Chapter 5 argues that an alternative ontological basis, derived from non-Western ontologies, is both possible and urgent for renewing sustainable development. It analyses how the voice of the Global South; particularly Africa, can improve the discourse on sustainable development by evolving a view on the importance of customary law, ethics, and Indigenous norms as law. It echoes the idea of ‘ecology of knowledges’ and the legal value of reviving non-Western epistemologies for sustainable development. The spotlighting of ethics, customary norms, and other forms of local and Indigenous knowledge as legal norms has been done before. However, in this book, I extend the discussion even further and do so through a comparative analysis with other bodies of legal ideas and normativity like transnational law, legal pluralism, and social construction as law in themselves. In this process, I give these ideas a unique twist for the purposes of the overall critical perspective of this project by demonstrating their usefulness for foregrounding customary law or Indigenous knowledge as law. The discussion refracts the idea of reimagining sustainable development praxis through the lens of oft-neglected African legal cosmologies, and how such experiences can provide helpful signposts in Africa and elsewhere.

In his path-breaking book, Constitutional Identity, Gary Jacobsohn not only elucidates the role of constitutional identities but also envisions the coexistence of “seemingly irreconcilable visions of national identity” within a constitutional order. The resulting disharmony he argues is critical to the development of constitutional identities. This chapter asks whether the continued existence and even incorporation of forms of governance that explicitly contradict the founding values of a constitution are simply disharmonic or do they pose a direct threat to the continued existence of a constitutional order? If the latter, we might ask whether differentiating between those social and constitutional elements that are simply disharmonic, and thus productive elements of a constitutional order, and those that might pose a fundamental threat to the constitutional order, might not produce a more sustainable constitutionalism. In sub-Saharan Africa “traditional authority” exists in many forms, including through institutional recognition in many constitutions whose founding values include democracy and human rights. While there is debate over both the nature of democracy and the content of human rights in Africa, the assumption in this chapter is that traditional authorities, represent either a disharmonic element within or an existential threat to democratic and liberal constitutions.

After many years during which indigenous laws were mostly absent from narratives of Latin American law, presently, legal historians wish to integrate them. However, to do so requires answering the question of what we know about indigenous laws and how we can approach them. Writing the history of indigenous laws from precolonial times is especially challenging not only because of the diversity of human groups that occupied the continent, but also because of the disparity of available sources, ranging from material vestiges and pictographic documents to texts produced in indigenous writing systems. Furthermore, the colonial period has left us with a wide range of alphabetic texts, diverse in authorship, languages, formats, degree of accuracy, and sources selected, that describe precolonial law. Indigenous peoples, mestizos, and Spaniards also wrote historical narratives and accounts of deeds and services; furthermore, they participated as litigants in lawsuits in which they expressed their vision of law and justice. What does this evidence tell us about precolonial normative orders and the way in which they intersected with colonial law after the Iberian imperial conquests? To answer this question, this chapter proposes an interdisciplinary approach, surveying what has been done, and what could still be done.

States in sub-Saharan Africa struggle to manage the multiple legal orders bequeathed by European colonialism. This struggle is partly attributable to poor consideration of indigenous African values by policymakers. Values are useful because they distinguish social habits from the sense of obligation that gives law its normative character. Since the foundational values of indigenous laws reflect the welfare-oriented origins of indigenous laws, they illumine how Africans adjust to modern conditions, as well as the adaptive character of legal pluralism in Africa. However, not much is known about these values in the courts, in contradiction with the prominence that jurists accord to constitutional values. This chapter compares how African legal frameworks reflect the values of indigenous laws in Kenya, Nigeria, Somaliland, and South Africa. It finds that judges and legislators adopt jurispathic approaches to the regulation of indigenous laws, and suggests that reliance on the values of indigenous laws could promote their harmonisation with statutory laws.

The discussion concludes by reviewing paradigmatic socio-political logics of hybrid sovereign, disciplinary, and biopower within colonial theatres of criminal accusation, as revealed by the preceding analyses of archived Albertan texts. It traces a ‘coloniality’ within accusatory performances framed by racialized, patriarchal, and marginalizing criminal justice institutions (Maldonado-Torres 2007). In composite, the chapters point to several key social and political foundations through which accusations of crime provided conditions for colonial criminalization to emerge. It is significant that such accusations and the law that they sustained were from the outset placed in the service of dispossessing social, political, and economic ambitions. The book concludes by reflecting on two legacy bequests of colonial accusation that might be used to think in ways that exceed the socio-political horizons that contour today’s vast, unequal, and repressive criminal justice systems.

