I start with a theoretical framework that, like the pragmatist account, focuses overwhelmingly on the coordination of diverse individuals’ actions, is reticent in judging questions of substantive value, and tends to evaluate law by using criteria of practical efficacy rather than substantive justice: law and economics. This examination will be useful for several reasons.

First, law and economics aims to provide rigorous means for coordinating expectations and assessing efficacy in legal regulation. It articulates more precise standards for “the coordination of human interaction” than do the pragmatists, who generally appeal to coordination only in abstract terms. Even given that high level of articulation, law and economics remains incomplete in instructive ways. That incompleteness reveals similar limitations in the pragmatist account and suggests precisely how and where it needs to be supplemented.

Second, the similarity in the two approaches is not haphazard: not only are both committed to functionalist explanations that remain relatively agnostic as to questions of substantive value, but there is a significant intersection in their theoretical resources. In particular, both Fuller and Postema appeal to game theory and related heuristic tools.[44]

Third, law and economics scholars have specifically addressed the question of indigenous landholding. An examination of how they have done so not only reveals the normative assumptions built into an approach that ostensibly focuses on coordination alone—and thereby creates space for alternative accounts based on very different assumptions—but it also helps establish that functionalist explanations of all kinds, including the pragmatist account, tend to provide only the most approximate explanations for why law takes the forms it does. A purely functionalist analysis may stipulate outer limits to the possibilities of legal form. It may state conditioning factors. But it leaves unexamined much of what determines the content of legal regulation. Many functionalist accounts smuggle in that additional content, encasing it in the account’s assumptions about the structure of human interaction. We will observe this smuggling in law and economics. One of the primary purposes of this paper is to reveal that additional content, incorporating it expressly into a theory of customary law.

To begin, in law and economics, the market is ostensibly used to secure the coordination of individuals’ diverse aims in a manner that does not prejudge questions of substantive value. These questions are left, ideally, to the participants’ own choices. But that agnosticism as to value can only go so far. For one thing, the very structure of law and economics manifests greater commitment to substantive ends than is initially apparent. This valuation plays a crucial role in the choice of the market itself as a mechanism for reconciling disagreements. Moreover, it becomes indispensable when true markets do not exist and the theorist has to predict what an equivalent outcome would be, as is often the case in the economic analysis of law. In the hands of Richard Posner and many other law and economics scholars, the foundational value is wealth maximization.[45] For Michael Trebilcock it is individual autonomy.[46] What is more, all the best practitioners of law and economics acknowledge that whatever the basis for the commitment to markets, law and economics can only provide an incomplete theory of law. They freely acknowledge that competing principles, founded on different conceptions of substantive value, have to be part of a full theory.[47]

This incompleteness is often conceived in terms that suggest that the norms shaping the market have to be balanced against other values. An example would be the debate over the commodification of human body parts, which is generally discussed as though it were about constraining the pursuit of wealth in order to protect the sanctity of the human body.[48] But law and economics is incomplete in a more foundational sense. It is not just that market mechanisms need to be balanced against other principles—as though a system of law could work on market principles alone, but in a rudimentary and impoverished way. Rather, those very mechanisms presuppose a definition of agents and entitlements that the principles sustaining the market take for granted.

Law and economics focuses, overwhelmingly, on how agents deploy their property. Its natural focus is transactional, as is evident in the prominence of supply and demand curves in its textbooks and the very use of markets as the theory’s principal analytical tool. It has much less to say about who counts as an agent or the particular structure of agents’ property rights.[49] But any market-based system of law has to be founded on a reasonably determinate conception of those matters. It has to identify who participates in markets, what resources they control, and what precisely control consists of. Those conceptions make up the bulk of what are called (in the civil law tradition) the law of persons and the law of property. They provide the necessary elements out of which markets are created. Built into those elements are normative assumptions that go well beyond the simple coordination of individuals’ divergent desires.

Take the example of slavery. Law and economics scholars naturally assume that all adult human beings have legal personality and that they cannot be owned—that the descendants of slaves can participate in market transactions on a basis of formal equality with all others. But of course, this is a recent development in the legal traditions of Europe and is based on principles that go well beyond the maximization of wealth. It is true that slavery can be analyzed in terms of market efficiency. There is, for example, a large literature on whether slavery was an efficient mode of production in the antebellum United States, with the consensus now being that there were circumstances in which slavery was efficient.[50] But even those debates necessarily beg the question, “Efficient for whom?” and implicitly answer, “For the non-slave population.” Law and economics scholars rightly foreclose such answers in their prescriptions for today’s law, and they do so because they take all people as agents, not objects, for reasons that have nothing to do with market efficiency.[51]

The same might be said for other principles that define the parties to legal orders. Slavery involves an extreme denial of civil equality, but one can apply similar reasoning to more limited forms of inequality—for example, the use of zoning requirements to impose racial limitations on who can purchase property in particular areas. Those limitations also determine the capacities of the persons that then participate in legal transactions. Some definition of legal personality, equal or unequal, must underlie the markets that law and economics scholars deploy. Other dimensions of legal orders also serve to define the actors who then engage in legal transactions. Migration and naturalization, and the regulation of the age of majority, specify who holds various sets of rights. Family law imposes conditions on individuals’ use of property. Until not very long ago it severely limited women’s legal personality (of course, what qualifies as a family is itself a matter of current dispute). All of these structures embody fundamental normative choices, choices that do not depend on considerations of wealth maximization and that must be resolved, one way or the other, before markets can be constructed. If that seems surprising, it may be because we have come to take the outcome of so many of these choices for granted.

