Foucauldian conceptions of power present a challenge to legal academics and practitioners who seek to achieve social transformation through the reform of legal rules. The idea that power does not emanate from the state, that it circulates throughout society and is exercised at a micro level, and the concepts of governmentality and the production of knowledge, all suggest that institutional structures may be resistant to change through law reform. Recent responses in Canada to the issue of wrongful conviction bring this issue into sharp focus. Inquiries into wrongful convictions have identified various institutional practices that always shape outcomes in criminal prosecutions, but only become visible when the system is perceived to have failed. Legal practitioners and academics tend to propose additional layers of accountability, and changes to the structure provided by legal rules, as a means of addressing the problem. But is it realistic to imagine that the law can provide answers to such heinous failures of a system that is already very rule-bound, and which already contains many layers and mechanisms of accountability? Do we instead require a more nuanced understanding of the law as a site of power among many other sites in order to effect social change? In this paper I will consider wrongful convictions with respect to the law and its relationship to other disciplines, and how a better understanding of that relationship may lead to a better understanding the role of law in society.
|Keywords:||Criminal Law, Wrongful Conviction, Social Theory|
Assistant Professor, Department of Law, Carleton University, Ottawa, Ontario, Canada
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