The Darker Corners of Children's Songs

There are some things that just catch you off guard at the times you least suspect it. A little background first. Some relatives visited India earlier this year and brought back for my daughter some "educational" DVDs containing nursery rhymes that were sung by an adult Indian female vocalist and danced to by young Indian children. The DVD in question was "Preeti Sagar's Nursery Rhymes: 69 All Time Favourite Rhymes." The DVD includes a number of well-known songs like Jack & Jill. But it was the inclusion of one other particular song that left my wife and I speechless and has me writing now.

The song in question is called "Ten Little Nigger Boys." No, I didn't misspell it and your eyes are reading this correctly. Furthermore, I confess I have never heard of this song before it appeared on one of the menu screens for the DVD. The experience becomes even more surreal and jarring when you see the singer (Purbi Joshi) sing (or perhaps lip "sync") the song with a big silly grin, as though the words being sung/mimed (and one in particular) are vocalized without a hint of discomfort or shame - apparently the experience was reserved for my spouse and I, and I imagine anyone else who might have found this somewhat disconcerting. At worst, the inclusion of the song smacks of blatant racism and the propagation of a derogatory slur that has no historically positive meaning, particularly when used by non-Blacks to refer to Black people. At best, it demonstrates a stunning lack of judgment about the appropriateness of teaching such words to young children.

In trying to look up the history of this song, I discovered that it was the original title of an Agatha Christie novel published in 1939. In subsequent editions, the novel was renamed Ten Little Indians and subsequently And Then There Were None. The adoption of the final title reflects normative changes in the acceptability of using terms like the n-word or Indians, in the manner in which they were used. However, the history appears to go back even further. According to an article written by Tiffany M.B. Anderson, the song in question has its roots in the American south near the end or after the Civil War. The song was used both in minstrel shows for White adult audiences and as a song for White children (the lyrics can be found in the link to Anderson's article above). As she explains:

When performed as a minstrel song, Ten Little Niggers serves as entertainment; when used as a nursery rhyme, Ten Little Niggers operates as education. Ten Little Niggers not only taught a child to count down from ten, it also presented the racial construction of the black population as ‘niggers’ with equal importance. Caricatures accompanied the reprinting of the song in the nursery rhyme books.

I highly recommend Anderson's article to get a sense of how the song was constructed and was intended to demonize and portray African-American males in particular as designated social and personal threats.[1] But more disconcerting is the inclusion of this song over a century later in a new format being sung to children all the while perpetuating a recognized racial term as acceptable.

Despite the existence of the freedom of expression, various societies, operating through political and legal branches of government have put into place particular liabilities and punishments for engaging in certain types of speech - e.g. hate speech, defamation, sedition, incitement to commit a crime. Concurrent with the norms of the state are the many socio-legal norms that govern or influence individual conduct and interpersonal relations. Even where state norms may not prohibit the utterance of certain words, the norms or rules of everyday life and society may strongly discourage it. A breach of such norms may result in economic and/or social repercussions (although sometimes only temporarily) for the individuals who speak them.

Within North American culture and others situated in the Global North, the utterance of the n-word is considered (more often than not) to be taboo, particularly amongst those who are not Black and if used in public and to refer to someone of African descent (although some non-African-Americans clearly have few inhibitions about this). [2] Although the word has been appropriated by many African-Americans, there is considerable debate about the advisability of even their using the word - ranging from comedian Chris Rock who has deployed the word extensively in his repertoire (as with other African-American comics like Eddie Murphy and Richard Pryor), to the NAACP holding a funeral to scholars such as Harvard Law Professor Randall Kennedy. Yet, notwithstanding the appropriation by some, if not many African-Americans of the word at one time or another, it is widely accepted that the use of the n-word in public by non-African-Americans breaches widely accepted socio-legal norms against openly uttering the word. Some might describe these particular socio-legal norms as mere political correctness.

I'll refrain from attempting to extrapolate or generalize anything about Indian society as a whole, based solely on Sagar's or the production company's decision to include the song. There is clearly a different normative vision reflected here about deploying a song with a racially-charged history which uses such a patently loaded and derogatory term. The producers of the DVD have issued a product into the children's market that includes a song which effectively legitimizes and celebrates (through joyful singing) the use of an unquestionably offensive word associated with a substantial segment of the world's ethnic population. This is particularly so when used by those who do not belong to that group that the term has been applied. It also suggests an assumption, on the part of the producers, at least, that there is or will be an acceptability by consumers of this product about hearing and digesting this song for consumption - an assumption which is also troubling.

