Answer

Week 3 readings: Western legal theory

Week 5 readings: Classical theory of sovereignty

Week 6 readings: Feminist legal theory

Unlike most Western countries, the Canadian government system is described as a constitutional monarchy operated as a parliamentary democracy.  A constitutional monarchy denotes a governance structure where the monarch shares power with a government installed according to its constitution. On the other hand, a parliamentary democracy refers to a form of democratic governance where the legislature makes the laws that are then ascended to by the head of state. In this governance system, the people elect representatives who make laws and decisions on their behalf. The uniqueness of the Canadian system of governance, coupled with differences in traditions and cultures across its citizens, contributes to the Canadian legal system’s complexity. As explained by Borrows (2010), Canada is a multi-juridical country meaning that its legal system can apply civil laws, common laws, and indigenous legal traditions. The fact that the country is a juridical pluralist state hints at the extent of its sovereignty, which means that Canada enjoys supreme authority within its territory. Upon this backdrop, this essay seconds Christe’s argument that sovereignty captures the sense of a state’s enjoyment of its supreme authority within its territory. This paper draws on three theories to explain how sovereignty is relevant to understanding Canadian law’s operations.

Week 3

First, the sovereignty of Canadian law highlights the sense of enjoyment of supreme authority with its territory. For instance, were it not for the sovereignty, the government could not have the power to govern itself and control its subjects; instead, the Canadian law could be made and bestowed to them by the Crown. Instead, the crown does not interfere with Canada’s legal system; therefore, enabling the country to enjoy its supreme authority within its territory. For this reason, the Canadian government finds it prudent to operate a multi-juridical country where various laws are used to increased flexibility in the administration of Justice. For instance, the acceptance of civil, indigenous, and common law collectively shows how the government values its citizens’ diversity. By allowing the Aboriginals to apply their laws, the government further creates an environment where its citizens can enjoy their authority and control their localized legal system. As much as this practice has been beneficial in promoting sovereignty at different governance levels, it has been challenged for promoting negative stereotypes. According to Borrows (2010), the Canadian constitution recognizes the indigenous law as having diverse practices, which includes a flow of laws from many sources. The acknowledgment of the legal foundations used by local communities has led to a better appreciation of the aboriginals’ new potential.

Additionally, it recognizes the indigenous communities and allows them to interpret, implement, and enforce their laws. The fact that the indigenous laws are entwined with historical, biological, political, spiritual, economic, and social circumstances of these groups justifies that the Canadian law ensures its citizens enjoy utmost authority within their territory. Borrows (2010) explains that these laws are drawn from sacred teachings, positivistic proclamations, local/ national customs, contemplative practices, and naturalistic observations. These sentiments are seconded by the Western legal theory, which notes that the indigenous people have different views on law practice. The theory notes that the indigenous people have various propositions on how their laws gain binding forces. The Western legal theory also acknowledges differences of opinion since it strengthens the laws and makes them vibrant. Such divisions in opinion enable the law to shirt its appeal and legitimacy over time as people continue to engage in reforms that ensure that emerging issues are captured and reflected in the law. To this point, the Western legal theory justifies that just like Canada’s legal traditions, the indigenous legal traditions are diverse and varied and should be expressed in unique ways to consistently capture the sense of a state’s enjoyment of supreme authority within a territory.

Christie furthers this discussion by noting that the Arctic’s reopening in the North Pole brings to question issues such as jurisdiction, resources management, environmental protection, and security, among other issues. This is because the eight Arctic states border the Arctic Ocean. The region shares borders with the United States, Russia, Finland, Denmark, Iceland, Norway, and Sweden. A common characteristic of the populations bordering the Arctic is that they are composed of indigenous communities. These communities have lived in the region for thousands of years. As much as different countries share this region, the question of who owns the Arctic often triggers mixed reactions among legal experts. Such questions create the need for Inuit living within Canada. The question must stir Canada into wanting to claim the Arctic Archipelago. This region is composed of 94 islands that extend from the Canadian Arctic coastline into the North Pole. Surprisingly, because of the paternalism, exploitation, and mistreatment of the Inuits, across the North Pole, they prefer being considered as Canadian citizens and thus, act willingly in claiming that the North Pole is part of Canada. Christie (2011) reports that Canada’s claim over the Arctic begun at the period World War II was coming to an end.

