Grounded Law

Often, the idea of living without ties to a centralized, law creating and enforcing body can be portrayed as ideal. However, in the film The Martian, audiences are presented with an entirely different construct of jurisdiction from the perspective of those on Earth and one person living outside of it.

At the beginning of the film, the audience is introduced to the crew of a NASA research and information gathering mission to Mars. The crew has clearly worked together and formed a deep bond that is tested when a sudden storm compromises the safety of an active information gathering session and threatens the lives of all crew members. While the crew members race to escape the planet one crew member, Mark Watney, is struck by a piece of flying debris. From his lack of responsiveness and the severity of the blow, it appears that he is dead, and the mission commander and crew struggle with the desperate decision to leave his body behind in order to save everyone else. Though anguished, the crew ultimately leaves Mars and Watney behind.

Unbeknownst to the crew, Watney regains consciousness after the storm clears. The audience is the only witness to Watney’s painful realization that he is indeed alone on Mars and without a functioning communications system to reach NASA, although he is able to access the mission basecamp for shelter and basic resources. Watney does not resent his crewmates for leaving him behind – quite the opposite, he is glad that they seem to have escaped the storm unscathed.

These scenes are juxtaposed with scenes from Earth, where there are two reactions to Watney’s apparent death: personal and political. Personally, many who worked on the mission are quite upset by Watney’s apparent death and the decision not to send any form of rescue mission to retrieve his body or confirm his death. Politically, agency heads appear concerned about the potential impact of the fallout from Watney’s death on the future of the entire agency. As a result, there is a desire to move on from Watney as quickly as possible in order to deflect attention from any allegations of agency failures. Despite this, there is a core group that believes it is the agency’s obligation not to consign Watney’s body to Mars.

On Mars, Watney would likely agree with that sentiment and yet there is no overarching sense of panic. There is of course a natural sense of desperation and frustration that strikes him in waves. However, the audience also sees Watney as functioning and maintaining the basic laws and morals that he brought with him from Earth. He is forced to open his crewmates’ personal bins in search of food and other survival items but does this in a way that evinces remorse (although this remorse is tempered with a good degree of humor that demonstrates his continuing humanity throughout the ordeal). He maintains program protocols such as daily check-ins via video recordings (though no one else can access them), recycling procedures and even uses the essential unwritten laws of society – such as table manners – during his quotidian activities. Throughout, there is a sense that Watney is aware of his stark freedom from earthly law and morality on Mars and yet does not believe that he is in fact unbound from these simply because he is outside of earthly territorial jurisdiction. When he is required to travel a distance on Mars in order to eventually be rescued, Watney jokes about being a “space pirate” and at the same time reinforces his understanding of the applications of earthly international law. In this way, holding onto legal tenets can be seen as a way of preserving Watney’s identity and humanity.

Watney realizes that he must try to re-establish communications with NASA. At the same time, a dedicated team from NASA remains convinced of the potential to find his body – living or not. Both Watney and the NASA team members are stunned when they are eventually able to reconnect. This provides Watney with a much-needed sense of connection to the outside world and hope for his potential survival. At the same time, the discovery that Watney is still alive shifts the burden to NASA to determine the appropriate course of action. Again, there is a split between those wishing to preserve the agency by not risking another mission and rather consigning Watney to Mars for years and those who believe they must retrieve him because anything less would be immoral and illegal. This includes the commander of the mission to Mars and Watney’s crewmates, who ultimately decide to retrieve him in accordance with a plan that involves the use of Chinese resources as well as American resources. To the commander and crew this is a basic question of their duty to a crewmate and particularly of the commander’s legal and moral responsibility to her subordinate. Those on the ground, who spend months of their lives obsessing about ways to bring Watney home, also see it as a moral duty and are not above asking another country for assistance when the issue is life. The deepest objection is seen as coming from quarters who attempt to politicize the law by arguing that the agency’s duties to Watney ceased, however even these views are ultimately changed by public pressure that is based on morality.

The Martian is consistently oriented around the morality of saving Watney. The plan to save him is technically difficult, involving great personal risk and uncertainty for a number of people. They undertake this risk willingly, however there is a strain on them and on Watney, who questions whether he is worth the risk. Throughout this, he continues to recognize being bound by legal tenets from Earth – even those relating to outer space. In the end, Watney is safely brought home after several very close calls during the rescue.

The Martian is in itself a fascinating film that forces audiences to look inward and question how they might react in circumstances such as Watney’s. A subtle thread throughout the film is not only the immediate reaction but how far the audience would believe itself to be bound by law and morality in a situation such as Watney’s, where there is no one else to judge or even observe. This is balanced against another theme – that of how far one believes one is bound by these same laws and moral tenets when everyone is looking and seeking to find fault. This leads to the essential issue of how far one is required to go when the future of something larger than oneself is at stake. Although in the immediate these questions are answered to a certain degree by the overall plot, The Martian challenges audiences with these larger questions and presses the question of how far law is grounded.

