Social Deviance and Law: A Comparative Analysis Between Mexico and the United States.
Lorena Martínez Alvarez
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Understanding “Hard” and “Soft” Law . . . . . . . . . . . . . 3
Relationship Between Morality, Social Perception of Reality and the Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
The Decriminalization of Laws: A comparative Analysis on Abortion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
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ABSTRACT
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Criminal Law and Social Deviance: A Comparative Analysis Between Mexico and the United States.
Introduction
The aim of this paper is primarily to analyze the existing social opinion with regards to “soft” and “hard” law through a cross-cultural perspective between the United States and Mexico. Addressing the gap that today exists between public beliefs and law regarding deviance is crucial, there is a growing need to identify it and learn how it can be measured. Finding a broad consensus or discrepancies across countries with regards to how laws influence individuals or how is it that the collective public opinion impacts laws is essential to our analysis. This will allow us to better understand the concept of universal factors that influence and shape, to certain extent, a nation´s legal frame.
Over time it has been proven that whenever laws and public opinion are not aligned these become particularly damaging to the image and effectiveness of the legal system, specially of criminal law. An important matter that will be particularly discussed throughout this paper is the interaction between social opinion and the content of criminal law in both countries, they each count with a different system of law, however there is a broad conclusion that may be drawn that suggests that in each of these countries there are several laws that are not fully enforced due to common factors. What has become every time more evident is the fact that the liberalization of societies’ values has led to the decriminalization of various crimes such as: abortion, which has been decriminalized in various states in both Mexico and the United States. This can lead us to believe that in fact law, and more particularly, criminal law does change to the extend public opinion does, and it will be these paper´s purpose to demonstrate that claim.
Understanding “Hard” and “Soft” Law
I will start the analysis by giving a detail explanation of what “soft” and “hard” laws represent, and the impact they have in society and the legal system. “Soft law” is a concept which has various definitions ranging from more narrow ones to very broad ones, and these seem to include most types of rules. Kenneth Abbott and Duncan Snidalin, in their paper titled Hard and Soft Law in Governance, describe soft law as a type of law that in certain senses derives from fundamental aspects of a real law or “hard law” , which is an important deviation, given the fact that soft law is not legally binding. The concept of linking hard and soft law, at first glance, seems to be related to those who do not comply with the rules and their opportunity to avoid compliance, but in fact the concept is used to describe the situation and activities of those who aim at establishing social rules. Soft law is issued by those who abide by rules and have no legitimate authority to create legally binding rules, or even by those who have such authority but choose to not exercise it. On the other hand, hard law can be describes as the tools or general practices of mandatory nature which´s compliance can be demanded through institutional means of legal enforceability and ultimately fall under the State´s responsibility.
The Third Collegiate Court of the Twenty-Seventh Circuit of the Mexican Republic, issued a court resolution (Amparo en revision 215/2014) regarding soft law on human rights which was published in 2015 . It´s thesis, XXVII.3o.6 CS (10a.), explains the notion of “soft law” by contrasting it with that of “hard law”, highlighting the non-binding nature of the first, as opposed to the obligation of the second. It describes soft law as a series of “non-binding principles and practices of international law provided through instruments, declarations, proclamations, uniform norms, guidelines and recommendations accepted by the majority of States”. The aforementioned court establishes in a clear and forceful manner that, although the Mexican State has the duty to observe the mandatory norms of an international source (as determined by article 1 of the Political Constitution of the United Mexican States), as well as the jurisprudence of the inter-American law, the development and the application of soft norms “must be admitted” within the legal frame work. Through the Mexican´s court analysis we can understand the presence and importance that soft law holds in face of legal binding laws. The influence of these rules which have been socially constructed has surpassed their status of a “social convention” and become part of a countries legal framework.
