Beaman, Lori G. The People Who Run The World. Deep Equality in An Era of Religious Diversity, 2017

‘The People who Run the World…’
University Press Scholarship Online
Oxford Scholarship Online
Deep Equality in an Era of Religious Diversity

Lori G. Beaman
Print publication date: 2017

Print ISBN-13: 9780198803485
Published to Oxford Scholarship Online: June 2017
DOI: 10.1093/oso/9780198803485.001.0001

Reclaiming Equality from Law
Lori G. Beaman
DOI:10.1093/oso/9780198803485.003.0006
Abstract and Keywords

This chapter considers the relationship between deep equality and law,
recognizing that for many people equality is a domain of discussion that is
located primarily in law. Though this book is in part about displacing law’s
dominance over equality discourse and reinscribing it in the domain of the
everyday, the author maintains that deep equality and law’s version of equality
are not completely unrelated and it is worth considering law’s role in the
working up of a particular way of framing equality that has come to dominate
the discussion of religious diversity and its ‘management’. Drawing on earlier
chapters in this book whose working assumption has been that law is not at the
centre of everyday life and that it does not guide the negotiation of difference,
the book turns to the necessary task of recognizing law’s place in the
conceptualization of diversity and its contribution to the peace of living together.
The author excavates law through the examination of a case study for evidence
of the values and practices that belong to deep equality, seeking those moments
when law evidences respect, neighbourliness, caring, and perhaps even love.
Keywords: law, love, Jacques Derrida, John Borrows, decentring the law, values, S.A.S. v France,
Multani
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The peace of ‘living together’, therefore, exceeds the juridical, even the
political, at any rate, the political as determined by the state, by the
sovereignty of the state.
(Jacques Derrida 2012: 26)
Very significant legal implications flow from references to love found in

Canada’s treaty experience. The love expressed in these agreements is a
part of Canadian law because Courts must take account of the Aboriginal
perspective on the meaning of the right at stake when interpreting
Canada’s constitution. Of course, love is not the only principle underlying
the treaties and other relationships Indigenous peoples experience in
Canada. There is also evidence of hate, racism, duplicity, greed, anger and
expediency in their interactions with others. Thus, we have choice about
which principles we should emphasize when applying these agreements,
and pursuing contemporary policies today. We choose to interpret treaties
and other legal rights in the light of love, or we can choose some other,
less lofty goal.
(John Borrows 2017)1
Earlier chapters in this book have explored what Derrida names the ‘peace of
living together’, which he describes as exceeding, or being larger than, the
juridical. Rather than imagining law as all-pervasive, or as a dominant aesthetic2
or as casting a shadow3 over the sorts of interactions I’ve described as
illustrative of deep equality, this model of understanding the social world sees
law as subsumed under day-to-day life instead of dominating it.
In this model, law is of only limited and particular use in achieving the sort of
just society imagined when it is invoked. For if law is imagined to be (p.156)
all-pervasive, or overshadowing, and as being a blunt or ineffective instrument,
surely we are left in a rather impoverished condition. To be sure, law’s ability to
contribute to the potential for justice is not inconsequential. Law is an important
institutional site, like education and the media, for the enactment of practices of
deep equality (and for the articulation of principles that might help to achieve
it). However, following Derrida, law’s unwieldiness is a significant weight on the
dexterity required to create a space of living well together: ‘I am proposing we
think beyond any “ensemble,” there is no “how,” there is, in any case, no “how”
that could take the form of precepts, of rules, of norms, or previous criteria
available to a knowledge. The “how” must be invented by each at each
moment’ (Derrida 2012: 34). The process of reinvention is part of both the
fragility of deep equality and its strength.
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This chapter considers the relationship between deep equality and law,
recognizing that for many people equality is a domain of discussion that is
located primarily in law. In part, this book is about displacing law’s dominance
over equality discourse and reinscribing it in the domain of the everyday. I
maintain that deep equality is unlikely to be located primarily in law for a
number of reasons, including the fact that ultimately law is incapable of
enforcing the sorts of elements that make up the deep equality we see in day-to-
day life and that law inevitably focuses on difference in a manner that
reinscribes it, isolating particular identity characteristics from their context.
Moreover, law then contributes to a broader discursive construction of
difference based on atomized identity characteristics. But, deep equality and
law’s version of equality are not completely unrelated and it is worth considering
law’s role in the working up of a particular way of framing equality that has
come to dominate the discussion of religious diversity and its ‘management’.
Following the path of the two opening quotations, I draw on earlier chapters
whose working assumption has been that law is not at the centre of everyday life
and that it does not guide the negotiation of difference. Law must be decentred4
as the primary mechanism by which diversity is thought to be considered or
managed. With this being emphasized, it is also necessary to recognize law’s
place in the conceptualization of diversity and its contribution to the peace of
living together. Law does not cause or frame the conditions of possibility for that
peace, but it contributes to it. And, sometimes, law impedes peace. Inspired by
Borrows, I excavate law through the examination of a case study for deposits of
the values and practices that belong to deep equality, seeking those moments
when law evidences respect, neighbourliness, caring, and perhaps even love.
This leads to a further query: how might law better valorize and support these
values in everyday life? This may seem to be an odd (p.157) quest, for law is
often imagined to be at the apex of understandings of equality and in no need of
such an excavation. I propose that we reverse order, seeing equality as residing
in day-to-day interactions, in the ‘how’ as it is described by Derrida and in the
custom without which, argues Borrows, formal law would remain an empty
promise. Taking this approach, formal law is then seen as an unwieldy and
inadequate attempt to capture some of the paradoxically complex and simple
interactions described in earlier chapters. This chapter acknowledges law’s
place, but argues not for an alternative ‘system’ of law or plural regime, but for
an equal place for practices of deep equality found in the everyday and a greater
attention to those practices when sorting out the challenges of diversity. Stories
of negotiation, with their attendant moments of frustration, hesitation, and even
anger, circulate not as ‘wins’ or ‘losses’, but as templates for possible directions
and as evidence of the value of the process. The models for living well together
exceed the juridical, as Derrida notes. Law is neither foundational nor causal;
rather it is a contributor to both peace and conflict.
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A brief preliminary note about this use of the word ‘law’ which will no doubt
cause anxiety amongst legal pluralists5 who are busy creating a benevolent
industry of validation for systems of law (or, other normative frameworks)
outside of formal or positivistic law. Borrows distinguishes between formal law
and customary law: ‘Without customary law, formal law, as it emerges from
legislatures and courts would not take us very far. Many countries have
outstanding statutes and well-reasoned judicial opinions, yet life is degraded
because customs which reinforce love are absent in public life’ (Borrows 2017).
Without relying too much on the anthropological, I prefer to focus on Borrows’
use of the word ‘custom’ rather than ‘customary law’. The pluralist project of
naming alternative systems seems to have two effects: realms of law are still
imagined as being both discrete and in competition with each other. Formal law,
no matter how benevolent one may be, is inevitably the enemy against which one
rails, and, through that protest, it is all too often reified yet again as
authoritative and all-pervasive.6 The appeal of Borrows’ analysis is that, for the
most part, he is able to sidestep these perils to introduce love as an entry point
to an in-between space that blurs the (p.158) boundaries of formal law and
everyday life. I seek to do the same, with a perhaps slightly wider repertoire of
values and practices.
Love in Law
In 2014 John Borrows gave one of a series of lectures at the Canadian Museum
for Human Rights. In his lecture, entitled ‘Indigenous Love, Law, and Land in
Canada’s Constitution’, Borrows traced the presence of love in the history of the
relations between Indigenous peoples and the Canadian state.7 In Borrows’
analysis love is not a legal principle, nor something that should be constituted as
a legal universal, but rather a conceptual and lived entry point into
understanding what has been present—love—to gesture towards what could
frame constitutional interpretation. Understandably, Borrows is cautious in his
unique foray into this unusual territory for law. Importantly, he recognizes that
law can never own love, and that the potential for abuse is high:
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Appeals to love which are patriarchal, patronizing, and infantilizing should

