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Living Legal Traditions

Borrows and Henderson
by

Larry Chartrand

on 1 December 2016

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Transcript of Living Legal Traditions

Living Legal Traditions:
An Introduction

Who is Nanabush?
Retroduction
Living Legal Traditions
ABORIGINAL LEGAL MECHANISMS
Who is Nanabush in the Retroduction?
How is law described?
Why is law described as a dilemma “double-edged” so to speak?
Would Henderson agree?
What does Nanabush mean about not knowing for sure whether his words will help or hurt what he most deeply cares for?
What is he saying when he doesn’t want to be an eagle or a crow today and opts to be an otter?
Despite the relevance of Indigenous laws to Aboriginal communities, they are ignored or denied as valid by Canadian legal authorities. (@ 7)
The failure of Canada to include Indigenous legal traditions has lead to important questions:
Canada’s Legal System is Incomplete
What is/are the source(s) of Canada’s law?
What are Canada’s cultural commitments?
Are Canadian institutions receptive to Indigenous legal thought?
Are Canadian institutions competent to receive and apply Indigenous legal principles?
Questions
“A legal tradition … is a set of deeply rooted, historically conditioned attitudes about the nature of law, about the role of law in the society and polity, about the proper organization and operation of a legal system, and about the ways law is or should be made, applied, studied, perfected, and taught.” (@ 9)
Law as Tradition
They are best understood in reference to cultural and historical context.
The common law can only be understood in reference to English history and culture.
The civil law can only be understood in reference to French history and culture.
Mi’kmaq law can only be understood in reference to Mi’kmaq history and culture.
Legal Traditions as Cultural Phenomena
The simultaneous existence within a State of different legal systems with different rules that might apply to similar situations.
Embracing this concept and understanding the positive contributions to a society that legal pluralism may bring could be a less contentious strategy to the recognition of Indigenous legal systems.
Because it is not an “either or” proposition, but an inclusive one.
Legal Pluralism
Are dynamic - not static
“Traditions can be positive forces in our communities if they exist as living, contemporary systems that are revised as we learn more about how we should live with one another.” (@ 10)
Promote Interpretive Inclusion
What does Borrow’s mean by promoting interpretive inclusion?
Healthy Legal Systems
Will not only benefit Indigenous peoples, but will also benefit Canadians generally.
Why?
Relevance of Indigenous Laws
Cultural biases in defining law and assumptions about legal hierarchy and Indigenous peoples’ systems in that hierarchy
The Doctrine of Legal Reception
Convenient Forgetfulness
Factors Causing Displacement of Indigenous Law
What is law?
We need to avoid Eurocentric definitions of law like John Austin’s views (@ 12)
These views are ethnocentric and inaccurate, yet continue to be taught in formal legal institutions.
Law as Hierarchy
Assumptions regarding the nature of Indigenous societies as inferior reinforced legal colonization of Canada.
The myth of Turtle Island’s legal vacuum.
The Doctrine of Reception
“If Indigenous laws are not recognized we potentially construct Canadian law on a faulty premise that places Indigenous peoples lower on the so-called scale of civilization because of their non-European organization” (@ 16)
Non-recognition creates an inaccurate and impoverished view of “Canadian” law.
Without the Indigenous dimension, is not Canadian law (outside of Quebec) simply a colony of English law across the Atlantic?
The Need to build a stronger Legal Foundation that is honest and honourable
Discovery, Occupation, Prescription and Conquest.
Unfortunately, the doctrine of discovery is deeply entrenched in judicial thought about the nature of Canada’s beginnings and is used to justify “sovereignty” over Indigenous peoples instead of sovereign partnerships.
This has important implications for understanding the nature of Canada’s Constitution.
Nor, are the other justifications such as occupation, prescription or conquest valid.
The Fraudulent justifications of denial
Arguably, the exclusion of Indigenous legal traditions from enjoying equal status alongside the common law and civil law is itself discriminatory.
But does that mean that legal traditions (whether they be common law, civil law or Algonquin) must be considered part of the same Canadian legal system?
Does not the answer to this question depend on whether a nation Indigenous has been justly (lawfully) absorbed within Canadian polity?
Equitable Status
We only have to relinquish those interpretations of law that are discriminatory…(@ 20)

The significance of a treaty-based understanding of Canada…(@ 21)

This alternative more honourable approach is manifest in the United Nations Declaration on the Rights of Indigenous Peoples.
An Alternative…
“Without treaties, the so-called reception of the common law remains an act of forced dispossession. The doctrine of reception alone, without Indigenous participation, is antagonistic to peace, friendship and respect….” (@ 21)
Treaty Federalism
This International Declaration sets the minimum standards a state must uphold in relation to Indigenous peoples human rights which includes a right to self-determination and self-government, recognition of territory and land and the protection of culture and Indigenous institutions of governance.
The United Nations Declaration
What is the purpose of Borrow’s book?
Is this a valid objective? Is it achievable or is it a “pipe” dream?
If achievable, what legal strategies can we engage to help achieve equal recognition of Indigenous legal traditions and law?
Questions for discussion
What is/are the source(s) of Canada’s laws?
What are Canada’s cultural commitments?
Are Canadian institutions receptive to Indigenous legal thought?
Are Canadian institutions competent to receive and apply Indigenous legal principles?
Questions
It is not the law as a concept that is the problem, but the perceived paternalistic superiority of one society over the other that makes “law” unjust.
After all, the concept of law is a neutral idea meaning being bound to comply with a community endorsed prescription (way of behaving in relation to …) so that we can be secure in our humanity. Law can of course be tainted by its abuse towards others while at the same time accomplishing its goal of security for the abuser. But such a law lacks the “humane” aspect and is no longer law but a command.
The answer is a contentious issue within some Aboriginal communities and depends much on the perspective one takes on the legal significance of the treaties (or whether there is even a treaty). (See Borrows at 21)
On September 13, 2007, The United Nations General Assembly voted 143 - 4 in favour of adopting the Declaration.
Canada was one of the 4 that voted “No”. Canada has subsequently conditionally adopted the Declaration… as an “aspirational document”.
Postcolonial Indigenous Legal Consciousness
W
ho is the legal warrior?
What is his or her purpose?
What does Henderson say about “Eurocentric curricula”? (p. 6)
As Indigenous scholars, lawyers and students, are we involved in Ledger Drawing?
How does Henderson describe English common law and legal education? (p.12)
Full transcript