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Canada's Indigenous Constitution
Canada's Indigenous Constitution reflects on the nature and sources of law in Canada, beginning with the conviction that the Canadian legal system has helped to engender the high level of wealth and security enjoyed by people across the country. However, longstanding disputes about the origins, legitimacy, and applicability of certain aspects of the legal system have led John Borrows to argue that Canada's constitution is incomplete without a broader acceptance of Indigenous legal traditions. With characteristic richness and eloquence, John Borrows explores legal traditions, the role of governments and courts, and the prospect of a multi-juridical legal culture, all with a view to understanding and improving legal processes in Canada. He discusses the place of individuals, families, and communities in recovering and extending the role of Indigenous law within both Indigenous communities and Canadian society more broadly. This is a major work by one of Canada's leading legal scholars, and an essential companion to Drawing Out A Spirit's Guide .
416 pages, Paperback
First published March 6, 2010
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Displaying 1 - 5 of 5 reviews
July 7, 2023
Overall, I found that Canada's Indigenous Constitution puts forth a rather convincing thesis: Indigenous legal traditions are embedded in our constitution, and it is in our best interest to embrace and cultivate such underpinnings within a multi-juridical system. From the outset, we observe how treaties between First Nations and European settlers have shaped certain legal interactions between the two groups (despite it being on unequal footing). John Borrows proceeds to compare and contrast Indigenous legal traditions alongside common law and civil law, introducing us to a few legal sources from which Indigenous peoples have derived their customary laws. In doing so, he addresses certain misconceptions that we may have towards First Nations.
Borrows underscores the importance of contextualizing our interpretations and applications of the law, asserting that Indigenous participation in our legal proceedings is crucial. He also points to a history of double standards in our courts that has negatively impacted Indigenous peoples. For example, Borrows highlights the higher burden of proof needed to demonstrate the authenticity of certain activities, sacred objects, and religious precepts within Indigenous cultures and traditions. He laments at how such requirements are anachronistic and a hindrance to modernizing Indigenous legal traditions. Despite all that, Borrows paves the way forward, offering sound recommendations as to how we can forge better relationships with Indigenous peoples all while bolstering Canada's legal framework.
Canada's Indigenous Constitution reads like a scholarly work, so at times it can feel like a plough to get through denser passages. But fret not, there are wonderful stories sprinkled here and there to keep you on your toes. The reason why I deducted a star is due to the fact that I was putting Borrows' work up against immensely captivating non-scholarly books. That said, I would consider this book a gateway to Indigenous legal traditions and all it has to offer.
Borrows underscores the importance of contextualizing our interpretations and applications of the law, asserting that Indigenous participation in our legal proceedings is crucial. He also points to a history of double standards in our courts that has negatively impacted Indigenous peoples. For example, Borrows highlights the higher burden of proof needed to demonstrate the authenticity of certain activities, sacred objects, and religious precepts within Indigenous cultures and traditions. He laments at how such requirements are anachronistic and a hindrance to modernizing Indigenous legal traditions. Despite all that, Borrows paves the way forward, offering sound recommendations as to how we can forge better relationships with Indigenous peoples all while bolstering Canada's legal framework.
Canada's Indigenous Constitution reads like a scholarly work, so at times it can feel like a plough to get through denser passages. But fret not, there are wonderful stories sprinkled here and there to keep you on your toes. The reason why I deducted a star is due to the fact that I was putting Borrows' work up against immensely captivating non-scholarly books. That said, I would consider this book a gateway to Indigenous legal traditions and all it has to offer.
July 22, 2021
Canada's Indigenous Constitution, by the prominent Anishinaabe legal scholar John Borrows, argues that Indigenous law forms one of three regions in Canada's "multijuridical" landscape, alongside English common law and French civil law.
The thesis is a compelling one. As Borrows explains, Indigenous Peoples had and continue to have their own laws and normative orders, which were neither extinguished nor supplanted by European colonialism—even when viewed through the lens of European legal doctrines. But apart from the first and final chapters, the book reads mostly like a legal policy paper, with all the shortcomings endemic to that sort of writing.
My main hang-ups were as follows:
1. Borrows Never Explains What He Means by "Law"
Borrows takes it for granted—and rightfully so, given Canada's appalling and ongoing legacy of actively denying Indigenous culture—that Indigenous Peoples have laws. But I still think that, in an academic text such as this one, he owes the reader an account of what "law" means.