The continued significance of these choices is clear if one considers one salient contrast between indigenous and non-indigenous orders: the status of animals as bearers of rights and obligations. The James Bay Cree norm invoked above—that the remains of animals must be treated with respect—is premised on the assumption that animals are persons in society with humans, that they give themselves to humans in the hunt, and that, in return, humans incur obligations to them.[52] Law’s markets would appear very different if animals formed members of the society within which law’s efficiency was calculated.

Similarly, when one turns to what one owns, one finds normative judgments encoded in the very structure of property rights. What, for example, does one own when one owns a tract of land?[53] Although left unexamined in the great bulk of law and economics literature, this is a non-trivial and value-laden question. Even among market-based legal orders, the ownership of land is structured in profoundly different ways. The common law conceives of such interests as bundles of particular rights that can be easily disassembled. The civil law in the French tradition works with a notion of full ownership: it presumes that the most natural relationship to the land is one of complete dominion and treats all limited interests as temporary departures from that state. Different legal systems conceive of the physical and temporal boundaries to rights in land differently, some excluding mineral rights, some treating rights over water or airspace separately from rights over land, some allowing people to own highly artificial bundles of rights with respect to apartments (condominiums), some allowing ownership to apply to limited periods of time, recurring year over year (time-sharing). The precise way in which one resolves these issues reflects the conception of ownership’s social role and understandings about human beings’ relationship to the resources in their environment. But what is true of all of the solutions is that the structure of the interests is not merely left up to individuals; it is to some extent written into the structure of the law itself.

Now, law and economics scholars do subject these interests to judgments of efficiency. Like most, Posner presumes that absolute rights of ownership are the most economically efficient, at least in situations of low transaction costs where markets can operate effectively.[54] This supposed efficiency was indeed a crucial reason for the abolition of feudal tenures in early nineteenth-century Europe and North America (or, in the common law, the evisceration of such tenures). Absolute rights of ownership were created precisely to permit the development of land free from the constraints of competing interests.[55] But how does the presumption of absolute rights fit with the division of ownership into increasingly complex regimes such as condominium or time-sharing, or the creation of finely divided property rights to permit the commercialization of highly specific aspects of things? Multiple rights have been recreated in these regimes, so that once again the ability to reconfigure or alienate things is constrained, often with the support of law and economics scholars (and of course, the very notion of what constitutes a thing is far from obvious[56]).

The fact is that when applied to the structure of rights, the interests of efficiency are frequently ambiguous. This problem is general, especially because the boundaries of rights often have to serve for an undefined but large number of potential uses, and therefore form at best a compromise among various efficiency claims.[57] The ambiguity is more pervasive than much of law and economics scholarship suggests.[58] As a result, the definition of things tends to precede, not follow, the analysis, and considerations other than efficiency shape to an important degree scholars’ conception of the way in which rights over things ought to be structured.

This implicit structure is clear when one looks at indigenous rights to land, which are often based on very different principles concerning relationships between human beings, the land, and resources—principles that shape how life on the land is regulated. There is, in fact, considerable discussion of indigenous rights to land in the law and economics literature. Many of those discussions focus on the emergence of property rights against a backdrop of common property. They elaborate a theme of the “tragedy of the commons”, in which the absence of property rights in indigenous societies leads to the overexploitation of resources and individual rights of ownership are then developed to institute an economically efficient pattern of use.[59] These discussions are not, however, all they seem.

First, their high abstraction becomes clear when one realizes that they discuss the emergence of property rights not against a backdrop of the complex rights held by families, clans, or kinship groups in actual indigenous societies, but against the assumption of an unregulated free-for-all. “Common property”, in the canonical law and economics accounts, consists of utterly unregulated resources of which anyone can avail themselves at will. But this is not an accurate description of any North American indigenous society, at least none for which we have any evidence. Those societies all had and generally still have sophisticated rules for the harvesting of resources. Thus, while new land-use regimes may have displaced prior ones, often complex and well-elaborated ones, they did not simply crystallize out of a propertyless state of nature.

Consider, for example, the detailed regulation of resource exploitation among the James Bay Cree. The James Bay Cree are a subarctic people, living in a region that can support only a modest population across a vast area. Hunting groups would move extensive distances seasonally in order to harvest particular resources. The Cree would, and to a large extent still do, divide into smaller groups—often of about four families—to hunt game for much of the year. They would coalesce into larger congregations at other times, especially for the goose hunts.

