The role of Critical Race Theory in designing anti-racist and inclusive research

Welcome, welcome everyone. In the following presentation moderated by Professor Constance Backhouse. We will have professors Jamie Liew, Joshua Sealy-Harrington and Rakhi Ruparelia, talk about the role of critical race theory in designing anti-racist and inclusive research.  

Before we start, before we dive right in, I will take a few moments to introduce our moderator, actually. We have Professor Constance Backhouse who is a full professor at the University of Ottawa Common Law section at the Faculty of Law. She has received numerous prizes and awards for her work including the Social Sciences and Humanities Research Council Gold Medal award and the prestigious Molson Prize. She holds the position of Distinguished University Professor at the University of Ottawa, and teaches in the areas of legal history, human rights, critical race studies, and feminist issues in law. Professor, professor Backhouse’s most recent book is: Two firsts: Bertha Wilson and Claire L’Heureux-Dubé at the Supreme Court of Canada, which was published originally in 2019, and now just published this year in French as: Deux grandes dames: Bertha Wilson et Claire L’Heureux-Dubé à la Cour suprême du Canada. Her Claire L’Heureux-Dubé: A Life was the recipient of the W. Wesley Pue Book Prize in 2017 and the Shirley Greenberg Prize in Feminist Research in 2019. It was also shortlisted for the City of Ottawa Book Awards in 2018, and listed as a finalist for the Canada Prize in the Humanities and Social Sciences in the same year. So we are really honoured to have Professor Backhouse, Professor Liew, Professor Ruparelia, and do we have Professor Sealy-Harrington in the room? Yes fantastic, so welcome Joshua, a pleasure to meet you, and I will yield the floor to Professor Backhouse.  

Thanks very much Cintia. C’est un grand honneur pour être ici avec une session d’antiracisme, and the role of critical race theory in designing anti-racist and inclusive research. This is a topic that’s really dear to my heart, and I know that of all of the speakers who have been lined up this afternoon. We- the format we’re going to follow is I’m going to introduce each presenter just before they speak – one, two, three – and, uh, each one is- has promised that they’re going to um speak for 20 minutes only, which should give us almost an hour of Q and A and conversation back and forth once we finish the presentations, so that’s the plan. Our first speaker is Jamie Liew, a wonderful colleague and an Associate Professor at the University of Ottawa Faculty of Law. She chairs the Institute of Feminist and Gender Studies at the Faculty of Social Sciences. She’s an expert in immigration, refugee, and citizenship law, as well as admin law and public law. Professor Liew’s current research examines the meaning of citizenship and legal barriers for stateless persons to obtain citizenship and nationality. She’s looking at gendered implications of the Canadian law on migrants, and how Canada’s immigration and refugee system marginalized those navigating the process. She’s currently completing a book manuscript on statelessness and the law. So I’ll turn it over to Jamie and I’ll start my clock running.  

Thank you Constance. I first want to thank Cintia and Penelope for inviting me. I’m very excited to also learn from Joshua and Rakhi later on. And also just to acknowledge that I’ll be speaking to you from Algonquin Territory, Anishinaabe, the land and the ancestral territory of Anishinaabe people. In my short time with you today I’m just going to be talking through my own thinking about critical race theory and how it’s informed my own research, and in doing so I’m going to take you through a little bit of my work and take you through the process of how I, um, conducted that research and as Constance mentioned, how I’ve been able to put this into a manuscript form, that hopefully will be coming out in the future. So I’m just going to share my screen right now and- so that I’m able to share a few slides with you. 

There we go. Okay so I wanted to first say that um a lot of my research at the beginning when I was a young scholar, focused really a lot on examining the legal texts, examining jurisprudence, understanding what the implications were of legislation, and policy, of of the decisions that were coming out of the courts. Um and then when I started looking a little bit towards um uh you know my core area of research which is um on statelessness, I started doing you know a cursory glance around what people were writing about it and undoubtedly there was a lot of uh legal scholars in the field. And for those of you who don’t know, statelessness really refers to people who don’t have citizenship anywhere whatsoever. And it’s an emerging field of research which is an exciting area to be in because you have a lot of room and flexibility to really shape the way that people talk about this issue which is affecting millions of people around the world, marginalizes them and oppresses them in a number of ways. But when I started doing kind of a literary review or scan over what was being conducted in terms of research in this area, notably much of the research around this was about how the law is written, what law as text says about citizenship law, who’s eligible, how to get citizenship, and notably also um what kinds of ways we can tweak law, tweak legal processes, and things like that. And it struck me that this seemed like a very you know um I think unsurprising thing about the legal field that most of us legal scholars are very comfortable in talking about what the law says on paper, what the decisions say, how this may affect people, um but I found it unsatisfying in a lot of ways, in the in the way that it really didn’t explain why, that despite the fact that people were able to identify these gaps in the law or the problems associated with legal processes, why is it that statelessness still exists, and why is it that people are still unable to resolve their citizenship problem.  

I also found it very interesting that a lot of research focused on human rights law that you know we need to have a greater turn to human rights, or we need to place more weight on it, or we need to promote it, or we need to gain more traction for people or for states to sign on or to implement international human rights tools and conventions, um but again I also found these kinds of research a bit unsatisfying because a large proportion of the world’s stateless population rests in countries that do not share the same kinds of uptake in human rights legislation, convention or practices that we do in the West. And then I started in, conducting this research, um watching places in the world where stateless populations were being created right before our eyes. And so I’ll give you two examples the first is um a huge population of Muslim Assamese in the in the area of Assam in India. They were recently stripped of their citizenship through legislative edict overnight. The second example is in Myanmar and this might be more familiar to many of you who might be aware that there’s a large population of migrant Rohingya who have left Myanmar because of their oppression, and this stems from their stripping of citizenship in the state of Myanmar. Um and so it led me to think about what is, you know, what is the glaring gap in the research in statelessness and does a legal scholar like me have anything to contribute in that sense. And it started to begin with conversations with colleagues that I have outside of law, so sociologists, anthropologists, who in this field when we gather at certain conferences tell me their frustration with legal scholars, that they think they know all the answers, that we need to just tweak the law, and this kind of dismissal of other kinds of interdisciplinary interventions. And instead of arguing with this person, I listened. So it brought me to a place where I started thinking a little bit about why is it that I personally was interested in statelessness as well, and I can tell you that um my own interest in this has to do with the fact that um my father was a former stateless person. If I can get my slide to- here we go. Um what you’re seeing on the screen right now is um a water village in Southeast Asia in a country called Brunei, where my father was born. He was born in a village that no longer exists but was next door to this village, so along the same river, um and when he was born he was not conferred citizenship, and so it led me to inquire why, you know why is it that people are born without citizenship? Why is it that people have to suffer as a consequence of having no legal identity? Um and it brought me back to you know trying to look at the history of the area, and you know Brunei and the surrounding countries such as Malaysia, where my research eventually took me to, are former British colonies, and the ways in which people were categorized or treated were a result of a vestige of colonial governance in terms of being able to identify people, and sort them for administrative reasons. 

So it led me down to this path of trying to figure out well you know in understanding this more and interrogating the law more, it was became very apparent to me that law became a tool to continue these kinds of colonial acts of categorizing people, of deeming them whether nationals or foreigners. Um and it kind of brought me back to kind of the basic principles of of critical race theory and to one of the seminal pieces of um critical race theory, and if those of you have not been exposed to um Mari Matsuda, I highly recommend you look at this very classic and old piece that she wrote that um talks about looking to the bottom, and I’m not a fan of the language looking to the bottom, but I definitely agree with the premise behind this practice which is what she argued as a method of looking at the experiences of those that are being oppressed by the law. And now as I understand it, it’s looking at the concrete and actual experience, actual historical present experience that people have with the law, and to turn to them um as experts, but also to find ways to elevate their voices, elevate their knowledge that they have. Um and in doing so trying to uncover what the law is doing um to people that are affected by it. To uncover what the law is hiding, enacting, and what the law is making possible and constructing. Um so I’m not going to go through exactly what Matsuda tries to do in this article, I simply point to it to tell you this was a starting point for me to kind of think about what is it about statelessness and why is it the occurrence of statelessness unsatisfying right now in the in the legal literature, and for me one of the ways in which to uncover this was to actually ask stateless people themselves, right. 