It was in 1969 that the International Convention on the Elimination of all Forms of Racial Discrimination entered into force. Amongst its many pertinent provisions, Article 7 has something particularly relevant to add to our discussion here. Namely,

States Parties undertake to adopt immediate and effective measures, particularly in the fields of teaching, education, culture and information, with a view to combating prejudices which lead to racial discrimination and to promoting understanding, tolerance and friendship among nations and racial or ethnical [sic] groups, as well as to propagating the purposes and principles of the Charter of the United Nations, the Universal Declaration of Human Rights, the United Nations Declaration on the Elimination of All Forms of Racial Discrimination, and this Convention.

The DVD in question is at the very least, a potential source of education, culture and information for the children who view it, both in India and abroad. The song in question here however doesn't combat prejudices but merely fuels them and indeed propagates and perpetuates a racially discriminatory term while happily introducing it to small children. While the DVD is produced by a private company and not a government, the principles articulated in the Convention ought to be internalized by members of civil society if it is to have its desired effect. The interpretation and enforcement of legal norms relies in many ways on civil society's participation and compliance with such norms as the power of states extends only so far. Significant power lies in the everyday citizen, musician and/or corporate leader to act responsibly.

[1] Such demonization has also transpired within films like Birth of a Nation.
[2) There are of course the notable examples of Michael Richards (who played Kramer on Seinfeld) who exploded into an n-word laced tirade against some hecklers at a comedy club; Dr. Laura Schlesinger repeating the word on her syndicated radio program while trying to make a philosophical point about the double standards surrounding the use of the n-word; or an Australian magistrate who expounded that the n-word amongst other derogatory terms was not offensive to reasonable people.

A Few Good Norms

In any given social setting and/or encounter, a number of norms regulate, govern or otherwise influence human conduct. Depending on the circumstance, these may include the laws of the state but may also entail the customary rules and norms of everyday society. This is in essence one of the central teachings of legal pluralism. In some circumstances, the norms of the state may move in lockstep with the rules of everyday life, while in other situations they may clash, leading one to decide which normative path to follow at any given moment.

A number of films and television programs focus on state-centric law or legal disputes contested in courts of law. However, even within these legal courtroom-centric dramas lies a number of interesting stories about how customary rules (that is non-state norms) have an influence or impact on the conduct and behavior of the characters in the story. As one illustration of this, I shall focus here on the film, A Few Good Men, (AFGM) starring Tom Cruise, Jack Nicholson, Demi Moore, Kiefer Sutherland, and Kevin Bacon. Written by Aaron Sorkin, and based on his play of the same name, AFGM focuses on the trial of two marines who are subjected to a court-martial for the administering of an unlawful disciplinary action called a Code Red against a fellow marine, William T. Santiago, which led to his unexpected and unplanned death. Although illegal, Code Reds are deemed to be socially acceptable at least within the marine corps in Guantanamo Bay. Indeed according to the story, these can involve a number of actions, including the shaving of an errant marine's head to physical beatings. Such actions transpire when the target of the Code Red has committed some (perceived) breach of the customary rules or codes that other soldiers subscribe to.

In AFGM, Santiago does not live up to the standards of the other marines on the base. Due to personal health conditions he cannot perform many of the physical tasks as quickly or at the same level as his colleagues. Furthermore he is consistently late for meetings and his barracks are often or at times in disarray. The consequence of this is that he becomes ostracized amongst his peers. In order to secure a transfer, he defies the chain of command and writes to a number of non-base officials and politicians conveying his problems on the base. In exchange for his transfer, he is willing to provide information about an illegal shooting by one of the members of his corps and higher ranking soldier, Lance Corporal Harold Dawson. Information about Santiago's letters and requests reach the desk of the base commander, Colonel Nathan Jessep, played by Jack Nicholson. In Jessep's view, Santiago violated a number of rules, including the breaking of the chain of command and the failure to perform to the standards of other marines. As the story unfolds, we learn that Jessep orders Lieutenant Jonathan Kendrick (played by Kiefer Sutherland) to "train" Santiago by administering a Code Red. This is despite the fact that Jessep has received a memorandum from a superior officer indicating that such actions are not to be tolerated. Jessep states that Code Reds form a necessary part of close infantry combat training, particularly in a hostile zone where Cuban soldiers are so close by, and thus ignores the memorandum. Kendrick then orders Dawson and another private, Downey, to perform the Code Red.

