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

Canadian Journal of Law and Jurisprudence

Volumn 11, Issue 1, 1998, Pages 23-45

  Hampton, Jean ^a  

^a NONE

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EID: 37949007388     PISSN: 08418209     EISSN: 20564260     Source Type: Journal    
DOI: 10.1017/S0841820900001673     Document Type: Review

References (36)

1. To be precise, the Charter came into force on April 17, 1982.
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.l 1.
3. Badger v. Manitoba (AG.)(1986) 27 C.C.C.(3d) 158;
4. Sauve v. Canadaf (A.G.) (1989), 53 D.L.R. (4th) 595;
5. Belczowski v. R. (1992), 12 C.R. (4th) 219.
6. Rainer Knopff & F.L. Morton, Charter Politics (Scarborough, ON: Nelson, 1992) ch.l 1.
7. R. v. Oakes, [1986 1 S.C.R. 103 at 105.
8. Christopher Manfredi, Judicial Power and the Charter (Norman, OK: University of Oklahoma Press, 1993), 161;
9. Roger Kerans, "The Future of Section One of the Charter"( 1988/89) 23 U.B.C.L. Rev. 567.
10. McCorrister v. Canada (A.G.) (1996), 132 D.L.R. (4th)(F.C.T.D.)136.
11. 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.
12. 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.l 1.
13. Wesley v. Collins, 605 F.Supp. 802 (1985).
14. 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).
15. C. Card, "Rape as a Terrorist Institution" in R.G. Frey & C. Morris, eds., Violence, Terrorism and Justice (Cambridge: Cambridge University Press, 1991) 296-302.
16. Royal Commission on Aboriginal Peoples, Discussion Paper I: Framing the Issues (Ottawa: The Commission, 1992), 12;
17. Katherine Beaty Chiste, "Aboriginal Women and Self-Government: Challenging Leviathan" (1994) 18:3 Am. Indian Culture and Research J., 29.
18. Marilyn Fontaine-Brightstar, "Breaking the Silence", (1992) 26:2 Canadian Dimension, 5-6.
19. Sandra Harding, 'Taking Responsibility for Our Own Gender, Race, Class: Transforming Science and the Social Studies of Science" (1989) 2:3 Rethinking Marxism 8-14.
20. Laurence Thomas, "Sexism and Racism: Some Conceptual Differences" (1980) 90:2 Ethics 239.
21. Monture Okanee, "Reclaiming Justice" 115.
22. R. v. Native Women's Association of Canada, Gail Stacey Moore and Sharon Mclvor, [1994] 3 S.C.R. 627.
23. H. Crowley & S. Himmelweit, eds., Knowing Women (Cambridge: Polity Press and Open University, 1992), 321.
24. 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);
26. Joel Feinberg, "The Expressive Function of Punishment" in J. Feinberg, ed., Doing and Deserving (Princeton, NJ: Princeton University Press, 1970) 95-98.
27. Jean Hampton, "Correcting Harms versus Righting Wrongs: The Goal of Retribution" (1992) 39:6 UCLA L. Rev. 1659-1702;
28. J. Murphy & J. Hampton, Forgiveness and Mercy (Cambridge: Cambridge University Press, 1988) ch. 4.
29. Herbert Morris, "A Paternalistic Theory of Punishment" (1981) 18 Am. Phil. Quart. 263-268.
30. Consider, for example, the way that the Violence Against Women Act enacted by Congress, 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. 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. John Rawls, The former in his classic. A Theory of Justice (Cambridge, MA: Harvard University Press, 1971);
33. Political Liberalism (New York: Columbia University Press, 1993).
34. To quote Feinberg: "The liberal 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.
35. Joel Feinberg, "Some Unswept Debris From the Hart/Devlin Debate"(1987) 72 Synthese 249-259.
36. 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.