Chapter 21 Critique’s Coloniality and Pluriversal Recognition On the Care as the Ecological Ground of Justice

Reclaiming Jurisdiction and Indigenous Processes

At the end of his recent book, Peace and Good Order: The Case for Indigenous Justice in Canada, Harold R. Johnson—author, lawyer, and former crown prosecutor—declares that Indigenous peoples resident within the dominion of Canada’s law need “to reclaim our jurisdiction, establish our own processes” (2019, 144). The argument that precedes and supports his book’s avowal of Indigenous control over the exercise of justice is sobering and compelling. Johnson traces, in an autobiographical story that recounts his own legal education and subsequent work as a defence lawyer and later crown prosecutor in Northern Saskatchewan, a “justice system [that] is making our existence worse” (144). He cites dramatically increased rates of Indigenous incarceration, violence, suicide, disease, poverty, and alcohol and drug addiction among many Indigenous communities. And, he argues that one of the main drivers for this “trajectory of . . . hopelessness and death” (145) is Canada’s destructive justice system.

The Canadian justice system, including the actors within it (i.e., lawyers, prosecutors, judges, parole officers, policy makers, etc.), Johnson argues, is destructive of Indigenous peoples because it knowingly perpetuates and reproduces practices and policies that exacerbate the circumstances it purports to ameliorate: “We do things over and over knowing we are making things worse while we tell ourselves we are making things better” (2019, 103). Johnson blames, amongst intersecting colonial legacies that include racism, dispossession, impoverishment, residential schools, and the industrial destruction of land, a “misguided over-reliance upon incarceration” (102) by the Canadian criminal justice system. Punishment as removal and separation perpetuates many of the harms affecting Indigenous communities. Incarceration, he shows, is systematically employed by a pernicious system because the Criminal Code enshrines deterrence as a key philosophical and behavioural presumption. By presuming autonomous subjects as free, individualized, rational actors, the colonial state presumes the threat of curtailed liberties, cautionary example, and, ultimately, fear, to be reasonable and expedient dissuasions for wrong action. But, in the seemingly hopeless circumstances within which many Indigenous communities and people find themselves—impoverishment, addiction, unemployment, poor housing, underfunded education and poor health services—deterrence simply does not work. “When you have no hope, no promise of a future,” Johnson writes, “judicial principles of deterrence have no meaning” (132). Add into the mix racist legal education, enforcement, and judiciaries, which, if not intentionally discriminatory, are structurally blind to their biases and prejudices, and the result is a justice system that, as Johnson intones, “couldn’t be any worse than what we have now” (147).

Fixing the many complexities of this broken and oppressive system will, of course, not be straightforward. Johnson suggests, however, that one initial means to redressing the Canadian justice system’s cycle of perpetuating harm to Indigenous peoples is to replace the principle of deterrence with a principle of “redemption” (134). Redemption, he explains, would be apology-led; more fundamentally, however, it would be oriented to “making . . . whole again” offenders, victims and communities through earned contributions toward pride, dignity, and reparation as responsibility (134). Procedural principles like observing and listening to affected communities would be invoked as means for consulting on courses of action toward what offenders might do to redeem themselves and their wronged social relationships. Examples, Johnson notes, might entail listening to and renewing commitments with knowledge keepers and Elders, sharing knowledge and experience through reciprocities of teaching land skills, shared provisioning, and language learning. Indeed, redemption would be all these things exemplified in the everyday relational work of taking responsibility toward the care for others as a form of self-care. In other words, what Johnson recommends as a first step to changing the current harms of the colonial justice system is cherishing the principles of relationality at the heart of the justice system, rather than a rights-based retribution. Geographer Michelle Daigle defines the type of relationality Johnson commends as “everyday practices of self-determination rooted in Indigenous ontologies.” These, she writes, are “constituted through Indigenous kinship networks” and often are “responsibilities . . . cultivated and transmitted through a direct and intimate relationship with the land” (2016, 261).

One might think that “redemption” sounds, for Johnson, much like the frequently invoked, and much discussed, discourses of “restorative justice” (see, for example, Elliot and Gordon 2011) or “justice as healing” (see, for example, McCaslin 2005). “Restorative” and “justice as healing” practices have been carefully critiqued (see, for example, Cunneen 2002; Napoleon 2004), not for the strategic good they can often bring to individuals and communities, like reducing recidivism or personal harm, but to the extent that, in seeking to restore whole what was not whole to begin with, restorative practices run the risk of simply relabelling, and thereby reconciling, people and practices within already unjust, colonial systems. At the expense of revitalizing Indigenous lifeways, restorative practices can actually preclude addressing the important work of decolonizing systemic and historical injustices (see, for example, Breton 2012).

Johnson (2019, 20), however, is quite clear. He means by redemption something much more than a restoration within colonial structures. His argument for reclaiming jurisdiction and for Indigenous process is more radical. For instance, he begins his book with the recognition that Canadian “law is deeply rooted in white Western thought.” If reclaiming Indigenous jurisdiction with Indigenous processes is necessary for redressing cycles of harm caused by the ongoing colonialities of the justice system, then two possibilities follow: either it must be the case that decolonizing harmful Canadian justice practices entails, in fundamental part, decolonizing the deeply rooted Western thought that constitutes such practices; or, Indigenous worlds and processes can operate separately from, but equal to, modern colonial worlds. Johnson advocates the latter. Treaties, he argues, are the basis upon which the legal right already exists to resume jurisdiction over law in Indigenous territories. Historical treaties conferred authority in agreeing mutual consent to maintaining peace and good order. Johnson writes that “the promise to obey and abide by the law was a promise to obey the laws in force at the time, which were our own laws” (2009, 123). He continues, “we not only retained jurisdiction to maintain peace and good order amongst ourselves; the treaty [he refers specifically to Treaty 6 which pertains to territory] went further and granted the power to maintain peace and good order between ourselves and other[s]” (123–24) The effect of the treaty arrangement between the Crown and First Nations in treaty agreement, he concludes, is such that, “the Dominion of Canada and First Nation Peoples are recognised by the Crown as having equal jurisdiction over law-making” (124).

