Reflections on Law in Light of Everyday Life at L’Arche

Thomas McMorrow

Abstract

Even though the notion of “disability” has received ongoing critical scrutiny and re-imagination within the field of disability studies, the concept of law has often been taken for granted. Although people with intellectual disabilities figure as subjects of legal discourse, seldom are they presented as participants in it. I argue that this owes to assumptions about law that fail to recognize the diversity of ways human beings exercise agency and experience normativity. I believe that research on the relationship between “law, religion, and disability” stands to benefit from imagining law as an interactional, symbolically plural human endeavour. I build on the theoretical framework of critical legal pluralism to highlight how law arises through interaction – informally and implicitly, as well as officially and explicitly. Drawing on fieldwork I carried out in L’Arche Montréal – a faith-based community serving people with intellectual disabilities – I illustrate the creative role that people with intellectual disabilities play in the construction of legal normativity. As important as it is to ask how law affects people with intellectual disabilities, is to ask about how their actions also shape law. When it comes to asking what law means for some of the most vulnerable members of society, it is not just a question of seeing how it may function either to prevent or to remedy harm. It is also a matter of seeing the ways in which law may facilitate (while being forged by) the cultivation of relationships and the liberation of human potential.

Keywords

Reflections on Law in Light of Everyday Life at L’Arche1

Thomas McMorrow

Introduction

In this article I seek to demonstrate the importance of thinking critically and creatively about law, when researching the relationship between “law, religion, and disability”. How one conceives law helps to frame the research questions one asks, as well as how one goes about pursuing answers to them. The field of critical disability studies generally takes law’s meaning for granted, and treats it as fixed (Rioux 2003; Pothier & Devlin 2006).2 Law may be criticized as unjust or immoral, discriminatory or exclusionary, but ultimately, the law is the law (Law Commission of Ontario 2012). It can be changed by legislatures to serve more socially just objectives, interpreted by judges to better accord with values such as equality, or administered more equitably and accessibly by administrative officials, but, at the end of the day, what is passed by parliament, interpreted by courts, and enforced by agents of the state alone constitutes law.

From this point of view, people with intellectual disabilities figure as subjects of legal discourse but not as participants in it. Consequently, they remain “othered” by law, and law remains alien to them. They are like violinists in an orchestra who – stripped of their instruments – are nonetheless expected to sit still, be quiet, and do nothing that will interrupt the music. The symphony of law surrounds people with intellectual disabilities, and affects them. Like music, law’s effects are aesthetic, emotional, even spiritual, but they are also social, political, physical and material. It is their reality but one in which they are assumed to have no hand in creating. One may record the impacts of law in their lives, but it does not even occur to one to ask how the lives of people with intellectual disabilities may in fact shape law. This is an important question, though, and unless one is content to ignore it, then what one needs is a better concept of law.

I argue for a way of thinking about law that recognizes the capacities of people with intellectual disabilities, even though they do not have so-called “legal capacity”. These capacities include the ability – however attenuated – to think, to feel, to need, to desire, to dream, to express, to believe, to take, to give, to do, to care and to be cared for. Even without their violins, the violinists can still make sounds: they can clap, stamp, shout, snort, shuffle, whistle, sing etc. Seeing them as taking part in the orchestral performance is an interpretive choice. It is a definitional decision; what constitutes the best definition depends on what one is trying to accomplish with it.3

Conceiving law pluralistically allows one to see people with intellectual disabilities as ‘creators’, not merely ‘subjects’ of law (Macdonald & Sandomierski 2007). Yes, law does help to construct legal subjectivity, but legal subjects also help to construct the law. Law both channels and flows from the exercise of human agency (Winston 2001). It is not reducible to the legal rules, concepts, institutions, and processes explicitly produced by official state organs (Griffiths 1986; Moore 1978; Merry 1988). Law arises from social interaction (Winston 2001; Fuller 1969; Webber 2009). As such, it as much the work of citizens as it is of legal officials.

