Introduction Socio-legal Perspectives on Law’s Violence

Socio-legal Studies: A Brief History

The core identity of socio-legal studies emerges from its juxtaposition with traditional legal scholarship. As Kitty Calavita writes, traditional legal scholarship is rooted in law schools that often present the law as a “set of principles and rules that relate to each other according to a particular logic or dynamic” (2010, 4). Following the Second World War, scholars began recognizing that legal power could no longer be reduced to “black letter law” and that a richer, more nuanced and interdisciplinary approach was needed (Arthurs 1983). This shift was reflected in the development of undergraduate law and society programs, Marxist-inspired critical legal studies, and feminist movements (Brophy and Blokhuis 2017). A question these movements sought to investigate was not simply whether a particular law was just or appropriately applied but what impact law has on society and social relations. In the context of the 1970s economic crisis and the ongoing civil rights movement (ibid.), socio-legal scholarship emerged from a range of interdisciplinary fields engaged in exploring the impact of legal dynamics both inside and outside of the courtroom, including women’s studies, critical race studies, sociology, criminology, Marxist political economy, anthropology, history, political science, and psychology, to name a few. Many of these fields critically addressed law’s role in upholding and reproducing structural inequalities.

The notion of “law” and “society” as distinct spaces and fields of practice was challenged in the 1980s and 1990s by critical scholars who viewed the legal and the social as mutually constitutive (Feenan 2013, 7; see also Ewick and Sarat 2015). For instance, Patricia Ewick and Susan Silbey reject the conceptual distinction between law and society, suggesting we must look at “the presence of law in society” (1998, 35). Another critique of treating the social and the legal as distinct is offered by Peter Fitzpatrick, who argues that both the “legal” and the “social” have proved to be inadequate in providing a focus for the field of socio-legal studies (1995; see also Cotterrell 2009; Silbey 2013). According to Fitzpatrick, despite attempts by scholars to frame law as having, what he calls, a “determinate existence,” the law only exists in relation to something else—whether that be society, economy, class, or another social component.

One key insight central to the work of many scholars is that the field of socio-legal studies cannot be defined by, nor confined to, specific parameters. It thus lacks an identifiable canon, or a “fixed, timeless and bounded set of works” (Guillory 1993; Seron, Coutin, and Meeusen 2013, 289). The interdisciplinary nature of socio-legal studies makes it difficult to establish a canon, since, as Carroll Seron, Susan Bibler Coutin, and Pauline White Meeusen point out, “to be interdisciplinary is to be inclusive” (293). In their view, interdisciplinarity is the only approach that can adequately examine the complex issues presented by law, legal decisions, and the legal terrain overall (290). Ultimately then, the central contribution of socio-legal studies lies not only in the absence of a coherent canon (Arthurs and Bunting 2014; Ewick and Sarat 2015) but also in the impossibility of creating one.

The challenge of defining the field was highlighted during a panel on publishing and peer review observed by one of the editors at the 2019 Law and Society annual conference, where panelists (including publishers, editors, and members of editorial boards) were presented with the question “What constitutes a law and society paper?” A long silence ensued, following which one of the panelists suggested that “there is no clear answer,” and another admitted that this is one of the hardest questions they face in their work. Our experience of working on this manuscript and writing this introduction has been similar. Each time we surveyed colleagues on their thoughts about the field, we were given different ideas as to what the introduction should cover, what might be missing, and where the conversation needed to go. We thus encountered what Fitzpatrick described as a “strategy of confession and avoidance: the field is there but its ‘definition’ is attended with unspecific and unrelieved ‘problems,’ ‘difficulty’ and a general absence of clarity in its ‘lines of demarcation’” (1995, 105). This volume reflects the empirical and theoretical richness, diversity, and even “messiness” of this discipline as the authors engage with a broad range of topics, issues, theoretical framings, and methodological approaches.

Situating “the Law” in Socio-legal Studies

While the boundaries of the field remain undefined, socio-legal scholars collectively focus on the relationship between law and power. One important debate within the field is whether law is repressive or merely one of many governing tactics. Our objective is not to revive the debates about law’s power to repress and/or govern but simply to provide an overview and context for our discussion of law’s role in supporting violence in all its forms.

