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Freedom, Law, and the Colonial Project

Abstract

In this essay I develop a Marxist-informed anticolonialist position, and from this position I assess the role of law in the early Canadian settler-state. I claim that the flexibility of law is a measure of its restitutive and exploitative facets, such facets that operate dialectically as a means of moderating between the settler-state’s liberal democratic ideals (e.g. individual freedom and enfranchisement) and its capitalist imperatives (e.g. privatization of land, expansion, and profit). Law plays an integral role in this context because, by performing this moderating function, it stabilizes the socio-economic order of the emergent settler-state. In the second half of this essay, I enrich my theoretical analysis by examining the variable legal subjectivity of early Ukrainian immigrants to Canada. This historical perspective allows me to illuminate the intricacies of the logic that informs law’s flexibility, and to show how the liberal democratic principle of freedom was—and continues to be—both extolled and compromised by the law’s moderating function.

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Notes

  1. 1.

    I say ‘Marxist-informed’ and not simply ‘Marxist’ because a significant gulf exists in the field of Marxist-informed approaches to law that would be overlooked if I were to assume ‘a’ Marxist conception of law.

  2. 2.

    This periodization focuses my study on the first wave of Ukrainian immigrants to Canada, and allows me to concentrate on the social construction of Ukrainian legal subjectivity from immigration to post-internment.

  3. 3.

    Linda Tuhiwai Smith explains that the term ‘“Indigenous peoples”… internationalizes the experiences, the issues and the struggles of some of the world’s colonized peoples’, but ‘[i]t is also used as a way of recognizing that there are real differences between different indigenous peoples’ (Tuhiwai Smith 1999, p. 7). Following the work of Taiaiake Alfred and Jeff Corntassel, however, I capitalize the ‘I’ (Alfred and Corntassel 2005).

  4. 4.

    Most importantly for the purposes of this paper is the indistinguishability between life and law (Agamben 1998, p. 53). However, because this theme of indistinguishability is so central to his conceptualization of sovereign power, it runs through many of his works (Agamben 1999b, pp.79 & 83; 1999c, pp. 208 & 215; 1999a, pp. 228 & 245; 2005b, pp. 90 & especially 106; 1995, pp. 5 & 79; 1999d, p. 78; 2002, pp. 58 & 109).

  5. 5.

    This ‘always already’ relation is evident in Homo Sacer (1998, pp. 25 & 109), but also apparent in other key texts (Agamben 2011, p. 99; 2009, p. 34; 2007, p. 79; 2004, p. 80).

  6. 6.

    This is aptly expressed by Engels (2010, p. 76), who writes, ‘[t]he proletarian is, therefore, in law and in fact, the slave of the bourgeoisie, which can decree his life or death. It offers him the means of living, but only for an ‘equivalent’ for his work. It even lets him have the appearance of acting from a free choice, of making a contract with free, unconstrained consent, as a responsible agent who has attained his majority. Fine freedom, where the proletarian has no other choice than that of accepting the conditions which the bourgeoisie offers him.’

  7. 7.

    In many respects, this process is ongoing (cf. DeVries 2011; Sherman 2008), which is I why I refer to Canada’s colonial past and present at various points in this essay.

  8. 8.

    To clarify, I consider this an anticolonialist and not a postcolonialist study, a distinction that principally turns on the nature of one’s interpretation of Fanon. An anticolonialist approach tends toward more materialist—often Marxist-informed—analysis, which emphasizes the political acuity of Fanon’s writings as exemplified by his ability to link theory and emancipatory praxis (cf. Ahmad 1995; Alessandrini 1999; Bannerji 1995; Gibson 1999; de Sousa Santos 2002; Parry 2004; Sekyi-Otu 1996). Generally, a postcolonialist approach would conversely see Fanon’s thought as conceptually limited by a tendency to assess colonialism according to a dichotomous logic (e.g. black/white or colonized/colonizer), view his Marxism as a weakness, and might focus more on the psychoanalytical aspect of his work as opposed to his political statements (cf. Bhabha 1999; Prakash 1994; Radhakrishnan 1993; Shohat 1992).

  9. 9.