For instance, one could argue that law is simply any set of norms that govern a society and are viewed as sufficiently prescriptive by a large enough chunk of the population. (Such a definition would raise further questions, of course, including how to define the society in question and how many people need to "buy into" the norms in order to establish them as law.)
A totally different approach would be to define law more narrowly—say, in terms of norms promulgated by a recognized governmental authority and which are backed by coercive mechanisms—but then point out that law, so defined, doesn't have any special moral authority. It's this sort of definition that motivates the phrase: "law is for the lawless".
These differences aren't merely academic. Canadian state law, as it's typically understood, involves law of the second sort. You have relatively well-defined written rules backed by sanctions. If this is what law "means", then it is possible that not all societies have "law". But far from impugning any such societies, this just shows that law is far less important than we make it out to be.
It would raise issues, however, with respect to how the tripartite multijuridical state envisioned by Borrows might operate in practice. For instance, how does coercive law interact with non-coercive norms? And are there any straightforward procedures for translating the one into the other? (I note, in this regard, that many elders and knowledge holders criticize the "formalization" of Indigenous laws, insofar as a law loses its vitality and flexibility once written down.)
On the other hand, taking a more inclusive approach to law could admit all sorts of other normative orders, both Indigenous and non-Indigenous in kind. What about non-formalized social norms? The rules of etiquette? What about morality? Especially since, in positive legal theory, law and morality are not coextensive?
These are all important (and challenging) philosophical questions that, I'd argue, are directly relevant to Borrows' thesis, but which receive absolutely zero discussion in his book.
2. Borrows Often Relies Upon Canadian Legal Concepts
This past year, I had the privilege of attending a virtual telling of the Kaianere'kó:wa—a.k.a. the Haudenosaunee Great Law of Peace. At one point, and this has stuck with me ever since, the knowledge holder mentioned that "rights" were a colonial concept, whereas Haudenosaunee law focused instead on "responsibilities". Being a product of Canadian legal education (Borrows and I share the same alma mater), I immediately thought of Hohfeldian rights analysis and how duties are just the other side of the rights coin. A difference in emphasis, surely, but really just the same concept viewed from a different angle.
But the more I pondered it, the less certain I was of this analysis. Rights (and duties), within the framework of European-derived law, are largely about setting up fences past which others ought not encroach. Property rights. Freedom of speech. Rights mean that we are entitled to x, while duties tell us that we must (or mustn't) do y. But responsibilities, by contrast—well, they are thicker and more relational. We owe duties to our employer or to the state; we are responsible for our children.
The point I'm getting at, here, is that the rights/duties framework may not be universal. Other different but tenable conceptual schemes can exist. But Borrows, despite his cautions about translating Indigenous laws into European (legal) languages, frequently skates over such fine-grained distinctions. For him—in this book, at least—duties are obligations and obligations are responsibilities. And I do believe that something is lost through such conceptual and terminological looseness.
3. Borrows, with Some Exceptions, Writes Like an Academic
In the first and final chapters of the book—titled "Retroduction" and "Reproduction", respectively—Borrows employs an engaging and refreshingly unacademic narrative style. Unfortunately, for the remainder of the work, he falls into standard law school prose, replete with lengthy sentences, passive voice and unnecessary Latinisms ("inter alia", I'm looking at you). Borrows is clearly a solid writer when he wants to be, and I realize that prose carries its own politics, but much of Canada's Indigenous Constitution comes across as impersonal and rather dry.
In short, perhaps not the best introduction to Indigenous law. But definitely an important work within Canadian legal academia.
The thesis is a compelling one. As Borrows explains, Indigenous Peoples had and continue to have their own laws and normative orders, which were neither extinguished nor supplanted by European colonialism—even when viewed through the lens of European legal doctrines. But apart from the first and final chapters, the book reads mostly like a legal policy paper, with all the shortcomings endemic to that sort of writing.
My main hang-ups were as follows:
1. Borrows Never Explains What He Means by "Law"
Borrows takes it for granted—and rightfully so, given Canada's appalling and ongoing legacy of actively denying Indigenous culture—that Indigenous Peoples have laws. But I still think that, in an academic text such as this one, he owes the reader an account of what "law" means.