The “law as repression” approach recognizes law’s role in enabling and perpetuating systems of domination through social structures, including capitalism, racism, patriarchy, and settler colonialism. While we recognize the diverse perspectives captured by the “law as repression” umbrella, here we focus specifically on key arguments agreed upon by those whose work aligns with this perspective. Marxist accounts of law, particularly the instrumentalist approach, often emphasize law’s role in dominating, repressing, and coercing the lower classes while ensuring the values and interests of the ruling class are internalized and obeyed (see Cain and Hunt 1979; Chambliss and Seidman 1971; Hay 1975). The approach suggests that the legitimacy of law is maintained through legal devices such as the rule of law and the promise of liberty and equality for all. As Stephen Brickley and Elizabeth Comack (1987, 98) argue, the liberal state and its judicial apparatus are not independent entities but coercive instruments used by economic elites to protect private property rights and accumulate capital. As they point out, a rigid instrumentalist approach sees the language of equality and neutrality that underpins the rule of law as nothing more than a myth and illusion that masks the hegemonic power of the ruling classes. The instrumentalist approach reminds us that the fundamental fear of the ruling classes of having their right to private property undermined or challenged through popular struggle led to the emergence of policing and security apparatuses as techniques for enforcing a capitalist social order by disciplining and wielding control over workers and vagrants who resisted (Neocleous 2008, 26–31).

Like Marxists, critical race theorists also see law as repressive but as an avenue for enabling and reproducing racist practices (Crenshaw 1995, 2003; Delgado and Stefancic 2017; Haney López 1996). In effect, critical race theorists hold that law constitutes racism. As Constance Backhouse (1999) explains, law has historically been used to force the assimilation of Indigenous peoples to European culture, inhibit the entry of certain immigrant populations into Canada, oppress racialized groups, and construct racial discrimination and racial hierarchies. To protect the economic relations, culture, and values of the white dominant class, legislation was often drafted to carry out the desired effect. Although historically we saw the enactment of explicitly exclusionary and racist legislation, this has shifted over time to take on more subtle forms of legal domination through universalized rights, colour-blind laws, and neutral practices (Freeman 1995; Haney López 1996; Williams 1992). The policing and security apparatuses used to enforce these laws therefore not only are limited to maintaining capitalism, as noted above, but also extend to settler colonialism. In Canada, the North-West Mounted Police (NWMP)—one of two police forces that later merged to become the Royal Canadian Mounted Police (RCMP)—was established both to maintain the authority of white settler colonialism and to suppress Indigenous rebellions (see Comack 2013; Whitaker, Kealey, and Parnaby 2013; Wright and Binnie 2009). The NWMP was established in 1873—around the same time as the Canadian state was also establishing and formalizing new colonial legal policies, such as the Gradual Enfranchisement Act of 1869 and later the Indian Act in 1876. The RCMP continues this legacy of colonial violence in the name of protecting the nation, as exemplified by their removal of the Wet’suwet’en blockade in February 2020, demonstrating that the Canadian state’s repression of dissent and claims of Indigenous sovereignty continue in an effort to defend settler capitalism (Dafnos 2013; see also Ceric 2020). When analyzing law’s role in enabling violence, we must also consider how law produces forms of violent racial governance, parsing out how slow, structural, and naked violence work together to target populations. Racism and settler colonialism are important forces that not only are enabled by law and constitute law’s power but also extend significantly beyond law.

Lastly, we must consider law’s role in constituting patriarchal relations. For instance, ‘examine the Marxist-inspired feminist Catherine MacKinnon, who takes a structuralist perspective on law’s role in regulating gender relations. MacKinnon replaces class division with patriarchy as a form of oppression and argues that women’s unequal social position is a result of their sexuality, which is distorted and manipulated by the dominant sex for their benefit. MacKinnon (1982) explains that the law is merely an arm of the state, which maintains masculine standards disguised as objective and neutral. She takes the position that the law cannot be used to bring about change, since in aiming for equality under the law, we are really striving for masculine standards. While Catherine MacKinnon’s work has been criticized for being too essentialist, feminists have nonetheless built upon her ideas to show how patriarchy continues to operate through legal structures (see Chan, Chunn, and Menzies 2005; Chunn and Lacombe 2000; Craig 2018; Smart 1989, 1995; Ursel, Tutty, and leMaistre 2008). Indeed, Kimberlé Crenshaw (1991), Patricia Hill Collins (2015), and other intersectional feminists acknowledge that structural inequality is mutually constituted by multiple forms of oppression, including race, gender, class, age, ethnicity, and ability. Feminists using an intersectional perspective recognize the importance of historical context, culture, time, place, and space for understanding structural inequality and, in our case, structural violence.

