Spring 2004 - Volume 7 Number 2
Canadian Critical Race Theory: Racism and the Law
Halifax: Fernwood Publishing, 1999
Locating Law: Race/Class/Gender Connections
Halifax: Fernwood Publishing, 1999
Marginality and Condemnation: An Introduction to Critical Criminality
Halifax: Fernwood Publishing, 2002
"The law is an ass," wrote Charles Dickens. "Let's kill all the lawyers," wrote William Shakespeare. "How can you sleep at night," ask outraged citizens of attorneys whose clients "get off on a technicality."
It is hard for lawyers these days, or any days. It is especially hard for criminal defence attorneys who defy the seldom stated but widely accepted public opinion that people accused of crimes must be guilty or the authorities would never have charged them in the first place.
Sceptical as we may be about the integrity of the criminal justice system, we are even more cynical about the legal profession and of pointy-headed, tender-minded, bleeding hearts who try to excuse heinous criminal acts while ignoring the rights of the victims.
That, despite the wrongful convictions of Milgaard, Marshall and Morin (among countless others), seems to be the mood of voters who have tired of liberalism and humanitarianism and want to see law and order restored.
In such an atmosphere, it is well that book publishers and particularly small book publishers are willing to publish volumes that defy the prevailing winds and urge more balanced and generous views. The role of the smaller presses in today's profit-centred publishing business is a topic for another time; let it simply be said that one of them, Fernwood Press of Halifax, Nova Scotia, has earned an honourable reputation as a firm with courage and convictions.
Criminologists, who figure prominently among the ranks of the pointy-headed, can turn expectantly to Fernwood and are seldom disappointed. Three cases in point are the books considered here.
The first, by law professor Carol Aylward, is five years old but remains provocatively in print. Its subject matter is the sort of thing that makes "America's Most Wanted" fans howl. Everyone whose distrust of the justice system is such that they still believe O. J. Simpson was guilty will not find Canadian Critical Race Theory a comfortable read.
Its subject is popularly known as "playing the race card." It means the exploration of the possibility that an accused person has been unfairly targeted for unfair investigation, arrest, conviction and sentencing as a consequence of prejudice on the basis of the socially constructed but biologically laughable category of "race". In fact, this book could be uncharitably but not egregiously described as an instruction manual on the race card and how to play it. This, I hasten to add, is not necessarily an unworthy project.
Carol Aylward's specific focus is on critical Black theory, though she is aware and supportive of, among others, critical aboriginal theory which seeks to understand and advance the interests of native peoples in a legal system that has plainly excluded them from consideration in the construction of the law and treated them odiously within its processes. Professor Aylward is an astute scholar and has not produced a self-righteous outpouring of emotionally charged resentment, nor a rhetorically revolutionary call for the tearing down of the state and its inherently biased institutions. Hers is a patient, thorough and erudite accounting of the history of both racism and the law which would pass muster at the politest of faculty clubs. The strength of her argument engages the intellect, but it is the substance of her narrative, not its style, that animates the reader's passions.
She walks us carefully and attentively through nooks and niches of the legal system, explaining the sometimes arcane but always engrossing issues raised in case law and in criminal procedure (with, for example, an unexpectedly fascinating discussion of jury selection procedures). Given the abundant evidence of juridical malfeasance, not just in criminal but in corporate, labour, family, administrative, human rights and tort law, her conclusion that "we should not ask why ‘race' is an issue, but why ‘race' is not an issue" strikes the mindful reader not as provocative but obvious. At only 191 pages (excluding notes, references, etc.), this book is extraordinarily concise and, at the same time, quite complete.
Locating Law, edited by Elizabeth Comack, is a different but equally worthy enterprise. Also not quite hot off the press (though still warm after its reprinting in 2003), it does precisely what it promises to do. It makes convincing connections among race, class and gender as social determinants of the fate of individuals in the justice system.
It is one thing to observe that our society differentiates among people on the basis of race, class and gender. It is quite another to hold the legal system accountable in whole or in part for generating racially based bias, imposing structural economic inequalities, or setting people apart because of their sex.
Elizabeth Comack begins by taking us through the admittedly difficult terrain of theory. Ideas about ideas, she acknowledges (as I lament), are not the topics that legal minds choose to consider at the best of times, which these times decidedly are not. Nonetheless, it is essential to overcome the philistine notion that "theory talk," while well and good for undergraduate bull sessions, are "irrelevant" to anything approximating the real world. Comack does a good job of helping even reluctant readers to do take such topics seriously. Once we "get it," once we understand that any discussion of the law that does not begin with theoretical inquiries into the sociology of law is apt to end up in a sterile impasse (if it ends anywhere at all), we can see more clearly the importance and the nature of the issue-specific chapters that make up the bulk of the book.
