Abstract
In 2014, the provincial government unveiled a new courthouse in Thunder Bay, Ontario, featuring a conference area designed to emulate an Anishinaabe roundhouse. The “Aboriginal Conference Settlement Suite” epitomizes efforts to support Indigenous justice within the criminal justice system. However, despite similar efforts in the past, the circumstances of Indigenous peoples in Canada have not improved. This ongoing commitment to legal solutions is emblematic of mainstream views of law as a problem-solving instrument. Notwithstanding awareness of its failings, law reformers remain dedicated to using law as a tool for social change. Employing a case study method focusing on the new courthouse, I challenge a prevailing wisdom that law reform outputs are manageable and in our control. I argue that similar to a courthouse, which is a concrete, physical structure as well as a symbol of justice, so too is the legal instrument both material and metaphorical, with concrete outcomes and symbolic forms. While treating law as a literal tool may give law reformers a longed-for sense of mastery, this approach belies law’s diffuse constitutive power and the various paradoxes in reformers’ actions. Accepting law’s dual nature is essential for candid and accurate assessments about the possibilities and limits of change through law.
Highlights
In Thunder Bay, off the northern shores of Lake Superior, the Ontario government recently built a new consolidated courthouse, with a wing of the building designed to accommodate Indigenous justice methods and procedures
I learned that the judge had been flying to conduct court in remote northern communities well before Canada’s period of introspection into its colonial legacy, which resulted in part in reforms to sentencing legislation and “the development of Aboriginal justice alternatives” (Rudin 2005, 23)
Law was a means to the goals and results we wish to achieve in society, “the social ideals by which the law is to be judged” (Cohen 1935, 812)
Summary
In Thunder Bay, off the northern shores of Lake Superior, the Ontario government recently built a new consolidated courthouse, with a wing of the building designed to accommodate Indigenous justice methods and procedures. Second, in forgetting or obscuring the “as if” part of law’s tool-like nature, law reformers (of the rational legal instrumentalist variety) have pushed to the sidelines the symbolic, referential, or expressive form of law (Riles 2004) in favor of the controllable, quantifiable, and measurable instrument (see, e.g., Davis, Kingsbury and Merry 2015; Sarfaty 2015). This gives legal actors a sense of control over the tool, belying the much more complicated nature of legal reform and social change through law. The final sections explore what this courthouse project—as a representational structure—can teach us about how legal actors engage with law as a tool
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