Power and Policy: Navigating Legal Pluralism in Canadian Migration Law.

AuthorKiyani, Asad
  1. Introduction

    Legal pluralism is, at its core, a description of the extent and sources of legal obligations beyond state law. (1) While that boundary may be difficult to identify in many areas, (2) it seems clearer in the context of migration law. Given the state's sovereign right to control entry and membership, there does not seem to be much space for alternative, non-state legal orders to play a role. State laws remain paramount, (3) with allowances made in federal law for national variation, such as provincial needs to preserve particular cultural and linguistic traditions, (4) or the acknowledgement that provinces are best positioned to decide which immigrants will best fill their labour market needs. (5) Canadian courts have repeatedly affirmed the federal government's authority to control entry into Canada. (6) All of this suggests that while immigration and refugee law trade in varying degrees in notions of cultural pluralism, they do not-some would say cannot-accommodate legal pluralism simply because it is solely the role of state law, and not some other normative order, to delineate the terms of entrance into and membership in Canada.

    Given this understanding, there is little room for non-state legal orders to exert influence in Canadian migration law. Yet it may be that there both is and ought to be a space for legal pluralism to operate in migration law. Migration law is about legal status, but it is also about the regulation of cultural pluralism. Liberal and open migration regimes can diversify the demographics of a state by inviting and including newcomers in greater numbers from a greater number of places around the world. Closed systems will tend to welcome fewer people from fewer places. One will lend itself to greater cultural pluralism-to greater diversity of identity as it is currently and popularly understood-and the other will not. With cultural pluralism, however, comes some need for legal pluralism. Different societies will have different understandings of relationships of belonging-to family, to fellow Canadians, to the state itself-that will themselves be conditioned by local normative orders that may well be distinct from Canadian legal norms. Understanding how Canadian migration law can account for these differential understandings (and if it does account for them at all) is thus a way of understanding the openness and flexibility of the migration system, and why the system is or is not particularly pluralist.

    Taking this position of constraint as its starting point, this paper addresses legal pluralism in Canadian immigration and refugee law in three parts. The paper analyzes how different forms of migration law-refugee law, immigration law, and citizenship law-take up the challenge and possibilities of legal pluralism, to consider whether Canadian migration law can or will accommodate legal pluralism. Understanding why legal pluralism is visible or accommodated is valuable to understanding the nature of the migration law regime. This paper argues that a close examination of legal pluralism reveals an important relationship between legal and cultural diversity, and that migration law tends to accommodate one more than the other. Relatedly, a study of the dynamics of legal pluralism shows that the relative insularity of state law-its inoculation from legal diversity-protects and projects a specific Canadian identity that is not strictly legal. In this way, the contours of legal pluralism reflect the inclusion (and exclusion) of specific communities as legal agents because their legal orders or rules are (or are not) accommodated within the state's legal system. Mapping legal pluralism in migration law thus illustrates surprising ways in which minority groups may be able to obtain substantive equality under the law, and, as is a point of emphasis in this article, how that equality is denied through the treatment of pluralism. Thus, while one might not expect to find much pluralism, studying the ways in which pluralism is restricted nonetheless shines important light on the design and goals of Canadian migration law.

    Addressing this requires some basic understanding of legal pluralism as a field of study concerned with fundamental questions about the nature of law. Core to the very idea of legal pluralism is that the answer to the permanently vexing question of "what is law?" is "more than you think." (7) In so far as that answer is addressed to a positivist tradition that sees the state as the only authoritative source of law, (8) it remains as complete a response as necessary by avoiding the interminable difficulties of drawing the boundaries between law and non-law. (9) This acknowledges the pervasiveness of alternative, non-state normative orders that for some are at least as binding or obligation-producing as state law. (10) Legal pluralism thus describes situations where there is a multiplicity of normative orders in the same social field. (11) It is aimed primarily at understanding the structure of these overlapping orders and how those structures relate to one another, and secondarily about the content of those orders. Yet it is the very particular content of those orders-and their effect on those who adhere to the rules of those orders-that confirm the nature and structure of those orders.

    Religions, Indigenous legal systems, and customary rules have been cited as examples of binding non-state legal orders, and their very nature as non-state law is what suggests the disconnect between legal pluralism and immigration and refugee law. Yet pluralism is also identifiable in how life in refugee camps is regulated, (12) how borders are controlled by different states, (13) and how migrant rights can be protected through different regional and international human rights laws. (14) At the same time, immigration and refugee law is about the crossing of international borders, and entry and membership into a particular state, meaning that the state's rules about entry and membership will likely be paramount because of the perceived centrality of such laws to state sovereignty. State legal orders may differ from one another, but alternative legal orders largely do not have a role here because, by definition, they cannot operate in parallel to state law. (15) The Catholic Church may have competing understandings of what it means to be a member or what members are entitled to do, but it cannot negate the decisions of the Canadian state.

    Legal pluralism thus identifies and generates a conflict of laws problem that the simple description of pluralism cannot readily resolve. (16) When that conflict arises in respect of a state's sovereign right to decide who to admit into its territory, and on what terms, there is likely to be less conflict because states will simply exclude any alternative consideration or interpretation. This is not to say that it is futile to approach migration law from the lens of legal pluralism. It rather suggests the importance of using this lens, as studying legal pluralism will invariably demand a study of power relationships. (17)

    On this understanding, if pluralism matters to Canadian migration law, it is in the state's justification of those laws, and their impacts. Inbound migration has a tendency to increase the diversity of a given population, and the merits or extent of this diversity is the primary mode of studying pluralism in migration; it centers cultural pluralism as a focal point of public anxieties about how many immigrants from which places and of what backgrounds and what will happen to national unity. (18) As part of the attempt to understand how changing patterns of migration may have affected public responsiveness to migration, (19) population diversity has been tracked to varying degrees for at least a century. (20) Yet while migration law is a facilitator of cultural pluralism, it is not necessarily a guarantor of legal pluralism because policies of admittance and membership are so closely associated with the sovereign authority of the state. Cultural pluralism's relationship to legal pluralism (and vice-versa) is thus mediated in part by migration law.

    Having acknowledged this tripartite relationship, this paper focuses on the presence or absence of legal pluralism in three different spheres of migration law. Studying these areas involves analyzing the interaction of different legal systems and normative orders with Canadian law. The paper assesses domestic Canadian law's interaction with the domestic legal regimes of other jurisdictions (immigration law), international law's interaction with domestic Canadian law (refugee law), and, finally to Canadian state law's interaction with non-state legal orders in Canada (citizenship law). These boundaries are not neat and clean; as will be shown, migration law is routinely interacting with external and internal legal orders, even if indirectly.

    The first substantive section of the paper explores the atomized spaces at which Canadian immigration law has approached pluralism. While Canadian migration law is itself unlikely to be deeply pluralist, it is continually faced with individual claims that require Canadian decision-makers to assess and at times recognize both non-Canadian state legal orders and non-Canadian non-state legal orders. The (non-)recognition of Islamic guardian relationships in the immigration context are areas where governments, courts and administrative decision-makers have had to confront law beyond Canada and resisted accommodation or negotiation with those legal systems. The second part shifts from immigration law to refugee law specifically and considers its liminal position as international law that is interpreted domestically. That position invites a degree of pluralism, which this part examines by addressing the role of the state in interpreting international law, and the focus on security as the overriding policy concern guiding the interpretation and...

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