Marie-Sophie Banville ― Restoring the Shoreline: The Marine Ethics of Legal Difference

Colonialism amounts to a flood, an ever-rising tide that never recedes. The colonial project is enmeshed in a “monosubjective culture” (Irigaray, Sharing the World, p. 2) that casts a shadow of sameness on the entire horizon. Through colonial means, liberal legal traditions fashion worlds where they look for themselves and only see their own reflection – they are water and submerged lands as far as the eyes can look. In a Canadian context, colonialism is expressed in an architecture where one legal world ― Canadian law ― refuses to provide itself with limits and engulfs another world ― Indigenous law. The colonial project is short of shoreline: only water and submerged lands as far as the eye can see.

The genesis of what came to be known as Canada shows a disturbing feat of blindness and a remarkable imaginative effort: lands that have been storied, possessed and governed by more than 634 Indigenous nations since time immemorial were declared and experienced, at least by some, as empty – yours to discover. This colonial reframing of Turtle Island and its abundance of legal traditions as terra nullius was partly made possible by the intense intellectual labour of European social contract theorists. Through their presumed failure to develop in excess of nature, Indigenous legal orders were thus assimilated to an uncivilized state of nature, a world of non-law. In other words, Indigenous law was both preempted and voided to become the non-law of liberal law. 

Acting as what philosopher Luce Irigaray might call an enveloping gesture, liberal law has not acknowledged the existence of an other and, then, separated itself from this other in order to constitute itself. Instead, it has captured, neutralized and assimilated the difference of the other. It has projected itself as a totality in which the other was enveloped in a unitary world and so rendered available for all sorts of solitary projections (cf. Irigaray, Sharing the World, p.x). The framing of Aboriginal title as a burden on the Crown’s underlying title corresponds to one of these solitary projections. There is no other and no difference when the overarching underlying title of the Crown dreams of itself as a “gapless map,” an “undifferentiated, absolute, bounded space” (Pasternak, p.154). Within the Crown’s dream, there are no shorelines. 

It could be argued that this colonial refusal of difference and negation of the shoreline still lingers today in many discourses about the issue of reconciliation between the Crown and Indigenous nations, especially in legal debates. Decades of rigorous scholarships and strategic litigations spearheaded by Indigenous leaders and jurists have contributed to establishing a deceptively simple fact: Indigenous law existed at the time of the assertion of the Crown’s sovereignty and, most importantly, still exists today and constitutes a source of law in Canada. 

Legal discussions in Canada are now cautiously addressing the issues raised by the increased recognition and resurgence of Indigenous law. How should Indigenous legal orders coexist with liberal legal traditions ― common law and civil law ― in Canada? How to reconcile these widely different legal worlds? How could Indigenous legal orders be integrated into the Canadian legal apparatus? How can we transcend and harmonize respective legal differences to elaborate a truly multi-jural Canada? These questions often point toward a “horizon defined by sameness” (Irigaray, To Be Born, p.vii) that discloses an underlying ideal of equality between legal traditions lying at the centre of many legal pluralism debates. However, as Irigaray observes, this aspiration to equality is consistent with “an ideal aiming at universality, totality, the absolute, and essence(s) by reducing distinctions and dissimilarities” (Irigaray, I Love to You, p. 99). 

While being undoubtedly pragmatic with the prospect of a short-time horizon of reconciliation, are many current approaches to legal pluralism in reality not contributing to a renewal ― albeit in a different way ― of the earlier colonial unitary world? In the end, are we genuinely departing from an enclosure within a logic of sameness? Are we building a shared horizon exempt from enveloping and appropriating gestures, or are we merely neutralizing the alleged unbearable drama of legal difference? Faced with mounting questions, Luce Irigaray’s thought might help us pierce the envelop of sameness within which many debates about legal pluralism appear to be gestating. It might suggest that legal difference is not a problem to be overcome but is, in fact, the real basis on which non-appropriating legal relationships can and must be elaborated. In reality, difference is the precondition for a true relationality to exist.

Luce Irigaray’s thought recommends relinquishing the ideal of equality in favour of a “horizontal co-existence” (Irigaray, Democracy Begins Between Two, p. 55)  respectful of each legal world’s capacity and willingness to undergo  limitation(s). Irigaray thus invites us to replace a quest for sameness by a relentless cultivation of difference, which asks us to embark on a negative path: the experience of finiteness, of limits. When we “take upon ourselves the negative” she writes, we “provide ourselves with limits in order to let the other be as other” (Irigaray, Sharing the World, p.133). When each legal world marks itself with limits and incompleteness, with the negative (Irigaray, I Love to You, p.105), a mediating place exists where differences can meet together. In a Canadian context, the emergence of this mediating place ― expressed as the interval, the threshold, the negative or the third world in Irigaray’s philosophy ― requires the flooding waters of Canadian colonial law to recede and find their way back to the sea. This will correspond to restoring the shoreline. 

This, perhaps, appears to be a threatening proposition for Canadian liberal law and its flooding habits. Indeed, what is left of liberal law when it broaches its own constitutional limits and when it perceives the inherent ecological limits of the Earth? What is at stake here is liberal legal orders’ capacity to envision themselves as “half and only half of the world” (Irigaray, I Love to You, p.64), and to acknowledge their inherent partiality and possibility to be unfair to the other part of the world. From this basic finiteness, the shoreline no longer appears as a mere metaphor, but it might reveal itself as being the material, natural and real place where we can meet. Cultivating the shoreline of legal difference thus requires liberal legal orders to re-consider and re-constitute their relation to the natural world not as an abstraction or a simple metaphor to be overcome, but as the possibility of a shared milieu to exist and be cultivated. From this vantage point, the decolonizing work of reconciliation needs a cultivation of difference which opens up a shoreline ― a place where we can meet and which belongs to the earth.