Given the difficulties in knowledge transfer from one system
to another, how are we to proceed? Many contemporary
analysts argue as we do (Ross does in the previous
quotation), for
example: some Indigenous conceptions of law are
diametrically opposed to key elements of our legal system.
In his study of the Comanche legal system, Hoebel made the
point almost 30 years ago:
"No prevailing concept of the nature of law as
given in current definitions will fit the facts as we
find them in Comanche society. The ideology of orthodox
political science and jurisprudence, expressed in terms
of ‘command of the sovereign,’ ‘rules of the state,’ and
‘obligation imposed by the lawmaker’ have no meaning
here. In Comanche society reciprocity is not developed
to an exaggerated degree…(my italics) Without courts and
without strongly developed obligations of reciprocity to
serve as criteria of law, what then is there in Comanche
practice that can be identified with what can reasonably
be considered ‘law’? A social norm is legal if its
neglect or infraction is met by the application, in
threat or in fact, of the absolute coercive force by a
social unit possessing the sociality recognized of so
acting." (Hoebel 187-188).
Hoebel was trying to account for the function of law
among the Algonquin-speaking Comanche without reference to
any spiritual concept, and without addressing worldview
differences. His work was to examine how people were made to
conform to a law. As valid as this approach is in
demonstrating that these peoples had a vital system of law,
his ultimate conception of law as the construction of
coercion has not been replicated in the findings of our
research into the ground of Indigenous law.
The central
position found in this research is that, in the first
instance, law does not arise out of social situations at
all, but out of a deep sense of relatedness to an entire
environment. We cannot talk of Indigenous perceptions of law
unless we are willing to shift the focus away from law as
norms and boundaries established within the history of
individuals or groups as they developed in time. In effect,
we must be prepared to look away from the social and human
construction of law. Our study suggests that the
interconnectedness implicit in an ecosystem is a legitimate
starting point in trying to comprehend Indigenous law. We
are reminded of the famous words of Roscoe Pound,
internationally recognized philosopher of law:
"…the Major agencies of social control are morals,
religion and law. In the beginning of law, these are not
differentiated. Even in so advanced a civilization as
that of the Greek city-state, the same word is used to
mean religious rites, ethical custom, the traditional
course of adjusting relations, the legislation of the
city, and all these looked on as a whole, as we should
say, including all these agencies of social control
under one term which we now translate law." (quoted
by
Archibald, Coyote Learns, 237).
This is what we have found: moral, law, religion are
intertwined. Thus one conclusion that can be drawn is that
Pound’s intertwined version of reality closely tracks what
elders and Indigenous intellectuals have called "Nature’s
Law." That term must be recognized as encompassing elements
that we might today be uncomfortable or regard as illogical
in analyzing together.
Nor can we mentally engage with Nature’s Law unless we
accept that, unlike our system, the notion of reciprocity is
not the crucial motivator in determining how one is to act
in the "natural" environment. Nature’s Law exists to
articulate a meaningful and valuable life-way, not to
equalize the playing field. From the Indigenous perspective,
Nature’s Law seems to call all human consciousness back
again and again to basic intuitions about this natural
system of meaning rather than to the validation of a system
of behaviour that will coerce people into obedience to a
community standard, or urge compliance for some public good.
This is not to say that reciprocality had no application in
Nature’s Law…in general, while the evidence is, on the
whole, contrary to Hoebel’s opinion of the weakness of
reciprocity… indeed reciprocity was held (and continues to
be) firmly fixed to the complex web of relationships that
governed the cosmos, even within the Comanche. In other
words, the Indigenous worldview comprehended reciprocity as
rooted in the natural law of the universe, not as a
socially-constructed norm controlling inter-personal
relationships.
What was key was this: the intuition of relatedness was
more basic to the system than the consciousness of
reciprocity, because relatedness was essential for the
notion of balance. Reciprocity could not function without
the conception of required balance operating within
Indigenous law, for it mediated the centrifugal elements of
reciprocity. Thus Indigenous notions of Nature’s Law were
based in the first instance on what we would call intuitions
about worldview. Worldview operated on the basis that
everything was in a balanced system of relationships.
Everything was included in this system. Archibald sums up
the complexity of this perspective using the symbol of
concentric circles:
"The image of a circle is used by many First
Nations peoples to symbolize wholeness, completeness,
and ultimately wellness. The never ending circle also
forms concentric circles to show the synergistic
influence and responsibility to the generations of
Ancestors, the generations of today, and the generations
yet to come. The animal/human kingdoms, the elements of
Nature/land, and the Spirit World are an integral part
of the concentric circles. Each First Nations group has
developed its own cultural content for the holistic
circle symbol. However, the common goal has been to
attain a mutual balance and harmony among animals,
people, elements of nature, and the Spirit World. To
attain this goal, ways of acquiring knowledge and codes
of behavior, are of course essential and are embedded in
cultural practices; one which plays a key role in the
oral tradition is storytelling" (Archibald,
Coyote Learns 14).
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