The Rule of Law with Indigenous Characteristics

Abstract

The rule of law enjoys a sort of evanescent permanence in legal discourse, perceived as the necessary but usually undiscussed foundation of any legitimate legal order, whether it be international or constitutional. Indeed, everyone seems to support the idea of the rule of law, from democracies to authoritarian regimes, from the global north to the global south, from capitalist societies to communist ones. In no small part, its global appeal reflects its nature as an essentially-contested concept, the rule of law being a ‘construct of desire’ without any agreed content. There have been endless debates between partisans of ‘thick’ and ‘thin’ understandings of the rule of law, and among those defending universalist views and those permeated by local specificity, like the Chinese Communist Party’s ‘socialist rule of law with Chinese characteristics’. Despite the enormous range of views and positions, however, there is a common thread uniting nearly all discussions of the rule of law, in the central position occupied by the state. The emergence of the administration of justice by Indigenous peoples calls for a reconsideration of the very foundation of the concept of the rule of law.

Keywords: Rule of Law, Indigenous Law, Legal Pluralism, Canada, constitutional law