In this article, I draw on fieldwork I carried out in L’Arche Montréal, an intentional, faith-based organization providing homes, care and community to persons with intellectual disabilities. I begin by explaining why I chose L’Arche Montréal as the site of my study. I briefly outline of my research methodology. Then, I relate a story based on my experiences as a participant observer in this community. Following this illustration – and informed by critical legal pluralist theory (Kleinhans & Macdonald 1997; Macdonald 2011; 2006) – I show how law and everyday life at L’Arche serve to inform and illuminate each other.

Locating L’Arche Montréal

In this section, I describe the site of my qualitative study, L’Arche Montréal. People with intellectual disabilities (known at L’Arche as “core members”) and their care-givers (referred to there as “assistants”) live together in “family-like settings that are integrated into local neighbourhoods” (L’Arche 2015).4 The term “core member” is used to emphasize that persons with intellectual disabilities constitute the very core or heart of the community. As a faith-based organization, L’Arche places an emphasis on prayer and spirituality but is not affiliated with an official religious institution. Nonetheless, the vision behind L’Arche has been profoundly shaped by founder, Jean Vanier’s interpretation of Gospel values and the Beatitudes (Cushing 2003, 108; Philippe 1982, 37).. According to this vision, cognitive difference is revalorized in order to emphasize its consequences for the special gifts and abilities of persons with intellectual disabilities (Vanier 1998; 2001; 1995; 2011).

Vanier established L’Arche out of recognition for the deep human need for friendship (Vanier 2001). What began with Raphael Simi and Philippe Seux – two men with intellectual and physical disabilities – and him, living in a small house, ended up growing into an international organization consisting of more than 140 communities across six continents (Spink 1990; Vanier 1995; Cushing 2003).5 Today there are twenty nine communities across Canada and eight in the province of Québec, including Montréal. Member communities belong to the International Federation of L’Arche Communities, and have incorporated the Charter of L’Arche Communities into their constitutions.

Outlining My Research Method

Pursuing a Master in Laws, I chose to undertake a study of L’Arche because, in the words of Franciscan contemplative, Richard Rohr: “We do not think ourselves into new ways of living, we live ourselves into new ways of thinking” (Rohr 2003, 19). Law faculties play host for discussions and debates ‘about’ persons who have intellectual disabilities, but rarely do they facilitate learning about law through interaction ‘with’ these individuals.6 The absence of persons with intellectual disabilities from sites of law making and legal education starkly contrasts with the deep implications that law has in their lives; moreover, this distancing implicitly discounts the potential relevance that the experiences and insights of persons with intellectual disabilities have for law.7 Conversely, L’Arche offers an environment that aims to disrupt hierarchies based around social privilege, economic status and intellectual prowess.

I telephoned the L’Arche Montréal office, expressing interest in the community and was invited to come along to an open community supper. Soon after I arrived at the potluck dinner, a young lady had me by the hand introducing me to everybody around us. About sixty people were there: core members, assistants, community leaders, office staff, as well as family, friends, and guests who were experiencing L’Arche for the first time. After the last plate was washed and put away in the cupboards and all the chairs stacked at the side of the hall, I spoke with the Director of Human Resources, Robert Larouche. We agreed that the best way for me to learn about L’Arche was to get immersed in it myself. Thus, I started volunteering at L’Arche before knowing what, if any, connection it was going to bear to my Master’s thesis. My responsibilities as a volunteer assistant included, among other things: shopping for groceries to supplement supplies brought in from the food bank, cooking and cleaning, accompanying core members on outings, arranging doctor and dentist appointments, assisting core members with their laundry and daily hygiene. Assistants develop relationships of trust and friendship with core members and other assistants in the community (Reimer 2009). One’s activities are framed less as “doing for” than “doing with”– an ethos of mutuality pervades assistant and core member interactions (Cushing & Lewis, 2002). For three months I lived three days a week in a L’Arche home that – to maintain confidentiality – I refer to as “Blue Skies”. After that, I continued to volunteer as an assistant one full day a week at Blue Skies for the following three months.

