• Silas Koulack (law student)

Crime & Morality - Should Individualism Eclipse Coercive Control? (a 1L perspective)

Crime is a social problem, and it has not abated, nor will it abate despite the many ways we regulate it. Whether it be the Criminal Code or Controlled Drugs and Substances legislation, criminal acts persist. Crime is an historical reality and one that is of import in the history of virtually every nation.

This attempt at the control of individuals and their actions has had countless cruel iterations, including witch trials, police brutality, solitary confinement and other methods too numerous to elaborate. Such a powerful means of social control is often coopted for uses that are not purely moral. Too often people have been victimized as a result of the very laws meant to protect us all. Such cases as Jim Crow laws in America, the war on drugs, and discriminatory laws in Nazi Germany teach us that although something may be legal at a certain point in time, it may be unconscionable to the collective morality within mere decades. If we cannot be sure that our laws are purely moral, then how can we justify enforcing them? Is it possible that our current rules are simply arbitrary, and may be seen as completely wrongheaded in the future?

Is it possible that the morality of the many is being forced upon the few? Even in cases where the majority believe the law is moral those who break it may not. Jim Crow Laws were a reflection of majority morality and values being forced onto a smaller, less powerful population.

Another issue arises when we consider the punishments for alleged acts against society. Although crucifixions and public immolation are too savage to be considered as punishments for modern day crimes, in the past these were perfectly acceptable. Even within recent history, such measures as the death penalty and solitary confinement (both still in use in various jurisdictions in North America) have been criticized as inhumane, impractical, and damaging to the society that they are supposed to be protecting.

With such a history of past mistakes in the pursuit of justice it is foolish to think that we will be judged any less harshly by our descendants. The legal system is certainly not infallible, and as time passes on we are sure to perpetrate more injustices in the name of justice.

What then is the justification for governments to use force against their subjects? How can we justifiably arrest, imprison, and fine individuals, and make their lives difficult simply for living a life that does not comport with the mainstream concept of morality?

One of the most enduring and compelling Western philosophies of the last few centuries is that of Individualism. Classical liberals, conservatives, libertarians, anarchists, and mainstream thinkers have championed the rights of the individual as one of the driving forces in society and as a keystone of our morality. Individualism is a moral stance emphasizing the worth of the individual and their right to control their own actions. Many of the greatest advances we have enjoyed as a society have been from individual efforts pioneering new ways of thinking and living. By necessity innovation requires distancing oneself from common beliefs, norms and ways of living. In order to create something new, the creator must think in a way that is different from the old, and reject the supremacy of the ideas that came before him. In many cases even ideas themselves have been criminalized.

From book burnings, to the Red Scare, to the crucifixion of Jesus Christ, many of history’s most progressive ideas have been criminalized by society because they delegitimize the ideas or methods of the state. For example, Judeo-Christian Treatises, the Sermon on the Mount, and the works of Marx and Engels represented progressive innovation by challenging the supremacy of the controlling or dominant ideology. Innovation and individualism run counter to a central premise of the justice system – that of control.

All punishments meted out by the justice system are attempts to control the individual. The fundamental question in the justice system seems to inquire what the best way to control the individual is. Instead it may be important to ask whether or not we should we attempt to control individuals at all. The work of Kant, Hegel, Mill, and countless other suggest that the primacy of the individual over the state is a concept that requires serious consideration. The actions of the justice system necessarily undermine individual rights and freedom, and we cannot even be sure that the methods used are moral. What then is the justification for governments to use force against their subjects? How can we justify imprisoning, arresting, and fining individuals for living a life outside of the boundaries prescribed to them by us? Is the control of individuals really more important than the freedom for all to live life as they see fit ?

If, as I’ve suggested, our morality is not static, then it raises important questions about the legitimacy of enforcing today's values on an entire society. Even more troubling are the methods used to enforce this morality. If immoral methods are being used to enforce morality, this not only undermines the entire system, but potentially causes harm to the very people it is supposed to protect. I suggest that control should not be the primary function of a governing body, as this undermines our individuality, a philosophy central to our way of life. How much control should the justice system be able to exercise over our lives? Most would agree that the government does not have the right to pass death sentences, and yet their ability to detain individuals for life is rarely questioned as being immoral. Will future generations look back on us as with mouths agape at the atrocities our government perpetrated on their own citizens? The fullness of time will so determine.

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Resistance and the Law

Robson Crim is committed to criminal law education at Robson Hall & to public legal education; Richard Jochelson, Amar Khoday, David Ireland & David Milward reflect on new Canadian criminal law developments.

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