Tuesday, July 9, 2013

On the Constitution of Indigenous Law

            On the Constitution of Indigenous Law

            John Borrows is a Canadian law professor and specialist in indigenous law.  At his lecture, Professor Borrows read a chapter from his memoirs which he, then, explicated.  Borrows seems soft-spoken and has the earnest demeanor of a preacher.  He is a member of Ontario’s Chippewa of Nawash First Nation and Anishinabe. 
            In his sermon, Professor Borrows suggested that Indian legal practice is constituted by four factors: custom, positive declarations of law, environmental analogies, and deliberation.  This argument was incidental to Borrows’ principal theme: law guides volition and that, even in their most diminished capacity, people retain some ability to choose the good.  In this context, Borrows advanced the notion that no one is outside the law.
            My focus, however, is on Borrows’ assertion that Indian law is not a theory or idea, but a practice.  And a practice that can be viewed as based on custom, decree, nature, and deliberation.  Borrows’ rhetorical method was to present a story densely encoded with parable-like features and, then, suggest some of the meanings that might be implicit in the narration.  I take this rhetorical strategy to exemplify an element of indigenous legal practice – that the law is a system of stories or narrations by which we make sense of the world.  The question that I undertake in this note is whether this vision of the law departs significantly from what the ordinary lawyer experiences in his or her practice day to day.
            With one exception, everything Borrows’ defined as constituting a legal practice is manifestly part of an attorney’s routine experience.  The exception, perhaps, is the element of environmental sensitivity – this was the most exotic feature of the Borrows’ analysis and, on the basis, of one question from the audience, possibly the most difficult concept for his listeners to understand.  I will try to make sense of the environmental aspect of the law at the conclusion of this note.
            Certainly, lawyers experience legal issues as arising in the matrix of stories told to them by clients.  These stories are measured against other stories – that is, the statements of fact presented in legal opinions.  Story-telling is clearly an integral part of modern jurisprudence.  One need only compare the fulsome, in some cases, luridly detailed statements of fact accompanying modern decisions with the brief abstract and syllogistic factual recitations of 19th century opinions to be convinced that the present practice of law is intensely narrative.  In the 19th century, law to some extent labored under the burden of Hegel’s Philosophy of Right, certainly one of the most harshly non-narrative, and abstract, theories of jurisprudence ever presented.  Similarly, law was often viewed as integrally connected with logic.  In fact, law is a practice of rhetoric, appealing to much more primordial grounds for decision than mere logic.  Stories have much greater, more primal appeal than logical reasoning and, accordingly, modern legal practice is intricately narrative.
            Custom plays an enormous role in the routine practice of law.  Normative practice is guided by mostly unwritten traditions.  Party-depositions are routinely taken in the office of the attorney producing the witness.  Under Minnesota practice, doctors rarely testify in person at trial; it is customary to take a deposition that can be read into evidence at the hearing.  In complex cases, attorney’s routinely agree to depose one another’s experts – although this is not authorized under the Minnesota Rules of Court.  Protocols of mediated settlement conferences and other informal procedures are all customary.  Indeed, even substantive elements of the law – for instance, the valuation of cases – is a matter of unwritten tradition and custom.  Who says, after all, that a soft-tissue low back or neck injury without objective symptoms is worth between $7500 and $12,500?  These things are established by custom.
            Central to Anglo-American jurisprudence is the decree of lawmaker.  Statutes and case authority play a primary role in applying the law to human conflict.  Apparently, this is true, although in some instances to a lesser degree, in Indian law.  Here, the chief distinction between indigenous law and Anglo-American legal systems would seem to be the fact that the latter’s jurisprudence sometimes pretends to be blind to other factors.  But this pretense is always undermined by the extent to which the nature of the narrative, the equities that the story implies, and the customs and traditions in which the narrative is embedded are important factors in resolving any dispute.
            Finally, the notion of a deliberative synthesis of the other elements of law into a juridical decision is crucial, arguably, to all systems of conflict resolution.  Deliberation is the process that weigh alternatives, that selects among possible outcomes, that fuses the story with the skeletal allegories of the law that seem to stand outside the narrative, but which are, in fact, by custom and tradition implied from within the story.  All conflict-resolution requires that the decision-maker, the Judge, provide persuasive reasons for his or her decision – it is in the framing of the reasons for a decision that the deliberative process is exercised.