As part of the trial strategy for Dawson and Downey's joint defense, Lieutenant Daniel Kaffee (played by Tom Cruise) mounts a defense whereby they argue that the defendants were ordered by Kendrick to perform a Code Red on Santiago, even though this was told only to Dawson in a manner that was and meant to be clandestine and given moments after Kendrick formally ordered the remainder of the unit to leave Santiago alone. As those who have seen the film and its dramatic climax, Kaffee is able to secure from Jessep an admission from the witness chair that he gave the order to perform the Code Red on Santiago. Throughout much of the film, the prosecution's position, buttressed by statements supplied by Jessep and Kendrick, are that Dawson and Downey acted without any such authorization.

AFGM presents a number of interesting issues related to law (including the interrelationship between law and resistance which I shall be tackling in part in a paper later this year), but what I shall focus on here is its exposition of the customary rules (particularly within the marine corps at Guantanamo Bay) and their impact on the conduct of Dawson and Downey.

To be sure, a central aspect of the defense's case was the fact of Dawson and Downey being ordered to perform the Code Red. Yet, what we learn in the midst of Dawson and Downey's interviews with Kaffee and other defense counsel, is their belief that their actions were correct as Santiago violated the customary norms that the marines subscribed to - that is - loyalty to "unit, corps, God, country." Because Santiago stepped outside the chain of command and was threatening to report Dawson's shooting incident without first approaching Dawson, Santiago broke the code. Thus for Dawson and Downey, the Code Red was a legitimate practice amongst the unit which received further legitimacy when ordered by Kendrick.

As part of the defense strategy, the goal was to demonstrate that Code Reds occurred as a matter of regular and accepted practice and as part of the normative legal framework that operated on the base. In order to demonstrate this, Kaffee calls Corporal Jeffrey Barnes (played by Noah Wyle). Barnes testifies that he was the recipient of a Code Red himself when during assault drills, his gun slipped out of his hands, because he failed to apply resin on his hands as they were taught.[1] On cross-examination, Captain Jack Ross, the lead prosecutor (played by Kevin Bacon) attempts to identify the official legal source that justifies the practice of Code Reds. amongst marines on the base. Ross hands Barnes the Marine Outline for Recruit Training and subsequently a Standard Operating Procedures manual for Barnes' company at Guantanamo Bay. In both cases, Barnes informs Ross and the court that neither book speaks to or describes Code Reds or any other form of disciplinary procedure that they are expected to perform. Their brief exchange that follows is worth noting:

Ross

Corporal Barnes, I'm a Marine. Is there no book, no manual or pamphlet, no set of orders or regulations that lets me know that as a marine one of my duties is to perform Code Reds?

Barnes

No sir. No book sir.

Ross

No further questions.

In this brief exchange, Ross attempts to make the point that where not explicitly authorized by legal authorities, Code Reds clearly stand outside of any regular normative framework and therefore completely invalid. What follows is Kaffee's argument through re-direct:

Kaffee

Corporal, would you turn to the page in this book that says where the mess hall is?

Barnes

(Laughs) Lieutenant Kaffee, that's not in the book, sir.

Kaffee

(Feigning perplexity) You mean to say that in all your time at Gitmo, you've never had a meal?

Barnes

No sir. Three squares a day, sir.

Kaffee

I don't understand. How did you know where the mess hall was if it's not in this book?

Barnes

Well, I guess I just followed the crowd at chow time sir.

Kaffee

No more questions.

The intent of the passage is to reveal that notwithstanding the absence of explicit directions that Code Reds are part of the official standard operating procedure, they are still part of the (informal) code of conduct at the United States marine base in Guantanamo Bay - just as natural as eating and finding the mess hall without having it specified in a book. So internalized is it that it is something expected by soldiers to occur if they fall short of expectations, like turning up late at meeting or keeping their barracks in disarray.