After securing approval from the McGill University’s Research Ethics Board, I began undertaking my formal study. My methods of qualitative data collection consisted in part of formal interviews. I interviewed four core members, an assistant, a core member’s parent, the Director of the Community and the Director of Human Resources.8 While most of the interviews lasted about half an hour, the interviews with the two directors lasted upwards of two hours. I posed a wide range of questions to these men about the history, origins and institutional structure of the community. In addition to these formal interviews, I had many informal conversations with assistants about a wide range of issues pertaining to normativity at L’Arche. Participant observation was the most significant component of my research methodology.9 I spoke to all the research participants about the work I was doing meanwhile cognizant of how many well-meaning researchers have in the past held up persons with intellectual disabilities as “objects of scientific interest or…voyeuristic curiosity” (Stalker 1998).

Taking a Trip up the Mountain

In this section, I recount the afternoon that Debbie, one of the core members, and I made an outing to Saint Joseph’s Oratory. I knew that she was fond of taking walks, and always seemed most content while in transit. I chose the Oratory because all of the core members in our home except Debbie had attended an operatic concert there, a fundraiser for L’Arche and its sister organization, the Faith and Light community. Claire, one of the other assistants, had suggested that Debbie spend the night at home with her, since Debbie always had trouble sitting still for long periods of time and, due to her deafness, would not have been able to hear, let alone, enjoy the music. I could see Claire’s rationale. Despite feeling some qualms, I raised no objects. I think this had to do with feeling conscious that I was a “part time” assistant, who was also a researcher, and a relative neophyte at both; besides, I was not even going to be there that evening anyway. Since Claire was a full time assistant – and the house leader was fine with her decision – I deferred to her judgment. As weeks went by and the weather began to warm, Debbie and I found ourselves alone in the house on a very fine day. So, we prepared a picnic lunch, walked to the metro station, and took the train to the other side of the mountain. I figured that this way, even though she did not get to attend the concert, she would at least get a chance to see the magnificent place in which it was held.

When I first met Debbie I was disturbed by her unpredictable, banshee-like cries. Claire was no doubt worried that they would have a similarly discombobulating effect on the audience members and performers at the concert. It took a while to become accustomed to the sharp screams. Over time I discovered patterns to them, not from the cadence of the shouts themselves, but from when she would see fit to make them. I learned that Debbie did not just emit these shrills when she was angry or upset, but whenever she was trying to get others’ attention to communicate something to them. Having never learned standardized sign language in the institution in which she grew up, she was reliant on a limited set of gestures, whose symbolic meaning seemed to depend on a host of contextual factors that she did not seem to treat consistently. The more familiarity I gained with Debbie’s reference points – her daily routines, preferences and relationships with other people in the house – the easier it became to understand what she was trying to say.

As we walked out the door, Debbie waited for me to go down the stairs first. I was not sure why she waited to follow me down the stairs, but it was something she always did. In the same way, whenever we were walking down the street and I paused to tie my shoe or let someone else catch up with us, Debbie would stop to wait for me too. When we boarded the crowded train, she seemed ill at ease, and reached for my hand.

When we alighted from the train and began walking up the slope of Mount Royal, it turned out I had gotten the stop wrong, so we ended up having a farther walk up to the Oratory than I had expected. Notwithstanding Debbie’s love of walking, it was not long before she started gesturing for us to turn back. On the way, she wanted to stop somewhere along Côte-des-Neiges to get a coke. I encouraged her to stay the course, promising her that afterwards we would have one.

Much to Debbie’s relief, we finally did arrive. Having acquired quite the appetite from our trek, we laid out our lunch, and joined hands to say grace before meals. I uttered a few words, giving thanks for the food and our friendship, and praying for those who had neither. Debbie could not hear me, but she kept her head inclined, her fingers laced in mine. She made sounds of her own – half-singing them out, loudly and shrilly. All the while she maintained an air of great solemnity. There were no intelligible words and I do not know what Debbie would have been thinking when she was saying them, but grace it was. A more moving or authentic expression of it I had not heard, even though I had listened to many beautiful hymns of thanksgiving sung in cathedrals and concert halls.