So this led me to um some work that um, I did some field work in Malaysia for four months, um and for those of you who may think that you need a large grant to do this, I did this on a shoestring budget. I received a seed grant from the University of Ottawa that basically paid for my airfare and accommodation. Then I partnered with an NGO in um in Malaysia who works closely with stateless persons. And what I did was I interviewed 45 people, um a mixture of stateless persons, stateless persons’ parents, lawyers, advocates, and cobbled together the stories of 90 people. I also reviewed um legislation, case law, you know the typical kinds of laws texts that you would expect someone as a legal scholar to look at um. And in doing this research, it is a preliminary research and in doing so it uncovered some things that I thought were really interesting in the sense that um you get to hear directly from people how this has impacted their lives, but more so their expertise on the reasons why the law and the tweaking of the law has been unsatisfying for this for these people. Um and it led me to coin this term called ghost citizen. That the law is being used in a bifurcated way to create statelessness, it’s first allowing states to ghost people, to ghost their own citizens, and to deny people the ability to call themselves citizens of their own countries, deny them access to citizenship, even though they have all of the markers under international law um citizenship. And some of you might be aware of the Nottebohm case, which is an internationally renowned case, that looks at dual citizens and how do you identify what is their primary citizenship. And I apply this to talk about how people who have genuine and effective links to the state such as residents, family, generational history of residing on a state, and other kinds of community links, um and despite all of these links they are being ghosted by their state. The other way in which I use this term is to not just describe the fact that they are um living a ghost like existence as well in the sense that they aren’t able to access a lot of resources, social services, um simple things like identification, but they’re also being constructed as foreigners, right, so they are being conferred citizenship of other states by their home state. So let let me give you an example. For example a person might have been born in Malaysia, might have lived there for all their lives, but they’re being called a Thai citizen because their mother happened to also be a Thai citizen. So they’re being, without any evidence, proof, or documentary um confirmation, that they have citizenship elsewhere, their home state is deeming them a foreign citizen. So I call this ghost citizenship because it is a speculative, factual finding that is being made at administrative judicial levels of where citizenship decisions are being made. And so I use this kind of dual meaning in ghost citizenship to explain, explain how stateless persons themselves have perceived what is happening. And so a lot of, a lot of this understanding what the law is doing how they’re constructing foreigners, is from the language I get from the, from stateless persons themselves, and for example they’ll tell me quote, um, you know “I don’t feel like they, for some reason I, they don’t treat me like I deserve to be at home here” or “they’re treating me like a foreigner, I’m not a foreigner”. You know a lot of these kinds of language arose time and time again in my conversations with these people, and it informed the coining of this term, but it also allowed me to understand how the law is being deployed as a tool to create categories and to create identities that are a contrary to that believed of by the persons experiencing the law. 

I just want to conclude by saying you know I’m circling back to you know Mari Matsuda’s concept of looking to the bottom, and I haven’t come up with a satisfactory way of coming up with a different way of talking about this, but um I think one of the things that um I try to push back on, especially in my own legal practice, for example, is this notion that legal scholars, lawyers, or legally trained people are the experts in this area, the experts of how we, how law is crafted, how law is deployed, and understanding how law affects people. Um and I want to introduce you to Roisah, she’s the person in the middle. She was a young woman who was very brave and, before I had arrived in Malaysia, was already very public and engaged in the media with regards to the fact that she was a stateless person and felt very unfairly um oppressed and maligned with the state that she was born in. Um she’s flanked by her two lawyers who always took her lead in terms of the strategies they took to try to advocate for her to obtain citizenship, and I followed her in the course of several months until she actually did acquire citizenship, so this is a happy story, but I do profile her in in a couple of ways, and the first is to just remind us that um you know people who are experiencing the law are not necessarily ones that don’t understand the law, and I actually learned a lot from Roisah about how the law works, about how she experienced it, but also, the ways in which people can use legal channels to advocate for themselves. Um I learned a lot about how Roisah performed a certain way um, and this performance allowed her to garner particularized attention. For example, Malaysia is a predominantly Muslim state, you’ll see that she’s wearing hijab. She performs as a Malay citizen very well, speaking the language, performing the religion, and um understanding the cultural nuances in the way that she spoke. And I think this really helped her case, and she utilized it, um, in a professional and in a very smart advocacy way to obtain citizenship for herself. And this led me to understand that race itself was a huge part of why citizenship is not a benign, neutral label, but one that is conferred on people depending on their race, and is a vestige of the colonial categories that were created prior to Malaysia’s inception as an independent state to talk about what you know what kind of identity do we want to have together as a nation state.  

And to conclude it’s informing my work here in Canada, as I move towards interrogating statelessness in Canada, as I see that predominantly those people who are in conflict with our law in Canada, and who happen to be stateless, predominantly are racialized people, and why is it that these people are unable to access certain kinds of legal avenues, legal remedies, um, and also are being um labeled as foreigner despite their genuine and effective connections to Canada for example. Um I feel like I’m rambling a little bit and I’m not sure if I really did talk about critical race theory and how it informs my research, but I’m happy to receive questions, and to also riff off any um great thoughts that will flow through the conversation as we listen to both Joshua and Rakhi’s presentations. So thank you. 

Thanks so much that was um a really great introduction to your uh threadbare research, on the cheap, how one can go to a completely faraway place and merge with 90 stories is a real tribute I think, um, to organization and strategy, but that was really interesting, and I look forward to further discussion. I just want to check to make sure that I think we’re going to um speak next with Joshua, is that correct, Cintia? Just, just hold your hand up if that’s correct.  

Yes it is.  

Okay so Joshua, welcome. Um Joshua Sealy-Harrington is an Assistant Professor at the Lincoln Alexander School of Law at Ryerson University. So, we are delighted to have you with us at uOttawa and um uh I think this may be the first time I’ve met you but I look forward to hearing your presentation hugely. Um Professor Sealy-Harrington is an Assistant Professor, um, and a Faculty Advisor to the Black Law Students’ Association. He teaches about legal theory and social change. He is also doing his doctorate at Columbia Law School, where his research explores the promise and limitations of identity in legal discourse. His academic work infuses his legal practice, which marries complex legal theory with practical advocacy. In 2019, he received a Canadian Law Blog award for his online advocacy on behalf of race, gender, and sexual minorities. In 2021, he received a Part-time Professor Award for Excellence in Teaching from the University of Ottawa Faculty of Law where he taught Race, Racism, and the Law. So I’ll start my clock running Joshua, and we look forward to your comments. 

Uh it’s my pleasure to uh join this panel today, and to engage with several scholars whose work I really admire. Um once in a meeting with Kendall Thomas, who’s the Chair of my doctoral research, I referred to critical race theory as a discipline, and he immediately retorted uh that to the seeming contrary, critical race theory uh is most importantly a method. Uh and that got me thinking. I had already studied critical race theory under him, Patricia Williams, Kimberly Crenshaw, and Katherine Franke, but there was actually not that much discussion of method as such. Eventually however, I came to realize that the intuitions I bring to my analysis of law can be conceptualized with reference to method, and that this is one way, perhaps a good way, to think about critical race theory and its specific intervention in the legal academy. I’ll admit at the outset that I am a nascent scholar, and so my remarks today are provisional. Also, the further I get into my doctoral research, which is ongoing, the more I am left with the sense that there is an entire universe of knowledge that I will never even scratch the surface of, and so in a way it seems inevitable that whatever observations I make will already have been made more eloquently by someone else elsewhere, uh but with those caveats I’m very happy to share my thoughts in flux on law, legal research, and critical race methodology.  

Earlier this year, I published an article in the University of Alberta’s Constitutional Forum entitled The Alchemy of Equality Rights, and for my remarks today, I figured it would be helpful for me to use that article as a foil for the implicit methods put to use in my scholarship, at times even unbeknownst to me and only later revealed by subsequent reflection. The article which discusses the Supreme Court’s decision in Fraser v. Canada concerns principally gender inequality, but a close reading of its three opinions more broadly reveals the political operation of law in general, and the ideological texture of constitutional equality in particular. For clarity, I’ll refer to my article as Alchemy in these remarks, and before anyone raises any alarms about my plagiarism of Patricia Williams, the title of the article is a deliberate riff on her The Alchemy of Race and Rights precisely because my argument consists of an application of certain critical insights from Williams to the Supreme Court’s opinions in Fraser. 

