3. Law, conflict and change

Question 1

Common def of justice

Answer 1

1993 legalistic definition: the upholding of rights and punishing of wrongs by the law

Question 2

Procedural jutice

Answer 2

• perception of treatment during decision-making processes
• closely linked to ‘due process’
  
  • following rules of procedure
  • properly applying the law e.g. apply equally to all
• evidence people accept an adverse legal judgement relating to a law they do not support if processes are seen as fair and just

Question 3

Justice as equality (substantive)

Answer 3

• like cases treated alike
  
  • via precedent
• equality unless significant and relevant difference
  
  • what differences are significant and relevant and justify different treatment?
  • Equal Opportunity Act: gender, race
  • McHugh, Waters v Public Transport Corporation (1991): discrimination can be direct or indirect – disproportionally, negatively effect certain groups e.g. mandatory sentencing effect on young Indigenous Australians
• e.g. gender pay gap, Equal Opportunities Commission in WA – to ensure equality of outcomes not accessibility

Question 4

Justice as desert ‘retributive justice’ (substantive)

Answer 4

• people ‘get what they deserve’ – culturally/politically influenced
• punishment in proportion to harm caused and blameworthiness
• consideration in contract requires performance of other party
• retributive justice high in US: appearance of ‘tough on crime’ policy stance
  
  • however research has found not effective: reducing spending on prisons and increasing spending on education has been found to reduce crime

Question 5

Justice as entitlement/rights (substantive)

Answer 5

• 17^th – 18^th century: rights derived from nature
  
  • developed by Western males – problematic as applied universally in international law, closely linked to Christianity (rights given to everyone by God)
  • revolutionary notion that people have natural rights to life, liberty and property
  • contemporary idea of fundamental human rights – now inherent rights applied to all
• 19^th century: rights derive from law
  
  • legal positivism: critical of natural law, view of law as ultimate source (not naturally sourced)
  • utilitarianism strong association (strand of liberalism): surrounds what benefits the most people, pragmatic approach
  • Bentham: regarded natural law “nonsense on stilts”, supporter of utilitarianism
• Bottomley and Bronitt: “many of the hard questions in law boil down to a conflict between the protection of individual rights and the promotion of collective utility or welfare”
• deontological liberalism basis (deon = duty)
  
  • Kant (1724-1804): formulated Kantian Deontology
  • individuals are ends in themselves, not means to an ends – therefore cannot focus on collective
  • prioritises the right over the good
  • ideas that rights exist irrespective of the content of law – rights as inherent, reflected in contemporary law
  • neutral as to consequences of an act, but argues for actor’s right to do the act
  • Sandel (1998): “society is best arranged when it is governed by principles that conform to the concept of right, a moral category prior to the good and independent of it”
• teleological liberalism (telos = goals)
  
  • acts are evaluated for their consequences for reaching the goal
  • Bentham: utilitarianism
  • Bottomley and Bronitt: good life = “one that promotes the greatest happiness for the greatest number” what is morally right = what maximises the ‘good’, that is the happiness/pleasure of the majority
  • that is, individuals can be used as a means to an end

Question 6

John Rawls and the ‘veil of ignorance’

Answer 6

• theory of justice as equality
  
  • social contract theory: a contract that free, rational people concerned to further their own interests accept in an initial position of equality as defining the fundamental terms of their association
• veil of ignorance: mechanism by which people decide principles of justice for a society where they do not know their particular role in society (so solution does not favour just one individual and their role)
  
  • original position: assumes ‘clean slate’, no one knows their place/class position/social status/fortune – distribution of natural assets and liabilities/intelligence, would lead to
    
    • equal right to liberty: each person is said to have an equal right to the most extensive basic liberty compatible with a similar liberty for others
    • difference principle: fair equality of opportunity, permit inequalities in distribution of goods only if those inequalities benefit worst-off members of society

Critiques

• of liberalism: emphasis on justice in a way in which justice is conceptualised, primacy of individualism, dominance of liberalism
• of rights e.g. cultural relativism debate – dominant construction of rights is Western but still promoted, problematic due to colonisation and seen as continuation of Western dominance
• Sardar (1998): “universalising principle of Western civilisation has always been to see its way as the only way and therefore the universal way”

Question 7

Case study: Indigenous deaths in custody

Answer 7

• long history of disproportionate number of Indigenous people being detained or imprisoned and dying in custody at a greater rate than non-Indigenous people
• contributing factors:
  
