Our Lives before the Law - Assignment Example

THE ESSAY Crime is a social phenomenon and exists in each and every culture of the world from the most primitive human tribes and clans to the modern contemporary society. It is actually an act that disturbs and destroys the peace and harmony of a society. With the increase in population of the world at large, the tribes and communities grew widely and developed into society. The crime rate also got its place along with the growth of civilization with an upward trend and increase. The need of rules and system was felt to preserve calm and harmony. Subsequently, social norms, folkways, mores and taboos came into being to bring regularity in society. Socio-cultural and political authorities were also established, to evade turbulence and control crimes in the prescribed manners prevailing in an area. There are two types of offences i.e. one which is against the law enforced by the state, called criminal acts, and the other that is against religious belief as well as existing norms that is called deviancy and immorality. Deviant behaviour and perversion refer to the breaking of the prevailing norms and values. Prostitution, incest, homosexuality, bestiality, buggery, exhibitionism, voyeurism and masochism etc are the examples of moral offences or perversion. It has been argued many times since long that should there be implementation of moral laws too in society in the same lines as the prevailing law in force against criminal activities and offences. There has been a long discussion between Hart and Devlin about the legal enforcement of moral values. It actually started in the wake of proposed repeal of the British law prohibiting the promotion of homosexual activities. Homosexuality refers to the sexual relationships between the individuals of the same sex. It has been considered as serious moral vice and criminal offence against the religion and society. In 1957, the Wolfenden Committee of England submitted a Report on the subject “Homosexual Offenses and Prostitution”, according to which the permission of homosexuality and prostitution was suggested as no crime if both the offences are committed with consensus. One of the High Court judges, named Patrick Devlin, seriously criticized it declaring it a serious threat to the moral values of the country. Also it would, according to him, jeopardize the very foundations of the community life, cultural values and social norms. The social norms and morality are the identification of the individuals of a nation. The price of toleration, George argues, of serious deviance from a society’s constitutive morality is the loss of a distinctive form of interpersonal integration in community understood as something worthwhile for its own sake. (1993: 65). Devlin, exhorted the question to examine and interpreted the fact that the Committee simply meant that immoral offences should not be declared as criminal act until these are accompanied by some other feature such as dishonesty or exploitation. There is a strong relationship between law and moral values. Famous English Political Economist, J. S. Mill (1863) states that the only justification for limiting one persons liberty is to prevent harm to another. Homosexual behavior and prostitution in private, though practiced with consensus of the parties especially victim, cannot be viewed as fair as it may shake the very foundations of a society. “Morality can be based on "disgust", Devlin observes, “and therefore societys "general abhorrence of homosexuality" is a sufficient basis for the legal prohibition of homosexual activity.” (1965:47) Devlin school of thought argues that the punishment and penalties must be in the same patterns on breaking moral law, as it had been were implemented to treat the criminals breaking the law stated in the penal codes. Agencies are working to cope with the individuals deteriorating the peace and stability of society. Abnormal attitude creating public nuisance has been declared as crime against the state and its individuals. Immoral offences contain universality in their concept, and are not specific to one social class or age group only. Though there is no hard and fast rule for the victimization of specific immoral offence on specific group, yet there are some types of pestering which can be attributed to particular group or class. The nature of felony varies from one age group to the other. Also, there is diversity in respect of gender while enduring illicit behaviour. For instance, transgression like sexual assaults, rape, homosexuality and abduction are inflicted upon women and children, and males are often victim of robbery, buggery and murder. In the same way, older people are usually victim of theft, embezzlement, robbery, misrepresentation and white collar offences. “Although individuals may be abused”, McDonald and A. Collins view, “at virtually any life stage – childhood, adolescence, young adulthood, middle age or old age – the nature and consequences of abuse may differ depending on an individual’s situation.” (Quoted in Abuse of Older Adults: the Department of Justice Canada). The states devise laws and recruit staff in bulk to suppress criminal behaviour from their societies. Police stations and prison houses were set up to eradicate the menace with an iron hand. Yet, the misdemeanour found its vacuum more profoundly with the passage of time. Theories of punishment were articulated and concepts of reward and punishment were introduced to mitigate the problem, but neither judiciary, nor executive nor the legislature could overcome the situation. The need of such power was felt to corner the threat in a proper way. Thus it appeared the concept of moral laws and ethical values. “For many centuries”, Devlin (1965) opines, “the criminal law was much concerned with keeping the peace and little, if at all, with sexual morals. But it would be wrong to infer from that that it had no moral content or that it would ever have tolerated the idea of a man being left to judge for himself in matters of morals.” He stresses upon the significance of morality and declares it quite unjust to pass a law that can allow an act that is immoral and profane. Taking homosexuality, for example, it is a serious sin under the moral values and social norms. The sodomy, pederasty and buggery had been viewed as crimes against the law of the state since ever and there was serious punishment suggested for this worst type of immorality. But the new amendments in the statute laws implemented in many countries of the world have justified the homosexuality and prostitution on the basis if the offenders are practicing it with free consent of both the parties without any coercion, undue influence, fraudulent, misrepresentation or compulsion. Immorality invites disruption and disturbances in the society. Collective behaviour is seriously responsible for maintaining law and order situation. If a society does not apply moral ethics in it, its masses are sure to go to the path of destruction and collective turmoil. Moral laws are based on the obligations with regard to be good or bad in the eyes of Almighty God. There exists code of law announcing penalties against these laws on revolting the moral values. However, the British Wolfenden Committee suggested that immorality exercised in private with free consent must not be tried in the court of law. Delvin, being a moralist lays stress on the importance of ethics and the revolt of which must be taken in the same patterns as violation of law is considered. “The suppression of vice, he observes (1965:13-14), “is as much the law’s business as the suppression of subversive activities; it is no more possible to define a sphere of private morality than it is to define a sphere of private subversive activity.” Looking into the prejudice, prevailing in human societies since ever, it becomes clear that Devlin is quite justified in his sayings. Human society has always been divided into groups on socioeconomic, ethnic, religious, gender and cultural basis since its birth. The majority as well as the powerful stratum of society tries to suppress the weak and minor groups. Gender discrimination is one of its main examples. Small groups and sections of society start their struggle against the suppression and thus there appears reaction against the tyranny and cruelty. Feminist and Marxist perspectives are also the product of the discriminatory measures of individuals. FEMINIST JURISPRUDENCE The feminist jurisprudence is of the opinion that it is law that cause the subordinate role of females in society. In order to keep equality, there should be more and more freedom of both thought as well as action. The first and the foremost task, before the discipline of feminist jurisprudence, is the acquiring a respectable place for woman on the foundations of justice, equality, fair play and neutrality. There should have been no restriction or oppressions because of gender discrimination and violation of the laws of morality. Though, Feminist Movement was commenced during the second half of 19th century and made advancement in early period of 20th century, it captured the attention of the individuals in twentieth century. Mary Wollstonecraft demanded the same rights for women as they were for men. She advocated the vindication of the rights of woman in 1762 proclaiming that the new French constitution should be extended to women. “Feminist jurisprudence, Grove and Laks (2006) observe, “is a philosophy of law based on the political, economic, and social equality of sexes. As a field of legal scholarship, feminist jurisprudence began in 1960s. It now seizes noteworthy influence many debates on sexual and domestic violence, inequality in the workplace, and gender based discrimination.” J. S. Mill demands the power of vote for women, while Engels finds the need of transformation in economic uplift of them. Female jurists take prostitution as humiliation of the whole gender. Catharine MacKinnon, a feminist lawyer and scholar seriously