Although “law as repression” scholars focus on law as a form of domination, it would be simplistic to end on the conclusion that law can only be reduced to repression and physical violence. Drawing on structural approaches to Marxism, we recognize that the state and its institutions are relatively autonomous (Gramsci 1971; Althusser 1971). And while the state and its legal system certainly have repressive functions that enable the ruling classes to accumulate capital, they do not operate on repression alone; they also, as Nicos Poulantzas (1978) suggests, rely on legitimization and consent. For example, the state must sometimes go outside of the interests of capital by winning “the loyalty of the economically and socially oppressed classes” (Brickley and Comack 1987, 100) to ensure the smooth functioning of capitalism and avoid crises of legitimacy (Gramsci 1971). Consider, for instance, legislation that protects labour rights, the right to strike, and workplace safety regulations won by the labour movement. In this instance, overruling the short-term interests of some capitalists and providing the working class with a set of real rights and liberties ensured that the fundamental structure of capitalist social relations was not disrupted (see Palmer 2003; Tucker 1988, 2019). Similarly, critical race theorists such as Patricia Williams (1992) acknowledge the importance of legal rights in challenging racial violence and inequality for Black people in America, even if only as formal (rather than substantive) rights.

More than the rule of law being a myth or an illusion, the structuralist approach helps us understand how these positive developments have compelled individuals to accept as real its ideological principles of neutrality and equality. Poulantzas summarizes this perspective and writes that the universal, formal, and abstract character of law presupposes “agents who have been ‘freed’ from the personal-territorial bonds of precapitalist, and even serf, societies”; therefore, people assume they are “free and equal before the law” when, in actuality, exploitation and violent coercion underpin our entire political structure (1978, 80–81). Poulantzas also acknowledges how this mythology plays a fundamental role in mediating the relationship between slow, structural, and naked violence through law: “In every State, law is an integral part of the repressive order and of the organization of violence. By issuing rules and passing laws, the State establishes an initial field of injunctions, prohibitions and censorship, and thus institutes the practical terrain and object of violence. Furthermore, law organizes the conditions for physical repression, designating its modalities and structuring the devices by means of which it is exercised” (77). As Poulantzas observes, “State-monopolized physical violence permanently underlies the techniques of power and mechanisms of consent; it is inscribed in the web of disciplinary and ideological devices; and even when not directly exercised, it shapes the materiality of the social body upon which domination is brought to bear” (81). As we see in this volume, the mythology of law protects the colonial system while denying Indigenous rights to sovereignty and autonomy, thereby legitimizing the use of state violence against these groups.

While contemporary structuralist scholars concur that capitalist social relations are reinforced through legal norms, those who critique structuralism argue that we must understand law in a more nuanced manner, leading them to examine the possibility of law as an avenue for social change. One of these scholars is E. P. Thompson (1975), who takes the position that although the rules of society may support ruling class power, they also at times curb this power and its intrusions. For Thompson, the law cannot be separated from the social, as it is “deeply imbricated within the very basis of productive relations, which would have been inoperable without this law” (261). Another such scholar is Alan Hunt (1993), who argues that the law is neither autonomous nor dependent but is constitutive through unstable and changing links between institutions. He explains that the law is part of a system of modes of regulation, but it maintains its proximity to the state, even while involved in the process of governance and social regulation (Hunt 1993, 207). For Hunt, then, law constitutes “a field within which social relations are generated, reproduced, disputed and struggled over” (293). Importantly, Hunt takes the position that law should be prioritized as a site for social justice and social transformation—a position that is challenged in the afterword to this volume by Alam and Ceric, who claim that “it will never be possible to separate the force of law from violence, whether that violence is metaphysical, social, or political.” Yet rather than debate the merits of law as a site of struggle, Alam and Ceric call on socio-legal scholars to imagine and conceptualize radical alternatives to law to generate a dialogue on new transformative possibilities.

Although structural perspectives widen our understanding of law’s power, law and governance scholars are critical of these structuralist debates, noting the limited scope of these accounts in two ways. First, they contend that the reliance of structuralist approaches on a rather unified view of state power does not offer clarity on how less formal, nonstate technologies of power play a role in social and political relations. And second, they critique the structuralist perspective’s guiding focus on repressive relations of power and thus failure to offer ways to investigate the productive potential of legal power. It is our view that law as governance perspectives offers socio-legal scholars a conceptual toolkit to investigate how violence is not only exercised through law but also incorporated and normalized into other aspects of the body politic. Adopting a governmentality perspective alongside law as repression scholarship offers scholars a more fruitful avenue for analyzing how violence operates.