  • e.g. putting people in prison for non-payment of fines (often related to driving offences, especially remote communities as no licensing centres/expensive yet need to drive to access crucial services/goods), unjust? - financially costs more to imprison someone however for people – easier option to go to prison rather than pay fine
  • socioeconomic disadvantage leads to greater crime
  • mandatory sentencing: removes judicial discretion
  • Stolen Generation massive impact
  • ethnic profiling by institutions such as police
• WA: history of Indigenous deaths in custody and prison
  
  • Royal Commission into Aboriginal Deaths in Custody 1991, sparked by death of Patt
  • just response – implement recommendations, yet many not implemented and Aboriginal deaths in custody continue e.g. Mr Ward, Ms Dhu
• treatment of Indigenous people: can lead to institutionalisation, effect on mental health and quality of life when children are still taken away from parents, greater recidivism after imprisonment

Ms Dhu case study

• imprisoned for unpaid fines of around $3000 in 2014 at South Hedland Police Station
  
  • indirect discrimination: failure to pay fines, certain groups cannot pay
• died in custody at 22 from septicaemia (had 2 broken ribs sustained 4 months prior from family violence that got infected), police told medical staff she was “faking” illness
• WA coroner: found death could have been prevented (if temperature was taken and given antibiotics), health deteriorated significantly in custody
  
  • unconscious bias in doctors and nurses: doctor diagnosed her as having behavioural issues in response to her complaints of pain, need to be educated greater on this bias (as well as police)
  • injustice of situation: described treatment of Ms Dhu unprofessional and inhuman yet did not recommend anyone to DPP, no one held to account
  • institutional racism: in UK and Ireland following MacPherson Report (on Steven Lawrence murder) led to widespread serious education and training on this and restructuring of view on racism – yet this has not occurred in Australia even after a Royal Commission

Question 8

Miscarriages of justice

Answer 8

• issue with statistics: need to have knowledge a miscarriage of justice has occurred, yet need a CJS that is open to the idea that miscarriages of justice occur within it
• factors contributing
  
  • immense societal pressure on police to find culprit for crime
  • prosecutors in adversarial have pressure to achieve ‘success’
  • issues with scientific evidence e.g. incorrect DNA sample matches

Question 9

Case study: Mickelbergs and the Perth Mint Swindle

Answer 9

• robbery of gold bars from Perth Mint worth around $2 million today
• police alleged three Mickelberg orchestrated robbery
• 1983: found guilty and sentenced to 20, 16 and 12 years in jail
• 2004: convictions overturned
• correction:
  
  • 2007: public apology offered by state
  • 2008: compensation ***
• justice undermined by police corruption
  
  • Lewandowski and Hancock - former police officers admitted they had lied and faked (perjured) evidence during the trial, had fabricated confessions from the brothers
  • Peter Mickelberg was stripped naked and beaten by interviewing officers during the investigation
  • ticking bomb scenario: there is a ticking bomb and a terrorist suspect in custody – would you torture them? – rights of individual v. collective
    
    • formulated by Bentham
    • evidence: torture produces unreliable evidence and not most effective way of obtaining information from someone (cooperation and trust building better method for better outcome)
  • Buti (2011): wrote book on case, corruption subjects our “system of justice upon which the coherence and stability of our society depends”, has wider impacts than just the case in point
    
    • corruption can lead to: less respect for the rule of law, distrust of police (can lead to underreporting of cases)
    • reports of these cases has destabilising effect on justice system

Question 10

Emergence study - vagrancy

Answer 10

• Chambliss (1964), vagrancy laws: throughout history approached differently
  
  • 13^th century: relief for religious houses giving food and shelter to travellers
  • 14^th century: vagrancy statutes were designed express purpose: to force vagrants essentially into enslavement to landowners, to insure the landowner an adequate supply of labour at a price he could afford.”
  • 16^th century: extended to include ‘ruffians who shall wander, loiter or idle use themselves and play the vagabond, meant anyone could be detained even if it couldn’t be proved they had actually committed a crime = cleared the trade routes
  • Chambliss (1964), vagrancy laws: throughout history approached differently
    
    • 13^th century: relief for religious houses giving food and shelter to travellers
    • 14^th century: vagrancy statutes were designed express purpose: to force vagrants essentially into enslavement to landowners, to insure the landowner an adequate supply of labour at a price he could afford.”
    • 16^th century: extended to include ‘ruffians who shall wander, loiter or idle use themselves and play the vagabond, meant anyone could be detained even if it couldn’t be proved they had actually committed a crime = cleared the trade routes

Question 11

Emegence study - Marijuana control in US

Answer 11

• interpretations of the origins of the act:
  
