Tag Archives: NIP

NIP (20%off) Autonomous Motherhood: A Socio-Legal Study of Choice and Constraint (Boyd, Chunn, Kelly and Wiegers)

From the publisher (U of Toronto Press, 2015)

Since the end of the Second World War, increasing numbers of women have decided to become mothers without intending the biological father or a partner to participate in parenting. Many conceive via donor insemination or adopt; others become pregnant after a brief sexual relationship and decide to parent alone.

Using a feminist socio-legal framework, Autonomous Motherhood? probes fundamental assumptions within the law about the nature of family and parenting. Drawing on a range of empirical evidence, including legislative history, case studies, and interviews with single mothers, the authors conclude that while women may now have the economic and social freedom to parent alone, they must still negotiate a socio-legal framework that suggests their choice goes against the interests of society, fatherhood, and children.

Coming April 2015 Use flier below (click for PDF) to preorder – 20% off in paperback.

Profs Boyd and Wiegers will be presenting on this project at LSA in Seattle and Prof Boyd will then jet over to Ottawa for CLSA so you can see her there too.  Boyd.AutonomousMotherhood_Page_1The Authors: Susan B. Boyd is a professor and holds the Chair in Feminist Legal Studies in the Faculty of Law at the University of British Columbia. Dorothy E. Chunn is a professor emerita of sociology in the Department of Sociology and Anthropology at Simon Fraser University. Fiona Kelly is a senior lecturer in the School of Law at La Trobe University. Wanda Wiegers is a professor in the College of Law at the University of Saskatchewan.

 

Papers from this project

Susan Boyd, “Autonomy for Mothers? Relational Theory and Parenting Apart” (2010) 18(2) Feminist Legal Studies 137-158. (R)

Susan Boyd, “Rights of single moms by choice collide with claims of genetic dads” (February 15, 2008) 27:38 Lawyers Weekly 13.

Fiona Kelly, “Autonomous From the Start: Single Mothers by Choice in the Canadian Legal System” (2012) 24:3 Child and Family Law Quarterly 257-283.

Fiona Kelly, “Autonomous Motherhood and the Law: Exploring the Narratives of Canada’s Single Mothers by Choice” (2012-13) 28(1) Canadian Journal of Family Law 63-104.

 

1. Motherhood, Autonomy, Choice, and Constraint

2. Autonomous Mothers and the Emergence of Unmarried Fathers’ Rights to Access and Custody

3. “A Person is the Child of his Natural Parents”: Illegitimacy, Law Reform, and Maternal Autonomy

4. Custody and Access Disputes between Unmarried, Non-Cohabiting Biological Parents 1945–2009

5. Women’s Experiences Of Autonomous Motherhood, 1965–2010: An Historical Snapshot

6. Autonomous from the Start: The Narratives of Single Mothers by Choice

7. Whither Autonomous Motherhood? Choice and Constraint

Here are some other published papers from this project:

{Book Launch} Sept 22: Subversive Property: Law & the Production of Spaces of Belonging by Sarah Keenan (SOAS)

 IFLS Speaker Series & Socio Legal Studies Speaker Series

{Book Launch} Subversive Property: Law and the Production of Spaces of Belonging with Sarah Keenan (SOAS)

Monday September 22  230-4   IKB (Osgoode Hall)  Room 2003 22SeptSarahJKeenanROOM CHANGE IKB 2027 FACULTY COMMON ROOM

Sarah Keenan is lecturer in Law at SOAS, University of London.  She teaches Property, Feminist Legal Theory and Indigenous Land Rights and is also engaged in community-based struggles around each of these issues.  She’s been to the IFLS before, see these posts.          

pdf poster for sharing, printing here

This book explores the relationship between space, subjectivity and property, arguing that new political possibilities for property may be unveiled by thinking about property in terms of belonging rather than exclusion.  While most socio-legal theories of property focus on the propertied subject and that subject’s right to exclude, this book shifts focus away from the propertied subject and on to the broader spaces in and through which the propertied subject is located.  Using case studies, such as analyses of compulsory leases under Australia’s Northern Territory Intervention and lesbian asylum cases from a range of jurisdictions, the book argues that these spaces consist of networks of relations that revolve around belonging: not just belonging between subject and object, as property is traditionally understood, but also the less explored relation of belonging between the part and the whole.  This presentation will discuss the main themes of the book to suggest ways in which subversive property might offer a conceptually useful way of analysing a wide range of socio-legal issues.