Visualizing Administrative Law: The Case of Lean on Me

Let's face it, the notion of "administrative law" doesn't infuse the ordinary person with a great deal of excitement. That's of course not surprising in the least. Even if most people don't have an inkling as to what administrative law is about, few people become electrified by the notion of anything that might be characterized as "administrative" - notwithstanding that it is attached to law. As soon as one gets an inkling that a great deal of administrative law (at least in its Canadian incarnation) concerns ideas of procedural fairness, the mention of procedure is enough to send most into a somnolent state and cure the worse cases of insomnia. This is likely what faces any number of students who take or are mandated to take a course in administrative law in law school leave alone the general public. 

However reasonable such assumptions, sentiments and/or apprehensions may be, administrative law speaks to incredibly important issues concerning public decision-making. Much of what constitutes government action and decision-making today, for better or worse, takes place not in legislatures or courts, but through administrative agencies, departments, tribunals, boards, arbitrators, officers, and a whole slew of other actors both at home and abroad. Some decision-makers are more tangibly tied to a government and government policy, while others are independent. Their decisions impact on people's lives in countless ways - the acceptance or refusal to grant refugee status, any license, citizenship, parole, a pardon, extradition, a passport, a visa, release from mental health institution, welfare or other forms of income support, as well as worker's compensation. Administrative tribunals adjudicate, among other contests, labour disputes, conflicts concerning intellectual property, and human rights complaints.

The scope of administrative law is quite simply breathtaking. As a law school educator who teaches administrative law, there is no shortage of cases for my class and I to examine. Yet, the focus of an administrative law course (and certainly mine included) can tend to dwell in some measure on how difficult it is, in most cases, to practically challenge the merits of administrative decisions before a reviewing court. In addition, we often look at whether decision-makers followed a fair process in arriving at their decisions. The failure to provide a fair process may result in a court quashing the decision and sending it back.

As with other areas of law, the written word, manifested through court judgments, constitutional provisions, statutes, regulations, guidelines, cannot always (and let's be real, often don't) capture for many the true drama of administrative decision-making and their implications. This is where films and television can play an immensely important role in making visible that which is often invisible or largely unnoticed. After all, we absorb large volumes of information today via audio-visual storytelling. Through such narratives, one can illustrate the dramatic and compelling nature of procedural fairness (or the lack of it), and indeed the importance of due process more generally. 

To give an example of this, I'll discuss here a clip from a film that I recently showed in my own administrative law class as a launching point to discuss the significance of procedural fairness. The film is Lean on Me. Briefly, the film stars Morgan Freeman who plays a disciplinarian principal/educator named Joe Clark (based on a real life individual with the same name). He is recruited to transform a crime-ridden school infiltrated by drug traffickers and infested with chronic violence and chaos. The disorder afflicting the school is apparent in the opening sequence of the film, and for good measure is set to Guns 'N Roses' "Welcome to the Jungle" as seen here:

 

In order to begin the needed change to alter the failing character of the school, Clark takes a significant and radical step by expelling dozens of errant students, the worst of the worst, as illustrated in the following clip:

The scene (which is the one I screened in class) shows in a short minute or so a number of crucial concerns connected to procedural fairness as they are understood in Canadian law. This is certainly the case even if the context is American in nature. These concerns include the idea of sufficient notice before a decision is taken, disclosure of information which served as the basis for the decision, and the presence/lack of any participatory rights (e.g. a hearing) before the decision is reached. It's obvious from this scene that none of these things were provided to these students, even if we are to assume that they were the miscreants they were alleged to be. The students are constructed as a singularly cancerous contingent that must be expelled to save the remainder. Indeed, this is largely how Clark justifies it at an emergency parent meeting convened the same day as the mass expulsion shown above. 

As part of the course, one of the issues discussed in connection with procedural fairness is the content and level of fairness owed. This will usually be dependent on an assessment of five non-exhaustive factors discussed in a seminal decision by the Supreme Court of Canada - Baker v Canada. Through these five listed factors, courts may assess the content of the duty of fairness and what degree of fairness may be owed to someone impacted by a decision. For example, is someone entitled to a hearing, and if so, what would the hearing look like? Would it be an oral hearing where an individual has the face-to-face opportunity to plead their case or is one's ability to address a decision-maker/executioner limited to written submissions?

The ability to parlay with a decision-maker in person with respect to their decision may be crucial. It offers a chance to the individual to humanize him or herself and forces a decision-maker to contemplate the impact of their decision on a person. In the second clip displayed above, there was clearly no ability to do so. Not too long after the second clip, a student who was expelled in Clark's mass expulsion approaches the latter to ask him to reconsider his expulsion. The following is what transpires:

  

This impromptu rooftop "hearing", which is more akin to an inquisition, allows the student to plead his case and to secure his re-entry into the school and this discrete community. The scene shows that it has its desired outcome. Rather than being one who is undifferentiated among a mass of drug-dealers or other consumers, the student is able to have his case considered as an individual. It is in stark contrast to the earlier mass expulsion scene. The long-term impact as the film progresses becomes evident as the student turns things around (though with some comical hick ups along the way). The student's ability to seek a hearing is vindicated. 