Relationship Between Morality, Social Perception of Reality and the Law
There is an important distinction to be made between the rules perceived as a legal mandate and the rules perceived as social ordinance, from an analytical point of view such distinction has become particularly difficult to make, especially from a practical perspective. Such difficulty involves the combination of three regulatory systems: the legal, the moral and the social system. Each of these regulatory systems counts with a specific sanction “strategy”, weather it is the fault to the moral rule, the strictly speaking sanction to the legal system or the shame to the cultural/social norms.
The word norm evokes at least two different meanings: on the one hand, it refers to an obligatory behavior, a proper line of conduct and, on the other hand, it refers to something that occurs with a certain regularity, something that is normal. In the first sense, the emphasis is placed on the requirement that things conform to an established parameter, in the second, the emphasis is made on normality, on recurrence. The first sense is mostly used in law and morality, while the second is more common in sociology. This ambiguity between what happens (what is) and what should happen (should be) is the origin of multiple explorations and debates about the concept of norm. Now, although the distinction between the norm as a legal mandate and the norm as social regularity is analytically clear, in practice things are more difficult. Thus, for example, in the world of Law, it has been discussed for a long time whether the rules are simply prescriptions given by the competent authority or are, in addition, postulates about what is fair. The theorists that support the first of these positions – known as legal positivism – consider that the essence of the Law is in the sanction, it is in the capacity of the state´s coercive apparatus to impose the proper behavior. The supporters of the second position – the natural law – consider that the essence of Law is in the correspondence between the norm (must be) and a sense of justice, natural or rational, that exists in the social reality (being). While positivist theories of law see the norm as a duty to be independent of being, the later establish a certain connection between being (natural justice) and the duty to be (norm). But even the supporters of the positive law are forced to accept that there is something of facticity, that is to say of something of fact, in the ought to be of a norm. Even in Hans Kelsen’s famous Pure Theory of Law, supposedly a Theory of Law understood as pure must be the fundamental norm itself, from which the entire legal system originates, presupposes the efficacy of Law. This is even more evident in Herbert Hart’s version of that fundamental rule, which in his case is called the Rule of Recognition. According to this author, “a person who makes an internal statement regarding the validity of a particular rule of a system presupposes the truth of the external factual statement that the system is generally effective”. The individual perception that the norm that demands obedience is something not only accepted by the group but something generally obeyed is, in Law Theory this is a necessary condition for legal norms to be considered valid norms.
On the other hand, from the sociological point of view, social norms are more than just regularity. In social theory, the social norm is not confused with mere custom. The fact that, for example, people go to the movies once a week or have tea in the afternoon does not mean that there is a social norm that makes such behaviors mandatory. For a social norm to exist, a hostile reaction is required to be triggered by the person who deviates from the established behavior. For example, it is usual in many countries for people to stand up when they hear the national anthem. That is a custom and a regularity but it is also something more than that, it is a norm that imposes a certain way of behaving and therefore entails a social reproach towards those who do not follow the norm. Social regularities that become mandatory are very frequent in society and that is why the image, generally propagated by jurists, that almost all social regulation comes from explicit norms in codes, created and promulgated by competent authorities, must be avoided. Social regular actions cannot always be explained, neither as the result of obedience to the rules, nor as simple causality.
As mention before, there are three regulatory systems converging in social life: legal, moral and social. In practice, the three systems have strong connections. A good part of the morality that predominates in a society is incorporated in the Law. This is evident not only in the kind of moral wisdom accumulated in law throughout history, but also in the simple observation that a good part of what morality condemns, the law also condemns . If the primary aim is to achieve a well-ordered society, it is important to question which type of relationship must exist between these three normative orders. The former mayor of Bogotá, Antanas Mockus, an expert in civic culture, answers this question by saying that there should be “harmony” between these three regulatory systems. The harmony between law, morality and culture is usually present in well-ordered and socially homogeneous societies, with low levels of conflict and clear conflict resolution mechanisms. Living together, says former mayor Mockus, is “letting yourself be regulated by law, morality and culture …”. Whoever manages to move without contradictions between these three systems, says Mockus, is a “cultural amphibian”; in other words, a person who helps reduce the tensions between modern societies, lovers of cultural diversity and pluralism. From this we can fall into the understanding that a good citizen must pass, like amphibians, from one level of regulation to another without difficulties and in this way promote a conciliatory attitude between the Law and the social world. When there is harmony between law, morality and culture, says Mockus, the culture of legality flourishes. In other words, when illegal behavior is morally and culturally disapproved, the culture of legality thrives. There is a genuine concern about the divorce between morality and custom on the one hand, and Law on the other.
