Wednesday, March 17, 2010

The Legal Narratives of a National Anthem: Part I - "In all of us command"

Like other forms of popular culture, songs have the power to confer recognition and legitimacy to certain ideas, concepts and even classes of people. Equally, through modes of exclusion, they have the power to render some (or many) invisible. In this post and others to follow, I want to examine how such processes of inclusion/exclusion (intended or not) have taken place in the context of the Canadian national anthem.

Over the past few weeks there had been some talk about altering the lyrics of the English version of the Canadian national anthem (although it should be noted it's not the first time that appeals have been made to revise the lyrics).

The lyrics are as follows:

O Canada!
Our home and native land!
True patriot love in all thy sons command.

With glowing hearts we see thee rise,
The True North strong and free!

From far and wide,
O Canada, we stand on guard for thee.

God keep our land glorious and free!
O Canada, we stand on guard for thee.

O Canada, we stand on guard for thee.

In the government's recent Throne Speech two weeks ago, there was a proposal to consider altering the line "True patriot love in all thy sons command" to a more gender-neutral wording. A Parliamentary committee would have been assigned the task of examining the issue. Two possible alterations were as follows: "True patriot love thou dost in us command" (from the original 1908 version penned by Robert Stanley Weir) or "True patriot love in all of us command" (a later articulation and my personal preference of the two). While some were rather ecstatic about this proposed change, many others were significantly unenthusiastic about any such alteration. The latter won out. Due to an "outpouring of opposition" the government decided to scrap plans to even examine the idea.

Undoubtedly, those who voiced objection to the changes latched on to two notions - the maintenance of tradition and the need to counteract what would be perceived to be political correctness run amok (the usual arguments that are used to challenge any progressive change). Of course this extolling of tradition is usually rather selective - the original version of "O Canada" written by a lawyer, Robert Stanley Weir did not include the words "in thy sons command" but rather "thou dost in us command" which was later changed to the version now sung as part of the national anthem (see Senator Vivienne Poy's speech).

For reasons that I shall explain below, I believe that a proposed change to the lyrics would not only be welcome in that it would be inclusive of at least half the population of this country and sung across the country in a variety of events, it would also be in conformity with the spirit of the values espoused in the Canadian Charter of Rights and Freedoms, in particular sections 15 and 28.

Section 15(1) of the Charter states:

Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.
Just to underscore the greater importance that equality between men and women are to receive under the Charter, s.28 states that: "Notwithstanding anything in this Charter, the rights and freedoms referred to in it are guaranteed equally to male and female persons."

"O Canada" became the official national anthem in 1980 through the passage of the National Anthem Act, [N-2]. Through section 2 of the Act, "the words and music of the set out in the schedule, are designated as the national anthem of Canada." Therefore, in addition to being an important symbol of Canadian identity, it is given official status by the state through an act of Parliament. Contrary to a statement on the government's Canadian Heritage website, it is not just the melody that is set by the Act, but the lyrics as well.

The lyric "in all thy sons command" is, in a rather obvious fashion, gender specific. It formally excludes the "daughters" of the nation - including but not limited to those daughters who fight, bleed and die for it in the military, serve it through public service, and those who compete on behalf of it on the international stage in sporting events - most recently in the 2010 Winter Olympic Games in Vancouver.

The exclusion is far from abstract. As one female Canadian doctor wrote to Senator Vivienne Poy (as the latter was trying to push through an amendment to the anthem in 2002), "I remember vividly my reaction on my first day of school when "O Canada!" was sung, and I knew immediately that, as a girl, I did not count for anything in Canada."

If the National Anthem Act proclaims the words and music of "O Canada" as the country's national anthem, there is a reasonable question whether the formal inclusion of one sex through the reference to sons, but the exclusion of the other, its daughters, deprives Canadian women of their right to equal protection and equal benefit on account of discrimination based on sex.

The benefit in question is the right to be included, to be visible as part of the national narrative embodied within the song - a song sung on a daily basis throughout the land that presently keeps women invisible while the nation reaps the benefit of the work so many millions of women render to it daily. As Canadian Senator Nancy Ruth argues (paraphrasing another): "Language is the power of the ruling class to define reality in its own terms to make invisible all others!"