Imani Perry describes method as: how one asks the question and pursues the answer. And on that understanding of method, it is fairly clear that I have what one might call a critical sensibility in my scholarship and advocacy. And to elaborate on this critical sensibility, I will briefly outline three methods in my scholarly work, though I’m very happy to discuss more broadly with my co-panelists in the next segment of this panel. Those three methods are 1) ideology, 2) context, and 3) narrative. First, my scholarly research is expressly political, uh critical race theory like Indigenous legal theory, and third world approaches to international law, amongst other critical perspectives, emanates from a recognition of how law can be used to reify social hierarchy, and a specific desire to identify and challenge that use with a view to improving the material conditions of exploited groups. I addressed this early on in Alchemy, I note how the Supreme Court’s very first decision on section 15 described equality as an elusive concept that lacks precise definition. And I put this in conversation with conservative jurists today who insist on the need to pin equality’s definition down. I describe this as a political move, one that invokes a rhetoric of methodology to conceal a disagreement in ideology. Simply put, accounting for social context is complex, but it is a complexity that is essential to understanding discrimination. So when someone says they simply want to make our legal analysis simpler, I am skeptical. Not because legal analysis should be needlessly complex, but because simple discrimination analysis is, in my view, no discrimination analysis at all. In fact, it is an analysis that can be weaponized for discrimination because the simplest understanding of discrimination is a formalist account that ensures that the inertia of long-standing inequality is not only permitted to replicate infinitely, but worse, cannot be interrupted because that interruption is characterized itself as reverse discrimination. Now I appreciate that one might sense a tension already in my remarks, I’m giving a presentation on methodology here, yet critiquing the invocation of strict methodology in Supreme Court jurisprudence as ideological. But this is not a tension, I am express in my politics, both today and in my scholarship. I am writing against tyranny, and my methods are designed for the purpose of anti-subordination. So the ideology baked into my methods is not a contradiction, but a necessity. And the supposed lack of ideology and the methods of those I can test is, I argue in Alchemy, a lie. The opposition to social context and adjudication, a corollary of simple equality analysis, is not apolitical. When that context is essential to seeing inequality, it is rather profoundly political. And as a brief comment I will also note that some recent opposition to intervener submissions in courts can also be understood in this light. That is, as a desire to restrict social context that is essential to understanding the justice implications of superficially discrete legal disputes.  

This leads me to my second method, that is being, or that being an awareness of the interrelatedness between seemingly disparate phenomena. An awareness, in other words, to the very social context certain political ambitions seek to suppress. So much of legal study is about cabining. Its aspiration for neutrality is premised on not just the possibility, but the urgency of isolating discrete facts and rules to perform so-called objective legal analysis. I understand how this process of isolation is fundamental to the genre of legal writing and analysis that is routinely valorized in legal circles, but fundamentally it is this very genre that obscures how isolation is always a sacrifice. In Alchemy, one of the lenses I bring to my critique of the Supreme Court’s opinions is simplicity, or how courts routinely deploy oversimplified heuristics that belie a complex reality. This is of course not my original observation, but it’s an observation that assists in the interrogation of legal reasoning about equality. All three opinions in Fraser apply, in a superficial sense, an identical test for equality but reach wildly different opinions. Justice Abella’s majority opinion finds the systemic pay inequity in the RCMP discriminatory on the basis of sex. Justices Brown and Rowe find it non-discriminatory on the basis of sex. And Justice Côté finds that systemic pay and equity for women does not even concern sex in the first place, but rather caregiving, as if gender roles hold no relevance to women’s subordination. How does simplicity relate to the method I’m describing of context though? They are polar opposites. I argue in the paper that substantive equality, the governing standard under section 15, demands a non-prescriptive intermingling of history, context, and power, which the two dissenting opinions jettison in their effective exclusion of systemic inequality from section 15’s protective scope. Fundamentally, I consider discrimination an idea that cannot be meaningfully examined in a petri dish. It is at once a legal and cultural construction. Indeed, when the Supreme Court of the United States ruled in Brown v. Board of Education that racially segregated public schools violated equal protection, the court rested its reasoning on the symbolic and psychic consequence for Black youth of racially segregated schools. My point, to be clear, is not that this analysis or these methods are easy, and I’m sympathetic to institutional concerns about judges wading into the social, the cultural, the psychological, given their expertise, and even more so given their profound privilege. But when we democratically delegate scrutiny of discrimination to our courts, these are questions that cannot logically be avoided given the complex and subtle ways that discrimination manifests within society. 

Finally, a third method is narrative. A peer reviewer for my Alchemy paper noted that a conspicuous omission in my piece which draws so heavily on Williams’ work, was the absence of personal narrative, and I really took this to heart. Of course, one of the things Williams does so effortlessly is weave personal narrative into her rigorous theoretical analysis of law and society. And I really did want to use some narrative in the piece as I have done in other pieces, but deadlines being what they were, I couldn’t think of an effective way to incorporate some in this particular piece, at that particular time. That said, narrative as a method features prominently in my work, and I want to elaborate briefly on that in two ways. First, in Alchemy, while I do not include any personal narrative, I exert Williams’ prologue to The Alchemy of Race and Rights which I characterize as a narrative elaboration on Justice Jackson’s oft-cited aphorism regarding the Supreme Court of the United States, that we are not final because we are infallible, but we are infallible only because we are final. Regarding that prologue, I explain how Williams describes a society of priests, lawyers, who build a celestial city, the State, with gates secured by word combination locks, rights, and where ascending levels of power become accessible to those who could learn ascendingly intricate levels of word magic, her narrative description of law. Further, she allegorically describes an apex court where priests become gods and like to ride their strong surefooted steeds around and around the perimeter of heaven, now jumping word hurdles, now playing polo with concepts of the moon and the stars. To some, Williams’ abstract prologue holds little relevance to legal theory, and even less relevance to doctrinal analysis. To me, and the methods I draw from, a prologue is actually essential. As I argue in Alchemy, Williams’ prologue perfectly captures the tone and style of the opinions in Fraser. Such certainty in the objective legal correctness of dueling opinions which ultimately divide along subjective political lines. And that’s the beauty of narrative, despite law’s aspiration towards objectivity, so much of the law’s work distills to the stories we tell and accept, to the worlds we inhabit and create. As a second elaboration on narrative and my scholarship, I have indeed included personal narrative in my other writing. In an essay for The Walrus, I described my own experiences and reflections on the lynching of George Floyd, and the collective psychic implications of racial subordination and struggle for Black people, and in a forthcoming article in the Supreme Court Law Review on the court’s addiction disability decision in Stewart v. Elk Valley, I describe my own experience with anxiety to elaborate on critical disability theory and judicial empathy. To be clear, I don’t consider narrative infallible. In fact, so much of white supremacy is built on racist and imperial narratives so they too can be weaponized. But to pretend that there is no story in legal interpretation, and to pretend that the law itself does not participate in the construction of societal narratives is, I think, to fundamentally misunderstand the law’s cultural and epistemological function. 

In conclusion, my goal ultimately is to make sense of the law, as well as the world in which it operates. And as Imani Perry explains: one must step outside one’s field to see it with fresh eyes and in broader context. With the idea of stepping outside one’s field in mind and in line with critical race theory’s narrative tradition, I’ll share one additional anecdote. I recently posted on Twitter about the Kyle Rittenhouse verdict in the United States and concerns I have about these individual cases obscuring our structural political ambitions. Specifically, I tweeted: “Let this moment radicalize you but do not let it obscure the fundamental point that our political ambitions must be structural, not individual.” In response a professor, at the University of Ottawa, coincidentally, claimed that I was advocating for findings of criminal guilt based on an accused’s overall moral worth. This was not what I was arguing. Indeed, I don’t even know what moral worth means, but this caricature of my position itself tells us something about method and legal imagination. To this professor, seemingly, any critique of law must be a critique of its processes. To be radicalized by an acquittal must mean a desire for more incarceration. And therein lies the methodological error. I was not critiquing the presumption of innocence, I was critiquing its differential application. And I was not calling for an individual assessment of an accused’s moral worth, just the opposite, I was rather rejecting an individual lens precisely because it can obscure how racial subordination is, most importantly, a systemic phenomenon. Fundamentally, his critique was talking past my argument because what he understands as law, and thus as critique of law, is much narrower than my own understanding. To return to where I started, we are simply asking different questions and seeking different answers. This is in a sense methodological divergence in action. The methods I’ve described today ideology, context, and narrative, are just some of the methods I use to ask my questions and seek my answers, but I’m very happy to discuss these methods further and to learn collaboratively with the amazing panelists and moderator that I’m honored to share this virtual stage with. 

Thanks very much Professor Sealy-Harrington, that was, um, extremely unsettling and interesting presentation of your alchemy theory, and I look forward to further discussions.  

