Analytical Usefulness To The Social Control Concept example essay topic

Lawmaking is a complicated, complex and comprehensive process which involves the locating, focusing and directing of social control. There are strong theories about the essence of social control. Some sociologists have even concluded that social control as a concept should be discarded totally because its power as an analytical tool was weakened through an unhealthy combination of overuse and under-explanation. As Chunn and Gavigan point out, it is not sufficient to use social control as an analytic tool when one begins with the approach that (1) either the meaning of the concept is too obvious to need definition or (2) the concept is undefinable but can be used without being defined. For the purposes of this study, an attempt will be made to examine the dialectical relationship between legal power and social control using the Hudson's Bay Company's monolithic jurisdiction over a large part of North America.

The period under study is from the Company's chartering in 1670 until 1821, when a new regulatory act was passed. An examination of the legal system which was operative in the late 17th and entire 18th century in Rupert's Land offers insight into the roots of the Canadian legal process. In spite of the corporate nature of the Company-run Rupert's Land, I believe that a close study of legal questions, cases and decisions that arose during the Company's first one hundred and fifty years will indicate that all the social control mechanisms were not in the Company's hands. Rather a synergy between the Company and the frontiers people determined the nature of the laws. To cope with the above-mentioned difficulties in using social control as an analytical tool, I plan to use the conceptual theme of social controls suggested by Russell Smandych. Smandych's approach returns analytical usefulness to the social control concept.

He examines the layers, levels, nuances, and threads of social control that both define and confine behavior. He takes social control analysis a necessary extra step by recognizing that it is not an entirety in and of itself but that it is a collection of controls, each operating at a different level. And rather than using the controls found in a society as explanations of that society, Smandych recommends using the possibility of these controls as analytical devices for restudying and rethinking a society. The Hudson's Bay Company was entitled to handle all law making, enforcement, and execution from 1670 until 1870.

Because the Hudson's Bay Company was working with a tabula rasa (especially as it did not give consideration to aboriginal laws), judicially speaking, it offers a prime example for viewing the development of law from step one. This proposed examination of the development of law from Hudson's Bay Company's incorporation in 1670 until 1821, when it was amalgamated with the North-West Fur Company, should illuminate the structure of power. There are extensive Company records of these conflicts which will yield the raw data from which insights into the power structure, perceived and real, can be drawn. Following the amalgamation in 1821 and the increasing settlement of Rupert's Land, the study becomes too unwieldy for a limited examination because of the rapidly changing and evolving legal system.

LAW AND SOCIAL CONTROL Most social control theories and paradigms can be traced back to two basic themes, one ideological and one materialistic, or Durkheimian and Marxist. Ideologists look to the members of society and their inherent values as the fundamental mechanism of social control. Materialists tend to look to the economic forces as being the power behind social control. Considering the theory that social control results from the norms and values of a society and that law is a socially organized action of 'discursively produced and reproduced control forms', an understanding of these control forms can be gained by studying 'the conceptual links and divisions' through which they are constituted. Henry examined non-state systems for social control, 'private justice', in various institutions and tried to capture the links between company / corporate justice and 'the more formalized state legal order' by examining discourse in industrial discipline. According to Henry, each society is comprised of a plurality of legal orders and subsystems which exercise control over the people within the attendant control form.

The 'private justice' of these control forms does not necessarily coincide with the public justice of the state-determined law. Richard Quinney typifies the materialistic, Marxist theory that power, being unequally distributed in society, goes to those who hold the purse strings and in an effort to protect their stake in society, these elite define crime usually as that which threatens them or their status. Still in the same Marxist vein, William Chambliss is somewhat more modified than Quinney, melding Quinney's ruling class theory with the Durkheimian societal consensus theory which views the laws of a society as an outgrowth of the norm and values of the members of the society. Chambliss sees 'law creation as a process aimed at the resolution of contradictions, conflicts and dilemmas which are inherent in the structure of a particular historical period. ' It is a sort of tango between the elite of the power structure and the societal mass membership. SOCIAL CONTROL Social control, whether imposed or self-generated, was the main thrust of justice study for the first four decades of the twentieth century until the Chicago School evolved the disorganization and fragmentation approach which was followed by the functionalist approach in the 1940's and 50's.