The lyric in question is not only an anachronism from the point of view of the Charter and the concept of equality, the forced invisibility and exclusion of women in the anthem is dissonant when juxtaposed against the resounding accomplishments that Canadian women have brought to their country, both within government and in civil society. On the latter point, it is worth mentioning that amidst the national celebrations that emerged on account of the success of Canadian athletes who won medals at the Vancouver Olympic Games, the majority (at least of the Gold medals) were won by women.

Tradition is neither immutable nor is it immune from alteration. For example, the country has seen tremendous and important changes to the concept of marriage within the confines of the law. The gender-based narrative of exclusion embedded within the national anthem is similarly subject to and indeed is sorely in need of change and reformulation to conform with current thinking and legal norms on equality.

One of the main purposes of a national anthem is to instill a sense of patriotism and national unification around a particular symbol. By excluding one half of the population, the English version of the anthem, through the explicit exclusion of "daughters", undermines the very sense of patriotism and unity it is supposed to instill.

Tuesday, March 9, 2010

Beautiful Norms

Standards or norms of beauty are generated within and by civil society. These norms can have an overwhelming impact on many facets of our lives - sometimes with rather discriminatory and exclusionary results. This is particularly so when beauty is filtered through the rubric of skin tone and racial features. As Shankar Vedantam notes, "these factors regularly determine who gets hired, who gets convicted and who gets elected." Vedantam's New York Times commentary came following U.S. Senate majority leader, Harry Reid's ill-advised comments about President Obama's electability amongst White American voters on the basis of his lighter skin and absence of a particular African-American dialect.

Norms of beauty as filtered through fairer skin tones set normative standards about who is deemed acceptable and worthy of positive attention - e.g. as a romantic partner, as an employee, as a friend. How are these norms conveyed?

Values that extol the "superior" value of lighter skin tones are not the monopoly of any particular community. However, given my own "membership" within the South Asian community, I shall highlight some examples where the value of such prized skin tones are explicitly and unabashedly endorsed and serve as socio-legal norms.

The first are in matrimonial web sites where partners search for mates on the basis of either wide open criteria or restrictive ones. As one article by Achal Mehra in Little India notes, numerous Indians who post profiles on such sites characterize/advertise themselves as fair-skinned or "wheatish".

An examination of Bharat Matrimony determined that 57% of the profiles were self-classified as fair or very fair and another 33% as wheatish or wheatish brown.
The figures may seem incongruent in a community that hardly fits into the fair skinned spectrum on the global scale, but it underscores the widespread affinity for fair skin tone in a nation that has witnessed exploding demand for skin lightening creams in recent years. It is reflected in even the complexion choices that websites like Bharat Matrimony offer users, four of which — very fair, fair, wheatish, wheatish brown — are skewed to the white end of the spectrum and just one — dark — to the black tone., another prominent matrimonial Indian website, likewise, offers users four complexion choices, three on the light end — very fair, fair, wheatish — and just one dark.
These normative values on lighter skin tones are reinforced through commercial products and television/films. On the commercial front are the widely purchased Fair and Lovely (F&L) and Fair and Handsome (F&H) skin lightening products. F&L produces creams for both males and females while F&H largely focuses on the male side of the equation. But merely seeing information on their websites doesn't convey their purported value or message until one views the commercials advertising their effects and social benefits.

For example, in one F&L advert, a female vocalist and teacher provides music lessons to young girls. Her singing and demeanour are made to appear subdued as she is hoping to draw the attention of her male neighbour who is ignoring her. The scene cuts to the young lady in front of her mirror disconcerted about her "dark" skin. After her mother comforts her, she applies F&L and as the commercial's male narrator explains, no other skin cream reproduces F&L's results. After fully lightened our already fair singer is now much fairer. Her singing suddenly draws the attention of her neglectful and youthful male neighbour who suddenly discovers the singer in her lighter avatar.

The commercial touches upon several messages. Lighter skin produces heightened confidence. Heightened confidence in turn leads to enhanced artistic professional performance. Enhanced professional skill then draws in the romantic male interest who suddenly is enraptured by her much lighter pigmentation. There are of course a couple of other added messages. First, parents ought to encourage their daughters' attractiveness through the use of such products. Second, through the presence of several young female students, their counterparts watching on television are encouraged to watch as their elder engages in this type of conduct as though it were to be modeled.

