The Hudson's Bay Company

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 frontierspeople 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 1940s and 50s. The societal reaction theory (pluralist or labelling) predominated until the 1970s.

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/pouvoir 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