The Structure And Shape Of Law

This part of the paper will provide a comparison with a theorist previously discussed in a lecture. The theorist with whom Michael Foucault’s arguments will be compared to is Emile Durkheim. Durkheim sees crime as functional. He says that if there was no crime, all our values would be dispersed--these values are laws. These laws are observed by sanctions and punishments attached to it. However, in order for these laws to exist, there must be a punishment, thus, for there to be a punishment, there has to be crime. Repressive law, according to this classical theorist was based on punishing for the evil doing of the criminal through revenge. Durkheim believes that a crime is not collective and when one goes against the core values of society, one threatens the entire order of society. Therefore, this theorist would agree with Foucault that when disciplining a criminal, he or she should be stripped of their freedom and when

Panopticism, a social theory based on Jeremy Bentham’s Panopticon and developed by Michel Foucault describes a disciplinary mechanism used in various aspects of society. Foucault’s Discipline and Punish discusses the development of discipline in Western society, looks in particularly at Bentham’s Panopticon and how it is a working example of how the theory is employed effectively. Foucault explains, in Discipline and Punish that ‘this book is intended as a correlative history of the modern soul and of a new power to judge’ (Foucault, 1977) and opens with accounts of public execution and torture revealing how law and order is created because of the shift from these to prison rules and discipline. Foucault describes the quarantining and

During a trial the plaintiff will attempt to prove their case by the presentation of evidence to the trier of fact. The evidence usually includes testimony of persons involved; witnesses as well as physical things such as pictures, documentation/records, recordings etc…

The definition of the general term evidence is defined as “something (including testimony, documents, and tangible objects) that tends to prove or disprove the existence of an alleged fact” (Black’s Law Dictionary 9th ed., 2009). When I think of evidence I think of it as something that can be used to prove the truth of a crime. Examples of evidence could be witnesses, fingerprints, paperwork and much more. Evidence is basically anything and everything that can beat the case. Understanding and locating a case can be very difficult. Here is an example, U.S. Supreme Court in Davis v. Washington 547 U.S. 813, 165 L.Ed. 2d 224, 126 S.Ct. 2266 (2006). First be sure to understand that165 L.Ed. 2d 224 to find Davis v. Washington will provide you with

It is no secret that the American legal system is distinct from other developed Western nations in its practices and laws. This variation, termed “adversarial legalism” by Professor Robert Kagan in his book, Adversarial Legalism, has two salient features: formal legal contestation and litigant activism. In civil and criminal law, jury trials and a specific lawyering culture exemplify these traits. Though adversarial legalism responds well to the American desires of justice and protection from harm while simultaneously respecting the societal fear of a government with too much power, it leads to extremely costly litigation and immense legal uncertainty. To reconcile the American view of justice and the undesirable outcomes of formal

The evidence collected in an investigation helps make or break a case. Although sometimes the evidence is not physical it can still be powerful. Graat v. The Queen, [1982] 2 SCR 819, 1982 CanLII (SCC) is a case where the crown used opinion evidence in order to win their case. Opinion evidence is hard to make admissible in court because of the exceptions that arise from it. If the witness is an expert in the matter he/she does not need to have seen the event to give his/her opinion and may use the terms “I think or I believe” to be described as opinion evidence. (Bartley, 2016) The observations made, by the witnesses involved, influence their opinions. Their knowledge on the matter, although not experts also influenced their opinions.

A helpful ethical theory should give people a clear idea of what to do when facing moral dilemmas, indicating whether a potential action is right or wrong. Natural Law is an absolutist and deontological approach to ethics, giving people clear rules that should be followed no matter the situation. It is derived from human nature, suggesting morality is objective – if human nature does not change, morality does not change either. The theory suggests that humans have an inherent sense of right and wrong given to them by God, and that everyone knows what the right thing is; some people just decide not to follow this knowledge. It originates with Aristotle’s idea that everything has a purpose – called its telos – and this purpose must be fulfilled to live a good life. Plato expanded on this concept with his idea of the Forms; eternal, absolute versions of everything that we should strive towards. Ultimately, this theory has both strengths and weaknesses, although the weaknesses outweigh the strengths.