condemns the sexual harassment of women by the male strata. The women should be able, according to her, to sue an employer for sexual harassment based on a "hostile work environment." (Quoted in John Leo, "Scaling the Shabby Barricades," Washington Times, May 7, 1992). They are of the view that maintaining law and order is not the only thing that a society sustains. Rather, the ethical values are the representative of the inhabitants. If both male and female members of a society produce an environment in which there is no fundamental agreement about good and evil they will be unable to sustain even, and the society will have to undergo disintegration. A common morality is part of the bondage. The bondage is part of the price of society; and mankind, which needs society, must pay its price”. (George, 1993:10). Society always survives on the basis of invisible bonds of widespread consideration. “If the bonds were too far relaxed”, George views, “the members would drift apart. While making analysis in the workings of gender in the law, feminist scholars share certain common commitments. Women long for political equality between the two genders. They view sexual identification a category to reconstitute legal practices that have excluded womens interests. One of the feminist legal schools of thought focuses on the differences between the two genders and takes the difference as a favor and blessing. Such school of feminist thought proposes that men and women speak in different voices. “Women emphasize the importance of relationships, contexts, and reconciliation of conflicting interpersonal positions, according to them, whereas men emphasize abstract principles of rights and logic. The main objective behind this group of female thinkers is this that the distinction between the sexes may open opportunities for female stratum. The feminist jurisprudence has supported moral values and ethical law. Through various approaches, feminists have identified gendered components and gendered implications of seemingly neutral laws and practices. Laws affecting employment, divorce, reproductive rights, rape, domestic violence, and sexual harassment have all benefited from the analysis and insight of feminist jurisprudence. The idea of division of labour on the basis of gender gave birth to feminism. It was a strong voice against the inequalities between men and women in respect of social status, division of power as well as work and gender discrimination. “Feminism is”, according to Wikipedia Encyclopaedia, “said to be the diverse collection of social theories, political movements, and moral philosophies against inequality between men and women, largely motivated by or concerning the experiences of women, especially in terms of their legal, social, political, and economic conditions. Feminist theorists have declared all other theoretical perspectives as prejudiced towards women including functionalism, symbolic interactionism, and conflict theory.” The influx of the Feminist Jurisprudence in the society was undoubtedly a revolutionary step that brought about marvellous alterations in the protection of women’s cause and winning status of unconditional equality in the male dominated society. “Feminist Jurisprudence”, Baer (1999) states, “is the study of the construction and workings of the law from perspectives which foreground the implications of the law for women and women’s lives.” Feminist approach comprises of the set of law as a hypothetical venture as well its practical and tangible effects in women’s lives. There is the need of the articulation and implication of moral law on the same grounds as the statute law in activate so that the biasness on gender basis could be mitigated from society. Woman folk does lust neither for extra ordinary treatment, not it demands dominant status in society. Rather, the motive behind the feminism or feminist perspective of jurisprudence is to eradicate the biased behaviour due to their gender, which is absolutely unethical, immoral and strictly against the supreme law prevailing in the modern world. Marxism and Feminism are interlinked theorists perspectives. Both of them raise a revolt against inequality and social injustice. “The marriage of marxism and feminism” according to Hartman (1981:2), “has been like the marriage of husband and wife depicted in English common law: Marxism and feminism are one, and that one is Marxism.” MARXIST PERSPECTIVE Marxism is strictly against the exploitations of human beings. They stand for the survival and betterment of society. It is ethical values that keep a society in perfect order. If individuals neglect morality, the very foundations of the society, according to Marxist point of view, will go to dashes. Marxists regard the law as an ideological instrument for maintaining existing social relations, which are in turn based on control of the means of production. It is thought to be the theory and practice related to the liberation and self-emancipation of the oppressed. The theories of