  • Becker (1963): before an act is viewed as deviant, someone must label it as a social ill, people must be made to feel that something ought to be done about it, class of people then labelled and treated as outsiders for committing the act and rule made defining act as deviant
  • Dickson (1968): explanation is in the needs/self-interest of the Federal Bureau of Narcotics, which was under funding pressure and facing organisational challenges, prohibiting marijuana would increase prestige of FBN
  • Galliher and Walker (1978): law emerged to control Mexican-Americans when jobs were scarce
• 1969: Leary v United States, Supreme Court ruled act unconstitutional

Question 12

burns and wounds – 19th century vitriol (sulphuric acid) throwing

Answer 12

• damage caused was extensive e.g. blinding, maim
• various acts for physical assaults not resulting in death all referred to wounds, which were defined by the instrument that produced them e.g. knife, gunshot, commonly associated with breaking of the skin
• medical terminology: vitriol throwing classified as burns which were not a type of wound
• Lord Ellinborough’s Act (1803): precise terms implied that other forms of injury were excluded from the provisions of the law
• Ann Morrow (1835): threw vitriol at John Wade blinding and seriously burning him
  
  • surgeons disagreed whether injury caused was wound
  • judge decided injury was not under def. of wound and Murrow was acquitted of felony, sentenced to 2 years of imprisonment
• 1836: due to similar acquittals, inquiry sparked into law and a change to amend the form of words to embrace all acts of violence

Question 13

Current examples - society and law

Answer 13

• glassing: again redefining definitions of violence to update law
• marriage equality: law in Australia behind what most people consider normal in society
• piracy: law reflected historic idea of pirates from 1800s, allowing them to continue harmful acts without fear of law
• financial laws: GFC allowed to occur and affected rest of the world
• sexting

Question 14

Legal history - Donoghue v. Stevenson (1932)

Answer 14

• formed ‘neighbour principle’, a general principle of law surrounding duty of care
  
  • intellectual history: influenced by the Christian Bible – good Samaritan
• prompted a 60-year long collision between contract and tort laws
• influenced negligence laws, liability principles, industrial tribunals, consumer laws
• supports idea that out of situation there is potential for a law-changing moment

Question 15

Law as legal control

Answer 15

• Bottomley and Bronitt (2012): “lawyers have generally not been too concerned to inquire very deeply into the connection between law and power”
• reasons for avoiding analysis of power

1. too hard
   * contested and complex concept involving theoretical tools outside lawyers’ education
2. threatens liberal underpinnings of law:

• individual rights and responsibilities rather than groups and institutions
• equality before the law and legal neutrality
• control of abuse of power by state institutions
• how does law control our behaviour? deterrent

Question 16

Control as a sanction

Answer 16

• Anleu (1998): formal sanctions are associated with legal control and may be:
  
  • repressive/punitive e.g. deprivation of life or liberty (criminal)
  • restitutive e.g. damages, compensation, apology, aims to restore the status quo (civil)
  • regulatory, which aims to achieve compliance with a legal-admin regime via sanctions, e.g. denial or forfeiture of licenses, orders to cease and desist, deportation, etc.
• sanctions control our actions
  
  • we forfeit certain civil liberties to allow government to act more effectively, control us better and protect against someone taking these further away

Question 17

Main ways law can affect us (Cotterell)

Answer 17

1. Empowerment
   
   • can use law as a means of exercising or achieving power “to coerce, influence, make things happen, and get things done…[we can] invoke the aid of the state or, at least…make use of certain procedures, practices or circumstances of state agencies to further or protect [our] interests”
   • examples:
     
     • facilitate binding agreements through contracts
     • organise family relationships
     • legal action in courts can stop other people doing things or allow us to obtain compensation
2. Disempowerment
   
   • “involves feelings of vulnerability and insecurity, of being subject to official control or interference. It is often an experience of being threatened in precise, calculated, and complex ways by other individuals, agencies or collectivities, which are able to invoke law against the person…It may also be an experience of being made helpless by the technicality and obscurity of regulations and practice, which one does not understand but which nevertheless envelop and entrap the individual”
   • examples:
     
     • criminal law prohibitions
     • zoning restrictions on how we use property
     • censorship of books and movies
3. Protection and security
   
   • can provide the experience ‘of social peace, or of dangers held at bay; the sense for example, of safe streets and secure homes, reliable transactions with others, and of plans and investments in which reasonable expectations will not be frustrated. The experience of legal security is based on the belief that power is being used in unseen ways to protect citizens from unknown others (individuals, corporations, groups of various kinds) who might pose threats through unpredictable or irresponsible action, and from political or military authorities that might otherwise seem uncontrolled or unaccountable’
   • examples: counter-terrorism legislation, police body cameras