A larger discussion of Lean On Me is beyond the scope of this post, but in many ways the film raises a number of interesting procedural fairness concerns. The Clark character approaches the larger transformation of the school in rather authoritarian and menacing ways that raise other procedural concerns.

As pedagogical tools, film and television clips highlight a number of administrative law issues which may not be easily contemplated or accessible through a more standard examination of case law and other legal sources. Such visual storytelling can highlight the range of administrative decision-making - from more informal processes to those which resemble trial-like mechanisms warranting a higher level of procedural fairness in accordance with natural justice. This is where decision-making more closely resembles judicial or quasi-judicial adjudication and calls for a greater degree of fairness.  

In coming posts, I shall endeavour to address other depictions of administrative law and decision-making in film and television and their importance, among other things as an educational tool to make these processes more accessible and to highlight the issues they raise.

Contextual Nationality

-->

The Woman in Gold is an artistically and emotionally stunning film that takes the audience through the personal and legal struggles connected with the painting “Portrait of Adele Bloch-Bauer,” one of Gustav Klimt’s most recognized works. The law involved is well portrayed and doubtless there is much to be said regarding the ways in which the relationship between law and those impacted by it is portrayed. There is, however, a more subtle form of pluralism that is the subject of this post.

Maria Altmann, one of the main characters of the film, is the litigant involved in the flight over “Adele.” Maria was born in Austria to an accomplished and artistic family that also was wealthy and Jewish. Her connection to “Adele” is as poignant as it is simple – the subject of the painting was her very dear aunt.

Throughout the film via flashbacks, the audience is transported to Austria before World War II and sees this world through Maria’s experiences. The audience is introduced to Maria’s family – her sister, her doting parents and uncle and aunt, and, eventually, her husband, Fritz. The audience is drawn into this family and shares its joys – particularly Maria’s powerfully joyous wedding – as well as its deep sorrows – from the internal family sorrow of her aunt’s death to the externally imposed sorrow of an Austria that comes under the authority of the Nazis. Ultimately, her uncle and sister leave Austria before the occupation but Maria and Fritz elect to stay in Vienna with her parents. The film heart achingly portrays the occupation of the Altmann family home by Nazis on trumped up charges and the confiscation of family possessions, including “Adele.” Eventually, Maria and Fritz have an opportunity to escape Vienna, although her parents stay behind and she never sees then again.

There are few flashbacks of Maria in the US other than a scene in which Fritz is attempting to teach her English. In this scene, Maria finds out that her father has died in Austria, severing another connection to her homeland. The severing of Maria’s connection to Austria is reflected in her constant reference to “Austrians” and insisting on speaking in English to a Viennese hotel clerk although he notes that she was born there. However, when she sees her former apartment building and the places she used to visit she is clearly transported to a place with which she has a connection and still identifies.

At the same time, film chronicles the personal journey of Randy, the lawyer son of Maria’s friend, whose family Maria knew in Austria. Randy is reluctantly roped into assisting Maria pursue a claim to “Adele” against the Austrian government on the ground that it was illegally appropriated during the war. Randy initially sees the case through an economic lens – “Adele” was valued at $100 million. Throughout the film, he learns about his family in Austria and their experiences before and during the war. He visits places where his grandfather lived and is exposed to the different trends of thought regarding the war – from denial to suppression of events in order to move forward to desires for open dialogues about actions under the Nazis.

One of the pivotal moments of the film occurs when Randy presents Maria’s claim to before an arbitral panel. The Austrian government claimed that the painting was a national treasure and belonged to and in Austria. Randy’s argument was equally evocative, noting that both he and Maria were Austrian. For him, this is a key personal moment of self-realization that he shared the nationality – and identity – of his grandfather. Regardless his ability to assert this as a matter of law, there was a deeper connection to identity that in this context could not be denied due to place of birth or laws. In short, Randy’s identity shifts throughout the film.

While the panel deliberates, an official from the Austrian government approaches Maria to offer a settlement allowing “Adele” to stay in the country as a national treasure. Maria responds with a reference to her aunt’s Austria (and, presumably, her own) versus the state that exists today and that “Adele” belongs to her Austria. Here we again see the use of nationality in context. For Maria, her aunt lived in a certain version of the country, one before the outrages of the Nazi regime and those who were complicit with it. Her aunt’s nationality was based on the context of a certain time period, one in which she was able to live unimpeded by hate. Similarly, Maria’s nationality was tied to a time and a place – to the state in which she was born but which ceased to exist even though she might be eligible to retain that nationality as a matter of law. Her nationality then became American, as that was the place in which she and Fritz were able to make a home and the context of the bulk of her memories.

