CRI215 Lecture Notes PDF

Lecture 1 Notes (Part 2): -​ Starting concepts: Legal Consciousness & Legality -​ Think about how they are making sense and understanding it (legal consciousness) during the interview! -​ Exploring key concepts within law and society (sociolegal studies)– how various disciplin...

Lecture 1 Notes (Part 2): -​ Starting concepts: Legal Consciousness & Legality -​ Think about how they are making sense and understanding it (legal consciousness) during the interview! -​ Exploring key concepts within law and society (sociolegal studies)– how various disciplines engage with these disciplines, focusing on regular experiences with law by ordinary people. Les Jacobs - Legal A report on legal education Consciousness and its -​ Law school: doctoral training (called ‘insiders’ like Significance judges, lawyers (prosecutors), law school professors, police officers. -​ Law & Society legal education is for ‘outsiders’-- looking at the relationship of all legal things and how it relates to society (the human beings that are expressed in culture, media, etc.) and its effects. Examples include: Crim majors/students, accused within law systems, potentially lobbyists (social justice activists), ordinary peoples -​ Legal consciousness: a really great way to think about ‘outsider’ legal education. Outsiders are ordinary people and how they understand and make sense of law (our awareness to engage, understand, and think within law = legal consciousness) Ewick & Silbey - The Interviewed 430 people Common Place of Law -​ Legal consciousness: the ways in which people make sense of laws and legal institutions (pg. 734). Story of Millie Simpson: Example of an outsider's experience within the legal system (new perspectives): A lower class WOC who parked and left an uninsured vehicle and didn’t drive it; however, it got taken and driven by her son’s friend who crashed it and returned it. She was then summoned to court where her public defender didn’t show up to defend her and she was given a guilty charge. However, her employers helped her and hired her a lawyer, who framed the case differently from an insider’s perspective– he said that the car was stolen instead, undermining her responsibility. Repeat players: longer term relationships with legal actors within the system (more investment with the judge than they do with the accused) 3 themes of legal 1.​ Conformity: going along with law, accepting authority consciousness (Still even if it’s is not right (e.g. millie’s first court)  Ewick and Silbey) 2.​ Contestation: ‘playing the game of law’ with the insider -​ ASSIGNMENT knowledge, engaging with the ‘contest’ (e.g. 2nd court : how these Millie) apply !!! 3.​ Resistance: pushing against the law, even if small and seemingly insignificant Silbey on Legality Legality captures an expression and experience of law - the meaning, sources of authority, and cultural practices that are recognized as legal, regardless of who employs them or for what ends (pg 336) -​ Legality is constituted everywhere (e.g. food packaging allergy warnings, parking cars correctly, mowing a grass lawn only up to the property line. -​ It’s pervasive. -​ What is the difference between conformity and legality? Lecture 2: Legal Consciousness 2.0​ Some laws are so far away from daily life that we barely think of them as law (e.g. warning labels on cribs -> a baby’s first consciousness of law would be ‘no’) -​ The labels would just be annoying, we don’t necessarily see law involved when we see them -​ Canada Consumer Product Safety Act: Regulations are issued through an order in council. -​ Another part of legality: peanut-free symbols and stickers to comply with legal regulations (Food and Drugs Act - Food and Drug Regulations), which is enforced through federal law. What laws are ‘all around us’: building capacity, accessibility, fire alarms/sprinklers, emergency lights, emergency protocol signs, paying tuition to be in class, having a good academic record, educational visas (regulations to be here) -​ University of Toronto Act - a cooperation that can pass its own policies and bylaws (examples: it has the power to create its own police force, takes care of its own roads and garbage collection, and have their own food management system) Assignment 1: Interviewing - Qualitative method of informational collection. -​ This examples speaks to this theme of … (contestation, conformity, resistance: make sure to define the theme first and then link it to the interview) -​ Make a claim then show evidence. Lecture continued: Dr. Tom Tyler - Why People Obey the Law Explores the role of justice in shaping people’s relationships within society. How the judgements of justice shape legitimacy, compliance, and morality. Key terms: 1.​ Instrumental perspective on compliance: a concept of deterrence (capital punishment - their execution would be a deterrent for other people to commit the crime). They are motivated by reward/punishment, or to set a good example (being a good person demonstration). -​ Examples: a wanted fugitive with a reward for information; support from society; someone might not speed because they don’t want a ticket (fear). 2.​ Normative perspective on compliance: a sense of obligation, support for the system, or a sense of justice or fairness– they’re compliant for some reason. -​ Not stealing because it's immoral. -​ Sending your kids to school because it’s the law but also because it’s good for your kids (education) -​ Military service 3.​ Legitimacy: a recognized as a valid, legal, justified, and correct way to be– in the context of legal systems, the valid authority of the legal system and its agents (the right to govern/ a legitimate use of force) 4.​ Procedural justice: the way the legal process is experienced as fair or not– like neutrality, lack of bias, honesty and fairness from a judge, for example.  -​ Distinguish between outcomes/processes: if you had a fair hearing, the outcome might still feel just even if you lost because it went through procedural justice that was fair. -​ There is an emphasis on the process-as-justice. -​ People who experience fair processes within the legal systems, they’re more likely to view the government and legal system as legitimate, which makes them much more likely to obey the law (more likely to comply with law) -​ Think of some caveats though– how does your social location impact this? His approach: concerned with the role of law in the lives of everyday citizens: how do people react to their own experience with legal authorities/legality: are people motivated by instrumental factors or normative factors? Blomley and Stanger-Ross - Landscapes of An excerpt of a book about the internment Injustice and dispossession of Japanese-Canadians in the 1940s. -​ Following Japan’s attack on Pearl Harbor, there was an extreme Anti-Asian racism movement in society and law, specifically toward Japanese-Canadians. Their discrimination was justified through the War Measures Act. -​ Several laws and acts were enacted to discrimination against their employment, education, and land ownership, despite no direct military engagement between Japan and Canada. -​ Under the Custodian of Enemy Property, over 23,000 Japanese Canadians had to transfer their land and be forced in internment camps into rural locations or in the middle of Canada, where they were forced into hard labour, usually on farms, which they had to pay for themselves– the camps were self-sufficient as they paid for it; any gaps in funding were filled with the sale of the Japanese Canadians’ properties. -​ They had to evacuate the ‘protected zone’. -​ They mostly complied knowing the state of the war. -​ Their property and belongings were sold for very little considering their true value– this is where ‘this land is worth one million dollars’ comes from. Contestation theme: they wrote letters to the federal government as they didn’t consent to what happened to them, hired lawyers to dispute it, and also filed complaints. -​ They still believed the Canadian legal systems laws could apply, even in the context of the internment policy– they thought Canadian officials could be reasoned with.  -​ They tried to engage in the dispute/the game of law. Connection between contestation and legitimacy: this is an example of racist law; however, there is a complexity thinking about property and its relationship with the state. -​ They are ordinary people: outsiders. They’re engaging in contestation toward injustice. -​ A sense of belonging and faith in the state was ruptured (60% of those interned were born in Canada). There was some attempt to redress through the Bird Commision which awarded 1.2 million in compensation ($52 per person). -​ Then, PM Brian Mulroney apologized and in the House of Commons, agreed to $21,000 in compensation to each interned individual and restored Canadian citizenship for those made to return to Japan. -​ Attempt at restoring legitimacy and trust in the legal systems. Pragmatic resistance in Singapore LGBTQ+: strong culture of legal compliance and lots of rules to regulate conduct for very fine details (no chewing gum). Same-sex activities are criminalized (Section 337). However, there is a strong queer community is Singapore regardless– while still participating in legal culture, the community still engages in pragmatic resistance. What they’re saying: law is not at the centre– they don't engage in large protests, but they engage in activities to facilitate small cultural change to help make the law more inclusive. -​ When we think about resistance, we think of strong marches, but this is a subtle example. FSWEP - student jobs Lecture 3: Representing Justice The article focuses on architecture and art history, combined with semiotics analysis of legal messaging and meanings communicated by the visuals. They do a historical analysis in the latter part of the article, talking about the expansion of judicial adjudication and the building structures which house the judges. -​ Semiotics: symbols and what they mean (e.g. red rose → romance, love) Lady Justice: a figurine of a lady holding a scale in one hand and sword in the other, while stepping on a snake blindfolded. This symbolizes the most important aspects of justice: justice being impartial (blindfold), fair (scale), punishing where punishment is due/retribution (sword), and the (snake). -​ The scale represents the balance in law: the two sides (the adversarial system) -​ Ancient-looking female: valuing tradition, but also a representation of democratic roots. Scales of Justice (1907) at the Old Bailey Court in London, England is different as it wears a crown, representing the Crown (royalty and also their judicial system) -​ She also doesn’t have a blindfold and is made of gold. -​ She also stands on a globe, showing that her ruling is above all. Canadian example: at the Supreme Court of Canada (Justicia– the name in Latin). -​ She has no blindfold, no scale, but has a large sword, being careful where she lays the sword as she has a leaning position of the sword (a representation of restraint if the sword means punishment) -​ The colouring is a dark metal– it looks like a more common type of material (symbolizes darkness and danger perhaps– different projections of different associations) -​ She’s almost hiding herself to protect herself– the blindfold might be lifted up on her forehead (in order to give a just punishment, it should be observed– you shouldn’t walk away– for it to be balanced and fair, you must be aware of it [page 160 of Resnik reading says that the blindfold might be for covering her eyes from seeing the pain from those she punished]) The ways in which they are depicted sends us different messages. Another example: Veritas (truth in Latin) is positioned on the other side of the main door with Justicia; Veritas has a book that represents the constitution– she’s more open and it looks like she’s pointing at the book, wanting to find the truth. Definition of “Icon”: Tracking change over time 1.​ a.​ A graphic symbol on a computer display screen that represents an app or a function. b.​ A sign (such as a word or graphic symbol) whose form suggests its meaning. 2. An object of uncritical devotion: idol 3. An emblem or symbol 4. A conventional religious image typically painted on a small wooden panel: Eastern Orthodox. 5. A pictorial representation: an image. Who were the other ‘sibling virtues’ other than justice? -​ Fortitude: strength -​ Prudence: cautious -​ Temperance: restrained, self-control People still recognize Lady Justice worldwide (143) -​ She outlived her sibling virtues because she’s visually accessible (145)-- her symbols aren’t ambiguous, you just know exactly what is involved. -​ She's recognizable in legal and pop culture because she has been deployed, politically, by governments to link their rules and judgements to her legitimacy (they view government as a proper authority) -​ She’s great for political propaganda– rulers wrap themselves in Justice so they have the power to judge, so they can impose control (they need power to control, so people accept their judgements → a judge can’t force people to conform or obey if they are not seen as an authoritative power). -​ Example: Judge of Solomon with 2 mothers fighting over a baby. -​ Securing the ‘consent’ to govern!!! Recently, depictions of Justice and Judging are more upbeat and less likely to depict challenges and consequences of judgement and law enforcement– the complex depictions from earlier eras have been washed out in favour of consistent and positive depictions of Lady Justice (159). Change over time:  1.​ Renaissance: means rebirth in French, a revival of life in Europe after the Dark Ages– they rediscovered Arabic Math, Greek language, and Latin– more intellectual activity. There was a use of the justice icon in civic spaces along with other sibling virtues. 2.​ Enlightenment: continued use of the justice icon, however secularization of iconography (became non-religious) to keep up with changing intellectual tradition and political circumstances (Independance in France and US. 3.​ Legal Transplants to Colonies: colonization of North America by England and France led to the transplant of their foreign legal systems to Indigenous legal territories. -​ Unclear if it was used in the early colonial spaces– usually they just had a flag and a judge– justice came when they came. 4.​ Entrenchment and normalization of British and French traditions in what we call Canada in the 19th and 20th century: the construction of courthouses in the same visual tradition as Lady Justice iconography helped legitimate and naturalize these systems in North America– it connected them to Europe and ancient traditions. A New Lady Justice is called “Justice” by Diana Moore: not an ancient looking lady (she’s wearing a tank top instead of a robe– she’s strong, female, wearing athleisure. -​ She’s wearing plainer clothes, she’s accessible, just like us, not something that is ancient, like in the past, that can feel dealienating. -​ Balance/scale: the way she’s holding the blindfold represents it. A tour of Courthouse in Canada - connections back to Europe (like Greece and Rome) Middlesex County Courthouse - London, Ontario: looks like a castle -​ Large dome shaped windows, balcony with typical castle notches for defence The Old Montreal Courthouse (1856): a mix of English (buildings look like Buckingham Palace) and Ancient Greek (columns, which encompass the intellectual intelligence of their people)-- they draw upon those traditions to assert their legitimacy. Goderich Court House - Goderich, Ontario: European Architecture; also the entire town is designed around it to look at the courthouse in the very centre of it (centring law and European traditions and the administration of law) -​ Dome on top, representing perhaps religion as another authority. Vancouver Courthouse (1911): now Vancouver Art Gallery They all appeal to ancient, renaissance, and enlightenment and intellectual traditions from Europe. There are visual features such as symmetry, repetition, stone work, columns, and castles signify order, rationality, and tradition by connecting to historical visuals of those European cultures. -​ Why do we think court building in Canada– a settler colony of France and England– needed to make visual connections to Europe? What did these visuals communicate to Indigenous and non-Indigenous peoples? Key concept - State Formation: State formation is a historical analysis that explores how the modern state emerges– this historical analysis is often critical of state power , in that it explores how the states have been empowered via the development and creation of institutions for the management of populations. -​ It occurs with the assertion of sovereignty and authority– an assertion usually made by a ruling class over less powerful populations. -​ State formations produces subjects and citizens (for example, British subjects, who are subject to British law) -​ Ruling class: not only wealth, but accents. -​ Common people have more power now– balance of power shifted -​ State formation in court buildings: encourage conformity and push legitimacy. Connecting the process of state formation with the aesthetics of Justice in Canada: -​ The transplant of European legal systems to North America required an assertion of sovereignty and authority– *it required the populations to come to believe that the systems would bring justice. -​ This was hard for Indigenous people because it was different. -​ British people liked it because it was familiar and gave them advantages, like land, titles, etc. -​ The aesthetics of court buildings signified order and rationality to present the system as traditional, historical, and legitimate, even though it was only recently imposed. -​ When European settlers were still establishing their authority, courthouses provided a visible reminder that the settlers and their legal system were ‘here to stay’ (a stone huge building is not going to move). Battleford Courthouse (1907): in 1885, a mass execution of Indigenous men was there because of their participation in the St Louis resistance. They made everyone watch to establish authority and control (a show of force: ‘an execution of Indians will show the Red Man that the White man governs’) -​ Courthouse is right next to a registry (convenient for registering land, ownership, paying property taxes, registering births, deaths, marriage, etc.). -​ Gerrard Stanley was a White farmer with intergenerational land– Colton Boushie, an Indigenous person, drove up to Stanley’s house, unclear whether they wanted to steal his car or ask for help, and Stanley killed them and was acquitted (responsible for their death but not legally responsible). His lawyer said it was a misfire. -​ It took place near the 1885 massacre– historical resonance. Modernization of courthouses:​ The aesthetic of courthouses is modernizing, with different visuals. -​ Example: Huron County Courthouse (1954): Art Deco style. Steven Trescott, a 14 year old boy charged for a murder for a lady in town, which was a wrongful conviction, and he would’ve been executed. -​ Another: Montreal’s Palais de Justice (1971): very modern without columns. -​ Another: Vancouver Law Courts (1979) very modern with lots of glass (transparency) but still has ancient Lady Justice! -​ Another: Ontario Court of Justice in Toronto: sleek, modern; however, there is not enough staff a lot of room (combined 6 courthouses into one– removed the other ones, leaving only one downtown → less staff since the commute might've been easier for them before as they did not sign up to commute all the way to Downtown) -​ Looks more common, like an office building, to blend in, making it more comfortable, rather than a huge grand display of wealth beyond them. -​ Slides have good guidelines for analysis! Readings - Week 4 “Discordant Music” by Palmer Dunsby and Howes  Wills Article Charivari: a folk custom to shame a member of a community that violated social norms and moral standards, generally regarding family and sexual issues, in Europe and their colonies (US and Canada). -​ It was a demonstration, usually at night, with musical instruments like drums and horns along with shooting muskets -​ Was a way for the working class to enforce moral standards when the state didn’t (absence of law) -​ Existed for centuries until police stopped it. -​ It was one of the most persistent cultural forms of popular customs and traditions. -​ A ritualized mechanism of community control. -​ In France, it was frequently used politically, reflecting social tensions. -​ There were anti-semitic and racist ones too along with ones against prostitutes. -​ It worked for a long time as domestic matters were not really the concern of the law back then– only rapes, murders, and thefts were (wife-beating wasn’t a crime until the 1920s). -​ The consolidation of state power, including formal policing and the growth of family law, made charivaris redundant. Now, banging of pots and pans is a celebration as social order is enforced by other means. Lecture 4 - Law in Action - Community Regulation “Law in Action” is a core concept in Law and Society/Sociolegal studies– differentiates between law professors (law in the books) and law in action. It is a part of an analytic approach called ‘legal realism’ or critical legal studies (not 'why’, but ‘how’ questions) that explores how laws are applied in society. -​ It’s commonly presented as the ‘real world’ expression of laws and legal practices.  -​ Law in the books: refers to formal laws, statues, case decisions that comprise the structure of law. Whereas: Law in Action is how things actually happen in real life, hence ‘realism’ (how laws are implemented, how they are enforced, how people think of law (legal consciousness), how people seem to be outside the law (how they think to be beyond the law), and how people sometimes act ‘extra legally’. Palmer Article Charivari: a folk custom to shame a member of a community that violated social norms and moral standards, generally regarding family and sexual issues, in Europe and their colonies (US and Canada). -​ It was a demonstration, usually at night, with musical instruments like drums and horns along with shooting muskets -​ Was a way for the working class to enforce moral standards when the state didn’t (absence of law) -​ A public display of obnoxiousness to shame someone– a type of discipline within the community. Stages First stage: with what they called ‘rough music’ which is just loud noise outside their house; then, the second stage is the culprit, or a neighbour representing them, riding a donkey while holding its tail like reins; the third is a public play with a re-enactment of the conduct with a mock judgement and sentence. Palmer's approach: he’s doing social history– prior to the 70s, most histories which were of “great men, battles, or monarchs”, so social history takes a different approach to look at the people who were left out of history: poor people and women (looks at diaries– the history of ‘ordinary people’, a class analysis). -​ Class analysis: classes are a social hierarchy based on wealth, education, and culture/gender– each group has access to different resources. Class analysis: explaining the social hierarchy and comparing each class (plebeians (low) vs. patricians (high class)) -​ Middle class: where the average person is in the social hierarchy– those who have decent jobs, that aren’t labour intensive, and can support a family. The middle class emerged during the Industrial Revolution. -​ He attributes the decline of charivari to the fact that the upper-classes stopped participating in it, condoning it– without their approval, the practice declined. Extra-legal: not regulated or sanctioned by law– practices outside the law– it’s not illegal or necessarily legal either (abortion in Canada is an extra-legal practice– no law supports or illegalizes it– hospitals are not required to practice abortions– this is a legal vacuum) Customs: laws that can be extra-legal because they’re not encoded in law, but they exist in action Authority: the power to influence or command: two ways it shows up in the article: 1.​ The authority of the community to regulated behaviour via Charivari 2.​ The authority of the upper class to endorse or suppress Charivari depending on their attitudes. Palmer’s argument: Charivari was a mechanism of community control performed by ordinary people to enforce popular standards of appropriate behaviour. -​ Came to North America via colonization, brought via colonial migration. -​ The customs took on different names and expressions in NA and then changed over time as they were being seen more as an “expression of lower-class disorder”. -​ He argues that many areas of daily life for ordinary people were untouched by formal law. -​ It worked for a long time as domestic matters were not really the concern of the law back then– only rapes, murders, and thefts were (wife-beating wasn’t a crime until the 1920s). -​ It was hard to access law too– only court came like once or twice per year. -​ Until the mid 19th century, these customs enforced by Charivari were endorsed by the upper class. Change over time: From rough music to rough justice: Charivari victims were less likely to tolerate it or participate and the upper class and law enforcement were less likely to tolerate its disorder as it went from small parades to more violent outcomes, even lynching. Whitecapping had come to replace Charivari and was a serious threat to order (e.g. KKK) -​ White-capping: someone is wearing a white cap/hat and enforces their own versions of law and what they consider justice (KKK- Ku Klux Klan– they went around to spread what they thought were rough justice). -​ A movement from extra-legal to illegal! The suppression of the custom actually brought more violence– more violence = more law breaking = no longer tolerable ‘extra-legal’ practice. Therefore, the law had to jump in and stop it. -​ He doesn’t focus on matters like race, gender, or hetero-normativity– this is a limit of the article. -​ His analysis is a class analysis using a Marxist/legal ideology framework. Dunsby and Their approach: cultural criminology: incorporates methods and Howes insights from the field of cultural studies, exploring meanings and understandings of law (language, visual representations (like Lady Justice). They focus on practices of liking and sharing on the Facebook platform as a method of naming and shaming people for their conduct. -​ They include qualitative surveys designed to measure the acceptability of online naming and shaming. Vigilante: a member of a volunteer committee organized to suppress and punish crime when law is viewed as inadequate– who ‘takes the law into their own hands’ to give justice without trial or due process, like Batman or Robin Hood. -​ Problematic part: it's the vigilante who determines the punishment and identifies the rulebreaker, and not the system which has constitutional protection. -​ It can harm due process and cause people to get off on a technicality, -​ Cancel culture is a form of digital vigilantism. Digital vigilantism: a citizen’s reaction to another person's transgression of social norms in the online space (pg. 42) -​ ‘Naming and shaming’ is a form of digital vigilantism: identifying alleged offenders and subjecting them to embarrassment, harassment, and/or condemnation. -​ They cite a case in Vancouver where there was public dissatisfaction: people mad with the CJS and it caused a riot ( doxxing– trying to identify the names and where they live). This was a form of crowd-sourced policing. Moral: naming and shaming is motivated by public dissatisfaction. Community Regulation: Naming and shaming is an example of ‘law in action’ by ordinary people who seek to regulate and shape behaviour in their communities. -​ Howes and Dunsby: it was a way to educate and inform people that their behaviour was socially inappropriate, reflecting a motive of encouraging behaviour modification. -​ Naming and shaming as digital vigilantism can be considered as a form of community regulation. Recap and application: -​ The Palmer article: community regulation and popular condemnation has a long history. -​ Dunsby and Howes:  ‘Cancellation’ perhaps a current day Charivari– a form of law in action/community regulation with deep customary roots in Europe and NA. It’s all law in action via community regulation. Law in Action is often the focus of sociolegal studies– we measure the gap between what the law ‘says’ (rhetoric) and what it is actually doing (reality). Lecture 5: Categorization, Racialization, and Citizenship - The Limits of Whiteness Focus on racial and ethnic categories and how they relate to refugees and migration. Maghbouleh discusses the construction of ‘Whiteness’ legally, socially and politically-- the limits of it in Iranian American communities. -​ Another way we view racialization– seen first through Japanese internment week. -​ Sociology = how questions. Key concepts: 1.