Academic journal article University of New Brunswick Law Journal

Effective Aggressiveness and Inconsistencies in the Bijuridical Treatment of Aggressive Behaviour: Mixed Martial Arts, Bullying, and Sociolegal Quandaries

Academic journal article University of New Brunswick Law Journal

Effective Aggressiveness and Inconsistencies in the Bijuridical Treatment of Aggressive Behaviour: Mixed Martial Arts, Bullying, and Sociolegal Quandaries

Article excerpt

One of the most legally restricted elements of human nature is that of aggression and the intent to harm. ** Yet in combat sports such as mixed-martial arts ("MMA") or boxing, one of the key elements in judging a fighter's performance to determine a winner is "effective aggressiveness". MMA used to be characterized by the pitting of various styles of martial arts against each other in order to determine the dominant form. Its current practice now focuses on the dominant fighter where each fighter deploys an individually hybridized fighting technique drawing on various martial arts. (1)

This paper seeks to address effective aggressiveness and the treatment of aggressive behaviour in the context of MMA in comparison to the balance of the formal Canadian legal landscape. I choose anti-bullying legislation, and its treatment of aggressive behaviour, as a counterexample to the treatment of aggressive behaviour within the MMA regulatory framework. By intertextually linking and superimposing these two categories of legislation, a critical lens drawing on institutional ethnography is applied. This is done to question and deconstruct the differential treatment of aggressive behaviour and the rationale behind the legislative mixed message sent. This lens also allows me to show the importance of a more thorough analysis and understanding of the imported internal frameworks of regulated activities that are candidates for decriminalization through amendments to Canada's Criminal Code intended to ensure the Criminal Code is current to today's reality. (2) The quandary faced within the fabric of the MMA community regarding its own treatment of aggressive behaviour, where it is both reified as well as castigated through anti-bullying advocacy, will also be examined.

1. Theoretical Framework

This paper adopts a critical approach inspired by the methodology of institutional ethnography. (3) Two categories of legislation of have been intertextually linked by mapping the MMA community/cultural normative system. These two categories of legislation have been superimposed, then teased apart, in order to reveal a conflicting treatment of aggressive behaviour that sends a mixed message to the Canadian public. The point of this exercise is to explore how this inconsistent treatment may play out within the cultural milieu of Canadian children, youth, and young adults; how it arose in terms of the different actors and communities involved; and the rationale behind the differential treatment of aggression in different contexts. I also draw on the work of Brian Tamanaha in order to define, understand, and conceptualize MMA as both a social phenomenon and a community with grassroots elements and internal norms that interact in a legally pluralistic manner with the relevant dominant legal framework. (4)

For the purposes of this article, I accept the existence of regulated violence as settled law and as anterior to the subject of this article in order to build off this reality. Instead, I narrow in on generating a critical discussion of the treatment, mandating, and language surrounding aggression and aggressive behaviour as it appears in Canadian law and legislation, which is separate from a discussion of criminal or civil liability and the defence of consent. However, for further investigation into these issues, even though the literature on MMA is still developing, there is nonetheless a body of literature pertaining to boxing and the law. For example, The Legality of Boxing: A Punch Drunk Love? touches on a discussion of consent. (5) In addition, there is readily available general literature on consent and the law in sport and extreme sports provided by, for example, Essentials of Sports Law. (6)

2. The Mechanics of Regulation

(A) The Unified Rules of Mixed Martial Arts

The Unified Rules of Mixed Martial Arts ("Unified Rules"), first codified by the New Jersey State Athletic Control Board in 2000 and adopted in April 2001, address the mechanics of a match and fighter safety precautions. …

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