The Grammar of Customary Law

The Grammar of Customary Law

Jeremy Webber*

All law is customary. This article explores how we
should conceive of the customary nature of law, proposing
a framework for understanding how legal orders are related
to their various societies. The article builds upon the
pragmatist conception of law developed by Lon Fuller and
Gerald Postema, but it goes well beyond their accounts,
arguing that their predominantly functionalist approaches
are inadequate. Although law does serve to coordinate
social interaction, it does so through specific conceptual
languages, through particular grammars of customary law.
Law can only be understood if one takes those grammars
seriously.

The article pursues this argument by drawing
comparisons between indigenous and non-indigenous legal
orders, both to expand the comparative range and to
explore what indigenous legal orders can reveal about law
generally. It explores the limitations of functionalist
accounts (including law and economics) in the law of
persons and property,
the
foundational requirements of legal order, and in the
presence of the sacred or mythic in law. The article
concludes that attending to the various grammars of
customary law allows one to engage, productively and with
insight, in legal reasoning across the normative divide
separating different legal cultures.

in presumptions about

Tout droit est coutumier. Cet article tudie la manire
dont nous devrions concevoir la nature coutumire du droit,
en proposant un cadre pour comprendre comment les
systmes juridiques sont lis leurs socits respectives.
Larticle sappuie sur la conception pragmatique du droit
dveloppe par Lon Fuller et Gerald Postema, mais il va
bien au-del de leurs thories en affirmant que leurs
approches principalement fonctionnalistes sont inadquates.
Le droit sert coordonner les interactions sociales, mais de
surcrot, il remplit cette fonction travers des langages
conceptuels spcifiques et des grammaires particulires de
droit coutumier. Le droit peut uniquement tre compris si
ces grammaires sont srieusement prises en compte.

Larticle dveloppe cet argument en traant des
comparaisons entre les systmes juridiques autochtone et
non autochtone, la fois pour largir le champ comparatif
et pour considrer ce que
juridiques
autochtones ont rvler sur le droit. Il tudie les limites des
thories fonctionnalistes (incluant lanalyse conomique du
droit) en ce qui concerne le droit des personnes et des biens,
les prsomptions relatives aux exigences fondamentales des
systmes juridiques et la prsence dlments sacrs et
mythiques dans le droit. Larticle conclut que lattention
porte aux diffrentes grammaires du droit coutumier nous
permettra de nous
juridique
productive et claire, au-del du clivage normatif qui
spare les diffrentes cultures juridiques.

livrer une rflexion

les systmes

* Canada Research Chair in Law and Society, Trudeau Fellow, and Director of the Consortium on
Democratic Constitutionalism, Faculty of Law, University of Victoria. This article is based on a panel
presentation from the 2008 Annual Conference of the Research Committee on the Sociology of Law,
held in Milan, Italy, from 9 to 12 July 2008. My special thanks to the Faculty of Law at the University
of Calgary, where the first draft of this paper was prepared and presented. Thanks also to Elizabeth
Anderson, Jon Bradbury, and Hadley Friedland for their able research assistance, and to Andre
Boisselle, John Borrows, Keith Carlson, Bernard Dunne, Ren Foqu, Hamar Foster, Nicola Lacey,
Val Napoleon, Brent Olthuis, Richard Overstall, Gerald Postema, Ralph Simmonds, Jim Tully, Bart
van Klink, Katherine Webber, Gordon Woodman, Zhuang Zhong, the anonymous reviewers for the
McGill Law Journal, and the participants in seminars at the Universities of Calgary, Alberta, British
Columbia, Leuven, Melbourne, Michigan, New Brunswick, and Victoria; the Australian National
University; and Peking University (especially to Zhang Qianfan and commentators Jiang Shigong and
Xu Aiguo) for their fruitful conversation and trenchant comments on this argument as it has
developed. This paper draws on research conducted with funds from the Canada Research Chair and
from the Social Sciences and Humanities Research Council of Canada (the latter under a Major
Collaborative Research Initiative Grant on Indigenous Peoples and Governance and under two
research grants for which I was co-investigator in the 1990s).

Jeremy Webber 2009
To be cited as: (2009) 54 McGill L.J. 579
Mode de rfrence : (2009) 54 R.D. McGill 579

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Introduction

I. The Pragmatist Account of Customary Law

II. Neglected Dimensions of Customary Law

A. Persons and Property
B. The Requirements of Legal Community
C. Sacred or Mythic Dimensions of Law

III. The Grammar of Customary Law

Conclusion

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Introduction

In his remarkable article, Human Interaction and the Law, published in 1969,
Lon Fuller argued that the primary form of law was customary.1 Law was grounded in
particular practices, emerged from those practices, and served to facilitate human
interaction within them. Even statutes, he argued, were best conceived as punctual
interventions by the legislator, comprehensible only against a background of
customary norms.2 This article shares that understanding of the importance of
customary law. Law is grounded, fundamentally, in the practices of particular
societies. All law, even legislation, finds its meaning in interpretive relationship to
those practices. To understand law is to understand norms relationship to the web of
human interaction in a given society.