Question 18

Marxist perspective on law and power

Answer 18

• Hunt (1993):
  
  • law is “inescapably political”
  • law is “always potentially coercive or repressive”
  • “the content and procedures of law manifest, directly or indirectly, the interests of the dominant class(es) or power bloc”
• class instrumentalism: law a means of maintaining economic power, blunt tool of the dominant class
  
  • economic base, everything else is superstructure
  • “crime in the streets” portrayed as more of a problem than “crime in the suites” (the privileged)
• but some laws benefit working classes: OH&S, social security, consumer protection, unfair dismissal, discrimination, human rights
• relative autonomy: later Marxist theory
  
  • states and laws are not: wholly separate from ruling class interests or mere instruments of repression
  • Poulantzas (1975): ‘by its very structure, gives to the economic interests of certain dominated classes guarantees which may even be contrary to the short term economic interests of the dominant classes, but which are compatible with their political interests and hegemonic domination’

Question 19

Foucalt perspectives on law and power

Answer 19

• power is not just negative and prohibitory
• not held by one group or in one place;
  
  • much more diffuse
  • created, exercised by and within social institutions
  • system of power relations
  • not just held by law
• Power/Knowledge (1980): what is power?
  
  • “…must be analyzed as something which circulates, or rather as something which only functions in the form of a chain”
  • “it is never localized here or there, never in anybody’s hands, never appropriated as a commodity or piece of wealth”
  • “power is employed and exercised through a net-like organization… [Individuals] are not only its inert or consenting target; they are always also the elements of its articulation”
• channels for power:
  
  • order is achieved through forces, techniques and devices
  • all of which regulate decisions and actions of individuals, groups and organisations in relation to authoritative criteria

Question 20

Forces of power

Answer 20

• legal
  
  • economic contracts
  • marriage rites (behaviours permitted/denied)
  • land title (private property rights)
• architectural
  
  • design and location of walkways, buildings and seating areas
• professional
  
  • production of expert knowledge e.g. doctors control over body, psychiatrist control over mind, priests control over soul, etc.
• administrative
  
  • time schedules (lectures, tutorials, deduction for non- attendance)
  • following internal rules of bureaucracy (applying for leave)
• financial
  
  • restricting economic power of individuals through imposition of taxes and fines or via adjustment of interest rates, prices
• social
  
  • immediate peer group opinion, privileging expert opinion

Question 21

Techniques of power

Answer 21

• notating
  
  • recording
  • producing documents
  • auditing
• examining
  
  • testing of knowledge or competence
    
    • requires attendance at classes, workshops, training programs
  • surveillance: video cameras, gaze of others
• computating
  
  • manipulating numbers
  • disseminating statistical data
• calculating
  
  • knowing and managing risk - probability of being a victim of crime, having house burnt down, being in a car accident, etc
• evaluation
  
  • providing ‘positive’ and ‘negative’ feedback - conform because tasks each of us perform are knowable to someone else

Question 22

Devices of power

Answer 22

• surveys and charts: health, dress codes, political preferences via strategic release of ‘data’ - business forecasts, publication of criminal statistics, mortality rates
• systems of training: imprinting of routine, habit and discipline - work, army, school, family, etc.
• conceptual forms: circulation of stereotypes - normal citizen, normal child, normal vocation, normal economy, typical ways of knowing, normal political response, etc.

Question 23

Law as a discipline

Answer 23

• law is a major player within the many types of power within society
• legal power is not a thing in itself, but a product of the interrelations between diverse and complex systems
• law’s power controls us not just, or even primarily, through prohibition, but rather through discipline— inculcating and naturalising certain patterns of thinking and behaving that we (re)produce

Question 24

Law and culture

Answer 24

• law is a system of ideas:
  
  • shapes & influences how people: think & act, view the world, imagine possibilities
  • shapes concepts through which we understand social reality and relationships: property, contract, ownership, rights, duties
• Smart (1989): “power to define (itself and other discourses) is part of the power of law … in addition it is law’s ability to impose its definition of events on everyday life that interests me. For example, I shall examine how law’s definition of rape takes precedence over women’s definitions and how law manages to retain the ability to arrogate to itself the right to define the truth of things in spite of the growing challenges of other discourses”
• law is not separate from social structures and practices, but is a part of these things
• law controls social behaviour not as a set of rules imposed ‘from the outside’, but through internalisation as a way of seeing ourselves - the control that law has over us comes to seem obvious and natural to us

Question 25

Moral panics

Answer 25

• Cohen (1972): “condition, episode, person or group of persons emerges to become defined as a threat to societal values and interests; its nature is represented in a stylized and stereotypical fashion by the mass media; the moral barricades are manned by editors, bishops, politicians and other right-thinking people; socially accredited experts pronounce their diagnoses and solutions; ways of coping are evolved or (more often) resorted to; the condition then disappears, submerges or deteriorates and becomes more visible”
• moral panic can lead to social change or merely diffuse
• when?
  
