Indigenous Legal Theory Research Project
Research Questions
With this research project, I set out to explore the possibility and utility of developing an indigenous legal theory that is capable of reflecting the diversity of aboriginal peoples’ legal orders and laws. As an initial step, I propose a very broad theoretical framework that will assist with the reconceptualization of indigenous legal orders and law so that they may be more fully articulated and understood across cultures. It is my thesis that a deeper and fuller understanding of indigenous legal orders and law, as opposed to reifying culture or essentializing law, will better equip aboriginal peoples to (1) manage conflicts and deal with internal contradictions (e.g., good tradition versus bad tradition, oppressive traditional practices, reification of elders, and fundamentalism), (2) build politically pluralist relationships with others that are based on aboriginal peoples’ history and self-defining processes rather than difference, and (3) build critical and robust intellectual and theoretical bridges among aboriginal peoples, and between aboriginal peoples and others in order to build of non-colonial relationships internally and externally. From this basis, theoretical questions will be developed to investigate the possibility of an overarching indigenous legal theory.
For aboriginal peoples, reconceptualizing their legal orders and law requires, at minimum, an understanding of law as governance complete with goals of citizenry, collaboration, accountability, and territory. At a very practical level, this means thinking about the function of law, role of law, source of law, and interpretation and legal reasoning processes in decentralized societies. Such an understanding of law must necessarily include how law changes, internal power dynamics and oppression, contestation of legal norms, and individual and collective agency. Finally, the work of reconceptualizing law requires learning to see how, (1) law derives from social interaction, and (2) indigenous peoples embedded their laws in their oral histories (Gitksan), place names (Dene), kinship roles and relationships (Gitksan, Cree), and practices (Dene).
The overall question that I will consider over the course of this project is this: If the broad framework outlined herein is useful to the reconceptualization of indigenous legal orders and law, then what kind of indigenous legal theory can one begin to develop based on the reconceptualization results? Other research questions will include examining;
- The relationship between decentralized legal orders and law, and the formally enacted laws and legal system of the centralized state.
- How Fuller’s theory of interactive law fits with the law of decentralized aboriginal societies (Gitksan, Dene, Saulteaux, Cree).
- The basic theoretical and practical requirements for understanding law across cultures?
- How aboriginal groups might effectively begin the capacity developing work of reconceptualizing their legal orders and law locally as a tool of governance and citizenry.
- How to reconcile customary law principles (decentralized generation of law through social interaction) with contemporary contexts, issues, political structures, and conflicts.
Themes
There are many connections between my proposed research and the theme of Domain Two, and the larger research project. To date, much of the legal scholarship and literature regarding indigenous legal orders and law has concerned itself with the recognition and incorporation of “custom” into common law. Historic common law legal tests and precedents are often drawn upon to provide examples of how customary law may or may not be recognized by the common law. Other literature is restricted to considering indigenous law within the aboriginal rights framework as the basis for rights recognition (e.g., self-government, title, and justice).
What I propose to do with this initiative is to move consideration of indigenous legal orders and law beyond the confines of existing literature – specifically beyond recognition of custom and establishment of rights. My proposed research will provide another perspective and understanding of law – basically, law as a way to manage ourselves, law as something we “do”, and law as a decolonizing, democratizing tool for social change. As well, this perspective and broad definition of law will be useful for both Domains One and Three (systems of relations as governance, identity, and organization of power). In turn, my research will be helpfully informed by the perspectives and work of the other researchers. (It is a little difficult for me to be more specific in my response to this question.)
Interaction
Small group discussions would be the most helpful to me at the annual MCRI gatherings. Over the course of the year, sharing papers would also be helpful. I am very interested in how we can effectively organize interdisciplinary conversations that do not get snagged in language debates. I would be interested in how people from other disciplines respond to my research and would like to discuss how their research fits in with my work.
Future
I am optimistic about the future outcomes of our Domain interaction and the project as a whole. Ideally, I would like us to be able to get beyond critiquing law as the cutting edge of colonization and maintainer of the status quo, to a place where we can imagine law as a robust form of social change. Such an imagined future does not seek harmony, but rather, where law is a way to continually and collaboratively thrash out differences, challenge power structures, and build an engaged, thinking citizenry.
Brian Tamanaha, “A Non-Essentialist Version of Legal Pluralism” (2000) 27:2 J.L. & Soc’y, 296
Tim Schouls, Shifting Boundaries: Aboriginal Identity, Pluralist Theory, and the Politics of Self-Government (Vancouver: UBC Press, 2003).
This is intended to push the thinking beyond the fractured band level. Instead, what must be considered is the territory that the aboriginal group’s law covered in order that it to be a fully functioning legal order.
Gerald J. Postema, “Classical Common Law Jurisprudence (Part II)” (2003) 3:1 Oxford University Commonwealth Law Journal 1; and Roderick Macdonald, “Dossier: Still Teaching ‘Law’ and Still ‘Learning’?” (2003) 18 Canadian Journal of Law and Society 5.
Lon L. Fuller, “Human Interaction and the Law” (1969) 14 Am. J. Juris. 1 at 1. Fuller describes customary law as a “language of interaction” that is necessary for people to meaningfully engage in effective and anticipatory social behaviour. On enacted law, Fuller writes that there are eight requirements, (i) established rules, (ii) adequate publication of the rules, (iii) limited retroactivity of laws, (iv) clarity of laws, (v) congruence of laws, (vi) constancy of the law through time, (vii) congruence between official action and declared rule, and (viii) legal obligations are within the power of the affected party. See Lon L. Fuller, The Morality of Law (New Haven: Yale University Press, 1964) at 39.
H. Patrick Glenn, Legal Traditions of the World, Sustainable Diversity in Law, 2nd Ed. (Oxford: Oxford University Press, 2004).
According to William Alford, we cannot completely overcome our own cultural imprinting, so our greatest and most important challenge is to be able to recognize our own baggage in the form of our responses, expectations, judgments, etc. See generally, William Alford, “On the Limits of ‘Grand Theory’ in Comparative Law” (1986) 61 Wash. Law. Rev 945. Christoph Eberhard argues that in order to understand the law of another culture, one must have a basic understanding of the cosmology of that other culture. See Christoph Eberhard, “Towards an Intercultural Legal Theory: The Dialogical Challenge” (2001) 10:2 Social and Legal Studies 171.