So I think um, perhaps it might be useful, since we have a little extra time, to ask our two panelists if they could ask each other one or two questions about the comparison between their own approaches. Um, while you’re thinking about that, because I know I’ve put you both on the spot, um I’m just going to ruminate for a couple of minutes about my own thinking about critical race theory. Um, taking from Dr. Sealy-Harrington’s comments about asking different questions, I guess I would fall to that immediately and say that, um, I began my research in Canadian legal history asking questions about “where are the women?”. And I didn’t know what answers I would find, I guess um the second part of Joshua’s comment is that you’re seeking different answers, and I would have had to say that my ideology was feminist and so, I was not looking to find, I did not assume I would find, I did not presume that there would be equality in law between men and women. I assumed I was going to find subordination. So I had an ideology, and of course when, when you come, I would argue that if you’re not feminist you’re anti-feminist, in which case there are different questions and different ideologies at play, and different answers that you’re seeking, but the mere re-development of questions, I think, is what differentiates the critical analysis, and this used to be CRT, right, critical re- uh, critical legal theory, that was its initial name, the crits they were called, and now it’s critical race theory and I have moved from asking where are the women to asking where’s the race? What is the race of everybody I’m studying, um judges, lawyers, litigants, witnesses. Ask the race and if it’s all one – white, ask why. So that even in legal structures that have built themselves to be all male and all white, that’s not the end of your race analysis, what you say is: what does it mean that somebody in the room is white? What does it mean that somebody in the room is not? and how does that affect the arguments made in front of a Supreme Court? How does that affect the ways in which the arguments are made? And how does that affect the answers that you’re going to get from those judges? Which is not to say that racial identity or gender is determinative fully. I can find and have found endless examples of some of the early women judges who ruled against women; some of the early male judges who ruled in favor of them, and then if you move along to race some of the same answers will start coming up, it’s not they’re not tightly bound categories, but the mere asking of the question alters what you find. And, uh, what is unsettling for me is how often we forget to do that, so that we teach our law as if it were a series of doctrines, a series of philosophical principles, un- untethered to gender, race, class, disability, sexual identity. And um, and I think as soon as we ask those questions – where is that element in this story? Where is that in the argument? – we’re going to unmask a whole lot of privilege and inequality that’s not visible earlier. It’s always visible, of course, to the vulnerable people but it’s not visible to most of the decision makers in law. Um, so now we’re going to flip this over to, let me start first with Jamie, um and ask if you have a question or two of Joshua, and then I’m going to ask Joshua if he has a question or two of you.  

All right thank you Constance and thank you for your thoughts. Um I just wanted to say that I found uh Josh uh was able to articulate better some of the things that um I think through with my work, and the first thing is this idea of narrative. And so um in Ghost Citizens, I actually infuse a lot of my own personal narrative and my own experience, um from having intergenerational trauma from statelessness, and um recently the peer review of the books came the book came back, and one of the peer reviewers noted that the narrative that I had about my own personal connection and my family’s connection to statelessness was quote “campy”. And I guess I want to say to everyone here who is contemplating on using narrative to push back on that, I found it, I found it enraging to have to read a peer review in the year 2021 of using this method to explain the inception of the research, or how I came about interrogating these questions as campy, and it was um and I guess I would just say that there is a lot of um resistance to using critical race theory as methodology today as we all know, and and and to acknowledge that and to say that we need to to push back on these kinds of things and be aware that when we are doing these kinds of work, that we will be confronted with all kinds of responses to that. And in relation to what Joshua is saying with regards to ideology, I think you know, I do also um think that my work presented in this way, is expressly political in that sense, you know, and to acknowledge what he said about, um, obscuring and isolation. And I think one of the things that was so alive for me is when you know talking to stateless persons they said, they kept telling me it was just me, that it was just my case, it’s an anomaly, um but then the more people I talk to, the more we all started to see a systemic problem. That this is a structural issue that has isolated certain groups of racial people from citizenship, right and that this is not just you know um, uh you know uh, you know legal reasoning gone awry in a singular case, um but that there are structures behind why various groups of people are experiencing things differently than other groups of people based on race. So um, I guess I just wanted to maybe ask uh Josh, uh Joshua a more personal question about: how, have you seen this kind of resistance to your own kind of scholarship in terms of your peer reviews? how do you respond to that? how do you supervise students going through this? And I guess I just want to say I take a lot of catharsis in reading other people’s experience of this, and I wanted to pump a book actually called Dealing in Desire by this woman named Kimberly Kay Hoang, and she actually has a whole appendix on methodology and in that section she talks about how she was discouraged from researching, um, sex workers in Vietnam, which is where her family’s from, um because she would be tokenized, because she would then be seen as an area researcher, and I guess I just wanted to ask Joshua how you deal with that, do people think you’re working on the fringe? How do you respond to these kinds of things? and how do we fight back against this notion that we are only doing um you know fringe research, or or something that shouldn’t be part of the canon I guess, you know that we see law school and the kinds of education, the kinds of research that are being um promoted or supported in certain ways and to get your thoughts on that, and how we guide students that we are supervising doing this important work.  

Uh that’s a great question, um and uh also thank you to uh Professor Backhouse for her remarks, um because that’s giving me a bunch that I’m now reflecting on. Um so I’ll start with uh Professor Liew’s question. I think that um, I mean yes, I’ve experienced resistance to my work, uh for sure. Um, I think that um, and I think it’s important to trace the genealogy of that resistance to hegemonic norms in the legal academy. So um, so one you know so much uh law school pedagogy uh is based on this idea of cabining and discrete analysis, um that already operates antagonistically with the type of contextual frameworks that I want to work with, um in analyzing the law’s relationship with racial hierarchy. Um so when I was studying law already at uh in my initial J.D. studies, there’s a tension and how you’re learned to, and again nothing I’m saying is, this is not the first time anyone’s saying this, um there’s a tension in learning to think like a lawyer and then trying to think like a critical race theory scholar. In many ways they’re uh you know operating at odds with one another. Um by “think like a lawyer”, I mean the conventional understanding of thinking like a lawyer. So um, already in legal studies I experienced kind of a uh tension between my critical instincts and how legal studies trains, or you could say untrains, certain forms of thinking and critique in law. Um, early in my academic studies, some, not all, but some senior uh scholars and admin in Canada uh cautioned against critical approaches and focus on you know real rigorous scholarship, um I also consider that ironic, I can think of few things more complex and rigorous than trying to grapple with uh law’s operation, in uh, and contribution to culture and society. Um I’ve experienced formal opposition uh at the Law Society of Ontario from a group of benchers who uh excerpt from my tweets uh to voice opposition to critical race theory, which they consider to be a scourge overtaking the legal academy and legal regulation in Ontario, um not that I’ve ever heard of critical race theory actually at the Law Society of Ontario, um so there’s that as well. Um and you know one thing I want to say, and I kind of say this to my own students, you know, I think that it’s helpful to talk about different uh moves, and themes, and arguments, but I think part of how these arguments kind of break down is in failing to acknowledge how much imbrication there is between different uh fields of inquiry and law, um so you know you know I’m teaching legal theory right now to my students, I’m always kind of putting in conversation critical race theory with uh you know H.L.A. Hart, um because you know there isn’t uh you know, these aren’t identical traditions, um but if Hart talks about how the institutionalization of law gives a rise to potential oppression of groups, um you can just see critical race theory as an elaboration on that in the context of racial hierarchy. Um these aren’t, you know, fully irreconcilable understandings or attempts to make sense of law, um and so I think often looking at uh the relationship and the themes across different uh bodies of scholarship is helpful to understand there’s different ways that people come to this conversation, but that a lot of what this conversation is is trying to make sense of how the law operates, um and that there’s a lot of overlap between different groups. Um and so you know I think if someone like Charles Mills, um who writes I’d say you know a lot of interesting, sophisticated scholarship on race from a different kind of ideological valence, but who has a lot of resonance, I think, with a lot of the core observations that you’d see in critical race theory, um and so I think that this you know need to put things in certain boxes can sometimes obscure how these different conversations interact with one another. Um so that’s a very long response to the question that you posed. Um should I, I mean should I pose a question to Professor Liew, or how do we want to proceed? Also thoughts in response to Professor Backhouse, but I don’t know what the- 

No please do pose your question. 

Um so um, I guess my question is when you describe, you know when you’re examining statelessness, um how much of, and you know this I guess relates to method in terms of the politics that you’re examining, how much of the analysis is a concern about the absence of a state that one can align with, versus a critique of the legitimacy or authority of the state itself? Um which would strike me as two different um ways of coming to the question, um that can be looked at as kind of more or less radical, and not even um that one is right or wrong, but it’s just when I think about an analysis of statelessness which I have not you know done in a rigorous sense, but that I’ve thought about because it’s come up occasionally in the context of international legal norms, um I wonder if this is you know a tension that you’re grappling with or thinking about in terms of um you know what you know what level of abstraction, or where your critique is applying, uh and from what sources it’s coming from. Um so yeah, I’d be really curious if there’s any um thoughts you have on that or, and in particular, and I think about this all time in my own analysis, any concern that the argument itself reinforces legitimacy of something that you ultimately want to subject to critique. 

