The lifeworlds of law: on revitalizing indigenous legal orders today.

Author:Mills, Aaron
Position::Canada - Moving from the Why to the How of Indigenous Law
 
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What ultimately counts as law and as the legitimate processes of its generation, adjustment, and destruction are both empowered and constrained by the constitutional order from which they derive life. A constitutional framework, in turn, reflects unique understandings about what there is and how one can know: a lifeworld. Reflecting on his own experience, the author emphasizes how legal education harms when it fails to acknowledge and to begin to articulate the lifeworld beneath any system of law it aims to impart.

There are serious questions to be taken up in considering whether we may move law between constitutional contexts without subjugating the law of one community to the lifeworld of another. The author asserts this is particularly important with respect to Canadian law schools' recent interest in teaching Indigenous peoples' own systems of law. He argues that Canadian (liberal) and Indigenous (what he calls "rooted") constitutionalisms are not only different, but different in kind. As such, efforts to articulate Indigenous law within the forms of liberal constitutionalism ignore or trivialize the ongoing significance of Indigenous lifeworlds to governance of Indigenous lives today. Many Indigenous legal scholars are adverting to this tension, moving on from simply making space for Indigenous law in the academy to asking whether and how this may be done. The author briefly canvasses Indigenous theorists (students, professors, lawyers, and elders) whose works present Indigenous systems of law within their own lifeworlds.

Tracking the lifeworld-law relationship, he proposes three reforms to legal education in Canada: (1) teach that all law is storied; (2) teach that Canadian constitutional law is a species of liberal constitutionalism; (3) require students to enrol in a prerequisite on an Indigenous people's constitutional order before enrolling in a course on their law. By way of example, he concludes with the syllabus for an intensive course he designed and taught on Anishinaabe constitutionalism.

Lie produit qui portera ultimement l'etiquette du droit et du processus legitime de sa generation, de sa revision et de sa destruction est a la fois habilite et contraint par l'ordre constitutionnel dont il emane. Un cadre constitutionnel reflete a son tour d'uniques comprehensions de ce qui existe et des moyens de connaitre: un lifeworld. En se penchant sur sa propre experience, l'auteur souligne la mesure dans laquelle leducation juridique cause du tort lorsqu'elle ne parvient pas a reconnaitre et a articuler de maniere preliminaire le lifeworld qui sous-tend tout systeme juridique qu'elle vise a conferer.

D'importantes questions doivent etre posees lorsqu'on considere la possibilite de deplacer aisement le droit entre des contextes constitutionnels donnes, sans assujettir le droit d'une communaute au lifeworld d'une autre. L'auteur affirme que ce questionnement est d'autant plus important compte tenu du recent interet pour l'enseignement des systemes juiidiques propres aux peuples autochtones au sein des facultes de droit canadiennes. II soutient que les differences entre le constitutionnalisme (liberal) canadien et le constitutionnalisme (que l'auteur appelle >) autochtone s'etendent a meme leur nature. Ainsi, les efforts d'articuler le droit autochtone dans les contours du constitutionnalisme liberal ignorent ou banalisent l'importance continue des lifeworlds autochtones pour la gouvernance des vies autochtones aujourd'hui. Plusieurs auteurs juridiques autochtones se penchent sur cette tension, et passent du simple effort de tailler une place pour le droit autochtone dans le milieu academique a se demander si et comment cette inclusion peut s'effectuer. L'auteur offre un bref survol des theoriciens autochtones (etudiants, professeurs, avocats et aines) dont les ouvrages presentent les systemes juridiques autochtones selon leur propre lifeworlds.

Sous l'angle de la relation lifeworld-oroit, il propose trois reformes quant a l'education juridique au Canada: (1) enseigner que toute forme de droit est recitatif; (2) enseigner que le droit constitutionnel canadien s'insere dans le constitutionnalisme liberal; (3) exiger que les etudiants suivent un cours obligatoire sur l'ordre constitutionnel des peuples autochtones avant de suivre un cours sur leur droit. En guise d'exemple et de conclusion, il propose le plan de cours d'une classe intensive sur le constitutionnalisme Anishinaabe qu'il a conceptualise et enseigne.