  • early 1900s: jazz & then rock’n’roll
  • 1950s: coffee bars
  • 1950s: Bodgies and Widgies (Aus)
  • 1960s: ‘sexual permissiveness’ and feminism
  • 1970s: Mods & Rockers (UK)
• why?
  
  • Mackay (1841): “nations, like individuals, have their whims and their peculiarities, their seasons of excitement and recklessness, when they care not what they do… [W]hole communities suddenly fix their minds upon one object, and go mad in its pursuit; millions of people become simultaneously impressed with one delusion, and run after it, until their attention is caught by some new folly more captivating”
  • Thompson (1998):
    
    • all advanced societies manifest periodic outbreaks of panic, suggesting that it is a characteristic feature of modernity/postmodernity
    • rapid social change and growing social pluralism create an increasing potential for value conflicts and lifestyle clashes between diverse social groups
• Goode and Ben-Yehuda (2009): “moral panics are not ignited by the direct physical harm that the fuss seems to be about… The fear and concern that explode in a moral panic are more symbolic; they reflect or grow out of issues more basic than and prior to the charges made against the supposed transgressors… In every moral panic… we should look beyond the tangible, the immediate, and the material, and try to understand, symbolically and culturally, what the panic represents to the participants involved”
• Pearson (1983): target of moral panics
  
  • certain fears recur throughout history
  • youth, in particular, are a focus for such fears
  • false memories of a ‘golden era’ in the past, when young people knew their place, and society was safe

Question 26

Timeline of moral panics (Cohen)

Answer 26

1. something or someone is defined as threat to values or interests
2. this threat is “depicted in an easily recognisable form by the media”
3. there is a rapid build-up of public concern
4. there is a response from public authorities or decision-makers
5. the panics recedes or results in social change

Question 27

Key features of moral panics – Goode and Ben-Yehuda (2009)

Answer 27

• concern
  
  • heightened level of concern over the behaviour of a certain group and over the consequences such behaviour supposedly causes for the rest of society
• hostility
  
  • increased level of hostility toward the identified group
  • generating villains or ‘folk devils’ to mark the division between respectable ‘us’ and deviant ‘them’
  • characterised by strong feelings of righteousness
• consensus
  
  • substantial agreement threat is serious, real and caused by the identified group
  • typically reached through a ‘spiralling effect’ produced by the interaction of the media, public opinion, interest groups and authorities
• disproportionality
  
  • claimed ‘threat’ is: …above and beyond that which a realistic appraisal could sustain (Davis and Stasz, 1990)
  • the response that is called for, or implemented, is more than is realistically warranted
  • may involve a widespread belief that more people are involved than are in reality
• volatility
  
  • moral panics erupt fairly suddenly and quickly subside
  • some panics may become institutionalised in legislation and enforcement practices, whilst others simply vanish

Answer 28

• grassroots
  
  • crime increases > victimisation increases > fear increases > punitive political demands emerge > activities curtailed
• elite
  
  • threat or possible threats, to the socio-economic order are identified and defused quickly by entrenched elites with a vested interest in the status quo, moral panics are orchestrated by these elites
  • this diverts attention from political and economic uncertainties e.g. ‘mugging’ panics in the UK were targeted at the black, British working-class, drawing attention away from: rising unemployment and worsening balance of trade
• interest-group
  
  • people in the middle rungs of power trying to gain access to more power
  • professional associations, local politicians, local police departments, the media, religious groups, all seeking influence and a heightened public profile.
• moral entrepreneurs – Becker
  
  • play a role in defining behaviours and individuals as deviant and criminal
  • their efforts, through the mass media, attempt to rouse public opinion and lead social movements/organisations to bring pressure on authorities to exercise social control and increase regulation
  • typically fervent and righteous and hold to an absolute ethic, what they see is totally evil without qualification

Question 29

Case studies of moral panics

Answer 29

Mods and rockers

• 1964: small amounts of damage were cause by some youth identified as Mods and Rockers by their clothing and lifestyle
• media response: every national newspaper carried a leading report on the subject, followed by a wave of condemnatory editorials, response was
  
