In law, there is a separation between statues implemented by lawmakers and the parties that are affected by said statues. This is based on a disconnect between the legislative branch and the judicial branch within government. This separates intention from practicality. The effect of such resulting in a need to examine the enforceability of laws that depend on the decisions of judicial officers, who determine the meaning of statues within legislative frameworks. This is why one of the most imperative problems found in Human Rights law in socio-legal studies is the gap between codified principles of rights (law in the books) and the enforcement of law (law in action). For the effectiveness of law depends upon things such as a stable society, moral improvement, and conformity. Three things that shall be analyzed in this essay. This will be done with an analysis of the framework for matters that involve the enforcement of public policy, morality, and public order. This will show that a legal system can only be effective if it is useful in the accomplishment of its’ determined goal and will be proven through three paragraphs found in the body. The first paragraph shall examine the relationship between tribunals/courts & the public, the second paragraph shall examine the relationship between society & moral values, and the last paragraph shall examine the relationship between an offender & compliance. This in the end will show the difficulties that come with enforcement after codification and will show why the examination of such is invaluable when determining whether a law is truly effective or not.  

In Human Rights law, the 1960s to the 1980s are depicted as glory periods for many civil rights initiatives in Ontario in relation to a stable society, especially after the creation of the “crimes against humanity” law that was enforced at the Nuremburg trials to protect society from the tyranny of dictators and oligarchies. This is what “established the basis for a new form of rights (“human rights”)” (Haijar, L. (2004). Human rights. In A. Sarat (Ed.), The Blackwell Companion to Law and Society (pp.589-604). Blackwell). This came with the creation of a Human Rights tribunal that leaned more towards protecting parties who were negatively affected by oppressive business tactics over protecting the exploits sought by employers. This at first improved the employment situation for minority workers and created more protection in the workplace, but was a short-lived privilege, due to an immense number of awards for damages being given out to affected parties from the Human Rights tribunal, which negatively affected the financial circumstances of employers and eventually led to a decrease in damage awards given out by decisionmakers in fear of possible bankruptcy. This later became a concept that was combined with public policy factors considered by decisionmakers. This demonstrates how the practicality of public policy considerations can override incentives implied by lawmakers who may have been more concerned with a fair economy opposed to just having economic prosperity. This shows how the belief of human rights legislation being able to collapse a market economy through bankruptcy can strongly influence a judgment made by a decisionmaker; and illustrates that, even if a lawmaker has good intentions, a lawmaker must factor in what methods are truly feasible and what methods are ineffective or may be more harmful than helpful. This conveys why some Human Rights cases can sometimes become very complex when implementing disciplinary measures to create fairness among affected parties and respondents. In addition, another issue that occurs with human rights legislation can be found in the Criminal Court system with freedom of speech (based on the legal concept of “fair comment”) versus public order laws, such as Hate Crime laws and Public Disturbance laws. This form of societal control effects the freedoms of one group of people to ensure the safety of another group of people. This is particularly found in relation to crimes against women and racialized individuals. The groups typically in opposition of these groups being categorized as sexists and racists. The issue though with this classification is the criminal definition of what behavior can be considered criminal and what can be considered behavior that lacks enough mens rea for punishment. A distinction judges from the Supreme Court of Canada even find themselves divided on. This inevitably created a prioritization of human rights within social structures, for racial pride and sexual pride sometimes can be within technical forms of racism and sexism but not true criminal forms of racism and sexism. Sometimes, it can even be described as a form of willful ignorance, but should such ignorance be a criminal offence? This was seen in the criminal case titled “R v. Keegstra” that dealt with a schoolteacher who taught that the Holocaust was a lie and was charged with a Hate Crime, even though the misconduct did not involve any violent acts and was only minor in nature, for teaching ignorant ideologies to school children won’t necessarily result in a risk to the safety of the public. Such safety is what supersedes the legal concept of de minimis non curat lex (the principle that the law is not concerned with insignificant or minor matters). “Keegstra launched repeated appeals arguing that the Criminal Code violated his constitutionally guaranteed freedom of expression” (Boyko.J. (2006). Keegstra Case. https://www.thecanadianencyclopedia.ca/en/article/keegstra-case). This was since Keegstra’s conduct may not have been truly criminal and more under the definition of professional misconduct. This shows the disconnect between a legislative body and a judge/justice of the peace who makes judgements in reference to stipulated laws. This is especially true when one considers that the ideologies of conservative representatives usually surround minimal government involvement, while the incentives of liberal representatives more concern government intervention and determent of undesired behavior. This is also a central issue that occurs when a court or tribunal must interpret a government statue and convey a philosophy that is only representative of one political group, even though most laws are not necessarily the reflection of one lawmaker and more reflect the comprise made through several lawmakers within a collective. This depicts the pulling effect that occurs within Human Rights law. After that, another issue occurs on what degree the conduct should be regulated and whether government involvement can result in an imbalance of power for one party over another. This is because if a law is over-reaching it sometimes can cause one party detriment to protect another party’s cultural/religious values, as seen in laws that prohibited gay marriage but legalized various laws that removed women from property ownership, which resulted in a favoritism for patriarchal regimes that more protected the rights of family men over regimes that reflected the interests of all parties involved, especially members of the LGBTQ or female communities. This is what the gap between codified laws (the law in the books) and the enforceability of laws (the law in action) shines light upon, because it shows the problems that can occur when laws are enforced in various legal domains among different social groups.  

