law ch 16 - John Borrows: Indigenous Legal Traditions

central argument

Indigenous legal traditions are complex, legitimate systems of law that come from multiple sources. They should not simply be understood as customary practices.

Canada is a legally pluralistic country because it recognizes multiple legal traditions

• Common law.

• Civil law.

• Indigenous legal traditions.

Indigenous law is not exclusively customary law.

can come from sacred teachings, the natural environment, deliberation, formal rules, and customs.

sacred law

Law that originates from the Creator, creation stories, or ancient teachings that have been passed down through generations.

important characteristics of sacred law

• Creation stories communicate rules about how people should live.

• Sacred law guides relationships between people, the environment, and the spiritual world.

• Sacred teachings are often given the highest level of respect.

Treaties as sacred law

• Some First Nations regard treaties as sacred promises connected to the Creator.

• Abandoning these treaties could be understood as violating sacred obligations.

• However, not all Indigenous communities share the same understanding of Canada's creation or their relationship with the Crown.

Important point

Indigenous communities have different legal traditions and understandings of treaties. They should not be treated as one homogeneous group.

natural law

Law derived from the natural world, creation, and the environment.

important natural law characteristics

• Indigenous peoples can observe nature and draw legal principles from it.

• The environment can communicate lessons about how people should behave.

• Law can be understood as being written on the earth.

Mary Johnson's adaawk

demonstrates how Gitksan Elders use their laws to communicate important principles about how fish should be treated when harvested.

Important distinction:

• Western natural law theories often focus on philosophical reasoning about universal moral principles.

• Borrows describes an Indigenous understanding that can involve learning directly from the environment and observing relationships within nature.

deliberative law

Law created and developed through discussion, consultation, and collective decision-making.

important deliberate law characteristics

• Indigenous law can evolve over time.

• Community members participate in creating and interpreting laws.

• Deliberation can occur in formal or informal gatherings.

• Laws remain relevant because they can be updated to reflect contemporary circumstances.

Talking circles

Circles are sacred and represent equality because no individual is placed above another

• Everyone has an opportunity to speak.

• Only one person speaks at a time.

• Participants listen to one another.

• People take turns in an orderly fashion.

• The circle symbolizes Mother Earth and the journey through life.

positivistic law

Law created through formal proclamations, rules, regulations, codes, and other authoritative statements.

Examples of where laws may be proclaimed:

• Feast halls.

• Council houses.

• Wampum readings.

• Band council chambers.

Important Positivistic laws distinction:

Positivistic laws may be followed because people trust or respect the authority that established them, even if they do not fully understand the original reasoning behind the rule.

• ex. Do not swim in a particular part of a stream.

• Do not walk on a particular part of a glacier.

customary law

Law developed through repeated patterns of social interaction that community members accept as binding.

customary law important characteristics

• Develops through repeated behaviour.

• People accept that they have obligations to follow certain practices.

• Often develops inductively.

Inductive reasoning

observing specific behaviours and developing general conclusions about how people should act