The third chapter studies how a 330-man Northwest Mounted Police force was assembled in response to rumoured law-and-order issues that framed the report’s recommendation. This force marched into Alberta in late 1874 (see Figure 1.2) with plans to deploy Dominion law sovereignly over legally plural contexts. With relatively few officers, and claiming jurisdiction over vast geographies, the force set about arranging spectacular symbolic performances of criminal accusation. Senior police officers met with Indigenous leaders to discuss possible targets for legal governance. Based on meetings with leaders in southern Alberta the Mounted Police negotiated an initial target – a socially injurious liquor trade. A discernible socio-political logic lay behind the symbolic projections of a stable, ascendent, and enduring Dominion rule by criminal law. Theatres of accusation provided performatively staged openings to that law.

Engaging with Indigenous legal traditions brings to light the existence of different forms of legal conscience. The Indigenous legal traditions catalyse both the ontological questioning and its response. And they also offer a response to the critique of law and the evolution of legal practice. Approaching different legal traditions requires, however, a change of perspective. This reflection considers the insights of anthropology, linguistics, literature, translation and semiotics as applied to law. Towards a ‘shared framework’ and ‘common legal sense’, the semiotic approach enables us to visualise the legal landscape, beyond the borders of modern constituted forms, on a wider horizon of legal communication. It allows us to approach the narrative semiotics of different legal traditions, such as the dances, storytelling, artefacts like Wampum belts and protocols for ceremonies in Indigenous law. Furthermore, reconnecting legal traditions contributes to recalling, re-embodying and reconnecting the legal subject with the more-than-human realm – reconstituting the legal experience in its integrity. Beyond the operation of translation, what is at stake in the evolution of the legal language and practice is the constitution of a common semiotic space, a space of legal communication and understanding.

Indigenous peoples in Canada score far worse on indicators of well-being than the general public due to historical and ongoing processes of colonisation. It is also well recognised that Indigenous peoples are the most impacted and vulnerable populations affected by climate change. Currently proposed climate change ‘solutions’ are derived from the same Western colonial mindset which caused the crisis in the first place, so it is logical that we look for alternative approaches. Indigenous knowledge systems (IKS) have allowed Indigenous peoples to survive centuries of environmental degradation brought about by European colonisation, as well as thrive for millennia. International declarations have specifically recognised the potential of IKS to help alleviate climate and other environmental crises. Indigenous peoples must therefore be enabled to undergo decolonisation processes, so that we may all benefit from the revitalisation of Indigenous ways of relating to the Earth in mutually beneficial ways.

Since the 1970s, Indigenous activists have fought for the recognition of Indigenous rights both nationally and internationally, a fight that arguably culminated in the passage of the United Nations Declaration on the Rights of Indigenous People in 2007. Despite this victory, however, state actors continue to violate Indigenous rights, a violation that this chapter argues stems from the disaggregation of Indigenous rights from Indigenous law. In other words, Indigenous peoples residing within the borders of settler-colonial nation states, including the United States and Canada, are recognised as rights-bearing individuals and collectives, but these states still refuse to recognise the existence of independent, extra-colonial Indigenous legal systems. This phenomenon is a particular concern of contemporary Indigenous writers, including Michi Saagig Anishinaabe writer Leanne Betasamosake Simpson, whose poem “jiibay or aandizooke” demonstrates how settler legal systems that operate without regard for Indigenous law suppress the latter. Simpson’s work demonstrates why Indigenous rights and law must be recognised together.

This chapter will explore why and how First Nations people still have to reckon with the myriad settler and Australian legal histories that have shaped their lives and histories since colonisation. I argue that we still need to reckon with law because settler law denied Aboriginal land title and continues to deny Aboriginal sovereignty. Tracing settler laws’ complicity with the colonial project, this chapter first examines how the fantasy of terra nullius was instantiated through laws which enabled the expropriation of Aboriginal and Torres Strait Islander peoples’ lands and waters. It then examines how First Nations people have been unduly affected by separate, discriminatory settler laws which governed almost all facets of their lives. Yet, Australia’s legal system to redress these injustices, constitutes new and evolving chapters in the nation’s legal history.