The societal reaction theory (pluralist or labelling) predominated until the 1970's. The new sociology of social control is based on the notion that society's social control mechanisms 'form a coherent whole' with principles that change over time. The threads of this emerging new sociology of social control are best exemplified in the revisionist work of Michel Foucault, David Rothman and Andrew Scull as they try to place social control in the larger sociological picture by answering questions on the impact of state, economy and ideology on social control, how and why some actions, attributes and actors become subject to social control, the ways in which the social control translators (police, social workers, etc.) control and are controlled by the deviants, the savoir / relationship and the constancy and change in social control functions and mechanisms. David Rothman claims that changes in methods of social control in 19th century North America came about as response to larger changes in society, in this case the newly emerged U.S.A. In the would-be perfect society, where all men were born equal, even the deviant could be rescued through retraining in asylums. The view of American society at large was that environment could reshape one's behavior; it was simply a matter of setting up the appropriate model institution wherein those who deviated from society could be retrained. Andrew Scull agrees with Rothman in that changes in social control are a response to larger changes in society; however, in Scull's view the larger changes are typically economic ones.

Specifically, Scull examined the segregation of the insane from the larger population and traced this change in 18th century England to the change in society's view of its economic power and mechanisms. Productivity was all. Those who were non-productive were merely removed from society at large. This ensured that the lazy did not take advantage of the system and that those who could follow society's rules, did.

Those who could not were institutionalized. Michel Foucault's dispersed control concept goes beyond the notions of Rothman and Scull, suggesting that social control is not a response to or result of larger changes in society but a cumulative effect of numerous smaller, diversified pressures. Social control is not held by a single ruling entity but becomes through the process of socialization, dispersed throughout a society in general. SMANDYCH'S CONCEPTUAL THEME Smandych moves beyond the revisionists' theory of social control. He notes that there have been attempts at formulating a general theory of social control. The flaw is that these attempts have usually been at trying to come up with the final explanation, the holistic concept called social control.

He has worked out a complicated scheme of multiple controls. Looking at the redefinitions of social control offered by Cohen, Davis and Anderson and Mayer, Smandych broadens the framework to include non-state institutions as well as the traditional state institutions and then moves beyond that. Smandych's framework encompasses five modes of control, empirically linked but separated by the degree and source of coercive ness involved. What he proposes is that the focus be switched from the study of social control to the study of the phenomena of controls.

The modes of control are coercive, such as state supported institutions; semi-coercive such as charity organizations which are voluntarily entered but which once entered are highly controlling; associative controls such as institutions that appeal to a desire already in the individual; self-regulatory controls (such as the internalized fear that we will make fools of ourselves); and ideological controls, such as those concepts which we absorb, often unaware of their absorption, through general socialization. There is a descending order of external control involved as one explores the modes moving from coercive to ideological. Unlike the revisionists mentioned above, Smandych is not presenting his scheme as a suggested explanation of how or why social control operates in society. Rather, he is offering this scheme as an heuristic device for the historical study of social control.

THE HUDSON'S BAY COMPANY In his 1984 thesis, Larry Bakken addresses the response of the early Canadian courts to the needs of the settlers. The geographical area under discussion, known as Rupert's Land, was comprised of all the area that drained into Hudson Bay. Complete territorial and jurisdictional authority over this area and its inhabitants was granted to the Hudson's Bay Company on May 2, 1670. The authority granted was all-inclusive, from the appointment of all officers, including the governor, to making any and all such laws, constitutions, order and ordinances as 'deemed necessary for the good government of colonies, forts, plantations, etc. ' The only restriction was that the laws 'were as near as may be agreeable to the laws of England. ' As Rupert's Land developed, the careful dynamics between the private and public aspects of its society began to fragment.