    Daiva Stasiulis and Nira Yuval-Davis distinguish between ‘settler societies’ and ‘“conventional” colonies’ (1995, p. 2), noting that the latter tends to maintain stronger ties to the “metropolitan centres” (1995, p. 1), and again in the latter case, that the ‘imperial power has not rooted itself through settlement’ (1995, p .2).

  10. 10.

    Canadians were exclusively British citizens until after World War II. With the passing of the Canadian Citizenship Act (1949), the legal category of ‘Canadian Citizen’ was created (Hansen 2000, p. 41).

  11. 11.

    In operating to cement the belief that Canada—specifically ‘English Canada’—is ‘a modern tolerant nation’, official multiculturalism entails ‘an ideological sleight of hand’ (Mackey 2002, p. 15). As a policy it was strategically deployed as an attack against the primarily French-speaking province of Québec and its campaigns for independence, making it such that their objectives were “equated with intolerance and racism” (2002, p. 15).

  12. 12.

    Sonia Mycak (1996, pp. 68–9) identifies five common elements that comprise the ‘pioneer myth’: first, a commentary on the dramatic challenges settlers faced; second, a statement on the settlers’ work ethic; third, an emphasis on character traits associated with their work ethic; fourth, the important role they played in nation-building; and fifth, a tendency to cite personal narratives as generalizable truths.

  13. 13.

    The same opportunity to overcome precariousness was rarely extended to the more racialized populations, such as Japanese, Chinese, Indians, and Indigenous peoples. As Roediger expounds, ‘[t]he legal equation of whiteness with fitness for citizenship shaped the process by which race was made in the US’ (2006, p. 62). In spite of differences between the Canadian and US contexts, a comparable ‘race’-logic informed Canadian citizenship in the era in question.

  14. 14.

    I use ‘positive’ and ‘negative’ not as moral equivalents to ‘good’ and ‘bad’, but in the social scientific manner, as qualitative descriptors of a specified relation.

  15. 15.

    For example, the right to receive an education in Ukrainian—federally sanctioned since 1897 in Canada—was slowly being eroded as Anglo-Canadians replaced Ukrainian teachers (Robinson 1997 p. 355), eventually leading to the repealing of the legal provision in favour of unilingual instruction in 1916 (Rudnyckyj 1972, p. 50).

  16. 16.

    This notion of ‘casting-out’ is in reference to the book by Sherene Razack (2008, p. 5), in which she addresses ‘the expulsion of Muslims from political community’, through ‘stigmatization, surveillance, incarceration, abandonment, torture, and bombs’.

  17. 17.

    In 1917 the demand for labour was complemented by the rise in grain prices. As this was an era of conscription, many Anglo-Canadians were wary of the prospect of the non-conscripted Ukrainians gaining wealth and political power during the war. The War-time Elections Act 1917 attempted to curb this trend through widespread disfranchisement (Thompson 1983, pp. 30–2; Swyripa 1983, p. 51).

  18. 18.

    This was followed in November 2005 by the passing of Bill C-331, which was assented to as the Internment of Persons of Ukrainian Origin Recognition Act (Luciuk 2006, p. 66).

  19. 19.

    The five arrested under the security certificate provision were taken in from 2000–2003 and released from 2005–2010. According to Razack (2008, p. 26), ‘[a] security certificate […] permits the detention and expulsion of non-citizens who are considered a threat to national security. Detainees have no opportunity to be heard before a certificate is issued, and a designated judge of the federal court reviews most of the government’s case against the detainee in a secret hearing at which neither the detainee nor his counsel is present.’

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Acknowledgments

Thank you to Rade Zinaic, Elleni Centime Zeleke, and the journal’s anonymous reviewers for reading and commenting on earlier drafts. Thank you also to Stewart Motha for such insightful suggestions.

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Correspondence to Susan Dianne Brophy.

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Brophy, S.D. Freedom, Law, and the Colonial Project. Law Critique 24, 39–61 (2013). https://doi.org/10.1007/s10978-012-9113-x

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Keywords

  • Capitalism
  • Colonialism
  • Freedom
  • Liberal democratic
  • State
  • Subject