This chapter examines the role of the person in modern constitutional law. Through a reading of two Canadian Supreme Court decisions – RWDSU v. Dolphin Delivery and R. v.…
Abstract
This chapter examines the role of the person in modern constitutional law. Through a reading of two Canadian Supreme Court decisions – RWDSU v. Dolphin Delivery and R. v. Malmo-Levine – it suggests that while the person is the subject of modern constitutional law’s protective gaze, it can also sometimes function as a scapegoat, taking the fall for harms engineered in part by the state (harms, in other words, that really ought to attract constitutional scrutiny given constitutional law’s orienting preoccupation with ‘state action’). Rather than dismissing these gestures as a result of defective legal reasoning in the cases examined, the chapter suggests that the selective erasure or forgetting of state action is in fact essential to the production of the suffering subject – the constitutional person – that modern constitutional law is supposed to protect, precisely, from the state. In effect, then, the chapter claims that modern constitutional law produces the person by ignoring or at least downplaying the role of the state in certain contexts and, hence, by reneging intermittently on its primary task: the application of legal scrutiny to coercive state action.
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In the first decades of the nineteenth century to the first decade of the twentieth century, the US Federal and Supreme Courts heard several cases on the legal status of ships…
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In the first decades of the nineteenth century to the first decade of the twentieth century, the US Federal and Supreme Courts heard several cases on the legal status of ships. During this period, Chief Justice John Marshall and Justice Joseph Story determined that a ship was a legal person that was capable to contract and could be punished for wrongdoing. Over the nineteenth century, Marshall and Story also heard appeals on the illegal slave trade and on the status of fugitive slaves crossing state lines, cases that raised questions as to whether enslaved peoples were persons or property. Although Marshall and Story did not discuss the ship and the slave together, in this chapter, the author asks what might be gained in doing so. Specifically, what might a reading of the ship and the slave as juridical figures reveal about the history of legal personhood? The genealogy of positive and negative legal personhood that the author begins to trace here draws inspiration and guidance from scholars writing critically of slavery. In different ways, this literature emphasises the significance of maritime worlds to conceptions of racial terror, freedom, and fugitivity. Building on these insights, the author reads the ship and the slave as central characters in the history of legal personhood, a reading that highlights the interconnections between maritime law and the laws of slavery and foregrounds the changing intensities of Anglo imperial power and racial and colonial violence in shaping the legal person.
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This chapter compares a ‘deific decree’ insanity case with constitutional originalism debates as a way to understand the boundaries of the legal person and the nature of law. The…
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This chapter compares a ‘deific decree’ insanity case with constitutional originalism debates as a way to understand the boundaries of the legal person and the nature of law. The criminal defendant who claims innocence on the ground that ‘God told me to’ does not embody a conflict between law and religion, but a conflict between law’s demand for intersubjectivity and the subjectivity of a ‘higher truth known only to me’. In the same way, the originalist interpreter of the constitution rejects precedent in favour of a higher truth that need not be ‘like’ anything before. One approach to broaching this conflict between law and revelation is to understand law’s domain as temporal and incomplete – to imagine a humble rather than absolute law. On this view, the person is also not ‘absolute subjectivity’, but is compelled by legal fidelity to treat like alike and therefore under an obligation to imagine a ‘me’ as ‘we’. Or, to put it another way, to bring the person and the law into relationship is to reject a ‘revelatory’ interpretation of ‘original’ or ‘divine’ law in favour of an incompletely intersubjective common law that links me to we through customs and time. At the same time, by acknowledging law’s incompleteness, we can see unreasonable revelation sometimes as a possibility and not always as an insanity.
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In this chapter, Arendt’s reflections on the question of personal responsibility are taken as a discussion of ‘interrupting the legal person’. Examining trials that took place…
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In this chapter, Arendt’s reflections on the question of personal responsibility are taken as a discussion of ‘interrupting the legal person’. Examining trials that took place after World War II, Arendt observes in ‘Some Questions of Moral Philosophy’, ‘What the courts demand … is that the defendants should not have participated’ (pp. 33–34). Following Arendt, the author argues that thinking could have enabled possible perpetrators of great evil to meet this demand, for when a person stops to think, whatever they are doing is interrupted. What is more, the person who stops to think is themselves interrupted by thinking. In brief, becoming aware of the possibility that they exist as a person in a mode other than what Ngaire Naffine calls ‘the responsible subject’, thinking disrupts the legal person. A discussion of thinking as interrupting the legal person thus illuminates not only what may turn a person away from participation in the life of a criminal state, but also what that turn means for responsibility.