Johnson’s is as much an ontological argument as it is a point about an historical agreement wilfully ignored by the Crown. Modern historical treaties between colonizers and Indigenous peoples recognized multiple and distinct political and legal worlds, and the equal legitimacy of each constituency to act within and from their worlds. As Johnson notes, “Treaty is the only legitimate source through which Canada received jurisdiction” (125). Indigenous peoples, thus, “do not need permission” (146) to create their own justice systems; they already have such systems and the right therein to live by such processes.

Much in the manner of The Unjust Society: The Tragedy of Canada’s Indians (1969), Harold Cardinal’s forceful rejoinder to the then Trudeau government’s infamous “White Paper,” Johnson’s book is a contemporary clarion call, not a philosophical treatise. Johnson’s book gains its force as an impassioned, non-academic critique of the harmful state of the Canadian justice system from his experience, his honesty and candour, and the directness of his diagnosis and its treatment. Johnson, of course, is far from the first to appeal for a non-retributive, relational, Indigenous approach to repairing the harms that the Canadian justice system perpetuates against Indigenous peoples. As he notes (2019, 142), the Aboriginal Justice Inquiry of 1988, and the Royal Commission Report on Aboriginal Peoples of 1996 recommended the same. Many scholars have also long advocated for similar reclamations of Indigenous jurisdiction and reconstitutions of legal process (see, for example, Asch 2014; Asch, Borrows, and Tully 2018; Borrows 2010; Christie 2003; and Napoleon and Friedland 2014). It is for these reasons, and the fact that the book quickly reached a wide and receptive audience, that I begin with it.

I begin with Johnson also for the fact that the simplicity of his compelling testimony and argument implicates a much deeper, conceptual problematic, one he intimates toward but does not address: the need to decolonize those aspects of Western thought that preclude recognizing the legitimacy of other worlds and their processes. Addressing these deeper thorny issues might help settler colonial apparatuses—Indigenous polities already know them well enough—to understand their conceptual harms and their subsequent responsibilities.

In what follows and in the spirit of questioning those aspects of “white Western thought” that root Canada’s harmful justice system, I explore what kinds of thinking are implicated within how postcolonial justice needs to be rethought and repractised. As I will show, some of the most fundamental and cherished concepts integral to Western liberal thinking are questioned in appeals to change the way legal apparatuses hold people accountable. These concepts go to the heart of modern Western thought and its assumptions both about subjectivity and agency, and about the nature of our political worlds. Indeed, simple but important assumptions like whether humans and their kin live in one world or many worlds (i.e., uni-/pluriversality), or whether responsible thinking is a function of a carefully cultivated education toward reflexive self-awareness (i.e., critique) are questioned within the need to change a malfunctioning justice system. I argue that rethinking the exercise and practice of critique and rethinking the idea of political universality follow from invoking plural legal life-worlds. It might be for this reason that change has not, thus far, been forthcoming by the liberal Canadian state. In order for change to occur, deep, taken-for-granted assumptions about what people are and how thought functions need to be challenged and questioned.

It bears saying that it is not the responsibility of Indigenous people to do this fundamental work of reconstituting Western thought. What I offer here are reflections by a white, Western trained settler academic schooled in the philosophy, sociology, and geographies of modernity as to what is implicated by the demand to decolonize harmful modern assumptions and practices like deterrence. I think a lot is implicated, including some of the most taken-for-granted practices and values rehearsed by institutions like universities and courts, whose self-appointed job it is to root Western thought in the practices of the state and the everyday lives of its peoples. As such, much work is required by such institutions to unsettle, unlearn, and unthink these thoughts.

Critique’s Coloniality

The attitude of being critical—critique—is assumed to be one of the key rational and political virtues and skills subjects learn in constituting themselves as part of the modern life-world. Indeed, the “constituent powers and constitutional forms” (Tully 2008, 464) of modern life-worlds shape people as individual, critical subjects. Critique is arguably the guiding formal ethos that constitutes the forms and means which instantiate modernity’s legitimacy: global governance, international law, democracy, secularism, scientific reason, economic liberalism and transnational trade, sovereignty and its military protection, development, individualism, etc. Further, learning this critical attitude by becoming a critical thinker exercises itself across a number of formal modalities, including: modern educational systems like schools and universities; a free press and freedoms of speech; protections of free assembly; legal rights that enshrine due process and burdens of proof; state protections against discriminatory religious influence, etc. Critique is thus a key cognitive and lived grammar in the process of becoming a modern subject. Through it we learn to question the constitutive limits of modernity, its evident horrors, as well as its many benefits.

Importantly, critique reveals itself within both a rationalized global era of liberal, democratic nation-states governed by international law, which we label in part modern, and within the individual reflexive capacity and responsibility of a subject to analyze the constituents of its era. By doing so, subjects hold themselves and structures of power to account. Critique is a rigorous, interrogative self-analysis that “placed as an interrogative, it inverts its power of fixity and certainty; it undoes itself” (Brown 2009: 9). Attending to the problem of justice would seem to rely, then, on doing critique and being critical. Critique, after all, enacts and protects civil liberties. More than that, it is the basis for the very ideas of “civil” and for western notions of “liberty.”

And yet, the modern world constitutes itself in an imperial paradox (Tully 2008); it has a darker side (Mignolo 2011); it enacts enormous and repeated violence often in its self-proclaimed effort to be civil and just. Consider, simply, the examples already invoked by Harold Johnson in his criticism of the Canadian criminal justice system: the overrepresentation of incarcerated Indigenous people; racialized poverty and discriminatory housing; inequality of health outcomes, etc.; one could detail many more such harms under the structural aegises of just modern/colonial responsibility.