never be an acceptable part of legal or political life. Languages of love
must be decolonized. They must reject gendered and racialized dimensions
which disempower women and adversely discriminate on the basis of any
other right and freedom. Love should not stand first, or alone, in any
political and legal lexicon. It should not be problematically prioritized.
Love must always be integrated with protections and practices found more
broadly in our systems. I do not claim that love lies at law’s foundation. In
fact, I reject foundational, universalized, idealized or essentialized appeals
to love. Calls to love can be co-opted and abused to serve narrow, selfish
and discriminatory purposes. They can be very destructive. Lawyers,
judges, politicians and others might argue that their way of loving is
foundational and therefore coerce others to purposes they do not share.
The Indian Act, residential schools, and the theft of Indigenous lands
remind us of love’s bitter fruits. The language of love can be dangerous,
and we must be exceedingly wary of its appearance. It can be domineering,
sadistic and subordinating.
Nonetheless, as Borrows points out in the statement that opens this chapter,
constitutional interpretation deserves the highest standards and loftiest goals
and love offers one possibility (although, he is quick to point out, not the only
one).
Although love is rarely mentioned specifically in law and in political debates and
transactions, a broader set of values, of which love might be imagined to be a
part, play a frequent role. Borrows’ counsel to rigorously scrutinize the (p.159)
purposes for which love, and by extension, other values and practices
associated with them, are called into service is well advised. Courts often refer
to ‘Charter values’, Canadian values, underlying values, competing values, and
so on. Political and legal interventions are rife with appeals to values.
Sometimes, these references to values are, as Borrows argues, abusive and
coercive. This is particularly troubling when states and those in authority deploy
them carelessly or to stir fear, anger, and resentment, to establish difference, or
to mark the ‘bad’, ‘uncivilized’ or ‘undesirable’ citizen.
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Authoritative and exclusionary pronouncements should attract particular

scrutiny, and ‘love as a legal and political concept should be rejected if its
invocation diminishes other’s agency’ (Borrows 2017). We might, for instance,
question the invocation of Canadian values in the public statements of
government officials in relation to the taking of the citizenship oath. Former
Canadian Prime Minister Stephen Harper, for example, stated: ‘Why would
Canadians, contrary to our own values, embrace a practice at that time that is
not transparent, that is not open and frankly is rooted in a culture that is anti-
women.’8 A Conservative Party (the Prime Minister’s party) webpage devoted to
the niqab stated that this is ‘Not the way we do things here’ with a quote from
Harper that ‘It is offensive that someone would hide their identity at the very
moment where they are committing to join the Canadian family.’9
The idea of shared values is frequently deployed in exclusionary ways by

governments and courts in Western democracies. These values purport to
represent ‘us’ (Canadians, French, Australian, and so on) and are defended as
necessary for social cohesion and even as enhancers of inclusion. The effect of
these grand values statements is to demarcate ‘Us’ from ‘Them’. As an example,
in its citizenship guide for new immigrants entitled ‘Welcome to Canada: What
you should know’, the Canadian government points to the Canadian values of
human dignity and gender equality and positions these in relation to ‘barbaric
cultural practices that tolerate spousal abuse, honour killings, female genital
mutilation, forced marriage or other gender-based violence’ (Citizenship and
Immigration Canada 2013: 36).
Such a deployment of values similarly occurs in the European Court of Human

Rights decision in S.A.S. v France (2014) in which a range of national values is
cited to justify dismissing the applicant’s challenge to the French criminal law
banning the wearing of facial coverings. The punishment for violating the facial
covering ban is to take a citizenship course. The Court states that ‘the purpose
of the course is to remind the convicted persons of the Republican values of
tolerance and respect for the dignity of the human being and to make them
aware of their criminal and civil liability, together with the duties that stem from
life in society’ (at para. 28). The niqab-wearing woman is (p.160) imagined to
be in need of reminding about the ‘values’ of tolerance and respect. Despite the
prevalence of violence against women in Western democracies, and the
questionable achievement of gender equality, gender equality is cited as a value
that is positioned in opposition to the Other who is by implication Muslim and
who is imagined to not share these values.10 This distorted deployment of the
‘value’ of tolerance is surely worthy of a sustained critical scrutiny and debate.
And, its diminishment of S.A.S.’s agency is a clear signal that something is
amiss.11
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In writing about the French example Hilal Elver comments on the harm that is
done when states and people in positions of authority create and solve problems
of their own making: ‘One of the unintended consequences of the headscarf
controversy was that it reintroduced strict secularism as a matter for debate in
French society after a century of consensus’ (2012: 125). Although values such
as caring and respect are deployed in these instances, they must, as Borrows
argues, be critically evaluated. Elver points out that France adopted the
headscarf ban despite the fact that the number of girls wearing headscarves in
French schools had been declining for nearly a decade (2012: 117). Headscarf
hysteria was generated by a number of techniques, including the media
representation of headscarf-wearing girls with appropriation of their voices by
‘expert’ commentators and the circulation of negative narratives by networks of
authority, including the Stasi report which presented personal opinion as
‘fact’.12
Derrida identifies the tendency to create and solve problems of cohesion as the
‘new legalism’ in the international order, which involves, he argues, a reduction
of justice to law:
this new legalism, sustained by technological resources of investigation,

communication, ubiquity, and unprecedented speed, runs the risk of
reconstituting, under the pretext of transparency, a new inquisitorial
obsession that transforms anybody into a subject or a defendant
summoned to ‘live together’ according to the ensemble, while renouncing
not only what one names with the old name of ‘private life’, the invisible
practice of faith, and so on; but also, and quite simply, while renouncing
this possibility of the secret, of separation, of solitude, of silence, and of
singularity, of this interruption that remains, we have seen, the inalienable
condition of ‘living together’, of responsibility and of decision. (2012:
34)13
(p.161) Negotiating diversity is imagined to only be possible under laws that

are increasingly presented as representing universal values and the results of
negotiation as requiring compliance with a narrow set of fixed solutions. In this
reductionist regime, equality is reduced to a legalistic framework that rarely
extends past formal equality.
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States have the potential to create a climate in which difference is highlighted or

in which difference is minimized.14 Vertical state action often attempts to shift
horizontal or populist understandings of Us, or it may attempt to strengthen a
weak horizontal conceptualization of Our Values or to weaken a strong
conceptualization that runs in opposition to state goals or interests.15 A dramatic
example of the extent of state intervention to reconfigure the ‘Us’ and ‘Them’
has already been discussed in relation to Drosoula’s statement in Birds Without
Wings in which she pronounces that the ‘people who run the world’ will never
understand how complicated it really is. Drosoula’s ‘repatriation’ to Greece, a
country to which she has no connection, is grounded in a state construction of
who she ought to be rather than who she is. S.A.S. is assessed by the European
Court not on the basis of who she is, but as an imagined Muslim woman who
must be saved from herself. Drosoula’s observation about the ‘people who run
the world’ is a cautionary tale for governments and courts using values to create
social categories of belonging and distinction that can effectively destroy
communities in which people coexist successfully.16 There are countless
variations of state interventions to this end: in his recounting of Bosnia’s history
Muharem Bazdulj notes the intertwined lives of Jews, Muslims, Christians, and
Orthodox which changed in the aftermath of civil war when new ways of seeing
self and other became part of the state project.17 The point is, values including
love are used for (p.162) multiple purposes and it is important to subject them
to scrutiny, even as they are, both in the abstract and often in practice, laudable.
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It is essential to name these abusive practices of values deployment, but it is

equally, and perhaps even more important, to return to a focus on alternative
narratives that create spaces for fairness and justice. It is a disconcerting fact
that values deployment can be mobilized for both inclusive and exclusive
purposes and even more perplexing is that the same values can be used in this
way. As Borrows points out, it is crucial to analyse the use to which they are put.
States do not, of course, always create division and essentialize difference
through their policies and laws. In his book Countrymen Bo Lidegaard (2014)
explores the state policies that he argues worked to protect Denmark’s Jewish
population during the Second World War. Simply put, the position of the
government and the king at the time was that there was no Jewish ‘problem’ in
Denmark, even as the Nazis were insisting on this framework as the only
possible one within which Jewish citizens could be imagined. Jews were, argued
both the king and the government, well integrated and part of ‘Us’. By refusing
to differentiate or create categories of difference, Denmark was able to protect
its Jewish citizens more fully than many European countries. Denmark achieved
the difficult balance of recognizing and supporting the distinct identities (I use
the plural deliberately) of Jews while at the same time emphasizing their
similarity as equal citizens. Moreover, argues Lidegaard, the position of the
Danish state and king accounts for the strong commitment by ordinary Danes to
take extraordinary measures to keep Danish Jews safe. Danes themselves did not
see these measures as extraordinary or heroic. States, and law, can also create
conditions for deep equality and love, neighbourliness and protectiveness to
flourish.
Borrows (2017) argues that this is possible through law’s persuasive, rather
than coercive, dimension:
Furthermore, in acknowledging that love should never be forced, it is also

