Chapter 1  Race and Colonialism in Socio-legal Studies in Canada

Continuities of Race and Colonialism

Socio-legal scholarship on race and colonialism can be described as offering approaches that address the continuities of racial and colonial formations in law. Such approaches can be characterized as genealogical accounts of the racial and colonial formations in settler colonialism. The word genealogy as it is employed in critical social theory owes much to Michel Foucault’s use of the term in his effort to write “histories of the present” (1977, 39). Departing from positivist methods of inquiry, Foucault describes his approach to genealogy as one that attempts to “desubjugate historical knowledge, to set them free, or in other words to enable them to oppose and struggle against the coercion of a unitary, formal and scientific theoretical discourse” (10). Part of Foucault’s approach to genealogy is to excavate subaltern knowledges (i.e., “historical contents that have been buried or masked in functional coherences of formal systemizations” [7]). As Foucault explains further, “If you like, we can give the name genealogy to this coupling together of scholarly erudition and local memories which allows us to constitute historical knowledge of struggles and to make use of that knowledge in contemporary tactics” (8). It is through this approach to the study of how things come to be that we are provided a method for accounting for a history of the present.

As David Garland describes, genealogy can be viewed as “a method of writing critical history: a way of using historical materials to bring about a ‘revaluing of values’ in the present day” (2014, 372). Rather than searching for a single point of “origins,” Foucault (and Nietzsche) were more interested in tracing genealogy as “the erratic and discontinuous process whereby the past became the present: an aleatory path of descent and emergence that suggests the contingency of the present and the openness of the future” (Garland 2014, 373). Garland continues,

Genealogical analysis traces how contemporary practices and institutions emerged out of specific struggles, conflicts, alliances, and exercises of power, many of which are nowadays forgotten. It thereby enables the genealogist to suggest—not by means of normative argument but instead by presenting a series of troublesome associations and lineages—that institutions and practices we value and take for granted today are actually more problematic or more “dangerous” than they otherwise appear. (372)

In reviewing socio-legal scholarship on race and colonialism, it is apparent that a genealogical approach assists in identifying continuity alive in and through the historical and ongoing processes of racial governance in ongoing settler colonialism and white supremacy. Examining continuity allows us to trace (1) the violent, annihilative, and carceral consequences of white supremacy, racial capitalism, and settler colonialism; (2) the remaking of racial formations for new and renewed legal, political, and economic conditions; and (3) the ways in which racial governance can be viewed as a liberal mark of “progress.” The work of Renisa Mawani, Pamela Palmater, Barrington Walker, Val Napoleon, and Sherene Razack individually and collectively illustrates the continuity of race and colonialism in socio-legal studies.

Identifying the continuity of race and colonialism as genealogical also suggests a temporal approach to considering racial colonial phenomena. The genealogical continuity of race and colonialism is temporal to the extent that historical phenomena can be viewed in relation to the present, and similarly present phenomena can be examined for traces of the past. In this regard, genealogical continuity can be said to also open up possibilities for the future. Considering law as genealogy requires attention to historicity and the temporal dimensions of law, race, and colonialism. As Renisa Mawani suggests, considering law as genealogy requires a focus on the temporal dimensions of law: “Law as temporality moves beyond history and historicity and invites an exploration into law’s deployment of time as a means of capturing and obscuring, albeit not always successfully, the density of lived time” (2014, 93). In her research, Mawani demonstrates the genealogical and temporal orientation of law through an analysis of the way in which “free” British Indians in the early twentieth century established and advocated claims as settlers in South Africa in relation and opposition to “other racially inscribed and enumerated populations including Indian indentures, Asiatic migrants, and most notably, native Africans” (68). Emphasizing the temporal and continuous racial formations in South Africa and across the British Empire, Mawani argues that these “juridical-racial taxonomies were also temporal divisions that fomented legal subjectivities ascribed with unequal degrees of worth and value, disparate rights to land, and with distinct claims to imperial polity” (68). These temporalities of racial colonial rule reveal the continuous and shifting racial formations—the connections between state formation and subjectivity—that respond to particular political and economic conditions in settler-colonial contexts. The significance of genealogical understandings of law, race, and settler colonialism—as temporality attenuated to ongoing histories of the present—has been taken on by a number of Indigenous and non-Indigenous scholars in a multitude of ways.