Introduction: Lifeworld, Legality, and Legal Education I. Lifeworld and Contemporary Scholarship on Indigenous Legal Orders II. Lifeworld and the Revitalization of Indigenous Legal Orders Today A. Rooted Constitutionalism: One Way of Understanding Life world and Law B. Implications of Lifeworld for Legal Education Across Liberal and Rooted Constitutional Contexts Conclusion: Weweni--Go Carefully Introduction: lifeworld, Legality, and Legal Education

I'm (1) one of the many who found law school extraordinarily challenging. As dawning slowly rolled over my peers that first year, I fumbled clumsily in the dark. I waited for my light bulb to appear. I waited and waited, but it never came. I just couldn't get it. And I didn't understand why; I'd been a strong student until then. Many of my professors were excellent too; in most instances, I couldn't tell myself the problem was their teaching. As clarity set over my friends, I slipped further into a cloud of confusion and I began to question if I belonged. As I listened to their brilliant questions--which not only synthesized but creatively applied the material in new ways--I felt stupid.

I understood the new words in my texts, the new words from the front of the lecture hall. But for the life of me, I couldn't understand how to make the right meaning of them in sentences and paragraphs. To me, these were an endless litany of non-sequiturs. None of them fit together to produce the understanding it seemed everyone else acquired. The lessons didn't slowly cohere as a structure that I could then wield to frame future sentences. I never learned to think like a lawyer. Class became a battleground, law school a war, but one I waged inside of and against myself. I wanted desperately to accept the knowledge shared as given, yet I resisted it with all my being. Some days it seemed I fought over almost every utterance. Every sentence was a clash over stakes I couldn't articulate, but which pounded their urgency throughout me, sometimes so powerfully it felt as though my chest might burst as I sat there, silently.

Unable to identify what was happening, my frustration turned into a deep sense of failure. A professor who asked from across his desk what happened during my December exam was kind and encouraging. He wanted me to succeed. But I'd figured out I wasn't like the others here. I wouldn't be a lawyer or an academic. I'd work till eleven almost every night and then fail out while others moved on to accomplish the things I wanted. I'd be the one making excuses so as not to appear to others as stupid as I'd come to know I was. I'd just changed my mind, I'd say, hoping they'd quietly just leave me behind.

I hated my first year of law school.

Fortunately, second year, and especially the summer following it, brought three interventions that, together, set me on a new course. The first was that I began to read papers that hadn't been assigned but which addressed what I cared most about: how Canadian law works for and against Indigenous peoples. Some of these made an enormous difference for me, opening up critique unavailable in my classes, the lack of which seemed very much to have something to do with that pounding in my chest. (2) These papers offered me three connected gifts. First, they helped me to identify that colonialism is alive today and that law, including constitutional law, is part of how it operates. This was to name an important part of why I hurt as I learned about the Indian Act (3) and about the section 35 (4) jurisprudence. Second, these papers began to disclose to me the boundaries of Canadian law. In identifying viable constitutional options not taken, I began to understand--not consciously, not in a way I could yet articulate--that Canadian law lives somewhere. Perhaps, I began to realize, it isn't just the law but the context that creates and sustains it which is adverse to Indigenous peoples' well-being. Third, some of these papers--notably Darlene Johnston's "Aboriginal Traditions of Tolerance and Reparation" (5)--take significant steps in revealing not just Indigenous peoples' own systems of law, but the Indigenous lifeworlds (6) beneath them. I could tell that something deep was going on here and it made me hopeful.

The second intervention followed from the first. I enrolled in a summer program at the University of Victoria (UVic) on Indigenous peoples' own systems of law and, even more exciting, John Borrows was teaching a course on Anishinaabe law. The program had an enormous impact not just on my education but on my life. The following September, back in Toronto, I remember one of my friends commenting, as I crossed the parking lot between Falconer Hall and Flavelle House, that my shoulders seemed so much lower, my steps so much higher. The 2009 UVic summer program opened an entirely new world to me. If the articles I'd read had been signposts for a new door to walk though, that program blew the door wide open. I understood that my life wouldn't have to pass either in the darkness of permanent critique or in fighting within a system at its best unrepresentative of how I understood law and at its worst openly hostile to that understanding. I could actually develop my own positive project based in Anishinaabe law and build understanding and professional community from there. I can't overstate the importance of this gift for my life.

The third thing that happened following second year was that I began to return to...

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