(2000) JLP 45: 115-135
DISCOURSE AND DEFIANCE: LAW, HEALING, AND THE IMPLICATIONS OF COMMUNITIES IN RESISTANCE
Jo-Anne Fiske and Patty J. Ginn
The study of legal pluralism has hitherto focused on issues of jurisdiction, contestations and contradictions in legal doctrines and practices. In this paper we turn our attention to pluralism embedded in a single legal order, Canadian criminal law. Grounding our work in a notion of the discursive formation of identity we explore the manner in which two Canadian men, one a bishop of the Roman Catholic Church, the other a convicted abuser, select spiritual and psychological socio-legal discourses of transgression and transcendence as they defend themselves from charges couched in conventional legal categories; the bishop denying rape and indecent assault, the other attempting to avoid accepting responsibility for his violence. By contrasting their discursive manoeuvres with those of the women they have harmed - who embrace discourses of colonialism and feminism - we explore the consequences of the legal system's attempt to accommodate alternative notions of social justice that are grounded in concepts of healing.
We argue that the manner in which we have conventionally conceptualised legal pluralism is now in question. It is time to turn our gaze to the construction of plural legalisms and to ask how, and with what implications, some citizens are enabled to re-construct their identity and subject positions (embedded in strong and persuasive cultural narratives) before the law while others are not.