Critique is ostensibly necessary for unveiling the hidden injustices of modern structural responsibility. However, it would seem critique is also never very far from the very things it seeks to overcome: violence; injustice; ecological harm; alienation; discrimination, etc. It is this contradiction James Tully terms the “imperial paradox” (2008, 461). Modern constitutional democracy, its global governance, and its legal and political prototypes, he argues, extend “formal and informal imperial means to subalternize non-European peoples” (464). An acute and honed criticality is essential, after all, to enacting or enforcing a piece of legislation, or to recommending a policy in the belief that it is just and civil, or as is unfortunately just as common, in the deliberate effort to discriminate and deceive. As Glen Coulthard writes, “Canadian courts have had no problems with interpreting in a way that subordinates the constitutionally protected rights of Indigenous peoples to the political economic demands of settler-state sovereignty and its constitutively predatory capitalist mode of production” (2019, xxix). Skillful critical interpretation is very useful for such predation, as much as it is also useful in holding such predation to account.

And yet, we, as critical scholars, cling to critique—and the over-riding imperative, to “be critical”—as the means to addressing social justice, to being just, and so to enacting better worlds. As if being critical is enough. It is our received wisdom within much of the modern academy that our work and responsibility is to criticism. Criticality entails, for a modern subject, a certain learned cultivation of independent thought and agency through the exercise of individual reason. All knowledge claims, or, indeed, claims of belief, are subject to reasoned interrogation. Nothing is immune from critique for a modern subject. Being critical distinguishes, or should distinguish, how secularism emerges as an organization grammar for the modern state. Universities teach and cultivate this critical grammar as one of modernity’s highest epistemic virtues and as the basis for ethical action. For modern subjects, then, it is a reflexive ethic and skeptical responsibility to ask questions and to question authority, especially when that authority is ourselves.

Critique is a value or modern virtue, one aim of which is to foster living well and justly, both with others and toward truth-telling and truthful relations. It is the ethical and epistemic principle of always telling truth to power, but it is a value whose commitment, paradoxically, emerges only to itself. Its virtue, its value, lies in relentless self-analysis. Nothing, apparently, is beyond question; its modern attitude forms the reasoned right and responsibility to say no in the face of authority. The modern architect of critique, Immanuel Kant, puts it this way in The Critique of Pure Reason:

Reason must in all its undertakings subject itself to criticism; should it limit freedom of criticism by any prohibitions, it must harm itself, drawing upon itself a damaging suspicion. Nothing is so important through its usefulness, nothing so sacred, that it can be exempted from this searching examination, which knows no respect for persons. Reason depends on this freedom for its very existence. (1999, 643, A738–9, B 766–7)

For much of modern thought since Kant, critique is precisely the navigation of this self-awareness, in and for its limitations. In phenomenological and constructivist orthodoxies, a rational science and hermeneutic of perception and experience is possible, and from that, epistemological understanding about the experience of reason is also possible. Transcendental conditions, that is, conditions for the possibility of critique are those revealed in a science of the mind for a subject limited to, and separated from, the object world that gives itself as experience. Kant’s phenomenalism enshrined this as an unbridgeable divide between what we experience (phenomena) and the world in and of itself (noumena). Subjects only have access to the contents of their experience, never the world itself. Critique is the cultivated attention to this fundamentally separated experience. What this means is that critique produces and depends upon an idea of the subject separate from nature. Critique reinforces a necessary distinction between a cultural subject and a natural object—between culture and nature. Political responsibility, and with it, justice, subsequently emerges as a reflexive attention to the rational subject’s fundamental epistemic separation from the world. For modern critical thinking, word and world are riven and unbridgeable.

Critique depends upon a nature-culture distinction. It requires conceptualizing the subject as both self-reflecting and as separated in thought and culture from its worlds and what is constructed as nature. Critique and the learned capacity of being critical promotes, therefore, a universal subjectivity that constructs individual autonomy for all peoples, in a cognitive separation from its plural and relational causes or constituents (see Mills 2018, 151). Those who count as thinkers, as subjects, are those who have learned to recognize themselves within this modern conceptual apparatus.

Which is why Johnson’s appeal for different, relational criteria for justiciability is so fundamental. Indigenous life-worlds do not construct notions of subjectivity as fundamentally separate from nature. What it means to be a reflexive thinker within Indigenous life-worlds is not represented by a modern model of critique. Expecting it to be so, as modern/colonial courts exemplify within their exercise of justice, imposes a retributive harm that fundamentally ignores Indigenous constitutionality. Now, Indigenous life-worlds are specific to places and contexts, but, as the Australian scholar, Mary Graham, writes, Indigenous life-worlds also exemplify two fundamental precepts: “The Land is the Law” and “You are not alone” (2008, 181). Reflexive constitution as a thinker is embedded in and from a relational responsibility with the Land. And, in light of that constitution, all life is relational. It is not possible to be a subject separate from Land, or what modern worldviews construct as “nature.” Being a thinker and agent means being in the ontological and ancestral relations that Land makes possible (e.g., Kanngieser and Todd 2020). Being alone is therefore nonsensical. One is never alone. One’s kin, human, non-human and ancestral, constitute reflexive possibility and responsibility. Such a worldview is precisely opposite to the one created via critique’s main production of the modern subject.