There are many lessons from the film. One essential lesson is the existence of what can be termed “contextual nationality,” referring to the idea that nationality is more than a legal construct in strict terms. Rather, it is an identity and experience-based construct that can shift and that can share an intimate connection with time and place. It focuses around a law that is written in experience and identity – sharing a time and a set of values that links one to a nation even if these times and values no longer exist. In some ways, it is contextual nationality that merges the past into the identity of the present by incorporating a greater understanding of the factors that mould constructs of nationality.

Governing cuisine

The film Burnt  is a tale of personal redemption complete with reflection, atonement for past sins, vindication and, ultimately, success. The film takes the audience into the world of elite chefs in London (and to a lesser extent Paris), where family exists in the form of a tight-knit kitchen and where a combination of intense passion, dedication and ego is necessary to produce what can only be described as culinary art. It is a seemingly glamorous world that masks often ugly realities – addiction, broken personal lives, and personality disorders to name the most prominent.

Within this setting, there are many forms of unofficial laws and rules that inform the culinary community and keep it together as a functioning entity while at the same time serving as an educational environment in which chefs are challenged to invent and reinvent themselves while they teach the chefs who work with them. The kitchen is presented – with some great degree of accuracy – as an autocracy in which the head chef is the ultimate source of authority and approval. Chefs with particular specialities are tasked with ensuring the perfection of their jurisdictions and ensuring that those who work under their oversight comply with the rules of their jurisdiction and the larger kitchen. From this point on decreasing power and authority granted to those in the kitchen, and each member of the kitchen is required to know his/her place in the governance structure.

As depicted in the film, in this hierarchy the failure of one level to comply with the requirements of appropriate jurisdiction have disastrous impacts and potentially undermine the kitchen both as an internal matter and among members of the outside communities. There is perhaps no better illustration of this than when there is an (erroneous) encounter with supposed Michelin restaurant reviewers and one of the sous chefs commits a deliberate act of sabotage that completely undermines the integrity of the kitchen to the outside world while also creating turmoil in the accepted strictures of conduct within the members of the kitchen community. In the aftermath there is a good deal of soul searching by the chef, which leads to a reorientation in many of his policies in order to create one unit of functioning and authority where each of the sub-units of jurisdiction work together. When the real Michelin reviewers arrive, the kitchen is able to execute the menu perfectly as a cohesive unit, leading to the advancement of the kitchen’s standing in the culinary community.

As is perhaps expected from most films, Burnt takes audiences on an allegorical adventure, seeing the main character through from failure and self-loathing to success and stability. Beyond this, however, the film provides insights into an often unseen community that functions on a unique governance system based on autocracy on hand but interlocking dependence on the other.

---

Law, Ballet and the Canadian Indian Residential School System

When Alexandra Harrington and I started Jurisculture several years ago, we envisioned an exploration as to how law intersects with various forms of popular culture. Although we intended to focus on more than just films, television and sports (staples of our own regular popular culture diets), we have largely stayed close to exploring those select mediums without venturing too far afield. Yesterday, I had the opportunity to see "Going Home Star" (GHS) a production of Canada's Royal Winnipeg Ballet (a full synopsis of GHS is provided below thanks to the RWB).

GHS examines the trauma inflicted upon First Nations, Metis and Inuit communities through the Indian Residential School system in Canada. This "educational" system was established in the late nineteenth century and lasted throughout much of the last century. The last school was closed in 1996. This school system was designed to remove First Nations, Metis, and Inuit children from their homes and to "civilize" them by attempting to remove any connections between them and their culture. They were not to speak their own language(s), wear their traditional clothing, or maintain any practice that would allow them to retain their identity. There were to be thoroughly Europeanized. Furthermore, children were subjected to verbal, physical and sexual abuse by the various clergy who ran these schools. Some of the more powerful and disturbing scenes in GHS relate to such violence and brutality.  

The violence perpetrated against children from Canada's indigenous communities were not just breaches of what we would otherwise consider criminal law. The violence was arguably part of a much greater crime. As Justice Murray Sinclair posits, the violence was part and parcel of a genocide waged against these communities.[1] According to the United Nations' Convention for the Prevention and Punishment of the Crime of Genocide, genocide includes acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group. The Convention specifically includes the forcible transference of children from one group to another group as constituting genocide. As such, genocide does not require the physical destruction of a group through murder (though this is the construction that often comes to mind), but may be accomplished by racially indoctrinating children so as to remove any identifiable cultural characteristics associated with that group (language, dress, ways of living) from their existence. In the case of indigenous children, their transference away from their families and communities so as to "civilize" them and eliminate their indigineity and "backwardness" falls within this mode of genocide.

The goal of effacing indigenous identities from the Canadian cultural landscape found voice in the following quote from one of the architects of this school system, Duncan Campbell-Scott. He asserted: "Our objective is to continue until there is not a single Indian in Canada that has not been absorbed into the body politic, and there is no Indian question and no Indian Department. ... I want to get rid of the Indian problem."[2]

One should of course not be quick to dismiss such cultural destruction as being unimportant enough to qualify as genocide (even if it could be somehow accomplished without the loss of one physical life). Cultural identity is vital to most people's existence, even though it may be taken for granted. As University of Manitoba sociologist Christopher Powell observes: "Membership in a cultural group, participation in a collective identity, is part of our social nature and is necessary to human well-being." He articulates that while many take their cultural identity for granted, if it were taken away suddenly, we would quickly recognize its vitality and importance.[3]   
  

Though GHS does not squarely refer to this history as genocide per se, it is perhaps enough, at least as an initial step, to have the violence which constituted the genocide depicted at all and to draw attention to it. One can only hope that this will inspire further cultural forays on a much broader scale about the violence perpetrated against these communities and their psychological aftermath. 

