Benevolent Grandfathers and Savage Beasts: Comparative Canadian Customary Law

AuthorElizabeth Anderson
PositionIs completing her LL.B. at the University of Victoria Faculty of Law in the spring of 2010
Pages3-38
ARTICLE
BENEVOLENT GRANDFATHERS
AND SAVAGE BEASTS:
COMPARATIVE CANADIAN
CUSTOMARY LAW
By Elizabeth Anderson*
CITED: (2010) 15 Appeal 3-38
INTRODUCTION
is essay seeks to explore one of the more recent and innovative understandings of cus-
tomary law, one which begins by locating it as a basic element of every legal system. Law
is established and evolves in societies through the lived experience of its members, and is
fundamentally determined on an ongoing basis according to the norms which those actors
use as a guide to their choices. is is true regardless of what measure of technical codi-
cation a given society has built onto the base that customary law provides; whether in a so-
cial setting, a sentencing circle, a legislature or a court of law, it is these fundamental beliefs
and biases that structure the outcomes.
Where customary norms have been overlaid with other structures, such as courts, however,
the availability of equally valuable alternative potential norms risks being concealed, ar-
guably to a much greater degree than in a society that retains a more consensus-driven
and organic legal structure. Where this overlay exists, the fundamental structure at law’s
core is camouaged from view, appearing neutral, since it is written into the presupposi-
tions with which members of that society approach the law. Furthermore, even where this
danger has been recognized in the abstract, practical diculties oen arise in the process
of identifying which of one’s norms have been assumed to embody the only viable option.
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*Elizabeth is completing her LL.B. at the University of Victoria Faculty of Law in the spring of 2010. She has an
Honours Bachelor of Arts in English from the University of British Columbia and will be articling with Bull,
Housser and Tupper in Vancouver, B.C., and expects to be called to the bar in May of 2011. This paper was
written as a directed research project to fulfill the paper requirement for completion of an LL.B. at University of
Victoria Law. The paper was supervised by Canada Research Chair in Law and Society Jeremy Webber and was
largely inspired by some of his work, most notably “The Grammar of Customary Law” (infra note 1). Professor
Webber also generously assisted in editing the final draft for publication in Appeal. The author would like to
thank him profusely for his invaluable assistance, and to acknowledge the contributions of Anna Johnston, who
edited the paper, and all those who read it and provided comments on its earlier incarnations.
Cultures whose legal systems have developed based upon dierent normative contexts may
provide comparative opportunities that both help to expose contextual assumptions and
oer alternatives for the critical evaluation and improvement of the moral foundations of
law and society — an evolution which is arguably essential to the continued relevance and
justice of any society’s legal system. Comparison may be especially useful between societies
with markedly dierent metaphysical understandings, since the norms that rely on these
constructions are likely to contrast so dramatically they will be easily recognizable.
is essay examines the specic historical and contemporary normative constructions of
hunting law among the James Bay Cree of Northern Quebec, and seeks via contrast to
make clear the analogously subjective nature of the understandings embodied in Cana-
dian wildlife law and legislation. Finally, it asks how we might use this awareness of alter-
nate legitimate outcomes to address shortcomings in Canadian wildlife law and to eect
reforms that will improve the justice system in this area.
I. CUSTOMARY LAW AND NORMATIVE FRAMEWORKS
is paper is largely informed by the latest work of Jeremy Webber, “e Grammar of Cus-
tomary Law.” Webber does not restrict himself to the traditional, narrow denition of cus-
tomary law (i.e., law as practiced in Indigenous societies); rather, he adopts the inclusionary
stance advocated by theorists such as Lon Fuller and Gerald Postema, in which customary
law is seen to underlie and inform even the most strictly codied legal systems. John Bor-
rows agrees that “customary law is still important in the development of common law rea-
soning.” Because one of the main ideas of customary law is that legal principles develop
as a result of the interaction between order and practice that take place as participants in
legal orders live out their lives, each of these orders is necessarily built upon the experience,
negotiation and adoption of certain legal principles over others. Codied legislation and
judicial decisions are made based on a society’s distinctive norms; the norms themselves
emerge from and develop through the practices of the people who live within that society.