Although from the point of view of public policies, from the point of view of the mayor, for example, the search for harmony seems appropriate, from the point of view of the individual who acts in public space, the civic or citizen attitude must consist of subordinating morals and social norms in favor of compliance with legal norms. This happens when, for example, someone who considers homosexuality to be immoral is obliged to respect homosexual practices at work or in public space. In that case, harmony between their moral convictions and the law should not be sought, but rather their subordination to it. The reasons why a person complies with a standard cannot be very different, but it is possible that they obey different regulatory systems. Someone can disobey a legal norm because they act in compliance with a social norm or a moral norm, or vice versa. For example, there are drivers who do not run red lights because they are ashamed, not because they are afraid of being penalized. In this case, the driver abides by the legal norm not because of the norm itself, but due to obedience to another norm, a social norm according to which it is frowned upon to run a red light. That same person would run the red light if he or she were alone and that is because he or she has no way of feeling shame in front of others, which is precisely what dissuades him or hre from not complying. Something similar can happen when a person obeys a legal norm as means of avoiding the feeling of guilt, not to avoid punishment, although this may be less frequent. It can also happen that a person complies with a social norm, for example, not littering in the street, because he or she fears that they will impose a fine, but when he or she learns that such a fine does not exist, he or she does not comply without hesitation. This pattern of behavior does seem to be very common.
A society works best when the sanctions of the three normative systems are effective. It has been proven that in developed countries such as the United Sates, countries where the levels of non-compliance with the rules are low, many people comply with the law because they are ashamed, not because they fear that they will be sanctioned. The abundance of scoundrels in a society is always a problem; a problem that must be compensated with a greater effectiveness of the legal sanction, without this implying falling into the situation of the police or totalitarian states, where almost all obey for fear of being sanctioned. A public policy to improve the levels of non-compliance should seek to improve the legal sanction, on the one hand, and on the other, the civic culture aimed at improving the levels of social sanction. For this reason, the issue of impunity is not only an important issue when it comes to legal and especially criminal norms, but also an important issue when it comes to social norms. A great part of the breach of rules that regulate daily life in the city, for example traffic regulations, is supported by the fact that noncompliants do not receive any social reproach; they act with total impunity.
The Decriminalization of Laws: A comparative Analysis on Abortion
It has become crucial to question the content of the criminal laws through the analysis of the appropriate mechanisms for reducing legislative inflation, such as resources that simplify and decriminalize, while defining the creation of a criminal norm. Within the framework of the main measures leading to the reform of fundamentals of Criminal Law and the administration of justice that ensures that a criminal sanction can well be avoided where it is not affecting vital conditions of social coexistence, and guaranteeing that the individual freedom will only be affected when necessary. This is how the object of knowledge constitutes the guidelines that the Legislator must follow in terms of delimitation of what is punishable. For this reason, such work and legislative changes are particularly studied, they shape the right to social life through the inclusion or exclusion of normative content in the criminal legal framework.
There are criminal regulations that do not always make sense in the social world, we shall consider that the strategy of the process of criminalization should mean directing the mechanisms of the institutional reaction towards the most serious crimes, turn the focus towards the most valuable interests. The strategy of the process of decriminalization supposes the replacement of criminal laws by non-stigmatizing forms: a widening of social acceptance. Reason why it is part of the framework of those studies which seek alternative legislative options on the content of future criminal norms within a legal system that precisely makes sense in the social world, having respect for individual freedoms as its core. Having said the above we will start the analysis of specific crimes such as abortion which has little by little gained both social and legal acceptance, to the point of decriminalization, in both Mexico and the United States.