The Canadian government made cultural shifts that have affected the region. For instance, it offered the inhabitants permanent settlements and enrolled the children in schools. As a result, the indigenous languages began to diminish. However, since the 1970s activism, the Inuvialuit residing on the North Pole has been renegotiating to self-govern themselves. As a result, the parties have entered into treaties lessening Canada’s control of the region. These dynamics hint at the role of sovereignty in influencing a state’s ability to enjoy supreme authority over a territory. For instance, the region seeks sovereignty through self-governance.

On the contrary, Christie (2011) introduces the sovereignty model. She argues that Canada is likely to fight for the second colonization of the Arctic region to control its resources and politics as the sovereignty of the region is currently threatened by other neighboring countries. In line with Christie’s sentiments where she argues that sovereignty captures the sense of a states enjoyment of supreme authority within a territory, she justifies the need for Canada to use its laws to annex and recolonize the Arctic region since its sovereignty is currently threatened by five nation-states bordering the Arctic Ocean. These countries assert their authority over their territorial waters, islands, and landmasses bordering the oceanic region. By neighboring the region, they equally assume the supreme authority over these territories. In this case, sovereignty becomes complicated since too many countries lay claim to the offshore of the Arctic Ocean.

Backed by this explanation, Christie (2011) explains that sovereignty is the process of practicing territorial based power concerning defined geographical regions and lands. Thus, Canadian law allows the government to secure and safeguard lands within its territory. As part of holding this territory, Canada has a right to make decisions that affect it. This is the case with the Arctic, which is considered to be within the Canadian territory. As a result, the sovereignty model emphasizes the need for Canada to have control over the region. The model further emphasizes that all the other countries and decision-making bodies outside or within the territory, such as the United Nations, must consent to Canada’s decisions since it is a sovereign power that has control over its territory. Third, the sovereignty model mandates that accession to decisions made under the Canadian law applies to all the people within its territory; therefore, everyone should follow the commands. This concept of adhering to the laws within a given territory shows that Canada has authority over its territory, which is part of asserting its power as a sovereign state. Therefore, Christie concludes that since the Arctic is not a recognized territory, then Canada has the sovereign power to influence its policies and internal dealings. This second example reiterates Christie’s sentiments that sovereignty captures the sense of a state’s enjoyment of supreme authority within its territory. Unlike the first point, which argues that multi-juridical is a form of conferring sovereignty to the different communities in Canada, the second point argues that Canadian law dictates everyone’s behavior and decisions within the territory. This means that Canada has full control over the Arctic region since it falls within its territory; thus, it enjoys the supreme authority to make decisions that directly or indirectly affect the territory.

Week 5

This class debated that one of the old rights of sovereignty was the right to let live or take life but has, over the years, been transformed to make life and let die. This connotation is explained using the theory of right. Foucault and Ewald (2003) explain that the concept of sovereignty is mandated by the fact that people enter into social contracts to protect their lives against threats. This statement implies that life is sovereign, and thus, people seek to protect it at all costs. Sovereigns can demand their subjects to allow them to exercise the power of death or life over them. This statement could also mean that sovereigns are powerful to the extent that they have the power to pardon and to kill. This allusion is backed by the fact that the state can control everything within its territory.  This concept is known as state control. It falls within the classical theory of sovereignty. This theory provides a backdrop on how Sovereignty, concerning Canadian law, captures the sense of a state’s enjoyment of supreme authority within its territory. This is why the government has the power to use Canadian law to wage war against other countries.