Yet the lands and animals of the Cree lands are subject to a complex regime of regulation. In recent times, this regime was (and indeed is) constructed around the hunting territories used by particular hunting groups. Each territory (of vast extent—an average of 1302 square miles in the northern reaches of the Mistassini nation’s territories, an average of 300 to 550 square miles further south[60]) is under the stewardship of a group leader who manages the harvesting of game. The consensus of recent anthropological opinion is that these territories build upon the regulation of hunting in the pre-contact period. They are primarily concerned with managing wildlife and maintaining relations among the Cree, not directly with controlling land. The description of the territories is therefore geared to the demands of harvesting game; their definition tends to be vague around the edges. The composition of hunting groups is varied from time to time in response to local scarcity of game, the need of a hunting group to rest its land, or more personal factors. On the territories, different wildlife resources are subject to different controls: hunting for furs is confined to the hunting group that holds the territory, subsistence resources are available to groups passing through. There are highly detailed ethical and ritual injunctions to be followed in hunting and in dealing with animals’ remains.[61] One sees then, among the James Bay Cree, complex principles for the regulation of land and wildlife. The situation is a far cry from the unregulated free-for-all of the “tragedy of the commons”, sufficiently far that it undermines the complacent assumptions underlying that story. Indeed, there are instructive analogies between Cree interests in land and traditional common law interests, although the interests are conceived in substantially different terms.[62]

Martin J. Bailey, in one of the most careful and original studies of indigenous property rights in the law and economics literature, recognizes the existence of strong mechanisms for regulating even collectively held resources. As a result, he treats family-held property, even property held by an extended family, as “private property” (and he suggests that property owned “by a large lineage group” might also be considered private).[63] Even with that expansive definition of private property, he argues that what remains as “common property” is often optimally allocated when held in common.[64] The realization that property held by collectivities, even very large ones, might still operate efficiently allows exceptionally wide latitude for different ways of structuring both who owns the right and what can be owned and to what extent—all within the constraints of an economically viable social order, as Bailey acknowledges.[65] This latitude suggests that, far from being an important determinant of the structure of economic interests, economic efficiency plays merely a conditioning role, with the structure being determined by other considerations.

The story generally told by law and economics scholars about the emergence of private property is best considered a myth of the emergence of economic man—akin to the political myth of the establishment of organized societies through social contract—rather than a plausible ethnohistorical account. The accounts of the rights’ emergence are not grounded in observation. They are projected back upon an imagined evolution of human resource use from free-for-all to private property. This evolution is structured by a predetermined story of progression from “primitive” to more advanced societies where the measure of advancement is precisely the emergence of private property rights.[66] My point is not that indigenous societies were infallible stewards of their resources, always regulating resources so as to avoid overexploitation. Like any other society, indigenous peoples could exhaust a resource as a result of miscalculation, the discovery of a destabilizing new technology, ruinous competition with other groups, or pressures caused by resource commercialization or population displacement following European settlement. My point is rather that a wide range of structures for regulating resources appears to be consistent with sustained economic activity over time.

In fact, in their accounts of the potential efficiency of various structures of property rights, law and economics scholars often appear to proceed post hoc. The economic analysis does not so much explain the configuration of the rights as take that configuration as its starting point, and then seek to describe how rights of that kind might be compatible with efficiency.[67] The efficiency analysis is read back across rights that are, in effect, taken as given. This approach can be valuable. It can, for example, reveal the effectiveness of unfamiliar legal forms—forms that might otherwise be discounted simply because they are unfamiliar. But one should not reverse the direction of inference so that one presumes that efficiency requires a single model for all human societies.

In law and economics, economic efficiency is often treated, at least implicitly, as though it were a sufficient determinant of law. No one doubts that efficiency is a consideration and that any legal order that profoundly impaired a society from sustaining itself would have great difficulty surviving. But it may well be that economic efficiency serves more as a limiting set of parameters—or better, a set of conditioning factors—than anything approaching a complete determinant. If that is the better description, then a wide range of possible legal forms may be compatible with economic success, and, within that range, the particular form of a society’s law may be determined by considerations that have nothing to do with economic efficiency.[68]

Now to return to the pragmatist account of customary law. Here too, the primary role of law is taken to be coordination. Law is shaped by the practices within a particular society and exists to facilitate those practices. The pragmatist account does not require that coordination occur through markets, nor that coordination be shaped by a commitment either to individual autonomy or to wealth maximization. It is open, then, to a much wider range of ways of coordinating human action than is law and economics. But this account continues to emphasize a pragmatic test for law: does law serve to foster communication and coordination among members of society, such that their mutual cooperation is facilitated? This question underspecifies law in a manner very similar to what we have just seen in law and economics. It runs the risk of collapsing into a tautology—laws exist, therefore they coordinate human action—when in fact coordination does virtually no work in explaining how a legal order relates to the practices of a particular society.