​ Racialization: how non-racially defined groups were labelled and differentiated on the basis of real or perceived physical characteristics (like melanin). Racial meanings were assigned to these perceived differences and racial hierarchies were created to justify social and legal regimes such as racial slavery to enrich often White individuals and European empires. 2.​ Categorization: the differentiation and sorting of persons or things into groups or categories -​ Maghbouleh example of categorization: the act of ethnic and racial self identification → filling out applications, censuses, etc. where a person is profiled, guided, sorted and coded into an ethno-racial definition. There is a discrepancy in the legal categorization of being white vs. the lived experience, legal consciousness, of being white. -​ Maghbouleh: They racialize MENA (Middle Eastern and North African people) communities as white/not white, welcome/unwelcome, and invisible/hypervisible in North American society (these are binary pairs: a pair of related terms More terms:  1.​ Construction: how certain meaning become built in to the way people talk and think about our world– like how race is socially constructed (‘white people’ came to be as an idea of time and we inherited these ideas) -​ E.g. A red rose came to symbolize romance or Lady Justice being associated with judicial legitimacy. 2.​ Binary opposition/pair (dichotomies): a pair of related terms or concepts that are opposite in meaning. To dichotomize is to divide into two groups. -​ The two groups are mutually exclusive or contradictory and express a power relationship → one group governs the understanding of the other group. -​ E.g. masculine/feminine; civilized/wild; hero/villain; innocent/guilty: they don't have meaning unless they are together in contrast → sometimes the way that the world is constructed only gives us those options. Maghbouleh’s Methods: Conducted interviews, historical research (Cartozian - use of english language, being Christian, the way they dressed set precedence whether Armenians were legally white and should therefore qualify for citizenship), and observation in a summer camp (ethnography). More key concepts: 1.​ Boundary maintenance: the ways in which societies maintain distinctions between themselves and others (binary pair: us/them would apply here). So, by studying what peripheral areas you can find their key cultural values. -​ Being white: typical qualities associated with racialization, for example what it means to be Canadian → lumberjack, beers, golf, hockey, having a European background, etc. 2.​ De jure: a term used to describe something that is true or exists in the realm of law. 3.​ De facto: a term used to describe something that is true or exists in fact but is not officially sanctioned or recognized by law. Maghbouleh studies how Iranian Americans came to be categorized as white de jure but not exactly white de facto (they don't experience equality in the same way as featured in the charter → they experience bias and racism, etc.). -​ US standardized racial categories in 1978 to include Iranians in the White category.  -​ She situated her research on how ethnic groups such as Irish, Italian, Jewish people became White through the process of assimilation and integration into society throughout generations → critical whiteness studies. -​ She focuses on how American experiences and consciousness of racialization by exploring the social and political ‘browning’ of Iranians, despite their legal categorization as white in the US. → This trend is in the opposite direction that scholars expected based on analysis of previously ‘non white’ groups like Irish and Italian Americans → there's an opposite movement for Iranian Americans. -​ Disenfranchised: lost right to vote – Indigenous people (Indian Act vs. Canadian Citizenship) → if they marry white, they can have more privileges (white privilege). -​ Censuses are actually enforced by law– you can be given a fine → they need the information to determine political voting districts → MENA is in the White category. → They're a bit more inclusive now → you specify your ethnicity under ‘White’ -​ Gerrymandering: dividing electoral districts so it's more favourable to candidates to keep a party in power → to make sure some people aren’t represented in parliament. Invisibility /hypervisibility is a binary pair that can help us understand how Iranian Americans can think about their legal categorization– as being White doesn't fit their identities. -​ When coded as White is the census, MENA become legally invisible as they are concealed under the banner of witness, while there's socially and politically hyper-visible (airports and in white neighbourhoods). -​ White people policed the boundaries of race by: bullying, surveillance, and even housing by-laws that would make sure they couldn't construct or change their homes– these techniques of racialization work as ‘boundary maintenance’ to communicate messages on who is welcome/unwelcome and who is compatible/incompatible with the dominant American conceptualization of race/whiteness. Ordinary people’s resistance in national narratives of racial hierarchies: They instead engage in alliance building and solidarity with communities that feel the same– they don't want to engage in the US’ racial hierarchies and neither do their parents' conceptualizations of them being white: they want a new category. -​ They don't want to identify as white either– they are not the same.  -​ Last Chapter: “Becoming Brown” because that's what the young people realized and decided they were. Racial hinges: they hinge from being brown in public vs. white in law, in which they are unable to seek legal recourse for on-the-ground racism in workplaces and street-level hate crimes due to their legal whiteness. ​ Racial loopholes: this describes the legal experience of them as a racial hinge– its a loophole that they’re classified as white on censuses, but then treated differently and discriminated against. Lecture 6 - Jurisdiction and Indigenous Urbanism: the Sen’ákw Development Xwechatàal: member of the Squamish nation → English name was Andrew Paull. -​ Born in Squamish nation in 1890s and described himself as a “lawyer without a ticket” → he was trained in law at a Vancouver law firm (no law school in BC yet → was apprenticeship programs) but denied entry to the BC Law Society (admission, licensing, etc.) because he was a ‘status Indian’-- they did not tell him this– the criteria they used to discriminate him: he was not allowed to vote in a provincial election and he did not speak Latin. -​ Therefore, he couldn't officially practice law → he still did though as he was a key member of the Allied Tribes of BC, serving as a translator and testified on committees (advocating for indigenous rights and advising indigenous people) Royal Commission on Indian Affairs for BC: also called the McKenna-McBride Commission; they opposed the Commission’s findings that led to the creation of the Allied Tribes of BC in 1916 (BC was colonized much later as far → was barely any treaties) -​ Commission was made to figure out what to do with unceded territory. -​ Ceded land: has a legal transfer agreement to the Crown (Indigenous people agreed and had the land way earlier and lived there → proclamation there were Indigenous lands) → unceded land: no treaties that transferred the land title to the Crown → legal title still technically rests with the Indigenous people but they still took over (BC: they assumed they didn't need to establish treaties by the time they got to BC. Allied Tribes of BC: people representing first nations in BC that engaged in activism, talking to the Crown, etc. to try to have their land rights recognized. -​ The UK Federal government allowed for a hearing → a special joint committee was created to inquire into the claims of these lands and reserves that belonged to Indigenous people in BC. -​ White lawyers thought that other white lawyers were trying to help them to make a legal issue when there was nothing. -​ Nothing was done properly except giving 100,000 to give all Indigenous members in BC for education, etc. (things that would've been covered under treaty agreements) → the BC Special.  -​ A couple days later, the Federal government added to the Indian Act: prohibited any people to raise or receive funds for the prosecution of any claim on behalf of any tribe or band between 1927-1951 (can't hire a lawyer, etc.). Penalty: $50-200 or imprisonment → the lawyers and those who started it would be punished (lawyers would be rejected from law society, etc.) -​ They could've done pro-bono though ^ and it didn't apply for individual court actions like for murder (Indigenous person but cannot do Indigenous tribe) -​ Was meant to squash the Allied Tribes of BC. After Andrew Paull was prohibited from his legal work, he became a Sports Manager and Coach -​ In the 1940s, he created the ‘North American Indian Brotherhood’ → over the decades, it became extremely important. -​ After WW2, they gained more respect for their service in the War → therefore there was more pressure to solve Indigenous land rights, etc. -​ The Special Joint Committee had power to stop residential schools, Indian Act, etc. -​ In the Committee, Paull appealed to them to try to remove the clause that stopped them from hiring lawyers on behalf of tribes → they should be able to appoint, instruct, and nominate their own counsel as it prohibited them from submitting some of their questions to the courts. In the 1950s, most oppressive sections of the Indian Act were removed → removed ban on potlaching, dancing, ceremonies, and retaining lawyers/counsel. -​ However, residential and day schools, enfranchisement, loss of status through marriage to a non-Indigenous person, unequal restrictions on intoxicants (alcohol possession and distribution), etc. remained. ← this is what we mean by the criminalization of Indigenous people (illegal for one group but not the other) -​ Being able to finally hire lawyers transformed Indigenous-state relations. Skwxwú7mesh Úxwumixw: Squamish Nation/people. -​ Their traditional territory is vast and archaeological evidence shows that the lands have been occupied by them for over 8,600 years ; some of the village sites date back 3,000 years → they stretch from Northern Vancouver, Whistler, and even more Northern. -​ Ecompasses 23 different villages that total to 28.28 square kilometres → traditional territory is 6,732 square kilometres. -​ They are a part of the Coast Salish people -​ There are over 4,000 Squamish people and they have over 25 reserves now in their traditional territory. -​ In 1923, the Squamish people were spread across before, living separately, but then came together to form a governance unit → they shared financial resources (contrast of Western society rat race) and participated in enhanced political governance (they were recognized under the Indian Act as a band. -​ Reserves are not governed by municipal and provincial government. -​ All of the land is unceded. Duncan Campbell Scott: did a lot of bad things, e.g. mandating residential schools, saying ‘we must get rid of the Indian problem’. Sen’ákw: Kitsilano Reserve 6 -​ BC joined Canada (1867) in 1871. -​ It was an ancient village of the Squamish people– a reservation was established there in the 1870s; however, as the city grew, the government in 1911 through the Indian Act, forced the surrender of the reserve to the government because it was in the city. -​ They were relocated to NV and their old homes were burnt so they wouldn't come back. -​ It was the BC government that did it, despite the law being made by the Feds (the BC gov were not governed by Indian Act → they did it willingly and it was therefore illegal (and they didn't even follow the procedure through court to do it), because it wasn't their jurisdiction) -​ Now, they're planning to build apartments. -​ The laws and regulations don't apply to their land in Kits– it is surrounded by Vancouver, but they can do what they like (jurisdiction → its federal first nations reserve, governed under the Indian Act and statutes). -​ How about city infrastructure services? ← garbage disposal, water, etc. ← regulation on parking spots, parks, houses permanently in the shade because of the buildings, etc. (they didn't have to do any of the public consultations because of their jurisdiction ← any other developer would have to but they didn't). Jurisdiction (Valverde):​ Approach: legal theory and legal geography. -​ Urban areas of governance: waste management, etc. Scale: something graduated especially when used as a measure or rule, like distances on a map too– can also include ‘levels’ such as Local, Region, and Global. -​ Sociologically: scale can be an analytical choice, allowing us to focus on levels of law such as city, state, national, continental, international, indigenous level, etc. -​ Example: condo-building is usually under local and provincial law ← Senakw violates this. Jurisdiction: the power, right, or authority to interpret and apply the law (govern or legislate); a matter that falls within the court’s jurisdiction. -​ Valverde refers to jurisdiction as the governance of governance and the law of laws. So, what laws apply where, when, to whom, and how? What are the effects of the law in action? -​ Law of laws: the law that enacted federation was the British North America land, dividing authority and responsibility in different areas of governance between nations and provinces (education: provincial responsibility; policing: other than RCMP, provincial; the governance of Indigenous people: federal). -​ For sociolegal studies, exploring questions of jurisdiction allows us to see the interactions and conflicts across different legal orders, and the consequences of defining a space or problem as international, national, or local (p. 145)  -​ The term inter-legality in the article refers to interactions among different legal orders → provincial, federal, municipal etc.. Urban: relating to, characteristic of or constituting a city -​ Valverde differentiates local (a scale analysis of a location) from urban analysis (better characterizeed by question of jurisdiction and governance). It’s the difference between the local government of a small town to urban governance in large cities like Toronto. Indigenous: descended from the earliest known inhabitants of a place and especially of a place that was colonized. -​ They have their own jurisdictions, scales, etc.-- not in between provincial and federal– they have their own mode and quality. -​ Their rights were pre-existing, which are acknowledged by our governments. Interlegality: interactions among different legal orders (e.g. Senakw → they have Indigenous Rights recognized by law, existing outside of legal systems). -​ There are no treaties made with the Squamish nation but they have possession of reserves under the Indian Act rules and they’re governed by their own confederacy. -​ Their reserves are located on very valuable land. So what’s the problem? → People in Vancouver are opposed to the development and took legal action against it -​ Kits Point Residents Association takes them to court → couldn't challenge zoning rules but challenged the infrastructure agreement to the buildings (was dismissed). Jurisdiction playing out: this is a great economic partnership, great for housing, wealth for Squamish people, and into communities for education, social housing, etc. -​ City of Vancouver: non-interference with development plans, but supports infrastructure services. -​ Federal government allows it – federal approval and investment. -​ Just people upset. Dimension to the analysis: Temporality: existing within or having some relationship with time. -​ Valverde: adding in a temporal analysis (space and time analysis) can enhance the insights of jurisdiction and scale -​ In the case of Senakw, think about the influence of time → 100 years ago when they were removed from their land vs. now (why is the federal government more interested  in this agreement when they were the opposite 100 years ago → 2015: Indigenous knowledge added to curriculum, TRC report was released; 2021, mass graves found at residential schools → politics are responsive to changes in the national mood after these events. -​ Using Valverde’s theoretical tools from the reading, we can add in the dimension of time, or what we might call a public ‘mood’ of Reconciliation, to understand the huge shifts in the various governments’ approaches to the Senakw development and the Squamish Nation’s jurisdiction over their ancestral lands in Vancouver. Reading - Week 5 Mariana Valverde’s article explores the complexities of how law operates by looking at two important ideas: jurisdiction and scale. While it’s common to think about laws as working at different levels—like local, national, or global—Valverde explains that this way of thinking doesn’t show the full picture. Instead, she focuses on jurisdiction, which is the process that decides who has the authority to govern, what they govern, and how they go about it. This process is more complicated than just dividing laws based on territory or space, and Valverde argues that by paying attention to these legal details, we can gain new insights into both legal and social theory. Key Themes: 1.​ Scale and Governance: ○​ Scale refers to the different levels at which laws and power operate—like local, regional, national, and global. While scale is important for understanding how governments work, Valverde believes it doesn’t fully explain how legal authority functions. ○​ She introduces jurisdiction as a more effective way to understand governance. Jurisdiction determines not just the territory where a law applies, but also who has the right to enforce it, what they can control, and how they should do it. This makes it a much more flexible and dynamic system than simply dividing things up based on geographic boundaries. 