The execution or punishment itself is most often carried out by a state-appointed executioner, working as a direct representative of the sovereign’s power in order to further dissuade the public witnessing the execution of committing other crimes (DP, 9). Around a hundred years later, there was a shift away from these public displays of power and violence to a more corrective and rehabilitating process. Foucault defines disciplinary power as the power to return a wrongdoer to the normative standards of society (DP, 179). As the years go on, power is taken away from a central body and is exhibited through institutions such as schools, prisons, and hospitals where power and knowledge is maintained through the sciences (e.g. psychology, sociology, and psychiatry) rather than laws. This new form of power is exercised over the individual’s soul rather by disciplining their body (DP, 30). In other words, these new houses of power prefer a correctional approach in order to rehabilitate the wrongdoer and cut down on the amount of individuals not adhering to the norms of society (DP, 19). By doing this, disciplinary power and punishment is exercised over subjects through hierarchical

Foucault address the changing definition of crime and how power is exerted through the enforcement of punishment. During the monarchy, kings and queens showed their power and authority of the people by determining what punishment someone would receive for their actions. In the current political system, judges and juries are in the position to make these decisions. Judgement is the current system is based on motives and intent rather than on the severity of the crime alone. We care more about the psychological state of the individual and want to be able to change the person's soul to better respect society. The quote below addresses how punishment uses a variety of specializations and how the individual's mental state is molded to fit into standards we have created today.

My interest in the law grew exponentially as I moved through the History program at Saint Joseph’s University. From the dynasties of China to the French Revolution, the law influenced the way in which nation’s citizens interacted with their government and one another. During a trip to China with my university, I was able to see first-hand how different laws affect citizens daily lives. After this experience in a starkly different system of government, I was particularly drawn to United States law and the structure of our Constitution. American idealism has played into its structure, and continues to reflect in all aspects of the law such as business law and criminal law. In light of my interest in this subject, the following will address my

Foucault sees discipline moving from the body to the soul or mind. Through a lengthy introduction that illustrates the torture and killing of a man in public, we see how punishment and discipline was exerted by physical means and in front of a populace. That discipline and punish is now evolved into a form of confining those to a small space behind walls where the public cannot see them. The punishment is not of the body but of the mind and soul, as Foucault calls it. Foucault argues that a new relationship has been formed between the body and punishment by saying: “from being an art of unbearable sensations, punishment has become an economy of suspended rights.”

Michel Foucault is a very famous French intellectual who practiced the knowledge of sociology. Foucault analyzed how knowledge related to social structures, in particular the concept of punishment within the penal system. His theory through, Discipline and Punish: The Birth of the Prison, is a detailed outline of the disciplinary society; in which organizes populations, their relations to power formations, and the corresponding conceptions of the subjects themselves. Previously, this type of punishment focused on torture and dismemberment, in which was applied directly to bodies. Foucault mentions through his literary piece, “the soul is the effect and instrument of a political anatomy: the soul is the prison of the body (p.30). However, today, the notion of punishment involves public appearances in a court and much more humane sentences. However, it is important to note and to understand the idea of power and knowledge; it is fundamental to understand the social system as a whole.

This is a summary of Michel Foucault's seminal work on the history of criminal punishment and social discipline as it transformed from punitive to correctional models during the late eighteenth and nineteenth centuries.

Evidence is defined as any matter of fact, the effect, tendency, or design of which is to produce in the mind a persuasion, affirmative or disaffirmative, of the existence of some other matter of fact that a crime has been committed.(Paul B. Watson, 1986) In a legal sense, evidence is the information presented in court during a trial which enables the judge and jury to decide a particular case (Garland & Stuckey, 2000). There are two main types of evidence, which are testimony and physical items which can be presented to the judge and jury during a criminal trial. Physical evidence is any evidence found at the perpetrator’s

For Foucault you cannot understand imprisonment without looking at torture first and how they both correlate to one another. Throughout this essay I will assess Foucault’s theories about torture and his views of how it has come about. I will look at how torture is a technique and the forms of disciplinary techniques that accompany torture. I will assess the power structures and how it manifests into other institutions in today’s society. Lastly how torture is needed to understand imprisonment. Torture was used as a scare tactic in the past to keep individuals under control. Society was aware of what may occur to them if they disobeyed the law. This initiated power and discipline over citizens which helps us to understand power relations today in terms of imprisonment.