This was a brief example of how the rules of legal normativity that fall outside the norms issued by the state can have a substantial impact on the conduct of others within a particular social field. However as mentioned at the beginning of this posting, customary rules that fall outside of those set by state authorities may clash not only with those of the state but with other normative principles. At the end of the film, Dawson and Downey are acquitted of conspiracy to commit murder but are convicted of the fictitious charge of conduct unbecoming a United States Marine (rather than conduct unbecoming an officer) and are dishonourably discharged. Thus the laws of the state as applied by a jury deem their actions invalid (although legitimate at the base).

However this customary norm may also conflict with another customary norm that governs marine ideology. After their verdicts are read out, Downey professes through a haze of confusion and dismay that since Jessep admitted giving the order, they did nothing wrong in administering the Code Red. Dawson then advises Downey that they did do something wrong (even if they followed orders). "We were supposed to fight for people who couldn't fight for themselves. We were supposed to fight for Willie." Although the message comes off in a rather tacky way, and the realization rather belated, a customary rule is not completely accepted or unexamined. They may be trumped, at least in certain circumstances. It's not necessarily clear that Dawson believed that Code Reds might not be appropriate in other cases, but in Santiago's a clearly physically weaker individual, the application of the Code Red shouldn't have been rendered.

AFGM provides a number of interesting perspectives on law, one of those as this posting has tried to illustrate is the exposition of legal pluralism. The point of legal pluralism is not to suggest that the norms of every day life and society are necessarily better or more important than those of the state or that the latter are rendered meaningless by the sometimes greater pertinence of such customary rules in certain social fields. It is merely to recognize empirically that a wide variety of norms not rooted in the state have tremendous purchase, meaning and impact in everyday life. AFGM is just one illustration of this and particularly that following this particular norm in this specific context had tragic results.

[1] During Barnes' testimony on direct examination, Kaffee asks Barnes why Santiago wasn't subjected to a Code Red considering all the foul ups that he committed. Barnes testified that it was because Dawson ordered the others not to touch Santiago. This was in an effort to show that Dawson was not predisposed to committing a Code Red but for the order by Kendrick. Of course, the court is not privy to the fact that Dawson's compliance with Kendrick's order was in part willing because of Santiago's defiance of the chain of command as discussed above.

Further Reading

Daniel Jutras, "The Legal Dimensions of Everyday Life" (2001) 16 C.J.L.S. 45.

Roderick A. Macdonald, "Metaphors of Multiplicity: Civil Society, Regimes and Legal Pluralism" (1998) 15 Ariz. J. Int'l & Comp. L. 69.

Martha-Marie Kleinhans & Roderick A. Macdonald, “What is a Critical Legal Pluralism?” (1997) 12 C.J.L.S. 25

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 song...as 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.

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. Shaadi.com, 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.

Sources:

Achal Mehra, "Fair and Ugly" Little India (10 Feb 2010), online: http://www.littleindia.com/commentary/6044-fair-and-ugly.html

Achal Mehra, "Mirror, Mirror on the Wall" Little India (10 February 2010), online: http://www.littleindia.com/data-file/6045-mirror-mirror-on-the-wall.html

Shankar Vedantam, "Shades of Prejudice" New York Times (18 January 2010), online: http://www.nytimes.com/2010/01/19/opinion/19vedantam.html

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.

Ineffective Assistance of Coaching

Dutch long-track speed skater Sven Kramer had another gold medal within his grasp in the 10,000-metre race this week. However an error by his coach led Kramer to an unfortunate disqualification. Each race involves two skaters, one of whom starts in the inner lane and the other on the outer lane. After each lap, the skaters switch lanes. As Kramer had switched from the inner lane to the outer (he had already been skating for an extensive period during this race), his coach Gerard Kemkers, momentarily confused, quickly and wrongly told Kramer to move back into the inner lane. Kramer did so and continued to race. After finishing (and otherwise winning) the race, Kramer was informed by Kemkers that he was disqualified and the reasons why.

Kramer was naturally upset and Kemkers, upon realizing his mistake, was devastated by his own error. It's worth noting that Kramer is a renowned champion at long-track speed skating and was primed to win the gold medal, barring any other mishap that might have happened notwithstanding Kemkers' faulty advice.

