La acción negatoria y su procedencia para la reparación de un daño

The five cases of parental resistance previously identified within this thesis all went through what is termed ‘the due processes of the law’. In New Zealand, such processes are based on the judicial system, which is an elaborate refinement of “a means of creating some order in society by the evolution of rules, mores, and customs” (Johnston, 2000, p. 3). As a former British colony and Dominion, many aspects of English law persist, including the Westminster tradition of government, the use of common and statute law, adversarial court proceedings, jury trials and rights protecting the individual from the state. Hence, as is the case in the United Kingdom, the content of the law involves both substantive and procedural elements.

Legal theory and legal process

According to traditional legal doctrine, western law operates within the ideology of positivist legal formalism. This involves the belief that there exists the means to not only rationally categorise every human act, but also the expectation that every individual will meet the requirements of these categorisations themselves. If they will not, they face the consequences as administered by the state through its government and legal representatives according to ‘due legal process’(Ross, 1959). To achieve this, the law not only selects what is rational behaviour (and therefore controllable), but also disciplines those who transgress. Such transgressions are perceived in legal proceedings as an insult not only to the state, but to rationality itself; Legal process is therefore considered to be the best way to supply a reasonably solid set of correct responses to any legal issues, operating from the principle of justice itself.68 This principle presupposes that there exists a universal truth, or at least a rational answer for human acts, and therefore demands absolute and well reasoned objectivity, neutrality and ‘disinterestedness’ in its operation from the police to the judges. The neutral disinterestedness discourse is both powerful and unyielding; it dominates the processes of the law, and may be illustrated in an examination of the diverse ways that laws were, and are created to control individual acts that are perceived to be either irrational or undesirable within society. History is littered with such examples (Foucault, 1980e; Stychin, 1995)69 and all five of the previously noted cases of radical parental resistance were judged by similar perceptions (see Chapter One). Thus, traditional legal theorists argue that legal processes can yield a relatively fixed set of correct answers to legal

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In 1934 the United States Supreme Court held that due legal process is violated “if a practice or rule offends some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental” (Snyder v. Massachusetts, 291 U.S. 97, 105 [1934]).

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One such case (which is now seen as a ‘classic’ account of an enforced response to difference), was that of ‘Herculine Barbin’ (1980f - Introduction by Foucault).

questions based on rationality and established norms or ‘social conventions’ in society. All that is required is that judges are objective, neutral and disinterested in their decision-making.70

Substantive law in New Zealand includes civil laws and criminal laws; procedural law contains procedural rules (as in civil procedures and criminal procedures), and rules of Court (as in High Court rules and District Court rules). Civil law is the system of law that is based mainly on the use of statutes (Acts of Parliament) and uses an ‘inquisitorial’ (the judiciary seeks out the facts rather than dealing with only what is presented at the time) approach rather than an adversarial one, which applies in criminal cases. The judge’s role is to investigate, with lawyers and the police there to assist the judge only. Civil law is mainly concerned with the protection of a person’s private rights. On the other hand, criminal law is largely related to the common law system (i.e. a system where the parties involved present their cases and argue about their merits or otherwise before a judge and/or jury) that uses an adversarial approach. The judge’s role is to deal with what is presented at the time, with lawyers for both the defence and prosecution of the person ‘on trial’. Hence, Criminal law deals with the rights of individuals and society at large. In this thesis, ‘what is presented at the time’ is of pertinent to the discussion, because such material is essentially a collection of stories delivered by different people for sometimes different purposes.

