Source: iStock Photo; https://www.istockphoto.com/photo/diverse-society-gm1278525115-377432025
Alanna Crouse
B.C.L./J.D. III
Faculty of Law, McGill University
July 1 2021
How do we live together?
“Sitting in the sun on perfect Stanford lawns, conference participants laughed and talked politics as though they did this every weekend. White with Black, native with immigrant, lesbian with straight, teacher with student, women with men – as though the joy of communicating across differences was their birthright.”
Mari Matsuda wrote the above in a paper in which she discussed the benefits and challenges of coalition building. It is no small task to collaborate across various identities, life experiences and priorities. This reality is well known to those living within pluralist societies. In Canada, we experience a perpetual struggle of reconciling differences. Yet the scene Matsuda describes is not a struggle, but a utopia. Through Matsuda’s eyes we see the reconciliation of differences as an expression of beauty. It is not a burden to communicate across differences and to work together – it is a birthright, even a gift. Matsuda’s blissful memory of collaboration compels me to ask: how do we get there; how can we embrace rather than wrestle with diversity, and ultimately, how can we live together?
Here, I ask the question “how do we live together” while confronting Canada’s colonial past and present. In doing so, I examine diversity through the lens of legal pluralism and explore if and how legal pluralism has been embraced in Canada. Ultimately, I assert the following: both multiculturalism and legal pluralism are absent in Canada; embracing legal pluralism and multiculturalism requires respecting the cultures of others and the decolonization of Canada; and finally, empathy and art can be leveraged to help us move towards a truly multicultural and legally plural Canada.
Given that I seek to interrogate the interaction between colonialism and legal pluralism, I necessarily, but not exclusively, look to the experiences of Indigenous peoples in Canada. It is important that I position myself relative to this discussion. I am a non-Indigenous, settler living on the stolen land of the Kanien’kehá:ka Nation. Some of my ancestors came to this land willingly, others were forced. Either way, I am not of these lands. As such, my discussion is not framed as one that dictates the collaboration of Indigenous and non-Indigenous peoples. As a settler, I am in no way entitled to demand collaboration from Indigenous peoples. Instead, this paper is a call to improvement, acknowledgement, and accountability on the part of non-Indigenous people living on Indigenous land. It is the work of the oppressor to build the bridge that they burned. This paper is a brief exploration into this process of building.
Is Canada legally plural?
Canada has garnered a reputation as multicultural, diverse and tolerant, with some even referring to Canada as a “beacon of multiculturalism”. But is this true? Does Canada live up to its brand? In exploring these questions, I turn to the work of Gary Bell. Bell argues that multiculturalism and legal pluralism are tightly linked. In his paper Multiculturalism in Law is Legal Pluralism-Lessons from Indonesia, Singapore and Canada, he states that “multiculturalism applied to law should lead to an acceptance and celebration of legal pluralism”. If law is cultural, asks Bell, then should a multicultural state not also recognize some form of legal diversity? Law is a reflection of the values and ideologies of the people who create and abide by it. Necessarily the world view of the people saturates the law. Thus, to reflect the diversity of a population, law itself must be diverse.
From this understanding, we can derive that legal pluralism can act as both a metric and a tool in the continuous work of trying to live together. A metric in that the degree to which a society embraces legal pluralism indicates the degree to which tolerance and, ideally, acceptance are embraced. On the other hand, legal pluralism can act as a tool since the adoption of legal pluralism can help move a society closer to multiculturalism. As Bell suggests, the two concepts of multiculturalism and legal pluralism feed each other.
In looking to Canada, Bell unapologetically bursts our multiculturalism bubble and undermines the identity to which we cling so desperately. Despite the Canadian Multiculturalism Act, which purports to preserve and enhance multiculturalism in Canada, and the Canadian Charter of Human Rights and Freedoms, which guarantees equality on the basis of race, national or ethnic origin, colour, religion, sex, age or mental or physical disability, Canada fails to truly embody multiculturalism. According to Bell, instead of being at the forefront of multiculturalism, Canadians are in fact lagging behind.
Bell supports his assertion by pointing to Canada’s adherence to monism in law. He states that Canada is “moving away from a position in which legal pluralism could be accepted as a necessary consequence of its cultural diversity”. This commentary draws out the fact that diversity and multiculturalism are not the same. As such, neither the demographics of our country, nor the influx of immigration over the years, justifies our multicultural facade. True multiculturalism is more than reputation deep, and requires law, a key aspect of culture, to rise to the reputation.