important to admit that coercion is only one dimension of the law. Many
laws flowing from our political processes are designed to enhance
freedom, autonomy and choice. Laws can incentivize choice; as such they
promote the pursuit of diverse and even contradictory goals. People are
encouraged to develop their own interests, resources and diverse goals
through law. Our constitutional system attempts to facilitate freer
formation of contracts, more productive uses of land, and the creation of
meaningful social bonds. Our statute books are filled with provisions which
place autonomy rather than coercion at the heart of their purposes. Thus,
it is possible to contemplate that love might be legally relevant, as
persuasion stands alongside coercion in our law.
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Despite the limitations and dangers of drawing values such as respect, love,
neighbourliness, and caring into law and politics, there is value in pausing and
thinking more carefully about how deep equality might be and is enacted in law.
(p.163) The tale is not necessarily simple, and courts seem to work hard to hide
caring, neighbourliness, and respect, often failing to mention the instances when
parties have resolved differences themselves, only to have an intervention that
destabilizes the resolution. Law enjoys the role of hero, framing social life so as
to create space for itself as white knight to ride in and resolve the situation. It
rarely explicitly acknowledges the heroism, initiative, bravery, and creativity of
everyday people as they attempt to implement solutions to the challenges that
difference sometimes poses.
Rather than rejecting law out of hand as a site of or facilitator for deep equality,
it is useful to take deep equality as an analytical entry point into law that can
emulate Borrows’ approach regarding love. There are some good reasons to do
this. First, law offers traces of the sorts of strategies employed by people as they
struggle to reconcile difference, often with no thought to the eventual legal
quagmire they will find themselves in the midst of. These traces are found in
court discussions of the sorts of negotiations engaged in on the path to litigation.
Through an examination of such discussions we can recover elements of deep
equality. Second, law can offer insight into how either the process or the fragile
state of deep equality is disrupted. In other words, what went wrong? Third,
because equality is so inscribed in law, both legal and other academic
discussions of equality enrich the project to frame and reclaim equality anew. It
is within the institution of law that equality has received the sustained attention
of a good many jurists and scholars. Though critical of law’s application and
imagining equality, there is a great deal to be learned as well. Finally, law can
offer a framework for one version of equality, albeit a somewhat narrow and
much less robust version than the sort of equality that is the primary focus of
this book. Law’s normative framework, which includes some notion of equality
(and a potentially generous one), carries considerable weight, even though the
specifics of what this means have been disappointingly interpreted by the courts
and reveal law’s own limits as a mechanism for the achievement of deep
equality.
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Inspired by Borrows’ insistence that love can be one guiding interpretive

principle in law, we may now be better equipped to think more carefully about
deep equality in law. Of the many Supreme Court of Canada decisions on religion
and religious ‘difference’, perhaps the case that has the most potential to
illuminate love and caring in law is that of Gurbaj Multani, the Sikh schoolboy
who sought to wear his kirpan to school. This exploration is not an attempt to
redeem law as the primary purveyor of equality; rather, using deep equality as
an entry point, it is possible to ask what are the places of its enactment in that
case, and how might those be constructed not as legal ideals or universals, but
as instantiations of interpretive tools not only for the courts, but in the
construction of narratives in negotiating difference on the ground. Piecing
together the remnants of stories that exemplify caring in that case offers a
cartography of possibility for other such recovery missions.
(p.164) The Multani Case

When Gurbaj Singh Multani went off to grade 7 French public school in
Montreal he was likely not thinking about engaging in a legal battle about his
kirpan. That was yet to come. Instead, as a child in an immigrant family he
wanted to do something that many people who choose to live in Quebec and who
are not native French speakers attempt to do: improve his French. This might be
understood as a demonstration of his love for Quebec and his respect for its
French language policies.18 His desire to learn French can be understood, then,
as being intertwined with a relationship to Quebec and to his own future. By
investing energy in this enterprise he was committing to his future as a citizen of
Quebec and creating the possibility of ongoing relations with his fellow French-
speaking citizens. This commitment might therefore be assessed as a
representation of Gurbaj’s desire to enter into relations of caring, respect, and
neighbourliness, the potential for which is enhanced through the acquisition of
the French language. Living in Montreal without learning French is entirely
possible, but learning French opens the possibility of deeper civic engagement.
To be sure, there were no doubt pragmatic considerations as well, but these
other, perhaps more lofty sentiments and values cannot be erased from the story.
The precise details of the process by which his kirpan came to be the defining
characteristic of Gurbaj Singh, rather than his academic achievements, his
strength of character, or his athletic ability, remain somewhat obscured by the
layers of ‘facts’ recited in the legal cases. Once the famous playground incident
happened (his kirpan fell out of its sheath) and the kirpan became the focus of
attention, it is likely that even then the law was not foremost in Gurbaj Singh’s
mind, although he and his family sought the advice of a lawyer when the school
initially reacted by demanding that he stop wearing it.
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As he and his parents negotiated with the school principal about what would be
acceptable to the school in terms of wearing the kirpan, we might imagine that,
despite the difficult territory being navigated, everyone involved in those
conversations came to them with good will, and exhibited kindness, respect, and
a desire to find common ground. We know this to be so, in fact, because in his
interviews with the parties involved in what became the case, Howard Kislowicz
explored the process by which an agreement with the principal was reached.
Gurbaj Singh Multani twice modified his compromise, offering in the end to
double-wrap his kirpan when the board rejected the agreement reached by the
principal and the Multanis.
(p.165) Then we didn’t have any choice, we contact the local gurudwara
committee…we believe we can solve things by talking, right, dialogue? So,
they tried to talk to school. We had few students who were going to
Concordia and McGill, wearing kirpan, and they don’t have problems, so
we took few of them, went to school, they still didn’t agree, they kept
saying security issues, so we didn’t have any choice we met one of the
lawyers. (Cited in Kislowicz 2013: 205)
As Borrows points out, often side-by-side with love are hatred, fear, and
prejudice. This was the case when the school board became involved and
insisted that the agreement that had been reached, through negotiation,
dialogue, compromise, and no doubt some awkward moments, could not be
honoured. Even when this betrayal and its accompanying prejudice occurred,
the Multanis insisted on continuing dialogue, and turned to their local gurdwara
in the hopes that it might be able to facilitate a resolution. The suggestion that
Gurbaj wear a plastic or wooden kirpan around his neck (a sort of Christianized
symbolic transformation) was unacceptable to him and his family. His agreement
to double wrap the kirpan came at a cost to Gurbaj, in that some of the leaders
of his community disapproved of such an approach. Nonetheless, his desire to
reach a compromise that would enable him to continue with his studies
prompted him to negotiate a strategy that would be acceptable to the school and
would not compromise his religious practice.
Page 12 of 31
It is instructive here to juxtapose the careful negotiation between the Multanis,

the principal, and perhaps the teacher or teachers and the concern expressed by
the Bouchard–Taylor commissioners that people were not working things out
themselves and that, perhaps, the complaint and general perception that there
was too much recourse to law and rights was factual. Bouchard and Taylor
advocated for ‘concerted adjustment’. Of course, the evidence that the
Commission had collected to debunk the hysteria propagated by the media
stories should have told them that people were in fact working things out quite
well most of the time. So were Gurbaj Singh, his parents, and the school
principal. Unfortunately, the hysteria that characterized the media stories
examined by Bouchard and Taylor also permeated the situation in which Gurbaj
found himself, and the carefully crafted resolution (which some might view as
having been too conciliatory on the part of the Multanis19) was the target of
derision rather than celebration. Respect was replaced with laughter at the
meeting of the Singhs with school board officials and parents:
We sat together, we tried to talk to them, they didn’t listen, there were
parents, there were schools, at school board there were about 20 to 30
members…So we (p.166) were there explaining them, but they kept
laughing, and uh, they just didn’t listen to us. (Cited in Kislowicz 2013:
205)
This might be the end of the story: the negotiated conditions were in ruins, the
Multanis subjected to disrespectful treatment by fellow parents and school
officials, and the kirpan simplistically reduced to a knife like any other by the
school board and the courts.20 The Quebec Court of Appeal,21 as an illustration,
made the following statements:
There is most certainly a direct and rational connection between