Marxism are based on a scientific method of thought which is called dialectal materialism. “Marxism as a philosophy of human nature”, according to the Encyclopaedia of Philosophy, “stresses the centrality of work in the creation of human nature itself and human self-understanding.” Human self-understanding is the subject matter of ethical values and morality. It is not law, but the ethics that teach humans to have their self analysis. Moral beliefs are said to be grounded in cultural contexts. Culture, is a dynamic process subject to change in response to internal contradictions and critical social thought. There exist numerous positions within a culture, as well as distinctive values shared by members of a culture. Though the leading moral values in a society serves to justify the interests of the upper stratum, it is the stance that represents the interests of the oppressed that is more valid. Marxist perspective demands parity while incorporation of law in the state. “People must relate to each other”, Pashukanis states, “as independent and equal personalities in order for the products of human labour to be related to each other as values.” The Marxists opine domination of individuals over the fellow beings as the bleakest aspect of moral values and declare it sure to transforming a definite part of the cost of its production, and reproduction, into a product. If there is no space for the ethical laws, the powerful will continue exploiting the weak. The introduction of ethical law to a society will bind the upper classes not to exploit the labour classes. It is morality that protects the interests of all the social classes. Presence of moral law reminds the individuals regarding their obligations to the fellow beings. People are so absorbed in their financial activities that they altogether neglect the moral values and law. Deprivation from the resources urge individuals to revolt the code of law to snatch away all that has been kept out of their reach. Dispossession does not accept the code of law and therefore so many crimes including rape, homosexuality, forced male rape, fornication, incest and murder are the outcome of the reaction of the unfulfilled desires of the suppressed class. “Presence of moral law”, Devlin argues, “would end a number of specific crimes. Euthanasia or the killing of another at his own request, suicide, attempted suicide and suicide pacts, dueling, abortion, incest between brother and sister, are all acts which can be done in private and without offence to others and need not involve the corruption or exploitation of others.” (1965:179). Lewis Alfred Coser, famous social theorist and critical analyst of contemporary times, has analyzed Marx’s Theory of Social Class in his book “Masters of Sociological Thought” (1977). The main focus of Marxism, according to him, is the analysis of social class, class structures and changes in those structures which are keys to understanding capitalism. In the Communist Manifesto Marx and Engels are of the view that the history of all hitherto existing society is the history of class struggles. (Quoted in Adams and Sydies, 133). According to this view, Coser states, ever since human society emerged from its primitive and relatively undifferentiated state it has remained fundamentally divided between classes who clash in the pursuit of class. Marxist conflict theory does not charge capitalism the only reason of class conflict. Rather, it is inherent in every differential society. Capitalism only provides potential to this class conflict. Marx notes, according to Coser, that unequal access need not at all times and under all conditions lead to active class struggle. But he considered it axiomatic that the potential for class conflict is inherent in every differentiated society, since such a society systematically generates conflicts of interest between persons and groups differentially located within the social structure, and, more particularly, in relation to the means of production. As Marxism is based on conflict theory articulated by Karl Marx, and it is interested in the conflict existing between different social classes in a society, the most critical element among the methods of Marxist Perspective is to find classes prevailing in societies all over the world, and study the techniques in which the classes interact. Dr. Murphy views that lack of class conflict in any society is not only eccentric, but also it deserves special attention to study and manipulate. Also, Marxism examines both hidden and latent conflicts existing. In his words: When a political order based on class is found which seems to lack class conflict, special attention is paid. Marxism is particularly suited to ferreting out the hidden resistance present in religion and ideology. Marxism is of course dedicated to examining the modes of production present in any society, and there may be more than one present. The dialectical method is also an important concept in Marxism, which is built on the examination of