F&L has also rolled out a similar commercial for its male skin lightening products. In its ad, a "dark" complexioned stunt man performs a death defying stunt on a motor cycle. As he takes off the helmet, the director yells cut. The main lead and light-skinned actor then steps in and the director yells action allowing him to finish the scene. Following the shoot, the stunt man coincidentally receives a text about F&L cream for men and is suddenly transformed. After completing another stunt scene, the stunt man once again removes his helmet with the director yelling "cut". The director suddenly notices an attractive and handsome man and yells action coaxing the stunt man to continue the scene with the displaced older fair-skinned actor fuming at his sudden and unceremonious exclusion. The scene then cuts to the stunt man having transitioned into a big-time film star with a beautiful and fair-skinned starlet accompanying him at a red-carpeted event.

As with its female counterpart linked above, F&L endorses fairness as a norm to live by in order to access improved career prospects, and enhanced visibility which leads to greater professional and economic opportunities as well as romantic ones.

Not to be outdone, F&H has a similar type of commercial that encourages men to purchase their product. The commercial features top-grossing Indian film star Shah Rukh Khan who in essence coaxes a "darker-skinned" (essentially obvious applied face makeup) young twenty-something to apply some F&H in order to get the fair-skinned and attractive female love interest. Having taken Shah Rukh's advice by applying the facial cream, he is confident, dressed better and approached by the ad's attractive female heroine. Although F&H's message is limited to the romantic realm, it's principal boost comes from the name value brought by one of India's top named screen actors.

Skin tone is also encoded with other socio-legal meanings that are gendered. In films, the fairer one's skin tone, the closer the analogy to virginal purity and marital worth, whereas the darker the skin tone - the closer the analogy to female promiscuity. During one segment from NDTV's "We the People" program, Prahlad Kakkar, a commercial director and producer, expressed it in the following blunt terms (starting at 3:38):

If you saw a dark and a fair [skinned] girl side by side who were equally attractive - the dark girl would represent eroticism where you would like to take her to the first hotel room that you could find. And the fair girl you'd like to take home to mommy...This is a very deep-rooted bias. My biases are towards people who can deliver a performance. And that is my only criteria. And sometimes I have to fight tooth and nail for that because [clients] turn around and say "she's a little dark." I say "so?"
Thus both fair-skinned and dark-skinned Indian women within this paradigm are considered commodities. The fairer-skinned women are considered of greater worth as marital partners, while their darker-skinned counterparts as sexual objects. Hence the emphasis on the lighter shades on the matrimonial websites.

It is useful perhaps at this stage to acknowledge that norms of beauty (like other norms) are not digested and accepted uncritically. While many may purchase products like F&L or F&H, and not an unsubstantial number, there are others who do not. Note the model and actress, Deepal Shaw who spoke in the earlier NDTV segment linked above. She is an individual who seemed to have been considered "darker" and thus typecasted as result of it in the role of the "sexy woman". Noticing that she was being typecasted, she states that she consciously took a two year break and when she returned she insisted that she be allowed to play more diverse roles. When questioned by the show's host Barkha Dutt about why she would want to play the role of the "sweet" girl - normally set aside for "fairer" actresses, Shaw asserted: "It's not that I want to be sweet. I am also sweet. I am also sexy. I am also sensuous. I am every character [that] I want to portray." Although I am not familiar enough with Hindi films, and thus cannot say whether Shaw has been successful in capturing these more "diverse" roles, nevertheless her statement of intent suggests an important and conscious effort in challenging norms of beauty and acceptability that stress lighter skin tones.

As suggested earlier, norms of beauty, particularly with respect to preferences of skin tone are not the monopoly of any one community or culture. My attempt in this post was not to cover all of them in one writing. There are of course other numerous examples of intra-cultural as well as cross-cultural/interracial notions of beauty and sexual attraction that have been discussed and explored in scholarly writings and examined in popular culture. See for example, Spike Lee's Jungle Fever. In subsequent posts, I shall return to this idea of standards of beauty serving as normative standards against which humans are expected to conform to.


Achal Mehra, "Fair and Ugly" Little India (10 Feb 2010), online:

Achal Mehra, "Mirror, Mirror on the Wall" Little India (10 February 2010), online:

Shankar Vedantam, "Shades of Prejudice" New York Times (18 January 2010), online:

Saturday, March 6, 2010

Legal Narratives of Identification - The Curious Case of Children's Storybooks

It should hardly come as any surprise that children's storybooks are rich sources of legal normativity and sources for legal analysis (see for example, the scholarship of Desmond Manderson and Shauna Van Praagh). In a previous posting, I touched upon the linkages between certain children's stories and their emphasis on breaking norms when doing so would be justified in order to stop a greater harm from being perpetrated.