 

 

Light refreshments will be provided

Questions? Please contact the IFLS administrator, Lielle Gonsalves LGonsalves@osgoode.yorku.ca

 

Not Taking a Break from Feminism: Reflections on the Criminal Law on the Aboriginal Plains: Gavigan at the Berks

[Part II in a series.  For part I, click here]

Following the IFLS co sponsored panel at the Berks (Cutting Edge Contributions and Critical Reflections in Canadian Feminist Legal History, featuring Constance Backhouse (University of Ottawa Law), Mary Jane Mossman (Osgoode) Bettina Bradbury, York University (History at York University)  & Shelley Gavigan (Osgoode), the blog is posting texts from the talk.  Earlier this week, we posted Mary Jane Mossman’s  Gender and Professionalization Projects: Rethinking Stories of Early Women Lawyers.  Today, Osgoode’s Shelley Gavigan on….

Not Taking a Break from Feminism:  

Reflections on the Criminal Law on the Aboriginal Plains

*we have left the references intact although they are not clickable. Just scroll down to the bottom of the page for all the references. 

Introduction

My title derives its inspiration from the challenge issued by Harvard Law Professor Janet Halley in her book, Split Decisions: How and Why to Take a Break From Feminism.[1] Professor Halley is an American legal theorist whose book reflects her engagement with what she regards as a number of, fundamental flaws in feminist premises and theorizing with respect to sexuality, notably queer sexuality, and hence the importance of taking a break and to work outside feminist frameworks. When I first heard her present this work in its early stages – on this campus – I confess that I was more provoked than inspired. My research and writing since the mid 1980 has been engaged by and with the concerns of feminist theory and activism in law: the legal regulation of abortion, patriarchal relations, family forms, same sex relationships, lesbian parenting, women and welfare, together with a few forays into social justice, poverty law and clinical legal education. On the feminist spectrum, I have usually pitched my tent in the socialist feminist camp (a camp I might add that did not figure in Professor Halley’s critique of feminist bodies of thought).

For this book,[2] I spent the better part of a decade reading and working through lower criminal court records from 19th century western Canada, trying to understand the context and the events in these records, trying to find something more about the participants, trying to identify themes from within the seemingly mundane, seeking to resist the self-evident ways of organizing criminal law, not wanting to write a token chapter devoted to “women”. The more immersed I became in the court records, the more I was drawn to the ones that in different ways involved First Nations or Aboriginal participants – because I felt that I was seeing something new – or at least new to me – in these records.   Very few of these records involved women as central actors, and only slightly more than a handful involved women as accused persons. So, it is fair to ask: Have I (too) taken a break – or drifted away – from feminism? In some ways, this book does represent a break from my earlier work – both methodologically and in its focus – it represents my first real foray into archival research and into the law-state-First Nations relationship. And, to state the obvious: I am not an Aboriginal woman.

However, in as many ways, it represents a continuity of the pre-occupations and theoretical frameworks that have informed my life and my work: a commitment to interdisciplinarity, to the interrogation of the form and content of law and socio-legal relations, the contradictory nature of law and legal regulation, to historically informed analysis, and the importance of human agency. I do not suggest that this book involved the simple use or application of tried and tested research methods and theoretical frameworks to a new subject matter. On the contrary, it took me a very long time and lots of work to produce what I wanted to be a respectful analysis and representation of the experiences and agency of the First Nations people that I found in the court records. But this project was determined to move me out of my ‘feminist’ comfort zone, where I had only researched and written about expressly feminist issues. I had to sort out how to identify the relevance of gendered relations. I wanted to avoid carving out women (or the cases in which they were involved) or to write discrete chapter(s) on gender or women but rather to attempt to integrate attentiveness to gendered relations throughout the book.

I drew on a wide range of archival, other primary and historical sources while endeavouring at the same time to stay close to my data. And, it was only at the very end of the process, when I was trying to think through why – in spite of my commitment to a particular organization for the book – I found myself committed to writing a separate chapter on six accused women’s stories, that the intellectual penny dropped for me – and I realized that the stories of the six women actually advanced the argument of the book. I say in the book that it tells a little known story, relying on voices seldom heard. It is a study in low law – in the sense that Douglas Hay uses that term.[3] The research for this book derives from the court records of a lower territorial trial court – in its everyday application of ordinary criminal law – where lawyers were seldom present, especially in the early period, where accused persons appeared as prisoners, without counsel, with or without interpreters, where appeals to higher courts were not available, I could go on (and I do in the book). I should also say by way of contextualizing the work – struggling with the possibility that all scholarship is in fact autobiographical – that this research returned me to the kinds of issues and challenges that I had encountered in law as a young feminist lawyer practising criminal law on the Aboriginal Plains in the 1970s: I was a low law lawyer, I teach poverty law (inevitably low law) and I am a legal historian of low law.