My argument is not that we should cease fostering the rigorous forms of evaluation or the questions that criticality asks. Speaking truth to power is as important now as it ever was. My worry is that by assuming critique as the chief architect of this subject recognition, and of this holding subjects to account, we do two problematic things. First, we, perhaps unknowingly, reproduce problematic nature-culture separations and so promote, perhaps also unknowingly, problematic forms of “universal subjectivity” and individual cognitive autonomy, to use Mills’s terms. And, second, in reproducing this cognitive exercise as the adjudicator of reflexive legitimacy, we crucially also foreclose the commitments of other life-worlds as political and legal possibilities. A particular, territorializing, modern regime of cognition thus excludes modes of life whose reflexivities cannot be parsed in the constitutive terms of critique’s “systematic thought structure” (Hallaq 2018, 10). Universalizing, territorializing, appropriating, and excluding in the name of epistemic, ethical, and just action: these are classical tropes of coloniality. They are also precisely those reproduced at the sharp end of the modern stick that is the Canadian criminal court.

Indeed, the disposition of critique as a particular thought structure is itself part of an historical and geographical conjuncture commensurate with modern coloniality. Drawing from Quijano’s (2000) notion of the “coloniality of power,” I mean by “coloniality” that the injustices of modern power, evidenced in the modern life-world’s paradoxical constitutional forms, are structured and upheld by colonizing processes, one of which is the learned constitution of a modern subject through an expectation of critique. These processes are, further, to use Maldonado-Torres’s subsequent, evocative articulation of coloniality, part of the air that we “as modern subjects breathe . . . all the time and everyday” (2007, 243). As such, critique’s thought structure also enacts important political categories of thought, speech, and action whose effects and consequences should be queried rather than assumed as inviolable. One of these structural categories is the autonomous subject whose criticality emerges in its reflexive awareness of its own limits as separation from nature, its aloneness. Another is the conceptual category of critique itself and its foreclosed capacities in othered peoples.

A similar process is ongoing when we are faced with the problem of constituting the political and juridical legitimacy of Indigenous “life-worlds.” In order to enable these worlds, as with Johnson’s appeal for Indigenous jurisdiction and process to become recognized as real rather than simply appropriated and epistemically represented within the liberal apparatus of justice, we need to query the ethical and cognitive foundations that give rise to their most cherished values and institutions, including the liberal subject and its constitutive grammar: critique.

A following question now emerges, however: if, as Indigenous, decolonial, and posthuman political ontologies increasingly aver, difference is not epistemic, but ontological; if difference is not a perceived or phenomenal peculiarity about one world, but a function of different worlds; and if the roots of difference emerge from, and manifest, different life-worlds, then how does critique operate? How might we adjudicate across worlds, and so act justly within difference?

It is to this problematic that I now turn. In reading critique’s coloniality against the ontological commitments of life-worlds or pluriverses, my aim is not to be comprehensive, if that were possible. It is simply to think through some questions and problematics that emerge in the asking after critique in the pluriverse. It is also to highlight potential ways in which other scholars and scholarships have responded or might respond to the question.

Pluriversality and “Earth-Bound” Reflexivity

Pluriversality has emerged in recent years as a “cornerstone notion” of decolonial thinking (Oslender 2019, 2). It correlates closely with the increased emphasis in the contemporary social sciences and humanities on the need to account for, and work with, ontological rather than epistemic difference. Difference, pluriversality argues, is not simply a function of epistemes, cultural perspectives, or interpretations on one world that lie outside human cognition but is constitutive of the multiple material worlds that human and non-human entanglements make and perform. Pluriversality is not abstract or esoteric; it is a practical concept that contests the reductive, extractivist logic of contemporary colonial territorialization. Its ontological emphasis resists what John Law (2015) terms the “one-world world”: a world that privileges epistemic critique as the arbiter of explanation and reproduction, and which, rendering itself universally and self-reflexively legitimate, precludes the possibility of other horizons and ways of life. The analytic option here emphasizes plural ontological relations that constitute the grounding possibilities for reflective life emergent from the specificities of place. For example, Michelle Daigle (2016, 261) invokes pluriversal relational ontologies to situate the political significance of awawanenitakik, the Omushkegowuk Cree law upholding self-determining kinship responsibilities to ancestral land through everyday reciprocities of language, ceremony, food-sharing, and the like. Mignolo and Walsh (2018, 3) emphasize that the significance of the pluriverse is that it

opens rather than close the geographies and spheres of decolonial thinking and doing. It opens up coexisting temporalities kept hostage by the Western idea of time and the belief that there is one single temporality: Western-imagined fictional temporality. Moreover, it connects and brings together in relation—as both pluri- and interversals—local histories, subjectivities, knowledges, narratives, and struggles against the modern/colonial order and for an otherwise.

Such a position is politically significant because it troubles the Western thought structure underpinning modern colonial constitutionalism. John Law (2015, 127–28) explains:

If we live in a single container world, within a universe, in which nature has a definite and “natural” form, then we might imagine a liberal way of handling the power-saturated encounters between different kinds of people and our interpretations of the world. But if we live, instead, in a multiple world of different enactments, if we participate in a fractiverse, then there will be, there can be, no overarching logic or liberal institutions, diplomatic or otherwise, to mediate between the different realities. There is no “overarching.” Instead there are contingent, more or less local and practical engagements.

My foregoing argument concerned the need to decolonize the systematic thought structure of critique and its consequences, particularly the overarching, if also reflexive, individual and autonomous subject. It follows that if there are multiple worlds which are “an effect of contingent and heterogeneous enactments, performances or sets of relations” (127), then there is also no universal, individual autonomy whose subjective role it is to constitute inviolable epistemic limits imposed through things like universalizing rights-based conceptions of justice. What, in this pluriversal moment, would constitute critique? Without critical universality as epistemic limit, what counts as a means for thinking toward justice? This is a question not simply for those who might disavow the imperial paradox. It is also a question for decolonial thought and those who might avow pluriversality, life-worlds, or other similar “material-semiotic grammars of the relation among worlds” (De la Cadena and Blaser 2018, 4, emphasis in original). What is critique for a relational ontology, and can we continue to assume and appeal to its necessity? More specifically, as an attitude toward ways of being governed, how does critique operate within a commitment to pluriversality, when political agencies are other-than-human, when human and modern exceptionalism is problematized, and when interdependency is understood as an ontological condition (an example of which might be awawanenitakik) and not an epistemic limit or contract?