For instance, one could argue that law is simply any set of norms that govern a society and are viewed as sufficiently prescriptive by a large enough chunk of the population. (Such a definition would raise further questions, of course, including how to define the society in question and how many people need to "buy into" the norms in order to establish them as law.)
A totally different approach would be to define law more narrowly—say, in terms of norms promulgated by a recognized governmental authority and which are backed by coercive mechanisms—but then point out that law, so defined, doesn't have any special moral authority. It's this sort of definition that motivates the phrase: "law is for the lawless".
These differences aren't merely academic. Canadian state law, as it's typically understood, involves law of the second sort. You have relatively well-defined written rules backed by sanctions. If this is what law "means", then it is possible that not all societies have "law". But far from impugning any such societies, this just shows that law is far less important than we make it out to be.
It would raise issues, however, with respect to how the tripartite multijuridical state envisioned by Borrows might operate in practice. For instance, how does coercive law interact with non-coercive norms? And are there any straightforward procedures for translating the one into the other? (I note, in this regard, that many elders and knowledge holders criticize the "formalization" of Indigenous laws, insofar as a law loses its vitality and flexibility once written down.)
On the other hand, taking a more inclusive approach to law could admit all sorts of other normative orders, both Indigenous and non-Indigenous in kind. What about non-formalized social norms? The rules of etiquette? What about morality? Especially since, in positive legal theory, law and morality are not coextensive?
These are all important (and challenging) philosophical questions that, I'd argue, are directly relevant to Borrows' thesis, but which receive absolutely zero discussion in his book.
2. Borrows Often Relies Upon Canadian Legal Concepts
This past year, I had the privilege of attending a virtual telling of the Kaianere'kó:wa—a.k.a. the Haudenosaunee Great Law of Peace. At one point, and this has stuck with me ever since, the knowledge holder mentioned that "rights" were a colonial concept, whereas Haudenosaunee law focused instead on "responsibilities". Being a product of Canadian legal education (Borrows and I share the same alma mater), I immediately thought of Hohfeldian rights analysis and how duties are just the other side of the rights coin. A difference in emphasis, surely, but really just the same concept viewed from a different angle.
But the more I pondered it, the less certain I was of this analysis. Rights (and duties), within the framework of European-derived law, are largely about setting up fences past which others ought not encroach. Property rights. Freedom of speech. Rights mean that we are entitled to x, while duties tell us that we must (or mustn't) do y. But responsibilities, by contrast—well, they are thicker and more relational. We owe duties to our employer or to the state; we are responsible for our children.
The point I'm getting at, here, is that the rights/duties framework may not be universal. Other different but tenable conceptual schemes can exist. But Borrows, despite his cautions about translating Indigenous laws into European (legal) languages, frequently skates over such fine-grained distinctions. For him—in this book, at least—duties are obligations and obligations are responsibilities. And I do believe that something is lost through such conceptual and terminological looseness.
3. Borrows, with Some Exceptions, Writes Like an Academic
In the first and final chapters of the book—titled "Retroduction" and "Reproduction", respectively—Borrows employs an engaging and refreshingly unacademic narrative style. Unfortunately, for the remainder of the work, he falls into standard law school prose, replete with lengthy sentences, passive voice and unnecessary Latinisms ("inter alia", I'm looking at you). Borrows is clearly a solid writer when he wants to be, and I realize that prose carries its own politics, but much of Canada's Indigenous Constitution comes across as impersonal and rather dry.
In short, perhaps not the best introduction to Indigenous law. But definitely an important work within Canadian legal academia.
October 6, 2022
Great overview into Indigenous law! Does an amazing job of analyzing the sources of Indigenous Law and relating the Canadian and Indigenous legal systems. The author also points out differences that are key to note, while referencing possibilities for the Canadian legal system to accept and work alongside this legal other. The author explains things in a way that makes the concepts easy to understand for someone without any background in Indigenous Law. Amazing book for anyone wishing to learn about Indigenous Law or the relationships between a country’s legal system and legal others!!
May 4, 2025
Quite interesting! But a bit circular
September 24, 2021
Probably the most accessible place to start reading about Indigenous legal traditions in Canada. Very little is sacrificed to make it so readable and clear. While I disagree with the 5-part taxonomy of sources of Indigenous law, I think the discussion is still sophisticated enough to forgive some of its structural trappings.
Displaying 1 - 5 of 5 reviews