In any society, coordination has to occur in some determinate way. The full specification of the mode of coordination in that society will necessarily involve a richer set of normative principles than is captured by a bare commitment to coordination. Coordination captures the aspiration to order but says virtually nothing about the terms on which order is to be achieved—to take the examples discussed in this section: who counts as a person for the purposes of legal relations, or what are the forms through which things can be held and deployed. In those terms, an additional array of normative considerations will be operative. These considerations are an equally fundamental dimension of any legal order and are generally of more relevance than coordination in any particular application of the law. To adopt a linguistic analogy that will be developed further in this paper (and that builds upon the analogy to language that was so important to Fuller): these distinctive terms constitute the grammar through which the particular legal order achieves social coordination; they constitute the grammar which any participant in the order has to employ.[69]

It is essential that every legal order have such a determinate language through which coordination is achieved, not that this language be the same for all legal orders. The foundational categories of the grammar can differ profoundly in different legal orders. This difference was the essential message of Clifford Geertz in his immensely influential paper, “Local Knowledge: Fact and Law in Comparative Perspective”.[70] The understanding of what constitutes a fact and what constitutes a law, who are legally relevant agents, what are their intrinsic relations, how they are located within the natural world, what types of relations are written into that world, perhaps even what counts as “order”—are all structured, at least in some considerable measure, by presuppositions that are not derivable from the aspiration to order itself. These presuppositions are built into the terms that people bring to the very effort to coordinate their actions.

As an example, consider the array of kinship regimes that exist in all societies. These regimes determine people to whom one is related and whom one can marry, sometimes introducing distinctions that are entirely foreign to non-members. Among the Anishinabek of northern Ontario and Manitoba, for example, one refers to one’s “parallel cousins” (the children of the male siblings of one’s father, or the children of the female siblings of one’s mother—although in each case, one needs to use the expanded notion of “sibling” that results from this system of kinship) as one’s “brothers” and “sisters”, who then fall within the incest taboo. In contrast, one’s “cross cousins” (the children of the female siblings of one’s father, or the children of the male siblings of one’s mother) are not siblings and thus are potential marriage partners.[71]

Kinship rules control marriage and norms of social interaction, familial obligation, patterns of inheritance, often the structure of political authority within a people, and often also shape diplomatic relations between one people and neighbouring ones. Undeniably, they play a coordinating role. One set of explanations in anthropology has emphasized this role, attempting to account for the practices in functionalist terms by noting that kinship rules build alliances and promote genetic diversity. But these explanations alone are unable to produce the great variety of kinship systems, a variety engrained in characteristics of the systems that matter deeply to their adherents and that concretely shape their relations. It may be that some general, structural distinctions (the existence of some sort of incest taboo, for example) respond to features of human reproduction and interaction that are challenges for all human societies. But the ways in which these relations are defined in practice are remarkable in their variety. Those differences encode different visions of human relationships. The best discussions of kinship in the anthropological literature take that substantive content seriously, exploring the webs of meaning through which familial relations are defined and organized.

In his explication of “salience reasoning” (the form of intersubjective, analogical reasoning that underlies the emergence of conventions), Postema argues that “a conceptually sophisticated, but often transparent, deliberative framework” gives distinctive form to agents’ common normative reasoning. This framework

is defined by a conceptual template and associated attitudes that together shape deliberation by relating deliberators and their decisions to the deliberations and decisions of others and to the outcomes of their individual and concerted actions. These deliberative perspectives or frameworks do not figure in the content of desires, goals, or principles of choice, but rather structure and delimit the deliberative domain in which such factors are used by agents to arrive at rationally grounded decisions. They provide the basic materials agents need (1) to conceptualize their practical environment, (2) to analyze the particular problem of choice and action they face, colored by the desires, aims, goals, and values to which they are committed, and (3) to survey feasible solutions.[72]

Postema describes this framework by identifying six features that relate to collective agency, the form of participants’ intentions, and their reliance upon a common stock of knowledge. His description is illuminating in its exploration of structural features of collective moral reasoning but it remains abstract and formal. I am suggesting that the very language that participants use to conceptualize and analyze—the very concepts they employ to conceive of normative challenges—have particular normative dispositions inscribed into them. These dispositions shape participants’ deliberations and, alongside participants’ reflections on the stock of common experience, account for the salience of potential solutions.[73]

In a backhanded way, Fuller demonstrates that rich normative content is built into the very legal categories through which social coordination is achieved. In his writings on the rule of law, he sets out a number of principles that he argues are inherent, at least as dispositions, in all legal systems; they constitute an “inner morality” of law.[74]

The content has a distinctly liberal individualist cast. It is premised on the expectation that law consists largely of a set of explicit rules intended to allow self-directing individuals to organize their activities in a manner that coordinates with the activities of others[75] (as opposed, for example, to norms communicated in narrative form, or that are focused primarily on activities conducted fundamentally in concert). Fuller’s account is also, like most accounts, idealized: it does not discuss differences of resources or of social position that substantially affect individuals’ ability to be self-directing, or how different systems of property rights may foster or discourage these inequalities. Fuller treats the content he identifies as though it were inherent in the very idea of law. But surely the existence of quite different ways of ordering societies suggests that this is not so—suggests, in other words, that Fuller was unpacking the implications of a particular legal tradition and generalizing them. Paying attention to other traditions may reveal that richer substantive choices are built into Western legal orders than we generally perceive—choices that are rendered invisible if we treat law simply as a means of coordination for individual actors. It may also reveal alternative forms of social ordering from which non-indigenous institutions might learn.