contradictions between classes, ideas, etc. Further, Marxist perspective is exercised to observe the progress of various societies at different extents. There are more than one unifying methods used in Marxism, and it is not confined to one single visions. Coser’s broad definition of the Marxist Conflict Perspective, Turner writes, serves his intellectual purpose to demonstrate the ubiquity of conflict and to document its functions for system integration. (Turner, 1978: 181). Dahrendorf’s definition of the term Conflict is consistent with his dialectical assumptions. He uses this term for contests, competitions, disputes and tensions. (1957:135). On the other hand, Coser views conflict as violent confrontations. Conflict can be antagonistic or potentially antagonistic, he opines. These antagonisms have promoted integration and adaptations among the parties to the conflict. Marx has linked the social stratification to the means of production. The major modern classes are, according to him, "the owners merely of labour-power, owners of capital, and landowners, whose respective sources of income are wages, profit and ground-rent. Different individuals make up the production of an organization, but the major profit goes to the upper class or bourgeoisie only, which works far less than the labour classes. The deprivation of rights arise the sentiments of revenge in labour class and conflict arises in society. Marxism perspective shows that Karl Marx lists a number of classes and (antagonistic) social relationship such as freeman and slave, lord and serf, oppressor and oppressed in describing different classes in a society that characterize different historical stages or modes of production. George Ritzer, famous contemporary sociologist, obtains some different views on Marx’s conflict theory. He in his works has criticized Marx and declares his sociological thought a failure especially in respect of being unable to see the positive points and bright aspects of Capitalism which are based on ethical values. Marx has failed to foresee, in the words of Ritzer, how well capitalism would adapt itself to worker demands (through such mechanisms as legalized labour unions, workers’ compensation, minimum wage, workplace safety and other standards for worker protection). (2003). Marxism contains a natural perspective of morality. But its main focus is at the freedom of thought and action. Marxism does not stress on morality alone. Marx had no concerns with moral values, though he raised a thunderous voice against the inequality and social exploitation. There should be no exploitation of humans at all and they must have been free to exercise their capabilities. Mark does not set out, as Kant and others have, to search for and establish the supreme principle of morality by argument and consideration of the reasons and views of others. (Quoted in Brenkert, 1983). REFERENCES Baer, Judith A, Our Lives Before the Law: Constructing a Feminist Jurisprudence (Princeton, NJ: Princeton University Press, 1999) Brenkert, George G. Marx’s ethics of freedom. Routledge & Kegan Paul Publications. 1983 Canada. Health Canada. Abuse and Neglect of Older Adults: A Discussion Paper. Prepared by L. McDonald and A. Collins for the Family Violence Prevention Unit Ottawa: Health Canada, 2000 Collins, Patricia Hill.. Black Feminist Thought. 1990 Coser, Lewis Alferd. Masters of Sociological Thought. 1977 Devlin, Lord Patrick. THE ENFORCEMENT OF MORALS. 1965 Dahrendorf, Ralf. Class and Class Conflict in Industrial Society. University Press. 1957 George, Robert P. Making Men Moral: Civil Liberties and Public Morality Oxford: Clarendon Press, 1993. Giddens, Anthony and David Held. Classes, Power, and Conflict: Classical and Contemporary Debates.Berkeley, University of California Press, 1982. Gimenez, Martha E. Marxist Feminism/ Materialist Feminism. 1998. Grove, Taylor & Laks, Alexandra. Feminist Jurisprudence. Cornell Law School. 2006 Kelly Dedel Johnson, Financial Crimes Against the Elderly. A report submitted to Center for Protection of Elder People. 1996 Lewis A. Coser, Masters of Sociological Thought: Ideas in Historical and Social Context, 2nd Ed., Fort Worth: Harcourt Brace Jovanovich, Inc., 1977 Marx, Karl. Preface to A Contribution to the Critique of Political Economy, Tr. S. W. Ryanzanskaya, edited by M. Dobb. London: Lawrence & Whishart. 1971. Mossa, M.A. (2002). The Miseries of the Elderly. An unpublished research report submitted to the Department of Criminology, University of the Punjab, Lahore, Pakistan. Pashukanis, Evgeny The General Theory of Law and Marxism 1924. Skocpol, Theda. States and Social Revolutions: A Comparative Analysis of France, Russia, and China. New York: Cambridge University Press. 1980. Wallerstein, Immanuel M. The Modern World-System: Capitalist Agriculture and the Origins of the European World-Economy in the Sixteenth Century. New York: Academic Press. 1974. http://agingwell.state.ny.us/safety/articles/crime.http http://www.iep.utm.edu/l/law-phil.htm Read More