Outside of L’Arche I was not in the habit of saying a blessing before meals, but because it was a regular practice at L’Arche, one I had observed that Debbie seemed to value, I initiated it when we sat down. I felt it granted us the opportunity to connect – something we so rarely ever managed to do through conversation. So often neither of us had any idea what the other was thinking. Saying grace together, the inability to articulate our thoughts to one another faded in significance. Our presence with – and presence to – each other was what mattered. I felt that being present in that moment with Debbie was immeasurably more valuable than attendance at any concert. It occurred to me that without Debbie there that evening at the Oratory, probably pacing the aisles and letting out a scream or two, everyone else was missing out.

Getting out from under a reified concept of law

Seeing people with intellectual disabilities as mere subjects of – sub jacere literally “thrown under” (Macdonald & Sandomierski 2007, 611) – law, presupposes a reified account of law. It presumes law is some “thing”: a unitary system, an explicit institution, a mark of authorization, a mode of expression, a body of prescriptions (Macdonald 2011, 1145-1156). Conversely, from a critical legal pluralist perspective law is a complex, multifarious activity. The idea that all that which purports to be normative – not just those artefacts that have received a formal stamp of official authorization – might justify the label law makes the account of law plural (Melissaris 2009; Tamanaha 2008). The notion that it is what individuals treat as normative in fact that ultimately constitutes law, grounds the theory’s critical dimension (Davies 2005). Such an approach challenges one to attend to how individuals themselves negotiate legal pluralism: how do they interpret, ignore or invent rules to live by? (Kleinhans & Macdonald 1997; Macdonald & Sandomierski 2007).

Macdonald argues that conceiving law pluralistically has methodological and ideological justifications. The methodological advantages are that it permits one to ask the central questions of positive legal analysis across a broad range of normative activity. These questions are three: (1) How is the exercise of power legitimated and what are the institutional forms and criteria of legitimation? (2) What are the principles of social ordering and what are the diverse criteria of procedural due process appropriate to each? (3) What are the criteria of substantive justice appropriate to these multiple institutional forms and processes of social ordering? (Macdonald 1998: 78).

Concerning how the exercise of power is legitimated, one may ask whether Claire’s decision that Debbie would stay home with her was legitimate – and if so, then on what basis? This leads one to inquire further into how decision-making authority gets allocated, exercised, checked, and justified at L’Arche. There are various principles of social ordering – including adjudication, mediation, and negotiation (Winston 2001). Factors that make for a fair adjudicative process, such as enhanced formality for example, may actually frustrate the frank, considerate exchange that mediation is intended to foster. What are the standards an assistant should respect when negotiating with a core member about doing something, like taking a long, steep walk – when the latter does not seem to want to do it anymore? Finally, what is fair and how does one know what is fair when determining who gets to make decisions, and how conflicts get worked out and settled? No legislative body, leader of the government or member of the judiciary may have made the decision for Debbie to stay home from the concert, but it still raises such questions. Legal pluralism acknowledges that the exercise of power in any context merits the scrutiny of such analysis, while at the same time recognizing that there is not a universal set of abstract, formal legal criteria by which to evaluate such actions.10

Indeed, ideologically, legal pluralism’s thrust is “to undercut the hierarchy of normative orders based on some source-based criterion, and to valorize otherwise suppressed normative orders and normative discourses” (Macdonald 1998, 78). It makes room for inquiry into how authority is exercised in fact – and not just on paper – within one’s society, one’s workplace, one’s community, or home. Such a perspective reveals not just why a community like L’Arche would be worthy of legal analysis but how the community may be viewed as a site of law-making. Unofficial, implicit, informal, and inferential forms of law exist in dynamic tension with official, explicit, formal, and canonical expressions of legal normativity – both within society as a whole and within a home at L’Arche like Blue Skies, as well.11

