Thammasat University students interested in law, history, American studies, political science, colonialism, and related subjects may find it useful to participate in a free 9 July Zoom lecture on Laws of Empire and Laws of Nations: Reflections on the Rule of Law in Crown-Indigenous Relations in North America.

The event, on Tuesday, 9 July 2024 at 11pm Bangkok time, is organized by Balliol College, University of Oxford, the United Kingdom.

The event announcement explains:

The British Empire was an elaborate project of systematic violence and the juridical ideal of the ‘rule of law’ was one weapon in the coloniser’s arsenal. Or at least this is a theme developed within the growing literature on Empire (e.g., Caroline Elkins, Legacy of Violence: A History of the British Empire (London: Penguin, 2022)).

In many ways, this theme contextualises a general point advanced by certain legal philosophers — the idea that, to borrow from Professor Joseph Raz […] the rule of law sharpens the knife of law but does not tell us whether its use is just or unjust. This view has not gone unchallenged. E.P. Thompson insisted that even in the face of an unjust legal system the rule of law remains an unqualified human good (a surprising conclusion for a Marxist social historian).

In this month’s Balliol Online Lecture, Professor Mark Walters (Oliver Smithies Visiting Fellow) will give a presentation that will offer some reflections on competing approaches to the rule of law by drawing examples from the history of relations between the British Empire and Indigenous nations in North America. Was an intersocietal rule of law possible between such radically different societies? Examples will be considered of how treaty relations may be understood as an attempt, even if flawed, at building a kind of cross-cultural rule of law. And then conclude by offering some observations on how historic Crown-Indigenous treaties are relevant for the project of ‘reconciliation’ in the law of Canada today.

Professor Mark Walters, from Queen’s University, Ontario, is recognised as one of Canada’s leading scholars in public and constitutional law, legal history and legal theory. He has researched and published extensively in these areas, with a special emphasis on the rights of Indigenous peoples, institutional structures and the history of legal ideas. His work on the rights of Indigenous peoples, focused on treaty relations between the Crown and Canada’s Indigenous nations, has been cited by the Supreme Court of Canada, as well as by courts in Australia and New Zealand. Professor Walters also writes on the rule of law and is the author of A.V. Dicey and the Common Law Constitutional Tradition: A Legal Turn of Mind (Cambridge University Press, 2020).

The TU Library collection includes several books about different aspects of law of the British Empire.

Students are invited to register at this link for the event:

https://us02web.zoom.us/webinar/register/8117156752503/WN_cS_bpm-ZQV-3vvcdfI98Og#/registration

With any questions or for further information, please contact:

development.office@balliol.ox.ac.uk

In a book review published in 2017 in the Queen’s Law Journal, Professor Walters noted:

At the beginning of his latest book, Freedom and Indigenous Constitutionalism, John Borrows reveals that his great-grandfather, Charles Kegedonce Jones, a respected Anishinaabe ogimaa and chief, was also a “runner”—someone who traveled great distances on foot throughout the Great Lakes region carrying official messages between Anishinaabe and other communities. The image brought to my mind the runners sent out with copies of the Royal Proclamation of 1763 and the invitation to different nations to attend the Treaty Council to be held at Niagara in the summer of 1764. That thousands of Indigenous people convened at this Council suggests an impressive network of communications.

The image also brought to my mind the Classical Greek story of Pheidippides running from Marathon to Athens to announce the Athenian victory over the Persians—though Anishinaabe runners may have been fitter than those in ancient Greece, for Pheidippides apparently expired upon delivering his message. Borrows does not mention the Greeks, at least not directly, but there is a link.

In Freedom and Indigenous Constitutionalism, Borrows offers a series of reflections upon Indigenous identity, tradition, law, and freedom oriented around the Anishinaabe practices of dibenindizowin, freedom as experienced within the person and in relationships between people, and mino-bimaadiziwin, the good life forged through developing healthy relationships. These practices of Anishinaabe constitutionalism resonate, he says, with the understanding of freedom articulated by the philosopher Hannah Arendt, and in particular her assertion that “to be free and to act are the same”.

Arendt’s theory of freedom as action or praxis was based in large part upon her understanding of political action in the ancient Greek polis. Freedom as action is central to the story about Indigenous constitutionalism that Borrows tells. The Anishinaabe runner is an individual who is free— free to move, to travel, to visit distant places, and, at the end of the odyssey, free to return home again. In non-Indigenous culture today, running is often associated with individual escape or defiance, an association famously captured by Allan Sillitoe’s story The Loneliness of the Long-Distance Runner.

This image contrasts with the Anishinaabe runner Borrows describes. The Anishinaabe runner is a communicator and translator, travelling lightly and quickly, navigating through a shifting and dynamic world of diverse normative realities. The runner must rely upon the traditional knowledge of elders on how to survive and upon the network of communities that give the journey meaning. From the relationships developed at home and away, the runner gains a deeper sense of dibenindizowin and mino-bimaadiziwin.

The themes of movement and mobility and of freedom through action and experience run through Freedom and Indigenous Constitutionalism from start to finish. It is within the exploration of these themes that a complex and challenging understanding of constitutionalism emerges.

Borrows introduces the ideas of movement, freedom, and action in a powerful first chapter entitled “Physical Philosophy: Mobility and Indigenous Freedom”, in which he argues for an Indigeneity that is open, dynamic, and engaged with the world over one that is isolated, fixed, and exclusive.

The ideas are developed further through the second chapter, “Civil (Dis)Obedience, Freedom, and Democracy”, in which Borrows explores Indigenous freedom as manifested through physical resistance to state power, refusing to condemn, though not personally condoning, those Indigenous peoples who may think that even violent resistance to Canadian law, in the name of Indigenous law, may, in rare cases, be justified. “Violence might not always diminish freedom and democracy,” Borrows writes, “though I reject it in my own practices” and he “strongly counsel[s] against its use”.

The third chapter, “Indigenous Freedom and Canadian Constitutionalism”, examines the complex and paradoxical ways in which Indigenous freedom simultaneously rejects and accepts the Canadian constitution through (borrowing from Jeremy Webber) a form of “agonistic constitutionalism” that leaves legal and constitutional ideas constantly in motion and contested.

The fourth chapter, “(Ab)Originalism and Canada’s Constitution”, offers a blistering attack on the failure of the courts in Canada to extend the “living tree” method of constitutional interpretation to aboriginal and treaty rights—another plea for constitutional dynamism and against Indigenous essentialism.

Paradox is again the message in the fifth chapter, “Legislation and Indigenous Self-Determination in Canada and the United States”, in which Borrows turns to American examples in suggesting that federal legislation could actually assist Indigenous communities achieve aspirations of inherent self-determination.

The sixth and final chapter, “Aboriginal and Treaty Rights and Violence against Women”, is a condemnation of the inability or unwillingness of Canadian judges to acknowledge Indigenous jurisdictional space and the tragic implications that this has had for vulnerable Indigenous girls and women. Freedom and Indigenous Constitutionalism joins a series of important books that Borrows has written on Indigenous peoples, laws, and traditions in Canada.

(All images courtesy of Wikimedia Commons)