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This chapter studies a political rationale by which colonial law forged socially assigned individuals as criminally accused persons. Focussing on archived documents of a…
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This chapter studies a political rationale by which colonial law forged socially assigned individuals as criminally accused persons. Focussing on archived documents of a preliminary examination that took place in 1883 in the North West Territories (now Alberta), it highlights how an accused person was moulded as a culpable individual. Arranged by a justice of the peace, and member of the North West Mounted Police, the investigation in this case reveals how colonial law unleashed an individualising force that obscured power relations behind the settlement it aimed to further. The unequal ways in which certain distinctions of person were legally recognised and individualised may be traced to long-standing western uses of social hierarchies as ‘masks’ from which law unequally recognised persons. Challenging such approaches to personhood, the analysis works off Naffine’s ‘legalistic’ ideas of persons as fictions, calling for a retelling of the fictions around accused persons. By pointing out the possibility of accusing relational rather than individual constructions, it concludes with a brief insinuation of legal forms directed at ‘collective persons’, interrupting a key political logic of colonial criminal law with allied promises of social justice beyond colonisation.
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In this chapter, the author explores the conditions of sexualised, gendered violence against Indigenous women and girls. The author asks how various responses to this violence…
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In this chapter, the author explores the conditions of sexualised, gendered violence against Indigenous women and girls. The author asks how various responses to this violence have shaped the present-day legal personhood of Indigenous women and girls from two perspectives: an Indigenous legal perspective and a Canadian legal perspective. To avoid the troublesome pan-Indigenous generalisations of legal personhood, the author focusses on one Indigenous society, the Gitxsan people from northwest British Columbia and their legal order and laws.2 The author examines several specific questions about how the Gitxsan legal tradition historically defined the legal personhood of Gitxsan women and girls, and how this has changed with colonisation. The author takes up specific aspects of the operation and structure of Gitxsan law and legal institutions and analyse the ways that they are gendered.
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Amy Swiffen and Shoshana Paget
This chapter looks at how the concept of biopolitics can be used to understand the settler colonial legal orders. The focus is on the evolution of the definition of ‘Indian…
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This chapter looks at how the concept of biopolitics can be used to understand the settler colonial legal orders. The focus is on the evolution of the definition of ‘Indian status’ in the Indian Act, which is the central piece of legislation in Canada’s Indian administration regime. Historically, the legal concept of Indian status was used as a way to constitute a population in relation to colonial sovereignty, and later was adapted as a mechanism to internally dividing the population through complex forms of legal domination. Scholars have turned to Michel Foucault’s studies of biopolitics and racism to understand how settler colonial sovereignty relates to a population on a territory. This chapter argues that Foucault’s analysis was radically historically embedded in a way that shapes its relevance to understanding settler colonialism. In Foucault’s original analysis, racism emerges as tool of the state in the relation between territory and sovereignty, which was characteristic in feudal Europe. In settler colonial legal orders such as Canada, however, sovereignty’s relation to the population is constituted in the absence of a prior connection to the land.
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This chapter examines the 1999 trial of Aaron McKinney for the murder of Matthew Shepard, a gay student at the University of Wyoming whose death propelled forward an incipient…
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This chapter examines the 1999 trial of Aaron McKinney for the murder of Matthew Shepard, a gay student at the University of Wyoming whose death propelled forward an incipient movement to legislate against hate crimes. It explores the competing ways in which Aaron McKinney was conjured as a legal persona, defined through the opposing lenses of gay panic and of homophobic hate. It situates those personae in conflicting narratives of criminal culpability emerging out of indeterminate legal doctrines and definitions (the unwritten law; the meaning of ‘malice’), and argues that in conjuring them, adversarial criminal trials necessarily destabilise the ‘default legal person’. In doing so, trials performatively reconstruct the past in ways that both mark and mask a past events. In the McKinney case, contests over his culpability emerged against a backdrop of loss, both epistemological and affective, generating a projective reckoning with Shepard’s death in ways that enabled a politically transformational mourning process.