Bell’s assertion that Canada fails to embody legal pluralism is supported by Ghislain Otis, who examines legal pluralism via Canadian constitutional law. Otis posits that the weak recognition of Aboriginal rights afforded by the Constitution is insufficient to ground legal pluralism. Instead of permitting and emboldening multiple legal orders, the current Canadian framework is merely the state’s law imposed upon Indigenous peoples. The state does not create space for both Canadian law and Indigenous law – there is only room for the law of the sovereign.
Canada’s case law addressing Aboriginal harvesting rights and Aboriginal title shows that the Supreme Court of Canada has thus far defined Indigenous rights without making any sustained effort to apply or refer to Indigenous legal concepts. As shown in Van der Peet, the Court, composed exclusively of non-Indigenous judges, took it upon themselves to determine which activities and customs of Indigenous Nations at the time of colonization were merely incidental or, alternatively, were substantially tied to their lifestyle. In doing so, the court failed to recognize Indigenous customary law. Instead, Indigenous legal practices were and are “relegate[d] to the roles of mere exotic social factors”. As Otis states, the Court’s “analysis of customs, practices and traditions does not consider [I]ndigenous customs as ‘customary law’ but rather as ethnological phenomena, that is to say, behaviors falling within the social rather than the legal sphere”.
Canada’s reticence to acknowledging multiple legal systems is no doubt rooted in colonialism, as shown by Otis. However, it extends beyond ousting Indigenous law. At a provincial level Ontario outright rejected legal pluralism when it banned the use of Sharia law in family law arbitrations. Following heated public debate, Dalton McGuinty, Ontario’s premier at the time, banned all religious arbitration under Ontario’s Arbitration Act. In doing so, he stated that there would be “one law for all Ontarians”. McGuinty’s statement makes it clear that Ontario bows to monism in law and as such, Ontario is no home to legal pluralism.
Looking to Canada’s hesitancy and even outright rejection of Indigenous law and Sharia law respectively reveals a different story than that of multiculturalism. While it is true that Canada is house or home to people of various identities and stories, Canadians must be honest and accountable. The truth is that based on multiculturalism and its companion legal pluralism Canada has yet to master the art, or rather embrace the gift of living together.
Artist: Natalie Ball; Source: Native Arts & Cultures Foundation; https://www.nativeartsandcultures.org/programs/oregon-native-arts-fellowship
Can legal pluralism and colonialism coexist?
Canada shows an incompatibility between legal pluralism and colonialism, but is this example the rule? Is legal pluralism wholly incompatible with colonization? Such questions ask for a comparative approach and as such, we must look outside Canada to other states with colonial roots. Here, Bell helps us once more by diving into legal pluralism in Indonesia and Singapore. Bell argues that both countries are more successful in their implementation of legal pluralism than Canada, with Indonesia being the better example of the two.
Like Canada, prior to colonization Indonesia played host to a variety of legal regimes including Adat, Hindu, Buddhist and Islamic traditions. Similarly, in North America, or Turtle Island, a myriad of Indigenous Nations meant a myriad of legal traditions, many of which overlapped geographically. Unlike Canada however, the colonization of Indonesia saw the continuation of the legal traditions in place prior to the arrival of Europeans. Legal pluralism continued, albeit with a notable new dimension – the use of Dutch law by the Dutch people.
The difference in the stories of legal pluralism, or lack thereof, in Indonesia and Canada can be gleaned from the way in which colonization unfolded. First, French and English colonizers in Canada viewed the land as terra nullius; the land was considered void and unoccupied. In the eyes of the Europeans, the land belonged to no one and was home to no one. If this is so, then naturally, there is no law of the land. In this perceived absence, the way was paved for European law to fill the space offered by the “New World”. There is no need to create room for alternative legal systems where there are none. Of course, we know this to be an ignorant and racist misconception of Turtle Island at the time of contact.
By comparison, in Indonesia the Dutch arrived and saw people. Moreover, they saw peoples. Indonesia was not seen as a void and needing to be filled with Europeanness. Instead, the legal pluralism already in place was acknowledged and affirmed. Quite revolutionary compared to the history we have known in Canada, the Dutch parliament refused to impose Dutch law on all Indonesians as it would be unethical to do so. As stated by Bell, this marks “a rare moment indeed in colonial histories when a colonizer stops and thinks about the ethics of his actions”. To be clear, this is not an endorsement of the colonization of Indonesia. The Dutch were in no way an endless source of generosity or compassion. Rather, they were in Indonesia for economic gain. The survival of legal pluralism can be traced to the reality that allowing various legal regimes to continue was a strategic move to promote resource exploitation. Even so, ethics did play a role that was absent in the story of Canada.