Lessons From Feminism?

(i)The Importance of Method in How a Story is Told  I accept completely the insistence that legal historical research into court records work with broader contexts and take a “broad view” of the evidence in court records.[4]   This I attempted to do. Inspired by the insights of feminist legal scholarship, I departed from conventional legal methods to identify and analyze this complex relationship. I decided not to use the analytic and substantive categories of criminal law (e.g. offences against property, offences against the person) as its organizing principle. I was interested in taking an approach that would allow me to identify the relations (familial, property, employment) in the context of the alleged offences contained in the criminal court files. However, the question of how to find, identify, and interpret forms of participation and treatment of subordinated peoples, such as Aboriginal peoples of the Canadian Plains, in the criminal processes required another methodological decision.   I looked beyond the dyadic relationship between the state and the accused in orderto capture a wider spectrum of Aboriginal involvement and participation in the criminal law. And, when I did this – when I moved away from both a preoccupation with particular kinds of offences and a traditional focus on the accused – I found more Aboriginal people in the court records – informants, complainants, interpreters, and witnesses, in addition to accused persons – and notably more women. But I had to read all the records to do this. And, finally, I suppose the important point I want to make here is that even though I was not engaged in a project that might easily, if at all, be characterized as feminist, I never stopped bringing a feminist lens and a feminist sensibility to the research.

 

(ii) Adjusting the Research Questions As I worked my way through the historiography, wrestling in particular with two dominant themes in the literature(criminalization and sexualization) I was struck by a question posed by Jean Barman in a piece in which she analyzed the racialized and sexualized construction of Aboriginal women in 19th century British Columbia, question that raises both epistemological and methodological issues: “… what happens when we turn the past on its head and make our reference point Aboriginal women instead of Aboriginal men?”[5] Historians interested in accepting Barman’s challenge face methodological hurdles not least of which is the fact that the names of First Nations women and children are often ‘hidden from history’[6] or, as Hugh Dempsey has observed in reference to the lost name of the mother of the important Cree leader, Big Bear, they have been “forgotten in the mistiness of the past”.[7]   The women of the First Nations are difficult to locate,their voices almost indiscernible, in the legal history of the Plains. Val Napoleon captures this concern when she argues of the context of aboriginal rights jurisprudence, “it appears that indigenous women have been erased off both the land and the legal landscape.”[8] Of the many methodological and interpretative challenges in historical work concerning Aboriginal people, perhaps, as Sarah Carter has observed, none is more important than the dearth of “first hand voices of the women of this era.”[9] We legal historians are heavily reliant on reported cases, and on official records and documents that were produced by the police and other government men.[10] Not many women’s hands or voices to be found there. Historians of oppressed, marginalized and colonized women -such as Constance Backhouse, Sarah Carter and Joan Sangster to cite but three in the Canadian context – are thus necessarily a resourceful and creative lot, because they are writing about people whom conventional legal and social ‘history’ has ignored or misinterpreted. Backhouse’s case studies document Aboriginal women’s victimization, agency, and resistance; Carter and Sangster make the important point that in these official state records, together with those of the religious and missionary records, the voices and perspectives that are recorded are those of the ‘observers’ – not the Aboriginal women themselves. That said, it seems to me that, paradoxically, the lower court records I study may offer a small rejoinder to ‘observers’, and to the silences, erasures, and dominant images that one finds in the historical or contemporary official documents, records, the media, and so on. I do not suggest that the voices and interpreted words of Aboriginal women in the depositions before the justices of the peace and trial transcripts were unmediated by the context and often involuntary circumstances in which they were spoken and recorded. But, as John Beattie has observed in relation to 18th century court records,[11] while such recorded words surely cannot be taken at face value, they do contain valuable information.

