Zone étudiants

Andrée Boisselle

Documents

Emerging from Colonial Quicksands (PDF)

On Dialogue Between Legal Orders (PDF)

Projet de recherche

Title of work-in-progress: “Making room for Indigenous Law in Canada : towards a reconception of Western legal theory”

My work in comparative constitutional law seeks to reconceive Western legal theory by bringing the conception of law manifest in the mainstream Canadian legal order into dialogue with a First Nations’ conception of law.

When it comes to thinking about the law, one idea seems to run across both popular and scholarly, mainstream and indigenous discourse, and that is the idea of a fundamental dichotomy between "State law" and "customary" indigenous legal orders. State law is seen as explicit, tangible - indeed, almost as a "thing": it is the law-in-the-books, where authorities record the law’s commands and binding interpretations. By contrast, Indigenous law, traditionally unwritten, is thought of as emerging organically from consensus-based communities – a set of tacit, intangible norms. Out of such assumptions, it is very difficult to see how the two legal orders can respectfully interact and develop alongside each other. In light of the Supreme Court’s call to “reconcile pre-existing Aboriginal sovereignty with assumed Crown sovereignty” (Haida, 2004), my work seeks to bring the two legal traditions into dialogue by questioning the above assumptions and by suggesting that law emerges whenever a cultural community brings its tacit, inherently normative understandings, to explicitness. I will investigate some of the implicit understandings constitutive of Western and Indigenous respective worldviews, analyse how they are fleshed out in the binding narratives we call “law,” and inquire as to how shifts in our self-understandings translate into shifts in the law. Seeking to develop insights into the concrete dynamics of cultural normative understandings, my project speaks to the foundation of our political community as a whole: if law’s legitimacy rests on its persuasive articulation of tacit cultural understandings, a truly post-colonial Canadian order will rest on the nurturing of shared meanings between indigenous and non-indigenous worldviews. By shedding light on some of the commonalities which allow for meaningful cross-cultural communication, my hope is to make room for our differences.

Interdisciplinary theoretical work and empirical research are two equally important dimensions of my project. My research will expose aspects of the West's worldview relevant to its conception of law, paying close attention to the points of contact between civil and common law, and drawing on relevant sources in legal & political theory, philosophy, history & anthropology. It will also involve the continuation of my fieldwork with the Stó:lõ people of the Fraser Valley, B.-C., with a view to understanding and translating stories shaping their conception of legal order.

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