While comparing Canada and Indonesia provides insights into Canadian colonialism, a closer comparison can be made between Canada and the colonization of various African states. Like Canada, Africa was largely colonized by the French and English. Given these sources of imperialism, it makes sense that also like in Canada, colonization of African countries led to the discontinuation of pre-colonial law. As stated by Berihun Gebeye pre-colonial and colonial law were mutually exclusive in Africa. As such, the legal pluralism that flourished pre-colonization was drastically shifted by the importation of European law.
Despites this shared story of colonization, African states, like Indonesia and Singapore, embody legal pluralism in ways unfamiliar to Canada. The “quintessential feature of legal pluralism in Africa is the existence and application of statutory, customary and religious laws in the same social field”. Of course, a crucial point of distinction between Africa and Canada is that many African states are now post-colonial whereas Canada maintains the Queen of England as its head of state. Indeed, the forces which colonized Canada, the English and the French, continue their political rule in Canada. By contrast, independent African states have been able to design a legal regime that reconciles various systems of laws across the transition from pre-colonial, colonial, to post-colonial. The result has been the preservation of customary law within various African constitutions. Thus, legal pluralism has been able to survive colonialism and find meaningful embodiment in current legal practices.
If elsewhere, why not here?
Knowing that legal pluralism is possible for a post-colonial and even colonial state, but that it remains untenable in Canadian society naturally leads to the following question: how can Canada’s fidelity to monism be disrupted? The comparative analysis above yields a pair of lessons which can help reach this goal. First, by comparing Canada and Indonesia, Bell suggests that Canada could learn that law is part of one’s culture and therefore, respect for one’s culture necessitates respect for one’s law. Second, I suggest based on the comparison of Canada and African states that decolonization enables a state to reconcile various legal periods and systems of law. In doing so, monism can be transformed into legal pluralism.
In terms of the first lesson, Bell states that there is a general need for more respect for otherness in law and in our world if we are to live together. I suggest that respect goes hand-in-hand with recognizing the agency and autonomy of those different from ourselves. In the Canadian context, it can be clearly seen that when settlers first invaded Turtle Island and disseminated European law Indigenous peoples did not have their agency or autonomy recognized. Concordantly, the cultures of the various Indigenous nations on Turtle Island were neither acknowledged nor respected. As has already been demonstrated, this lack of acknowledgement and respect continues today through the state’s refusal to acknowledge Indigenous legal systems. As such, the Court continues to deny Indigenous peoples the right to self-determination.
In terms of Sharia law, the dominant discourse in Ontario saw Islamic law as undermining women’s agency. This narrative rose in favour as it aligned with Western ideals and understanding of Islam. In Ontario, women’s agency was understood as resisting the restrictions of Islam. This narrative homogenized Muslim woman and failed to recognize the nuanced interrelation between Islam and agency. Non-Muslim Ontarians took it upon themselves to decide what gender equality and liberation means for all women. In doing so, non-Muslim Ontarians went beyond protecting the dominant culture to patronizing Muslim women. Sadly, and ironically, the Western worship of autonomy, liberty and equality robbed these values from Muslim women. Muslim women who sought dispute resolution through Sharia law were denied that choice. To embrace Bell’s lesson about respect, Ontario would have needed to have taken a more nuanced approach to autonomy.
Turning now to our second lesson, decolonization as a means of achieving legal pluralism naturally means decolonizing Canada. Decolonization interacts with our first lesson, as it is tightly linked to respect for diverse laws and cultures. As described by Jeff Corntassel, colonization of Turtle Island is a multigenerational disconnection from land, culture and family which has resulted in social suffering, the destruction of families and the erosion of the ways of being that used to be hallmarks of Indigenous societies. The colonial process that continues to generate such results does not correspond with respect and a recognition of agency. Simply, when one group respects another and sees them as worthy of agency and autonomy, they do not destroy their ways, demand cultural conformity or commit acts of genocide.
In Indonesia, recognition and respect were necessary but also sufficient for the embodiment of legal pluralism. As such, decolonization was not required for the continuity of legal pluralism. Why then is decolonization necessary in Canada for legal pluralism to finally thrive? As had been noted, the histories of Canada and Indonesia are vastly different. Canada’s history and present choices suggest that the Canadian government lacks the ethical capacity necessary for multiculturalism to flourish. From Canada’s violent origins, to the mass assimilation of Indigenous peoples, including the residential school crisis, to the continued failure on the part of the Canadian government to meet the calls of the Truth and Reconciliation Commission, Canada has proven itself unwilling and unable to view Indigenous peoples as people deserving of the right to self-determination.
