Interrupting the Legal Person

Austin Sarat, Austin Sarat

• Publisher: Emerald Publishing Limited
• Year: 2022
• ISBN:
  9781802628654
• Topic: Scienze sociali
• Subtopic: Sociologia

This special issue is part one of a two-part edited collection on interrupting the legal person, and what this means. Should we think of the legal person as a technical and grammatical question that varies across different legal traditions and jurisdictions? Does this cut across different ways of living and speaking law?

The chapters in this volume interrogate the role of the person and personhood in different contexts, jurisdictions, and legal traditions. This volume is an appealing read for anyone interested in rich contemporary conversations around legal personhood, and in interrupting and interrogating assumptions which we may take for granted.

CHAPTER 1

REFRAMING COLONIAL LAW’S CRIMINALLY ACCUSED PERSONS

George Pavlich

ABSTRACT

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.

Keywords: Criminal accusation; legal persons; colonial criminalisation; settler-Colonial Law; postcolonial justice; indigenous law

INTRODUCTION

The disproportionate numbers of Indigenous people in Canada’s criminal justice institutions, signalling an enduring colonial legacy, has been well documented (e.g., Cunneen & Tauri, 2016; Monchalin, 2016). What is less well known is how such an inequality might be related to a persistent political logic at opening socio-cultural instants of criminalisation, at moments where selected persons are hailed into being as criminally accused individuals. Forming these subjects echoes an ancient Greek use of the word ‘accuse’, which was related to kategoria and debates over how best to categorise happenings (Antaki, 2017); but it also connotes the Latin crimen that suggests (among other senses) a ‘calling to account’ (Ayto, 2011). The importance of accusatory openings to colonial law’s ways of calling subjects to account is nicely captured in a courtroom drama described in J. M. Coetzee’s Schooldays of Jesus. Readers encounter an accused individual standing before a court, blithely declaring his acceptance of its accusations and charges of guilt. The judge responds with a vigorous reproach:

You say further that you do not want to save yourself. But your salvation is not a matter that rests in your hands. If we, your judges, do not do our best to save you, following scrupulously the letter of the law, then we will have failed to save the law … we have a responsibility to society, a grave and onerous responsibility …. But we have an equal responsibly to save you the accused from yourself, in the event that you are or were not yourself as the law understands being oneself to be. Am I clear? (Coetzee, 2016, Kindle Loc 2063–2068)

Thus, law is ‘saved’ so long as it maintains concepts of the persons it accuses and targets, and upon which its gaze alights. Forging such persons is a foundational – if fictional – matter for law, and one that starts with procedures that mould accused persons to face particular kinds of legal scrutiny. This is why Agamben insists that, ‘what defines the trial is neither guilt (which is unnecessary in archaic law) nor punishment but rather the accusation’; that is, ‘the accusation is perhaps the juridical “category” par excellence (kategoria means “accusation” in Greek), without which the whole edifice of law would fall apart’ (Agamben, 2011, p. 23). Hence, from this vantage, criminal law is founded on the accusations that categorise and shape ‘persons’ who are called to account in law, with implications for the criminal justice institutions that such processes unevenly populate.

With this approach in mind, the following chapter discusses an 1883 case in which a ‘preliminary examination’ in the Dominion of Canada’s North West Territories (NWT) is highlighted, focussing on a governmental logic that targeted individual persons at accusatory thresholds to a colonial criminal law. Although this law’s local deployment was explicitly designed to foster Dominion capitalist settlement, the idea of ‘settler colonialism’ (Veracini, 2014) was here still very much in process – following the arrival of the North West Mounted Police (NWMP), and the making of Treaties 6 (in 1876) and 7 (in 1877). Even so, emerging prejudices, identities, and divisions congruent with contested migrations from Eastern Canada, Europe, etc., are reflected by attempts to unleash Dominion criminal law to secure its visions of a settled order (Nettelbeck, Smandych, Knafla, & Foster, 2016). Further, the selected case exemplifies local practices of criminalisation in the making, reminding us that the NWT relied on preliminary examinations rather than grand juries to fix accused bodies as individuals who could confront an unfolding criminal law. Specifically, at thresholds to criminalisation, as arranged by commissioned justices of the peace, preliminary examinations materialised around a politics of masking that first imputed group membership to avowers and then relied on ‘individual’ testimony when judging whether to send an accused to trial. Colonial criminalisation was thus initiated by recognising specific kinds of persons in society before focussing that gaze on the individual persons it cast as the accused.