References

[1] Chinta Puxley, "Racial Indoctrination: Residential Schools Called A Form of Genocide" Globe and Mail (17 February 2012), online: Globe and Mail: ; Christopher Powell, "Sinclair Was Right -- It was Genocide"Winnipeg Free Press (24 February 2012), online: The Winnipeg Free Press .   

[2] Powell, ibid. 

[3] Ibid. 

Synopsis of Going Home Star. 

Source: http://www.rwb.org/whats-on/show/a-story-of-truth-and-reconciliation  

Act 1

Going Home Star is the story of a young contemporary First Nations Woman named Annie. She is confident and self reliant living in an urban city; and, she finds some creative satisfaction working as a Hair Stylist for upwardly mobile, chic, urban women. At the end of a typical day, Annie joins the fast paced activity of the city and the carefree encounters that come with it. Her nights often end with a line of cocaine and a random lover. Work, commute, clubs and random lovers are the highlights of Annie’s existence. Her restlessness comes from this meaningless life style. Annie feels strangely disconnected within her superficial urban loop.

Gordon is a homeless First Nations man. He was born on the reserves, but was scooped from his home as a young boy and forced into the Residential School system. Ultimately, Gordon fled this life to live on the streets not as a victim but as a true survivor. Gordon remembers and understands the teachings of Anishinaabe trickster. It’s this magical power and the deeper story of his people that is present when Annie and Gordon first meet.

In the bowels of the subway commute, surrounded by urban people, Annie and Gordon’s initial attraction is more than just physical. Annie has the sensation that Gordon knows something deeper about her being. Although Gordon struggles with his conflicted past he recognizes the disconnected spirit in Annie. Gordon becomes that being that teaches Annie about her people, her past and ultimately, her story.

One night after her random lover departs Annie lays motionless on the floor dreaming of her day. Gordon appears in her dream. He approaches and kisses her on the forehead. Dreaming she is flying through time Annie sees a nomadic First Nations woman pulling a great weight though blowing snow. Upon waking Annie senses her dream was more like a vision and the strange connection she felt with Gordon is somehow connected with this faraway image.

Annie begins her busy day at the Hair Salon. She feels out of place after her dream. All the urban women want highlights and coffee. Mistakenly, Annie gives one patron her measuring cup full of hair bleach to drink. Luckily the patron spits it out; but, Annie is mortified.

Closing the hair salon and escaping toward the clubs Annie finds a wallet dropped on the subway floor. When the owner returns he aggressively retrieves his wallet. Annie becomes aware that all the urban commuters are looking at her suspiciously.

Gordon, the trickster, enters. The mysterious cloth that Gordon usually carries (which Annie thought he used for sleeping) is now spread out upon the floor. Resting on top is a Reliquary (Shrine) model of a Residential School. Gordon pulls the cloth and the Reliquary in a similar manner to the First Nations woman in Annie’s dream. For Annie, Gordon’s burden (the Reliquary) and the burden of the nomadic First Nation’s Mother are both strangely familiar.

The Reliquary is an exact replica of the Residential School from Gordon’s past; and, like the Greek Sisyphus, Gordon is somewhat banished with this burden. Gordon is a story-telling trickster and his life experience is at the heart of his teachings.

Afraid of Gordon’s mystical power, Annie runs back to her lover. She has another dream of flying and this time a dream of urban people walking all over her. Upon waking Annie realizes that her life, thus far, has been spinning on the spot. When Gordon is near she feels part of something greater than herself.

Annie and Gordon are now separated from the urban world. Gordon stands behind the Residential School Reliquary, waiting for Annie’s attention. When she looks his way Gordon lifts the Reliquary over his head. The weight, the burden, is too great and crushes him. Annie comes to his aid. Now having Annie’s attention, Gordon begins to tell his story of the Residential Schools.

Moving back through time, towards a Residential School in a birch wood forest, Gordon’s story begins with two First Nations children, Niska and Charlie. They were forced from their home to be educated by a Clergyman. Abusing the power entrusted to him, the Clergyman subjects the children to corporal punishment and his religious zeal.

Annie is heartbroken over the treatment of the children but Gordon knows she must venture deeper into the story; that to know only a few surface details makes it easier to dismiss the truth. Gordon leads Annie to a dilapidated wall of an abandoned school. She has passed this wall many times but never even considered its origins. They climb and sit upon the wall. Staring at the night sky Gordon continues his story.