prohibiting the wearing of the kirpan or the carrying of a weapon or
dangerous object in educational institutions and the objective of
maintaining an orderly and safe environment for both the students and
staff. (Multani C of A, at para. 86)
This regulation from the Code of Conduct cannot go so far as to prohibit

the possession of any object which can cause injury; indeed, even a pencil
can be used to inflict injury. Nevertheless, a reasonable line must be
drawn, and an inherently dangerous object falls beyond that line. (at
para. 87)
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The Court of Appeal sets up the ‘fact’ of the kirpan as inherently dangerous and
positions it in the sights of a reasonable line, a move that marks its exclusion as
indisputable. One of the expert witnesses was more explicit in his equation of
the kirpan with a knife, and constructed the kirpan as potentially creating a
school culture in which students would feel compelled to bring knives in self-
defence:
The situation is different when it involves the kirpan for Sikhs or knives for
other children, because these objects are not visible to the supervisors.
Although supervisors are generally not aware that these weapons are at or
near schools, the children are much more likely to know who is armed.
[…]
This means that a student may believe it is necessary to bring a knife to

school to defend himself from other students in case of a fight, since he
knows that because some students have the right to carry one, other
students have also decided to carry one without telling anyone about it.
(at para. 97)
In this narrative, in which violence dominates, the ambiguous nature of the

kirpan is lost.
However, the legal process and the interactions that circulate around it create
opportunities for a new ending and opens space for a clearer view of another
narrative of caring and respect. Although difficult to trace, the initial resolution
between the Multanis and the school principal signals the presence of an
alternative narrative from the very beginning of this story and whose (p.167)
threads are woven throughout the entire legal process. The narrow
interpretation of the kirpan and the injustice that accompanies it is only one
narrative and not the sole way to interpret the story. These narratives sit side by
side, although the negative version of the story sometimes overshadows the
companion narrative of kindness, caring, love, and respect.
A glimpse of this alternative narrative was introduced by an expert witness who

drew on the work of Dharam Singh, which interprets the thinking of Guru
Gobind Singh. This work illustrates the complexity of the symbolism of the
kirpan and why it is profoundly invested in the discourse of peace and love, as
well as in violence:
Page 14 of 31
peace is, no doubt, of profound significance and is based on the doctrine of

higher values for which even the price of peace is not considered too high.
In fact, justice, universal love, equality, fairness, consideration and
cooperation lead to the dawn of eternal peace. However, whenever these
values get threatened, man must resist this threat though his resistance
must be peaceful and non-violent to begin with. However, resort to arms is
declared advisable if all other means fail.
(Cited in Kislowicz 2013: 206)
This articulation presents the complexity of negotiating difference, not as a

binary of peace and violence, but as a continuum in which both exist at once (as
they almost always do) and with a view to love, equality, similarity, and
cooperation.22 We should recall Chamberlin’s (2004: 137) observation that close
attention to the borderline between what ‘is’ and ‘is not’ or truth and lies
enables us ‘to recognize the arbitrariness of both. And the better able we will be
to reimagine Them and Us.’ Neither law nor the media is especially adept at
handling this level of complexity or subtlety, shaping nuance into essence and
framing narratives as competing rather than overlapping and insisting on an
adversarial rather than a cooperative framing.
Chamberlin’s attention to the borderline draws us back to a discussion of

similarity, which effectively dissolves the ‘Us’/‘Them’ boundary. Similarity plays
an important role in the narrative of respect, justice, fairness, and love in the
Multani story: the values represented by the kirpan, and held dear by many
Sikhs, are identified with the values that the Canadian Charter of Rights and
Freedoms embodies. Counsel for one of the interveners made the following
statement in an interview with Kislowicz:
if you hear about all those ideals [associated with the kirpan], they’re very
consistent with Charter values, they’re very consistent with Canadian
values…defending the defenseless, that’s what the Charter is all about,
really right? (p.168) To protect the minority against the tyranny of the
majority. And so that was a large part of our educational process with the
court, was to really be able to speak about what these articles of faith
mean for the larger Sikh community, and why they’re so important…why
it’s difficult and challenging for a Sikh to be parted from those and why
that literally impacts on my conscience.
Page 15 of 31
Emphasis on shared values, including the importance of safety, was a key

counter-narrative in the process of moving through the court process. The
kirpan itself, not unlike the Sword of Justice, was presented as a symbol of
opposition to oppression and a commitment to justice. Similar experiences and
practices can redistribute difference: the tradition of Scottish men wearing a
ceremonial dagger contributed to the acceptance of the kirpan as a ‘different
but related’ practice in the UK.23 The ability to refocus the gaze and to reframe
the object in view is critical, and is part of the process of law and the stock and
trade of lawyers. It is also part of other domains, as noted art critic John Berger
(2008: 8) observes: ‘The way we see things is affected by what we know or what
we believe.’ Berger’s simple observation is shared by one of the lawyers involved
in the Multani case:
The idea that Quebec students cannot be taught the difference between a
kippa and an illegal hat or a baseball hat worn by students, that they
cannot be taught the difference between a kirpan and a knife, that they
can’t be taught the difference between a scarf worn by a Muslim girl and
an illegal violation of the school uniform is terrible and it’s very close to
the views now discredited that if an RCMP man wore a turban then,
somehow, Canadians would not have respect for him.
The ability to see differently, and the possibility of it, generate hope, respect,
and recognition of the emancipatory possibility of diversity. Rather than
emphasizing the lowest common denominator of ignorance and mistrust, the
lawyer foregrounds the ability of people to get along, and to negotiate difference
in a framework that does not employ a sameness or formal equality approach.
This capacity to see and to know is linked to a broader aesthetic.
Page 16 of 31
The bare aesthetics of the Supreme Court decision did not go unnoticed by the
legal participants: one lawyer stated, for example, ‘some of the most (p.169)
profoundly beautiful statements on freedom of belief and conscience came from
those 8 judges. I mean, to me it’s a decision that all Canadians ought to read just
for that reason alone, because of their intuitive understanding of what
conscience was and what it meant, and what it meant to live in this multicultural
society’ (cited in Kislowicz 2013: 213).24 The idea of the beauty of the statements
of the judges resonates with Borrows’ turn to higher sensibilities and emotion as
an appropriate and desirable inclusion in law’s repertoire. Drawing out the
beauty of law’s pronouncements is an unusual approach to law’s contribution.
Yet this notion of beauty forms part of the framework that is constituted by the
narrative of deep equality I am tracing here. This lawyer also recognizes the
value of circulating alternative narratives, or, of circulating this particular
narrative of who Canadians are and the contours of living well together. Though
the lawyer attributes the narrative to the beauty of the statements produced by
the judges, those statements are made possible in the first instance because of
the relational production of the elements of deep equality through everyday life.
The statements of the judges capture these relations by distilling them into legal
principles, but the judges themselves do not create or produce deep equality. At
best they affirm it, while the heavy lifting has been done from ‘below’. The
judges link this narrative to legal frames such as the Charter, but those frames
are not generative.
The beauty the lawyer recognizes and the aesthetics of law echoes through, for
instance, these statements:
The argument that the wearing of kirpans should be prohibited because

the kirpan is a symbol of violence and because it sends the message that
using force is necessary to assert rights and resolve conflict must fail. Not
only is this assertion contradicted by the evidence regarding the symbolic
nature of the kirpan, it is also disrespectful to believers in the Sikh religion
and does not take into account Canadian values based on
multiculturalism. (Multani, at para. 71)
Religious tolerance is a very important value of Canadian society. If some

students consider it unfair that Gurbaj Singh may wear his kirpan to school
while they are not allowed to have knives in their possession, it is
incumbent on the schools to discharge their obligation to instil in their
students this value that is […] at the very foundation of our democracy.
(at para. 76)
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To be sure, there are assumptions embedded in these statements that a critical