2.​ Jurisdiction’s Role Beyond Scale: ○​ Jurisdiction doesn’t just divide space or assign authority to specific places. It works in multiple ways—determining who governs, what they govern, and how they govern. For example, national law might deal with big issues like constitutional rights, while local law might manage specific things like zoning or traffic rules. Jurisdiction organizes all of this without direct conflict by keeping these different types of law operating in their own spaces. ○​ Once a jurisdiction is decided (like determining whether an issue falls under municipal, state, or federal law), it often automatically decides how that issue  will be governed. For instance, if a particular resource is categorized under national jurisdiction, then national governance rules apply. 3.​ Temporal Dimensions of Governance: ○​ Valverde adds that time is an important, but often overlooked, factor in how laws are applied. Different legal processes operate on different timelines. For example, criminal law looks at the past to determine guilt and deliver punishment, while regulations like environmental laws are concerned with the future, aiming to prevent harm. ○​ Jurisdiction doesn’t just organize governance by space; it also sorts how laws operate over time, giving it an extra layer of complexity. 4.​ Police Power and Urban Governance: ○​ One of Valverde’s key points is how police power works in cities. Police power isn’t just about enforcing criminal laws—it’s also about regulating daily life to maintain public order and welfare. This includes things like public health regulations, safety measures, and even moral issues. ○​ At the urban level, this power is very flexible and often involves discretionary decisions—meaning that city officials can make decisions based on specific situations. These powers aren’t as strictly bound by laws as national or constitutional rules, allowing local governments to adapt regulations to fit their communities. 5.​ Interlegality and ‘Bad’ Legal Pluralism: ○​ Interlegality, a concept from Boaventura de Sousa Santos, explains how different legal systems (like local, national, and international laws) overlap. Valverde says that jurisdiction helps manage the conflicts that arise between these systems by keeping them separate and organized. ○​ However, this division can lead to “bad” legal pluralism, where rights that exist at one level (like national constitutional rights) don’t necessarily apply at another level (like local governance). For example, local governments may enforce rules that don’t align with broader legal principles, but this goes unnoticed because the different levels are kept separate by jurisdiction. 6.​ Critical Legal Studies’ Turn to Legal Technicalities: ○​ Valverde argues that legal scholars often overlook important technicalities, like how jurisdiction works. These details are essential to understanding how legal power is exercised. ○​ By focusing on these “technical” aspects, Valverde believes that both legal scholars and social theorists can learn more about how governance actually works. She calls for more interdisciplinary study, where different fields come together to explore these hidden mechanisms. 7.​ Skepticism Toward Over-Reliance on Scale: ○​ Valverde warns that relying too much on spatial ideas, like scale, can oversimplify how legal governance operates. While it’s easy to understand laws as applying at different levels, jurisdiction goes deeper by organizing not just the space but also the method and timing of governance.  ○​ She emphasizes that jurisdiction is much more complex than simple geographic divisions, and focusing only on scale risks missing important details about how power really works. 8.​ Examples of Jurisdiction in Practice: ○​ To illustrate how jurisdiction operates, Valverde uses real-world examples. One case involves Canadian law deciding whether Inuit people were classified as “Indians” under federal law. This classification had huge implications for how they would be governed and what rights they would have. ○​ Valverde also discusses how cities regulate everyday activities, like mandating when people must put out their trash or how they can modify their homes. These local regulations often go beyond what would be allowed under broader national laws, but jurisdiction allows them to coexist. 9.​ The Urban as a Legal Scale: ○​ Valverde points out that urban governance is not just a smaller version of national governance. Cities have their own set of priorities and rules, especially through the use of police power, which is specifically designed to manage the unique challenges of urban life. ○​ By focusing on the urban level, Valverde shows how local governance can be much more flexible and responsive than national laws, allowing cities to manage problems like public safety, health, and order in ways that are tailored to their specific needs. Conclusion: In “Jurisdiction and Scale,” Valverde challenges the idea that legal power can be fully understood through geographic or spatial models. Instead, she focuses on jurisdiction, which organizes governance in a more complex way by sorting who governs, what they govern, and how they govern across both space and time. By studying these legal technicalities, Valverde offers a richer understanding of how law operates, arguing that both legal scholars and social theorists need to collaborate more to uncover the hidden mechanisms of legal governance. By looking at both the spatial and temporal dimensions of law, as well as the discretionary nature of local power, Valverde provides a more complete picture of how legal authority works in practice. Lecture 7: Criminalization, Racialization, and Legal Personhood Sally Merry - “The Criminalization Approach: Legal Anthropology of Everyday Life” Everyday is a realm of tacit and commonsense social -​ Professor of Anthropology practices existing outside the formal institutions of at New York University the law, but acknowledges that law shapes everyday (NYU) social life, even for those who never step inside a -​ Focused on law and courthouse, because it orders our behaviour. colonialism, neighbourhood -​ Two ways in which the law orders everyday justice, human rights, include: when people ‘go to the law’ asking gender violence, and for help (e.g. calling 911 or social services); sociolegal studies. and when everyday social practices are re-defined as crimes– a process known as criminalization. -​ Example: think about the criminalization and decriminalization of weed– how did that shape social relations and lives. -​ You still experience law which shapes your behaviour even if you haven't come in direct contact with the law. -​ Merry focuses on the process of criminalization, exploring how it occurred and how it was resisted in three processual (legal processes) case studies. Criminalization: the re-defining of customary practices as crimes or the reinterpretation of everyday behaviour as an offence against the state– something regulated by the CJS -​ Looking at criminalization in colonial contexts– example British colonial Africa when people who were recently emancipated from slavery were often criminalization via the application of vagrancy and intoxication laws as a way to control their ‘freedom’ and to habituate them to a new regime of wage-work (vagrancy laws– the U.S.) First case study: Potlatch Ban under the Indian Act Focuses on the role of Christian missionaries advocating for the criminalization practice as part of the civilization mission or policy that was shared by the state and the missionaries. -​ She highlights how: 1.​ The community resisted; 2.​ The police refused to implement the law as it was clearly discriminatory 3.​ The white settler community was not supportive of criminalization. -​ The Rhetoric vs. Reality of law. Potlatches– huge events with feasts in longhouses as celebrations, ceremonial dances, storytelling, etc.– were criminalized from 1884 to 1951. -​ It was a way to keep their history and culture alive → was their own way of enforcing their own law and way of being. -​ The government wanted to criminalize everything to do with their culture– they  didn’t like that it was a way for them to have their own economy → they’d redistribute their wealth, sharing → they didn’t like them sharing their wealth (they have giveaways there) -​ The very existence of the system was anti-capitalist and community-based → government wanted Canada to be liberal-individualistic and convince people it was meritocratic and if you ‘work hard, you will be rewarded’ and that ‘your outcome is your own doing’. -​ They wanted to assimilate Indigenous people into the dominant British commonwealth system. Public Consciousness and Historical Consciousness– Extension of Legal Consciousness: Merry observes that criminalization can be studied in three different ways: 1.​ Analyse the legislative, formal processes by which a practice become illegal (law on the books) 2.​ Focus on the implementation of the criminalizing laws by tracking arrests → records (law in action) 3.