Pamela Palmater’s study of genocidal policies and practices aimed at the disappearance of Indigenous peoples on Turtle Island (North America) is a robust example of this work. Rather than reading legislative policies aimed at Indigenous extinction as remnants of a distant past, Palmater centres the continuity in scalping bounties targeting Indigenous peoples in Nova Scotia (2014, 32).7 For example, alongside an examination of forced sterilization, Palmater examines the long-standing and intergenerational terror of residential schools to the legal regulation of Indigenous identity and band membership through the Indian Act. While these methods of colonial control vary in technique and scale, they are linked through the use of law and, in particular, the intent behind legislative efforts to erase Indigenous peoples in North America. For example, through her analysis of the Indian Act, we come to appreciate how a policy first introduced in 1876 with the intent to “amalgamate all pre-and post-confederation legislation with regards to Indians and bring their control under the full jurisdiction of the federal government” (Palmater 2014, 34) continues to define (via registration) who counts as Indigenous, which Indian bands are recognized, and how reserve land can be used. As argued by Palmater, this comprehensive act stretches into almost every aspect of Indigenous life and has had the effect of legally eliminating (by means of registration and regulation) “who is and is not an Indian” (34).

“Ghost people” (i.e., those referred to as “non-status Indians”) are among those barred from legal recognition in a number of ways, including rights to land. Relying on case law to explain further (in particular, Sharon McIvor and Jacob Grismer v. Canada 2010), between 1876 and 1985, “the criteria for federal recognition as ‘Indian’ was largely based on a one-parent descent rule—so long as descent was from a male person of Indian blood” (Palmater 2014, 35).8 The effect of 12(1)(b) of the Indian Act—which many scholars have addressed as a patriarchal, heterosexist, and racist statute9—was that Indigenous women who married non-Indigenous men lost their status, and by extension, their offspring also lost legal recognition. Tracing the juridical category of Indian status, Brenna Bhandar elaborates on how the very act of defining who counts as “Indian” (as calculated through blood) was a project inextricably linked to broader structures of racial capitalism and the capacity to determine who had rights to enjoy and hold land (Bhandar and Bhandar 2016, 3). Contributing to this discussion on the legislative regulation and juridical erasure of the category “Indian,” Bhandar explains how racist, sexist, and patrilineal provisions outlined in the Indian Act provided the necessary legal grounds to further land dispossession. As Bhandar notes, “In the definition of ‘Indian’ we see the erasure from the juridical category of Indian of First Nations women as independent subjects; they are categorised either as the child or the wife of a man” (2016, 3). This example of demographic management was one of the many ways that Canada’s settler government maximized control of land while minimizing both the existence of and their obligations to Indigenous peoples. Palmater’s examination of the legislative changes in the Indian Act reflects the myriad ways that the Canadian government has made Indigenous peoples the target of what she names as “legislative extinction” (2014, 28). Through a genealogical examination of colonial legal orders, Palmater provides a historical and analytical lens to address the continuities between seemingly disparate and differently scaled sites of settler-colonial violence.

Another noteworthy contribution to genealogical approaches to the study of Indigenous claims to land and identity in Canada is Val Napoleon’s article “Delgamuukw: A Legal Straightjacket for Oral Histories?” (2005). Examining the treatment of Gitxsan adaawk or oral history as legal evidence of Gitxsan land ownership, Napoleon shows how the denial of Indigenous knowledge systems and notions of Indigenous “inferiority” continue to be central to the securing of a settler state. By way of delineation, Napoleon recounts the Delgamuukw case and the decades-long legal battle launched by the Gitxsan and Wet’suwet’en hereditary chiefs before the British Columbia Supreme Court, the province’s Court of Appeal, and finally the Supreme Court of Canada between the mid-1980s and the mid-1990s. The case turned on the admissibility of the adaawk (oral history), which formed the basis of the Gitxsan and Wet’suwet’en claim to their land. Among the Gitxsan people, the wilp (or “House”) is the primary unit of social organization, and the adaawk functions as the “formal institution” that maintains the identity of each wilp (Napoleon 2005, 126). Adaawk were presented and shared between wilps and represented a formal narrative distinct from folklore and contained implications for the privileges, territories, and political relations of the Gitxsan people. The Gitxsan and Wet’suwet’en argued that the adaawk is “a living institution” and a valid and trustworthy historical record (153).

