Brandishing Banishment

There was an interesting op-ed yesterday in the Globe & Mail, by Lorne Neudorf, a Cambridge PhD candidate, discussing the status and use of banishment as a punishment in Canadian law. Contrary to what we might be incline to suppose, banishment, understood as a legal injunction preventing the person subject to it from living in a certain place, is not just found in Norse sagas. It is, Mr. Neudorf writes, “banishment is an instrument in the judicial toolkit” in Canada:

Although rare, banishment orders are not unknown in Canadian law. Territorial restrictions may be built by judges into peace bonds, terms of bail and probationary orders as part of a sentence where permitted by the Criminal Code. Such orders require the accused to stay away from a particular geographic area for the safety of victims or for the benefit of the accused’s rehabilitation for a limited period of time. Banishment-type orders must balance these objectives with the potentially disruptive effect of the order on the accused and the accused’s constitutional rights, such as those to freedom of mobility and protection against cruel and unusual punishment.

Another consideration, he adds, it is not fair to protect one community, from which a person is banished, by dumping a trouble-maker on another community.

Mr. Neudorf’s review of the case law is instructive and worth a read. For my part, I am not very knowledgeable about this topic, though “a study of banishment” is actually on my ever-growing list of papers it would be interesting to write. (It is, alas, much easier to think up a bunch of great topics than to write even one mediocre paper!) I can only point to a few sources for further reading for those interested and some random thoughts:

1) A paper by UVic’s Jeremy Webber on “The Grammar of Customary Law,” which (among other interesting things) devotes considerable attention to aboriginal legal traditions, in many of which

the respect for autonomy extends to the very interpretation of society’s norms. There is great reluctance to impose a particular interpretation of the law either on any member (in some societies) or on someone of high rank (when the society is hierarchically ordered). Such an imposition is considered deeply incompatible with the person’s dignity. Indeed, this respect for a person’s moral autonomy may contribute to the prevalence of banishment as a punishment in many indigenous societies: rather than forcing compliance, the community treats offenders as having, by their conduct, placed themselves outside society. (606)

Actually, I think it makes sense to say that, if banishment is a response to a reluctance to impose an interpretation of norms, it is not really a form of punishment, but merely a form of dispute-resolution (or rather, dispute-avoidance). In the same way, a group of people can play a game according to some peculiar rule, and tell someone who is insisting that that’s not how it’s supposed to be played to play along or to leave. This group has no power to “punish” in a real sense, and banishment is the only way it can deal with disagreement, at least if negotiation fails. Similarly, it makes sense to say that expulsion from Canada of a non-citizen convicted of a serious crime – surely the most frequent use of banishment in Canadian law – is not a form of punishment (indeed it would arguably be unconstitutional if it were interpreted as such, because it would be discriminatory to punish non-citizens more severely than citizens for the same crime), but also a response to a refusal to “play along.”

2) The Supreme Court’s decision in Lakeside Colony of Hutterian Brethren v. Hofer, [1992] 3 S.C.R. 165, dealing with an attempt by a private (religious) community to expel recalcitrant members, thereby depriving them of their property rights. Like portions of prof. Webber’s paper, it is also a study of the interaction between state and non-state, and formal and informal normative orders, and raises the question whether banishment is a form of punishment or something else (and indeed whether that’s a yes-or-no question).

3) Last but not least, a recent article by Yale’s Oona Hathaway and Scott Shapiro in the Yale Law Journal on “Outcasting: Enforcement in Domestic and International Law,” which I have not yet had a chance to read, but which seems to argue that “outcasting” or banishment is a form of law enforcement―perhaps raising questions about distinction between enforcement and punishment.

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