Beyond Sui Generis: Situating Postmodern Legal Pluralism as a Framework to Reconstruct the Relationship Between Indigenous and Canadian Law

Abstract

This thesis examines the relationship between Indigenous and Canadian law at points of interaction, including, for example, in the litigation context. In doing so, it draws on the theory of legal pluralism in order to advance a normative framework through which to reexamine how institutional settings view and acknowledge legal normativity. In doing so, this thesis draws on legal pluralist scholarship in challenging the nature and function of legal centralism which delegitimizes and invisibilizes the normative authority of Indigenous law. The purpose of challenging this received wisdom about “law,” which largely stems from Western jurisprudence, is to facilitate intercultural conversations which aim to respect the organic sources of, and local knowledge inherent within, various iterations of Indigenous law. In undertaking a legal pluralist methodology, this thesis surveys, and then subsequently rejects, “social scientific” legal pluralisms. It is argued that these versions of legal pluralism essentialize the concept of law, which tends to ignore the cross-cultural complexity of different conceptions of law. As such, this thesis rejects “social scientific” legal pluralisms, and proceeds to build on the insights of critical legal pluralists in fashioning a postmodern version of legal pluralism. This version of legal pluralism, I argue, allows more more nuanced understandings of localized and contingent legalities, including Indigenous law. It argues for an analytical approach which resists external conceptualizations of legal normativity, instead focusing the inquiry inward on the legal actors participating in various normative spaces. Moreover, it draws on the insights of postmodernism in rejecting that there can be any “truth” or “universality” to law, and argues that modern law’s claims to universality produce a monist and unidimensional version of legal normativity. Given these claims, this thesis proceeds to illustrate the violence inherent in state law, arguing that such a state of affairs delegitimizes and marginalizes Indigenous law and the worldviews from which it is drawn. Deconstructive methods are employed to help illustrate the flawed ideological presuppositions underlying state domination. Finally, given the postmodern legal pluralism that I develop in this thesis, I move on to think about how such a framework could be implemented in the context of land-based disputes. I look to processes of translation and negotiation as spaces to rethink legal process in arguing for a more decolonized approach to the intercultural conversation between Indigenous and Canadian law.