WHAT DOES THE TURN TO EXEMPLARITY EXEMPLIFY?

In recent years, we have witnessed a scholarly turn to exemplarity (see, e.g. Gelley 1995; Ferrara 2008; Lowrie and Lüdemann 2015), including more specifically in the study of law (see, e.g., Del Mar 2013; Toracca 2017; Condello 2017a and b). This turn has contributed to enriching reflection on the universal (or, as sometimes put, general) and singular (or, as sometimes put, particular) and their relation. As Lowrie and Lüdemann write:

In law, the universal seems to take the shape of rules or norms and the singular that of facts. As Angela Condello puts it, ‘[t]here is no exemplarity without contradiction, without threshold, and without a gap separating facts and norms – a gap to be filled with a process of embodiment between … facts and norms’ (2017a: 9). As she also writes, ‘[t]he exemplary cases stand on the threshold between the bodies of rules and the world we inhabit: because it is from the world we inhabit that they emerge, but they get promoted to the level of the system of rules. Exemplarity thus mediates between the grammar of norms and the grammar of life’ (2017a: 9).

As I reflect on the turn to exemplarity, I am tempted to ask what the turn to exemplarity exemplifies. If the turn to exemplarity is a reminder of the inescapability of exemplification in human life and judgment, including in the practice of law, what does attending to this inescapability reveal? If the turn also suggests that (at least some) practices of exemplification are to be self-consciously cultivated, what might this cultivation entail and achieve? To what are practices of exemplification and, to perhaps coin a phrase, ‘cultures of exemplification’ alternatives (I think, for example, of scholarship regarding a shift from a ‘culture of authority’ to a ‘culture of justification’ in the South African context; Mureinik 1994) and what might they have to offer us for reflection, inspiration, even imitation?

In 1982, the Canadian state constitutionally “recognized and affirmed” the “existing Aboriginal rights and treaty rights” of its indigenous peoples. The constitutional turn to recognition promised reconciliation between nonindigenous Canadians and Canada's indigenous peoples. This chapter uses “recognition” as an entry point to reconsider some of the (legal) events marking the Canadian state's relations to indigenous peoples. More specifically, this chapter traces recognition's failure to overcome the Canadian state's lethal cognition of indigenous peoples. Because we dwell on how re-cognition discursively repeats cognition in one specific context, we seek neither to show that the discourse and practice of recognition are always and necessarily lethal nor to contribute directly to the theoretical literature that treats the classic texts on recognition. First, we identify the state as the political form of lethality, locating the lethality of the state in “cognition,” in how the state knows, and hence how it sees and speaks. Second, we turn to the Royal Proclamation, the Indian Act, and the White Paper to show cognition at work in the attempt to make indigenous peoples legible, so as to rewrite them as members of a simplified Indian population. Finally, we illustrate the persistence of cognition in recognition by considering the constitutional promise of an honorable speech grounded in a proper sight of indigenous peoples. By examining the Supreme Court of Canada's interpretation of section 35 of the Constitution Act, 1982, we show how recognition continues to reduce indigenous peoples to populations and is tied to an understanding of reconciliation as submission to Crown sovereignty.