The Hudson's Bay Company needed a more formal structure for maintaining and protecting its commercial interests and the community increasingly wanted a 'more traditional legal administration as a means of curbing the Company's authority. ' By 1811, the first colony was established on the Red River. In 1815, the Hudson's Bay Company published its first penal law code which was primarily aimed at protecting the Company's interest in the fur trade and applied only to the Company's employees. With the first real colony and active settlement thereof, conflicts developed between the settlers and the North-West Fur Trade Company resulting in the killing of the colony's governor, Richard Semple, at the Massacre of Seven Oaks in 1816. Such an action clearly threatened the hitherto peaceful (at least from a Home Office point of view) enterprise in Rupert's Land and prompted 'An Act for Regulating the Fur Trade, and Establishing a Criminal and Civil Jurisdiction within Certain Parts of North America' in 1821.

This was basically a rewrite of the 1803 Canada Jurisdiction Act, which had been passed by the British government. The 1803 Act enabled the Upper and Lower Canadian courts to bring to trial and punish people in the Indian territories outside the boundaries of Upper and Lower Canada. In essence, this gave Upper and Lower Canada jurisdiction over Rupert's Land The 1821 Act returned the Hudson's Bay Company's total legal power within the boundaries of Rupert's Land. The Company was run very much the same way as the Royal Navy was. There were Company flags on ships and stores, dress codes which varied according to rank and the naming of trading posts as 'Forts'. The ranking order was specific, with nine gradations: labourer, apprentice, craftsman, guides / interpreters, postmasters, apprentice clerks, clerks, chief traders and factors.

The society in itself seemed regimented but in spite of the apparent grip the Hudson's Bay Company had on the people of Rupert's Land, the land was wild, unsettled and its inhabitants were typically of an entrepreneurial spirit. The Forts were scattered, small and isolated. In keeping with its Royal Navy similarity, the Hudson's Bay Company had the chief factor, or governor, of each fort keep a running log of the activities of the fort and these were sent to the head office in London yearly. DATA ORGANIZATION Using the yearly logs and other documents in the extensive Hudson's Bay Archives in Winnipeg, I would isolate the following independent variables: the crime type, the crime victim (Hudson's Bay Company or individual; if an individual, his / her rank / status ), the criminal's ethnicity, the trial venue, the factor, the year, pre-existing law, post-trial law (i. e., were the rules made on an ad hoc basis as each new type of crime occurred). The dependent variable is the punishment meted out -- did the severity of the punishment vary from case to case and over time. A rating scheme for the punishments will be devised on a scale of 1 to 10.

Such organization might allow me to see what aspects alter the carrying out of justice, as seen in the punishment in relation to the crime. Since the Hudson's Bay Company's set-up was rigidly regimented, variations might indicate what other social control mechanisms were operative. It is hoped that Smandych's five modes of social control will all apply to some degree to the findings. Although the more coercive controls will be more easily identified, I also hope to find evidence of the pressures of the church, the pressures of expectations to be a rough and ready frontiersman, the pressures to achieve some sort of personal satisfaction. THE CASES The cases are to be selected from the records of each fort during the period between 1670 and 1821. Should, however, this turn out to be prohibitive from the perspective of time, cases from the larger forts will be examined.

An alternative possibility is to examine only certain types of cases but it seems reasonable to assume at this point that most of the crimes involved problems with misappropriation of furs. Cases other than fur stealing or illegal trading may be rare but should be examined for they offer a different set of expectations. For instance, would one be more apt to be punished severely for stealing furs or assaulting and battering someone? A case will consist of a full trial, however rudimentary the court system may have been. That is, a case will be those actions involving an arrest, trial and resolution (conviction or non-conviction) held at the behest of the Hudson's Bay Company, between 1670 and 1821, and held on Hudson's Bay Company property.

The Company did have the jurisdictional ability to send the accused to England for trial. While such cases will be noted, they will not be included in the analysis. DATA PRODUCTION The most attractive aspect of this particular historical research project is that the records do exist and are probably as complete as any records from the seventeenth and eighteenth centuries. With the list of variables above mentioned, I plan to draw up a series of forms to be filled in as I proceed (See Appendix 1).

Initially, a few miscellaneous categories will be available in the eventuality some unexpected variable presents itself -- religion? Age? The least attractive aspect of this kind of research is that loss of control over the actual data collected. I anticipate changes in the quality of data from Fort to Fort and from year to year due to the variability in the chief factors' reportage. To offset this, however, there are often glimpses into the incident that are rich in detail -- personal observations on those involved, the crime itself and sometimes the proceedings.

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