analysis can uncover, including the prioritization given to ‘belief’ in the
conceptualization of religion, the use of ‘tolerance’ to describe the value being
mobilized, and, pragmatically, the burden placed on schools to add yet one more
educational mandate. Yet, the Court is genuine in its desire to link Gurbaj
Singh’s religious practice and commitment to the fabric of (p.170) Canadian
values and identity, carving out a space in which difference can flourish through
shared values and democratic structure. The Court’s statements are not perfect,
yet they reflect the messy navigation of the terrain of diversity in a manner not
unlike that which happens in everyday life. The provenance of the Court’s
statement is visible in two statements made during oral arguments25 before the
Court:
School is a place where I think tolerance and openness should be taught

rather than the opposite assumed. We should not assume that everybody is
either instinctively a naturally racist anti-Semitic homophobic and,
secondly, even if a certain degree of that exists, we should assume that the
purpose of schools to teach the opposite and not to simply say, for fear of
that, don’t show anybody where you belong, let nobody know that you
belong to a different group because then somebody might hit you.
(Grey in Multani Transcript 2005: 20, lines 14–19)
The school system should be spending its time proactively, learning from
the values that have been imparted to Gurbaj Singh and being able to
teach those values to other students by saying to them, here is an
individual that has chosen not to be involved in gangs or gang violence,
here’s an exemplary student who has gotten his strength and his faith has
allowed him to be an individual that is able to stand apart from the rest of
the world and say, I choose to look and be different despite choosing to
look and be different, I have gain [sic] from my own teachings, my own
belief systems an inner strength, a sense of being that I am not going to
fall to the wayside, that I’m not going to become like a lot of students that
we have in our school systems across this country who have an identity
crisis.
(Shergill in Multani Transcript 2005: 45, lines 3–11)
Page 18 of 31
These statements in turn are located in the practices and relationships of Gurbaj
Singh, his family, and the school community. The Court remarked on the
community created by the school context and the relationships that form within
that community: ‘The school environment is a unique one that permits
relationships to develop between students and staff’ (at para. 65). The Court and
the lawyers understand (although don’t always effectively articulate), the link
between and the necessity of everyday relations and the non-juridical
instantiation of justice and equality and the rather more rigid legal articulation
of them through constitutional principles. In his exchange with the Supreme
Court Justices the lawyer for the Multanis says:
I also want to say that the importance is for the purpose of integration of
people. It’s for their conscience but also their dignity, equality, that’s why I
did the analysis under 15 as well, and their sense of belonging.
(Grey in Multani Transcript 2005: 26, lines 14–16)
(p.171) Building on the school community, the Court also observes, almost in
passing, that Sikhs have been in Canadian schools for 100 years. Thus, though
the particular family involved in the case before the court may be described as
‘newcomers’, the Sikh presence has formed part of and contributed to the fabric
of contemporary, diverse, and multicultural Canada.
The achievement of a ‘deep equality’ result in Multani, in which the Court

supports Gurbaj Multani’s wearing of the kirpan to school, is the culmination of
processes in which caring, respect, and understanding have shaped the
interactions between people. This includes the Multanis, who are not solely
‘applicants’ whose rights have been violated, but who are also participants
interested in a broader conceptualization of justice. Their identity as Sikhs is
intertwined in this justice imaginary. There are many actors in this process: the
school principal who accepts the difference between a knife and a kirpan; the
lawyers who excavate for principles of fairness and justice across boundaries;
the experts who attempt to explain the complexity of religious practices; and the
myriad interactions and micro-processes of various actors, some of which are
part of the legal process and some are not. Gurbaj Multani describes some of
these interactions:
Page 19 of 31
It’s not that everyone hates us, it’s only few people as I was saying in the
beginning to that, it was ignorance, right? I have met few people, their
point of view towards it were very negative, but right after when I
explained and everything, they are right after in 5 seconds they’re
changed. I went to few shops with my dad and they’ve been seeing us on
TV, right? They see us, they react, they give us a bad look and stuff, but
they do come up to us and ask, oh, you’re the same guy, oh you know, you
shouldn’t do that, you’re in the community like this, you’re supposed to live
the way they live, we explained them, and then we find that their point of
view against the kirpan is changed right after we tell them.
These moments of exchange are imported into the framework of the legal
process, remaining invisible in their specificity, but present through the
translation of them by legal actors. They coalesce to constitute a framework of
possibility for the achievement of deep quality, which is expressed in legal
language by the lawyers and the Court. Derrida rightly cautions that ‘The “how”
must be invented by each at each moment’ (2012: 34); nonetheless, narratives of
possibility can inspire the imagination towards the creation of that ‘how’ when it
might otherwise disappear, offering an alternative imaginary of how the world
could, should, and sometimes does work. The persistence of this narrative
throughout the legal process is what is key in this story. This is not ‘law’s
shadow’, but law’s dependence on extra-legal enactments of justice and the
presence of deep equality in everyday life. While it might seem to be self-evident
that law and society are commingled, analysis rarely identifies the narratives
from everyday life that shape the construction of legal principles and ideals.
(p.172) The pearls (remembering Les Back’s research described in Chapter 2)

of everyday stories of the negotiation of difference are especially likely to
disappear in the recounting of events within the framework of law, which
cordons off narratives, converting them into specimens of conflict rather than
stories of negotiation with elements of respect and caring. Listening in a
different way becomes especially crucial when considering law’s rendering of
equality. Law’s framework itself makes it especially challenging to see the
stories embedded within it: it is easy to get caught up in the idea of ‘winning’
and ‘losing’ and of argument rather than narrative. Retrieving ‘love in law’
requires that one not be distracted by law’s own game and by its claims to
authority, which are, paradoxically, often obscured by disclaimers about law’s
limited ability. The most classic articulation of this is that law can only deal with
the arguments put before it: an odd statement indeed when held up to
judgments that note the nature of society and human beings, and that cite
literature and poetry and other sundry ‘facts’.26 Caring, neighbourliness, and
respect disappear in the magic show of law’s authority and power.
Page 20 of 31
The prospect of law’s caring has been explored by Colleen Sheppard in her
effort to reshape equality within law. Sheppard too emphasises the relational
aspects of the production of what she calls ‘inclusive equality’. Law’s distortion
of experiences, through legal rules, court practices, and the adversarial system,
obscures the relations of caring and evidence of negotiations of difference that
are successful. Only a version of equality that prioritizes the relational can
facilitate the end goal of social justice, and, in her words ‘equality should
celebrate and nurture differences and diversity’ (2010: 36). Sheppard describes
this version of equality as embracing ‘a vision in which cycles of exclusion are
broken as a result of the transformative processes of institutional and social
change’ (2010: 4). Sheppard asks what power we have as individuals to disrupt
exclusion and marginalization in either our own or other’s lives (2010: 4), and
she concludes that individuals on their own cannot change structures of
inequality, but that human relations must be restructured. She focuses on two
types of human relations—relations of care and democratic relations.
Although Sheppard validates the legal pluralist position of the legitimacy of

alternative normative orders, ultimately she is concerned with equality and its
constitution within formal law, especially in the form of ‘equality rights’. It is
clear that she wishes to expand law’s capacity to achieve justice through a (p.
173) reconstituted conceptualization of equality. Sheppard is especially adept at
formulating and documenting the limitations of equality as it presently has been
articulated within law, and indeed more broadly. For instance, she states that
‘One of the most persistent sources of inequality has been our inability to relate
across differences as equals. Equality is associated with sameness and inequality
with difference’ (2010: 35). One way to destabilize this binary of equality
imaginaries is to introduce a new platform that takes similarity as the beginning
point. Sheppard also argues that ‘inequality occurs through a process of socially
constructing differences in terms of a hierarchy of superiority and
inferiority’ (2010: 35). Sheppard’s ideal of caring and inclusive equality is
located within law, and, unlike Derrida, she imagines a curative imposition that
restructures human relations. In her articulation of equality she remains
committed to the idea that equality is generated within law and that power
inequities are addressed from the top down. Though her instinct to focus on
caring is good, Sheppard is never completely able to escape law’s authority.
Nonetheless, her work presses for a new conceptualization of equality and for
that reason alone it is a valuable contribution to the conversation.
Page 21 of 31
Returning to Multani, the end result can be seen as evidence of deep equality:
Gurbaj is able to wear his kirpan to school (though, by the time the decision is
made he has long since left public schools and gone to a private school run by
Seventh-Day Adventists). However, the analysis of the case is further
complicated by the fact that the Court introduces the idea of reasonable
accommodation (as we saw in Chapter 5), attempting to export it from
employment law into the balancing consideration it is required to do under
section 1 of the Charter. Thus, it does not locate its decision in the language of
equality, but in the framework of accommodation and tolerance. Although the
use of reasonable accommodation as a standard is rejected by the Supreme
Court in the subsequent decision of Hutterian Brethren27 it is striking that side
by side with statements that draw from a narrative of deep equality the Court
introduces a counter-current of language that preserves the very inequality its
decision rejects. This convoluted legal reasoning potentially distracts attention
from the narrative of deep equality and validates accommodation. Nonetheless,
the Court demonstrates an actualization and recognition of the sort of
neighbourliness, caring, protectiveness, and even love that everyday stories
reveal.
(p.174) The Multani decision illuminates a narrative of negotiations that