The “law as governance” approach is inspired by Michel Foucault’s analysis of power, particularly his work on governmentality. Many scholars, inspired by Foucault, expanded their focus to analyze not only how the law represses, dominates, and controls but also how it produces subjectivities, norms, and identities in mutually constitutive ways (Ewick and Silbey 1998; Hunt 1993; Rose, O’Malley, and Valverde 2006; Rose and Valverde 1998; Valverde 2003; Williams and Lippert 2006). These Foucauldian-inspired works emphasize the importance of exploring legal power beyond the state. Foucault’s work directs us to consider power more broadly rather than as something that’s simply enshrined in the state. He famously called on scholars to “cut off the king’s head”—that is, to study power relations by widening the concept of power beyond a sovereign, king, or ruling class (Foucault 1980, 121). Instead, Foucault suggests we should consider how power operates as a decentralized force through multiple sites and institutions. Foucault’s analysis emphasizes that power is fragmented, dispersed, and omnipresent ([1978] 1990, 93). As Kevin Walby points out, an investigation of law’s power under a Foucauldian analytic would include a “range of multifarious and irreducible governmental sites,” including but not limited to the law (2007, 555). Consequently, a central feature in Foucault’s analytical inquiry was a move away from investigating power as possessed and inherently negative or repressive and instead exploring its productive dimensions. By inverting the relations of power, Foucault (1980) believed scholars could more concretely grasp the variety of mutually constitutive social practices, knowledges, and technologies that bring into play our understanding of reality and subjectivity.

Although Foucault never produced a coherent theory of law, his analysis of power has influenced the law as governance approach. Rather than viewing law as solely grounded in violence and sovereignty, Foucault recognized law as “something that could be used to enforce certain norms and behaviour” (Newman 2004, 43). Law as governance scholars have noted that law and modern forms of power are both interdependent and opposing (Beck 1996; Golder and Fitzpatrick 2009). Instead of referencing the law as a singularity, Nikolas Rose and Mariana Valverde, for instance, believe it’s best to use the term legal complex to describe the “assemblage of legal practices, legal institutions, statutes, codes, authorities, discourses, texts, norms, and forms of judgment” (1998, 542). Legal complexes are one of many diverse forms of power for governing, as they are often combined with other forms of knowledge, including psychiatric or medical knowledge. We see this observation as particularly fruitful, as it allows us to expand our analysis of how violence is enabled through and in conjunction with these “nonviolent” extrajudicial knowledges.

While many suggest Foucault’s work does not consider the role of legal violence or state repression and offers very little in imagining the possibilities of social transformation and resistance (see Hunt and Wickham 1994; Poulantzas 1978; Mbembe 2003), we believe these analyses overlook many insights provided by Foucault. In contrast to the argument made by Nicos Poulantzas, who writes that Foucault underestimates “the role of law in the exercise of power within modern societies” by failing to understand “the function of the repressive apparatuses (army, police, judicial stem, etc.) as means of exercising physical violence that are located at the heart of the modern state” (1978, 77), we believe Foucault acknowledged the role of violence as a key element of modern politics (see also Oksala 2010). In numerous interviews and lectures delivered shortly before his death, Foucault argued that violence is deeply embedded within our social structures, pointing out that “humanity settles each one of its violences within a system of rules, and thus goes from domination to domination” (1980, 91; emphasis added). Here, we agree with Saul Newman’s commentary that Foucault’s analysis of power demonstrates violence has, in fact, “creeped into the very structures, laws, hierarchies, and institutions that have been established to suppress it” (2004, 578). Through this lens of the pervasiveness of violence to constitute ruling power relations, we can begin to see that violence is not merely exercised by the state as a spectacle through naked force. Violence is also exerted slowly through social structures and institutions. In other words, the law and legal complexes are both productive and violent (see Newman 2004; Poulantzas 1978). While we agree that examinations of law’s power must expand beyond black-letter law and include its variations in the form of policies, norms, and discourses, we suggest that law, in its many forms and expressions, continues to be a unique source of power. In contrast to scholars who believe Foucault expelled law or simply viewed law as the sovereign right to engage in violence (see Hunt and Wickham 1994), we take the perspective advanced by scholars such as Carol Smart (1989, 1995) who highlight that the mythology of law as neutral and objective for evaluating information and determining truth is part of its unique power.

Consider Smart’s (1989) critique of law claiming to have the method for finding “the truth.” In this discovery process, Smart reminds us that the law disqualifies other knowledges and experiences, thus determining what becomes established as “the truth.” This is enabled by law’s ability to set itself apart from the social order and in doing so create the perception that it is able to reflect on the world in a neutral and objective way (Smart 1989, 11). The law also relies on other knowledges, such as psychiatric and medical knowledges, to inform both legal and extralegal forms of governance and extend its power beyond legal truth-making (16–17). Law’s “claim to truth,” Smart writes, is not manifested in its practice but “in the ideal of law” (11). Not only does law evaluate truth; it also creates legal fictions that maintain and reinforce settler colonialism, the production of criminal others, and the preservation of gender and racial inequality amongst other forms of inequality.

