Professional Documents
Culture Documents
4 (Winter 2003)
Justice as Healing
A Newsletter on Aboriginal Concepts of Justice
Introduction
The United Nations Expert Seminar on the Administration of Justice and Indigenous Peoples was held in Madrid, Spain on November 12-14, 2003. The primary purpose of the gathering was to advise the special rapporteur on the situation of human rights and fundamental freedoms of indigenous people, Rodolfo Stavenhagen of Mexico, on the administration of justice and indigenous peoples to contribute to his report on that subject to the United Nations Commission on Human Rights during its upcoming 2004 meeting.1 On the first day of the seminar, Special Rapporteur Stavenhagen posed two important issues to the experts sitting before him. First, how they would respond to a tradition of one law for everyone, and second, if states accept the legal systems of indigenous peoples, how they will guarantee individual rights in their communities, and particularly the rights of indigenous women.2 The seminar was held in a climate where some state parties are intentionally attempting to block or weaken the Draft Declaration on the Rights of Indigenous Peoples, and it offered a fresh approach to standards-setting procedures in the United Nations in elaborating international declarations and conventions on human rights.3 Those procedures were established following the adoption of the Universal Declaration of Human Rights in 1948, with recognition that a consensus document with very general provisions adopted during the Cold War had to be fleshed out in more specific human rights standards, usually stated in declarations and conventions to be followed and adopted by member states. Unfortunately, the human rights standards-setting discourse was changed for indigenous peoples in discussions of the Draft Declaration so that some state representatives advocate that they shouldnt have rights at all, but only unenforceable and meaningless aspirations, wishes and nice stuff said about them. Alternatively, we need a body of official statements that can begin to be used as evidence of international customary law, and expert seminars that permit indigenous representatives to educate special rapporteurs on how they should develop indigenous rights (as rights) in reports that may be a viable alternative to the stalled declaration process. There were also discussions of the role of international litigation as a means to set standards, since we must obviously find alternatives to negotiated declarations and conventions, given state obstructionism in that process. This article will address the special rapporteurs question about the one law for all tradition to show that it is a myth, a slogan without concrete meaning, a pretext for refusing to acknowledge indigenous law and institutions, and an assertion that is contrary to the history of western law. This piece will trace the sources of the recognition of the law of The Other, the origins of the slogan, show how it has been used to block recognition, and why it is falsely or incorrectly applied to issues of recognition of indigenous law in light of the history of legal pluralism.
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Legal Pluralism
Many of the interventions by the experts and special rapporteur in Madrid referenced legal pluralism as a basis for recognition and the co-existence of diverse laws and legal systems in modern states, and several examples of developing state law principles dealing with indigenous peoples referenced the fact that there are multicultural societies throughout the world. Legal pluralism is a fairly modern term, but it encompasses centuries of actual practice, as shown above. Harold J. Berman wrote a masterful history of the formation of the western legal tradition,27 and throughout, as it relates the struggles of the state to free itself from institutionalized religion, those of religious institutions seeking to free themselves from control of the state, and the rise of the modern state through law and competing claims of cities and merchants to be free of centralized control, it shows the fact of legal pluralism throughout medieval and modern history. In fact, today we see the claims of indigenous peoples to autonomy (liberty), self-determination (liberty againa customary international law right), and different forms of group rights, echoed in libertarian, polycentric law, free market and even anarchist arguments that centralized authority and control are counterproductive to human initiative and growth.28 The recognition of indigenous law and institutions is part of a larger trend toward more inclusive democracy and local autonomy in effective devolutions of decision-making authority (including recognition of such authority).
Conclusion
From the Trial of Christ to the disproportionate numbers of indigenous individuals in jails and prison due to state discrimination that were reviewed in Madrid, we see the one law for all argument proven false throughout that period of time. It is a sound bite that has little meaning when examined in light of history, consistent state practice, and its original context. It is possible for different laws and institutions to co-exist to address the common goals of equality, free speech, and liberty, and the modern legal pluralism movement reinforces that possibility.
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