Law’s symbolic plurality consists in the variety of sites and modes through which legal meaning is articulated and interpreted (Macdonald 1996; Macdonald 1986; Fuller 1969, ch. III; Winston 2001). Legal norms are both explicit and implicit: they may be created deliberately in a singular moment of enactment (like legislation) or arise over time from social interaction (such as custom) (Macdonald 1996; Macdonald 1986). Legal norms can be presented canonically (like provisions in a statute) or defy any single textual formulation (such as the concept of equity); it is their bearing on the ways in which people act that matters.12

People with intellectual disabilities are limited in their ability to deliberately construct legal norms, institutions, and processes. This is because of their exclusion from positions of formal authority, but also because of limitations to their cognitive capacities. I was not able to have an abstract discussion with any of the core members at L’Arche about law, rules, authority or justice, but my sense of how to be an assistant in the community was shaped by my interactions with these individuals. Debbie never wrote me out a list of rules but nonetheless informed the norms I followed in the course of my everyday interactions with the residents of Blue Skies. I had signed an agreement with L’Arche setting out responsibilities and expectations. I had read a number of books by Vanier and others who had lived at L’Arche as assistants (Vanier 1998; 2001; 1995; 2011; Clarke 1973; Ceyrac 1988; Spink 1990; Nouwen 1995). I had numerous conversations with – and most importantly, had the opportunity to bear witness to the example of – some very capable leaders within the community. At the end of the day, it was I who had to interpret how to live the law governing my conduct – with its explicit and formal dimensions as well as its implicit and inferential ones. There is more to being an assistant—just as there is more to performing any role – than either just following instructions or imitating others. My getting to know Debbie – to the extent one can really get to know anybody, let alone someone with whom one cannot really have a conversation – informed how I understood and acted. The relationship we developed was itself constitutive of what it meant for me to be an assistant, for that knowledge could only be fully experienced or demonstrated in my assisting her.

It is not just what core members do but also the stories they tell that shape the law of L’Arche – that is, the project of representing how to guide the way individuals treat each other. For example, Gabriel, another core member used to tell a story about “each and every one of us being a handicap in his own way”. These were the words his mother used one time to comfort him, when she found him crying after kids at school had called him a “handicap”. From that point on, he said, the word, “handicap” never again bothered him; he was able to let it go. But of course, not only did the word continue to bother this man in his fifth decade; so too did the feelings it conjured up. He would evoke the words of his loving mother not because they had served to inoculate him from all the hurt that that word represented to him, but because the telling and re-telling of the story was a way of resisting the temptation to let it define him.

Recognizing individual rights and providing recourse for people to seek redress for wrongs are two important roles of law, but they are not the only ones. The formal institutional structures of L’Arche, the statutory regulations regarding social assistance for people with disabilities, the rights set out in the Canadian Charter of Rights and Freedoms – form part of the law governing everyday life in this community. At the same time, the choices people make, however mundane they may seem, are what in fact give life to law. Insofar as law is a normative endeavour, it depends on the participation of its subjects. Imagining law as a creative undertaking means cultivating conditions for individual men and women to flourish as human beings. It means caring for – but also fostering opportunities for caring by – people with cognitive impairments.

