Keynote Address by Professor Jeremy Webber, Canada Research Chair in Law and Society, University of Victoria
"Past Injustice, Agonistic Encounter, and the Construction of Community among Those Who Have Nothing in Common"
Abstract: We generally argue as though it is always possible to define what justice requires. We assume that there is always a single just solution to contending claims, perhaps difficult to achieve in practice, but nevertheless possible to define in theory. But are there situations in which the set of just solutions is an empty set? Where the considerations of justice are structured in such a way that, although there is injustice on all sides, there is no solution that can do justice to all sides? Where, no matter what we do, we will inevitably leave compelling claims unresolved? If there are such situations, how should one respond? This paper is inspired by long engagement with one such situation - the problem of how to respond to the dispossession of indigenous peoples in settler societies - although I hope that my reflections are relevant to other situations where the claims of justice simply don't fit together. I examine possible responses to this predicament, criticizing suggestions that we should simply bracket questions of justice and arguing, on the contrary, that any viable response has to keep the existence of injustice clearly in view, even if it proves impossible to remedy all injustice. I then sketch the contours of such an approach. I should make clear that there is a measure of hyperbole in my title. I do not think that we have "nothing in common." But I do think that we often minimize the challenges, and I seek, in this paper, to resist that temptation strenuously. I will speak to the encounter between indigenous and non-indigenous people, not directly to the Israeli-Palestinian context. But I hope that my reflections stimulate useful reflections for those familiar with the intractable challenges of Israel/Palestine.
Jeremy H.A. Webber, B.A. (Hons. Poli.Sci.) (U.B.C.), LL.B. and B.C.L. (McGill), LL.M. (Osgoode Hall).
Prof. Webber practised law from 1984 to 1986 with the Vancouver firm of McAlpine & Hordo. He served on the Faculty of Law of McGill University from 1987 to 1998 (for three years as Associate Dean, Graduate Studies and Research). He served as Dean of Law of the University of Sydney in Australia from 1998 to 2002. He joined the Faculty of Law at the University of Victoria in August 2002, to assume the newly established Canada Research Chair in Law and Society. He is Chair of the Consortium on Democratic Constitutionalism, an interdisciplinary and international group of legal, political and social theorists, created to promote scholarly exchange and collaboration on questions of constitutional theory, design and practice. Prof. Webber's current work is primarily in the fields of legal and political theory, constitutional law, and indigenous rights. In the past he has also written on labour law and Canadian legal history. His work is often comparative. He has published on both Canadian and Australian topics. His publications include Reimagining Canada: Language, Culture, Community, and the Canadian Constitution (Montreal: McGill-Queen's University Press, 1994); Let Right Be Done: Aboriginal Title, the Calder Case, and the Future of Indigenous Rights (Vancouver: UBC Press, 2007) (editor, with Hamar Foster and Heather Raven); "The Separation of Church from State," in Leslie A. Kenny, Clashing Fundamentalisms: When Rival Truth Claims Meet Head-On (Victoria: Centre for Studies in Religion and Society, University of Victoria, 2008), 58-86; "National Sovereignty, Migration, and the Tenuous Hold of International Legality: The Resurfacing (and Resubmersion?) of Carl Schmitt," in Oliver Schmidtke and Saime Ozcurumez, eds., Of States, Rights, and Social Closure: Governing Migration and Citizenship (New York: Palgrave Macmillan, 2008), 61-90; "A Judicial Ethic for a Pluralistic Age," in Omid Payrow Shabani, ed. Multiculturalism and Law: A Critical Debate (Cardiff: University of Wales Press, 2007), 67-100; "Democratic Decision Making as the First Principle of Contemporary Constitutionalism," in Richard W. Bauman and Tsvi Kahana, eds. The Least Examined Branch: The Role of Legislatures in the Constitutional State (New York: Cambridge University Press, 2006), 411-430; "Rights and Wrongs, Institutions and Time: Species of Historic Injustice and their Modes of Redress," in David Dyzenhaus and Mayo Moran, eds. Calling Power to Account: Law, Reparations, and the Chinese Canadian Head Tax Case (Toronto: University of Toronto Press, 2005), 165-195.