            Notably, I have excluded the environmental factor from this analysis.  This feature of legal process seems often ignored in Anglo-American jurisprudence.  As I understood Professor Borrows on this point, an indigenous jurist frequently applies analogies from the non-human world to establish meaning.  On this point, a colloquy between Borrows and one of the people listening to his lecture was helpful in teasing-out an important distinction.  Borrows idea of using nature as a reference should not be confused with Natural Law.  Natural Law, as developed by thinkers like Aquinas, is actually a law of human nature – it is an argument from principles thought to be constitutional to human society.  Since all men live in communities, for instance, theft will always be considered criminal – that is a logical consequence of what it means to be human.  This sort of analysis derives from a Platonic consideration of what is essential to the kind of thing analyzed.  In the alternative, this analysis, in the from adopted by Aquinas, is teleological – it is developed from an idea as to what constitutes the proper end or purpose of human existence.  In each case, Natural Law derives from the nature of man, either as he must be constituted to live in meaningful communities or as he must act to achieve his end – that is, salvation and admittance into some hypothetical Kingdom of God.
            I take Borrows’ sense of this environmental factor as more diffuse and problematic.  His examples suggest that principles of proper decision making are encoded in natural phenomena.  We can decipher meanings helpful to the decision of human conflict from the energies in nature.  Borrows began the portion of his memoir read in the lecture with geographic and geological remarks – there were fossils embedded in the stones on the seashore and an escarpment rose a few miles inland from the lake marking the edges of the ancient seashore.  We can learn justice from a stone or a rock formation or the orderly stratification of sediments encoded in cliff face.  A albino bird provides an omen.  But no one knows what the omen means – perhaps, the omen is merely a sign of the human need to find portent in the natural world, that compulsion, itself, a sign that we discard our connection to the non-human natural world only at our peril.
            An example of this sort of reasoning occurs in Taoism as domesticated by Confucius.  Confucius describes the processes of nature as definitive to human nature.  Notice that the direction of the metaphor is reversed from Natural Law.  Natural Law reasons from man’s nature to a decision and devises rules constitutional to nature from human needs and ends.  Confucius, often, seems to reason in the reverse process – because non-human nature operates in a certain manner then human beings also should be obedient to those processes:
            In the old time, Khwan dammed the inundating waters and thereby threw into disorder
arrangement of the Five Elements...the principles of Heaven’s method were allowed to go into ruin.
Confucius often describes the laws of natural phenomena as Heaven or Heaven’s method.  Acting in violation of those rules disorders man’s relationship with the world and is a form of lawlessness.  (One wonders how these principles accord with the monumental destruction of nature at the Five Gorges Dam in modern China).
            Confucius’ principles of Heaven and acting in accord with Heaven’s method apply even when nature has been destroyed or, to use his term, denuded.  Just because the mountain formerly clad in trees, and defined therefore by its foliage, has been denuded and all forests hacked-down does not mean the mountain has ceased to be a mountain.  The mountain remains holy even though it has been ruined:
To these things (overgrazing and immoderate harvest of trees) the bare and appearance of the mountain is owed and, when people now see it, they think it was never finely wooded.  But is this the nature of the mountain?
Confucius says that the wise delight in flowing water.  The fate of water is his analogy for man’s nature:
Man’s nature is like water whirling around in a corner.  Open a passage for it to the est and it will flow to the east.  Open a passage for it to the west, and it will flow to the west.  Man’s nature is indifferent to good and evil, just as the water is indifferent to the east and west.  To which Mencius replied: Water will flow indifferently to the east and west, but will it flow indifferently up and down?  The tendency of man’s nature to good is like the tendency of water to flow down...Now by striking water and causing it to leap up, you may make it go over your forehead, and, by damming and leading it, you may force it up a hill – but are such movements according to the nature of water?  It is the force applied  which causes them.  When men are made to do what is not good, their nature is dealt with in this way. 
This sort of reasoning, I take to be similar in character to what Professor Borrows termed the “environmental” aspect of Indian legal practice.
            And, come to think of it, such analogies are not always absent in standard Anglo-American legal practice.  An ambulance-chasing, greedy lawyer is said to be a “shark”.  And, recently, in a much publicized decision Judge Rosenbaum from his Bench in Minneapolis initiated an opinion denying a fee petition in a class action lawsuit with the succinct statement: “The remoras are loose again.”
            A remora is a little creature, but the ancient Greeks and Romans, at least, thought them to be very powerful.  Lucan tells us that entire armadas have been stalled in the turbulent mid-ocean by the drag of remoras attached to the wooden hulls of the ships. 

References:  Professor John Borrows’ lecture was delivered on September 15, 2009 at the University of Minnesota, the Robina Chair in Law, Public Policy and Society Lecture: it was entitled “Physical Philosophies: Teaching and Practicing Indigenous Law”.  The citations from Confucius are from Doeblin’s The Living Thoughts of Confucius, Casell (London), 1942 at 75, 77, and 121.  Also see In re UnitedHealth Group Incorporated PSLRA litigation, order in Class Action dated September 4, 2009 (J. Rosenbaum, District of Minnesota).


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