Moving back through time Annie sees Niska and Charlie in the Residential School. They sneak around looking for food and mischief. They are excited to be out of bed and even more elated at their ability to avoid the Clergyman’s detection.

When Niska entered the School she managed to hide the tobacco pouch which her Mother placed around her neck for protection. Niska now retrieves the tobacco pouch from its hiding place for her and Charlie to enjoy. The smell of tobacco remind Niska and Charlie of home and the rituals practiced by their family. Although they cannot fully remember the details their desire to be with Mother and Father is too great. Homesick, Charlie lights a Votive candle for fire and Niska sprinkles tobacco in the flame. The kids recreate their parents’ prayer ritual.

The ever-watchful Clergyman discovers Niska and Charlie practicing their sacred ways. The Clergyman is bent on destroying their culture and assimilating these children into his way of life. His retribution against the children is severe.

Sitting upon the wall with Gordon, Annie learns of Charlie’s beating and of Niska’s hair shearing by the Clergyman. When she returns to her hair salon chair she understands that the antique chair may have a darker history. Searching through the hair on the floor Annie looks for the tobacco pouch. Gordon has inherited this artifact and he gives the tobacco pouch to Annie.

Continuing his story Gordon reveals the truth hidden in the cracks of the Residential School wall. Annie sees the loving moment when Niska’s Mother and Father gave her the tobacco pouch: the moment Niska’s parents said, “goodbye”. She then sees the moment that the Clergyman rapes Niska.
Annie is greatly distressed by this final story and Gordon moves to console her. Repulsed and angry Annie pushes Gordon away and exits.

Alone, Gordon remembers Charlie’s story. Charlie escaped the Residential School and the punishments of the Clergyman. He fled into the nearby woods looking for the railroad tracks that would lead him home. He also used the North Star, known by his people as “ the Going Home Star” to help navigate his course.

For Gordon the stars in the night sky are intuited as spirits or Star Children. In Gordon’s past these Star Children and his Mother and Father have acted as guides and helpers. Gordon’s hope is that they were there for Charlie on his frightening journey home.

Gordon holds the artifacts from the past and communes with Charlie’s plight. The Votive candle and matches were carried by Charlie for energy and strength. Charlie’s fate, his disappearance, is like the fate of many children from the Residential Schools. Gordon knows it could have been his fate as well.

Annie returns to console Gordon. Like the vision in Annie’s dream—the vision of the nomadic First Nations woman pulling the great weight—Annie now realizes she shares Gordon’s burden. Like the First Nations woman before her Annie picks up the burden of the past and begins her new destiny as healer for Gordon and potentially healer for her people. The “Going Home Star” is clear in the sky and Annie knows the direction of her future.

Act 2

Annie, having picked up the burden of the past, immerses herself fully in the healing of Gordon. Harnessing the ancestral power of the Sweat Lodge, Annie stokes the stone fire pit. The turtle shell mirror from her hair salon and the shallow vanity it represented is gone. In its place Annie has hung a large turtle shell. For Annie, the turtle shell has a deeper meaning. It is an inspiration to unite with her people’s Creation Story by building a new home for her and Gordon.

Mourning the loss of his own childhood Gordon’s every thought is with Niska and Charlie. He remembers the torture these young children endured and he knows there was more than just one abuser. Many Clergymen practiced corporal punishment and more. It was an approach to education unknown to his people. The abuses haunt Gordon’s thoughts. His body is present, but his mind is trapped with these children in the past.

Earlier Annie followed Gordon through the underworld to learn about the past. Now she follows Gordon to help him reconcile his own conflicted memories.

Gordon knows he has to “build his fire up” and Annie aids in this endeavor. In search of answers Gordon contemplates a time before the Residential Schools. He questions how European colonialism became a campaign of forced assimilation for his people. A comical image of Louis the 14th, Divine Louis, are imagined by Gordon. Gordon remembers the first contact with his people. He believes that Canada was not discovered by these Divine explorers, but was shown to them by his people. Their very survival depended it.

Gordon wants to laugh at these earlier explorers, but when he thinks of Niska being raped he only feels anger; and, his anger leaves him weak. He tries to remember a better time when Niska and Charlie were with their Mother and Father; but, the Clergyman’s abuses are difficult to forget.

Annie continues to make a home for Gordon and herself. Her hope is to commune with the Star Children without anger; to hold them in loving memory. Annie brings the turtle shell down as an idea of shelter for Gordon and herself; it is her way of unifying all the past lives under one beautiful idea, shelter…refuge.

The loss of Charlie, his disappearance, is too painful for Gordon. He cannot so easily forgive this mistake. Gordon holds the Votive candle and says a prayer for Charlie. Gordon’s hope is to find reconciliation. He imagines both sides joining in a prayer for Charlie. He also imagines both sides coming together in prayer for all the survivors and the damage that’s been done…for the child taken, for the parent left behind.