permeate everyday life. It highlights those moments where difference collides
with sameness, and results in either similarity or a retreat to the far ends of the
spectrum which invokes identity rigidity and difference. Manifestations of both
are present in the case. The Supreme Court struggles (and largely succeeds) to
recognize the complexity of Gurbaj Singh’s identity—he is not only a Sikh, but
also a son, a schoolboy, and a citizen. This is no small feat given law’s tendency
to focus on the identity characteristic that brings parties before it, employing a
singular focus as an entry and focal point to determine ‘rights’.
Legal reasoning distracts from the complex narratives present in the Multani
case, flattening the kirpan into a weapon, simplifying Gurbaj Singh into a
monolithic religious identity, and rendering the process as being about
‘reasonable accommodation’. But, in the midst of the case are small stories,
narratives of interactions that offer glimmers of other kinds of reasoning. It is
these that reveal law’s potential to support and encourage fairness, justice, and
equality; its ability to frame diversity through the construction of a particular
aesthetic is laid bare. This aesthetic overlaps with and links to everyday life and
the negotiation of difference that takes place within it. By shifting our gaze to
trace the story of respect and caring that is told in Multani, we then uncover the
elements of deep equality that are present in that story, which is, not one story,
but multiple narratives of everyday interactions. This is the heartland of equality.
Conclusion: An Extra-Legal Equality?
Page 22 of 31
Law exists in the shadow of everyday relations where the struggle to live well
together takes place. To be sure, law’s validation of principles and norms that
emerge from those interactions can offer guidance, reassurance, and even a
broad framework for the ordering of everyday relations. But, in the everyday
working out of difference law is largely absent. It may seem too blunt a tool to
measure law’s influence by the presence of language of legal equality, specific
mention of rights and so on, but these can be indicators of action that is
manifested in the shadow of the law. When Arlene ponders the interaction
between herself and Fatima and concludes that their relationship as neighbours
means she should not throw the baby and the bathwater over the balcony, as she
puts it, she is navigating the complex world of human relations that is not
dictated by rights discourse and/or a positive law ordering. When the Brossard
soccer team sports turbans in support of Sikh players they draw on the rhetoric
of justice and fairness that is ‘extralegal’. When the Jewish General Hospital in
Montreal developed its policy on service provision to be (p.175) inclusive, it is
thinking about justice in a broad manner that is not concerned with Charter
rights and legal sanctions. These are not acts of deference or reference to law. It
is such acts of good faith, respect, neighbourliness, caring, and kindness that
create the bedrock of a society in which it is possible to live well together.
Without the commitment of ordinary people in everyday life to negotiate the
space between sameness and difference, law’s promises are hollow guarantees.
The possibility of equality outside of law, or at any rate outside of the Canadian
Charter of Rights and Freedoms, was acknowledged by Justice Dickson in the
Big M case,28 which was the Supreme Court of Canada’s first post-Charter
elaboration of religious freedom and religious diversity. Although he quickly
lapses back into legal mode, Justice Dickson briefly imagines a parallel and
arguably non-legal world of justice and specifically of equality:
A truly free society is one which can accommodate a wide variety of

beliefs, diversity of tastes and pursuits, customs and codes of conduct. A
free society is one which aims at equality with respect to the enjoyment of
fundamental freedoms and I say this without any reliance upon s. 15 of the
Charter. Freedom must surely be founded in respect for the inherent
dignity and the inviolable rights of the human person. The essence of the
concept of freedom of religion is the right to entertain such religious
beliefs as a person chooses, the right to declare religious beliefs openly
and without fear of hindrance or reprisal, and the right to manifest
religious belief by worship and practice or by teaching and dissemination.
But the concept means more than that. (Big M, at para. 94, emphasis
added)
Page 23 of 31
Later in the judgement Justice Dickson (at para. 117) invites the reader to ‘recall
that the Charter was not enacted in a vacuum’ and that it must therefore ‘be
placed in its proper linguistic, philosophic and historical contexts’. Justice
Dickson is, of course, trained to ‘think like a lawyer’ and it is a difficult training
to displace: the law becomes all-pervasive and all-encompassing. And of course,
judges are expected to work within legal discourse. In part what the legal
pluralists are attempting to do, in many cases, is to push against law’s
dominance by working within the framework of it. The goal of validating other
frames of legal reference is well motivated, but inevitably falls back into positive
law’s framework.
Law does indeed cast a long shadow, something that is articulated in various
ways by a range of scholars. Winnifred F. Sullivan (2013) argues that the
‘shaping of life to suit the law has backstream effects as well, beginning long
before life enters the courts. One feature of the modern world is the thorough
juridification of life in its very subjectivity.’29 Law does not need the courts. (p.
176) Law reaches in and tells us what it is that we experience and even how we
are religious—how we must choose to be religious. It is not just that religion,
when it appears in court, must answer to law’s demands, but that religion, in its
daily life, is shaped by the modern church/state accommodation and what
Benjamin Berger (2013) calls ‘law’s aesthetics’.30 Bruno Latour (2009) considers
the mundane process of legal reasoning and law’s production of ‘facts’, but,
more to the point, he notes that law seems ‘to have no possible individual or
personalized site: it had to speak from nowhere as the Voice of Law’ (2009: xi).
Talal Asad (2013) reflects on the ways that law has shaped the presentation of
self as individualized,31 a point that has also been taken up by feminist legal
thinkers such as Rebecca Johnson (2002) and Robin West (1988). And in her
project on grassroots mobilization in the ‘shadow of the law’ in Greece, Effie
Fokas talks about operating under the shadow of the law and the ‘radiating
effects’ of court decisions. She asks how the decisions of the European Court of
Human Rights on religion ‘define the “political opportunity structures” and the
discursive frameworks within which citizens act. What is the aftermath of the
Court’s religion jurisprudence, in terms of its applications (beyond but also
including its implementation) at the local and national level?’ (2015: 56).32
Though each of these authors contributes to a valuable mapping of the Voice of
Law (to use Latour’s characterization) and its authority, and the effects of (p.
177) law are real, to some extent law gains its authority from the validation of
those around it. I will return to Smart’s arguments below, for her point about
decentring law is helpful in offsetting law’s domain and upsetting law’s
aesthetic.
Page 24 of 31
The pervasiveness and increasing dominance of the language of reasonable

