FTD_Vol34_No3_web

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OPICHI: A TRANSFORMATION STORY, AN INVITATION TO ANISHINAABE (OJIBWE) LEGAL ORDER
than a doctrine of considering mitigating
and aggravating factors.
To draw a rather stark example,
although within ALO killing someone
was prohibited, there were specific contexts
of exception. Of course this was
problematic and nobody I know wants
to see that sort of remedy within a revitalized
ALO today. But in the context of
the ALO of generations ago, intentional
killing had logic and could have sanction
of law under at least two circumstances.
One was when someone had
been identified as a windigo 19 (a determination
not easily made, at least not
within the bounds of law). Another was
when an injurious party failed to make
amends with gifts for particular kinds of
wrongdoing. 20 In order to make any
sense of this latter category of exception,
one must understand that gifts
were not nice things one gave on pleasant
occasions. Gifts held deep material
and symbolic value within Anishinaabe
societies, a point that can’t possibly be
over-emphasized. Gift-giving was an
essential feature of ALO and in a larger
discussion I’d present an entire section
on the logic of the gift. 21 Reduced to a
single sentence, gift-giving was the primary
mechanism for regulating relationships.
However you need not understand
its complexity here; I raise the
example of intentional killing only to
illustrate that the determination of
responsibility, understood as a particular
configuration of obligations and
entitlements, is governed by the relation
that exists between parties.
Finally, some may be worried that the
deep contextualization that I’ve suggested
involves characterizing particular
instances of right relationships creating
an uncomfortable amount of uncertainty
in the law. Where standards for action
are not and cannot be published, a great
burden is placed on individual persons.
In terms of practise, this is why ALO
built the law into its process of citizenship
education. From the time they’re
small, children were exposed to stories
that not only presented law, but which
also fostered legal reasoning skills. Our
stories are not didactic like Aesop’s
Fables; the listener is expected to work
for his or her own meanings. Storytelling
is a well-established institution
within Anishinaabe societies. 22 Thus by
the time a child reached adulthood, he
or she not only understood the general
sense of local standards, but was
empowered to evaluate, apply, and reimagine
them, reasoning through legal
situations. Legal knowledge was not the
province of a professional class of
lawyers.
From a more theoretical accounting of
this difference, consider this. In the
West, the principle of legality requires a
rule enforcing the non-retroactivity of
law, but the theoretical impetus has to
do with a concern regarding epistemological
fairness: that a law can be
known is a necessary condition for its
legitimacy. The instantiation of this concern
as a rule against retroactivity follows
from a particular theoretical tradition
of knowledge: one which deals in
absolute truths and absolute knowability.
For the Anishinaabeg, who theorize
knowledge differently, the epistemological
fairness concern is naturally
addressed differently (I hope this is
now a common theme). In a society that
privileges relational being, contingency
and interconnection over atomism,
independence and isolation, certainty
and objectivity have different meanings.
There’s no space of permanence and no
space detached from subjectivity. The
unconditioned state that liberalism
imagines for itself doesn’t exist. The
closest analogue to “truth” in
Anishinaabemowin is debwewin, which
means something more like “the truth
as I know it.” Everything is always contingent
and dynamic within
Anishinaabe worldview. A claim aspires
to objectivity only in the sense of a
cumulating force: the more persons
espousing it, the stronger its determinative
authority. In the world of the
Anishinaabeg, this is as close as one
comes to certainty. This doesn’t imply
the absence of law, but it does imply the
impossibility of categorically defining
individual entitlements and obligations
outside of their relational contexts.
This is far from a comprehensive discussion
of right relationships and thus
has offered few answers. I hope it has
raised lots of questions. I also hope that
as skeletal as it is, it’s at least sufficient
to convince you that the Anishinaabeg
nonetheless had a coherent means of
representing legal interests.
The Organization of Anishinaabe
Legal Order
The organization of ALO, like its orientation,
was powerfully influenced by
the principle of relationality. Without
the deep centralization, hierarchy and
specialization of the nation-state which
organize society to process narrow
slices of relationships, relationships
don’t readily lend themselves to parsing
in respect of discrete political, economic,
social, spiritual and legal engagements.
In a world premised upon interconnection,
one sort of engagement
isn’t readily divorced from at least some
of the others. French sociologist Marcel
Mauss, in his study of gift exchange
economies, represented this reality well.
He described legal, economic, political,
spiritual and social aspects of indigenous
societies as existing in respect of
one another, in a total social fact. 23
For Anishinaabe societies, authority
was decentralized, distributed throughout
the relational map. The structure of
governance was constant and stable, but
flexible and diffuse; there was no sovereign
in which coercive authority might
infer and thus no singular locus for a
division of powers. There were, for
instance, none of the centralized legal
features one associates with the judicial
or legislative orders of liberal, state governments
— no courtrooms or legislatures
putatively hived off from political,
spiritual, or economic concerns. What
implications follow when a legal order
is diffuse or decentralized? Most obviously,
we ought not to expect to find
stand-alone legal institutions, analogues
of courtrooms, legislatures, or law
schools. In order to understand and
work with the law, instead one needs to
develop an understanding of the broader
cultural practices in which law exists.
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FOR THE DEFENCE • VOL. 34 • NO. 3