John Borrows has adopted J.H. Merryman’s denition of a legal tradition: “a set of deeply
rooted, historically conditioned attitudes about the nature of law, about the role of law in
society and the polity, about the proper organization and operation of a legal system, and
about the way law is or should be made, applied, studied, perfected and taught.”As an as-
pect of a culture, a legal tradition can be distinct from the legal system of the state if the lat-
ter does not recognize the force of that particular tradition. is is especially likely to
occur in states that are made up of a number of historically distinct cultures, each of which
has developed and in many cases continues to develop its own norms. States such as
Canada, which have more than one legal tradition, are identied as legally pluralist. Bor-
1. Jeremy Webber, “The Grammar of Customary Law” (2008) [forthcoming] [Webber, “Grammar”].
2. John Borrows, Indigenous Legal Traditions in Canada (Ottawa, Ont.: Law Commission of Canada, 2006) at 83
[Borrows, Indigenous Legal Traditions].
3. Webber, “Grammar”, supra note 1 at 1; see also his “Legal Pluralism and Human Agency” (2006) 44 Osgoode
Hall L. J. 167.
4. J.H. Merryman, The Civil Law Tradition: An Introduction to the Legal Systems of Western Europe and Latin
America, 2nd ed. (Stanford, Ca.: Stanford University Press, 1985) at 1.
5. Borrows, Indigenous Legal Traditions, supra note 2 at 1. For an examination of the interrelationships between
legal traditions, legal orders, and legal systems, see Harold J. Berman, Law and Revolution: The Formation of
the Western Legal Tradition (Cambridge, Ma: Harvard University Press, 1983).
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rows helpfully observes that “[l]aws can arise whenever interpersonal interactions create
expectations about proper conduct” and that the transmission of traditions, including legal
traditions, is inextricably linked to a cultures “conguration of language, political struc-
tures, kinship, clan, economic systems, social relations, intellectual methodologies, moral-
ity, ideology and the physical world” in which its people live.
Webber is ultimately critical of what he sees as an overemphasis on the pragmatic dimen-
sions of customary law in Fuller and Postema’s arguments: though one of law’s most im-
portant express functions is undeniably the coordination of human aairs, to take this
criterion as a sucient determinant of the substantive choices made in an order’s structure
and operation is misleading, given the array of possible and equally workable solutions
available in any given case. e provisional resolution of disagreement for the purpose of
preserving a functioning social system is undeniably essential, but the very system of res-
olution that a legal order adopts necessarily relies upon built-in value judgements which
are oen invisible to the people who use it. ese judgements are not recognized as such,
but are taken for granted as foundational. e availability and feasibility of other alternatives
has been lost from conscious awareness. is paper pursues the argument that the moral sys-
tems that underpin these value judgements and determined such choices in the rst place
must be recognized and retrieved for re-examination on a conscious level, both in order to
maintain the integrity and relevance of a given legal system by ensuring its adaptability to
future generations of participants and to avoid inadvertently and inappropriately imposing
these normative structures on our understandings of and interactions with members of
other legal orders, especially those with a traditionally disadvantaged colonial relationship
to our own. One way of fostering this recognition is via comparison of the details of our own
system with those of other legal orders, the members of which have chosen dierent values
to inform their ways of living together; Indigenous systems of law, in particular, are oen
far enough removed from our own experience to reveal the ultimately contextual nature of
many principles we take as foundational.As John Borrows reminds us, “it is important to
note that, like Indigenous legal traditions, Canada’s broader legal traditions also rest upon
unwritten cultural assumptions;” he notes that the Supreme Court of Canada itself has
explicitly recognized “an historical lineage stretching back through the ages, which aids in
the consideration of underlying constitutional principles … [that] inform and sustain the
constitutional text: they are the vital un-stated assumptions upon which the text is based”
and are “not merely descriptive but are also invested with a powerful normative force, and
are binding upon both courts and governments.”
is paper will examine some of the customary laws of the James Bay Cree — more speci-
cally, those related to hunting and animal stewardship, and the norms that inform these
laws’ adoption and use; this framework will then be used to draw out and compare ele-
6. Borrows, Indigenous Legal Traditions, supra note 2 at 7.
7. Webber, “Grammar”, supra note 1 at 1.
8. At the same time, the continuing existence of multiple interpretations and perspectives on an issue within a
legal system not only does not disqualify the existence of a “law” in respect of the issue, it contributes to the
ultimate strength and vitality of the legal order as an ever-developing entity. See, for example, Borrows, supra
note 2 at 15: “incongruity and differing interpretations are not signs that the community does not have law. To
the contrary, multiple perspectives on a legal tradition are a sign that the tradition is vibrant and strong; it al-
lows those with opposing viewpoints to maintain a relationship within the tradition.”
9. Webber, “Grammar”, supra note 1 at 2, 25.
10. Borrows, Indigenous Legal Traditions, supra note 2 at 15.
11. Reference re Secession of Québec, [1998] 2 S.C.R. 217 at para. 54.
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