That’s an excellent question, thank you so much for asking that. Um, so first I think um I want to bracket um the group of statelessness, uh stateless persons I was studying were people that thought that, that had a state, there wasn’t an absence of state, they identified a home state and they were being, they felt like they were being ghosted by their state or they were treated like foreigners, so I deal with a subgroup of stateless persons who did not migrate, they did not leave the country of their birth, they did not, they didn’t feel like they had to migrate to that place, they were not necessarily foreigners and did not consider themselves foreigners. Um, but I start, there are, there are people doing amazing research on those that have an absence of state, and um moving to your second question I do see the work as critiquing the Westphalian notion of states, right, and this kind of notion, um and to critique the fact that this phenomenon of statelessness has arisen because of the creation of states, and because of the colonialization, the violent colonialization that has not only created borders, but created the ways in which we label and identify people for the state’s purposes, and the state is a huge mechanism by which to survey populations. And so I use you know this moniker of ghost citizenship to, um, as a way to critique um what has happened, you know post, in the post-colonial world to say that colonization is still ongoing through these um legal tools and it is being reproduced and manifests um in a variety of ways. Um and then I try to introduce certain notions and you know and say this is very preliminary research, and to say that there are the very few Indigenous people that I did talk to in Malaysia use their statelessness as a way to contest the existence of certain states to say we don’t need your recognition but we have a certain kind of recognition, and yet they’re still being um, and questioning the ways in which um they are able to exist on that territory and access certain kinds of, certain kinds of things. And I think this is um going to be for, you know, future research that I’ll be embarking on, is to interrogate that further. You know, one of the things that I think is missing from the research I was doing was that it was a very urban research, but for, um, those populations in the rural areas, um we see more indigenous communities interrogating and using statelessness as a way of advocacy as opposed to um, and questioning the existence and the borders of the state and things like that, so I think that’s a very apt question and one that I fully have not grappled with, as you can see, I think it’s something I’m still trying to sort out, um and I think there are some parallels in Canada, and that’s why I, you know the research I’m doing, I deliberately have left the term Malaysia in, on the book cover and I’m not sure how people feel about that because I think a lot of it is translatable to the Canadian context for example because we are a postcolonial post-British colonial state with a vibrant Indigenous population that also contests, you know, the ideas of the state, and the ways in which citizenship is being created in their, in their name. So I think um it has yeah there’s a lot of complicated things that I certainly have not fully grappled with so that’s a fantastic question. 

Okay so Cintia, I’m going to turn this over to you.  

Great thank you so much Constance. Thank you Joshua and Jamie as well for your very thoughtful presentations. Um I’m going to read the first question that’s in the chat and you know, I am by far not the best person with chat technology either, so bear with me. Uh we have a question by Christian Alou. Christian is a PhD candidate, uh I don’t see you right now Christian, but he’s been with us at the schools of methodologies maybe the second and third one, so here it goes: thank you to the panelists and for the organization, I’m sort of translating here, forgive me if I get it wrong. What do you think of this fringe of the literature that affirms and presents critical race theory as a tool of exclusion that would create uh categories in society and that creates um categories of oppressors and oppressed, and what do you think about those that qualify it as a serving exclusion rather than inclusion? Or creating l’égalité raciale substantive, so substantive racial equality. 

C’est parfaitement ça.  

Merci Christian. 

Um did you want to respond Jamie or-. Um so yeah so this is a common critique of uh critical race theory, um I think it’s, so there’s two things that are being described here that I think are uh from my own standpoint plainly incorrect. Uh the first is the idea that critical examination of race is the thing that creates race, um rather than empire, rather than uh you know state-sanctioned racial subordination, uh rather than the Indian Act. Um right so there is the idea that somehow CRT is the thing creating race as opposed to race having been created quite clearly, and CRT examining that, um I think is uh a full response to this uh critique. The second thing I’ll say is, um and it’s the same response with respect to uh, and there’s an alternate phrasing, uh CRT as divisive or polarizing. Um that division was already created, right so if you look at racial stratification across North America, you know Indigenous people are not being divisive, their 80 per cent plus incarceration rate in Manitoba is what is divisive. Um Black people in Toronto aren’t being divisive, uh the fact that a Black man is 20 times more likely to be fatally shot by police in Toronto is divisive. Um so again it’s a category error, um these things already exist, uh and CRT is a method that examines their existence and seeks to change that existence, um so I just think it’s uh it’s a critique that um fundamentally misunderstands how ubiquitous race and racial hierarchy already is. Uh and to you know to riff off of uh Professor Backhouse’s point from earlier, this is the same critique that was made of uh feminist legal theory, right, you know why are- why are all these women you know upsetting everyone and dividing us when we can just all be happy in a liberal paradise. Um and this uh this critique misses how gender subordination already exists, right, how it’s ubiquitous in society. Um people who want to talk about it aren’t divisive, uh people who don’t want to talk about it want that division to be reinforced and sustained. Um so I think it’s just, it’s an upside-down argument is how I would respond to it. 

If I can just add quickly to that, you know these kinds of critiques kind of reveal a kind of fear as well you know on the part of those that are expressing this kind of criticism. And I don’t quite understand exactly what that fear is, but I understand it as you know um a fear of uh losing some sort of um positionality, um you know, and um, and I think it really is, you know, a close-minded approach to even looking at what exactly critical race theory is doing, you know the whole premise behind critical race theory is to understand the experiences of people and how they experience the law, and this pers-, this criticism I guess I would say is um in some ways excluding that and, you know, who, what kinds of exclusion is being feared or talked about in in this kind of criticism is revealing as to which groups of people are being prioritized in terms of what is excluded and who isn’t. So I’m not being very articulate now, but I guess this criticism comes from a certain positionality, um and the fear of exclusion in the sense of vis-a-vis what and who, it needs to be asked.  

Um I just want to build off what uh Jamie just said too which is really important right, there’s, you know, which exclusion are we talking about? What’s so often missing in these conversations is inertia, right, so it’s like you come to what is now called North America, you take all the land, you bring a bunch of slaves, you subordinate groups for centuries, and then you say discussion of race is divisive. Um and right like it’s actually such a galling position um to talk about a relatively rare academic field as being the seed of racial polarization, and not, with no reference to that history. Um it’s, you know, it’s an indefensible position, right. Like obviously any racial division that exists is at least primarily a product of imperialism. Um and if you’re not at least talking about both of those, I can’t take the critique seriously. Um because that’s so obviously at the foundation of what critical race theory is talking about. Um and, you know, I’ll also caution against this caricature of what critical race theory is about, there’s a lot of you know, there’s a deliberately manufactured and well-funded moral panic being currently generated in the United States, and to a certain extent in Canada, about critical race theory. Um and part of that characterization is that it is a field that uh adopts an essentialist conception of race, um which if you read any critical race theory, is again we’re in the upside down, it’s the opposite, right like critical race theory, and other critical fields of inquiry in relation to race, are the ones who tell us about the social construction of race, precisely because it was the bio-essentialist account in the context of gender, in the context of race, etc., that was one of the primary means for the justification of racial subordination. So you have to track these arguments carefully, because so often they’re predicated on a fundamental misapprehension of what critical race theory, what feminist legal theory, what Indigenous legal theory are all about, um which is actually, and it’s not just that they’re misapprehension. They’re so often an inversion, you know that’s what I mean about the upside-down, like there’s this literal opposite argument being made, this is my exchange with the University of Ottawa professor right, there’s this literal opposite argument being made, um and that tells you something about the ability to respond to the cogency of these arguments, when so much of the response is predicated on pretending they’re making the opposite point. Um so I’ll end there. 

I just wanted to uh say to Joshua, thanks and as well to Jamie, thank you for your answers. And I suppose one thing we should be looking at is, you know, what is the, what are the motivations for these uh knee-jerk reactions that people get, you know, and I’m balancing my knee as I’m doing it, um you know, the visceral reaction that they, you know, that they have when we talk about critical race theory, and what makes them react so. Penelope, you have your hand raised for quite a while, and then we’ll take Justine. 