The Relationship between Slow, Structural and Naked Legal Violence

Our goal in this book is not to revisit the debate on the metaphysical essence of law but instead to provide a snapshot of how some Canadian socio-legal scholars address the ways in which legal power draws on, maintains, and perpetuates various forms of violence, whether through subtle and mundane governing practices or through overt coercion and force. We believe that law’s power should be examined in new and creative ways that go beyond narrow conceptual debates between law as repression and law as governance. Instead, we draw on both approaches to make sense of the complex and varied ways in which law not only continues to organize overt coercion but also helps sustain the structural and slow violence of white supremacy, patriarchy, and settler colonialism.

One of the most obvious examples of the relationship between naked, structural, and slow violence is Canada’s contemporary and historical treatment of Indigenous people. Given our focus on Indigenous struggles in the sections that follow, it is important that we position ourselves in this discussion. All three of the editors of this book are settlers in Canada. In discussing Indigenous issues, it is not our intention to suggest that we possess personal insight about Indigenous experiences and culture. We are writing about these concerns as allies, supporters, and accomplices with recognition and concern for the ongoing impact of settler colonialism.

Despite its earnest show of support for the ninety-four calls to action issued by the Truth and Reconciliation Commission (2015), the Canadian government has taken little by way of concrete action in response to racism, poverty, inadequate health care, lack of education, overincarceration, police violence, and the denial of other basic human rights to Indigenous peoples. For instance, Indigenous communities have spent decades attempting to focus attention on the issue of missing and murdered Indigenous women and girls. Statistics Canada reported that, over the period from 2001 to 2015, Indigenous women and girls were six times more likely to be killed than their non-Indigenous counterparts (Hotton Mahony, Jacob, and Hobson 2017, 22) and that, as of 2014, they faced a rate of serious violence twice as high as that of Indigenous men and triple that of non-Indigenous women (Boyce 2016, 3). An analysis conducted in 2016 by Maryanne Pearce and Tracey Peter revealed that the situation was even worse than it had previously appeared: Indigenous women and girls were twelve times more likely to be murdered than non-Indigenous women and girls and sixteen times more likely than white women (cited in National Inquiry into Missing and Murdered Indigenous Women and Girls 2019, 1a:55). The most recent statistics from 2020 suggest a slight decline in the homicide rate for Indigenous women. Based on this information, Indigenous women are five times more likely to be killed compared with non-Indigenous women, though the authors caution this could be affected by statistics collection practices, as all statistics since 2019 now refer to the gender identity of the victim instead of their biological sex (Perreault 2022, 27).

International attention was drawn to this issue more than a decade earlier, with the release of the Amnesty International report Stolen Sisters: A Human Rights Response to Discrimination and Violence Against Indigenous Women in Canada (2004). In 2013, Human Rights Watch released a report calling for the Canadian government to launch a national commission of inquiry and, with guidance from Indigenous leaders, to develop a national action plan to address the issue of missing and murdered Indigenous women and girls (2013, 15). Then in 2015, the United Nations’ Committee on the Elimination of Discrimination Against Women found that Indigenous women and girls in Canada face “grave and systemic” rights violations that urgently need to be addressed by the Canadian state (2015, 3). The Conservative government in power at the time, led by Prime Minister Stephen Harper, did not consider it important to address this issue, noting that the murders should be understood as crimes rather than as a “sociological phenomenon” (quoted in Ditchburn 2014). It was in 2015, after the Liberal government came into power, that a national inquiry into the issue was finally announced. The results of the national inquiry were released in a report published in June 2019 and found that the Canadian state committed genocide against Indigenous peoples through systemic forms of racism and disregard (National Inquiry into Missing and Murdered Indigenous Women and Girls 2019; see also Palmater 2016; Jolly 2019; McDiarmid 2019).