  • exaggerated: in terms of the seriousness of what happened, the number involved, the amount of violence, the amount of damage
  • distorted: by melodramatic language (‘orgy of destruction’), misrepresentation of facts (97 arrests, but only 10 for violence), misrepresentation of damage (e.g. ‘boats were overturned’ when only 1 boat was overturned), double reporting of incidents, etc
  • predictive: that these events would be followed by more events involving even worse consequences, similar later events in other areas were ‘linked’ to this and reported as being worse when they were of a smaller magnitude
  • symbolisation: differences in fashion, lifestyle and entertainment were symbolically recoded in unfavourable ways
• effect: sensitised people to symbolic signs of this ‘threat’, increased public nervousness and placed more pressure on police
  
  • police stepped up patrols and interventions in ‘trouble spots’, like seaside towns, dance halls, etc
  • rise in ‘control culture’, by way of:
    
    • diffusion: control agents distant from the original events were drawn in by collaboration or by defining their own local activities as dealing with the same ‘problem’
    • escalation: tightening up and taking stronger measures to protect ‘innocent holidaymakers’
    • innovation: new powers for police and new penalties for ‘offenders’, legislation passed to deal with malicious damage offences

Gang of 49 (Adelaide)

• since 2007: Adelaide press has run dozens of articles about the so-called ‘Gang of 49’
  
  • were depicted as a gang of Aboriginal youths who were terrorising the streets with theft, car jackings and ram raids
• 2009: Attorney-General Michael Atkinson branded them “pure evil”, while Liberal MP Vickie Chapman called them “little turds”
• is it a moral panic?

Question 30

What is social change?

Answer 30

• Friedman and Ladinsky (1967): ‘any nonrepetitive alteration in the established modes of behaviour in society’
• social change is held to occur only when changes in social structure— patterns of social relations, established social norms and social roles— change

Question 31

Types of social change

Answer 31

• Grossman and Grossman (1971): social change understood in 3 levels, different types of change shade into each other and are interrelated in complex ways
  
  • patterns of individual behaviour
  • group norms, or patterns of relations of individuals or groups to each other or to common objects as the political, economic or social system
  • society’s basic values

Question 32

Degree of social change

Answer 32

• varies in rate, magnitude and scope
• social change can be:
  
  • evolutionary
  • revolutionary
  • comprehensive
  • uneven between/within societies
  • from within/by external force
• Cotterell (1992): rate of social change is dependent on
  
  • technological progress
  • natural environment
  • political organisation and consciousness
  • degree of cultural unity e.g. migration
  • interaction with other societies

Question 33

Morison (1990)

Answer 33

• early writing
  
  • law is an effect of social change
  • legislation is only effective when in line with social sentiments
• later writing
  
  • law is sometimes an effect of social change, but can also sometimes be the cause
  • legislation can alter social sentiments

Question 34

What is consensus model?

Answer 34

• society is an organic system that rests on consensus
• solidarity based on a common interdependence (Emile Durkheim)
  
  • mechanical: through homogeneity
  • organic: through complementarity

Question 35

What is pure consensus model?

Answer 35

• legislation reflects majority opinion, it is a ‘barometer of the moral and social thinking of a community’ (Friedmann, 1972)
  
  • at least in its general character
  • difficult to support empirically
  • ignores vested interests and moral entrepreneurs

Question 36

Consensus-pluralist model

Answer 36

• acknowledges that:
  
  • competing groups/interests and social stratification exist
  • particular governments may have certain values but the electoral mechanism is itself neutral
  • there is no dominant bloc, because power is scattered across multiple groups each of whom has a voice and can negotiate to achieve its goals
• plurality of views but consensus on how to resolve disagreement peacefully - but some groups do win more than others and some laws do reinforce inequalities

Question 37

Conflict models

Answer 37

• society is built on fundamental conflicts
• the state and the law are not neutral
• some groups hold considerable power which they deploy to ensure their goals are achieved:
  
  • power elites
  • interest groups
  • family dynasties

Conflict pluralist models

• focus on clash of interest groups
• not all laws are about protecting and facilitating the needs of elites but:
  
  • legitimate the social order
  • reproduce the world view

Question 38

Law’s limits

Answer 38

• law is never going to resolve all problems, will always be a part of social change
• Allot (1980): ‘laws are often ineffective, doomed to stultification almost at birth, doomed by the overambitions of the legislator and the under-provision of the necessary requirements for an effective law, such as adequate preliminary survey, communication, acceptance, and enforcement machinery.’
  
