Hey! Snark!
Jan. 16th, 2007 01:50 pm![[personal profile]](https://www.dreamwidth.org/img/silk/identity/user.png){kind=small}
ciroccojHere's a snippet from one of my readings for today, that talks a bit about what we were commenting on re. the whole "why keep constantly being reminded of blood guilt", and what about moving forward:
... contemporary jurisprudence not only borrows from colonial justifications developed and maintained during Canada's overtly colonial period, but actually sanctions, affirms and strengthens this colonial conceptual framework. Given this result, one cannot say that the colonial narrative survives as a matter of jurisprudential inertia, as if, for example, the Court were struggling to deal with limits imposed by such common law notions as stare decisis. In employing -- and strengthening -- the same justificatory framework developed in Canada's dark colonial history, the Court has to consciously decide to speak from a colonial perspective as it goes about writing new chapters in what is essentially an ongoing -- and deepening -- colonial narrative. The Court has had to think about the principles that served to justify the takings and injustices of the past, and they have to consciously accept that these principles will continue to drive the law in a certain direction today. The Court has to consciously act as a modern day agent of colonization.
- A Colonial Reading Of Recent Jurisprudence: R. v. Sparrow (1990), Delgamuukw v. British Columbia (1997) and Haida Nation v. British Columbia (Minister of Forests) (2004), by Gordon Christie.
...mind you, I've got load of much better quotes and sources than this, but this one was in e-format already; much easier to cut & post ;)
... contemporary jurisprudence not only borrows from colonial justifications developed and maintained during Canada's overtly colonial period, but actually sanctions, affirms and strengthens this colonial conceptual framework. Given this result, one cannot say that the colonial narrative survives as a matter of jurisprudential inertia, as if, for example, the Court were struggling to deal with limits imposed by such common law notions as stare decisis. In employing -- and strengthening -- the same justificatory framework developed in Canada's dark colonial history, the Court has to consciously decide to speak from a colonial perspective as it goes about writing new chapters in what is essentially an ongoing -- and deepening -- colonial narrative. The Court has had to think about the principles that served to justify the takings and injustices of the past, and they have to consciously accept that these principles will continue to drive the law in a certain direction today. The Court has to consciously act as a modern day agent of colonization.
- A Colonial Reading Of Recent Jurisprudence: R. v. Sparrow (1990), Delgamuukw v. British Columbia (1997) and Haida Nation v. British Columbia (Minister of Forests) (2004), by Gordon Christie.
...mind you, I've got load of much better quotes and sources than this, but this one was in e-format already; much easier to cut & post ;)
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Date: 2007-01-16 07:35 pm (UTC)We talk about this a lot in post-colonial academic arenas, too, but seeing in from a legal perspective is much more realistic and easy to understand.
The Court has had to think about the principles that served to justify the takings and injustices of the past, and they have to consciously accept that these principles will continue to drive the law in a certain direction today. The Court has to consciously act as a modern day agent of colonization.
I don't know what to say about this, except to say that I really do get it. It raises a big question, though. Where do we go from that? And how?
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Date: 2007-01-16 10:25 pm (UTC)Hmm... I started to answer this and it kinda...
grewexploded on me. Possibly I am trying to escape reading The Pedagogy of the Oppressed, which I loathe with the fire of ten thousand Sun Dances, even though as a good little granola leftie I know I should love to pieces.Will probably post what I started to answer to you as a post, as lj is gagging on its length for a comment.
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Date: 2007-01-16 10:26 pm (UTC)no subject
Date: 2007-01-16 08:40 pm (UTC)no subject
Date: 2007-01-16 09:16 pm (UTC)Well, the provincial Supremes sort of can't, in that they're (mostly) bound to follow whatever reasoning the Supreme Court of Canada last expounded on the issue. The SCC can change direction - mostly by saying "Oops, our bad, here's what you should do instead" and completely reversing the common law, or even by completely rendering inoperative actual statutes that they find unfair.
The Supremes are not terribly hesitant about reversing common law, since that's just made by judges and they're the Top Dudes when it comes to judging. But they're generally a lot more hesitant about reversing statutes.
Sometimes what they'll do is rule the way that accords with statute, and make a comment like, "Here's what we had to decide, based on the existing laws. Isn't that stupid? Say, why don't you guys in Parliament change this?" Sometimes they'll make a change that goes against statute law and basically say, "OK, here's what makes sense and this is how it should be, but if y'all are bound and determined to keep the old stupid rule, you'll have to explicitly overrule us."
Or, if it can, how does it do so? Is it dependent upon legislative change to rewrite the injustices of the past and to set a new course?
Generally, yeah - at least, it's supposed to be. The SCC does have its moments of law-making, but overall it's supposed to concern itself mostly with law-intepreting.