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Punishment, Feminism, and Political Identity: A Case Study in the Expressive Meaning of the Law

Published online by Cambridge University Press:  09 June 2015

Jean Hampton
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Extract

In the Spring of 1995,1 was asked to testify as an expert witness in a case in Canada that raised a number of different philosophical and jurisprudential issues. The case concerned whether prisoners sentenced to two years or more in a Canadian penitentiary had the right to vote. For many years, Canada has denied those incarcerated in its prisons voting rights (following the British practice of doing so), but after the enactment of the Canadian Charter of Rights and Freedoms in 1982, which grants each citizen of Canada the right to vote, that practice was challenged; in a series of court cases, prisoners maintained that denying them the right to vote during their incarceration amounted to denying them one of their basic constitutional rights as Canadian citizens.

One of the most important issues raised by this case was the nature of Canada’s political identity. The fact that the political identity of a state can be partly at stake in a law is, I believe, important and insufficiently recognized. A law can be not only a tool for the organization of the community (e.g., by promoting order, or coordination, or public wellbeing), but also a significant expressive force in that community, symbolizing the community’s sense of its values and (what I will call) its “political personality”. Indeed, for countries which are not culturally homogeneous and in which the unity of the community is primarily purchased through the principles of its polity, the expressive nature of certain laws can be essential in the creation, maintenance or revision of a unifying identity for that society; this is an identity that not only helps to hold the pluralist society together but also helps people to have a sense of themselves as members of that political community. I hope to argue that the controversy surrounding the issue of whether or not prisoners’ voting rights should be suspended reflects controversy about what kind of state Canada is and shows the ways in which law can be expressive.

Type
Research Article
Information
Canadian Journal of Law & Jurisprudence , Volume 11 , Issue 1 , January 1998 , pp. 23 - 45
Copyright
Copyright © Canadian Journal of Law and Jurisprudence 1998 

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References

1. To be precise, the Charter came into force on April 17, 1982. Canadian Journal of Law and Jurisprudence Vol. XI, No.1 (January 1998)

2. Canadian Charter of Rights and Freedoms, s.3 Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, ch.11.

3. See Badger v. Manitoba (AG.)(1986) 27 C.C.C.(3d) 158; Sauvé v. Canadaf A.G.) (1989), 53 D.L.R. (4th) 595; Belczowski v. R. (1992), 12 C.R. (4th) 219. For a complete review of this litigation (up to the early 90s) see Rainer Knopff & F.L. Morton, Charter Politics (Scarborough, ON: Nelson, 1992) ch.11.

4. See R. v. Oakes, [1986 1 S.C.R. 103 at 105.

5. For a discussion of s. 1 and the Oakes test, see Christopher Manfredi, Judicial Power and the Charter (Norman, OK: University of Oklahoma Press, 1993) at 161 ff; Knopff & Morton, supra note 2 at 39–51; and Roger Kerans, “The Future of Section One of the Charter” (1988/89) 23 U.B.C.L. Rev. 567.

6. A two year prison term is meted out in Canada only for serious criminal conduct, such as murder, sexual assault, armed robbery, and serious drug offenses. (Among the prisoners who brought the litigation, one (Sauvé) was convicted of aiding and abetting a murder, another (Spence) was convicted of multiple robberies and of violently assaulting his wife. The point of the law is to target the most serious offenders.

7. Statistics offered by Colin Meredith to the court showed that the vast majority of the offences landing someone in a penitentiary are crimes against the person (e.g., murder, assault, sexual assault, kidnap and robbery). A much smaller number are crimes against property (e.g., arson, breaking and entering, and fraud), and a very small number are drug offences (e.g., trafficking, importing/exporting, cultivating).

8. Sauvé v. Canada (Chief Electoral Officer); McCorrister v. Canada (A.G.) (1996), 132 D.L.R. (4th)(F.C.T.D.)136.

9. One of these lawyers had been a philosophy major in college, the other was in the process of getting a Master’s degree in political science as the case was being heard. Both lawyers believed that their actual legal education did not prepare them well for a case of this nature, so that they were lucky to have had their education in philosophy and political theory to fall back upon. This sort of case raises, in my view, important issues about how legal education should be designed.

10. Canadian Charter of Rights and Freedoms, s.3 Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, ch.11.

11. For a U.S. case that raised similar issues, see Wesley v. Collins, 605 F.Supp. 802 (1985).

12. See Richard Delgado, “Rotten Social Background: Should the Criminal Law Recognize a Defense of Severe Environmental Deprivation?” in Jeffrie Murphy, ed., Punishment and Rehabilitation, 3d ed. (Belmont, CA: Wadsworth, 1995).

13. To quote Claudia Card: “…rape has two targets: ‘bad girls’ and ‘good girls,’ those who are expendable (‘throw-away women’) and those to whom a message is sent by way of the treatment of the former.” See C. Card, “Rape as a Terrorist Institution” in R.G. Frey & C. Morris, eds., Violence, Terrorism and Justice (Cambridge: Cambridge University Press, 1991) 296 at 302.

14. Ibid, at 296.

15. Royal Commission on Aboriginal Peoples, Discussion Paper I: Framing the Issues (Ottawa: The Commission, 1992) at 12; cited in Katherine Beaty Chiste, “Aboriginal Women and Self-Government: Challenging Leviathan” (1994) 18:3 Am. Indian Culture and Research J. at 29.