  • still relevant today, still lack of useful presentation/communication/dissemination to society and the way it works – law does not have reach that it needs to
• Roscoe Pound (1917): argued that law was limited in three major ways
  
  • law can deal only with the outside, and not the inside
    
    • e.g. Explanatory Memorandum, Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Act 2013 (Cth): ‘the purpose of the Bill is to foster a more inclusive society by prohibiting unlawful discrimination against LGBTI people and promoting attitudinal change in Australia.’
  • there are interests and demands which cannot be safeguarded or satisfied through law
    
    • Yehezkel Dror (1959): drive practices and attitudes underground
    • Berger (1952): law can influence external acts that foster and reinforce private attitudes
    • Malcolm Fraser: human rights are ‘a matter of attitudes and relationships between people’, rather than something to be enforced by law. law to ‘[W]hen people resort to the rights, they typically protect their only do so have already because their rights been infringed. It is a trap to depend too much upon law for the enjoyment of rights, or to imagine that more laws, different kinds of laws, or a greater resort to law, can be a substitute for attitudes and relationships between people, and it is worth remembering Cicero’s words, ‘the more law, the less justice’ – basically law should already be altering the way we act
  • laws do not enforce themselves
    
    • law requires people who want to invoke legal rules and procedures
    • someone will typically only invoke the law when it is in their interests to do so - thus, law must provide incentives for its own use
• Yehezkel Dror (1959): law can and does play an important indirect role in fostering social change in three main ways
  
  • law shapes the various social institutions that influence the rate/character of social change
  • law provides the institutional framework for agencies set up to exert influence for change
  • law creates legal duties to establish situations in which change is fostered
  • however: it is only one component of a large set of policy instruments and cannot be used by itself, focusing exclusively on law as a tool of directed social change is a case of tunnel vision
• Cotterell (1992): achieving social change is ‘a long-term process of negotiation of attitudes and perceptions of interests in which political and legal action constitute only one element in a complex network of influences on social change.’

Question 39

Effective laws

Answer 39

• some laws are better suited for prompting social change than other laws
• US prohibition (1920s-30s):
  
  • 18th amendment to the US Constitution; National Prohibition Act 1919: creation of offences, with serious sanctions, for owning, selling, manufacturing alcohol
  • 1930-32: 750,000 people arrested between 1920-1932, fines and penalties totalling $75,000,000 imposed and $205,000,000 worth of property seized
  • 1930: 282,122 illicit distilleries and apparatuses, and 40million gallons of distilled spirits were seized
  • limited types of alcohol available but not the actual availability of alcohol
  • little effect on alcohol consumption generally
  • repealed in 1933
  • factors in regulatory failure:
    
    • enforcement was half-hearted
    • police lacked co-ordination and resources
    • Congress refused to allocate money for enforcement
    • seen as a religious, rural population attempting to enforce their lifestyle on urban populations

Question 40

Morison (1990) – changing society through law effectively

Answer 40

• goal chosen is realisable through law
• legislature clearly communicates the changes required
• the aim is:
  
  • broadly compatible with existing values
  • capable of implementation and enforcement

Question 41

Evans (1965) – prerequisites for effective legislation:

Answer 41

• source is authoritative and prestigious
• rationale is compatible and continuous with established cultural and legal principles
• pragmatic models for compliance
• short transition time to prevent the growth of resistance
• enforcement agents are committed
• contains both positive and negative sanctions
• incentive to use the legislation.

Question 42

SSM in Aus

Answer 42

Path to legal recognition

• Kees Waaldijk: studied legal change around homosexuality across European countries, argues that progress generally follows a fairly predictable pattern:

1. Total ban on homosexuality.
2. Decriminalisation of gay sex
3. Equalisation of age of consent
4. Anti-discrimination legislation
5. Recognition of relationships
6. Recognition of parenthood

• variations in countries’ treatment of SSM is dependent on religion, cultural and social norms (but sometimes not e.g. Brazil)
• WA:
  
  • 1989: homosexual sex decriminalised, Law Reform (Decriminalization of Sodomy) Act 1989 (WA) – preamble stated
    
    • Parliament does not believe sexual acts between consenting adults in private should be regulated by criminal law
    • Parliament disapproves of sexual relations between persons of the same sex
    • yet Parliament disapproves of the promotion or encouragement of homosexual behaviour – does not believe it should be criminalised but does not support
  • Acts Amendment (Lesbian and Gay Law Reform) Act 2002 (WA): mass law reform, re issues such as: anti-discrimination, superannuation, access to reproductive technology, lowering age of consent from 21 to 16 years, recognition of de facto relationships
  • Same Sex Marriage Bill 2013 (WA): HoR had 1^st and 2^nd readings then halted
• federal changes
  
  • Same-Sex Relationships (Equal Treatment in Commonwealth Laws— General Law Reform) Act 2008 (Cth); Same-Sex Relationships (Equal Treatment in Commonwealth Laws-Superannuation) Act 2008 (Cth)
    