The next point to examine is the relationship between society & morality, which is reflective of a “moral regulation approach” (Glasbeek, A. (2006). Introduction. In Amanda Glasbeek (Ed), Moral regulation and governance in Canada: history, context and critical issues (pp. 1-8). Canadian Scholars’ Press). This is particularly interesting, when discussing the gap between law in the books and law in action, since it demonstrates whether a law will be accepted and supported by a group of people or whether the law will be resisted. This is because things that reflect immorality being typically shunned within society and things that reflect morality being typically praised. Praise that can be somewhat of a defining factor when considering compliance, for a great deal of citizens conduct themselves through a moral compass defined by reasonable practices that are mainly based on group acceptance. This can be seen with religious groups, political groups, policing bodies, etc. An example of such can be seen in the consumption of alcohol. In the 1920s, the Canadian government, like the American government, believed prohibition was the best way to deal with the undesired behavior that was caused by alcohol consumption; and believed that said alcohol consumption created “an obstacle to economic success; to social cohesion; and to moral and religious purity” (Hallowell. G. (2013). Prohibition in Canada.https://www.thecanadianencyclopedia.ca/en/article/prohibition). Unfortunately, the laws that prohibited alcohol consumption had the opposite effect and created a market that increased the sale of alcohol on a black market. The significance of morality in this situation is in reference to the increase in criminal conduct, for if it were a law that prohibited murder it most likely would have created a decrease in murder. Not a market that would cater to murderous acts. This is under the assumption that the law would be useful to the end user, ergo the affected party. A murder law can only decrease crime if it empowers victims opposed to discouraging them, which is usually done by creating obligations from other members in society that would ensure safety and protection for vulnerable members. An example of such is deeming things like criminal negligence punishable under the criminal code to deter behavior that puts other people’s lives at risk. Furthermore, when a law affects the morality of a community within society, compliance will depend upon that community’s view of the law to ensure that the undesired behavior is discouraged. In relation to prohibition, lack of compliance was due to the unnecessary control over a substance that did not pose much harm in responsible social environments and did not make sense to restrict completely. This prevented it from obtaining an adequate amount of group acceptance to be truly effective. Murder on the other hand always contravenes self-preservation and will never be seen as moral to a group of people that desire existence and typically receives group approval when involving deterrence; thus, such a codified law will always receive group acceptance in relation to determent. This view is important to socio-legal studies because it demonstrates on how enforceability and morality must fall in line for a law to be truly effective, especially when things like witness statements and witness testimony are needed to make sure that charges stick in court. This in a way shows how law reflects comprise found in social groups and shows how law cannot reflect unrealistic desires for justice. This is why laws that reflect the morality of the majority groups (dominant groups) are typically more successful than laws that try to impose interests that are not supported by majority groups.  All of which is based on an idea that the community should play an active role in deterring crime that it deems immoral.  

The last point of examination is the relationship between an offender and compliance. This comes with the question that asks on how a governing body can prevent a citizen from committing an offence or a re-offence? A question that is essential to law in action. This involves “possibility of being caught and punished for engaging in rule- breaking behavior” (Tyler, T.R. (2001). Compliance and Obedience: Legal. In Baltes & Smelser (Eds.), International encyclopedia of the social & behavioural sciences (1st ed., pp. 2440 - 2445). Elsevier). This sometimes calls the effectiveness of policing, the effectiveness of sentencing, and the effectiveness of parole into question. This can lead to an increase in a police officer presence in certain communities, an increase in time served in jail for offences that concern public safety, and an increase in the time it takes for parole eligibility. An example of this can be seen in the 1960s during the civil rights era. This was a time of racial segregation that threatened the birth of human rights legislation. This resulted in racial persons being excluded from establishments that had spaces that were designated “whites only” with one of the most significant occurrences being a black woman, by the name of Viola Desmond, being “dragged” (Lundy. T. (2021). 75 years after Viola Desmond’s stand against segregation, former theatre honours her legacy. https://canadiangeographic.ca/articles/75-years-after-viola-desmonds-stand-against-segregation-former-theatre-honours-her-legacy/) out of a movie theatre due to her skin tone. An act that was later deemed assault and harassment under the criminal code. Such business practices were affected by the emergence of human rights legislation that outlawed such racist conduct in public establishments and public spaces. This resulted in certain racialized behaviors to be policed by the government which was combined with significant sentences for acts that were considered Hate Crimes. This was done to ensure that acts that didn’t not fall in line with anti-racist laws were hindered. A stipulation that was backed by stringent parole requirements on violent offenders. This is what created a path to integration for racialized communities and other respective communities, even though this did not fully end the racial divide. This shows how pivotal laws that control public order are for Human Rights law. This is because effecting public order is essential in a law’s success in Human Rights legislation, especially if the interests is to protect a vulnerable party or parties. An idea that is reinforced by socio-legal scholars who discuss the necessity of compliance. This is in the end can become a determinant factor in protecting one parties interests in society and could even possibly mend the problems that occur between law in the books and law in action.    

In conclusion, in Human Right’s law there shall always be a gap between law in action and law in the books. A gap that sometimes demonstrates the true difficulties of compliance within law. Such difficulties that create issues when it comes to enforcement in relation public policy, morality, and public order. This is why the gap between law in action and law in the books is such an imperative topic in sociolegal studies. In the end, it shows how a law can truly be effective in society or whether it will lack enforceability. Such an insight is invaluable to lawmakers because it shows what needs to be factor in to ensure a law is useful to the desired parties said law it is supposed to affect. This in a way helps lawmakers create sensible laws that judicial officers and affected parties can use to find a result that improves society on a whole and improve the experiences for persons that normally feel unheard or unrepresented.