In addressing this question, I argue two things. First, how we think about critique must change with a commitment to pluriversality and relational ontology. Indeed, if relational ontology is both a cause and consequence of decolonial options like reclaiming jurisdiction and self-determining processes (as decolonial thinkers argue), then we cannot unproblematically assume critique’s conventional grammars, nor its conceptual genealogies, in this new framework. This is not an argument, as I suggested already, against being critical or speaking truth to power. It is rather an attempt to look for how what we Amer-Europeans have learned to call “critique” operates as a political ontology in worlds that are constituted differently. Reflexivity is not best captured by critique or its universal model of separated subjectivity. Second, I argue that reflexive thought is an expression of underlying, lived ecologies of vulnerable connection and mobility. Relational interdependence is a feature of all conceptual life, human and other-than-human. Conceptual attention to the flourishing of relational interdependence reveals itself in what, in European thinking, might be named as “ontological conditions” like care, humility, compassion, mutuality. Reflexive material, or what John Borrows (2018) terms, “earth-bound” conditions, not contracts, emerge within relational ecologies of thought and action quite apart from, although not unconnected to, human centred concerns.

To illustrate my argument, I draw from Indigenous legal and philosophical examples, some of whose exponents have been introduced already, such as the well-known Indigenous legal thinkers like Borrows (2010, 2016, 2018, 2019) and Val Napoleon (2004), as well as Doug White (2018) and Deborah McGregor (2018), and wider critics and writers, including Leanne Betasamosake Simpson (2011, 2017) and Maria Puig de la Bellacasa (2017). In particular, I focus on pluriversally distinct concepts such as “yaw-uk-miss,” which refers to the twinned conditions of love and pain in Nuu-chah-nulth (see Atleo 2011, 15); zaagi’idiwin, which refers to love as a law for the Anishinaabe; and minobimaatisiiwin and dibenindizowin, which conceptually are closely related Anishinaabemowin notions that describe living well within the freedoms arising from attending to the relationships with other beings in terms of situated life is constituted (see Borrows 2016, 2019).2 These embodied praxes are examples of coexisting temporalities—different Indigenous legal worlds—that struggle against the modern/colonial order of the Canadian state and function as conditions of pluriversal constitutionalism. I seek to understand, in their invocation, different conditions of reflexivity about thought and action which evidence immanent capacities for constituting relational political life.

My question has been the following: if we jettison the nature-culture distinction, if we begin in a different ontological starting place, as decolonizing discourses emphasize, what then is this quality referred to as “being critical”? It cannot be a roving reflexivity that adjudicates at a remove across worlds, wary of dependence, eager to assert its separation and freedom. Yet our critical inheritance of this term, which I think operates very much as a taken-as-given practice in our everyday work, treats it as such, as though it can be, even pragmatically, a view from nowhere. If subjectivity is increasingly erased or distributed across its numerous and changing ecological relations, its “other-than-human” agencies, then what is reflexivity? How does it operate if not through attending to its self-reflective separation?

In a European tradition, and Foucault (1997) makes it particularly clear that a certain care or concern with the relations to others, with the differences that make it possible, underlies the work and responsibility of critique. My question then is: what is the source of this care? Where does this care come from? Is this care not itself a form of ethical constitution that comes from our pre-cognitive worlds, from the ecologies that make us agential as humans and other-than-humans? Does care not constitute the ontological possibility of a certain freedom?

On the evening of 26 November 2018, Doug White III, director of the Centre for Pre-Confederation Treaties and Reconciliation at Vancouver Island University, in Nanaimo, British Columbia, delivered the fourth annual Indigenous Speakers Series lecture. He titled his talk, “Re-Imagining Reconciliation: Confronting Myths and the Future of Canada.”3 Doug White, whose Coast Salish name is Kwul’a’sul’tun, and whose Nuu-chah-nuulth name is Tlii’shin, is a lawyer. He is also past chief of the Snuneymuxw First Nation, in which role he focused his tenure as chief on implementing the Snuneymuxw Treaty of 1854 in a reconciliation agreement with the Crown. In March 2013, in light of White’s efforts, together with his people, a treaty agreement was ratified. One might expect that his talk would be about the legal discourses and practices Johnson, with whom we began, criticizes: the status of legal persons, human and juridical; Crown recognition of rights, human and land; treaty agreements; property, that kind of thing. This expectation might arise given the title of White’s talk, and the fact that White is a professional lawyer, scholar, and teacher of jurisprudence, in addition to being past Chief of the First Nations Summit Task Group and advisor for First Nations across Canada. His talk was, indeed, about traditional legal matters. It was about love.

White characterized love as a fundamental value and capability for human beings. It is in terms of love, he argued, that we must both begin and end our interdependencies, relational interdependencies which are the processes for making decisions about living together. But for White, love is more than what a European political tradition might assume it refers to. For Euro-American, colonial constitutionalism, love is a sentiment that has little bearing on decisions; it is relegated from public discourse, and, especially, dominant legal discourses, as a private, intimate emotion that has no place within the apparatuses of liberal rights, protections, property, or reflections on justice, nor in evidentiary claims about how we might know about such things. Love does not have epistemic bearing for reason’s freedom in critique.