Now, by emphasizing that such differences exist, I do not mean to suggest that they are usefully analyzed in a simple dichotomy between individualist and collectivist orientations. Every legal order is addressed to people who are in very significant ways self-directing. Every society wrestles with the dual nature of persons both as members of a community and as actors in their own right and resolves that tension in a manner that gives some rein to both. One conclusion that can be drawn from the foregoing discussion of law and economics, for example, is that in liberal societies such questions as who counts as an agent, or what are the structures through which persons can have rights over things, are in effect determined at a collective level; they are not subject to the unencumbered choices of individuals.[76] Indigenous societies may answer these questions very differently. They may conceive of persons’ relations to the land differently (for example, building a notion of stewardship, of responsibility, into indissoluble unity with notions of ownership). They may conceive of those who possess rights differently (perhaps privileging units based on kinship, although note that family property laws in many Western countries also do this to some extent). It would be a serious error to presume that the result is necessarily less respectful of individuality simply because it differs from Western legal orders. The differences in structure may form such a complex geography that it is not possible to arrange them on a spectrum from individualist to collectivist.[77]

The error of such a presumption becomes clear when we look at the next neglected dimension of customary law. Those of us who live under Western legal orders tend to assume that, to have a legal order at all, there have to be authoritative ways of resolving disputes, with the solution then being imposed on the parties. Even theories that de-emphasize enforcement tend still to emphasize that norms have to be authoritatively determined.[78] Thus, although Western legal orders may permit a wide sphere of individual autonomy, that autonomy occurs within a normative framework that is subject to centralized determination so that, from the point of view of any individual participant, the legal order is fixed by a mechanism independent of his or her will. Indeed, the existence of such an externally determined order—clear, certain, and enforced—is often taken to be the precondition of individual freedom.

The situation is very different in many indigenous orders. When colonists encountered indigenous societies in North America, they were often struck by the extent of individual autonomy in those societies. It was amazing to them that such polities could survive at a time when European societies tended to be hierarchical, authoritarian, and draconian.[79] Among many North American indigenous peoples the respect for autonomy extends to the very interpretation of society’s norms. There is great reluctance to impose a particular interpretation of the law either on any member (in some societies) or on someone of high rank (when the society is hierarchically ordered). Such an imposition is considered deeply incompatible with the person’s dignity. Indeed, this respect for a person’s moral autonomy may contribute to the prevalence of banishment as a punishment in many indigenous societies: rather than forcing compliance, the community treats offenders as having, by their conduct, placed themselves outside society.

But how can such orders function? For one thing, they tend to rely heavily on deliberation, diplomacy, and mediation. Norms are determined through discussion designed to promote the emergence of consensus without loss of face on the part of any participant. In a wonderful paper, Val Napoleon has described the functioning of a feast in resolving a controversy among the Gitxsan of northern British Columbia.[80] That feast had been called by one chief as part of the raising of a totem pole carrying a disputed crest. A chief from another village claimed that the crest was his and denied the right of the first chief to use it. In the dispute, the chiefs of clans related to those of the disputing chiefs (in a specific manner prescribed by Gitxsan law) played a mediating role, and the aggrieved chief himself stayed away from the feast and the pole-raising both to indicate his displeasure and to avoid open conflict (although his allies did attend). At the feast itself, those in attendance (importantly including chiefs not directly allied to the disputants), through a series of speeches, recounted histories, juxtaposed those histories, supplemented, corrected, and stated their approval for them, until gradually a salient position began to emerge. The aggrieved chief was treated with honour in other ceremonies at the time of the pole-raising, ensuring that the dispute remained limited to the issue of the crest alone. The aggrieved chief’s allies discussed the proceedings of the feast with him, assured him of their support, noted the damaging consequences of continued conflict, but then left the decision of whether to acquiesce in the emergent solution to him. Ultimately he did.

This mode of decision making depends directly on the cost of withdrawal from the order—or, to put it positively, on the parties’ willingness to continue to live together—as the principal inducement to secure compliance with the society’s law. Within broad but significant limits, in virtually any order, participants have a substantial interest in acquiescing to the order’s norms in order to obtain the benefits of social cooperation, even if those norms are not exactly what they would wish. In non-indigenous societies, this interest has been overlain by the structure of the state, which uses coercive authority to maintain the society’s norms and boundaries. In contrast, indigenous societies have tended to be much more willing to tolerate continued disagreement among leaders with respect to the society’s laws, they have often relied upon the withholding of cooperation rather than compulsion as a principal sanction, and they have also generally been more willing to accept the withdrawal of a dissenting section from the community rather than require compliance.[81] As a result, reconfigurations of indigenous societies do occur, although they are rare because of the significant costs incurred when one goes it alone. Moreover, when reconfigurations do happen, generally they are partial, with many ties maintained. The result is a system that comes much closer to being self-enforcing, founded, at least apparently, on voluntary adherence.