Although these notions of legal persons have immediate roots in imperialising English common law, their colonial appearance simultaneously traced western discursive genealogies of personhood. With a passing look at this rich lineage, the discussion highlights how threshold entryways to colonial criminal law required accused subjects to don socially ordered ‘masks’, or personas, when facing its examinations as individuals. Embracing the contingency of such masking, the chapter turns to Naffine’s (2003, 2009) analyses of ‘legalistic’ approaches to persons as historical fictions (rather than metaphysical realities). The analysis then explores the possibility of retelling law’s individualising narratives, thus reaching for different legal objects. It alludes to qualitatively different versions of accusation that focus law around collective rather than individual persons, thereby amending its objects and surrounding socio-legal processes. The concluding allusions imply altered incarnations of law, accusation, and different promises of (social) justice.

AN EXAMPLE: CRIMINALLY ACCUSING AN INDIVIDUAL PERSON

On a cold eighth day of February 1883, near of Calgary, a man described as a ‘rancher’, Joseph Moss, laid an information and complaint to a commissioned justice of the peace, and officer of the NWMP (named McIllree). Less than a decade previously, in 1874, this police force had embarked on a marathon route march from Fort Garry (Winnipeg) to assert its jurisdiction over criminal matters throughout the Dominion defined NWT.¹ Emerging as a colonial institution capable of receiving crime-related information, it ‘heard’ Moss’s accusation that a man named as ‘Cutlip’ – and described as a ‘Sarcee Indian’ on the charge form – had stabbed him in the back.² The colonial misnaming of Tsuut’ina Nation as ‘Sarcee’ may reflect a legal requirement to reference a social position without a concomitant obligation to ensure fidelity to those named. Regardless, a month later, McIllree convened a preliminary examination to determine whether there was sufficient evidence to send the matter to trial.³ Eclipsing long traditions of Indigenous legal pluralism, the Dominion of Canada championed these localised arrangements as the legitimate law of the day, thus responding to calls to bring so-called ‘civil law’ to lands identified for western migration, and to enforce its law on what was misconstrued – given established Indigenous laws (Borrows, 2010) – as a ‘lawless’ place (W. F. Butler, 1878; Robertson-Ross, 1872). Its rhetoric to ‘enforce the law’ championed ‘European settlement’ that by its reasoning meant bringing ‘civilization’, socio-cultural, and economic ‘advancement’ (Harring, 2005; Macleod & Rollason, 1997; Nettelbeck et al., 2016; Nevitt & Dempsey, 2010).

One-hundred-and-forty years later, with echoes of Kafka, I sit before an archived instance of that Dominion law, proclaimed through faded scrawls on edge-torn pages. Alert to Derrida’s (1996) caveats about the work of governors (archons) in what is archived, however, my limited aim is to fuse meaning horizons of now and then as a gesture towards an unfolding political logic; namely, how colonial law’s criminalising gaze brought certain accused individuals into focus. Making anachronistic sense of that gaze through a local instance of a preliminary examination, one glimpses contours of a target: an accused person with presumed social ties is called to account as an individual – thus averting legal scrutiny of the dispossessing collective structures that colonial law upheld (Nettelbeck et al., 2016; Pavlich, 2019). The following engagement with an example, then, aims to illustrate how individually conceived accused persons, located in social hierarchies, were shaped into being by the preliminary examination of a colonial criminal justice paradigm. Rather than approaching this case as a sampled representation, though there are many similar stories of examinations, the methodology is an interpretative one. Akin to Foucault’s (1995) use of the panopticon to signal disciplinary powers, it analyses out of a case (Forrester, 2016) which is viewed as an example of a wider political paradigm (Agamben, 2009). The aim is to engage an unfolding colonial political logic whereby a criminally accused individual could be called to account alone for a criminal act at a gateway to colonial criminalisation. Such a move highlights what Nietzsche called the ‘lowly beginnings’ of criminal justice, and points to an often-eclipsed politics of accusation that feeds today’s vast and unequal crime control arenas (e.g., Alexander, 2010; Cunneen & Tauri, 2016; Monchalin, 2016; Wacquant, 2009).

One might note that despite the grandeur of the rhetoric, the Dominion’s political capacity to call subjects to account for crimes rested on the deployment of a few hundred police officers across a vast area of land, spreading from Manitoba to the Rocky Mountains. Even if seldom emphasised, preliminary examinations lay at the centre of its unfolding criminal law. It is here that criminalisation in the name of a colonial sovereign was initiated. So it was that a justice of the peace (McIllree), following an accusation by Moss, claimed a legitimate capacity to call an individual, formally (mis)named as ‘Cutlip’, to account for ‘grievous bodily harm’. Through I did not encounter case records to indicate the accused man’s worldviews, one might imagine how his familiar meaning horizons were disrupted as the police arrested him from everyday life, calling him to account as one accused of ‘grievous bodily harm’ under the omniscient threat of its force – no doubt indicating the complex motivations, from arrest to indictment, by which colonial law’s powers swamped his altered world. Furthermore, if the English language spoken was unfamiliar to the accused, the inflected legal idioms might have been even more so; translations too were problematic with radically different voca...