Law’s Colonies, or First as Tragedy, Twice as Farce
Simon Archer

Law's Colonies

It is trite that law has been an arm of colonialism, and perhaps just less so to suggest that it has also formed a discourse of reform and resistance. These are two truisms that bear further interrogation in any discussion of law and the current status of postcolonial discourse. The practice of law, legal theory, and legal education has imported or exported tools of analysis and critical method, some subject areas that are important or emerging in importance for a contemporary understanding of legal discourse. I have chosen four ways in which law has formed, or been influenced by, postcolonial discourse, that mirror the purposes of this conference.

1. Law as an interdisciplinary discourse

Law is really interdisciplinary by nature. There is no “inner nature” to law, no such thing as “legal reasoning” that is any different from those methods employed in other subjects. At most, it can perhaps claim a special subject area of knowledge and some highly stylized methods for presenting argument. These conclusions, although debated in theoretical literature, are recognized in some degree in most theorists of law, mainly in the post-war period in North America.

2. Critical methods of that interdisciplinary discourse

The boundaries of law as a discipline have traditionally been defended from within as a special form of knowledge and methods that have some autonomy, some inner nature that marks the discourse apart from others. Legal theory has of course been influenced by social and political thought of the day (legal positivism, legal realism, natural law, etc.), yet many within the discipline maintain its special status as the expression of a normative ethical expression.

3. Globalization

Differing accounts of globalizations (or what we will call narratives, of the origins, main features, and direction of globalizations), that include at least two types of narrative: “naive” narratives that are unambiguously pro- or anti-globalization, such as those often found on editorial pages, and “complex” narratives, that attempt to untangle the phenomena of globalizations in multi-layered analyses (Langille). The distinction between complex and naive narratives is a central form of critiques of globalization as it applies to specific contexts. It immediately raises questions (and problems) of analytical method (cross-disciplinary issues of legitimate form and method, terms of debate, validity of kinds of evidence and proof, etc.).

4. Aboriginal Jurisprudence

A special case of law’s colonies is that of jurisprudence over large minorities in Canada: aboriginal peoples and Quebecois. Perhaps this is a representative case of Law’s Empire, and its current tensions as a justificatory discourse. In Canada, recent decisions of the Supreme Court have attempted to cope with claims and issues of some aboriginal peoples. These decisions, and the implications for aboriginal peoples, are interesting specific examples of the predicament of postcolonial law, and the law’s ability in Canada to cope with the practical challenge of postcolonial relations.