Now, this does mean that indigenous societies also tend to be small-scale, structured around complex relations among members—relations often conceived largely in terms of kinship. The exercise of authority within those societies does not have the impersonal, formal character that one associates with the liberal state. Even here, however, the situation is not quite as clear as it may appear. Kinship relations are more than just familial relations. They establish structures of membership and obligation that extend well beyond one’s close family. They can extend over great distances to people one has never met and can even bind one to members of neighbouring peoples.[82] The kinship relations at the foundation of many indigenous societies often seem, then, to have something of the formal, ascribed character one associates with citizenship. Moreover, much of the law of those societies is also conceived in terms that tend to separate it from the personal wills of the society’s current leaders. Among the Gitxsan, for example, this conception includes the inscription of the law in ancient histories and lineages, and the sense that today’s leaders carry on responsibilities that extend well beyond their lifetimes, an understanding reinforced by the inheritance of chiefly names and the Gitxsan belief in reincarnation.[83]

I do not mean to minimize differences that exist between indigenous and non-indigenous social organization. Of course, kinship creates a complex structure of internal differentiation, stipulating differential rights and obligations that control such fundamental relations as marriage. Societies based on kinship are also relatively impervious to outsiders (although this is moderated by the possibility of adoption). There would appear to be limits, then, to the scale of government, openness to new members, and ability to choose one’s life partner within forms of social organization founded on kinship. Most contemporary indigenous societies have tended to loosen or move away from strict rules of kinship, seeking to develop modes of government that combine elements of their traditions in new ways, often joined with statelike structures.[84] My point is simply to note the possibility of customary legal orders founded on very different premises of social organization, and to draw attention to the particular combination of consensual adherence and embedded structure common to many indigenous societies. The societies are not founded simply on consent, although consensual processes do play a prominent role in the interpretation and application of their law. Rather, they presuppose a web of relations that is largely taken as given.

This web draws attention once again to the ways in which social ordering always takes place using a particular language of social interaction.[85] And it also emphasizes the necessary copriority of a sense of community, which any order of consensual decision-making, indeed any order of justice, has to presuppose.[86] As Charles Taylor has argued regarding the autonomous individual on which Western political theory is based,

The modern subject is ... far from unmediated in fact. He may be, relative to the local community; but he cannot be, relative to the whole society. On the contrary, he is sustained on the one hand by the culture, which elaborates and maintains the vocabulary of his self-understanding; and on the other by the society in which he has a status commensurate with free subjectivity: ... the equal bearer of rights, who is producer and citizen. All this underpins my identity as free individual, which could not long survive a state of nature.[87]

Indigenous peoples do not generally draw upon the same frameworks of understanding as non-indigenous societies, although they do cherish conceptions of human freedom. Those conceptions take form against a backdrop of social commitment engrained in an ordered structure of society.

Comparisons across different orders of customary law allow us to see these contrasting frames and to realize more clearly what is at stake when one frame is forcibly imposed upon another, as settler societies have long attempted to do with indigenous societies. They also allow us to see roles and possibilities for change that are characteristic of non-indigenous institutions, but that are obscured by the fact that we take those institutions for granted.

For example, in recent years considerable attention has been paid to the existence of socially generated normative orders—to legal pluralism—in non-indigenous societies. Many approaches to such orders, it seems to me, implicitly see that pluralism as existing within structures whose essential stability is provided by the state. They conceive of non-state legal orders operating, in other words, within an arena of social relations that state institutions play a large part in maintaining.[88] Studying indigenous legal orders may help us understand what is necessary to sustain truly self-sufficient, non-state legal orders. Those requirements may be something like the tight, stabilizing web of relations provided by the structure of kinship. If kinship relations are eroded, some other structure, perhaps adapted statelike institutions, may have to be developed in their place.

Studying indigenous societies may help us understand the capacity to sustain viable polities without insisting on a highly centralized legal order—polities that allow for divergent understandings, permit significant normative autonomy among subunits, and foster cohesion through practices of negotiation and consensus-building, rather than through authoritative interpretation and imposition of a centralized order. Recent developments in Canadian constitutional law suggest a willingness to contemplate such features as integral to the Canadian constitutional order, a willingness arguably shaped in part by Canada’s fraught experience of treaty relations with indigenous peoples.[89]

Thus far, I have tended to discuss aspects of customary law that fit reasonably well with the view that law’s purpose is to structure and control human practices. But even a cursory acquaintance with North American indigenous orders reveals a pervasive emphasis on the sacred, on the mythic. These elements do not fit at all well with a purely pragmatist conception of legality.

My colleague John Borrows, for example, has begun a lecture by holding a rock from near his home community of Neyaashiinigming, describing how the law is inscribed in that rock.[90] Val Napoleon speaks of the importance of reincarnation to the Gitxsan legal order.[91] Kiera Ladner describes the ways in which Blackfoot governance is shaped by lessons learned by considering animal behaviour.[92] As we have seen, James Bay Cree conceive of their relations with animals in terms of a sociality similar to that existing among humans.[93] Many indigenous peoples ground their law in narratives peopled with non-human beings. How then should those of us who are not members of those societies understand this dimension of customary law, given that we do not share the metaphysics?[94]

An important starting point is to realize that non-indigenous law too draws on metaphor, myth, and narrative.[95] This is certainly true of constitutional law, the area in which I tend to work. Canada’s constitutional discourse has, for example, been shaped in important ways by the assertion that Canada has “two founding peoples” (French and English) and that it was created by a compact variously defined as between French and English, between Quebec and the rest of Canada, or between all of the original colonies that ultimately formed Canada.[96] These stories have been used to claim that Canada has two linguistic cultures of roughly equal stature. They have been cited to support constitutional interpretations in which provincial autonomy is paramount.