​ Identify how the new laws become legitimate as public consciousness transforms to redefine conduct as criminal. -​ Can be viewed conversely for decriminalization. Merry’s example of the criminalization of the Potlatch demonstrates that ‘public consciousness’ in the communities did not support its criminalization. -​ Indigenous resistance to the criminalization of the Potlatch was less contested by white settlers because the practices was seen as “harmless entertainment” -​ Government policy and religious missionary attitudes about the practice differed from settler attitudes ‘on the ground’.’ Note: remember terms of categorization, construction and binary pairs– relevant for criminalization. Practicing analysis: 1.​ Think about Merry’s 3 step analysis to identify the processes of criminalization  2.​ Think about law in the books– what laws and policies– and the law in action– how were the policies implemented? 3.​ Think about public consciousness- in what ways did language and ideas like binary pairs work to shape public attitudes and ideas about groups of peoples and criminal activities. Barrington Walker - “Introduction: We expand on law in the books vs. law in action by From Property Right to Citizenship including another expression of the analysis of ' Rights - THe African Canadian ‘formal legal equality’’ (vs. social inequality) and Legal Odyssey Historical consider also the term ‘rhetoric vs. reality’. Essays…” -​ A Professor of History at Concept: Formal legal equality: McMaster who focuses on When laws apply equally to all persons and ‘on their the histories of Black face’ appear not to discriminate or differentiate Canada race, immigration between groups of persons. and law– legal historian -​ Formal legal equality: law on the books with critical race analysis. (everyone has rights and it is applied equally according to the Charter) → laws are “facially neutral” -​ He argues that much of the Black Canadian legal experiences occurred in the precarious space between the formal equality of the legal system and the social inequality that characterized daily life. Walkers approach: critical race theory and legal history: Critical race theory is an approach that centers scholarly analyzes on processes of racialization, historically and in the present, tracing the structural and individual effects of racism in politics, economies, law, culture, etc. -​ There is censorship or banning of teaching it in some states. -​ Magbouleh also uses CRT. Legal history is an approach that encompasses both the study of history using legal sources as well as the study of law in historical context -​ The chapter he edited employs both approaches. His argument: laws in Canada were often not explicitly race-based but that legal ambiguity often had racializing and discriminatory effects because it served to empower white people and institutions. -​ Lives of Black people in Canada were shaped in the precarious space between the formal equality of the Canadian legal system and the social inequality that characterized daily life -​ The de facto segregation practices such as seperate movie theatre seating– like in Viola Desmond's case– there was no law banning seating together but it was practiced by the theatre anyways. -​ The existence of formal equality in Canada shapes Canadians’ emotional attachment to the idea of Canada as a refuge haven, being ‘colour blind’ and better than the US with them having slavery and racial injustices– this is a case of rhetoric vs. reality– we want to remember the good old days. Legal and socio-legal concepts that structured the system of legal slavery: Definitions: 1.​ A legal person: a legal entity with the ability to enter into contracts, own property, etc. 2.​ Natural person: a human being that might not be considered a legal person (e.g. a minor → can’t vote, held accountable by the law ) 3.​ Juridical person: a non-human cooperation, agency, NGO, etc. that has a status of a legal person for the purposes of legal recognition (e.g. enter into a contract, own property, have a bank account, etc.) -​ Recently, non-human entities such as rivers have recently been granted status as legal/juridical persons for purposes of environmental protection. 4.​ Property: something owned or possessed with someone having the exclusive right to possess it 5.​ Chattel: an item of moveable or immoveable property (e.g. laptop)– in relation to slavery, humans as property. 6.​ Slavery: a practice of holding slaves– the state of a person who is a chattel of another. In the legal system of racial slavery, enslaved natural persons had the legal status of property, and not that of a legal person -​ This was possible through centuries of racialization (race as a social construct– giving racial character to someone by categorizing, marginalizing, etc.) Racialization: the process where previously non-racially defined groups were labelled and differentiated on the basis of physical or geographical characteristics → Most often given to bestow advantage to white racial meanings and disadvantage to most others -​ This is how racial meanings were ‘constructed’ -​ These meanings were then encoded in laws and enforced via legal and social practices -​ Racial hierarchies were created to justify social and legal regimes such as the Transatlantic Slavery and Settler Colonialism– systems designed to expand and enrich European empires and wealth. History: Black and Indigenous slavery in North America Colonialism and Transatlantic Slavery are intimately linked. -​ Transatlantic Slavery- the triangular trade route for the movement of enslaved persons and goods by ship from the 16th century– it was an economic system regulated by systems of law and trade -​ Participating nations: England, France, Portugal, Spain, Denmark, and Netherlands. -​ Over 12 million people were stolen from Africa and sold into slavery. Laws: in New France: Le Code Noir: encoded systems of rules for the purchase, sale, transport, forced baptism, and treatment of the slaved under the French regime. -​ Intentions: apply primarily in the French colonies in the Caribbean, where the forced labour of enslaved persons on plantations produced -​ Served as the basis of customary law and Walker: slavery was a legally sanctioned institution in New France– Royal assent was granted from France to enable usage of Black and Indigenous slaves. -​ Ordinances and proclamations were also made by logical officials through the 1730s to clarify and affirm the property rights of slave owners. -​ Indigenous ‘Panis’: Indigenous slaves. After Brits won the war, the Articles of Capitulation which maintained the status of enslaved Black and Panis slaves as property of their owners under the new British regime -​ Walker: under British rule, the system of slavery was reinvigorated → the complexion of it changed from being Indigenous to mostly Black slaves from the Transatlantic trade (slavery was still legal in Britain then) -​ Records of fugitive slave advertisements in Quebec newspapers offer a perspective on the agency and resistance of enslaved people in this period. The centrality of the Transatlantic trade economy in the Atlantic region connected cities ike Halifax and Montreal with more slaves, products, and profits -​ Some jurisdictions did enact positive laws for it. Upper Canada new laws: -​ Walker describes this legislation as a gradual emancipation act that prohibited the importing of new slaves into Upper Canada and required that any children born into slavery shall be freed at age 25– he called that this did not free them though. 1805: Slavery banned in British Empire and colonies -​ Was only to end the TRADE of slaves -​ Then, 1833, ownership was too → included a 20 million pound fund for reparation payments to the slave owners who lost the value of their property when enslaved natural persons became legal persons. -​ A lot of aristocrats’ money in Europe was built off the slave trade. Post-slavery period in Canada: After the abolishment of slavery, there was a legal transformation from natural persons of property to legal persons.  -​ The effects of racialization and inequality persisted though -​ Formal legal equality: slavery is now illegal, law applies equal → however, there was a discrepancy between white vs. black experiences. -​ Formally equal but not really. Formally-neutral laws related to personhood (Elaborate from slides) Constance Backhouse - “‘Bitterly Based on Viola Desmonds’ 1946 case → context to Disappointed’ at the Spread of the Roseland Theatre’s history and another example ‘Colour-Bar Tactics’: Viola of anti-racist activism. Desmond's Challenge to Racial -​ Carrie Best and Desmond case connected. Segregation” -​ In New Glasgow, Nova Scotia → they -​ Legal historian and law prof wouldn't allow either of them to sit in the at University of Ottawa → main floor level of the theatre because of also Briggs’ PhD their race at the Roseland Theatre. supervisor. -​ Second connection: The Clarion newspaper made by Carrie BEst which featured Viola Desmond on the front page and her case. -​ Carrie Best: actively opposed the segregated seating policy at the Theatre in 1941-42. -​ Desmond was removed from the Theatre in 1946, arrested, held overnight, and convicted of failing to pay the Amusement Tax when she refused to sit in the balcony level instead of the front (couldn’t be charged legally based on her race but it was racist) Segregation: the separation or isolation, a race class or ethnic group by enforced or voluntary residence in a restricted area, through barriers, or other discriminatory