In criminal cases (such as the Moorhead trial), the decisions of a higher court act as a binding authority on lower courts when similar cases are heard in future (but appeals can be made from a lower court to a higher one). In cases involving ‘criminal activities’, and as defined by the State, the present legal system is described as ‘adversarial’. In this system, the parties, and not the judge, have the primary responsibility for defining the issues in a given dispute and for ‘proceeding’ with the dispute. The system is based not only on substantive and procedural law but also on an associated legal culture that has developed over time. The judge’s role is therefore to preside over the activities within the court and to ensure that the proceedings are objective, neutral and ‘disinterested’. In criminal law cases, the defendant is judged by a community of his or her ‘peers’. As may be expected, the legal culture has its own language, ways of proceeding and deliberating. Yet, the very system that is thought to be fair, balanced and ‘just’ will be shown in later discussion to be complex and contradictory.

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As is maintained, for instance, by Kelsen (1967) in his influential text, Pure theory of law. His legal theory is based on the idea of a Grundnorm, a hypothetical norm on which all subsequent levels of a legal system such as ‘simple’ law and constitutional law are based.

Legal discourse

There are a number of post-structuralist challenges to the present use of both legal theory and processes in present day New Zealand society. For instance, the law cannot claim to attain a rational position concerning the ‘truth’ if all knowledge is contingent on social convention (especially through the use of language). As Bourdieu (1984) maintains, each social group will focus on certain ‘rational arguments’ or tenets favourable to their particular group; the law is really whatever the most powerful cultural group in society makes it.71 Those associated with the regulation and disciplinary procedures of the law possess a significant degree of cultural capital, be they law makers or law enforcers. Such a degree of cultural capital within a carefully delineated and controlled field allows legal representatives to not only regulate, but also to constitute the subjects of the law, namely the general populace.72 This applies as much in cases involving parental decision making for their seriously ill children as it would in any other cases. However, there are other pertinent issues surrounding legal discourse that may also have relevance to cases of parental resistance.

Legal discourse has been theorised in diverse ways. In Robert Alexy’s discourse theory of law (1989), some confidence remains in the possibility of reaching just decisions discursively in institutional contexts. Alexy’s legal theory revolves around his Special Case Thesis (‘Sonderfallthese’), according to which legal discourse is a case of unfettered exchange of formal practical arguments, albeit a special one due to institutional, temporal and social constraints. Other theories of legal discourse take an almost appositional stance, arguing that the fundamental assumption that legal discourse is an instance of communication between free, rational, and responsible subjects under the objective conditions set by legal texts and discourses is a fallacy (Pickel, 1997).73

The legal discourses that emerge from within the present system of law in New Zealand in relation to cases of parental resistance reflect the use and promotion of administrative and self- surveilling bio-power (Foucault, 1979). Biopower or ‘bio-technico-power’ was used by Foucault to signify the type of pervasive power networks that supply nationally sanctioned

71 The law may therefore be used to marginalize an entire cultural group, as occurred, for instance in the New Zealand law, when a poll tax was imposed on Chinese immigrants during the nineteenth and early twentieth century. 72 Similar arguments have been raised by legal scholars themselves, such as Kennedy (2004) in a post-modern critique of logico-positivist arguments such as Kelsen’s. He argues that legal education reinforces class, race, and gender inequality in our society.

73 These theories shift the focus from the subject to the means of communication itself, in order to explore the undercurrents of legal discourse and question the entrenched claims of truth and justice raised by the law and supported by analytical legal philosophies. In legal interventions in cases of parental resistance of a more radical nature, it is an examination of the means of communication, i.e. discourses, that reveals such philosophical claims and therefore such legal consequences as occurs in these cases.

regulatory and interventionist control within a modern state. These power networks regulate state subjects through "an explosion of numerous and diverse techniques for achieving the subjugations of bodies and the control of populations" (p.140). Biopower presents as two major elements, which Foucault described as disciplinary and regulatory. Disciplinary biopower serves to define normal and abnormal bodies (as in medicine), and also as a self-regulatory force (as in, for instance, gendered ways of dressing, shaping and moving the body) through self- surveillance. Power networks therefore operate mainly through the use of both forms of disciplinary power (as "an anatomo-politics of the human body") and regulatory controls (as "a biopolitics of the population"). These mechanisms supply the necessary distinctions between anatomical and biological normalcy and unnaturalness, forms of self-regulation, and ‘right or wrong’ behaviours by which individual behaviour may be judged. It is a type of power that creates distinctions between things that privilege oppositional ways of thinking – i.e. male or female, sane or insane, or, to return to the thesis within this study, ‘good parents’ or ‘bad parents’.