The report of the inquiry also found that the genocide was empowered by colonial structures evidenced most notably by the Indian Act, the principal instrument through which federal jurisdiction was exercised over Indigenous peoples enacted in 1876. The Indian Act adopted a highly paternalistic view of Indigenous people, treating them as “wards of the state” unable to manage their own lives. It also gave discretion to Canadian governing authorities to determine who qualified as an “Indian,” which land belonged to Indigenous peoples, and to what extent Indigenous people had the right to engage in their traditional social, cultural, and economic practices (Morgensen 2011, 62; see also Diabo 2017; Miller 2004). Canadian governing practices have long been informed by what Wolfe (2006) conceptualizes as “a logic of elimination,” which has the objective of gradually destroying Indigeneity through techniques of regulation and assimilation and replacing it with a new settler nation and identity characterized by liberalism and private property regimes (see also Crosby and Monaghan 2012, 425). Indeed, an important tactic that facilitated the settler-colonial project was the deployment of what Jean Comaroff and John Comaroff (2006) call lawfare, whereby authorities drew on coercive legal instruments to “realize [the] project of [Indigenous] elimination” and “securitize settler-colonial spaces” (Crosby and Monaghan 2012, 425). These lawfare strategies are continuing to be employed today through legal tactics. One such example is corporations applying for court injunctions to forcefully remove Indigenous protesters and blockades defending unceded land and territory (Ceric 2020; Pasternak 2017; Simpson and Le Billon 2021).

The Indian Act also authorized the operation of residential schools, which were central to the colonial project of assimilation. Residential schools aimed to transform Indigenous children and youth into “proper English-speaking Canadians loyal to the Crown” (Talaga 2017, 9; see also Regan 2010; Woolford and Gacek 2016). Revisions to the Indian Act in 1920 made it mandatory for parents to send their children to these boarding schools, which were often far from the child’s home. If parents refused, the RCMP was tasked with rounding up the children and delivering them to the school—by force, if necessary. Parents were also threatened with sanctions, including being jailed and having their rations cut until they surrendered their children (Hopper 2021; see also Talaga 2017; Metatawabin with Shimo 2015). Indigenous children experienced significant abuse and neglect, as well as sexual, physical, and psychological abuse; starvation; torture; and other acts of violence in residential schools (Bourgeois 2015; MacDonald and Hudson 2012; Metatawabin with Shimo 2015; Talaga 2017). And while residential schools are no longer in operation, these practices have not stayed in the past but persist through the impacts of intergenerational trauma and the continued placement of Indigenous children into the child welfare system at rates greater than at the height of residential schools, a system that has been called the second generation of residential schools (Bourgeois 2015).

In the late spring and early summer of 2021, the remains of well over a thousand Indigenous children were discovered in unmarked graves near several former residential schools in British Columbia and Saskatchewan.1 Many more grave sites are believed to exist in Canada (Austen 2021; Blackstock and Palmater 2021) and are stark reminders of the relationship between slow, structural, and naked violence. While concentrating on naked violence narrows the focus to the moments of abuse and murder, attention to structural and slow violence broadens the inquiry to the laws and policies that enabled the operation of residential schools and their long-term impacts, including the intergenerational trauma generated by these forms of violence within Indigenous communities. These events contain both momentary (immediate) and continuous forms of violence. To try to separate these forms of violence as either naked, slow, or structural is akin to seeing from one eye rather than using our entire field of vision. The harms of residential schools on Indigenous populations bring together the naked violence of the past with the sustained and intergenerational trauma of these experiences on Indigenous communities.

It is fit to remember that violence perpetrated against Indigenous populations, in part by and through residential schools, relied on the mythology of law as a neutral and objective method for evaluating information and determining truth (Naffine 1990). These “objective” legal approaches were key for the settler-colonial project. “Neutral” legal concepts such as terra nullius allowed for the “erasing” of space already inhabited by Indigenous people, both conceptually and physically, therefore being instrumental for building and settling in the new world. Through a process of slow, structural, and naked violence, the law has played, and continues to play, a vital role in the production and erasure of Indigenous social, political, and cultural practices and identities (Williams 1990; Anghie 1996; Blomley 2003; Miller 2004; Comaroff and Comaroff 2006).

The relationship between slow, structural, and naked violence can also be examined in the context of the criminal legal system, in which the path from the spectacle of police arrests through to the relative nonspectacle of incarceration marks the transition from coercive and structural force to slow violence that has long-term consequences for racialized and Indigenous communities. Consider, for example, the impact of the 1986 Anti-Drug Abuse Act in the United States—one assault in what Richard Nixon famously dubbed the “War on Drugs.” Among other things, the act mandated harsher penalties for the possession and sale of drugs and increased the number of drug-related offenses that carried a mandatory minimum prison sentence. In particular, the amount of crack cocaine required to trigger a mandatory sentence was set far lower than the amount of powder cocaine, a provision widely recognized for its racist agenda: the large majority of crack users were Black, whereas powder cocaine was primarily a drug used by affluent whites. Inner-city Black neighbourhoods were accordingly targeted as havens for drug users and pushers, and Black people were arrested and imprisoned at vastly disproportionate rates (Alexander 2012, 59–80; see also Davis 2017, xi–xvii). The situation was exacerbated by the “tough on crime” policies of the 1990s, notably the 1994 Violent Crime Control and Law Enforcement Act, which sent the number of inmates in the United States soaring, again with a significant overrepresentation of both Blacks and Hispanics. Although incarceration rates have been steadily declining since the late 2000s, an obvious racial imbalance persists. As of the end of 2018, Blacks still made up about 33 percent of the prison population, in comparison to their 12 percent share of the US population as a whole, and were incarcerated at a rate roughly five times that of white people (Gramlich 2020).

