Academic journal article Dalhousie Law Journal

Who Are We?: The Quest for Identity in Law

Academic journal article Dalhousie Law Journal

Who Are We?: The Quest for Identity in Law

Article excerpt

Scholars from Haraway to Foucault to Freud, from Bourdieu to Erikson to Scarry have theorized identity across continents and among disciplines. Despite the rich material available, however, interrogations of identity in law have remained isolated within substantive areas of law (those working on identity in evidence law have not necessarily met issue with those exploring identity in constitutional law, for example), and have been more limited in scope and imagination than the interrogations undertaken in other disciplines.

Nevertheless, invocations of identity in law are frequent. In evidence law, identity and authenticity are tied together in inquiries about the underlying facts. In patent law, the sameness of two items is compared, and their identities explored, as a means of delineating the scope of law's application. Aspects of constitutional law demand we understand the identity of an individual or collective so that we might compare one group to another.

Law also relies on concepts of identity in less direct ways. Our sense of identity development informs our understanding of when and how people can consent to treatment or when behaviour is negligent. Our willingness to redistribute resources (financial resources, health outcomes, and others) is bounded by our geographic sense of who is Canadian or what kind of behaviours accord with our sense of national identity. At times, law calls to account based on the identities that it ascribes: citizen, taxpayer, member of a group, fiduciary, party to an agreement, custodial parent, moral agent. At other times, the identity that law ascribes is used to oppress, deny, or render invisible. …

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