Introduction: The "Legitimacy Gap" between Law and Culture

Abstract

Introduction:The "Legitimacy Gap" between Law and Culture Cheryl Suzack and Neil ten Kortenaar The typical reparations claim involves powerless victims in no way capable of contributing to the illegal acts. (Matsuda 383) The overwhelming reality of the Indian residential school system confronts Canadians with a sobering task: how to engage in social acts of public mourning that acknowledge the widespread human rights abuses practiced against Aboriginal children while also enacting forms of reparation that allow us to rebuild our broken social relationships. The grim realities of the schools are conveyed in stark terms in the Commission's summary report. Authorized to enact "hostility to Aboriginal culture and spiritual practice" (5) expressed through "institutionalized child neglect" (43), the schools' agents participated in rampant physical and sexual abuse of children under the masquerade of providing culture and learning. More than 150,000 residents passed through the schools' doors during the one-hundred-year period when they were in operation, with living victim-survivors numbering more than 86,000. Initially condemned as enacting "genocide" against Aboriginal communities (Miller 235), the schools were subsequently redescribed as sites of "cultural genocide" in carrying out the government's policy to achieve the "colonization and conversion of Aboriginal people" (43). This shift in terminology that J.R. Miller notes in Residential Schools and Reconciliation: Canada Confronts Its History brought the Commission's [End Page 545] findings into alignment with the position of the former Chief Justice of the Supreme Court of Canada, who described Canada's policy as "a record of attempted 'cultural genocide'" (Miller 236). The modification of terms changes the victim from children to nations and forgets the bodies and their pain. "Genocide," as defined by the United Nations Office on Genocide Prevention and the Responsibility to Protect, involves acts of "killing," "causing serious bodily or mental harm," "deliberately inflicting on the group conditions of life calculated to bring about its physical destruction, in whole or in part," and "forcibly transferring children of the group to another group." In narrower terms, "cultural genocide," according to the summary report, represents "the destruction of those structures and practices that allow the group to continue as a group" (1). If we accept that the harms directed against Aboriginal children were structural behaviours resulting in "cultural genocide," as conditions and experiences in an organized system that targeted Aboriginal culture, instead of practices designed to maim or kill people, we lose sight of the bodies that were the targets of the abuse, bodies of children who suffered helplessly at the hands of the church and state. Language becomes the means by which the human child's body fades from view while culture, as a substitute, stands in its stead. As the direct objects harmed through a form of "genocide," children's bodies represent an "incontestable reality" in the form of "bodies in pain, […] bodies maimed, […] bodies dead and hard to dispose of" (Scarry 62). The Aboriginal child's body is the object that we step across on our way to giving meaning to genocide as an act directed against culture, as the reality of genocide's violence is "[s]eparated from its source" in the body and meaning is "conferred [elsewhere]" (62). Because children's bodies were the sites upon which Canada enacted injustice towards Aboriginal communities in gross violation of their human rights,1 keeping these bodies from fading from view represents the crucial task of preventing reenactments of violence and historical erasure that perpetuate the state's injustice by obscuring the victims that are its objects of harm.2 The interplay between language, law, culture, and injustice that permits children's bodies to fade from view through a political struggle over the meaning of genocide makes apparent the "legitimacy gap"' that exists between law and culture. This gap occurs in countries, such as Canada, that have not undergone regime change or political reconstruction to alter the governing structures that put in place genocidal practices against Aboriginal peoples and used law to achieve violent and illegitimate ends. Other countries, such as South Africa after apartheid, have invoked transitional justice as part of a move from an old regime to a new one that needs to declare the former...