasizing overrepresentation, gender equality, and protection of vulnerable groups

  • Criminal law was used to affirm a different set of political and moral values.