Those specific issues include immigration, labour, family, sexual violence and pornography among others. Not always do people of "progressive" opinion agree as, for example, in the case of various feminist attitudes toward obscenity, prostitution and the many forms of the sex trade. Such matters are complex and sometimes tax the wisdom of liberal minds, while routinely offending conservatives. Accordingly, I am pleased to say that the authors in this anthology are aware of and attentive to the complexities and perplexities of the social-legal nexus. They provide sound analysis, without imposing unambiguous solutions to complicated problems. Like all instances of academic excellence, they make you think.
One of the important themes they make the reader think about is the proper role of the courts with respect to social change. Apologists for existing judicial arrangements plausibly argue that the law reflects and ought to reflect social norms as expressed through democratically elected institutions. Thus, while social injustice may be objectionable, it may not be wise to encourage an unelected judiciary to lead social change. Interventionist legal systems and "judge-made law" are not unfairly held suspect by individuals who prefer to trust social opinion and rules made through the instrumentalities of legislatures to the enactment of political principles by appointed benchers. So, while courts have been responsible some "progressive" changes in law and governance, progressives might think twice about both the philosophy and the pragmatics of encouraging activist courts. Constitutional politics in the high courts, an important and controversial feature of US governance, is not a matter to be treated lightly, nor is it so treated in this collection.
The last book to which I would like to call attention is Bernard Schissel and Carolyn Brooks' Marginality and Condemnation. Like another book noted in this issue, it is, as its subtitle suggests, An Introduction to Critical Criminology, a textbook suitable for use in classes for "applied" Law Enforcement and Police Foundations courses as well as "academic" explorations of Sociology and Criminology.
Like almost every standard textbook, it begins with an overview of the discipline, a nod to past masters from Francis Bacon to Jeremy Bentham, and from Sigmund Freud to Michel Foucault. Unlike most standard texts, however, it does not impose a "whig" interpretation of history, intimating that the study of criminal behaviour has been built upon a sound foundation and has moved step-wise upward to greater and greater understanding by means of the accumulation of ever more empirical knowledge. Instead, like all social sciences, criminology is shown to have internal divisions. Orthodoxies are regularly erected, subsequently criticized, occasionally excoriated and inevitably replaced by practitioners who choose to pursue knowledge in new directions. While it is true that large publishers are willing to point respectfully (but briefly) toward interesting (typically Marxist, feminist and postmodern) alternatives to "normal" science, Schissel and Brooks consider these and other options to be serious challenges to consensus-based structural-functional, sociocultural and ultimately sociobiological analyses of human action. What is appealing about this is that they write about these debates as if they really mattered and were not just the stuff of multiple-choice questions on a final exam.
Using timely, innervating and deliberately thought-provoking examples that put conservative ideologies to the test, Marginality and Condemnation uses the form of conventional textbooks to do what those weighty volumes rarely do. They connect students through compelling language and argument to reconsider their reasoning about what crime, criminals and the criminal justice system actually are.
Surprising but true, the formal requirements of school books are met by "discussion questions" that are really about something more than platitudes, "glossaries" that provide definitions of key terms that are not so bland that a student must wonder why academic concepts are uniformly comprised of eviscerated language, and suggested readings that move beyond the popular press upward (to Cambridge University) and outward (to Common Courage Press) as well as around in circles (to Prentice-Hall).
The book is largely organized around important themes that carry the terms "shape" and "form": the historical and the contemporary shape and form of crime and the shape and form of punishment. Its contributors write persuasively and use empirical research effectively. In the words of College Quarterly contributor, Livy Visano, their prime task is to "investigate and interrogate the role of law, both accommodative and challenging crime discourses and practices, and policies that inform crime causation and prevention." No small feat.
Someone always can be found to say a particular book should be "required reading" for certain sorts of courses. I will do so here, but I will have neither been the first nor the last.
Howard A. Doughty teaches in the Faculty of Applied Arts and Health Sciences at Seneca College, King City. His email address is email@example.com
• The views expressed by the authors are those of the authors and do not necessarily reflect those of The College Quarterly or of Seneca College.
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