The application of the rules in sporting events can be quick and it can be harsh and in some cases perhaps excessively punitive. Where athletes commit a serious error due to their own negligence resulting in a disqualification, the decision will likely be considered 'legitimate'. However, where, as here the decision to change lanes was the result of the coach's improper advice, a complete disqualification seems less than fair or appropriate.

Although the rules that normally apply in the state-based legal system may or may not fit so neatly for various reasons within the sporting context not the least of which include the types of interests that are stake, both systems arguably share certain common features such as basic procedural and adjudicative fairness (or at least pay lip service to it). Take for example the instance of a criminal trial where a defendant is convicted in no small part due to failures on the part of his/her counsel to provide adequate representation. On appeal, if the defendant can demonstrate that his/her trial counsel was incompetent and the errors committed on account of such incompetence resulted in a miscarriage of justice, the conviction will be overturned and a new trial will be ordered. Proving incompetence however is a rather difficult task in practice. As a Supreme Court of Canada decision in one case attests, there is a

a strong presumption that counsel's conduct fell within the wide range of reasonable professional assistance. The onus is on the appellant to establish the acts or omissions of counsel that are alleged not to have been the result of reasonable professional judgment. The wisdom of hindsight has no place in this assessment.

Returning to Kramer and Kemkers for a moment, athletes are like litigants in the legal process seeking to acquire a positive result. A sporting event can be like a trial or a hearing, some are long and drawn out, others short and brief. In all cases, they seek to get to the "promised land" through the assistance of "counsel" - the analogue for which in the sporting context is the "coach" or "trainer". A bond is built - one of trust. Like legal counsel, the coach/trainer helps to guide the athlete through their expertise of the process including both technical requirements and/or artistic nuances (as the case may be). Furthermore, as in litigation, the coach or trainer plots out certain strategies and tactics, some will work and some may not. Ultimately, in following such predetermined strategies and tactics an athlete like a client cannot thereafter claim that the result was unjust solely on the basis that a reasonable strategy failed to achieve the aims it set out to achieve.

However, what happens or ought to happen when a coach offers a rather sudden and quick yet unreasonable bit of advice which the athlete has little time to reflect on, but because of the established relationship of trust decides to follow it in the heat of the moment and in so doing culminates in a patently adverse and unfair outcome for the athlete?

Kemkers, it should be noted, has worked with Kramer on numerous occasions and through this relationship Kramer has won numerous competitions. Kemkers is himself a former Olympic bronze medalist in speed skating. His experience thus makes the error that much more unreasonable and below the standard expected of someone of his caliber and expertise. Furthermore, given his record in helping Kramer and his experience of the sport as a former speed skater, Kramer had little reason to doubt Kemkers' advice in the heat of the moment.

Assuming Kramer's disqualification was unjust and extreme under the circumstances, what are the alternatives? In the appellate litigation context, when a criminal defendant is able to successfully demonstrate that his/her trial counsel was ineffective, the remedy is normally to order a new trial. Except where it might conflict with other rules, one remedy might have been to allow Kramer to skate the whole race again, and perhaps alone. After all, another country's skater shouldn't be forced to re-race 10,000 metres just because Kemkers made an error. If this remedy would be considered reasonable, Kramer would likely deserve at least some time to recuperate physically before racing the 10,000 metres.

Given that Kramer completed the entire race, another alternative might have been to simply penalize him with a time deduction, rather than a complete disqualification. This might have cost Kramer the gold medal but may have kept him in medal contention depending on the extent of the time deduction.

All said and done, Kramer has stated that he has moved on and will retain Kemkers as his coach in light of their otherwise successful history together and the medals their collaboration has given rise to. Still, one cannot help but think that rules relating to such particular errors ought to be reconsidered to produce more just and equitable results.