 

Some of the Voices I Found: Six (Women) Prisoners’ Stories

Between 1876 and 1903, only six Aboriginal women and one girl, Julia Cote, (who was charged with stealing the clothes she was wearing when she and Alex Bone ran away from the Regina Industrial School), appeared as accused persons and prisoners before Hugh Richardson, the longest serving and most experienced magistrate and judge in the Canadian North-West Territories.   These six women and one girl represent about 1% of all accused persons (589) and 5% of all Aboriginal accused persons (136) who appeared in Judge Richardson’s courts over the period. They are not the sexualized women that one encounters in some of the historiography; their ‘crimes’ such as they were, reflected the social, material and economic realities of their hard everyday lives. Four women (Caroline Gouin, Margaret Favel, Bone Child, and Marie Martin Daniel) were charged with forms of theft (of white people’s property), mostly small items or (in Caroline’s case) money from her employer’s pocket book. Betsy Horsefall was charged with horse theft – a serious offence – even though it involved a charge that she had stolen her own pony. Scholastique Cardinal was charged with murder and concealment of birth in the death of her newborn infant. The court records of these criminal prosecutions indicate that four women were convicted, and received deferred or suspended sentences; there is no disposition indicated in two cases, and in Horsefall’s case, the prosecution in the end did not proceed. Although the voices of Scholastique and Bone Child are not heard, and even Betsy’s voice is muted, it seems to me that Caroline and Margaret were not intimidated by the legal process or by their status as prisoners such that they did not to participate. They challenged their accusers, and in their challenges can be seen very clear theories of their own defences. And, even without benefit of counsel, they achieved some measure of success. There is no record that Caroline was ever convicted of the theft of Mr. McDougall’s coins, and Margaret Favel – accused of stealing a veritable shopping list of a school teacher’s personal property – in the end was convicted of stealing one solitary silver spoon.

I have been asked by a First Nations historian why I included a chapter on this handful of women. Perhaps he and others wonder if their numbers or stories are of any consequence. Here’s what I have to say: These women’s stories demonstrate the larger context and new relations that had arrived: the sanctity of white men’s property, new laws that changed how property ownership could be asserted, and new, coercive, forms of educating and transforming First Nations children into Indian children: Betsy Horsefall’s lost horse and the transformation of property relations through ordinances administered and enforced through low law officials; Scholastique Cardinal’s hidden pregnancy, and the ongoing role of the community in the new legal order; Margaret Favel and Marie Martin Daniel, on white man’s property, and the importance of the Plain; Caroline Gouin’s industry and employment, and her agency and advocacy in court; and, not least the casually enforced anonymity of the woman alleged to have stolen curtains and bells from a settler’s bachelor shack. Their stories are not a side story, and their numbers serve to remind us that the criminal law was not necessarily the first or most important means of subjugating the First Nations of the Plains in the period. And in the end, I decided that if I did not write about these women, I did not know who would. What they had to say and what they contributed to the development of our knowledge of the operation of criminal law in Western Canada is important.

[1] (Princeton, NJ: Princeton University Press, 2006). Professor Halley’s analysis and argument are developed through her engagement with different strands of feminist theory and thought (notably but not exclusively with what she characterizes as ‘power feminism’) throughout the book.

[2] Shelley AM Gavigan, Hunger, Horses, and Government Men: Criminal Law on the Aboriginal Plains, 1870 – 1905 (Vancouver: UBC Press & The Osgoode Society for Canadian Legal History, 2012).

[3] Douglas Hay, “Time, Inequality, and Law’s Violence” in Austin Sarat & Thomas R. Kearns, eds Law´s Violence (Ann Arbor: University of Michigan Press, 1995) 141.

[4] Stephen Robertson, “What’s Law Got to Do with It? Legal Records and Sexual Histories” (2005) 12 J Hist Sexuality 161 at 171.

[5] Jean Barman, “Taming Aboriginal Sexuality: Gender, Power, and Race in British Columbia” in Mary Ellen Kelm & Lorna Townsend, eds In the Days of Our Grandmothers: A Reader in Aboriginal Women’s History in Canada (Toronto: University of Toronto Press, 206) 270 at 271.

[6] To borrow from Sheila Rowbotham’s early contribution to women’s history: Sheila Rowbotham, Hidden From History: Three Hundred Years of Women’s Oppression and the Fight Against It (Middlesex: Penguin Books, 1975).

[7] Hugh A Dempsey, Big Bear: The End of Freedom (Vancouver: Douglas & McIntyre) 11.

[8] Val Napoleon, “Aboriginal Discourse: Gender, Identity, and Community” in Benjamin J. Richardson, Shin Imai, and Kent McNeil, eds. Indigenous Peoples and the Law: Comparative and Critical Perspectives (Oxford: Hart Publishing, 2009) 233 at 235.