Thank you Cintia, and yes my hand was up for quite a long time, and my virtual hand is tired so, no just kidding. Anyway, thank you very much for your both incredible presentations uh and also for what you talked about Constance. Um it’s uh, I have a couple of questions, and I also- I have, Joshua I have your paper I downloaded a while ago when I saw it on Twitter about The Alchemy of Rights and Jamie I want to, uh I’ve said this before, I’d like to read your manuscript as well. Super interesting uh work and so important. Uh I guess I had, I was going to ask a question about critical race theory being weaponized in the U.S. politically but we’ve already really touched on that so maybe it’s not worth it. Um uh so, but the other question I had was, I’ve used in my own work um third-world approaches to international law in order to critique the structure of the international legal system in terms of you know protecting and facilitating business activity. Uh and so uh, I know there’s a paper that James Gathii wrote recently on the relationship between critical race theory and third-world approaches to international law, but I don’t know if either of you have thought about uh that relationship at all and could you know say something about that. 

Sure I could go first I mean, so in my own work in statelessness, I do, I do a bit of a critique in my manuscript about how much of the international, especially human rights, discourse and frameworks are Western-created, right. They are in, you know, and their uptake in non-Western contexts is telling, you know, especially certain human rights conventions, the parties to it are mainly western countries. And so it speaks to me um in a sense that there is, you know, different understandings of what international law is, what kinds of obligations different communities want to take up, and different approaches to how they want to structure, legally, their communities. And I think you know, in this sense I think there is much to learn in these kinds of contexts about why there is a resistance to these Western notions of law. You know, despite the fact that many of them use the colonial um common law approach to governing themselves, right. So for example in the countries that I study statelessness, the wider project that I’m going to be working on then in the next five years looks at countries like Myanmar, um Malaysia, India, and they’re all, you know, former British colonies, and they all have very segregated racial identities with regards to citizenship. And I think it’s very telling that also these states are not adhering or signing on to specific kinds of human rights conventions, um and that there are different kinds of rhetoric being used with regards to why, how law is going to be deployed and the rule of law there as well. So I think, you know, all this to say is that I think, you know, what I guess you had um, the previous author you mentioned, James Gathii, third-world approaches international. I think there’s much to be gained in terms of why is it, why is it that current approaches to international law are not providing, you know, recourse for certain kinds of oppression we’re seeing in certain parts of the world? And I think we need to interrogate, you know, the structures there as well, you know, the kinds of structures that the Westphalian state has brought, that colonization has brought to, um through the legal tools that are reproducing and creating new kinds of oppression in these states, and from the perspective of those that are living through it there. 

Yeah so I think that um, I, you know, I have thought about the relationship between CRT and TWAIL, um uh and as have others, uh you know, Makau Mutua’s What is TWAIL uh article is a great short piece that specifically talks about thematic overlap between uh TWAIL and critical race theory. I think that to frame it, and with reference to methodology and the points that I made earlier, um you know when I talk about context, um internationalism is part of that context. Um our context isn’t limited by the state, um and our context at times needs to look beyond the state, um and you know, arbitrary geopolitical borders uh to make sense of particular phenomena. So I think that um how CRT values social context in the assessment of legal institutions, I think that at times that context, uh not only should look internationally uh, but must to really understand what’s going on, um where power, you know, resides uh and how it’s being used and how legal institutions are being instrumentalized. Um same thing with ideology, you know, I talked about express politics in my scholarship, um alignment with social movements um I think if you have a non-imperialist, you know, no critique of imperialism in your assessment of not just international but domestic law, it’s an incomplete analysis. Um, you know, I start my legal theory course with um Indigenous legal theory, and uh you know critique of colonialism, um because what is a discussion of Canadian law uh in the absence of discussing the various lawless ways in which it was composed. Um and I don’t even mean from like a left standpoint. I mean just like for theoretical rigor. How can you talk about legal theory and not talk about colonialism um in a colonial society? So um you know I view TWAIL as extremely instructive. I have not read enough of it. I continue to read and engage with it more, but in general you know and this returns to my point earlier about camps, you know, um I think that I am drawn to theoretical perspectives that I think help to make sense of law as a social phenomenon, and so uh depending on the issue that I’m looking at, uh TWAIL might be integral to understanding what’s going on, and so you know I draw on it um when I find it helpful, and increasingly that is often. Uh so yeah I think there’s lots of thematic overlap, um and you know, to be clear, I don’t view it as a as a collapse between fields, I think that TWAIL and CRT are not identical, but I think collaboration between those fields is extremely analytically and politically constructive. 

Thank you both. Thanks. Justine, do you want to go ahead?  

Yes thank you. Thank you both of you for your presentation, I found it very very interesting. Uh I’m, uh I’m a doctoral student here at the Faculty of Law, and uh I study basically how children with special needs are taken into account in the fight against climate change at the United Nations level. And in the, in the research that I’ve made I have found that um a lot of children are not with special needs, so with disabilities, are not actually registered in the civil registries in their countries because of different reasons, shame or, or like just, different like reasons that the communities, like pressures that the communities put on the parents for instance. So I just guess, I don’t know but I just guess that these people are part of the people who are stateless. Um and so I was wondering, uh Professor Liew, if in your studies you have combined critical race theory with disability studies for instance. Or, if yes how, because that’d be very interesting for me to know. And if not, why? Um just because it seems to me that from just what I heard today, uh critical race theory would not really allow to make these people visible, or not completely visible, and would not completely explain either why they are in this, they would be in this situation of statelessness.  

Thank you for that question, and um your research sounds super interesting. Um I have encountered um cases where children were not registered and therefore were stateless as a result of their birth not being registered. It is a humongous issue that has been raised, and in the statelessness literature it’s been often characterized as a development issue. An issue where, you know, it happens mostly in poorer um third-world countries because of the state’s capacity to provide this administrative task. But in my own research I critique that, and I critique that by arguing that the state has a humongous capacity to survey the population, and that more often than not, from the experiences of stateless persons themselves, they are facing active and constant barriers to registration and to obtaining citizenship. Um I haven’t encountered too many cases where it involves disabled children, and I don’t see why not a critical race theory/methodology wouldn’t be helpful for research in this regard, because you know, as talked about in this session, you know, the kinds of things that can be used such as, um you know, interrogating the context under which these children um exist and live and have tried to obtain legal identity. Narratives from their families and the children themselves I think would be useful to understanding why is it that they’re not being registered? What are the barriers exactly? Um and also you know, just to um, I think that that kind of methodology of doing that kind of ethnographic work, you know, of going to the source of, um you know, as you said you suggested that there are some cultural caps or other reasons of shame associated with disability, but to really interrogate and question that through the ethnographic interviews that could take place with regards to different people who experience this, the children, their parents, their advocates, persons that provide services to them, um community members, you know all of this I think is part and parcel of the kind of methodology I used in my research, and which I consider to be central to critical race theory. Um and so I would certainly invite you to think about that and incorporate that somehow in your research if you are interested. 

Thank you. 

Can I uh speak briefly on this too, Constance? 

Um so, again not to collapse but to collaborate. Um you know, like I said I have a recent paper on, you know, using critical disability theory to look at a recent Supreme Court decision on addiction, and I think um to make a similar point, I think there’s a, you know, I come to legal analysis with a critical sensibility that unsurprisingly is sympathetic to a lot of uh typical arguments in critical race theory, but also in critical disability theory, um more so than disability studies. Um and so I think that um you’ll see interesting themes when you engage with that scholarship and if you look at scholars like Jamelia Morgan, um there are specific scholars trying to develop a kind of dis/crit um mentality towards analyzing the intersection of race and disability hierarchies that I think is really interesting. Um, I also think you know this brings me back to Constance’s earlier point about um not engaging with the trolls, to paraphrase her. Um and you know I’m very sympathetic to that observation, and actually have been doing a lot less online engagement because I reached a similar conclusion. Um but also don’t want to be too closed off to, and I’m not saying you’re saying this, um but don’t want to apply the principle too forcefully and then be closed off to some other intellectual traditions that I think can be really instructive to nourishing my own work. Um and so um you know, I view critical disability theory as one of those fields, I started my doctoral studies primarily with the focus on race knowing I want to do some work in disability, but then after being a teaching assistant in uh Elizabeth Evans’ Disability, Law, and Culture course, and reading a lot of disability theory, um there’s a ton of really helpful insights to think about law, and ideology, and context that I now draw in my own work. Um and as just one example, you know social construction does a lot of work in race and in disability, um and they’re distinct analyses, but they raise interesting questions about the parameters and definition of social construction and how we engage with it and social models and interpretation um that I think are helpful in comparison. Um you know, I think we learn a lot about the edges of our analysis through juxtaposition, and so we have to recognize the limits comparison, uh but I think it can also be really really helpful. Um I think a comparative lens just should be invoked more generally, uh in uh in legal studies um because part of how formalism kind of indoctrinates us is through an examination of a particular legal system that we take for granted as one of many. Um and I think the same can happen with respect to different academic methods. You know, I’ve learned a lot about teasing out the boundaries of my conception of racial social construction through looking at social models with disability and thinking and rethinking about what it means for something to be social. Um and so I think there’s a lot of really fruitful comparisons to do that kind of analysis with, and in my doctoral studies actually one of the very specific things I’m looking at is the um mutually constitutive nature of race and disability, um how disability so often has been weaponized as an alibi for the maintenance of racial hierarchy Um how a lot of old uh you know so-called disabilities, like feeble-mindedness, were just weapons of white supremacy. Um and that again comes back to this idea of social context and analysis. Um if you just read a case in the abstract or a statute in isolation, um it’s harder to see how in fact one of the really crucial things that’s happening in this particular moment of identity politics, is translation between fields of power and identity with the view to obscuring the maintenance of social hierarchy. Um and so you can see this in the work of you know the, uh feminism, and you know, in the context of carceral feminism, um and you can see this in other contexts with respect to a need to be alert to the different ways that power can be articulated. And so in that sense, for that specific analysis, you actually can’t do it without comparison across fields, precisely because if you can meet out racial subordination through disability, ideas of disability or disability subordination through ideas of race, um then that particular analysis, in that particular analysis it’s essential to look at both, um and so yeah I view them as uh mutually instructive fields in my own work, and I think it’s uh something we have to be more alert to um as power continues to you know preserve through transformation, um and continues to evolve over time to resist detection. 