An insight into what White means by love as Indigenous law comes from fellow Nuu-chah-nuulth scholar, E. Richard Atleo: Yaw-uk-miss. This concept, Atleo writes, partially and incompletely translates as “love” in Nuu-chah-nuulth—is “a great teaching or law” (2011, 159). Yaw-uk-miss grounds the four-fold constitutionalism of recognition, continuity, consent, and iis?ak, the latter being a form of sacred respect. In Nuu-chah-nuulth, yaw-uk-miss means “love,” but it also means “pain.” It refers to the interdependence of the polarity that necessarily accompanies each. Pain and love are “co-roots of one another” (160). Choices made with respect to their co-constitution shape “a design in life that may tend to create or tend to destroy” (160). The critical responsibility here is to learn the attitudes and practices of designing well from the ontological conditions that render flourishing possible. Responsibility, whether it be conceptual, ethical, or practical (notionally responsibility is the holistic enactment of all three) is a learning from the living physical conditions within which love and care constitutes us and our interdependencies with others: plants, animals, oceans, atmospheres, other people, human institutions, etc. Reflexivity therefore emerges as the learned attentiveness to interdependence, a bringing together in relations that come not from a separated subject, but from the conditions out of which any possible sense of subjectivity might emerge and to which it is therefore responsible.

John Borrows (2019) analyses, similarly, the significance of love (zaagi’idiwin) as an Anishinaabe law (chi-inaakonigewin) for understanding conditions of collective responsibility; conditions which are themselves guides for acting in harmony from and with the earth (akinoomaagewin). Zaagi’idiwin is one among a set of other related laws. The other Niizhwaaswi-Miigiwewinan or ‘Seven Grandmother/Grandfather Teachings’ are: Debwewin (Truth); Zoongidewewin (Bravery); Dabaadendizowin (Humility); Nibwaakaawin (Wisdom); Gwayakwaadiziwin (Honesty); and, Manaaji’idiwin (Respect). Together, as Borrows writes—citing his own Anishinaabe teachers—these seven gifts or laws constitute for Anishinaabe people “resource[s] for reasoning and acting” (2019, 22). They derive as laws from wider, constituting relations that condition specifically human guided actions, things like,

the behaviour of the sun, moon, stars, winds, waves, trees, birds, animals, and other natural phenomena. The Anishinaabe word for this concept is gikinawaabiwin. As Basil Johnston teaches [Borrows refers here to Basil Johnston’s book, Gift of the Stars] we can also use the word akinoomaagewin, which is formed from two roots: aki, noomaage. Aki means ‘earth’ and noomaage means ‘to point towards and take direction from.’ As we draw analogies from our surroundings, and appropriately apply or distinguish what we see, we learn about how to love and how we should live in our lands (37–38).

The human grounds for reason and action thus emerge from the relational, earth-bound, and land-derived4 constituents or conditions of thought and possibility, including love. For instance, Borrows discusses how zaagi’idiwin (love) and its understanding connotes the experience of a flowing expansiveness and suffusion, of being mutually carried, much like the flow of water at the mouth of a river (zaugi), or of extending oneself in love to risk and exposing oneself by “sticking out” (zaagiin), as might a root or branch in water or soil. Zaagi’idiwin also mirrors the feeling of opening from within out into the world and to others, as does a flower or leaf emerge from a bud or grasses from stalks (zaagi’bagga). These energies themselves are mobilized by the loving warmth cast by the sun’s rays (Zaagajiiwegaabawikwe) (40).

Zaagi’idiwin, like yaw-uk-miss, is also a twinned concept. The experience of love can also bring “a kind of exclusivity, even stinginess” (39). We are keenly aware of love’s temporality, and of the need both to focus love and to balance this focus with a generative openness. Love will end with death, decision, or dissipation, but will, if fostered correctly, also continue in forms of extended memory, changed comportment, and completed flourishing. For while love is also born with and cannot be divorced from pain, the “kindness, mercy, and aid” (40) that love extends in empathetic compassion comes in this recognition of inescapable co-constitution. Zhawenim, another Anishinaabe word for love, refers to this sense of empathy and compassion that arises from attending to “our relations with the world” (40). By attending carefully to these relations, which are learned and negotiated with animal and plant nations,5 “[w]e will be nourished, sustained, and taken care of” (41).

Each of these notions pertaining to zaagi’idiwin (zhawenim, zhawenijge, zaagi’bagga, zaagajiiwegaabawikwe, zaagiin, zaugi) emerges from the relational forces and matters—the pluriverses—that make them possible. The ground and strength of these conditioning notions come from the land itself: water, rivers, sun, animals, leaves, flowers, but more significantly, from their dynamism, energy, and vitality. Water flows and mingles, flowers and leaves burst forth, sun warms, animals resist and give themselves—relation is change. Living within the variability and change of these forces is a matter of learning that “[l]iving in harmony is the first of laws” (Basil Johnston as quoted by Borrows, 46). Love, thus, is not a feature of some special human capacity, but is a shared relation of the earth. It comes from the earth and we, along with others who love, take our direction from it. The Anishinaabe word akinoomaagewin communicates this earth-bound sensibility of learning (Borrows 2018, 66). The word, Borrows writes, derives from aki, which means “earth” and noomaage, which means “to point towards and take direction from.” This combination creates a compound in which “teaching and learning literally means the lessons we learn from looking to the earth. As we draw analogies from our surroundings and appropriately apply or distinguish what we see, we learn about how we should live in our surroundings. The earth has a culture and we can learn from it” (66).