In Canada, the criminalization of drug possession and sale has also disproportionately targeted Black and Indigenous people (Maynard 2017), contributing to the overrepresentation of these groups in Canadian prisons. In January 2020, Canada’s Office of the Correctional Investigator reported that, although Indigenous people account for only 5 percent of the population of Canada overall, the proportion of Indigenous inmates out of the total federal prison population had now exceeded 30 percent, their number having increased by 43.4 percent (or 1,265) since April 2010. Similarly, in 2013, the Office of the Correctional Investigator noted in their annual report that the number of Black inmates in Canada’s federal prisons had grown by nearly 90 percent between 2003 and 2013, with the result that Blacks then made up 9.5 percent of the federal prison population despite representing only 2.9 percent of the Canadian population (2013, 3, 9). While a series of recommendations were made in 2013 by the correctional investigator and in 2017 by a UN human rights working group to change the governance structure of Correctional Service Canada (CSC) and provide more national training, CSC has mostly ignored these recommendations (Office of the Correctional Investigator of Canada 2022, 39–43; UN Human Rights Council Working Group of Experts on People of African Descent 2017).

These statistics reaffirm our contention that inserting the concept of slow violence into the analysis helps us better understand the power of law and the experiences of racialized groups who are subjected to racist and colonial violence—not only naked and structural violence but also slow violence at the hands of law. The intention and outcome of the law may not be immediately evident nor present itself in obvious ways, at least not in all its forms. What becomes clear is that while the threat of physical coercion always lurks beneath the law, it also operates and creates conditions for discrete forms of violence that disproportionately target BIPOC, sexual minorities, and economically disadvantaged communities. While Poulantzas reminds us that physical coercion underpins our entire political and legal structure, we must also consider that violence is inscribed within a “web of disciplinary and ideological devices” (1978, 77). This violence remains the determining element of all relationships of power, even when it is not exercised in a direct and open manner (81). Building on Poulantzas, we take the position that slow, structural, and naked violence are all mutually constitutive and should be examined together if we are to understand their full impact.

Overview of the Chapters

The chapters in this volume contribute to and advance the discussions outlined above, demonstrating the subtle, practical, and persistent ways law’s violence continues to be maintained and perpetuated in Canadian society.

The chapters in part 1 focus on law’s relationship to settler colonialism and racism in Canada, providing theoretical and methodological approaches for deconstructing these structures. In chapter 1, Carmela Murdocca, Shaira Vadasaria, and Timothy Bryan focus their analysis on race and colonialism, contending that Canadian socio-legal scholars must move beyond the institutional framing of race and racism and suggesting that they are constitutive of law. By adopting a methodological approach that addresses the continuities of race and colonialism, as well as their relationalities, the authors argue socio-legal scholars can better attend to the continuities of racial legal governance and the spatial and temporal dimensions across disparate sites of violence.

The second chapter, by Stacy Douglas, further highlights how settler colonialism is constitutive of Canadian law, noting the imaginative and mythological foundations of this law through a postcolonial case analysis. The chapter considers how a focus on imagination can problematize the legacy of colonialism and white supremacy present throughout the Canadian legal landscape. Douglas explores the application for judicial review brought by the Mikisew Cree against the Canadian government for its failure to carry out the Crown’s duty to consult with Indigenous communities before introducing legislation that would make changes to environmental protections. Douglas seeks to provide what Peter Fitzpatrick termed an internal decolonization of the settler-colonial legal infrastructure by subverting the myths of law’s rationality. This chapter highlights how law’s imaginative properties reproduce settler colonialism, generating legal fictions that maintain settler-colonial violence against Indigenous groups.

The essays in part 2 continue our discussion of law’s violence and reproduction of inequalities, focusing specifically on law’s power in producing racism and gender violence and depoliticizing racial violence. The authors highlight the ways that the violence of the law against certain segments of society is invisibilized through legal creations of categories of a “crime” and a “criminal,” which are deeply racist, sexist, xenophobic, and misogynistic and target most marginalized populations. The chapters underline questions about who becomes the focus of the law’s attention (and discourse) as a perpetrator or a victim, an exercise that brings to light deep social inequalities.