Although from a cultural perspective, attempted or consensual abortion was constructed as a crime, humanist efforts, especially during the second half of the 20th century, have been fighting throughout the world, considering women´s rights, in an attempt to decriminalize this social practice. However, in realities such as in Latin America, for the purpose of this paper, particularly in Mexico, given the cultural syncretism with a southern Europe radically defending morality and the practice of Renaissance Catholicism, the reactions of conservatism identifies with the country’s political right, which also declares itself Catholic. Political parties have promoted legislative modifications in the entities where they govern to keep abortion under the punitive threat. Despite this, in April 2007, the Legislative Assembly of Mexico City approved a reform to the Criminal Code that introduces in Mexico City the system of deadlines regarding abortion. This decriminalization is the only one of its kind in Latin America, where the Catholic Church continues to be the main obstacle for women to legally terminate unwanted pregnancies. Only in two countries –Cuba and Guyana–, in addition to Puerto Rico, is this practice fully guaranteed. Perhaps the most striking thing about the Latin American situation is the fact that even in societies with democratic and leftist governments it has been impossible to decriminalize abortion. With this panorama, how was it possible that in a predominantly Catholic society like Mexico’s, the hegemony of the Church on this issue was fractured? Three elements were decisive: the professional work of feminist groups, the triumph of the Party of the Democratic Revolution (PRD) in Mexico City which supported abortion, and the post-electoral polarization.
Given the certainty that the opposing groups would file an action of unconstitutionality, the strategy sought not to risk previous achievements. After an arduous work of analysis and debate to reconcile the initiatives and considering the precedent of the Supreme Court on the matter, the United Commissions approved, by majority vote of their members, the ruling that proposed the decriminalization of abortion in the following terms:
1) Re-formulation of the criminal legal definition of abortion: “Abortion is the interruption of pregnancy after the twelfth week of gestation.” Therefore, abortion can only be penalized after the 13th week of gestation, consensual or attempted abortions within the first 12 weeks of gestation being legal (article 144 of Mexico City´s Criminal Code, CPDF).
2) Defining pregnancy, for the purposes of the Criminal Code, as “the part of the human reproduction process that begins with the implantation of the embryo in the endometrium.” With this, the legality of post-coital contraceptive methods, such as emergency contraception (article 144 CPDF), is endorsed.
3) Reduction of the penalties for women who have had an abortion (article 145 CPDF) and the protection of women who were forced to abort. The figure of “forced
abortion” was established, which is defined as “the termination of pregnancy, at any time, without the consent of the pregnant woman” (article 146 CPDF).
4) Reform of the Mexico City´s Health Law (LSDF) to offer counseling and support services (pre- and post-abortion) and provide objective information to women who request the legal interruption of pregnancy (article 16 bis 8 LSDF).
The legal framework of Mexico City serves as reference to continue advancing in the recognition of abortion as a reproductive right in the rest of the states. Decriminalization represents another step in the effort to reduce maternal mortality caused by unsafe abortion and is essential to counteract the social injustice that this practice implies. In addition to being an important recognition of women’s reproductive freedom and their fundamental rights, it is consistent with the secular nature of the Mexican State, which respects ideological diversity and recognizes people’s freedom of conscience. Finally, it is a reform consistent with the opinion of Mexican society, as reflected in various surveys.
The United States´ rode to decriminalization of abortion seems to be chronologically opposite to that of Mexico. It seems that today, in the United States, the decriminalization of abortion is regressing rather than progressing. In the United States, the right to abortion is legislated on a federal level. However, each state has the power to regulate when abortion is a crime. Up until today, six states have issued laws that aim to create obstacles to the practice of an abortion, while other seven states already have extremely restrictive laws prohibiting abortion. These laws are known as heartbeat laws, given that they prohibit abortion once the heartbeat of the fetus has been detected.