Conclusion

For better or worse, everyone depends on others. While human relationships may be marked by compassion and care, so too may they be disfigured by indifference and violence. All human interaction offers occasion for unjust as well as just conduct. Subjecting social interaction to rules can provide bulwarks against domination, while at the same time, offering baselines for self-directed, other-regarding behaviour. Symbolizing human interaction and conduct under the governance of rules is the project of law (Macdonald 2006, 393-394). While law may serve as a source of emancipation, it can also be made to function, deliberately or not, as a vehicle of oppression. Moreover, there is no guarantee of the use people will feel they have for – or choose to make of – law. Because of their acute reliance on others to care for them, people with intellectual disabilities need laws that do more than merely shield them from intentional harms. Law’s purpose is not just to secure rights and protect liberties, but to facilitate social interaction and liberate human potential (Winston 2001). This means fostering ways of responding to physical dependence and material want, as well as to social, mental, and emotional need. Law is an active, shared, interactional undertaking (Fuller 1969). I am told it was once written somewhere that inventing the words ‘I’ and ‘tomorrow’ liberated human thought and language in dramatic fashion. How many things could we not express – indeed, how many things could we simply not think – without first articulating these words and the ideas they stand for? At the same time, one should be cautious about assuming that literally without these specific words we would be utterly bereft – at once, out a self and a future. Those who identify as writers are inclined to impute an exaggerated significance to the written word. Similarly, those who see themselves as intellectual have a greater tendency to adopt an “intellectualist epistemology” when thinking about how people govern their interactions through rules, overestimating the extent to which the act of following a rule is strictly a deliberate, conscious undertaking (Taylor 1995, 177). In fact, verbal language is but one mode of intersubjective communication (Furth 1966). Every written or verbal formulation of a rule is in fact rooted in practices and background understandings. All language, all forms of communication, only ever approximate that which we seek to express; indeed, knowledge itself is but an approximation. To enhance one’s capacity to communicate is to enlarge one’s horizons. In this sense, Wittgenstein was right when he wrote that “[t]he limits of my language mean the limits of my world” (Wittgenstein 2001, 68). Learning new languages means opening up new worlds. Learning how to communicate in new ways can also reveal the world anew. Therefore, conceiving law strictly as a formal, propositional language shuts it off from people who communicate by other means; in effect, it fails to do justice to the legal agency and normative experiences of people with sensory and intellectual disabilities. We tend to conceive of law as foremost a way of restricting conduct instead of facilitating agency. It is typified by “you” and “now”, rather than “I” and “tomorrow”. Conceived as “a set of orders backed by threats” (Austin 1832), law tells you what you should or should not do. Conceived as a “system of primary and secondary rules” (Hart 1961), it also sets out how such injunctions receive formal legal authority. Law speaks its imperatives in the second person, singular, present tense. I argue for a shift from “thou” to “I”, from “I” to “we”, and from “now” to “tomorrow”; in other words, it is a move from the second person singular present, to the first person plural future. Disability may be conceived as a field, a descriptor of debilitation, as a socio-political category or as all three at once. Similarly, religion may be framed in theological, humanistic, institutional, or personal terms – or again, by all of the above. I have tried to show that law does not admit of a singular, fixed meaning either. Research on “law, religion, and disability” promises multiple permutations. Based on my qualitative research carried out in a faith-based community serving people with intellectual disabilities, I have attempted to demonstrate that attending to the informal and implicit norms reflected in everyday life is vital to legal inquiry, for it is in this milieu that law is experienced, resisted, re-made, and lived.

Footnotes

  1. This article incorporates elements of my LLM Thesis Law at L’Arche: Reflections from a Critical Legal Pluralist Perspective (2008) [Unpublished LL.M. Thesis, McGill University Faculty of Law]. It is a revised version of a paper given at the Trinity College Dublin Law School and at the “Law, religion and disability” panel at the 2015 Canadian Disability Studies conference in Ottawa. I thank April Bateman, Michael McMorrow, Barbara McMorrow, and the anonymous reviewers of this journal for their helpful comments on various instantiations of this text. I express my heartfelt gratitude to the friends I made at L’Arche.↑

  2. One does not usually come across express inquiries such “what is law?” and “how do we know what law is?” outside the field of legal theory. Express opposition to the ideology of liberal legalism is often nonetheless coupled with a tacit acceptance of its underlying idea of law. Trashing the law from a “critical legal studies” (cls), “critical race theory” (CRT) or a “dis/ability critical race studies” (DisCrit) perspective can expose systemic injustices and systematic oppressions; nonetheless, it also reinforces the notion that law consists exclusively of the official normative artefacts of the political state.↑

  3. The instrument-less violinists, the other musicians, the conductor, the audience and professional critics represent different communities of interpreters. Within these groups, whether such sound-making is understood to constitute music may depend on one’s cultural assumptions, political values, social relationships, as well as knowledge of and appreciation for the specific context. One should not automatically presume the conductor’s definition is the ‘correct’ one, just because he or she is the conductor, any more than one should presume the critic’s is, because he or she may be a recognized expert. It is the point of view of legal officials – or that point of view as reconstructed by legal academics – that tends to be accepted as the “true” definition of law (McMorrow 2014).↑