Similarly, the government has the authority to implement death sentences as a form of capital punishment for offenders. In the same breath, the government has the right to pardon offenders, thus letting them live. Foucault and Ewald (2003) argue that the right to live or die depends on the sovereignty of the country to dictate such matters. However, the authors are critical that as much as Canada has sovereignty over life, their decisions to grant life or death are often considered unbalanced and a major source of practical disequilibrium and theoretical paradox. This is because the sovereign state cannot at any cost grant life in the same manner that it can take away life by inflicting death. This statement creates a situation where the right of death and life is exercised in an unbalanced manner. The balance has to be tipped in favor of death since the sovereign power can only kill but cannot grant life. As much as the exercise of granting life and death depicts the sense of state’s enjoyment of its supreme authority over its subjects, this example only serves to show the extent to which the Canadian law allows the government to practice its sovereignty over its territory and on the people. In line with the classical theory of sovereignty, the government must use its powers to safeguard its citizens’ lives. The government is obligated to use its resources to ensure that it guards the lives of its citizens both at home and abroad. This statement balances the dissymmetry created when the government is granted the right to life or lie die. As part of the country’s sense of supreme authority, it has to defend its citizens’ right to life at all costs.

The sentiments justifying the state’s right to enjoy supreme authority over its subjects by determining their right to life or death is further explained by Oksala (2013), who presents a critical analysis of Foucault’s work. This particular theorist is credited for writing about the disciplinary power in the book titled “Discipline and punish” and “History of Sexuality.” In his writings, Foucault discusses neoliberal and liberal governmentality as well as biopower and pastoral power. As Foucault explained, biopower refers to the act of having power over other people’s bodies. The state employs the act of biopower as a show of its sovereignty over its territory and anything within it. This is the case with Canadian law, which applies to anyone within its territory. Oksala (2013) explains that sovereign power denotes the form of power historically founded on violence, such as the right to kill. Oksala (2013) seconds the article by Foucault and Ewald (2003) explaining the concept of sovereignty and how the government uses the Canadian law to enforce its sovereignty by deciding matters life and death of its citizens. Oksala (2013) defines the term governmentality as the combination of the terms rationality and government. The resultant term describes the study of power that describes how people should be governed through the positive exercise of sovereignty.

Similarly, the term could describe the willingness of the people to be governed by a sovereign body. In Canada’s case, the law is a mediating factor that shapes the nature of the relationship between the sovereign state and its citizens. In explaining the relationship between biopower and governmentality, Oksala (2013) invokes the political theory to reinforce how the Canadian law empowers the government to reign sovereignty over its citizens, thus being better placed to make decisions directly impact death and life.

Week 6

                This week’s sessions sought to reiterate how the feminist theory justifies the sovereignty of a state over its territory. Lacey (2004) explains that the antecedents behind the feminist legal scholarship are more diverse compared to the past years. Lacey notes that growth is evident with the evolution and subsequent growth of the feminist legal theory. This theory has transitioned to different degrees across the globe. The change has been necessitated by intellectual movements backed by social theory, political theory, law, anthropology, sociology, and philosophical studies. In North America, Europe, and Australia, the feminist legal theory’s evolution is associated with philosophically inspired legal scholarship classified as critical legal studies. Lacey (2004) observes that the changes have been driven by policy-oriented and political oriented commitments made by feminist writers. These writers have encouraged greater degrees of engagement with material and empirical questions. Unlike non-feminist critical legal theory and literature, this has failed to elicit much support from legal and sociological studies. Lacey reiterates that feminist scholarship has consistently assumed a central place in critical legal studies and within society, law, and sociological movements across many countries. Even as the theory continues to evolve, there have emerged practical and theoretical questions on the dual engagement of feminist scholarships with sociopolitical and philosophical studies over the last decade. These questions have triggered intellectual debates that have explored the contested borderlines of the feminist theory, queer theory, and post-colonialism, as well as the critical race theory.

Surprisingly, feminist scholars have made significant contributions to the debates on the politics of identity and multiculturalism. An important strand of feminist scholarship is drawn from insights collected from the post-structuralism philosophy. This particular strand is used to explain how femininities are often materialized and subsequently enacted within social discourses. Lacey explains that other feminists are uncomfortable with the way feminine identifies are being radically constructed. Therefore, they insist that there is a need for re-engagement with materials on the distribution of resources and allocation of legal and political power. In line with these propositions, the issues of the international movement and its impact on the infringement of human rights for women have become a central topic in developing national and international standards on matters enforced migration and war. The literature by Lacey (2004) creates a connection between feminist legal theory and the sovereignty of countries.

