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Chapter 8 | Michael Dorland (continued) In a profound sense, the encounter of the Europeans with the First Peoples of this continent was an exercise in legal translation. It was assumed by the Europeans that their ideas about law were 1) extensible and, therefore, 2) translatable through symbolic acts, gestures and words into the languages of First Peoples. Both assumptions were problematic, to put it mildly, and loaded in turn with all kinds of additional cosmological and cultural baggage, notably about the validity and universality of European, largely Christian, conceptions of law — especially the question of who constitutes a lawful speaker. For instance, it is of the utmost significance that for the early seventeenth century Jesuits, the highly rhetorical performances of Amerindian speakers made of them reincarnations of the ideal-typical “Ciceronian orator.” This was a connection to a presumption of a shared rhetorical past that only further fed the missionary belief that these were souls worth saving, however recalcitrant the recipients of such benevolence might be. In this sense, law and rhetoric — and the irony resulting from the two — form a communicative triangle in which would be replayed over and over, in Canadian history, the question of how to incorporate the Other within legally authorized discourse. This would be, and continues to be, the basis of land claim disputes (and related practices from narration to modes of usage associated with conflicting conceptions of what is meant by “land”). This would be, and continues to be, the basis of disputes over cultural distinctiveness and the jurisdictions and rules of the governance of communication that might follow from such differing views. The incorporation of Others thus becomes the condition of entry into the expansion of the public sphere. Now each of these encounters would be legally stabilized for a while in a constitutional arrangement, or by one of the parties’ subscription to a particular constitutional perspective. We thus get a sedimentation of constitutional orderings, from the capitulation of 1760 and the royal proclamation of 1763 in the wake of the cession through to the Constitution Act 1982 (and Québec’s still not being a signatory to the latter) — roughly, five orderings in all — that established the rules of the games of lawful speech and legal subjectivity. The problem is that the various parties — First Peoples, the government of Québec, and the federal government, to mention just these — tend to play the game according to whichever ordering, in an ongoing process, seems to best serve their (changing) interests. Needless to say, then, things get complicated, because there is no agreement as to what constitutes the fundamental (Canadian) legal order, in the sense of a Grundgesetz as it is nicely phrased in German. Is that legal order 1) the British common law, 2) the French civil law, 3) a self-conscious synthesis of both, or 4) an unconscious cobbling together of some aspects of each? Ideally, it should have been 3) a synthesis of both, except for the enormous problem of the reconstitution and translation of comparative legal systems and concepts from one context to another (from France to New France, New France to Britain, Britain to Canada, within Canada, and so on). What could have been, as McGill law professor Louis Baudoin (1963) argued a number of years ago, a fascinating instance of legal comparativity (and of the reception of civil law into the North American context) would become instead the following paradox stated by Québec legal scholar de la Durantaye in the 1930s: “Avec des mots anglais, on fait des lois françaises.” What develops, then, is enormous contentiousness over what constitutes the public sphere, its linguistic articulations, and the ever-constant difficulty of making policies; in short, who speaks for whom? And in turn the resulting cacophony or, more accurately, banalization of speech through ritualistic evocation of a set of clichés (about distinctiveness and differences, about quality, about Americanization and its cognates, about the distinction between public and private, etc.). It becomes difficult to say anything of much significance except within the vases clos of non-communicants or of self-referential monologues at best. Collective cultural practices accordingly become, on the one hand, ghettoized, localized, and regionalized or, on the other hand, as John Ralston Saul in his very uneven Reflections of a Siamese Twin (1997), but also others such as Gilles Paquet (1999) have argued, form instead complex networks of translation; fleeting, shifting games of differential appartenances, loyalties and identities. And these give themselves away qua game by being based ultimately upon a clin d’oeil of mutual complicity. In other words, they give away their basis in a shared but unacknowledged philia that makes the situation, in the end, more ironic than despairing. |
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