Napoleon argues that the adaawk was forced into a “straightjacket of standard form evidence” that made it fundamentally unacceptable and incommensurable with Western legal rules, ultimately resulting in Justice McEachern’s refusal to consider it as official evidence at trial (2005, 125). As Napoleon explains,

What becomes clear from the transcript is that the Court was not able to hear or accept the adaawk as presented—a legal and political institution rather than a simple cultural artefact or chronological history record. The forms of expression, symbolism, and inter-connections between the worlds of spirits, humans, and animals proved to be beyond the grasp of the Court. Consequently, McEachern C.J. characterized much of the adaawk as mythology, not history, and in the end accorded it no weight as evidence. (154)

Despite the place of the adaawk in Gitxsan life as a formal record of Gitxsan territorial claims, oral history was viewed as heresy, myth, or culture. The Gixksan adaawk needed to be in a fixed, unchanging, and singular form in order to be accepted as evidence. The trial transcripts reveal that at every point in the legal process, the court advanced a “distorted legal truth” about Indigenous oral histories, one in which the adaawk could never be considered a “legal and political institution” rather than simply a “cultural artifact or [a] chronological history record” (154).

Napoleon’s article shows the continued work of settler colonialism through the invalidation of Indigenous knowledge. In this case, we see how the formal legal tests that determine the reliability of evidence function as colonial governance insofar as it delegitimizes Indigenous knowledge systems in Western fields of knowledge. The exclusion of the Gitxsan adaawk and the outcome of the Delgamuukw case sanction colonial strategies of governance to secure territory by dismissing Indigenous claims to and sovereignty over land and resources. Another way we can understand genealogical approaches to the study of race in Canadian courtrooms is by attending to the ways that colonial identity comes to be renewed and represented against racialized logics of Black criminality.

Barrington Walker’s Race on Trial: Black Defendants in Ontario’s Criminal Courts examines the treatment of Black defendants in Ontario’s courts from 1858 to 1958. He provides a unique account of the ways in which death penalty cases are an important site for crafting a benevolent white settler identity. Walker examines how judges exercised “discretionary justice” in cases involving Black defendants (2010, 45) and shows how Black communities—caught between formal legal equality on the one hand and social, political, and legal discrimination on the other—were precariously positioned and, similar to Indigenous offenders, routinely subject to harsher punishments than their white counterparts. In so doing, he demonstrates how racial stereotypes and imagery became tools for defense lawyers and government officials to secure convictions and to selectively advocate against harsher sentences.10

In a number of death penalty cases in Ontario during the late nineteenth and the early twentieth centuries, notions of Black docility or unintelligence were used strategically by lawyers to support claims that defendants should be subject to more lenient punishments. Through Walker’s research, we see how debates about criminal sentencing were tied to Canadian nation building and the ways in which efforts to preserve a particular notion of Canadian identity are maintained through law. Rather than countering or displacing racism, discrimination, and white supremacy, rare instances of judicial leniency toward Black offenders reveal links between Canadian benevolence and the role of law in nation building. The significance of Walker’s work is that it highlights the paradoxical nature of racial justice and law in Canada and the colonial logics that come to reproduce moral ideas of benevolence in representational systems of law.

