Law as Prejudice: Codifying the Other

Abstract

Recalling the theme of the present Research Series Law and Prejudice, this closing article harnesses the conceptual framework proposed by Everett Zimmermann in his semantic analysis of “Pride and Prejudice” to examine the interplay between law, pride, and prejudice. In Zimmermann, “pride” and “prejudice” are both opposite and interconnected qualities, like communicating vessels characterized by the same egoistic “self” as their core. Transposing this analysis into the legal domain, the article explores how the law, akin to “pride,” can reproduce the latter’s characteristics of detachment and perceived superiority, ultimately facilitating attempts at codifying “prejudice.” In this dynamic, the law—through its normative power and façade of objectivity—can become an instrument of marginalization, segregation, and discrimination.

This article contends that the law’s supposed objectivity and normative authority transform it into a tool of superiority, not unlike pride in Zimmermann. By examining this dynamic, the article reveals how the law has been used numerous times to justify and normalize prejudice, creating the paradigm of “law as prejudice,” beyond “law as pride.” Through the lens of “othering,” the article illustrates how the law segregates by codifying the differences between “the Self” and “the Other,” sometimes under the guise of protection or benevolence, thereby justifying exclusion and discrimination. The analysis is anchored in the case study of the Canadian settler policies of assimilation of Indigenous Peoples, which show the destructive normative power of the “law as prejudice” paradigm. The article offers insights into the complex relationship between law, pride, and prejudice, and the pivotal role of the egoistic Self as “lawmaker of othering.”