Annie crosses the stage with her playful animal being. Gordon is at a cross-roads: his ancient path of animal tracks lead one direction and the difficulties of his more recent path, the railroad tracks, lead another. Annie invokes a new symbol for Gordon’s dilemma. She also invokes the healing power of the medicine wheel. Entering with ribbons representing the medicine wheel’s four colours, Annie begins hanging these ribbons on the trees. Recognizing the sacred ways of his people Gordon and Annie begin making a shelter for their Sweat by placing the glowing stones underneath the turtle shell.

Annie has prepared one more healing action for Gordon. She leads Gordon to the pyre that she has built. Resting on top of the pyre is Gordon’s ever-present burden: the Residential School Reliquary. Annie instinctively desires another realm for Niska, Charlie and Gordon’s past; a realm where the children no longer live trapped in the Residential School. Annie envisions a world where Niska and Charlie run free and happy as Star Children. Annie hands the flame to Gordon.

Gordon feels deeply the damage that has been done and the anger he carries inside. Following Annie’s lead, her hope, Gordon knows what he must do next. Gordon sets the pyre on fire. His gesture is a willing surrender to never returning moments. For a brief period, Annie and Gordon commune with Niska, Charlie and their Elders.

Gordon is weakened but feeling held only by love. Annie builds back his strength by braiding his hair. The future that shines in Annie’s youthful spirit unites with the dark past haunting Gordon. Annie and Gordon validate each other’s truth. Their journey has been like a dream and in their hearts are the words from their people’s Morning Song: “Sun finally here. Beautiful day. Just got back from a long walk in the forest”.

Separate and Privileged

Disparate treatment based on one's race (and/or other characteristics) is alive and well (as if this were in some doubt). Being a member or being perceived to be a member of a particular racial/ethnic group continues to give rise to differential treatment. Over the past weeks, there has been a great deal of attention to the disparate treatment African-American men in particular receive from White police officers and certainly the lethal aftermath of some of these confrontations.

The disparate treatment isn't restricted to police officers (though their reactions are of significant concern given that they carry firearms and use them). A number of filmed social experiments over the years indicate the contrasting reactions White and Black men can experience with respect to the same activities. For instance, some years ago, Oprah Winfrey presented the story a young White man named Josh Sullivan who took pills to darken his skin so that he could appear as an African-American male and experience what that was like. Here is the clip: 

In contrast to his experiences as a White man, while Black, Sullivan experienced what it was like to be stopped by the police for no apparent reason, followed around while in a shop as well as refused a place in a restaurant despite there being spaces - experiences he never endured as a White man. With respect to this privilege he held, Sullivan observed: "Whites receive this prima facie respect. I walked into a room and regardless of how much money I had in my pocket, there's a certain level of respect that I get from folks. And the first thing that I realized when I was Black was it's gone. You don't get any of that. You know White people get this respect and Black people are constantly trying to prove that they deserve it or worthy of it." 

Another striking illustration can be seen in the following footage from ABC's "What Would You Do?" It illustrates the differing reactions people have while witnessing a person commit a particular illegal activity (stealing a bike) based on the thief's race (and gender). In one instance, it is a White male, the second instance an African-American male, and the third, a White blonde haired woman. The reactions are partly comical but nevertheless revealing. One word of caution of course is that these are clips that ABC had selected and we must trust that the reactions presented are in some representative of those elicited when encountering the three different "thieves".

What we witness is that the African-American male is consistently confronted, while the other two White thieves tend to enjoy a much different experience, with the female enduring the least scrutiny. One of the more striking and interesting reactions were those of the older African-American women in the footage who gave the White male thief the benefit of the doubt on the assumption that stealing wasn't something we associate with young White men. None of this is surprising when we consider that Whiteness is often inherently associated with "goodness" and Blackness or darker skin tones are almost automatically associated with criminality, wrongfulness or at the very least suspicious behavior. (As an aside this privileging of Whiteness or fairness is replicated in other societies and cultures - see my earlier blog posting here).

These differential experiences can (not surprisingly) have profound implications for one's experience of law and law enforcement. The differences may come into play when dealing with sentencing disparities in a criminal matter, whether someone receives bail, who will be identified as a suspect or a "person of interest" or the credibility accorded to certain witnesses. And yes of course at a more basic level there is the presumption of innocence and whether it is really experienced equally.

Subaltern Resistance in the City of Joy

For many, depictions of Asia and Africa can consist of a variety of (sometimes competing) archetypes. Amongst these embodiments is the image of poverty and life in slums replete with disease, crime, and open sewers. For many living in such countries, these images reify certain caricatures of the "developing" South/East and simultaneously provoke (naturally) defensive responses as though such tropes of otherness singularly define the nations' existence and that of its people. Yet embedded within films that display such imagery, there are still other powerful narratives that depict more than just the abject poverty - there are also stories about law and resistance.

In this posting, I shall explore, in particular, one film's exploration about law and resistance, The City of Joy, directed by Roland Joffé. The film was based on the book of the same name written by Dominique LaPierre about the rigors of life in Calcutta's Anandnagar (City of Joy). At the time of its filming, in the early 1990s, there were local protests against the production for fear that it was portraying India in a poor light. The filming nevertheless continued and it was eventually released in 1992.