Sherene Razack’s groundbreaking essay Gendered Racial Violence and Spatialized Justice: The Murder of Pamela George provides a significant genealogical intervention that shows the entanglements between white supremacy, misogyny, and settler-colonial violence.11 In Razack’s sobering account of the murder of Pamela George, she traces the legal narratives that animate a story about George, a Saulteaux woman who participated in sex work in the economically depressed area of the Stroll in Regina, Saskatchewan. The legal narratives that shaped representations of her in the courtroom work to disavow histories of dislocation, settler violence, economic disadvantage, and spatial containment. Razack shows how legal narratives produced about George and the white men that murdered her are robust signposts of settler colonialism, both at the level of encounter and in subsequent legal representation. By “unmapping” the racial histories of the men and George, their victim, Razack foregrounds the historical and contemporary participation of white settlers in the dispossession of Indigenous lands and in physical and sexual violence toward Indigenous peoples and shows precisely how the law works to normalize, naturalize, and legitimate these conditions. Razack illustrates a continuity of colonial strategies of spatial containment. Noting how the Indigenous confinement on reserves facilitated the “near absolute geographical separation of the colonizer and the colonized” (Razack 2002, 131), she further shows how sexual violence toward Indigenous women, economic marginalization, and spatial containment were integral to strategies of colonial domination that prefigured the encounter between George and her murderers. The spatial containment of Indigenous people on reserves, such as the Sakimay reserve where George was born, and the geographical separation of reserves from economically vibrant urban centres created “in-migration” in which Indigenous people would travel from reserves into predominantly white cities for employment. These movements, as Razack shows, are often characterized by violent encounters and sexualized violence toward Indigenous women. This violence becomes a form of boundary-making that secures the status of the colonizer, confirms the status of the colonized, and marks marginal spaces such as the Stroll, in which violence is normalized and naturalized, from the respectable white spaces of the suburbs and university campuses. At trial, colonialism, racial/spatial violence, and gendered racial violence were disqualified as factors contributing to George’s death. Instead, George’s status as a sex worker, the Stroll’s existence as a space of perceived danger and degeneracy, and drunken male violence were believed to be the causes of the crime (Razack 2002).

Here we see how particular colonial histories materialize in contemporary sexualized violence toward George and other Indigenous women in spaces deemed degenerate, which naturalize such violence, and state indifference (via the exoneration of white male violence) to murdered Indigenous women. According to Razack, “uncovering” the ways in which “justice” was delivered to George’s murderers “helps us to see how race shapes the law by informing notions of what is just and who is entitled to justice. It enables us to see how whiteness is protected and reproduced through such ideas as a contact between autonomous individuals standing outside of history” (156). Razack’s methodological intervention is instructive for another reason: it helps us see what happens to racial and colonial violence at the levels of trial, national inquiry, and commission. She shows how racism and ongoing colonialism are “made to disappear” in legal proceedings or are reconfigured in order to exonerate those who maintain this work. Structural violence is recast as isolated incidents or the unfortunate outcome of a benevolent state with good intentions.

An analytic of continuity serves as an important corrective to frameworks that analyze colonial and racial processes as legacies of a distant past rather than as ongoing, permanent, and renewed relations. As the scholarship reviewed here demonstrates, identifying empirical studies that reveal the continuities of race and colonialism shows how racism is made durable in law; how law becomes a tool of violence, annihilation, and dispossession; and how racial governance is constitutive to the settler-colonial state.

Relationality and Race and Colonialism

Socio-legal scholars of race and colonialism have used the method of “relationality” to examine ongoing structures of colonialism. Relationality or what Walter Mignolo identifies as “relational ontology” is distinct from “comparativist” approaches to the study of orderings of race and racial difference. Explaining this idea further, Keith Feldman describes relationality as a methodological intervention that helps to “account descriptively and analytically for connections, linkages, and articulations across the institutionalization of difference in disciplines and the nation-state cartographies they reference” (2016, 110). Although differently positioned, scholars invested in this methodological orientation to the study of law reveal how colonial and racial relations are maintained in seemingly different sites of racial violence. For instance, an analytic of relationality provides a clearer sense for thinking through the ways that seemingly disparate sites of racial violence and abandonment—such as a suicide crisis in the Northern Ontario Indigenous community of Attawapiskat and Canadian discourse surrounding the arrival of Syrian refugees—are connected (Murdocca 2020).

Second, relationality signals to the ways that broader structures and logics of race and white supremacy travel within and across racial formations and colonial frontiers. In this way, a relational framework allows us to link these systems of control and domination in order to explain how the specificities of these formations are at times constitutively interactive and entangled. These passages of race often travel across colonial temporalities and spatialities in horizontal and multidirectional ways.