In this post, I want to switch gears and address another series of considerations that have cropped up as I have been reading a host of children's books to my daughter. Given her rather young age, my spouse and I have devoted a considerable amount of time to reading my daughter books that emphasize identification and characterization as a central theme. A key example of this is the Usbourne "touchy-feely" picture book collection - particularly, the That's Not My Baby series. This series of picture books are aimed at developing the sensory and language awareness of infants and toddlers.

In these particular books, the narrative is a simple one, a little mouse goes out in search of a baby it identifies with and calls its own. With each baby it comes across, the mouse identifies something that a baby is wearing or possesses that distinguishes it from the baby it is searching for. Each item that is identified by text has a particular texture that the child who is being read the book can touch and associate with - e.g. "That's not my baby, her teddy [bear] is too fluffy"; "That's not my baby, her blanket is too silky"; "That's not my baby, her mittens are too fuzzy."

While the primary objective of this book (and others) as previously stated is to develop a child's sensory and language awareness, I argue that this development can have considerable implications later in life when we consider issues of identification of objects and people who are associated with such objects within the litigation process. These books help to train children to more acutely identify individuals and the objects they are wearing or possess, rather than simply latching on to more simple and base characterizations rooted in racial categories. When one looks to the sample pages of That's not my baby, one notes that the author, Fiona Watt avoids having the mouse identify the baby in question by skin colour, but looks to other identifying objects and/or textures that identify them as being distinguishable from the baby the mouse is searching for. This is not to suggest that identifying an individual's ethnic background is altogether invalid if coupled with other identifiable characteristics - however when race becomes the sole identifying feature, there may be a higher propensity for inaccurate identifications and worse, in the context of criminal prosecutions, such identifications may lead to wrongful convictions.

The need for greater accuracy in identifications was highlighted to me in one of the more poignant moments I experienced during my law school education. During criminal procedure, my professor wanted to sensitize the class to the fallibility of human perception with respect to witness identification and its ramifications on the rights of the accused. During one class, an individual who had been sitting amongst us for a certain duration of the lecture (but who was clearly someone no one likely recognized as part of our class prior to that day), got up and walked down the middle aisle that separates the classroom. The individual gave the professor a manila envelope, shook his hand, and then exited the classroom. From the time the individual stood up, walked to the front of the class and then left, roughly 10 to 15 seconds had probably elapsed. The envelope contained sheets of paper that were passed out to us. Each sheet contained a series of questions aimed at determining the extent of our ability to identify particular identifying features about this person, including their ethnic background, gender, what they were wearing, etc. The one thing we could all identify was that this person was African-American. Most correctly identified him as a male, although one or two didn't. As to this gentleman's other identifying features and details about what he was wearing, we were far from unanimous or correct.

This gentleman's experience with wrongful identifications was however far from academic. His name was Neil Miller. Some years prior, he had been wrongfully identified by a rape survivor and was convicted on the basis of her false identification which was also assisted with some improper influence by law enforcement. Thanks to subsequent DNA testing, Miller was freed but not before enduring several years of life in prison which took its toll on him.

Eyewitness and victim testimony are not going to go away, nor should they be expected to. But as my classroom experience perhaps demonstrates, misidentifying an individual can have serious ramifications on the liberty of another. Part of this is rooted in the poor training (if any) many of us have (including myself) in identifying critical details about others we may see rather quickly that move beyond the "basics" of race and gender (and in the case of the latter - at least one of my fellow colleagues in class identified Mr. Miller as a woman).

While identifying details may not come naturally to many of us, it can be cultivated. Perhaps by actively training individuals from a very young age to be observant and critical in their observations and maintain this skill into adulthood, we may be able to foster their capacities to provide more detailed and accurate identifications when called upon to do so.

It is worth noting that the development of this skill is not just relevant or important to individuals identifying suspects in a police line-up followed by testimony in court. It may be useful when a person is required to provide critical identifying information or characteristics in helping to find an abducted child or assisting law enforcement in tracking a wanted criminal.