Relational legal pluralism and Indigenous legal orders in Canada
Date
2022
Authors
McKerracher, Kelty
Journal Title
Journal ISSN
Volume Title
Publisher
Global Constitutionalism
Abstract
The survival and resurgence of Indigenous legal orders and constitutional traditions in
Canada, as elsewhere, disrupt the normative hegemony of the liberal state and articulate a
constitutionalism that accounts for a plurality of laws. How can state and non-state legal
orders interact across vastly different normative worlds? How can their interaction address
the colonial power imbalance and what role should recognition play in this relationship?
This article draws on the work of Ralf Michaels on relational legal pluralism and Aaron Mills
on Anishinaabe constitutionalism to explore how a legally plural society must embrace
Michaels’ challenge of constitutive external recognition: the idea that legal orders mutually
constitute each other through recognition without interfering with each other’s factual
status as law. External recognition is consistent with strong legal pluralism and is distinct
from recognition within the multicultural liberal state, a form of weak legal pluralism and
continued colonialism. Mills’ discussion of treaty, rather than contract, as a foundation for
shared political community assists in imagining a constitutionalism with/in Canada in
which distinct legal orders can mutually constitute each other without domination. Linkage
norms may help to establish reciprocal relations among state law and Indigenous legal
orders, and the enactment of such ‘tertiary rules of recognition’ from within Indigenous
legal orders may itself shift the balance of power.
Description
Keywords
constitutionalism, external recognition, Indigenous legal orders, legal pluralism, legalism
Citation
McKerracher, K. (2022). “Relational legal pluralism and Indigenous legal orders in Canada.” Global Constitutionalism, 1-21. https://doi.org/10.1017/S2045381722000193