From Incarceration to Restoration: National Responsibility, Gender and the Production of Cultural Difference
| DOI | 10.1177/0964663908100332 |
| Date | 01 March 2009 |
| Published date | 01 March 2009 |
| Subject Matter | Articles |
FROM INCARCERATION TO
RESTORATION: NATIONAL
RESPONSIBILITY, GENDER AND
THE PRODUCTION OF
CULTURAL DIFFERENCE
CARMELA MURDOCCA
York University, Canada
ABSTRACT
The Criminal Code of Canada contains a sentencing provision aimed at offering
alternatives to incarceration for Aboriginal peoples. One of the intentions of this
provision is to take national responsibility for the over-incarceration of Aboriginal
peoples. Using official documents, the objective of this article is to address the possible
meaning of national responsibility that is shaped by the emergence of this legal inter-
vention. The objective is to explore how even as it attempts to address national
responsibility in law, the nation remains fundamentally committed to an understand-
ing of colonial history in which it is not guilty of wrongdoing and hence arrives at an
official stance that suggests that the Canadian state is not responsible for the continued
ramifications of colonialism. This article also demonstrates that the practices of control
and containment which are central to the criminal justice system require cultural
difference paradigms as their ideological impetus.
KEY WORDS
colonialism; cultural difference; gender; national responsibility; sentencing; violence
IN WHITE settler societies compensation for historical injustice and violence
has taken many forms which have ranged from legal, political or monetary
compensation and/or (in the case of land claims) the return of what was
stolen. Scholars of reparations often frame reparation politics as a ‘field of
related activities’ which include transitional justice, reparations, apologies,
SOCIAL &LEGAL STUDIES Copyright © 2009 SAGE Publications
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0964 6639, Vol. 18(1), 23–45
DOI: 10.1177/0964663908100332
and also ‘communicative histories’ which incorporate memory, memorials
and historical consciousness, or, indeed, any legal or national compensation
measure (Torpey, 2003: 5; see also Barkan, 2000; Minow, 1998). One crucial
element that this ‘field’ requires is a necessary signpost in reparation politics:
a perpetrator that acts as an historical referent. Legal discussions in Canada
that have occurred in the context of compensation for colonization and
genocide against Aboriginal peoples have often been plagued by the question
of responsibility; a question about what was done, who is to blame, and what
is the appropriate legal and political response now. Janna Thompson similarly
notes for the Australian context that:
public debates that have occurred about historical responsibility and justice for
Aborigines indicate that traditional ideas about reparation are difficult to apply
to cases where it is not clear who (if anyone) now counts as a perpetrator or a
victim or what reparation requires when a return to an ante-justice state of
affairs is neither possible nor morally desirable. (Thompson, 2006)
The difficulty of applying traditional ideas about reparations in white settler
societies stems from the fact that such societies are legally organized and
anchored by the idea that: ‘White people came first and it is they who prin-
cipally developed the land; Aboriginal peoples are presumed to be mostly
dead or assimilated. European settlers thus become the original inhabitants
and the group most entitled to the fruits of citizenship’ (Razack, 2002: 1). As
a result of the denial of colonial violence, a phantom perpetrator obliterated
by denial and forcefully legitimized and consistently reinforced by law now
haunts debates and negotiations of compensation in white settler societies.
Consequently, responsibility for past injustice in white settler societies often
moves away from traditional models of reparations to a field of compensa-
tion politics often organized through rhetoric of national responsibility.
Within this rhetoric of responsibility, Aboriginal peoples are cast through
a framework that solidifies white settler entitlement to the land and its govern-
ing structures. In this framework, Aboriginal peoples are represented as being
plagued with social disorders as a result of their inability to cope with ‘civiliz-
ation’. In effect, Aboriginal people represent a menace to the white settler
legal system. This menace is understood as a menace of cultural proportions.
In this field of compensatory politics a contest is set up between reparations
politics and/or a politics of restoration, on the one hand, and cultural sensi-
tivity, on the other, whereby cultural difference paradigms are the organiza-
tional framework through which to consider the moral pull of responsibility
and compensation in Canada.
A white settler society often relies for its coherence upon the production
of a particular type of racial difference, that of cultural difference. The idea of
cultural difference has extensive colonial genealogies that are historical, socio-
logical, scientific, anthropological and political (Appiah, 1990; Gilroy, 1995,
2000; Goldberg, 2000; Kelm, 1998). As Gilroy reminds us: ‘Whether biology
or culture claimed ultimate precedence, an underlying logic expressed through
racial ontologies . . . provided important legitimation for brutality, terror,
24 SOCIAL & LEGAL STUDIES 18(1)
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