Sources:

Raf Casert, "Sven Kramer Lane Change Error Loses Him Gold Medal" Huffington Post (24 February 2010), online: http://www.huffingtonpost.com/2010/02/24/sven-kramers-lane-change-_n_474601.html

Raf Casert, "Sven Kramer Keeps Coach After Devastating Gaffe" Huffington Post (24 February 2010), online: http://www.huffingtonpost.com/2010/02/25/sven-kramer-keeps-coach-a_n_476126.html

Michael Dew, "Ineffective assistance of counsel as a contributing cause of wrongful conviction" (19 November 2006), online: http://www.legaltree.ca/node/643#_ftnref65

R. v. G.D.B., 2000 S.C.C. 22, [2000] 1 S.C.R. 520.

http://www.thejusticeproject.org/national-agenda/court-rules-sleeping-lawyer-violated-defendants-right-to-a-fair-trial/

Announcing Identity

My previous blog post, Citizenship of Sport, focused on the choices made by athletes regarding their construct of nationality and the associated ability to compete in the Olympic games. After watching the first ten days of the Vancouver Olympics television coverage, I have been struck by the ways in which the media – particularly sports announcers – has constructed the identities of athletes in a variety of ways. For the purposes of this article, the media coverage discussed is from NBC.

During the first three completed figure skating events – men’s figure skating, pairs figure skating, and ice dancing – the announcers highlighted the personal stories of the athletes. As the audience, we learned of the injuries suffered by some athletes, the family dynamics of others, the marital status of still others, and even saw childhood pictures of others. We saw their performances, heard the critiques of announcers, and could easily feel the tension and joy or sadness of these athletes when their scores were announced. And yet, throughout all of these stories, the emphasis was placed first on identifying the athletes as people and humanizing them through the explanation of their personal lives, particularly the struggles they endured for the their sport and their dreams of being Olympic athletes.

Through the medium of television announcers as intermediaries, the social laws and norms of dedicated athletes punctuated the norms of the viewing public. It would perhaps be difficult for viewers to imagine volitionally living in a separate dormitory from one’s spouse and sharing meals in a communal dining hall, yet the story of Shen and Zhao, who do this on a daily basis in order to comply with the laws of their training system, made it understandable, if not indeed praiseworthy for their dedication. Interestingly, what was not emphasized in the process of storytelling by the media was nationality of the athletes involved in the skating events. Certainly, nationality was mentioned, but it was not the paramount identifier; instead, names and stories were. These athletes were identified and defined to the viewers through their personalities and struggles, and we supported them out of solidarity or sympathy, not necessarily nationality. In many ways, this can be seen as an outgrowth of the idea of citizenship of sport in that it validates the athletes’ identities as skaters first because of the sacrifices which these athletes made for their sport.

In sharp contrast, the announcers covering the cross-country skiing events have largely identified the nationality of the athletes before mentioning their names. Indeed, during these broadcasts it has not been uncommon to hear a reference to the country for which the athlete competed as the identifier, with little personal information made available to the audience. Of the information made available, much focused on the athletes’ injuries either before or during the competition and not on the deeply personal and compelling stories of the athletes themselves. Often, the focus of information was on the history of the athletes’ countries successes and failures within the particular competition and even against other countries in the competition. The sense of identity for the athletes, at least from the point of view of the audience, thus was shifted to their country, making it easier in a sense for the audience to decide on a favorite athlete due to national allegiance. This method of identity conveyance is also arguably a way to downplay the agency of the skiers as individual athletes, emphasizing instead their identity as part of a larger state apparatus and history in the Olympic games.

While some of this difference in identity transmission could be attributed to the personal announcing styles of the sportscasters for each event, I would argue that there is more to discuss in this difference. Certainly, there is a way to view this difference as an outgrowth of the duality of the Olympics themselves; athletes compete in their individual capacities for their countries, thus there is an allegiance to both the athlete and the country on the part of the audience. In conjunction with the idea of citizenship of state, however, one can view this difference as emblematic of the dichotomy of understanding of the relationship between athlete and citizenship. The method of conveying identity used in the figure skating example clearly supports the conception of an athlete as an individual (or pair) who has dedicated himself to his selected sport to the point where the sport is a method of identity. In this situation, the choice of competing for another country is understandable. However, the method of conveying identity used in the cross-country skiing example clearly supports the idea of state-based citizenship as the defining force in an athlete’s identity and drive, with the idea of being a skier as secondary to that of being a citizen of a particular country.

Thus, we see a more subtle way in which citizenship of sport is introduced to the viewing public through the medium of sports announcers. It is through this medium that the audience also understands and interacts with the laws and norms of a sport which requires a level of dedication and sacrifice that would be outside the realm of traditionally accepted norms in mainstream society.