The state we now call Australia emerged through successive worlds. The old worlds did not disappear, but persist to this day. From time to time their unresolved legal contradictions burst into the present to pose radical challenges to the dominant legal order in the continent. This chapter retells the legal history of Australia through three successive worlds. The first world is the ancient history and unfinished business of inter-national relationships between First Nations, and between them and the settler state. The second world is the British Empire, a global state that aimed to impose a single legal order over its imperial jurisdictions. The third world is the international system of sovereign states that covers the globe today. If Australians have pursued a ‘rules-based order,’ this pursuit has always reflected their own conflicting desires for the liberation and domination of neighbouring peoples, lands and seas.

Nicole Watson discusses the challenges faced by First Law and First Nations Scholars in Australian law schools. While a number of jurists have traced an outline of Indigenous Australian jurisprudence she notes that much work remains to be done to chart law and to find a place for it in Australian law schools. Likewise, though more and more Indigenous Australian scholars are enrolling in law schools, many did not complete their studies because legal education is isolating and colonising. Watson tentatively charts a way forward, engaging with John Borrow’s and Val Napoleon’s work in Canada, which seeks to draw out ‘principles of Indigenous law from stories’. This, Watson thinks, might provide a promising pathway: sharing of stories has the‘potential to create a bridge between Indigenous communities and legal scholars,’ breaking down the monologic nature of Australian legal education, and providing resources to bolster Aboriginal and Torres Strait Islander communities.

In this chapter we look at the ways in which the Australian settler-colonial constitutional order has recognised, and denied, the status of Aboriginal and Torres Strait Islander peoples as polities.We aim to show that in settler law traditional owner communities, alone or in aggregation, are largely characterised as racial groups, not as bodies politic. We trace developments in the recognition of traditional ownership, and (in glimpses) of traditional law and custom, in Australian law since the 1960s. The story is largely one of settler resistance to Indigenous legal and political authority, in the face of sustained intergenerational Indigenous advocacy. We point in particular to the fact that because they are mischaracterised as racial communities, the efforts of Aboriginal and Torres Strait Islander People to self-determine are made vulnerable to claims that their distinctive rights and institutions discriminate against non-Indigenous Australians.

The Foreword by John Borrows, the famous Indigenous legal scholar, presents a perspicuous representation of the guiding spirit of the volume from his Anishinaabe perspective. Mutually sustainable and ecosocially just democracies should be grounded in relationships of self and other co-determination with each other and with all our more-than human-relatives.

One prominent way for multiple legal orders to be organized is for one order to claim and to an effective degree enjoy supremacy over the other(s). This is of course a familiar state-centric view of law. Such a view depends heavily on a particular concept of legal system, which has been both substantially developed in legal theory (e.g. in analytical legal philosophy) and observationally available in the practices of many states. However, this system-centred view of law faces some significant challenges in many contexts, in terms of both its descriptive-explanatory accuracy and its political acceptability. This chapter explores the way and extent to which the system-centred view of law is not necessary but contingent and so a matter of choice, and the political implications at stake in such a choice. Deploying a previously developed inter-institutional theory of law, it argues that forms of entangled legalities, rather than hierarchical and dominating legal systems, are often not only possible but politically desirable. To make the case it draws on observations about the dynamic and evolving relations between state and First Nations legal orders in Canada.

This chapter engages with the contributions of Indigenous peoples in North America to a jurisprudence of entanglement, as expressed through historic treaties between colonists and Indigenous peoples. A prevalent contemporary view understands treaties as a form of negotiated co-existence in which, contract-like, different parties agree to exchange – or share – land, resources and jurisdiction. Treaties could thus be seen to provide interface norms for two legal orders, otherwise strangers to each other, which might now become entangled. However, a body of Indigenous scholarship on the resurgent treaty tradition shows up the liberal philosophical premises embedded in this understanding of legal pluralism and the entanglement of norms. Instead, from this perspective, treaties are a recognition that we are always and already in relationship. Further, the key tenets of that principle are that relationships themselves emerge from the more primal way our lifeworld is made up of symbiotic ecosystems. Entanglement in the context of treaties is thus a phenomenon of a different order than conventional legal pluralism: it is simply characteristic of an ontology of which law is a part. The larger implications of this for an ecologically grounded law are explored in conversation with occidental philosophies of entanglement.