The binary distinctions that are prevalent within the use of biopower are preserved in legal discourses on parental resistance, and link directly to medical discourses through a common conduit that is a major pathway for the power of the state itself. This conduit is a direct result of the enduring class structure (that occurs within “structured structures” [Bourdieu, 1977a, p.72]) whereby ‘experts’ of law and medicine combine to influence the behaviours of parents in society. For instance, in most cases of parental resistance towards medical treatments, it is the medical consultants who take a case to court, and it is in court that they give their expert opinions, along with other selected experts from society, and it is within the court that every case is heard and judged by legal experts. It is the opinions of lawyers, expert witnesses and judges that are most authoritative, and a great deal of faith and trust is placed upon the telling, recording and judging of legal narratives. Thus, the power ratio between parents and legal representatives is made even more difficult in these cases where the law already works quite closely with medicine74 because in both disciplines legal regulations are used to enforce changes in parental behaviour.

74 _{Admittedly, there are cases when the law is not an ally for a member of the medical profession (i.e. cases of}

litigation for situations involving medical misadventure or error), but may remain an ally for the medical profession overall (by maintaining its own standards, punishing individual transgressors or impostors who threaten the reputation of the whole profession, etc).

The use of legal regulation to modify (parental) behaviour

Foucault maintained that governance or that of a centralised and expanding type of societal control by government is very closely linked to expert or professional knowledge, which itself connects to the construction of experts, institutions and disciplines. As Cheek (2000, p.27) notes: “This close relationship between power and knowledge can be seen in the connections between modern forms of governance and the discourses of human sciences such as medicine, psychiatry and the law.” There are powerful ways in which the discourses of medicine, psychiatry and the law combine to construct an all embracing and authoritarian disciplinary force aimed at controlling the general population, but in ways that might seem quite acceptable to the public. Such power presents therefore not as raw, unbridled power, but rather as hegemonic but ‘consentual’ power, ‘natural’ rather than forced power, or ‘normal’ and legitimate power rather than seized power. Foucault often highlighted these connections or ‘power networks’ (1972, 1975, 1977, 1979), and explored how they were subtly maintained. One of his main conclusions was that there exists a series of persuasive ‘authorities of delimitation’ (Foucault, 1972, pp. 41-42) that operate through power networks that are themselves connected to the state’s own superstructure, and hence, exist as separate entities but tend to work as one. One of the state’s achievements in this regard is the keeping of records on every citizen, including records of legal decisions concerning the disciplining of its citizens.

Record keeping

In the legal system, the careful recording of ‘the facts’ and the use of previous cases to compare against (and to delimit) the behaviours of those brought before the system is an established practice that is considered to be a reliable guide to legal proceedings; there are numerous instances. Figure 4 (over page) is an example of the process whereby a judge will rationally examine previous cases for examples of similar acts to enable him to formulate a suitable opinion about the degree of seriousness of the case in hand, and to assist in the formulation of an appropriate sentence.

The judge’s report (see Figure 4) demonstrates the use of legal consistency, where previous legal decisions are used to reinforce the present decision, which when cited during proceedings, adds a degree of validity to the findings of the Court. The connection here with medical record keeping is undeniable. Physicians too maintain formulaic and carefully constructed records that serve not only to guide current decisions about a particular patient’s treatment, but to also guide others in doing so, and to act as a reservoir for future reference if needs be. To achieve this, every patient’s ailments must become a part of an identifiable medical problem that can be labelled, categorised and treated in a rational fashion.