In chapter 3, Yavar Hameed and Jeffrey Monaghan continue the conversation on law’s imaginative properties. The authors demonstrate the ways in which racist ideologies used in policing practices and communications animate the production of Islamic terrorists and how the law extends and reinforces the equation of Muslim bodies with threats to national security. More specifically, Hameed and Monaghan investigate the ways in which the crime-making dynamics inherent in the “war on terror” are embedded with racialized constructions of “menacing Islam” in counter-terrorist practices. The authors draw on Richard Ericson’s work to outline how various practices in the Canadian criminal legal system combine to determine what cases are transformed into acts of terrorism and how suspects, once identified, are accordingly positioned as terrorists. This chapter contributes to one of the anthology’s themes: law relies on the production of fictions, including fictional enemies, to maintain both overt and discrete violence against marginalized groups, as the state arrests and incarcerates where possible while engaging in long-term surveillance of the Muslim population.

Contributing to discussions on race, gender, and law’s power, in chapter 4, Emily Lockhart, Katrin Roots, and Heather Tasker trace the development of key feminist concerns in relation to gendered violence, coming to settle in our contemporary moment dominated by discussions of #MeToo and increased public awareness of the prevalence of sexual harassment and assault. The authors suggest that the broad publicity and, therefore, hypervisibility of activism and the resulting attention paid by the criminal legal system to those who formerly escaped its power should not be mistaken for a universalized transformation in enactments of justice through legal developments. Instead, they argue that the spectacularism attached to the hypervisible cases drawing attention in the #MeToo movement, such as those of Harvey Weinstein and R. Kelly, serve to stand in for sexual harm broadly. The attention these events receive is powerful in mobilizing limited legal responses, but in drawing the eye to spectacular and individual cases, the everyday experiences and executions of violence, including violence committed by and through law primarily against marginalized and racialized people, remains routinized, invisibilized, and when seen, barely read as violence at all.

In chapter 5, Heather Tasker offers a critical analysis of the United Nations High Commissioner for Refugees’ “Do You See What I See?” (DYSWIS) photography project. Tasker demonstrates how legal power, through its absence and presence, contributes to violence that depoliticizes and silences racialized groups living in refugee camps. Through an analysis of the DYSWIS project, the chapter explores how humanitarian logic is materialized through the medium of photography and the ways that this impacts Western consumption of images produced by refugee youth. The chapter focuses on how projects such as DYSWIS influence international norm-making in ways that entrench humanitarian principles such as impartiality and neutrality. She argues that DYSWIS serves to exclude, or silence, politicized and context-specific conversations about conflict, displacement, and law.

The contributions in this book not only explore law’s power but suggest transformational possibilities for those seeking to challenge law’s violence and power. The chapters in the final section outline paths for resistance and social transformation. In chapter 6, Alex Luscombe and Kevin Walby provide a conceptual framework for understanding the practice of feral lawyering, where socio-legal scholars use freedom of information laws to broker access to hidden documents. They note not only law’s power to exclude and protect information but also how socio-legal scholars can demand, negotiate, and challenge the state and state power, as well as disrupt the state’s ability to hide information. The chapter points to feral lawyering as a practical strategy for challenging legal violence, revealing the inner workings of its bureaucracy.

In chapter 7, Nergis Canefe argues that socio-legal scholars must address the rigidities and silence of our field, including providing more attention to law’s power beyond its productive and creative potential and instead including law’s violence and law’s ability to both produce and justify violence against individuals from many subjectivities and identities. Canefe suggests that rather than simply engaging in academic discussions, the objective of early socio-legal scholarship was to develop ways critical legal scholarship could benefit populations that are oppressed, marginalized, and discriminated against in society. For Canefe, although socio-legal scholars reveal uncertainties about law, they pay little attention to violence in everyday life. To account for the rigidities and silences of the field, Canefe notes that we must explore the relationship between hegemony, legal consciousness, and ideology. According to the author, it is not enough to see legal consciousness as a theoretical concept or research topic, but it must instead be seen as inherently tied to legal hegemony and ideology.

Mariful Alam and Irina Ceric conclude the volume with an afterword on social transformation and future possibilities, suggesting that the force of law cannot be separated from violence. While socio-legal scholars often focus on the role of law in creating or subverting social change, Alam and Ceric argue that we must consider a vision of a society without a state or law. The chapter outlines lessons learned from social movements and prefigurative politics when creating visions of justice beyond law and the state. Spoke councils, sanctuary cities, and anti-carceral feminist movements all provide examples of how we can reimagine democracy and justice, providing interventions to address injustice without state violence.

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