Treating Indigenous Law as Law and Not “History”: Beyond a Fact-Value Distinction

Giving “the Aboriginal perspective” equal weight in the law means taking Indigenous law seriously as law. One of the barriers to this is the reduction of Indigenous legal claims to claims about history, which can be seen in cases such as Tsilhkot’in and Marshal. Prof. John Borrows, as well as others, have briefly set out ways to think about the distinction between law and history so as to make clear that Indigenous law must be treated separately and on its own terms.

In the first part of the paper linked below, I argue that the attempted distinctions between law and history have relied on the “is-ought” (or “fact-value”) distinction used in ethics and the philosophy of social science. I explain this distinction and analyze whether it is tenable both in itself and as a grounds for separating out Indigenous law so it can be dealt with on its own terms. I conclude that ultimately it cannot do justice to “the Aboriginal perspective” because it is both theoretically flawed and the ontology on which it relies already denies “the Aboriginal perspective”. Nevertheless, building on the distinction, in the second part of this paper, I argue for a way to think of the distinction between law and history which will offer a principled approach to separating out Indigenous law and dealing with it on its own terms. I argue for an “incapable of external corroboration” test which will offer a short-hand for the many nuanced ways in which law and history can be distinguished.

TL;DR If you want to know if someone is making a historical claim or a legal claim ask “Is the statement being made on behalf of (i.e. as an authoritative pronouncement of) a legal system by someone authorized to speak for it? Is it a statement which could be corroborated by someone outside of that legal system or is it essentially non-falsifiable except by people authorized within the legal system operating according to the rules of that system?”

You can read the paper here.

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