The criminalization of abortion in the United States started after its independence from the UK, various states decided to adopt the Anglo-Saxon Law. This legal system did not allow abortion after there was evidence of the movement of the fetus. Criminalization of abortion gained momentum in the first decades of the twentieth century with an increase of moralistic claims. By 1900 abortion was considered a crime in every state in the United States. These circumstances, caused the increase of private clandestine clinics that offered abortion practices but to a high risk to women´s health. By the end of the 70s, thirty states fully prohibited abortion, sixteen prohibited it but with some special exceptions and only four fully accepted it. Given the lack of cohesion and agreement among states, in 1973, the Supreme Court, in the Roe v Wade case, recognizes abortion as a fundamental right. The court´s reasoning was that an abortion classified as part of the right to privacy, protected by the due process clause from the fourth amendment of the US Constitution. This case managed to nullify all federal and state laws that restricted abortion and established guidelines that all states must follow.
The essence and fundamental principles of Roe v Wade continue intact and the right to abortion holds its status as a decriminalized act. However, in recent years, new magistrates following a more conservative line of social ideologies have been appointed to the Supreme Court, which makes the annulment of the Roe v Wade decision easier, thus achieving a possible ban on abortion at a federal level. It is important to notice that legislators are profoundly influenced by personal social standards and ideologies, in this case conservative ideologies, and this fact plays a crucial role in determining the criminalization of controversial acts such as abortion.
Conclusion
A society is based on both public debate and communication, it encourages individuals to participate in a symbolic language involving different interpretations of the human psyche and individual beliefs, which helps create a societies’ identity and sense of tolerance necessary to coexist. These individual opinions, collectively, participate in the law creation process, as much as any other cultural process, in such way that it provides laws with purpose and social validation. Public opinion constitutes in today’s societies a mirror in which most institutions look to establish their lines of action. This is also the case with criminal justice, always questioned by a public opinion suspicious of its actions. Today more than ever, justice must have the approval of citizens’ feelings that are expressed in public opinion.
Law and its evolution cannot be studied as an aseptic and autonomous field, independent from a societies culture, religious background and political circumstances. This would imply falling into the utopian idea, heir to nineteenth-century liberalism, that legislation emanates solely from the will of the people or solely from the will of the state. Laws arise from the context and experiences, beliefs and interests of a collective society, and respond to their interpretation of social problems and their criminal and criminological ideas. Thus, the socio-political framework and the ideological environment constantly weigh on each other.
Therefore, we can consider that the law or legal change can be understood, mainly, from the interaction between two factors: on the one hand, changes or demands at the political or social levels (such as the regrouping of political factions or interests group, new demands in the prevention or control of crime or changes in criminal patterns); on the other hand, the transformations or adjustments in the conceptions of crime, justice and punishment (mainly by the legislators of the law).These factors affect each other and in various ways. For example, new criminal practices may require changes in the law, just as new laws may modify criminal patterns or influence the behavior of individuals. Therefore, it is not possible to fall into a simplistic explanation. However, I believe that only an analysis of the character of the codes and above all, of the interaction between sociopolitical changes and ideas and theories in their expedition and reform, will allow us to fully understand them, as well as understand their purposes and scope of reach.
One of the most serious problems a country´s legal framework faces today is achieving a perfect balance between freedom and punitive repression of certain behaviors, while also takin into account the collective social opinion. Ideally laws should never be used to defend moral, religious or ideological principles of specific sectors of society, however, in practice, these are factors that often influence the legal framework. Law is a social science affected by various factors, everything that surrounds it influences its outcome. Finally, it is important to mention that the decriminalization of crimes does not always stand for progress, the criminalization of certain actions which have yet to be typified by the law is equally important. A country´s legal code or precedents are made up of prohibitions of certain actions which attempt to safeguard societies’ fundamental rights and protection. Although influenced by factors such as culture, religion or shifting social opinions, the legal frame primary interest shall always be the protection of individuals.
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