Tansi Nîtôtemtik,
This week, we are talking about the operation and revitalization of Indigenous law. Today’s post is about the different sources of Indigenous law.
Five main sources of Indigenous law will be discussed in this post: sacred law, natural law, deliberative law, positivistic law, and customary law.
For most Canadians, Indigenous law is not a common knowledge subject. Many people may assume that Indigenous law is synonymous with customary law. However, Indigenous laws are complex and “flow from many sources.” [1]
Photo credit: https://raventrust.com/full-fledged-tricksters-val-napoleon-the-indigenous-law-research-unit/
Here, the sources of law will be discussed separately, for ease of understanding. However, it is important to note that, in reality, the different types of law interact and influence one another, and that Indigenous legal traditions are dynamic. [2] Like any other legal tradition, Indigenous laws are able to adapt and change overtime. [3]
Sacred Law
Sacred laws are those with sacred sources, as the name implies, and are treated with the highest respect. [4] These laws often stem from the Creator, and can be creation stories or revered ancient teachings. [5] Some Indigenous groups consider the numbered treaties to be sacred sources of law. The sacred nature of the treaties is one reason that many First Nations refuse to abandon the treaties, despite generations of neglect on the part of the Canadian government. [6]
Although sacred law may not be what first comes to mind when thinking of Canadian state law, it is good to remember that sacred laws, or those based on spiritual principles, “form an important part of most every culture’s legal inheritance,” including Canada. [7]
Natural Law
Natural laws are laws that come from observations of the physical world; the law is read from the land. [8] Natural laws are drawn from studying the environment, including animals and other wildlife, as well as mountains, rivers, and other living things. [9] Laws can then be made by drawing analogies from the behaviours of the natural world.
Natural laws can be of significant importance in many areas, one such area being environmental law and conservation. With natural law, observations of the world influence the creation of legal principles, and guide human conduct.
Deliberative Law
Deliberative law is law formed through the processes of persuasion, deliberation, council, and discussion. [10] Deliberative law comes from the process of people talking with one another, and these deliberations can be both formal and informal. [11]
Deliberative law draws upon historical and current legal ideas, and incorporates things like human rights principles and principles from other legal traditions. [12] In an Indigenous context, deliberative law can be created in circles, feasts, councils, or other public assemblies. [13]
Positivistic Law
Positivistic law encompasses the “proclamations, rules, regulations, codes, teachings, and axioms that are regarded as binding or regulating people’s behaviour.” [14] These laws are made by a person or a group that is regarded as authoritative by a significant number of community members. [15]
Positivistic laws are the strongest when there is good understanding as to why they are binding, not just when they are followed because they were made by someone or some group that is trusted or feared. [16] It is especially important that positivistic laws have a good underlying reason as to why they should be followed, as they are not given force from sacred principles, the natural world, or deliberations. [17]
Customary Law
Customary laws are “practices developed through repetitive patterns of social interaction that are accepted as binding on those who participate in them.” [18] Customary laws are often created through observations of how others act, which imply how people should act in general, and they are upheld in great part by social pressures that encourage them to be followed. [19]
Today’s post has provided just a brief introduction to the different sources of Indigenous law.
It is important to recognize the complex and dynamic nature of Indigenous law, and how its many sources can overlap and influence one another. It is also important to realize that, while Indigenous law or Indigenous legal traditions may seem different or “other,” there are many similarities between Indigenous and Canadian legal systems and sources of law. It's good practice to question legal principles, to ask where laws come from and who created them, and to remember that laws can and should change and adapt with the times.
Despite any differences to Canadian state law, Indigenous legal traditions must be treated with respect, and must be engaged with seriously as law. [20]
Until next time,
Team Reconcili-ACTION YEG
[1] John Borrows, Canada’s Indigenous Constitution (Toronto: University of Toronto Press, 2010) at 17 (Sources and Scope of Indigenous Legal Traditions).
[2] Supra note 1 at 30.
[3] Ibid.
[4] Supra note 1 at 17.
[5] Ibid.
[6] Supra note 1 at 18.
[7] Supra note 1 at 17.
[8] Supra note 1 at 19.
[9] Ibid.
[10] Supra note 1 at 21.
[11] Ibid.
[12] Ibid.
[13] Supra note 1 at 21-25.
[14] Supra note 1 at 26.
[15] Ibid.
[16] Supra note 1 at 27.
[17] Supra note 1 at 26.
[18] Supra note 1 at 28.
[19] Ibid.
[20] Val Napoleon and Hadley Friedland, “From Roots to Renaissance,” in Markus Dubber, ed., Oxford Handbook of Criminal Law (Oxford: Oxford University Press, 2014) at 17.