Thank you. 

I just wanted to kind of note too that it’s very poignant that Constance is, uh is uh um, moderating this panel because without her intervention I wouldn’t have written this manuscript. I remember one time that uh, Constance is a great uh, has, is a great uh mentor for anybody who ever wants to ask her questions about uh research and where to go, and I had confided in her that, oh I’m just writing a few articles from my field research, and she’s like no, no, no that that’s a book. Um so I think, you know, if I can just encourage people to talk about your work with other people because otherwise, this would not have happened, um you know, without that, and I think that uh like she said earlier that community is really important, and I think um finding people who nurture your research, who can move it forward in in different ways, that I think is an important thing, so I just wanted to make sure I plug that in there before time runs out. 

Uh so I’ll jump back in, and thank you, um and Joshua for a very exciting new directions of research. And um I know the kind of energy, and time, and contemplation, um that is required to push a new field like this, and it seems to me that you’re both doing really, really exciting work that will help to draw other people in, and will help to build a community, and will help to make it unthinkable really that one could attack this area of research as somehow illegitimate. I think on some level feminist legal analysis got, has got almost to that point, not fully but closer than we were. And uh now’s the time, now is exactly the time for critical race theory to accomplish the same thing, uh which is why you see so much resistance. And I was struck um by your comment uh Jamie about, what is it that they fear? They think, they used to use takeover language about feminists, which was hilarious because we had like one woman on the Supreme Court of Canada and all of a sudden we’d taken over a nine-person bench. And it’s almost risible, you really don’t know how to answer back, but I think it’s indicative of how fragile the structure actually is, and that is good news for us. If they think one feminist on the Supreme Court of Canada, uh one anti-racist activist, one Indigenous legal scholar on the Supreme Court Canada can upend our law, uh one only hopes! Um so I think we should take it as a compliment. 

Joshua you had a response.  

Yeah, no I just wanted to, this is part of why uh, and again I don’t think you’re arguing against this, but this is part of why I find these comparisons really helpful because a lot of what I think good theory is, uh or one of it what it does, is make sense of patterns um in law and in life. And when you see the replication of certain discourses, uh it’s instructive. So, you know, I use resistance, you know historical and contemporary, uh resistance to feminist legal theory as an instructive comparison for contemporary resistance to uh critical race theory. Um the same thing happened, right so McGill last year posted for a critical race theory prof um to shift its faculty complement from four to six per cent representation of critical race scholars. Um and the co-founder of the Runnymede Society, you know, tweeted about how this represented an ideological shift in the academy, uh that was gonna have replications for client representation, uh and was ultimately gonna, you know, operate to the detriment of law schools and legal practice. Um it’s the same, you know this is the same argument. Um there’s, and you know uh, there’s like an, there’s an exhaustion in having the, you know and this is what I stood against, it’s like I just can’t have this argument again. But there’s a, there’s a deliberately manufactured exhaustion, which is- Um you know, I would just tell people, you know, look at the faculties across Canada. How many professors have critical race theory even listed in their bio? How many faculties offer a single course in critical race theory? How many offer one that’s not taught by an adjunct? Um this is most law faculties in Canada um, and that’s, that speaks to two things: one, that speaks to the obvious hyperbole of concerns about critical race theory overtaking the academy. Um but two, it’s an indictment of the academy. Right like, you know, this is this is a problem, and uh it’s, you know, we again return to the upside down where people are concerned you know, Law Society benchers are concerned with a lot, with critical race theory overtaking the legal academy, um when it’s just the opposite. When a colonial state hundreds of years on, still has such fringe engagement with law and racial hierarchy. Um it’s actually astounding, it’s such a profound silence in legal education. Um you know it’s, I loved my J.D. studies and had so many good professors. It’s wild to me um how little race was discussed. Um I took an international law course and you know we didn’t mention Palestine a single time. Um you know these are these are issues that I think are totally unacceptable. Um and I think that uh it’s, it you know, it’s a failing of the academy. It’s something that we have to talk about more um and it’s a silence we actively contribute to. And this circles back to my point earlier about um the antagonism between conventional legal pedagogy and critical approaches. Um you know how can you expect lawyers, who then become judges, who then become politicians to do the kind of analysis that we consider essential, when it is antithetical to how we train legal reasoning? And not everyone, right, like uOttawa, has lots of brilliant, critical professors, but um it’s certainly a dominant part of how we talk about legal reasoning, um and we have to teach it a bit, but to teach it as objective as opposed to as genre, I think, is a really fundamental failing. Um and I say that to my students a lot, you know, you have to be able to reproduce the style of legal advocacy, but that’s not because it’s actually a thing, it’s because judges are used to it and lawyers are used to it. It’s how we talk about things um but that’s not because it’s removed from politics, that’s not because it’s some chemical way to analyze things. Um and I think the fact that I, in some ways, had to come to that independently through graduate legal study is a profound failing. Um and I say this with immense respect to many brilliant professors that I learned from, and specifically feminist legal scholars who I learned a lot from in terms of gender subordination and law, but I did not learn a lot about race and law and I think that’s a problem. 

Thank you, Joshua.  

Pierre, did you want to go ahead and pose a question or make a comment? 

Yes, I have a question, which kind of comes from uh the discussion of the pushback, and also based on the comments about building community around basically the type of scholarship that you do. And so my question comes from my own kind of work that I’m doing, that I’ve been doing for the past year and I’m continuing to do, and that stems from a lot of work in trans studies that relates to methodologies of care. Which is basically built on the fact that this kind of critical work often that centers on very personal issues that are either directly affecting the researcher that’s researching this particular question, or at least like close enough that it’s very effecting, and therefore tends to have a mental toll, a physical toll, a lot of difficulty, a lot you know, dealing with the trolls, like in the sense that if you were to do plain old boring, sorry for people who do that, but the doctrinal analysis, from my perspective um, you’re not having to deal with this, like you’re not in that framework of constantly being taxed personally, in a sense, from having to do what is very important work, and also like the the work is not recognized for the effort you have to put into it, in a sense like, it has the academic value that we ascribe to it, especially us inside the academia, but it’s not recognized that, in a sense, the same article might have taken so much more energy, so much more time, so much more effort to produce, than something else. So in a sense, my question is more, maybe, difficult to answer and as I’m grappling with this myself, is in a sense, how do you integrate this idea of care or methodology of care in your own work and try to grapple with this um yourselves, and maybe, like, with people you’re trying to help, with people you’re working with, or people you’re mentoring, um yeah. 