While this analytical approach might seem similar to a lens of comparative analysis, David Theo Goldberg has insisted that relationality widens our analysis in ways that a strictly comparativist account prohibits. As Goldberg notes, comparisons pivot from an outward reference that assumes and maintains a discrete separation from the object of analysis in question, including the idea of local and national boundaries (2009). Drawing on the work of Bernard Cohn (1996) and Ann Laura Stoler (2002, 2006), Goldberg (2009) invokes relationality to explain what he refers to as the globalization of the racial. For example, Goldberg explains that racial ideas and racial thinking were exercised through experimentation in the colonies as “laboratories for metropolitan class rule,” which later became “rehearsals in the intimacies and moral class life” (1275), and by extension and design, the ordering structures of race relations within the metropole. While racist institutional arrangements and control were “made local to apply to lived conditions of the everyday” in the colonies, Goldberg’s approach to relationality centres the heterogeneous ways that the project of race circulates between time and space. In so doing, he insists that an analytical framework of “relationality” offers a way of seeing how “state formations or histories, logics of oppression and exploitation are linked” and that these linkages “stress the (re-) production of relational ties and their mutually effecting and reinforcing impacts” (1275–76). Thus what we can borrow from Goldberg through his invocation of relationality is a method for seeing how race travels in multidirectional ways and finds resonance in locally specific but historically tied imperial projects.

Third, relationality opens up analytical possibilities to examine the contingency of racial formations and processes (i.e., how racial groups are, at different points in history, pitted against one another to maintain the work of settler-colonial governance) through various juridical orderings. Distinct from frameworks that centre a comparativist approach to the study of race, relationality allows us to think about how we are differently implicated and located in settler-formations like Canada and complicit—albeit in different ways—in maintaining white supremacy. Rather than studying racialization as a discrete or individualized sets of practices, this analytic opens up particular ways to read the relational structures that animate and renew projects of race and racism through law and in settler-colonial nation building.12 To further illustrate how this analytic has been adopted by scholars of race and colonialism in a Canadian legal context, we briefly canvass some key contributions to the field of socio-legal studies, including the work of Mona Oikawa (2010), Renisa Mawani and David Sealy (2011), and Carmela Murdocca (2020).

In “Cartographies of Violence: Women, Memory, and the Subject(s) of the ‘Internment,’” Mona Oikawa (2010) adopts a relational lens to examine the carceral policies and spatialities of internment used to incarcerate Japanese Canadians in the making of white settler-colonial nationhood. As Oikawa historicizes, the racial violence inflicted upon twenty-two thousand Japanese Canadians during the 1940s took place in a number of ways, such as imprisonment, dispossession, detention, low-waged labour, and displacement (73). Examining the long-term effects on Japanese Canadians subjected to the War Measures Act, internment camps, work camps, and prisoner of war camps in the British Columbia interior, the sugar beet farms, and more insidious sites of carceral violence such as “self-support” sites (73), Oikawa addresses what these forms of carceral violence enabled in the reproduction of racial social orders and the making of Canada as a white nation (74). Drawing from Japanese Canadian women’s testimonies—as sites of spatial analysis—across different generations (those that were expelled and their daughters), she uncovers the heterogeneous experiences of violence made possible through spatial arrangements of violence. Moreover, she demonstrates how these testimonial accounts of spatialized violence structure ongoing relationships to memory and subjectivity in Canada.

Oikawa’s analysis draws from a relational lens in several ways. First, she shows how these spatialities of incarceration and displacement were constructed across both material and discursive lines that worked to define national subjects as being against one another and anchored in a temporality of colonial modernity (Oikawa 2010, 82). The modernizing discourses imbued in the confinement of Japanese Canadians (i.e., that the separation of Japanese Canadians from their ties to community would accomplish the civilizing goal of assimilation) was secured through a racialized logic of primitiveness. It was not just that Japanese Canadians and, in particular, Japanese Canadian masculinity was racialized through orientalist and emasculating discourses but that these discourses also worked to form representations of white subjecthood: “Racializing, gendering and classing processes were spatialized through these carceral sites. Japanese-Canadian masculinities were produced in relation to white masculinities. Japanese-Canadian women were constructed in relation to white women. Japanese-Canadian men and women were constructed in relation to each other” (80).