[9]Sarah Carter, “First Nations Women of Prairie Canada in the Early Reserve Years, the 1870s to 1920: A Preliminary Inquiry” in Christine Miller & Patricia Chuchryk, with Marie Smallface Marule, Brenda Manyfingers, & Cheryl Deering, eds Women of the First Nations: Power, Wisdom and Strength (Winnipeg: University of Manitoba Press, 1996) 51 at 55.

[10]See Franca Iacovetta and Wendy Mitchinson, eds, On the Case: Explorations in Social History (Toronto: University of Toronto Press, 1998).

[11] John Beattie, Crime and the Courts in England, 1600 – 1800 (Princeton: Princeton University Press, 1986) at 21-22.

©Shelley AM Gavigan 2014

Osgoode Hall Law School

York University

Toronto, Ontario

M3J 1P3

(sgavigan@osgoode.yorku.ca)

Notes for Presentation at

Cutting Edge Contributions and Critical Reflections in

Canadian Feminist Legal History

Berkshire Conference on the History of Women

Toronto, Ontario, Canada

May 22 – 25 2014

 

New Volume of the CJWL out: White Settler Colonialism and Indigeneity in the Canadian Context: A Tribute to Patricia Monture

Volume 26 now out (here on UTP site)

White Settler Colonialism and Indigeneity in the Canadian Context: A Tribute to Patricia Monture/ Colonialisme de peuplement blanc et indigénéité en contexte canadien : Un Hommage á Patricia Monture 

articles aren’t avail on Hein Online or Project Muse yet. [Update, Audrey Greenwood of UTPress advises these pieces should be available at Project Muse on May 2]  U of T Press will sell you a 1 year online subscription for $27 (here)

Contents

Editorial: “Equality Is Not a High Standard” Patricia Monture: 1958–2010  Author Sherene Razack

Race Matters: Sexism, Indigenous Sovereignty, and McIvor  Author Martin J. Cannon

“It Happened More Than Once”: Freezing Deaths in Saskatchewan  Author Sherene Razack

Legal Feminism and the Post-Racism Fantasy  Author Rakhi Ruparelia

Taking “Culture” out of Multiculturalism   Author Vrinda Narain

Book Reviews:

  1. Cheryl Suzack, Shari M. Huhndorf, Jeanne Perreault, and Jean Barman, eds, Indigenous Women and Feminism: Politics, Activism, and Culture, reviewed by Robyn Bourgeois
  2. Jodi A Byrd, The Transit of Empire: Indigenous Critiques of Colonialism, reviewed by Élise Couture-Grondin
  3. Gabriella Gutiérrez y Muhs, Yolanda Flores Niemann, Carmen G González, and Angela P Harris, eds, Presumed Incompetent: The Intersections of Race and Class for Women in Academia, reviewed by Sonia Lawrence
  4. Hilal Elver, The Headscarf Controversy: Secularism and Freedom of Religion, reviewed by Vrinda Narain

New in Print from UBC Press: Calder & Beaman, Polygamy's Rights and Wrongs

 

Click here for UBC press page

Gillian Calder (UVic) and Lori G. Beaman (UOttawa) Eds.

Polygamy’s Rights & Wrongs: Perspectives of Harm, Family, and Law 

Contents look really interesting – with a strong theme connecting them but quite diverse.    They are described in Lori Beaman’s introduction, “Is Polygamy Inherently Harmful?”, which, happily, you can read as a sample, here.  I hope your librarian is getting this (they may appreciate an email suggesting it).  Great cover design too!

 

1 Plus Ça Change … ? Bountiful’s Diverse and Durable Marriage Practices / Angela Campbell 

2 How Should Public Institutions Assess Religious Identity? The Case of Polygamy / Avigail Eisenberg 

3 Polygamy and the Predicament of Contemporary Criminal Law / Benjamin L. Berger 

4 Are They Not Us? A Personal Reflection on Polygamy / Arta Blanche Johnson 

5 Reflecting on Polygamy: What’s the Harm? / Rebecca Johnson 

6 Polygamy in the Parisian Banlieues: Debate and Discourse on the 2005 French Suburban Riots / Jennifer A. Selby 

7 Polygamy and Race-Thinking: A Genealogy / Margaret Denike 

8 Making Them Fit: The Australian National Census and Aboriginal Family Forms / Frances Morphy 

9 The Raids at Short Creek and Yearning for Zion Ranch and the Law of Unintended Consequences / Martha Bradley-Evans 

Conclusion: “To the Exclusion of All Others” — Polygamy, Monogamy, and the Legal Family in Canada / Gillian Calder