The grounding of living with relations as the earth source of law and just living is referred to in the Anishinaabe legal tradition as minobimaatisiiwin. Minobimaatisiiwin refers to the idea and virtue or end of living a good life. The prefix morpheme “mino-” lends a positive motive in the engaged living of embodied relational attention to healthy interdependence. Freedom in this context, unlike Kant’s notion of a reasoned critique and rationality of self-determination that transcends nature, entails acting with interdependencies that enable a general ecology of flourishing. It is not just acting with, but it is an embodied relation of, as the Anishinaabe geographer and legal scholar Deborah McGregor writes, “reciprocal responsibilities and obligations that are to be met in order to ensure harmonious relations” (2018, 15). The ground of conceptual reflexivity here is a physical, lived attention to freedom in care. Dibenindizowin refers precisely to this freedom in relation. As Borrows explains in his book, Freedom and Indigenous Constitutionalism, dibenindizowin “implies that a free person owns, is responsible for, and controls, how they interact with others” (2016, 7). But that “code of conduct, set of lessons, and Laws derives from the relations themselves” (McGregor 2018, 15); for “Anishinaabe law is observed in the waters, written on the earth, and reflected in the sky—as long as the rivers flow, the grass grows, and the sun shines” (Borrows 2019, 261, ft. 94). In other words, freedom is the recognition of the ontological, pluriversal conditions that constitute us, rather than separation from these conditions.

Thus, what is at issue in both the Nuu-chah-nulth and Anishinaabemowin worlds is a constitutionalism, a literal constitution of relational and ecological responsibility, that emerges in relations of care, obligation, flourishing. Constitutionalism is not agreeing a critical space of “freedom-from” within which difference flourishes but seeing in different pluriversal flourishings the health and vitality that cares for, quite literally, freedom as the inter-related interdependence of all living things.

The point for my own argument regarding the need to decolonize critique is that here, with the examples of yaw-uk-miss, zaagi’idiwin, and mino-bimaatisiwin as Nuu-Chah-nuulth and Anishinaabe laws, discrimination, reason, and action are learned capacities that derive not from subjective exceptionalism and judgment, but from an honouring of commitments within which we are always already enrolled and constituted. The ground of politics and action comes not simply in a removed ability to adjudicate or discriminate but from the relations that constitute the very possibility for discrimination’s reason: love, care, flourishing, harmony, etc. Enacting just relations is not, then, a decision based on reflection in separation, emphasized by incarceration as rehabilitative retribution, but the actual original, situated, relational positions of living, breathing, eating, loving, disputing, etc. that come from earthly ecologies of care.

Earthing Care as Justice

For McGregor, Borrows, Johnson, and others, earth’s cultural grounds—which, qua grounds, are laws for human and non-human action—are the basis for just relations between Indigenous peoples and the Canadian colonial state. Emergent from and attentive to the care and flourishing of human and non-human worlds, these relational ontologies or laws are ones that “can be used to make a better life for those we love” (Borrows 2019, 47). The problem with which we began, and which is insisted upon by Johnson’s call for reclaiming Indigenous jurisdiction and process as a means to making whole what is continually harmed, is: what is the spirit of just recognition? What might a Canadian public sphere look like in which, for example, yaw-uk-miss and zaagi’idiwin are recognized as political virtues and laws, as life-worlds wherein responsibility and justice are enacted?

It is not as though the ends of Indigenous law, as reflected in the very brief and imperfectly explained examples presented here, are necessarily different from the professed ends of the Canadian state: peace, order, justice and flourishing. Indeed, read through the lens of earthly belonging and from the perspective of minobimaatisiiwin, treaties already recognized the importance of acknowledging that all living things are inter-dependently bound and are interested in living well or the good life; in other words, they acknowledge peace and good order. It is simply that, and Johnson’s forceful polemic emphasizes this, the liberal colonial state, capital, and industry simply do not represent or embody minobimaatisiiwin. This is evidenced by the violence of the imperial paradox, by extractivism, by the accelerating destruction of habitats, cultures, and by worlds who parse lived relationality differently. It is evidenced by both the shriek of our ecological present and by the ongoing, systematic, structural injustices that continue to harm Indigenous peoples and their lands. As Aaron Mills (2018, 137) writes, “Colonialism is a relationship requiring violence to Indigenous peoples and to the earth, and we are living it in Canada today.” Such violence against Indigenous peoples and the earth is a violence against everyone, human and non-human, and fundamentally evidences love’s lack and, hence, a lack of justice in our public worlds.

Conclusion

What I have endeavoured to argue is that the form by which the grounds for recognition, agreement, mediation, or decision might be possible need to change in order that publics and their worlds be extirpated from subtle and lingering legacies of coloniality. Critique is a model of thought and cognition that categorically forms the conditions of its freedom, autonomy, and rationality through an ontological separation of thought from the world. This is exemplified in modern criminal punishment regimes which emphasize incarceration as reflective rehabilitation, among other principles of justice. One consequence of this practice is the continuity of an imperial paradox: on the one hand, a capacity to hold to account, but on the other, a reproduction of a certain coloniality of power and action in an expectation of subjective autonomy. The result is a harmful separation from the ontological significance of the worlds that are the condition for action.

When interdependence is foregrounded as an ontological condition as, for example, in Johnson’s appeal to redemption, or as I tried to show with others’ more expert examples of yaw-uk-miss and zaagi’idiwin, concern endures as the fundamental recognition for acting responsibly. In other words, the care that comes from life’s material concern for continuity might be seen as the “generic” condition of every social process—human and other-than-human—and its attempt to maintain, continue, and repair its worlds (Tronto 1993, 103). Love, care, and conviviality are the conditions of continuity within processes, because they come from the ecological and ontological relations themselves. Care is not something added to processes to render them valuable. “Interdependency is not a contract, nor a moral ideal—it is a condition,” says Maria Puig de la Bellacasa (2017, 70). It is seen in a multitude of ways. An ant tends to its home, just as a plant attends to its futurity when it moves to avoid harm, just as humans attend to their young, just as body coloration and background preferences mimic one another as in a feeding moth’s wings. Each of these practices of enduring depends on the complexity of an interwoven web of pre-existing conditioning relationships or ecologically vital interdependencies. These are the ontological conditions of emergence of life, which include the cosmic, as well as the cellular, and the ideational. Ideas and matter are, after all, historically immanent within one another. Care, then, is not an epistemic imposition by a uniquely human, or nearly human, capacity, but a relational condition of material entanglement shared by all things, of which humans are also a part. As Puig de la Bellacasa writes,

