Interrupting the Legal Person: Volume 87A

This chapter studies a political rationale by which colonial law forged socially assigned individuals as criminally accused persons. Focussing on archived documents of a preliminary examination that took place in 1883 in the North West Territories (now Alberta), it highlights how an accused person was moulded as a culpable individual. Arranged by a justice of the peace, and member of the North West Mounted Police, the investigation in this case reveals how colonial law unleashed an individualising force that obscured power relations behind the settlement it aimed to further. The unequal ways in which certain distinctions of person were legally recognised and individualised may be traced to long-standing western uses of social hierarchies as ‘masks’ from which law unequally recognised persons. Challenging such approaches to personhood, the analysis works off Naffine’s ‘legalistic’ ideas of persons as fictions, calling for a retelling of the fictions around accused persons. By pointing out the possibility of accusing relational rather than individual constructions, it concludes with a brief insinuation of legal forms directed at ‘collective persons’, interrupting a key political logic of colonial criminal law with allied promises of social justice beyond colonisation.

In this chapter, the author explores the conditions of sexualised, gendered violence against Indigenous women and girls. The author asks how various responses to this violence have shaped the present-day legal personhood of Indigenous women and girls from two perspectives: an Indigenous legal perspective and a Canadian legal perspective. To avoid the troublesome pan-Indigenous generalisations of legal personhood, the author focusses on one Indigenous society, the Gitxsan people from northwest British Columbia and their legal order and laws.² The author examines several specific questions about how the Gitxsan legal tradition historically defined the legal personhood of Gitxsan women and girls, and how this has changed with colonisation. The author takes up specific aspects of the operation and structure of Gitxsan law and legal institutions and analyse the ways that they are gendered.

In his work Homo Juridicus, Alain Supiot considers the construction of legal personality by force and virtue of law as a precondition for human liberty. Michel Foucault views this same construction of legal personality – the construction of the subject through strategies of power, he calls it – as a ‘construction’ of liberty that is considerably less free than it is made out to be by the Enlightenment law reform projects proposed by Cesare Beccaria and other prominent eighteenth century law reformers. Foucault’s scepticism vis-á-vis Beccaria and others evidently also implies a critical stance vis-á-vis contemporary humanist understandings of law such as Supiot’s. This chapter will endeavour to explain what is at stake in the difference between these very different conceptions of legal personality by relating it to the problematics of subjectivity that came to the fore in the thinking of Hegel and the German Idealists.

In this chapter, Arendt’s reflections on the question of personal responsibility are taken as a discussion of ‘interrupting the legal person’. Examining trials that took place after World War II, Arendt observes in ‘Some Questions of Moral Philosophy’, ‘What the courts demand … is that the defendants should not have participated’ (pp. 33–34). Following Arendt, the author argues that thinking could have enabled possible perpetrators of great evil to meet this demand, for when a person stops to think, whatever they are doing is interrupted. What is more, the person who stops to think is themselves interrupted by thinking. In brief, becoming aware of the possibility that they exist as a person in a mode other than what Ngaire Naffine calls ‘the responsible subject’, thinking disrupts the legal person. A discussion of thinking as interrupting the legal person thus illuminates not only what may turn a person away from participation in the life of a criminal state, but also what that turn means for responsibility.

This chapter examines the role of the person in modern constitutional law. Through a reading of two Canadian Supreme Court decisions – RWDSU v. Dolphin Delivery and R. v. Malmo-Levine – it suggests that while the person is the subject of modern constitutional law’s protective gaze, it can also sometimes function as a scapegoat, taking the fall for harms engineered in part by the state (harms, in other words, that really ought to attract constitutional scrutiny given constitutional law’s orienting preoccupation with ‘state action’). Rather than dismissing these gestures as a result of defective legal reasoning in the cases examined, the chapter suggests that the selective erasure or forgetting of state action is in fact essential to the production of the suffering subject – the constitutional person – that modern constitutional law is supposed to protect, precisely, from the state. In effect, then, the chapter claims that modern constitutional law produces the person by ignoring or at least downplaying the role of the state in certain contexts and, hence, by reneging intermittently on its primary task: the application of legal scrutiny to coercive state action.

This chapter looks at how the concept of biopolitics can be used to understand the settler colonial legal orders. The focus is on the evolution of the definition of ‘Indian status’ in the Indian Act, which is the central piece of legislation in Canada’s Indian administration regime. Historically, the legal concept of Indian status was used as a way to constitute a population in relation to colonial sovereignty, and later was adapted as a mechanism to internally dividing the population through complex forms of legal domination. Scholars have turned to Michel Foucault’s studies of biopolitics and racism to understand how settler colonial sovereignty relates to a population on a territory. This chapter argues that Foucault’s analysis was radically historically embedded in a way that shapes its relevance to understanding settler colonialism. In Foucault’s original analysis, racism emerges as tool of the state in the relation between territory and sovereignty, which was characteristic in feudal Europe. In settler colonial legal orders such as Canada, however, sovereignty’s relation to the population is constituted in the absence of a prior connection to the land.

In In Re Widening of Beekman Street, a nineteenth century legal case in New York State which involved questions of who owned the bodies of the dead – whether it was the state, the church who owned the land where they were buried or the relatives of the deceased – we see an interesting legal aporia. Claims of ownership were complicated by the idea that the dead perhaps owned themselves, having once been full legal subjects. In this and other legal cases in US law (with similar results in the UK as well) a kind of compromise is reached where, as the body decays, the question of its self-ownership becomes increasingly settled in favour of other parties. Yet, even in such cases, the body and its sense of personhood lingers to haunt, as it were, the certainties of law about who precisely owns whom The uncertainties that are made manifest among the dead have their equivalents among the living as well; the presence of slavery at the time meant that in some cases even living persons did not own themselves. In this mix of overlapping forms of self and other ownership then, we see an anxiety in the law, one that it must settle definitively even as the very terms of legal personhood resist the very closure that the law seeks.