As was the case in various African states, moving from a colonial to post-colonial state is what is needed to finally allow the reconciliation of differences and a reconceptualization of multiculturalism in Canada. So long as colonialism persists in Canada, multiculturalism and legal pluralism will remain aspirational. Plus, it must be noted that while legal pluralism persisted under colonial rule in Indonesia, Indonesia today is an independent nation. Thus, we cannot look to Indonesia to justify modern day colonialism in Canada.
How do we build respect & embrace decolonization?
The above analysis shows that respect for culture, recognition of agency, and a commitment to decolonization undergird Canada’s potential for multiculturalism and legal pluralism. While these are key tools in our work of trying to live together, they are not our starting point. Telling people to respect others and declaring a total reshaping of Canadian society is not going to work. Indeed, this is why we are two decades into the 21st century and still living under a thriving colonial structure with multiculturalism being little more than a well-fed myth. Before we can get to respect and decolonization, we first need to engender a willingness to move towards a societal and, correspondingly, legal revolution. More simply, we need to engender caring across differences.
Unsurprisingly, negative perceptions of “The Other” are tied to the desire to reject multiculturalism. Such negative perceptions can be linked to two causes: ignorance and fear. By contrast positive perceptions of multiculturalism are developed by hearing and knowing the stories of others, particularly stories of hardship. Thus, the hope for multiculturalism rests on the ability of individuals, particularly within the political majority, to humanize “The Other” and likewise empathize with them. To humanize is to see our own humanity reflected within another. It is to see commonality across difference, and to feel caring beyond sameness. Empathy is the mental work which enables humanization, thereby allowing us to see another as worthy of the rights, liberties and privileges we ourselves experience.
Artist: Jaime Black; Source Smithsonian Magazine; https://www.smithsonianmag.com/smithsonian-institution/these-haunting-red-dresses-memorialize-murdered-and-missing-indigenous-women-180971730/
If we return to the colonization of Indonesia, the comparatively ethical approach of the Dutch was dictated by economic exploitation however, that is not the entirety of the story. The remaining piece is that one Dutch man, Vollenhoven, visited Indonesia and was moved by the country. His experience of Indonesia and its people bred caring, understanding and respect. Vollenhoven later advocated for the ethical approach taken by the Dutch. While a truly empathetic approach is incompatible with colonialism, this story shows at least of glimmer of the power of empathy in inspiring legal pluralism.
While first-hand immersion within a culture, as was experienced by Vollenhoven, is one path toward empathy, this solution is not pragmatic. It is not possible for all non-Indigenous people to infiltrate the lives of Indigenous people and witness Indigenous ways of life. To suppose or require that Indigenous people play host to non-Indigenous people repeats the colonial origins of Canada which we are trying to undermine. How then do we generate empathy from afar?
Art provides an evocating and immersive alternative that is nearly as human as empathy itself. Art has the ability to foster caring and to promote understanding between people and communities that will never meet. Art is a form of storytelling which allows the artist to tell the receiver about themselves and their world through their medium. Art communicates across language, space and time to connect us in the realm of creativity. The artist seals a piece of themselves within their art and offers it as a gesture of vulnerability and as an opportunity for growth on the part of the receiver.
In line with this personal understanding of art, various scholars have noted that art has great potential for building empathy. For example, Camilla Pagani and Francesco Robustelli suggests that an individual and personal approach is needed in the development of empathy across cultures, and that literature is suitable for this approach. Literature enables deep ideas, emotions and experiences to be felt by readers. As a result, the reader ceases to view those different than themselves as belonging to a homogeneous group.
The same has been argued by Lynn Hunt who asserts the epistolary novels galvanized the birth of human rights in the 18th century. Epistolary novels are written in letter formal. Thus, instead of the reader experiencing a third person narration, the characters tell their own stories. In doing so, the characters expose their inner thoughts and perspectives. The characters of the 18th century often came from different walks of life with the result being that these novels made others relatable across differences such as gender, class and age. In the case of epistolary novels, art fed understanding which ultimately yielded a kinder, more inclusive society.
While literature provides a powerful tool for building empathy, art and its connection to empathy are not limited to the written word. Visual art also engages an empathetic response. In exploring the neural mechanism that underpins the empathetic powers of images, David Freedberg and Vittorio Gallese revealed that mirror neurons can create a physical empathetic response to art which can then be translated into an emotional empathetic response. This work evidences that it is not only possible to engage empathy through art, but that we are actually physiologically and evolutionarily built to do so. We are designed to empathize, and art can leverage that innate ability within us.