There are, of course, other constitutional narratives that cut across these stories. One such narrative was captured in the phrase “from colony to nation,” which emphasized the progressive development of Canada toward a more perfect nationhood. That phrase now appears archaic, but its underlying story has real staying power.

Along with others, I was present at a remarkable after-dinner conversation between former Prime Minister Pierre Trudeau and the Canadian political philosopher Charles Taylor. The conversation took place in October 1994, at the Faculty Club of McGill University. It turned on whether the Canadian constitution should have been patriated in 1982 over the objections of the government of Quebec.

Prior to patriation, the Canadian constitution had been a statute of the British Parliament, amendable only in Britain (although, by convention, amendments were passed only at the request of Canada). As prime minister, Trudeau had vigorously pushed for patriation, and in 1981 he succeeded in obtaining the agreement of the federal government, and all provinces except Quebec, to a package that included a charter of rights and a domestic amending formula. He then put that request to the Government of the United Kingdom and the proposals were adopted. The making of that request, over the objections of the government of Quebec, was (and is) a matter of deep controversy in Quebec, not so much because of the content of the proposals but because of the failure to secure Quebec’s agreement. That dissatisfaction contributed to a resurgence of the nationalist movement in Quebec.[97]

The conversation at the McGill Faculty Club between Trudeau and Taylor occurred in the lead-up to the October 1995 referendum on Quebec’s independence, which came very close to succeeding. Taylor questioned Trudeau on the wisdom of proceeding with patriation without Quebec’s support. In the end he posed this question: “If patriation ultimately leads to the breakup of the country, will it have been worth it?” Trudeau thought for a moment and then replied, “A country that cannot amend its own constitution does not deserve to exist.”

Trudeau’s response reflects a metanarrative of what it takes to have a country. It is not a product simply of functionalist or rationalist analysis. Such myths and narratives do considerable work in both constitutional politics and constitutional adjudication. The compact theory was frequently asserted in connection with the interpretation of the Canadian constitution, and it was recently cited again to support the position that Quebec could unilaterally secede from Canada. In the postwar period, the idea that Canada has become a true nation, represented by the government of Canada, has underpinned interpretations of the Canadian constitution that have allowed an expansion of federal authority. And one could cite comparable myths in other countries: the long influence of the idea of “the ancient constitution” in British constitutionalism;[98] the contest over the fundamental characterization of the United States in the period up to and through the Civil War; and appeals to the “social contract” in the constitutional discourse of many countries.

In the private law, consider, for example, the myths that underpin specific conceptions of property: the idea that property is based on the transformation of land through labour, or the often religiously framed conception that humanity has an obligation to use the earth most productively. Both these myths contributed to the refusal to recognize indigenous rights in land and have long influenced statutory and non-statutory rules for the pre-emption of land. Myths also underlie the conception that rights of ownership are absolute as a matter of natural law because they are founded on the capacity to consume things, an idea that has shaped the structure of property rights in the civil law.[99] And, as we have seen, the tragedy of the commons is best considered to be a fable about the emergence of economic man. Myths, which continue to shape legal interpretation, are not confined to indigenous peoples.[100] And indeed, indigenous peoples have often been on the receiving end of European myths of origin, not least those concerning the conditions of the “state of nature.”[101]

In non-indigenous societies, these myths now tend to be secular rather than sacred. But one nonetheless still finds elements in the law that verge on the sacred, or at least on a strongly charged aesthetic. This is true, for example, in the invocation of the sanctity of the body, which shapes criminal law, the law of civil trespass, obligations with respect to the disposal of human remains, the capacity to hold property in human remains, and the regulation of the commercialization of body parts. Similarly, many of the concerns of environmental law are informed by conceptions of natural purity, beauty, wilderness, and stewardship that go beyond purely functionalist concerns. Such fundamental aspects of the private law as legal personality, human equality, the family, and the rights that one can exercise over land have historically been shaped by religious and metaphysical concerns. That shaping is less obvious today, but that may be because we share the commitments on which today’s conceptions of legal personality and property are based. Moreover, this sacred/aesthetic dimension is not separable from the normative. It is not, for example, merely a lens through which one might examine the law, as one might read a legal text as though it were a literary text. The sacred/aesthetic dimension is integral to the norms; it provides much of their content and furnishes the frame through which they continue to be interpreted.[102]

One of the ways in which such myths operate is by helping to shape the normative sensibility of those involved in applying and obeying the law. The language of legal texts is never self-sufficient. Judgment is required to interpret and apply them, and judgment depends upon a close understanding of the aims underlying the rules, the considerations at play in practical situations, the ways in which the rules’ aims relate to those considerations (including when situations are significantly similar and significantly different), and the manner in which rules should be shaped by competing rules (including the relative importance of rules, and the relationship between the normative principles underlying the rules). These elements of judgment are all the more important in the case of customary law where there is no canonical expression of a rule. Instead, principles of conduct are worked out incrementally, by reference to existing understandings of social norms and practices.