means. -​ In the US, there was a legal system of segregation (de jure → e.g. Jim Crow legal system laws discriminating Black people and enforcing segregation); but, in Canada, we mostly had de facto segregation. -​ In the US, in Southern US states, some states, like Alabama, didn’t have as many segregational laws because their social practices already enforced it – didn’t need to be in law (less on the books but more inaction) → translate this into Canada (more discrimination in action than in books) Primary sources: documents and items produced at the time → e.g. archives and court documents. Secondary sources: documents written about the event like research. Desmond was convicted of it and chose to appeal the charge and speak out – e.g. the newspapers -​ She was going to contest in law -​ In the theatre, she resisted. (legal consciousness) Law was neutral but it was used in different ways → everyone has to pay the Amusement Tax. The Carrie Best case was earlier: she sued the Theatre for the same discrimination as Desmond → her lawsuit was dismissed and had to pay their fees. -​ She did a test case and it caused this so she founded The Clarion newspaper -​ This changed public consciousnesses’ understanding which brought change. Today, Desmond is on the $10 Canadian bill. -​ Her work with Best is honoured today → incited provinces and then finally the federal government to bring Bill of Rights (1960) Today’s Systemic Discrimination: The systems that organizations have in place which, while they may appear to be neutral on their face, create impacts that perpetuate and exacerbate disadvantages experienced by a historically marginalized group– systemic discrimination is hard to see but the impacts are real. -​ Carding or streetchecks also known as stop and searches –example. -​ Black people are disproportionately stopped by cops → significantly more likely. -​ Carding: cop randomly stops someone and asks them to identify themselves, what they’re doing, their criminal history– they write it all down and file it (they put it into AI systems which gives us the discriminatory AI we have today) Toronto Police saw this complaining: stopped them from recording street checks, despite the cops persisting the checks.  -​ Qualitative research shows that the disproportionate carding and searching still happens despite the Police not recording it anymore. -​ May have eliminated formal documentation of street checks but it has not changed the racial disparities in police stop and question activities– the elimination of the street check paper trail did not eliminate evidence of racial profiling. Lecture 8: Legal Pluralism and Indigenous Legal Orders Legal pluralism refers to the idea that in any one geographical space defined by the conventional boundaries of a nation state, there is more than one law or legal system. -​ Another definition: it involves the coexistence of multiple forms of law, including state law, international law, transnational law, customary law, religious, indigenous law, and the law of distinct ethnic or cultural communities. Legal pluralism is a subject of discussion today in legal anthropology, legal sociology, legal history, comparative law, international law, transnational law, jurisprudence, and law and development scholarship. John Borrows - Kegedonce He is a Chippewa of Nawash First Nation Anishinaabe, Professor of Law of UofT -​ Is an author and is a distinguished professor. -​ Indigenous law in law school He created a special Indigenous orders law degree at UVIC. He argues that Canada’s legal system is multi-juridical (plural) in origin: 1.​ Common law tradition from England: (court-based system where precedence is created from high courts → binding decision making in smaller courts) -​ You present previous precedents in court to be considered in decision making. 2.​ Civil law from France: in Quebec, they have maintained their own distinct French-approach to the legal system → they follow a specific document/code → Civil Code (lawsuits, family law, contracts, etc.) → applies to civil cases they interpret. -​ Based on Roman law → not based on precedent → they just align facts with the case with what is in the code and then make a decision. 3.​ Indigenous legal traditions rooted in the land and  peoples that existed pre-colonization → argues for the revitalization and recognition of Indigenous law as law. -​ Related to findings of the TRC in 2015, shaping public and legal consciousness. Canada protects French people’s rights by allowing them to speak French in code, making it an official language → however, Indigenous language isn’t! -​ However, there isn’t one Indigenous language → choosing one would minimize their background and ethnicity → they have pluralism, whereas english and french only have one. -​ It can’t be captured in one law/policy. Legal Pluralism and Legal Education: -​ Legal education is in done in a law school -​ He talks about the creation of legal insiders who know all doctrines and principles; however, they were lacking Indigenous knowledge -​ Therefore, he created the indigenous law education → Indigenous legal orders information, learning philosophies and narratives of law (first degree of this kind) -​ However, each indigenous legal order is treated separately– there are no “pan-Indigenous” approaches that conflate diverse peoples into a homogenous group. -​ Legal pluralism is quite distinct in commonwealth countries → so many legal orders and cultures, easier to permit coexistence (due to power and convenience) Used to have an expansive traditional territory. -​ They have a regional organization (scale → Example 1: Anishinaabe Anishinaabe territory → regions), separated into four Governance parts: Northern Superior Region; Lake Huron Region; Southeast Region; Southwest Region. Their traditional governance is Dodem (Clan) and Guiding Principles → Dodem Governance, which is a kinship/clan structure. -​ They have different spiritual animals that relate to a different principle. Each Dodem represents a different principle/guiding philosophy: 1.​ Marten: bravery 2.​ Bear: to live a good life 3.​ Loon: humility  4.​ Turtle: wisdom 5.​ Crane: respect 6.​ Eagle: truth 7.​ Deer: love Each group has a kinship connection within their group → even if not biologically related, you have a built-in relationship based on legal traditions and cultural practices of your nation ← distinctive to Anishaanbe. As a child, you will take on the lessons from your dodem and act accordingly (e.g. example: zodiac signs → i’m calm, i like to be around people → internalized) -​ When you’re told you're a part of the group, you’ll likely take on parts of it into your identity. -​ Dodem: you have types of responsibilities/obligations based on what you’re born into; whereas, western: do what you want to do. Dodemaag (clan) system: 1.​ Bear clan: health and safety: certain responsibilities within the nation → health, policing, military, etc. 2.​ Loon: internal affairs: dealing with equality, employment, labour, rights 3.​ Turtle: law makers: justice, criminal law 4.​ Crane: external: family relations, property, youth 5.​ Eagle: education, culture, language 6.​ Deer: social: social development, child well-being, welfare 7.​ Marten: economic development: lands, resources, agriculture, development. -​ Modernization of the long history of the dodem system. -​ You inherit whichever clan from your family. However, if you have particular talents but are a part of a different dodem, you are obligated to act according to your talent to benefit the community. -​ Governance traditions from Annishanabe from time immemorial. Historical background: Toronto Purchase Treaty → Upper Canada prior to 1867 and they purchased land (1805) -​ Used to have a river. Signature page between Anishabe chiefs (called Ogimaa) and the government– their signatures were which clan they were (drew a crane, or bear, etc.)  -​ They were signing as representatives of their Dodem clan -​ Cranes were often external affairs, so the majority of the signatures were cranes. -​ This is how they signed treaties → the Ogimaa had the authority to sign it. Example 2: Background and Traditional Territory: Haudenosaunee Great Law 1927-1951: Indian Act prevented lawyers from representing of Peace Indigenous people 1701: The Great Peace at Montreal: An agreement between the Haudensaunee and French → the insignia was similar but different to the Anishinaabe. -​ They had different creatures and signed documents similarly -​ Showed the historical lineage of these ideas and persists into the present. Videos discussed in the readings for the week: The Ohen:ton Kariwatehkwen (near Cornwall) Words Before All Else: “now our minds are one” -​ The Thanksgiving Address plays each morning and evening on Akwesasne television. In oral traditions, they have open gatherings before saying anything important → the words that come before all else (a ceremony, a part of Indigenous legal tradition that recognizes all life forms and their relationships, bringing together everyone as one). -​ The way it’s said varies, but it’s in their law, thanking their creator. -​ They go through all aspects of creation and nature → “the good mind” coming together is how they do legal order peacefully → done through consensus. Their creation story: there was a sky woman → fell from sky people island and created Earth with the creature