Ultimately, art creates the necessary prerequisites for respecting another’s culture, namely an appreciation of the humanity, agency, and autonomy of those unlike ourselves. It helps us feel the pain and demand the joy of another. It is for this reason that art is deeply connected to political transformation and social movements. From protest signs demanding gender equality, to songs crying out for Black liberation, and even the adornment of those marching in Pride events around the world, art expresses suffering and promotes healing. If decolonization is a form of healing, and living together is a birthright, as I believe they are, then it only makes sense to turn to art – a form healing in its own right – to begin decolonization, and, more broadly, to achieve legal pluralism in Canada.
Artist: Yinka Shonibare; Source: the CBC; https://www.cbc.ca/arts/3-artists-pushing-back-against-colonialism-by-using-the-tools-of-their-colonizers-1.5747178
How do we confront the limits of art & empathy?
Finally, we come to the last query this paper will pose: How do we circumvent the limits of empathy? Empathy is thought to have two limitations. First, empathy is sensitive to numbers – the larger the group, the less sensitive our empathy skills become. We feel touched by the story of a single victim while feeling relatively inert in the face of catastrophic disasters. Second, empathy is less sensitive to those in racial or ideological groups that differ from our own. We have a mental block when it comes to experiences to which have no reference point. Indeed, the very form of empathy needed to promote multiculturalism.
Fortunately, we have tools to confront these empathetic limits. First, art has the ability to turn the general into the personal. As stated by Pagani and Hunt, literature can personalize a widespread phenomenon or even an entire group. A single perspective can never represent the diversity within any group or community however, that single perspective can act as a point of entry. By using art to make the general personal, the story of a single character can open the way for understanding and caring to an entire community, lessening the obstacle that we are less empathetic towards large groups.
Second, in relation to the mental block created by ideological and racial difference, we can remember that each of us is a multifaceted person with various identities. The term intersectionality gives language to the existence of marginalized people inhabiting interacting forms of oppression. Kimberlé Crenshaw, who coined the terms over 30 years ago, is Black, but she is also a woman. The interaction of these identities is such that she holds experiences as Black person, as a woman, and the wholly unique experiences of Black womanhood. Many of us like Crenshaw sit at an intersection of such identities. For example, like Crenshaw, I am also a woman however, I am a white Queer woman.
It is true that there is a limit on our ability to understand the experiences of others. I will never know what it is like to be a Black woman. However, through our shared identity as women I can try to garner at least some recognition of her womanhood. Our commonality creates a connection, a bridge for understanding. To empathize is not to demand a complete understanding of the perspective and experience of another. If that were the case, no empathy would be possible as we each have our own genetics and experiences that create our entirely unique existences. Rather, empathy asks that we use our commonalities to perform the mental work necessary to create a proxy experience, not to create the experience itself. Each of us can find one common identity with any other person, even if that identity is being a parent, child, or sibling. There is commonality, if we are willing to find it.
Finally, in seeking to use art as a means of building empathy and ultimately multiculturalism, we must be intentional about the subjects and messages that are centered. Multiculturalism is in many ways the antidote to oppression and inequality. As such, if we are looking to overturn oppression it naturally follows that art is used to display the pain of being oppressed. The goal being to reveal suffering and garner compassion. But we must be wary of telling only stories of suffering. The lives of those who are marginalized are ladened with hardship but that is not the essence of our existences. We must also show Indigenous pride, Black love, Queer joy, etc. Suffering is powerful and as such, it is important in terms of creating empathy and understanding, but so too is joy. In showing joy and love, we humanize, but we also normalize “The Other” by representing them as multidimensional people, just like ourselves.
Artist: Michael Aboya; Source: aboya8.com; https://aboya8.com/albums/lonely-planet/
Where have we been & where are we going?
Learning to live together is no small task and Canada has a lot of work still yet to do. Unlike other colonial and post-colonial states, Canada has yet to meaningfully embody multiculturalism as evidenced by the lack of true legal pluralism. The continued refusal to implement Indigenous legal traditions and the outright ban on religious law in Ontario show that as of now, Canada maintains its fidelity to monism in law.
However, Canada’s legal evolution does not need to end here. A comparative approach exploring legal pluralism in Indonesia and African states yields lessons that will help Canada move toward multiculturalism. First, respect for one’s culture demands respect for one’s law, and second, legal pluralism in Canada will require a process of decolonization.
Challenging though this task seems now, it is not impossible. Through art, empathy and compassion can be leveraged to generate respect of others, recognition of difference, and ultimately, the socio-legal changes necessary to meaningfully embrace multiculturalism and legal pluralism. Art and empathy are only two implements in our toolbox, but they are powerful ones that we cannot afford to neglect. In the end, the story of Canada is in many respects a painful one but like a piece of art, it can be used to learn from and to heal.
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Date Weblinks were accessed: June 15, 2021
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