    • recognition of homosexual de facto relationships
    • eliminated discrimination in range of areas, including taxation, superannuation, social security, immigration and citizenship
  • Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Act 2013 (Cth)
  • Cth followed WA and the other states in respect:
    
    • the recognition of same sex de facto relationships
    • discrimination legislation (sexual orientation, gender identity and intersex status)
  • significance of state leadership to national reform on social issues
  • history of marriage equality amendments introduced to Parliament, all progressed to some extent
  • currently: Plebiscite (Same-Sex Marriage) Bill 2016 (Cth) – introduced by Government on 14 September 2016, HoR agreed to third reading 20 Oct 2016; Senate negatived second reading on 7 Nov 2016

Legal issues in Australia

• s 51(xxi): power to make laws re marriage in Australia vested concurrently however,
  
  • s 109: “when a law of a State is inconsistent with a law of the Commonwealth, the latter shall prevail, and the former shall, to the extent of the inconsistency, be invalid”
  • states can legislate in respect to “marriage”
  • potential for the recognition of same sex marriage at the state level that is different to marriage as defined by the Marriage Act 1961 (Cth)
• historically:
  
  • before Federation, marriage and divorce were regulated by colonial statute
  • on Federation, the power to legislate for marriage was included as a concurrent power in s51 of the Constitution
  • after Federation, marriage continued to be the province of the states
  • mid-1900s, there were 9 separate legislative arrangements operating in Australia
    
    • lack of consistency
    • push for unification of the marriage laws
  • 1961: Marriage Act 1961 (Cth) was passed by the Federal Parliament and received Royal Assent on 6th May 1961 – first federal law on marriage
• definition of marriage
  
  • Marriage Act 1961 (Cth), definition S5(1): ‘marriage means the union of a man and a woman to the exclusion of all others, voluntarily entered into for life.’
  • was created by the Marriage Amendment Bill 2004 (Cth)
    
    • a product of the Howard Liberal government
    • supported by Labor but objected to by the Greens
    • 2^nd reading speech: “concern about the possible erosion of the institution of marriage”, an institution that “is vital to the stability of our society and provides the best environment for the raising of children”
  • previously, this definition had been a common law principle and part of some celebrants’ marriage solemnisation
• ACT: Marriage Equality (Same Sex) Act 2013 (ACT)
  
  • 22 November 2013: passed by 9-8 votes in LA
  • marriage means:
    
    • union of 2 people of the same sex to the exclusion of all others, voluntarily entered into for life
    • does not include a marriage within the meaning of the Marriage Act 1961 (Cth)
  • Commonwealth v ACT: High Court held that
    
    • the Marriage Act 1961 (Cth) is a comprehensive, complete and exhaustive statement of the law on marriage
    • Federal Parliament could pass a same sex marriage law - High Court found that “marriage” in s51(xxi) includes same sex marriage
    • under s 51 (xxi): stated “marriage” is a term which includes a marriage between persons of the same sex
    • means: Federal Parliament has the power to enact a law providing for same-sex marriage, ‘now only a matter of political will’ George Williams
  • marriage not immutable: French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ at: status of marriage, the social institution what that status reflects, and the rights and obligations which attach to that status never have been, and are not now , immutable. Section 51(xxi) should not be construed as conferring legislative power on the federal parliament with respect to… [marriage as it stood] at federation”
• changing social definition of marriage – marriage and social change
  
  • 1600s-1960s: various US laws did not recognise marriages between person of different races
  • 1700s: British law did not recognise marriages between Catholics and Anglicans
  • 1800s: NSW law did not recognise marriages between people from different religious denominations; and
  • 1975: no-fault divorce introduced in Australia

Why no legal change?

• Australians have fairly consistently supported SSM over the past decade, only increasing as time goes on
  
  • support was greater among women, youth, higher educated and earners, sexuality, English-speaking groups, urban dwellers
• why has social change not translated to legal change in Australia?
  
  • 2013 election
  • PM Turnbull
  • Frew (2011): ‘tendency of the laws governing marriage to follow rather than lead, contemporary social realities’
  • Sifris (2010: ‘it is not unusual for legislatures to resist initially formal change, but the publicity and exposure which rejection brings can often herald cultural change, which in turn precipitates legal change’ but
    
    • a change in culture is underway - Australian society is gradually metamorphosing from a culture steeped in heterosexual normative values to one that indicates a greater acceptance of same-sex families
    • when legal changes do occur, the social, political and economic factors that have preceded these events will have created the required impetus for change