  4. Once core members become residents at L’Arche, they are often there for life; the same is not true for assistants. In Québec, the term “personne acceuillante” (“welcoming person”) is used instead for the same reason. However, previously the term had been “personne acceuillie” (“welcomed person”); it was only once a resident with intellectual disabilities pointed out to her Community Leader that it did not make sense to refer to her as a “welcomed person” when it was she who was always doing the welcoming of new assistants that the change in term occurred.↑

  5. In my interview with then director of L’Arche Montréal, Jocelyn Girard, he stressed what he saw as a too often neglected element of the story. There was in fact a third man who had initially accompanied Simi and Seux to live with Vanier. He was filled with so much anger at the world that Vanier found it too difficult to care for him also. Jocelyn shared this aspect of the story of L’Arche’s beginnings in order to show that like all human endeavours L’Arche is not, and never has been perfect. Thus, in theL’Arche Charter it states that while L’Arche recognizes it cannot offer everyone with an intellectual disability a home, “it seeks to offer not a solution but a sign, a sign that a society, to be truly human, must be founded on welcome and respect for the weak and the downtrodden” (L’Arche Charter).↑

  6. Reading about strategies for making academic discourses more inclusive (Van Praagh 1992) as well as arguments why education is never a ‘neutral’ or ‘innocent’ institution in relation to identity-based struggles (Williams 1991) informed my reflection upon this question.↑

  7. Discussing the consequences of material exclusion particularly of racialized groups, Bhandar, notes: “There is an intimate relationship between material forms of exclusion and the ideological and cultural constructions of certain groups of racialized peoples as ‘Other’ or outsiders (2002, 343-44).”↑

  8. My dual role as researcher and assistant turned out to be vital to the character of the research I carried out, but it also had problematic dimensions. I address these and other aspects in the methodology section of my thesis (McMorrow 2008).↑

  9. Mainstream legal research tends to be concentrated on the study of texts like statutes, judicial opinions, and secondary sources. For a critique of what may be called a ‘textbook view’ of legal research, owing to the popularity of this notion among textbook writers (and, I would suggest, the primacy it places on texts as the sole legal research resource), see: Manderson & Mohr 2003. In developing my research methodology, I drew on the following interdisciplinary sources: Denzin & Lincoln 2005; Ezzy 2002. I also drew on these empirical legal studies: Llewellyn & Hoebel 1941; de Sousa Santos 1995; Geertz 1983.↑

  10. If nuance and wisdom can enter into ideas of law and shape legal perspectives in this way, then Simon Roberts’ description of legal pluralism as “a lawyerly way of looking at the social world” is not so damning an appraisal as he perhaps intended (Roberts 1998, 101). Furthermore, it exposes the claim that legal pluralism is completely relativistic for denying automatic attribution of legitimacy to state law-making institutions as inadequately informed (Barzilai 2008). The chief aim of a critical legal pluralism however is to block an easy by-pass around confronting and weighing justice claims.↑

  11. What may be said about legal norms, equally applies to legal institutions, processes, methodologies, concepts, and bases of legitimacy (Macdonald 1996; Macdonald 1986).↑

  12. Explicitly enacted, formal rules represent but one of many ways to express law. The idea that there is a multiplicity of sites and modes through which law symbolizes the governance of human interaction is central to Roderick Macdonald’s “critical legal pluralism”. Richard Janda describes it as “Macdonald’s constant” (Janda 2015, 188): the idea that “the sum of regulation in any given economy; what vary are the degree of centralization of regulation and its instrumentalities” (Macdonald 1985, 145). Macdonald argues that adventures in so-called “de’-regulation” are always in fact forays into “re”-regulation; for instance, in the field of economic regulation, markets and market mechanisms are substituted for government agencies and subordinate legislation. Democratic accountability may be traded for economic efficiency, the price mechanism for stamps of institutional authority. The upshot is: governance of some type – law in some form – does not disappear; its sites shift and modes change.↑

References