Questions

Aboriginal peoples occupy an interesting and unique position – for the most part unarticulated – vis-à-vis legal theory and legal theorizing.  The fundamental aim of this project is to foster dialogue around legal theory as it relates to Aboriginal people.  I envision three separate components, which to some extent will unfold in a linear fashion. 

First, work must be done in gathering together and exploring what has already been said of a theoretical nature of ‘law’, about the law as it relates to Aboriginal peoples, and about theory as it relates to the law relating to Aboriginal peoples.  This inquiry will explore both unarticulated and articulated positions around a number of fundamental questions. 

Second, work will spin off from this initial inquiry into the realm of theorizing itself, exploring what might be said about the nature of the law and legal theory in the context of the situation enveloping both non-Aboriginal and Aboriginal peoples. 

Finally, work will begin on using the first two stages of analysis in fostering the growth of a community of scholars working in a more concerted fashion on the theoretical plain, so as to hopefully gain greater insight into the nature of the law as it relates to Aboriginal people.

First Stage

On the one hand, legal scholars exhibit theoretical positions through their writings, regardless of whether they step back to reflect on these positions, and regardless of whether these positions are directly revealed in the writings.  Regardless of whether a scholar claims they are taking up a theoretical position, or clearly describes a theoretical window through which they are examining the legal world around them, what they say about the law will emerge out of perspectives about the nature of the law, about how they believe it can be understood, and about what function they believe may be furthered by thinking and writing about the law.  Discernible in any scholar’s work will be positions about what ‘law’ is, about how it is to be approached and examined, about how one can speak about it, about what both the law and the study of the law may function to serve, and about what objectives both the law and the study of the law may further.  

On the other hand, some scholars do, to varying degrees, step back from their work within the legal realm, to directly ask about their relationship to ‘the law’ and legal systems, and about the nature of their study of the law. For these theorists theoretical positions and issues are pulled to the surface.

The first subset of questions I will explore concern the various theoretical perspectives we might find evident, though latent, in work by both non-Aboriginal and Aboriginal legal scholars.  The work of those who write about the law as it intersects with Aboriginal peoples without any clearly articulated thoughts about the nature and role of theory and theorizing will be explored: what does their work imply about their positions on the nature of the law (what it is, how it is accessed or studied, how it can be reflected upon in scholarship, functions it may serve, and objectives it may be put to), and the nature of thought and writing about the law (what functions writing and thinking about the law may serve, and what objectives might be furthered in these pursuits). 

The second subset of questions is related, paralleling the first subset of inquiries into ‘latent’ theorizing about the law as it relates to Aboriginal people.  The second inquiry delves into literature that carries its theorizing on the surface, that contains direct attempts at articulating, to some degree, theoretical positions in relation to the matters listed above. 

Second Stage

At the second stage issues identified in the first stage, in the examination of legal theorist’s various positions, are directly explored.   For example, most likely questions will arise about the impact of cultural and perspectival contexts on theorizing itself.  Could it be that any theory is inevitably culture-bound, that the very act of theorizing is only possible or sensible within a horizon bounded by one’s communal or cultural setting? 

Following close behind such a query would be questions then about, should this be so, whether it could be that dominant legal theories, of all stripes and varieties, are largely nonsensical to Aboriginal peoples, to the extent that these peoples exist within distinct cultural horizons. 

These sorts of inquiries – or more particularly possible outcomes from these inquiries – suggest larger or more abstract questions.  One might wonder whether larger meta-frameworks might exist, or could be constructed, within which cross-cultural or multi-cultural theorizing could be possible, producing perspectives on ‘the law’ (both as concept and instances, in the form of legal systems) that speak to both Aboriginal and non-Aboriginal legal scholars.  Alternatively, it might be that no such platform exists, and that theorizing is an activity essentially internal to cultural horizons, in which case ‘valid’ theories about law in Canada could be as numerous as there are distinct cultural bodies. 

Such questions about the nature of theorizing (leading into possibilities about the nature of various theories) might lead into further questions about the functions and objectives behind the process of thinking about the law – what purposes, for example, are served by having one legal system imposed upon peoples living within cultural borders harbouring distinct legal regimes, especially when this dominant system comes complete with its own theoretical underpinnings?   In this unique situation, in an area of interplay between cultural worlds that may produce ways of thinking about the world around distinct from each other, it would be valuable to inquire into the interplay between theories and theorizing. 

Third Stage

The third stage grows out of the first two, and involves the engagement of others in the formulation and growth of a body of both theory, and theories about theory (and theorizing), around the nature of ‘law’ and legal systems in this unique context.  The questions animating this study are not capable of explication in isolation, but rather demand the creation and maintenance of a community of legal theorists.

How this work fits into the theme of the domain

This work falls under the second domain, “the study of the paradigmatic foundations of current and future legal normativity of Indigenous legal orders”.  I think it is fairly clear from the notes above that this work fits fairly squarely within this domain, and that spelling out how that is so would be somewhat redundant or fairly obvious.

Suggested Forms of Interaction

I would welcome interaction with all the other researchers working within the MCRI at all stages of this particular project.  In particular, however, I would expect to benefit from various forms of interaction at the second and third stages.  The first stage will be primarily literature-driven.  It will be at the second stage that it would be beneficial to actively discuss – either in the context of further conferences, workshops or meetings, or in the form of electronic discussions around drafts of arguments and the like – the various questions I have suggested in this discussion paper.  Undoubtedly the questions would be reframed, and new questions suggested, and the stage would grow organically. The third stage, of course, will require some interaction, as the aim at that point is to build on the results of the inquiries at the first and second stages through the fostering of a community of scholars working on the further development of a dialogue around theory and theorizing in the context of Aboriginal peoples living within a larger community. 

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