Legal solutions can be used to deconstruct the settler state – the aff’s fatalism is flawed

In this article, my aim is to consider the use of law as a political strategy of rupture in colonial and post-colonial nation states. The question of whether and how to use law in order to transform and potentially shatter an existing political-legal order is one that continues to plague legal advocates in a variety of places, from Australia, to India, to Canada to Israel/Palestine. For example, the struggle for the recognition of indigenous rights in the context of colonial settler regimes has often produced pyrrhic victories.21 The question of indigenous sovereignty is ultimately quashed, and aboriginal rights are paradoxically recognised as an interest that derives from the prior occupation of the land by aboriginal communities but is at the same time parasitic on underlying Crown sovereignty; an interest that can be justifiably limited in the interests of settlement.22 Thus, the primary and inescapable question remains: how does one utilise the law without re-inscribing the very colonial legal order that one is attempting to break down?23 I argue that this is an inescapable dilemma; as critical race theorists and indigenous scholars have shown, to not avail ourselves of the law in an effort to ameliorate social ills, and to promote and protect the rights of oppressed minorities is to essentially abrogate one’s political responsibilities. Moreover, the reality of political struggle (particularly of the anti-colonial variety) is that it is of a diffuse and varied nature, engaging multiple different tactics in order to achieve its ends. In relation to the first point, a space of opposition is, in the view of Fanon, missing in certain senses, in the colonial context. A space of opposition in which a genuinely mutual struggle between coloniser and colonised can occur is denied by spatial and legal-political strategies of containment and segregation. While these strategies also exhibit great degrees of plasticity26, the control over such mobility remains to a great degree in the hands of the colonial occupier. The legal strategy of rupture creates a space of political opposition in the courtroom that cannot be absorbed or appropriated by the legal order. In Christodoulidis’ view, this lack of co-option is the crux of the strategy of rupture. This strategy of rupture also points to a path that challenges the limits of a politics of recognition, often one of the key legal and political strategies utilised by indigenous and racial minority communities in their struggles for justice. Claims for recognition in a juridical frame inevitably involve a variety of onto-epistemological closures.27 Whether because of the impossible and irreconciliable relation between the need for universal norms and laws and the specificities of the particular claims that come before the law, or because of the need to fit one’s claims within legalpolitical categories that are already intelligible within the legal order, legal recognition has been critiqued, particularly in regards to colonial settler societies, on the basis that it only allows identities, legal claims, ways of being that are always-already proper to the existing juridical order to be recognised by the law. In the Canadian context, for instance, many scholars have elucidated the ways in which the legal doctrine of aboriginal title to land imports AngloAmerican concepts of ownership into the heart of its definition; and moreover, defines aboriginality on the basis of a fixed, static concept of cultural difference. The strategy of rupture elides the violence of recognition by challenging the legitimacy of the colonial legal order itself.