16. Marilyn Fontaine-Brightstar, “Breaking the Silence”, (1992) 26:2 Canadian Dimension at 5–6 cited in Chiste, ibid, at 29.

17. Sandra Harding, “Taking Responsibility for Our Own Gender, Race, Class: Transforming Science and the Social Studies of Science” (1989) 2:3 Rethinking Marxism 8 at 14.

18. One African-American philosopher who holds this view is Laurence Thomas, “Sexism and Racism: Some Conceptual Differences” (1980) 90:2 Ethics 239.

19. Fontaine-Brightstar, at 6 cited in Chiste, supra note 13 at 31.

20. Monture-Okanee, “Reclaiming Justice” at 115 cited in Chiste, supra note 13 at 31.

21. Fontaine-Brightstar, at 5 cited in Chiste, supra note 13 at 32.

22. See Chiste, ibid, at 33. In the end, although the native women won in the lower courts, the Canadian Supreme Court reversed the lower court ruling by a unanimous decision. (See R. v. Native Women’s Association of Canada, Gail Stacey Moore and Sharon Mclvor, [1994] 3 S.C.R. 627), arguing that the government was under no obligation to consult with any particular group, and that “there was no evidence in this case to suggest that the funding or consultation of the four Aboriginal groups infringed the respondents’ equal right of freedom of expression.” (Sopinka J. at 664) In my view, such an opinion raises interesting (and in some ways disturbing) political issues in its own right (which I cannot explore further here) regarding how government action can (inadvertently or deliberately) privilege certain points of view at the expense of others. I am indebted to Hamish Stewart for providing me with information on this decision.

23. Some feminists have worried about this problem. As one writer notes, “it seems safest to counter the notion of woman as free agent by emphasizing her victimization. However, unless we include in this a complex sense of agency, we run the risk of producing a discourse which sets women up to be saved. This would situate women within feminist analysis in ways that are similar to their positioning within colonialist or nationalist discourse.” Lani Mati, “Multiple Mediations: Feminist Scholarship in the Age of Multinational Reception” in H. Crowley & S. Himmelweit, eds., Knowing Women (Cambridge: Polity Press and Open University, 1992) at 321.

24. See I. Kant, The Metaphysical Elements of Justice, trans. J. Ladd (Indianapolis, IN: Bobbs-Merrill, 1979).

25. G.W.F. Hegel, The Philosophy of Right, trans. T.M. Knox (London: Oxford University Press, 1969); See especially sections 99 and 100.

26. Joel Feinberg, “The Expressive Function of Punishment” in J. Feinberg, ed., Doing and Deserving (Princeton, NJ: Princeton University Press, 1970) 95 at 98.

27. See e.g. Jean Hampton, “Correcting Harms versus Righting Wrongs: The Goal of Retribution” (1992) 39:6 UCLA L. Rev. 1659–1702; and J. Murphy & J. Hampton, Forgiveness and Mercy (Cambridge: Cambridge University Press, 1988) ch. 4.

28. See Jeffrie Murphy’s discussion of what wrongdoing ‘says’ in Murphy & Hampton, ibid. ch. 1.

29. Herbert Morris, “A Paternalistic Theory of Punishment” (1981) 18 Am. Phil. Quart. 263 at 268.

30. Consider, for example, the way that the Violence Against Women Act enacted by Congress in 1994 enables women to sue men who have used violence against them—a right that is particularly important in a society where prosecutors may be reluctant to argue their case in a criminal court.

31. Chiste argues that native women are much more likely to advocate a non-punitive response, in the name of healing an offender, supra note 13 at 29. The problem with this observation, however, is that we do not know what conception of punishment such women are rejecting. They may well be rejecting a punitive response that is hateful and condemnatory, but may want a punitive response that heals by being morally educative and that vindicates the victims’ value; hence it may be that die view of punishment I suggest is more congenial to native conceptions of appropriate treatment for offenders than it might initially appear. But I do not know enough about various native conceptions of sentencing to evaluate the extent to which any of them are in accordance with, or contradict, retributive or morally educative ideas.

32. Both conceptions are associated with the work of John Rawls, the former in his classic A Theory of Justice (Cambridge, MA: Harvard University Press, 1971); the latter in his more recent book Political Liberalism (New York: Columbia University Press, 1993).

33. To quote Feinberg: “The Uberai does not urge that the legislators of criminal law be unconcerned with “a man’s morals”. Indeed, everything about a person that the criminal law should be concerned with is included in his morals. But not everything in a person’s morals should be the concern of the law, only his disposition to violate the rights of other parties. He may be morally blameworthy for his beliefs and desires, his taboo infractions, his tastes, his harmless exploitations, and other free-floating evils, but these moral judgments are not the business of the criminal law.” Joel Feinberg, “Some Unswept Debris From the Hart/Devlin Debate”(1987) 72 Synthèse 249 at 259.

34. I am grateful to Gerald Chartier and Glenn Joyal, of the Winnipeg office of the Canadian Department of Justice, for their invitation to become involved in the case, and for all the information they provided me about the issues involved in it. Thanks also go to Cindy Holder, for her research assistance and for her conversations with me on this topic, Hamish Stewart for providing me with information regarding Canadian law, and audiences at the University of Toronto Law School, the University of Oklahoma, the University of Sussex and the University of Bristol who heard this paper delivered and whose comments I found very valuable.