This interlocking analysis points to the ways that systems of domination—“male domination, white supremacy, economic domination, heteronormativity, and ableism”—structured the very conditions upon which whiteness and Japanese Canadian bodies came to be relationally constituted and represented juridically (Oikawa 2010, 80). More importantly, this relational analysis insists that these shifting signifiers of domination were constituted across a dispersed and heterogeneous set of spatial arrangements. As Oikawa concludes, “The ability of these women to locate their losses spatially and relationally instructs us to think further about our implications in the enforced scattering of Japanese Canadians and in the ‘scattered hegemonies’ of nation-building and citizen constitution” (98). Another way we might think about an analytic of relationality and its contribution to the study of race and law is by attending to how it challenges causal understandings of race and criminality.

In Renisa Mawani and David Sealy’s critique of dominant criminological approaches to the race-crime link, they argue that such studies often reduce racial profiling and the administration of justice to racial bias, prejudice, and stereotyping that results in the “arrest, prosecution and incarceration of racial minorities” (2011, 162). The problem with the “race-crime” link is that it often assumes a deterministic relationship between race and crime; crimes related to issues such as “drugs” or “gang violence” are marked as racial (and are sometimes theorized in relation to racist nation-building policies), and because drug-related crimes are marked as racial (i.e., street level drugs), this inevitably leads to the criminalization of people of colour (e.g., racial profiling, stop and frisk policies, mass incarceration). At best, these criminological approaches make broader connections between, for instance, the overincarceration of Indigenous people, people of African ancestry, and South Asians in Canada (through a political economy of capitalism and slavery), thereby showing how the overincarceration of racialized peoples is a phenomenon rooted in more than simply racial prejudice. However, the problem with these approaches, as Mawani and Sealy point out, is that they assume that racial profiling can be resolved by “better criminological knowledges of discretionary processes” and “antiracist criminal justice policy initiatives,” thereby ignoring the underlying sensibilities around race and criminality as produced through colonial knowledge (162). Pointing to the ways that criminological approaches actually “ignore the ways in which black criminality is assumed from the start” (164), they argue that we need to be more attentive to the ways that racialized processes of criminal justice practice are already imbued in racialized knowledge formed through assumptions about Black criminality (ibid.).13

One of the reasons that might account for why the “race-crime link” ignores the salience of colonial (racial) knowledge is because it centres nineteenth century conceptions of race and racism (rooted in scientific racism and biopolitics). In so doing, this historical framing disavows the forms of racialization produced out of carceral institutions such as racialized slave labour. In an attempt to reinterpret and relocate the “race-crime link” in a broader historical context of carcerality in socio-legal studies, we might turn to imaginings and practices of race and racialization that emerged through colonial governance in the fifteenth century onward and the rise of necropolitical experimentation institutionalized through plantation slavery (Mbembe 2003, 21). By examining the ways that ideas about Black criminality emerge through historical processes that license social and material death under colonial modernity, we are challenged to think about how the “race-crime link” emerges in relation to ideas about race and incarceration prior to the emergence of the penal system, therefore inviting a differently positioned epistemic reading of the relationship between race and crime.

In Carmela Murdocca’s article “‘Let’s Help Our Own’: Humanitarian Compassion as Racial Governance in Settler Colonialism” (2020), she invokes a method of relationality to account for two seemingly unrelated discourses of racial violence: the arrival of recently settled Syrian refugees into Canada and the suicide crisis in the Indigenous community of Attawapiskat, Ontario. In bringing these two crises into a common analytic framework that centres humanitarianism under white settler colonialism, Murdocca’s work shows how public and media discourse surrounding these two events signals the racial intricacies within “legal obligations that work to define human and racial difference” (20).