accommodation could be attributed to a backstreaming effect of law. But its
pervasiveness is instrumental in part: it suits the project of maintaining
particular privilege, including religious privilege and racial privilege. The critical
analyses by scholars like Sullivan, Latour, Asad, and Fokas are valuable indeed,
but their work leaves one with the uncomfortable feeling that, like legal
pluralism, everything is about law. There is no denying that law shapes public
discourse, but law’s influence requires collusion from other discursive realms.
Thus, for example, Christianity’s turn to culture in law is a complex collusion
between law and religion that sees a shifting hierarchy depending on context
(see Beaman 2012a). As Smart (1989) demonstrated in her work on law’s power,
which discursive regime is at the apex depends on the issue. The interesting
question, then, is what are the contours of these collusions and to what ends?
This is why Smart’s observations about law and the need to decentre it remain
salient, perhaps even more so than when she wrote them: law, she argued,
‘resists and disqualifies alternative accounts of social reality’ (1989: 4).
Despite its authoritarian and domineering ways, law’s positive effect in relation
to diversity has been applauded by Ash Amin, who points out: ‘Interventions that
normalize a public culture of equal subjectivity can help to dismantle the
hierarchical assumptions that regulate the quality of response to
difference’ (2012: 105). Amin argues that everyday ‘mixing’ does not guarantee
a shift in attitudes, but ‘an understanding of the space of encounter—physical or
virtual—as one in which strangers meet as equals can force the suspension of
condemnation, perhaps even encourage majority acceptance of the right of
minorities and strangers to claim the shared space’ (2012: 104). Despite this
recovery work—stories of negotiation of difference that infiltrate legal cases, but
are only partially visible as the conflict narrative comes to dominate—narratives
embedded in legal cases are not about law, but about people who have struggled
to engage with difference by finding common ground, seeking a position of
similarity, compromise through an attitude of agonistic respect. Thus, the central
project of this book is to decentre law, not by rejecting it, but by holding it, for a
time, in a suspended state to facilitate the recovery of some under-explored
spaces in which equality, diversity, (p.178) difference, and similarity can be
understood. The discussions within law and academic writing about law and
legal equality have enriched our understanding of the parameters of equality
and its meaning.
Page 25 of 31
Bruno Latour argues ‘law, like nature, abhors a vacuum’ (2009: 55). In the face
of the renewed attention on religion in the public sphere33 it has been law that
has rushed in, often by invitation, claiming the space of diversity with legal
solutions (followed closely by political theory). Thus, rather than being
‘decentred’, law has instead been ‘recentred’, positioned as the fulcrum on
which all else balances in relation to religious diversity. Despite the vigorous
industry of legal pluralism which might have offered some hope for frameworks
that shift attention from the matrix of regulation, cases, courts, tribunals, and
standards, law is more entrenched than ever in the regulatory practices related
to religious diversity. Even those who work outside of law seem to be anxious to
deed over the terrain of equality to law.34
At the heart of this discussion is an argument for the repossession of equality as

a practice that is not located in law, but in everyday interactions which ‘exceed
the juridical’. Law has so effectively colonized the notion of equality that it is
almost impossible to think about it apart from a legal apparatus, be it
constitutional, regulatory, and/or judicial. The story of equality is not a simplistic
one of law’s appropriation, but of an active ceding to law of the domain of
equality.35 Failing to develop an understanding of equality outside of law results
in an impoverishment of a narrative of equality. Equality has come to be
primarily imagined as existing in the battle zone of law, and (p.179) as a ‘right’
rather than as existing in the less adversarial space of the everyday. Equality in
the everyday context feels quite different than it does in the domain of law.
There is a complex and robust concept of equality that operates outside of law
and that is used to sort through religious difference. The ‘pearls’ of day-to-day
negotiation and navigation already exist; the task is to collect and understand
them.
Notes:
(1) Although Borrows’ arguments are available in writing, he is a master story
teller and for that reason I recommend listening to his lecture ‘Indigenous Love,
Law, and Land in Canada’s Constitution’ given at the Canadian Museum for
Human Rights in Winnipeg (CBC Ideas 2014).
(2) For a virtuosic and insightful exploration of the aesthetics of law, see Berger
(2013).
(3) See Fokas (2015).
(4) The notion of decentring law is proposed by Carol Smart (1989) in her path-
breaking book Feminism and the Power of Law.
Page 26 of 31
(5) Howard Kislowicz describes the work of legal pluralists: ‘legal pluralist
scholars emphasize that cultural and religious rules and norms can be
understood as “laws” in their own right, and are often equal in significance with
state laws in regulating people’s lives’ (2013: 3). Kislowicz situates his own
work, which offers compelling insights into the behind-the-scenes negotiations,
motivations, and inspirations of three influential SCC cases in which religious
diversity was a key backdrop, in the legal pluralist framework.
(6) The purpose of this discussion is not to fully represent the debates about
legal pluralism, but rather to indicate an awareness of the tensions in
perceptions of law and the limitations of talking about ‘the law’ as a unified and
unitary entity. For expert discussions of legal pluralism see especially Merry
(1988) and Macdonald (2011).
(7) See Borrows (2017).
(8) See Chase (2015).
(9) Conservative Party of Canada (2015).
(10) See McRobbie (2009) for a discussion of the pervasiveness of the myth of
equality and the work that it does to displace critical gender analysis.
(11) For more on S.A.S., see Beaman (2016a).
(12) For an excellent critical discussion of the modes of circulation of information

related to Muslim women in France see Amiraux (2016).
(13) Derrida distinguishes between living together and living well together. See
Elver (2012: 200) for a discussion of these notions. ‘Vivre ensemble’ has taken a
rather hegemonic tone and it is for this reason that ‘living well together’ has
been demarcated as distinct.
Page 27 of 31
(14) Social inclusion strategies can be either passive or active (Byrne 2014: 60);
however, a critical analysis of the discourse of inclusion is important. I agree
with Dan Allman (2013: 1) who argues that ‘societies which emphasize
differences in social integration are structured by architectures of inclusion that
govern and manage how marginal women and men inhabit social space, while
functioning to maintain many of the attributes of the status quo’. Levitas (2005)
makes a similar argument: ‘Exclusion appears as an essentially peripheral
problem, existing at the boundary of society, rather than a feature of a society
which characteristically delivers massive inequalities across the board and
chronic deprivation for a large minority. The solution implied by a discourse of
social exclusion is a minimalist one: a transition across the boundary to become
an insider rather than an outsider in a society whose structural inequalities
remain uninterrogated’ (2005: 7). In his analysis of the ‘vogue for inclusion’,
John Gray (2000: 19) argues that while equality and inclusion may overlap, they
are not the same, primarily because one focuses on ideals of justice and the
other on an ideal of common life (2000: 23).
(15) See Riis (2011) for a discussion of horizontal and vertical culture and
religion, upon which my argument here draws.
(16) Elver (2012: 44) states that the Kemalist revolution is a rare example of a
revolution with no social base, and that it was ‘accomplished through a top-down
penetration of society by powerful state institutions’.
(17) See CBC Radio (2015).
(18) ‘Indeed, one aspect of the narratives mostly left out of the judicial accounts
was that Gurbaj Singh Multani sought access to the public school system in
order to learn French. In contrast, this was central to the litigant’s narrative:
“Obviously living in Quebec you need to learn French, so that was the time
[Gurbaj Singh] decided to learn French and went to French school”’ (cited in
Kislowicz 2013: 237).
(19) Though as Kislowicz observes: ‘Perhaps the Multani family’s willingness to

adhere to strict conditions surrounding the kirpan was one of the important
strengths of their case, eliciting the approval of the Superior and Supreme
courts’ (2013: 130).
(20) For a discussion of the importance of procedural law and people’s

perceptions of the achievement of justice, see Chaib and Brems (2013).
(21) Commission Scolaire Marguerite-Bourgeoys v Singh Multani, [2004] RJQ

824 [Multani C of A].
Page 28 of 31
(22) Kislowicz analyses this in terms of what he calls cross-cultural

communication. While his framework offers some interesting insights, it also
establishes a rigid binary that reifies in some measure the idea of a cultural
divide. In the end, an emphasis on similarity that preserved difference as a
Canadian value was the dominant narrative of the decision, not cultural
difference.
(23) As Woodhead (2014: 9) notes: ‘Sikhs in Britain had campaigned successfully

to be allowed to wear the turban, even when the law required the wearing of
safety helmets. Sikhs were exempted from such law, and were also allowed to
carry ceremonial daggers. One reason for this was that Sikh men were a rather
high-status minority group in Britain, and that, as well as being very well
organised, they won the support of the influential Sikh community in India, and
of majority bodies in the UK, including trade unions. Another reason is that
Scottish men traditionally carry a ceremonial dagger—a sgian-dubh. So here, the
fact that a majority community had an analogous custom worked to the
advantage of the minority group seeking toleration of its own different but
related practice—and the analogy helped to normalise the custom in question.’
(24) For a discussion of the variable uses of the notion of aesthetics in relation to
law see Berger (2013).
(25) Multani, SCC case no. 30322, ‘Transcription des cassettes’ (12 April 2005)
[Multani Transcript].
(26) Benjamin Berger (2008) addresses the treatment by law of religion by noting
that law’s understanding of religion is a natural consequence of law’s own
constitutional culture, which is embedded in a specific understanding of
liberalism. It seems to be Berger’s contention that we cannot expect law to do
anything other than what it does—to atomize (or pixilation, in his words) social
life into individuals who have rights. He argues that law understands religion as
being about: 1. individuals; 2. autonomy and choice; 3. a private matter, and that
‘Law shapes religion in its own ideological image and likeness and conceptually
confines it to the individual, choice-centred, and private dimensions of human
life’ (2008: 284).
(27) ‘…where the validity of a law of general application is at stake, reasonable

accommodation is not an appropriate substitute for a proper s. 1 analysis based
on the methodology of Oakes. Where the government has passed a measure into
law, the provisions of s. 1 apply. The government is entitled to justify the law, not
by showing that it has accommodated the claimant, but by establishing that the
measure is rationally connected to a pressing and substantial goal, minimally
impairing of the right and proportionate in its effects’ (Hutterian Brethren, at
para. 71).
(28) R v Big M Drug Mart Ltd, [1985] 1 SCR 295.