Metaphors, myths, and narratives assist this judgment by providing an overarching framework to guide interpretation and by suggesting the relative importance of norms. They can supply a range of examples of the norms in action, furnishing models for how the norms should be applied. They often record a wide swath of the experience of social interaction, weighed, assigned value, and ordered, against which possible formulations of norms can be tested and refined. And they give salience and a memorable quality to certain norms, so that those norms are retained, internalized, and sometimes made a focus of identification and allegiance.

All legal orders, including non-indigenous ones, use metaphor, narrative, and myth in these ways. However, note that this discussion has tended to translate the sacred into other terms. It has domesticated the sacred by treating it simply as the bearer of normative content or as a way of reinforcing elements of normative judgment. The supernatural dimension—the spirit world, the dimension that tends to be all-important to a believer—falls out of the analysis. Surely we need to take those metaphysical assertions seriously if we are to deal with claims of the sacred in a manner adequate to their force and meaning for believers.

The problem is a real one, and differences of metaphysics can certainly cause problems in interaction across normative orders. To see how seriously, consider an argument floated by historian Keith Carlson concerning the 1906 delegation of Salish leaders from British Columbia to King Edward VII. That delegation sought to secure redress for a long list of grievances, and specifically sought the fulfillment of promises said to have been made by the first governor of the colony and later by the Governor General of Canada. The representatives toured London, met with the King, and returned to argue that the King had given them assurances. But the problem is that there is no independent evidence that King Edward made those promises in the short audience he granted the delegation. Carlson wonders whether in fact the assurances had been made, in the delegation’s eyes, by a much earlier King Edward—Edward the Confessor or Edward I—whose tombs and relics (in one case a shrine, in the other the coronation chair then containing the Stone of Scone) the delegation had visited in Westminster Abbey and which had greatly impressed them.[103]

Now, this particular interpretation is presented as a conjecture by Carlson, but it is undeniable that many indigenous peoples believe in the ability to communicate with ancestral spirits, accept the existence of connections between persons alive today and those in the past (especially those bearing the same chiefly names), believe in the existence of spirits associated with objects non-indigenous people consider to be inanimate, or believe that human beings are distinctively connected to particular animals or tracts of land.[104] Each of these beliefs has strong normative consequences, and it has those consequences precisely because of the metaphysical significance of the beliefs. Moreover, in cases of cross-cultural interaction, there will be situations where one needs to adjudicate among these beliefs, such as in Keith Carlson’s hypothesis of a promise made by an ancestral spirit, or a claim that indigenous land is inalienable because of a people’s sacred ties to that land. How can we come to terms with different visions of the spirit world?

I am too much a child of my own society simply to say that we should accept the truth of these spiritual beliefs. One does no honour to deeply held beliefs if one treats them as though their truth or falsity was of so little consequence that one can accept any belief as true. But I do know that we have to worry over the implications of these understandings of the world, not dismiss them out of hand.

Although there is no complete solution, precisely because there are deep differences that divide us, we can do the following: First, we can keep in mind the influence of mythical or metaphorical elements—even conceptions of the sacred—in non-indigenous legal orders, so that we realize that at least part of the problem is one of divergent myths, divergent metaphysical beliefs, supporting different norms. At least at that level, the problem continues to be one of pervasive normative diversity. Second, we should also keep in mind that there are broader and deeply held spiritual claims that go beyond mere metaphor, claims of great significance to believers.

Third, we should ask, then, in any particular situation, whether there is reason to forbear, not because we accept the truth of the beliefs, but because of their demonstrable importance to the people concerned. This is the classical foundation for religious toleration.[105] It is particularly appropriate in the indigenous/non-indigenous context because of the impositions visited upon indigenous people as part of colonization. The coercive nature of that encounter can lead us to misperceive and misunderstand assertions—we can fail to attend, for example, to indigenous understandings of the obligations of the treaties or to indigenous conceptions of humans’ relationship to the land—or simply to dismiss beliefs, failing to see that they are analogous to commitments still influential within non-indigenous society. Our actions have impeded indigenous peoples’ ability to develop and express their distinctive understandings, not least by placing their languages and lands under heavy pressure. There is reason to make space.

Fourth, it is also worth considering whether we might learn something from indigenous understandings. This is not to denigrate our epistemological assumptions but rather to emphasize the continual value of humility. We often treat religious differences as though they are impervious to discussion, but Jeffrey Stout has argued convincingly that there are ways in which genuine deliberation can occur across metaphysical differences. He urges us not simply to assume that we cannot communicate, but to try and see.[106] When we do, we may find that we have access to valuable insights that we would otherwise have missed. There is, for example, now a substantial body of work on the insights to be drawn from indigenous knowledge in environmental management, insights that are themselves grounded in indigenous metaphysics, such as indigenous peoples’ assumption that animals are intentional beings in society with humans.[107]

Fifth, we should always remember that not every difference needs to be adjudicated: we can agree to disagree, persisting in our different conceptions of the ways in which humans relate to animals, for example, and mediating between those conceptions in our approach to the regulation of harvesting. That option is not always available. It would not be available, for example, if one sought to rely squarely on the promises of the Edwards. But that option (or partial variants of it) is available more frequently than we tend to think. We should be alert to those possibilities.