Examining Canadian media representations of the arrival of Syrian refugees and the ongoing conditions of violence within the Attawapiskat community, Murdocca’s work asks, “What forms of racial violence evoke compassion and the language of humanitarianism?” and equally important, “Who gets to live and die in settler colonialism?” This sample of media accounts attending to Syrian refugees and the Attawapiskat community reveals the disparate reactions present in Canadian news media. Pivoting between antirefugee rhetoric and humanitarian pleas to support Indigenous struggles within Canada, we see a common but complex racial grammar that reveals a telling national story. While editorials and letters to the editor of one of Canada’s leading newspapers raised the question of what it means for the Canadian state to give generously to Syrian refugees while ignoring the suicide crisis in the Attawapiskat community, this narrative circulates within a discourse of both antirefugee rhetoric and depoliticized humanitarian logic. A closer examination of this entanglement compels us to ask, as Murdocca does, “How is the racial project of the modern liberal state in Canada made possible by positioning different racial groups dialectically against one another in the formation of new regimes of racial governance” (2020, 1279)? Explaining further, she contends that “to track the conceptual mobility of compassionate humanitarianism in Canada is to address how liberal humanitarianism is made possible through ongoing racial and structural violence. Attending to how, and in what particular ways, histories and ongoing experiences of racial violence emerge coterminous with invocations of compassionate humanitarianism reveals how appeals to liberal conceptions of justice necessitate and require racial violence” (1283).

In helping us see the globalization of the racial (Goldberg 2009), Murdocca’s work signals one of the ways that race circulates in a moral economy of human rights discourse. Rather than comparing the treatment of Indigenous communities in Canada to newly arrived Syrian refugees, her analysis instead asks us to think about the ontological parameters of difference that bring the “over there” and “over here” into relation.

Through canvassing some of the literature that has contributed to socio-legal scholarship emerging from Canada, we have attempted to illustrate how such literature has enriched our understanding of the mobilization of race and law under histories and ongoing structures of settler-colonial nation building. This body of scholarship and its methodological orientations are indebted to post-colonial, feminist, and post-structural scholarship that have inspired an epistemic landscape for tracing “histories of the present.” In making us curious about the symbolic and material ways that racial subjects are formed, reconstituted, and contested, and the ongoing legal structures that maintain structures of white supremacy, we are challenged to recalibrate understandings of law that often emerge from liberal and neoliberal logics and sensibilities.

Conclusion

As researchers and educators, we are in a position to advance, support, and be the gatekeepers of particular kinds of knowledge production in socio-legal studies. Our role occasions and invites consideration of the historical and structural dimensions of race and colonialism in order to address and reflect on life, death, and possibilities for justice for Black, Indigenous, and other racialized people. This task also requires that we attend to the legal structures and systems of white supremacy that organize race relations and simultaneously challenge forms of accountability and reparative justice.

We are writing in a time when white supremacy and racial terror are alive—in both the spectacular and the quotidian senses. In fact, we continue to witness how incidents and expressions of racial violence—as sanctioned by legal governance—work to obscure the very boundaries between the spectacular and what takes place in the ordinary. Whether we turn to white nationalist torch-lit rallies in Canada or the United States or the ongoing everyday police harassment and violence against Black, Indigenous, and other racialized people in Canada, these expressions of racial violence are sanctioned and made possible through law. The contributions canvassed reveal how the genealogies of race and colonialism structure the epistemological and ontological foundations of law. These contributions permit and compel an analysis of the complex genealogies of race and colonialism and the ways in which differently positioned racial groups are subject to projects of racial governance under settler colonialism. We propose that a focus on both the continuity and relationality of race and colonialism reveal that race and colonialism should not be treated as a subfield of socio-legal studies; rather, attending to processes of race and colonialism indicates complex and intersecting relations between colonial racial violence, dispossession, sovereignty, criminality, migration, and subjectivity that illuminates the colonial and racial “force of law” (Derrida 1992).

Through exploring the continuity of race and colonialism, we maintain that socio-legal research on race and colonialism must be attentive to the continuities of racial legal governance—the continuous foundational logics, legitimating discourses, forms of regulation, techniques of control, criminalization, dispossession, containment, securitization, relocation, murder, violence, destruction, and theft. Key to attending to the continuities of race and colonialism is also examining how seemingly progressive reform may reproduce the very logics of colonial racial rule.14 Through identifying the relationality of race and colonialism, we have explained how such an approach may be used to address how racial ideas and practices travel across time and through space in order to reveal how disparate sites of racial violence and control are linked and interconnected. Further, through viewing the legacies of race and colonialism as relational, we are able to address the constitutive ways that racialization circulates to bind subjects and practices together across different temporalities and spatialities.

Notes

References