At first glance, the film appears to model and replicate the notion of a Western savior (in the form of Dr. Max Lowe played by the late Patrick Swayze) swooping in to save the local residents of the slum - from the miseries of disease (such as leprosy) and from the local mafia crime lord and his son who extract high rents from the local residents and businesses. Max does indeed improve their lives through his medical skills and his assistance. Yet, as the film progresses, another narrative develops that highlights the subjectivity of the local residents, and in particular, the resistive qualities of the relatively docile Hazari Pal (played by Indian actor Om Puri). While Max acts as a catalyst to inspire and taunt individuals such as Hazari into action, it is ultimately their own decisions to resist that makes them legal agents/subjects in their own right. Before explaining how Hazari asserts his (legal) subjectivity as a resister, rather than merely being saved by an outsider, I shall explain how and in what manner law plays a role in this film.

The "legal" framework is not one that centers around the legal norms of the governments of India, the state of West Bengal, and/or the city of Calcutta - it is an informal (if not illegal and unjust) system of norms created by a local crime lord and enforced by his son, Ashok, and their henchmen. The crime lord's control in many ways operates like a mini-government/fiefdom. He mandates that "taxes" be paid for "protection". When Max and other residents of the slum seek to build a free clinic to treat lepers without paying the crime lord's tax, and thus engage in their own form of a tax revolt, they are besieged by "protestors" - in essence the crime lord's hired thugs. The clinic is damaged and the property destroyed. The residents eventually capitulate and agree to be "protected". This crime lord-operated "government" also functions as a licensor for rickshaw pullers who must pay fees to work as pullers. It is a system that limits free(er) enterprise and places restraints on commerce.

Hazari's legal subjectivity as a resister emerges in two ways within this normative context. First, it comes into play when Hazari takes defiant steps to pull his rickshaw without the permission of the crime lord. After Ashok deprives Hazari of his "license" to pull a rickshaw (retribution for his part in setting up the leprosy clinic without the clinic paying taxes), Hazari decides, after some prodding from Max, to reconstruct/repair an unlawfully acquired rickshaw with the intention of using it to earn money. This act of reconstructing the rickshaw is itself an act of resistance against this local polity that restrains him from earning a livelihood of his choosing. Hazari furthermore involves himself in a strike by rickshaw pullers against an increase in "fees" imposed by Ashok. During the strike, Hazari asserts himself by urging his fellow pullers to continue to strike after Ashok threatens to take away their rickshaws if they persist in their strike. He advances to where Ashok is situated and grabs the microphone to speak to the rickshaw pullers. This causes a commotion and Hazari is arrested for this act. Later in court, before the judge, he in effect proudly declares his right to strike and to carry a rickshaw without having to pay illegal fees to Ashok (who has now taken over the mini-government after his father's passing) as well as bribes to actual policemen. The judge agrees with Hazari's rights to strike and pull a rickshaw without let or hindrance and furthermore issues a restraining order preventing Ashok from prohibiting Hazari from pulling his rickshaw. The judge formally legitimizes his act of resistance which here is in furtherance of a right to earn a livelihood, not to mention more essentially, a basic right to liberty in carrying on a livelihood of his choice. Although his defiance comes at a cost as he must pay fifty rupees as a fine for his part in the "disturbance" or stay in jail for several days. Legitimized resistance thus comes comes at a cost.

 
Second, after undermining Ashok's control by being able to pull his rickshaw, Hazari's penultimate act of defiance is manifested by physically confronting Ashok directly. While transporting his kids (a teenage daughter and two younger sons) and Max on the rickshaw, Hazari is stopped by Ashok and his henchmen. As Ashok takes hold of Hazari's daughter and threatens to disfigure her face with a razor blade, Hazari lashes out and lunges at Ashok. Although stabbed, Hazari physically bests Ashok and is on the verge of killing him when Hazari notices his children are watching and witnessing. He then stops and admonishes Ashok to stop his oppressive activities against him and the other residents of the slum.

More than just another movie that portrays life in the Third World as tantamount to a slum dwelling, The City of Joy is a film about normative (and indeed oppressive) structures and how resistance can operate within such structures - indeed to defeat or substantially undermine the system itself in defence of larger and perhaps more fundamental legal principles (e.g. the right to work, right to liberty and notions of fair taxation and good governance). Furthermore, the film also recognizes Indian/Third World characters as having subjectivity to reconstruct legal normativity without having it delivered upon them by outsiders (read: Westerners) as saviors. Undoubtedly Max's character is influential and is a catalyst. But he does not, vis-a-vis this informal governing structure, act as its vanquisher. Indeed through much of the film, Max hardly ever wins a fight (of course this is usually because he has to face 3-4 of the crime lord's henchmen at once). It is ultimately Hazari who frees the residents of the slum from Ashok's oppressive control.

None of this of course is to suggest that there is nothing problematic about other aspects of the film perhaps, however I will reserve that for another blog posting.