Sentencing of L and his wife on a conviction that without lawful excuse L and his wife neglected to observe the legal duty of parents to provide necessaries for their child thereby endangering the life of that child; the child was diagnosed with bone cancer; it was made clear that if the child did not receive treatment he would die; the child did die six months later; the tumor on the child's leg was by then huge and was discharging onto a sheet;

Held, the appropriate course is to impose a sentence of imprisonment, but to suspend the sentence pursuant to s 21A Criminal Justice Act 1985; there are special circumstances which justified the imposition of the suspended sentence; the risk of re-offending is nil or minimal; alternative penalties such as periodic detention and community service would not be appropriate; sentence imposed of 15 months' imprisonment suspended for 15 months; further supervision for 15 months to enable L to have assistance of objective help in what will be a difficult period for them.

Statutes: Criminal Justice Act 1985 s 5, s 21A; Crimes Act 1961 s 152 Cases cited: R v Albury-Thomson, (1998) 16 CRNZ 79 referred to.

R v Hartland, 30 September 1982, Court of Appeal (NZ), CA175/82 referred to R v Vaughan, 12 March 1999, Robertson J, High Court – Auckland, T121/98 referred to R v Griffen, 28 November 1990, Savage J, High Court – Wellington, T109/110/90 referred to R v Moore, [1954] NZLR 893 referred to R v Petersen; R v Peterson; Alt cit R v Brown; Alt cit R v Parker; Alt sp Peterson, (1994) 11 CRNZ 228; [1994] 2 NZLR 533; [1994] 2 NZLR 553 referred to.

Figure 4: Legal record keeping: R v Laufau 2 October 2000, High Court, Auckland; Judge J. Potter; T000759; Not Reported [2001] NZLJ 82; Criminal justice.

According to Foucault (1975), record-keeping about ‘diseased individuals’ in individual hospitals led to comparative investigations of hospital records and hence to the awareness on the part of doctors and others that there were disease populations. In this regard, medical records are a summation of a rational process to identify and ‘problematise’ every disease. In a comparable fashion, the law repeats a similar exercise. Through very particular and detailed record keeping, it may be argued that the law not only problematises certain cases of parental resistance, but provides detailed records for others within law to follow in similar cases. As legal discourses in this field tend to operate as normalising practices, it follows that in cases of radical parental resistance (i.e. that appear before a court of law), normalising practices problematise parental resistance, destabilizing it as human difficulties, and reordering it in order to be universalised through expert legal knowledges.

In such a fashion, mundane but highly systematic techniques of writing, registering and recording the details of every individual case eventually yielded epistemological returns, i.e. by turning a case into ‘cases’, or elements in series, that could be noted, listed, recalled and subjected to practices of ‘optimisation’. In Bourdieusian terms, record keeping takes on even greater social significance, because such practices also act to maintain cultural capital inasmuch as it reinforces the views of the professional classes involved in the formation and maintenance of order through the use of state legislature. Such structural control over social space and activities therefore defines the principle of their rule (Bourdieu, 1984). However, in the case of record keeping and the use of legal regulations to modify behaviour, it is not so much a matter of overall societal control, but of categorised identity and roles as well.

Legal narratives

Stories are always about memory, and subsequently there is tension between the event as it happened (which can never be recovered under normal circumstances) and the process of telling the story. Such tension exists within the telling of stories within legal contexts such as legal/courtroom cases. In criminal law, stories are told in a certain fashion; that is, the story told by the defence nearly always varies considerably from that told by the prosecution. Similarly, stories offered by witnesses of ‘the event’, and by ‘the accused’ are often quite different (sometimes wildly so). Such stories therefore represent multiple retellings of what is considered to be the same reality for all observers, and are therefore aimed at getting to the underlying ‘truth’. If stories are ways of knowing (i.e. providing an epistemological foundation), and also ways of being (because the ontological ‘self’ is embedded within such stories), then it becomes very important for each story teller to be believed and ‘sanctioned’ by the court; yet this can never be entirely possible. Instead, what becomes important is which stories take precedence