When we think about what we care for: one moment it seems it would be easy to remove our care; the moment after we begin to realise that our care does not belong to us, and that that or for whom we care, somehow owns, us, we belong to it through the ecologies of care that have attached what we learn to call “us.” (167)

This is also why Johnson’s appeal to redemption through emphasizing Indigenous relational ontologies of care is at once so sensible, so simple, and also so radically disruptive of colonial orders. It goes right to the heart of deeply rooted and deeply problematic aspects of white Western thought. Retributive carceral punishment operates from the dual assumption that reflexive self-awareness emerges in, and can be rehabilitated by, reflective, critical separation, and that separation will re-align subjects to a universal social order. It doesn’t. Modern epistemologies that begin with nature-culture distinctions, and that are reinforced through emphases like critique, are wrong. Critique does not exemplify how subjects “habilitate,” how they make their reflective lives. Reflexive thinking, the point of incarceration, is not shaped in rational, conceptual separation from the material conditions that make it. It is formed by the complex relational ontologies of place and care within which it emerges and is bound. The material, and therefore social, world is not a universe to which subjects must be commensurated by acts that claim universalizable rationales for justice. Subjects are formed by, and perform, pluralizing worlds of care and reciprocity. It is to and from these that responsibility must attend. Hence Johnson’s appeal to redemption through reclaiming reclaimed jurisdiction and relational legal process.

Speaking truth to power as a form of criticism, and exemplified by Johnson, might therefore be better thought as “a disposition to being attentive to practices that make or produce ways of being, or even worlds . . . it is an opening toward a possibility that needs care” (de la Cadena and Blaser 2018, 5). Opening as care comes not from a reflexive subject, but from the many vulnerable, ecological relations that make up and constitute what become shared, and thus public, responsibilities. Reflexive attention simply is the relational ontology of care, or humility, or compassion. What Western thought has learned to call “critique” is, then, subtended and constituted in care directed from and then back to its constitutive others, the very convivial ecological relations from which it emerges; indeed, it would seem that these forms of being-with make possible the freedom to question.

What is interesting to me about pluriversality is that it pushes us to see in otherwise worlds that these grounds of reflexive relation, as care or humility, are not conditions that need to be worried about because they can’t be adjudicated. Recognizing incommensurability as the impossibility of translating concepts across worlds emerges not from the problem of untranslatable difference but in the recognition of shared vulnerability. And it is here, perhaps, in shared vulnerability, where alternatives to normative models of transitional justice might begin otherwise.

One reason why current justice frameworks often perpetuate coloniality is because critique has circumscribed—territorialized, even—the conceptual limit of subjective reflection. In his reflection on Kant’s famous essay in answer to the question, “What is Enlightenment?,” Foucault wrote, in an essay of the same name, that

the critical ontology of ourselves must be considered not, certainly, as a theory or a doctrine; rather it must be conceived as an attitude, an ethos, a philosophical life in which the critique of what we are is at one and the same time the historical analysis of the limits imposed on us and an experiment with the possibility of going beyond them. (1997, 133)

I have argued herein that the “critical ontology of ourselves” has not been radical enough. Modern Western critique, part of the thought that deeply roots oppressive law, has accepted the enlightenment legacy of a conceptual form or limit to criticality, at the expense of the ontological possibilities offered by other life-worlds. The possibilities our pluriversal present place before us, however—those, for instance, embodied by Johnson’s appeals to reclaiming Indigenous jurisdiction and process—ask of Western critical attitudes much more than reflexively tracing circumscribed limits. Were modern, Western political and ethical efforts as exercised by Canadian courts, to step into what these or numerous other worlds enact, I think, we would be surprised by the conditions of flourishing that would greet us in careful encounter.

Notes

1. 1 Mills (2016, ft.6, 850) defines “life-world” as “the ontological, epistemological, and cosmological framework through which the world appears to a people.” In this formulation, “Life-world” refers to the relations—practices, ideas, stories, values, commitments, materials, landscapes, etc.—by which peoples and wider kinships are constituted. Although he never uses the term “pluriverse,” some scholars use this term to refer to what Mills means by “life-world” (see, for example, De La Cadena and Blaser 2018; Escobar 2018; Reiter 2018).

2. 2 It should be noted that I do not speak Nuu-chah-nulth, nor am I an Anishnaabemowin speaker. A child of the 1970s, I grew up in rural Treaty 6 territory, a first generation, Canadian-born, white settler son of Scottish immigrant parents. All references to Nuu-chah-nulth and Anishnaabemowin words and concepts come from published sources. I do not in any way claim fluency or deep knowledge of them. I refer to them, doing my best, as I might refer to interesting words and concepts in German, Sanskrit, or any of the many Bantu languages, none of which I speak either, but whose life-worlds also present, if limited in translation, many fascinating possibilities for thinking and becoming otherwise.

3. 3 See “Douglas White III Speaks on Re-Imagining Reconciliation in VIU’s Indigenous Speakers Series,” Vancouver Island University, 16 November 2018, https://news.viu.ca/douglas-white-iii-speaks-re-imagining-reconciliation-vius-indigenous-speakers-series. See also “Re-imagining Reconciliation and the Future of Canada,” CBC Radio-Canada, 31 January 2019, https://www.cbc.ca/radio/ideas/re-imagining-reconciliation-and-the-future-of-canada-1.5000450.

4. 4 Daigle describes land as “an animate being, a relative, a food provider, and a teacher of law and governance to whom we are accountable” (2016, 266).

5. 5 Simpson refers to these negotiations across worlds as “treaties viewed as sacred relationships between independent and sovereign nations, including agreements between humans and non-humans” (2011, 109). She provides the example of twice-yearly human and fish meetings at Mnjikanming where treaty relationships are renewed.

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