Page 29 of 31
(29) Russell Sandberg (2014) writes about the juridification of religion, referring
to a process of legal framing of religion in terms of law and rights. Religion thus
becomes part of rights discourse, and thus within the regulatory and conceptual
domain of law.
(30) See Sullivan’s (2013) discussion of Town of Greece v Galloway in which she
argues that ‘However this case is decided, though, in a Latourian sense we will
see religion transformed by law in the argument and in the writing of the
opinions. Legal words such as “sectarian,” “coercion,” “endorsement,” and
“religious liberty” will obscure the actual practices in the case, reducing them to
types in service of law’s own logics. But in an Asadian sense we will also see that
the prayers themselves were already being made by law—juridified by a larger
process of the imperialism of the modern rule of law—before they ever got to
court.’
(31) ‘The idea that morality is properly a “private” matter and that what is
private should not be law’s business has, paradoxically, contributed to the
passing of legislation intended to deal with “private” trouble cases that force
themselves into the legal arena. The legislation has given judges and welfare
administrators greater discretion in matters relating to the family (custody,
childcare, divorce, alimony, matrimonial property, and inheritance). The
sentiment guiding this move is that a more humane way of dealing with conflicts
is called for, in which different personal beliefs, emotions, and circumstances
can be taken into account. The individuality of the person must be respected,
which means it must be fully identified’ (Asad 2013: 31–2).
(32) Fokas gives the following examples: ‘in the aftermath of Lautsi v Italy, 2009,
a Greek Orthodox bishop in a Greek town, feeling certain the decision would be
overturned, rallied his fellow Orthodox to start thinking of ways to “nationalise
our religious symbols so we can protect them from Europe”. Thus, an indirect,
unexpected, and in fact counterproductive effect of the Court was to encourage
further nationalization of an already nationalistic-tending church and
conceptions of “Europe” as something from which protection is needed. That
same Greek Orthodox Church actively engaged in grasstops mobilizations
around the Lautsi Grand Chamber hearing. In a different cultural context, a
Romanian humanist activist was encouraged in his case against the Romanian
state for the presence of icons on public school classrooms, but his lawyers were
demobilized in the aftermath of the 2011 Grand Chamber decision. And in Italy,
in the aftermath of the 2009 Chamber decision, three law proposals were
brought before the Italian Parliament to make the crucifix compulsory. The
Northern League gathered signatures for a referendum and proposed to add a
cross to the Italian flag. And several mayors bought and hung crucifixes, offered
them to citizens, and imposed sanctions against their removal from public
spaces’ (2015: 72–3).
Page 30 of 31
(33) For a succinct and insightful summary of this turn of events as a post-
secular turn, see Beckford (2012b).
(34) In discussions with community groups, equality is often avoided and ‘equity’
is instead invoked. Equity has come to be associated with fairness and a more
robust conceptualization of equality, whereas the notion of equality has been
interpreted as meaning formal equality in which everyone is treated the same.
This conceptualization lacks the ability to accomplish a fair and just solution.
Unfortunately such an abandonment of equality has further contributed to its
impoverished state.
(35) Angela McRobbie (2009) argues that the myth of women’s equality has
derailed the fight for women’s equality. Cordelia Fine (2010) argues that an
overemphasis on gender difference further perpetuates women’s inequality. Both
the myth of equality and an overplayed notion of difference have created what
Susan Douglas (2010) calls ‘enlightened sexism’. Earlier feminist and critical
theorists helped shift equality from ‘formal’ to ‘substantive’ in law and broader
public discourse, but that movement has largely stalled as the promise of law in
the achievement of equality has, in their view, been largely unfulfilled.
Significant theoretical contributions by Joan Scott (1988), Katherine O’Donovan
and Erika Szyszczak (1988), Davina Cooper (2000), and Robin West (1987) have
been sidelined by the equality versus difference dilemma, which Rosemary
Hunter writes has had a ‘chilling, if not paralyzing, effect on feminist theorizing
about equality’ (2008: 2). The pervasive inequality of women—despite pay equity
legislation, parental leave benefits, domestic violence courts, the recognition of
battered woman’s syndrome—illustrates the gaping space between legal
understandings of equality, and law’s failure to offer women substantive equality.
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‘The People who Run the World…’

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Deep Equality in an Era of Religious Diversity

Print publication date: 2017

‘The People who Run the World…’

Abstract and Keywords

(Jacques Derrida 2012: 26)

Very significant legal implications flow from references to love found in

(John Borrows 2017)1

Appeals to love which are patriarchal, patronizing, and infantilizing should

Authoritative and exclusionary pronouncements should attract particular

The idea of shared values is frequently deployed in exclusionary ways by

Such a deployment of values similarly occurs in the European Court of Human

this new legalism, sustained by technological resources of investigation,

(p.161) Negotiating diversity is imagined to only be possible under laws that

States have the potential to create a climate in which difference is highlighted or

It is essential to name these abusive practices of values deployment, but it is

Furthermore, in acknowledging that love should never be forced, it is also

Inspired by Borrows’ insistence that love can be one guiding interpretive

(p.164) The Multani Case

It is instructive here to juxtapose the careful negotiation between the Multanis,

There is most certainly a direct and rational connection between

This regulation from the Code of Conduct cannot go so far as to prohibit

This means that a student may believe it is necessary to bring a knife to

In this narrative, in which violence dominates, the ambiguous nature of the

A glimpse of this alternative narrative was introduced by an expert witness who

peace is, no doubt, of profound significance and is based on the doctrine of

(Cited in Kislowicz 2013: 206)

This articulation presents the complexity of negotiating difference, not as a

Chamberlin’s attention to the borderline draws us back to a discussion of

(Cited in Kislowicz 2013: 208)

Emphasis on shared values, including the importance of safety, was a key

(Cited in Kislowicz 2013: 212)

The argument that the wearing of kirpans should be prohibited because

Religious tolerance is a very important value of Canadian society. If some

To be sure, there are assumptions embedded in these statements that a critical

School is a place where I think tolerance and openness should be taught

(Grey in Multani Transcript 2005: 20, lines 14–19)

(Shergill in Multani Transcript 2005: 45, lines 3–11)

(Grey in Multani Transcript 2005: 26, lines 14–16)

The achievement of a ‘deep equality’ result in Multani, in which the Court

(Cited in Kislowicz 2013: 213)

(p.172) The pearls (remembering Les Back’s research described in Chapter 2)

Although Sheppard validates the legal pluralist position of the legitimacy of

(p.174) The Multani decision illuminates a narrative of negotiations that

Conclusion: An Extra-Legal Equality?

A truly free society is one which can accommodate a wide variety of

The pervasiveness and increasing dominance of the language of reasonable

At the heart of this discussion is an argument for the repossession of equality as

(3) See Fokas (2015).

(7) See Borrows (2017).

(8) See Chase (2015).

(9) Conservative Party of Canada (2015).

(11) For more on S.A.S., see Beaman (2016a).

(12) For an excellent critical discussion of the modes of circulation of information

(17) See CBC Radio (2015).

(19) Though as Kislowicz observes: ‘Perhaps the Multani family’s willingness to

(20) For a discussion of the importance of procedural law and people’s

(21) Commission Scolaire Marguerite-Bourgeoys v Singh Multani, [2004] RJQ

(22) Kislowicz analyses this in terms of what he calls cross-cultural

(23) As Woodhead (2014: 9) notes: ‘Sikhs in Britain had campaigned successfully

(27) ‘…where the validity of a law of general application is at stake, reasonable