Short Answer's Midterm - Leen Fariz
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Short Answer Questions – Leen Fariz 1008376106
Explain the difference between “Aboriginal rights” and “Indigenous law”, using examples from
the syllabus readings.
According to van der peet 1996, Aboriginal rights are the state recognizing that aboriginal
populations have certain practices and traditions that is integral to their community. In order to claim an
aboriginal right, it must go through a test that assesses whether or not it is vital to that specific group. In
the context of Canadian law, it would be allowing the communities that developed in Canada prior to
any contact with European societies, where they developed their own traditions and practices that
majorly differ from those of day-to-day life (like eating to survive), to exercise these traditions without
having to fear going against the Court. In addition to that, aboriginal rights are given to certain lands in
Canada, like reserve lands, aboriginal title lands and aboriginal right lands. This gives the opportunity
for these communities to do whatever they need to do in their communities like hunt for food or
perform social and ceremonial rituals.
Indigenous law are the rules put in place by each group of people in their societies to maintain
order. These laws were put in place prior to any European contact and has an integral part in their
communities. Laws are usually put in place for sovereign entities, but the indigenous populations of
Canada are not sovereign, so the laws must go through the Court and negotiate it with political leaders
and cabinet officials. An example of this would be child protection, which indigenous leaders have
discussed how to best take care of their own children in their communities with the Courts of their
respective provinces.
The difference between these two terms is that aboriginal rights are taken in a case-by-case
basis, where claims have to be made for each right that they wish to pass, while indigenous law under
section 35 is recognised, but certain aspects of it must still go through the Court. In addition to that,
Aboriginal rights in general are more specific to practices in distinctive groups, and the significance of
their practices and traditions that separate them from the rest of the society, while indigenous law is
more focused on not causing a drift between indigenous communities and the Court, who make most of
the decisions on what is and isn’t allowed.
Using two examples from the readings, please demonstrate the insights into law of the phrase
‘Legal Orientalism”.
Legal Orientalism refers to a general set of narratives that overlap on what is considered law,
who has law, and who are its subjects. It refers to how the West views the oriental or “other” laws that
are found in other countries.
Ruskola discusses in his book why there seems to be a view that China is a lawless state by the
Western courts. He discusses how there’s a clear difference in how Americans view law and how the
Chinese view law. In the United States, law is mostly universal and heavily set in democratic views,
giving emancipatory values and freedom. But, in China, its laws stem from a more tyrannical, anti-
democratic context, and in some way are not as universal as the United States. With that, comes the
cultural assumptions of law in non-Western communities. This is what stems a discourse in legal
orientalism, as differences like these would set forth the questions of who has law and who doesn’t.
In the nineteenth and twentieth centuries when many western powers found their way to the
East with the main goal of colonising them and taking their resources. There was an obvious divide
between what the colonisers and the locals considered law. For example, French colonialists in Algeria
and their discourse with Shari’a law. In French Algeria, the French settlers did not consider Shari’a law
acceptable with their occupation. They wanted power over the people, legally and physically, but
Shari’a law was hindering them from doing so. In David Powers’ Orientalism, Colonialism and Legal
History, he discusses in particular Waqf in Shari’a law that didn’t give French colonialists any
possibilities of taking land away from the locals, as under Islamic law, the properties were owned by
the families forever. Since the French disagreed, they put forth their own set of laws so that they are in
control of who has law and what is considered law in Algeria.
Canadian, Islamic, and Indigenous law offer three examples of formal and informal law, written
and oral law, law institutionalized by the state and law not recognized by the state (depending on
the state in question).
Moreover, all three of these traditions reverberate (or have reverberated)
in Ontario at the formal and informal levels, and levels in between.
Explain how the three
traditions have and continue to co-exist in our society, and what that co-existence might imply
about the category “Law”.
Law is an integral part of functioning societies as it allows for there to be a point of order within
a community and discourages any harmful behaviour towards others. In most societies, law developed
on their own, religiously, or not. With a more globalised world and a more interconnected sense of
community, it is important that all kinds of law from all communities are recognised and respected.
Taking the example of Shari’a law: it is deeply rooted in Islamic religion and being the main
inspiration for Local laws in most countries with Muslim populations. In addition to that, due to the
vagueness of the laws in the Qur’an, several interpretations have circulated. Because of that, it is
deeply misunderstood in our society, and often clashes with laws of other countries, like Canadian law.
Adding on, Indigenous laws seem to have the same effect on society, by being considered “other” their
laws are deeply misunderstood, and in order for any traditional legal practices to take place, there must
be a process with negotiations regarding Indigenous leaders and the Court.
One major difference between Canadian law and Shari’a/Indigenous law, is that much of
Canadian law is set in stone and straightforward, written on the same pieces of paper and standardised,
while Shari’a and Indigenous laws were passed down generation to generation in more ways than one
but orally is one, in addition to simply practicing traditions and passing it down that way. This causes
confusion among Western law, as to them law is not fluid, while to other communities it is.
Despite these setbacks, generally society has managed to co-exist much better than it has in the
past, showing that the acceptance of law that is not the “standard” western law is growing. With the
growing globalisation of our society, it is important for any and all people that follow any set of laws to
co-exist with one another. To each person, Law has a different meaning, different people are in charge
and what is acknowledged by one person could differ from another. To avoid conflict, it is important to
understand contrasting rules of law.
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