This discussion is reinforced by Naffine (2002), who explains that the advocates of feminism’s achievements have been cumulative and substantial. The author praises legal feminists for their role in enforcing women’s sovereignty by creating supreme authority within the legal feminism sphere. As much as feminists have achieved considerable progress, Naffine notes that intellectual difficulties have marred the progress. Despite these challenges, feminist legal literature has remained intellectually transparent, heightening hopes that this field of study will gain much-needed sovereignty. This situation is unlikely for male scholars writing about male legal projects. The four-part paper by Naffine (2002) begins by suggesting that legal feminism aims to create and propagate a sense of the different ways that gender affects and shapes law. It further explores how the law harms women and proposes changes to the law that can empower women and ensure that they are helped. Naffine also observes that legal feminists continue to remain at the margin of legal scholarship. Still, they continuously strive to participate in legal communities to justify their ideas as intelligible and attract support and intellectual purchase. The second area of concern by Naffine regards the political and intellectual problems that continue to degrade women’s sovereignty. This section questions how women can become deeply involved in championing for greater understanding of feminist legal subjects. Their work in this area seeks to create an understanding of female oppression and female freedom.

The third concern by Naffine (2002) involves understanding a female legal actor and subject’s role. The author explains that feminists are increasingly sensitive to differences between women. They are reluctant to generalize feminine issues. Instead, they want to create a platform where women are not categorized into a single category since such feminist laws would essentialize women and reduce them to a common essence, thus overlooking female diversity. The need to achieve this goal has created partial paralysis of practice and theory. By exploring this range of issues touching on feminist legal theory, Naffine concludes that feminism has not made a big difference to mainstream jurisprudence. As much as they have failed in this regard, they have managed to convincingly demonstrate a failure by the law to protect women’s issues. The struggle to achieve sovereignty on feminine issues has been met with hostility from the legal system, which has failed to make sense of women’s issues. The legal system continues to resist feminism. However, pressing issues such as spousal immunity on matters of marital rape have been revised, and thus, the place of women in modern society has been elevated dramatically. Naffine laments that she is yet to see fundamental reconceptualization of the feminist legal subject. As much as these concerns touch on the sovereignty of women and feminists, the author fails to create a direct relationship between the feminist legal theory and sovereignty. The emerging evidence to support the correlation between the two concepts is rather presented in a scanty manner which makes it hard for the reader to decipher the interrelationship to sovereignty of the state.

In conclusion, this paper justifies Christie’s argument that sovereignty captures the sense of a state’s enjoyment of supreme authority within a territory. The paper draws on three theories taught in weeks 3, 5, and 6 to explain how sovereignty is relevant to understanding Canadian law’s operation. The three theories are Western legal theory, Classical theory of sovereignty, and Feminist legal theory. The western legal theory justifies why Canada has territorial dominance over the Arctic region and why it is warranted to protect its territory. Besides, the sovereignty model reinforces the western legal theory by noting that the Canadian government uses the multi-juridical governance approach to ensure increased flexibility in the administration of Justice. This goal is achieved when the government allows the indigenous communities to be governed using civil, common, and indigenous laws. This practice shows the governments appreciation for sovereignty of the aboriginal communities. In addition, it evidences that the government values diversity thus, allowing the indigenous groups to apply their laws. By doing so, the government creates an environment where its citizens can enjoy their authority and control their localized legal system. The second theory, known as the classical theory of sovereignty by Foucault, explains how the government exercises its power over death and life, thus amounting to sovereignty. The feminist legal theory, on the other hand, explains the struggle by feminists to gain sovereignty status in the legal field. Despite these struggles, the women have not achieved the sovereignty they desire and are still making proposals to change the legal system to assure them of supreme authority on matters that concern their wellness.