If I can just maybe add a little bit, I think, you know, now that I guess it’s kind of weird to now think that I’m not no longer really a junior scholar anymore, but now that I’m in this position, I kind of think about very carefully about who I mentor and to give space to, you know oftentimes the people that come to my office are racialized students, and so I give time and I mentor directly people in my community like that. The other thing is when I get a request to peer review a piece, you can tell from a piece of what methodology they’re using, what they’re researching on, and I take the time out to do that, and I say no to pieces that I could peer review, but um I’m going to ensure that I get the pieces that I think, you know, might be received hostilely elsewhere. You know, so I’m very strategic now in the choices that I make as a scholar, about what I peer review, who I mentor, and how I spend my time, and I think, you know, because our, the academy is meant to be done things in, anonymously, you know, these peer reviews and these kinds of things, you know, I think we have to pay attention to that because there’s violence that happens in these these anonymous kinds of interactions right, and I think, as a scholar, that is in a place where I’m not in a precarious situation, I kind of take more um, I’m more aware of that. And for those of you who might not be there yet, you know, I guess I would just say to be mindful about the the ways in which you interact with people at conferences and things like that, and just um, you know, there’s violence happening in conference rooms, and in panels, and things like that, and to support one another. You see something awry, you know, I really appreciate the times where, I can tell you there was, you know, times where people um did not act in professional ways in response to my work and where I reacted very emotionally and I remember those times that people came up to me, junior scholars they came up to me after the panel and said I saw that, I acknowledge it, and I want you to know that it wasn’t right. Do you know what I mean? So I think at different junctures in our career we can support each other in very meaningful ways and in ways that do not have to compromise your positionality, or to, you don’t have to do it in a way that broadcasts it, I guess, publicly or anything like that. And I guess I would just say to be strategic and mindful about wherever you are, that you can provide that support for someone else, or you can ask for that from someone else too. You know, and sometimes if I’m on a panel, I will go to a moderator and be like, you know, this this might open up um some interesting comments, can you make sure, you know, be proactive about how you want to engage in the academy, and protect yourself and in that way, so just to think about that. 

Can I briefly build on that as well? Constance? Um so yeah, I have lots of thoughts about energy and academic output in the academy. I think that um one point which is like a common critical uh feminist, etc., argument is uh examining merit. Um I think that, um, and this is something that the, you know, that the academy has to reckon with and engage with. Um when you think about, you know, the production of conventional scholarship versus, you know, uh you know, living in a moment of, you know, profound trans subordination, where you feel like you want to write something shorter, that’s not peer-reviewed, to like get ideas out to defend people’s livelihood, you know, um I think this is something that we have to think about in the academy, um and you know, when you look back at scholars who are in community versus not, um and examine their scholarship and what they talk about and what their priorities are, um that’s another thing that we have to think critically about. Um you know, Jamie talks about Mari Matsuda, um who does a lot of really excellent scholarship precisely because that’s one of the things that she prioritizes in her scholarly agenda, um and how much do we value you know movement work, community work in the academy um is something that we have to reflect on um in terms of, you know, the scholarship that we consider um legitimate for the standpoint of advancement, tenure, etc. Um and you know, and this merit argument reproduces in the context of legal theory, you know, the Supreme Court Law review article I have coming out on critical disability theory um talks about Justices Le Dain and Gascon, and how uh this kind of posture of pity towards disability gives people a sense of the incompatibility of disability with the judicial office, um which when you look at the judicial function to the lens of RDS and other Supreme Court cases, um makes no sense. Actually, you should, you know, by virtue of disability they brought something that was specifically valuable to the Court, um and that should have been cherished and privileged and specifically protected because of the unavoidable political operation of the judiciary uh specifically on questions of disability, which our court handles very poorly. Um and so uh that’s merit. Two, in terms of the academy and productivity, um I think these are complex questions uh from the standpoint of ableism, from the standpoint of capitalism, um that we have to think through, uh you know, I can’t answer the the problem, um but uh I think critical theory brings a really helpful lens to analyze and critique those norms in the academy. Um and then third, you know, all of this discussion makes me think of this kind of like liberal speech around, uh uh, or liberal discourse around speech and academic freedom, uh which is even relevant at your institution. Right so um, you know, and I, you know academic freedom matters a lot, and I get that, I get that especially for scholars critical of racial tyranny. Um but if you’re a Black student and your professors dropping the n-word in class; if you’re a trans student who’s being repeatedly misgendered, um this has systemic disparities, right. We’re talking about uh the need for resilience, um and I think that’s right and, but something that crucially needs to be paired with an acknowledgement of systemic disparities that create hurdles for different students. If you’re a Black student who experienced that or a trans student experiencing that, um what’s the likelihood that you’re going to enjoy your legal studies, that you’re going to embrace legal studies and legal theory, that you’re going to want to continue to do work in law at all. You hear from minority, you know, minority students all the time talking about how they hate law school and want to do anything but law afterwards, and I get that, but uh when the law performs a really significant gatekeeping function in society with respect to power and its negotiation, um this is where we have to have, this is where we have to grapple with the more complicated conversation, which is not you know censoring everything profs say, but recognizing um that speech and academic freedom and these broad principles are things that we have to grapple with. Um and this is similar grappling as we’ve done before, right, this is what the feminists said about sexual harassment, um and how it’s not just a speech issue, it’s something we have to talk about because of the inhospitable environment that’s created in the workplace. Um so we’re having the same argument again, but just in a different context. And I think um, you know, I’m, you know, these are principles that I think are really important, um but none of them are absolute, and I think invoking the principle as absolute obscures the actual political debate that we need to be having. Um so lots of thoughts, um and no, I appreciate that question, it’s an important one. 

Jamie you wanted to, you wanted to add to that.  

I know we’re running out of time but I just want to echo what Joshua just said. I mean you know coming from an institute where we did have to take time, energy, emotional labour in coming up with a statement to respond to a serious issue in academic freedom, I think I don’t have an easy answer about how do we, how do we mark that as administrative work, right? And I think um, I think, you know, the fact that we have to do that means that um it’s an important aspect of the fact that there are structural problems within the academy as well that we have to keep working on, and this is why, you know, I think um hiring more persons representative of our student body, of our society, is important, and um acknowledging that kind of time and people in these kinds of administrative and leadership roles need to move the needle a little bit on recognizing the work behind that. Something that, you know, I’m trying to do behind the scenes, but it would be great if more of us were doing that and as a call to people who are already in the academy or in leadership positions to be mindful of the labor that it takes to do this, and the unsung work that people have to do. And I think a lot of work has to be done, a lot. And a lot of it is not just doing the work but also dealing with the backlash that comes with that. So  

And that seems like a very good spot upon which to close. Um thank you um to Jamie for your work, and the forthcoming book, and all the research that’s going to come afterwards. Thank you to Joshua for your engagement and your teaching, and your scholarly energy that goes into trying to tilt an upside-down world into a better shape. Um I look forward to reading lots more of your work and meeting up with you at conferences and uh and sharing more ideas. Thank you to Penelope, our Vice-Dean of Research, who spearheads and organizes so much in terms of the Faculty’s approach to research. And thank you to Cintia and Drew, who have done a lion’s share of administrative work in imagining what a, what a workshop like this could be, and who might present in interesting configurations, and helping us out with chat and moderation. So uh thank you to everybody, uh it’s been a lovely afternoon, and I hope this is the first of many discussions. 

Thank you, thank you Constance for being here today and with, to help us facilitate these conversations. Jamie, Joshua, thank you for your time and your presence. We shall see you tomorrow morning at 9:15 uh for the opening remarks by Steffany Bennett, Special Advisor in EDI to the President, and then a longer conversation with Jane Bailey and Val Steeves. I look forward to seeing you all tomorrow morning. Thank you again for being here today. 

Critical Race Theory (CRT) offers a nuanced understanding of how laws and public policies have historically been shaped by racism. By challenging dominant narratives about race and its intersections with gender, class and disability, CRT provides powerful insights into how different forms of oppression and racism operate in society.

“Critical Race Theory, like Indigenous legal theory, and third-world approaches to international law, amongst other critical perspectives, emanates from a recognition of how law can be used to reify social hierarchy, and a specific desire to identify and challenge that use with a view to improving the material conditions of exploited groups.”

Joshua Sealy-Harrington Assistant Professor, Lincoln Alexander School of Law, Ryerson University

In this video, Professor Jamie Liew of the Common Law Section at the University of Ottawa’s Faculty of Law and Professor Joshua Sealy-Harrington of the Lincoln Alexander School of Law at Ryerson University discuss Critical Race Theory from two different perspectives. Delving into her research on citizenship and stateless persons, Professor Liew examines CRT in the context of statelessness resulting from colonial governance in Malaysia. Professor Sealy-Harrington, meanwhile, explores the topic from the perspective of his research on legal theory and social change, explaining CRT approaches in the context of the subordination of Black and Indigenous people through criminal and constitutional law.

In conversation with Professor Constance Backhouse, they discuss the challenges of bringing critical race perspectives to modern academic research, the resistance they have faced, and the benefits that can come from growing a community of scholars willing to push back against conventional narratives.

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