Fuller explained this relationship in essentially pragmatist terms, treating law as
though its primary function was to facilitate the interaction of individuals and groups.
This pragmatist account has been developed in illuminating ways by Gerald Postema,
who has gone substantially beyond Fuller in explaining the form of reasoning
appropriate to a body of law continually articulated in relation to a set of social
practices.3 There is much value in these pragmatist conceptions and this article draws
upon them, but they are ultimately unsatisfying. Especially troubling is the way in
which their explanation of customary law departs significantly from how participants
in legal orders conceive of their orders. That lack of resonance points to substantial
limitations in the account, limitations that I seek to remedy in this article.
Nevertheless, this article owes an important debt to the work of Fuller and Postema. It
does not reject the pragmatist account; rather it supplements this account, building
into it a significant dimension of substantive normative deliberation.

It will be clear by now that by customary law I do not mean exclusively the law
of traditional or indigenous societies. The customary dimension with which I am
concerned exists in all law, except the most despoticand even then it is difficult to
imagine a working system that lacks all trace of customary elements for any length of
time. Thus, this article does not follow the lead of some scholars by presuming that
there is a stark contrast between custom and law, with the latter conceived in
positivist (or at least entirely state-centred) terms.4 Rather, this paper asserts that

1 Lon L. Fuller, Human Interaction and the Law (1969) 14 Am. J. Juris. 1 [Fuller, Human

2 See especially Lon L. Fuller, Anatomy of the Law (Westport, Conn.: Greenwood Press, 1968) at

3 See Gerald J. Postema, Implicit Law (1994) 13 Law & Phil. 361. See also Postemas other

Interaction].

57-69 [Fuller, Anatomy].

works, cited below.

4 The thought-provoking work of Marianne Constable, for example, adopts such a contrast. See e.g.
Marianne Constable, Just Silences: The Limits and Possibilities of Modern Law (Princeton: Princeton
University Press, 2005). There is nevertheless a close affinity between my argument and that of
Constable in our shared desire to broaden understandings of law generally, and to expand theories of

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customary law is the primary form of all law and then develops a conceptual
framework for exploring how a legal order relates to the complex array of practices
within a given society. It therefore applies as much to non-indigenous as to
indigenous legal orders. Indeed, Fuller and Postema frame their projects primarily in
relation to non-indigenous lawin Fullers case, American common law; in
Postemas case, both the English and American traditions of common law.5 Legal
practitioners and theorists within these traditions may not conceive of their orders in
customary terms, but that fact points to the inadequacy of their theories. This article,
building upon the work of Fuller and Postema, seeks to provide a more satisfying
account.

Still, this article does grapple, in comparative fashion, with indigenous legal
orders, especially those of northern North America. It does so in part as a way of
identifying elements of customary law that have largely been lost from view in our
understanding of non-indigenous legal orders. Encountering what is, for a non-
indigenous scholar, the unfamiliarity of indigenous legal orders can be a way of
throwing into relief dimensions of law that exist in non-indigenous orders but that are
so taken for granted that we no longer see their significance, no longer see how they
might have been different. Using comparisons across the indigenous/non-indigenous
divide to explore the nature of customary law also helps ensure that the theory will be
appropriate to law as it is defined and deployed in different societies. In turn, this
comparison can help limit the extent to which our definitions smuggle in highly
particular and contestable content, content that can distort the legal structure of
indigenous/non-indigenous relations, and that indeed can be downright oppressive
when applied across legal orders framed in very different terms.

Finally, in exploring the potential for normative engagement across the
indigenous/non-indigenous divide, this article forms part of a larger projectin
which my colleagues John Borrows, Val Napoleon, and Andre Boisselle (among
others) participateof attempting to articulate the intellectual project behind the
introduction of a new Bachelor of Indigenous Law at the University of Victoria. In
this program, students would study specific indigenous legal traditions (including, for
indigenous students, their own), in conjunction with the common law, obtaining
degrees in both.
My focus in this article is on the normative content of customary law, not
primarily on the processes by which customary law is defined and elaborated in
particular societies. The processes are very important: all normative orders are
marked by disagreement, all need to have ways of resolving disagreement, and much
of the normative character of the community is shaped by the specific nature of those

non-indigenous legal orders specifically to explore the relationship of custom to state-centred forms of
law.

5 See especially Gerald J. Postema, Classical Common Law Jurisprudence (Part I) (2002) 2
O.U.C.L.J. 155 [Postema, Jurisprudence Part I]; Gerald J. Postema, Classical Common Law
Jurisprudence (Part II) (2003) 3 O.U.C.L.J. 1 [Postema, Jurisprudence Part II].

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mechanisms and the power relations that characterize them.6 But although I refer to
such processes at several points, my primary concern is with the normative content of
customary law and specifically with the relationship between this content and
practices within society more broadly. Robert Ellickson has noted that most law-and-
society scholars tend to treat observed norms as exogenous, declining to explain the
commitments that drive those norms and, not incidentally, providing very little
explanation for how participants reason with their norms.7 This article responds to
that challenge.

This article attempts to develop a general conception of how legal reasoning is
related to human societieshow law, conceived in customary terms, exists in
intimate relation with the array of practices in any human society. But I should be
clear about this theoretical aspiration. My purpose is not to stipulate the form that
legal orders should take, developing a common structure of normative obligation to
govern all societies. Quite the contrary. Examining the nature of customary law across
legal cultures demonstrates the way in which any legal order embodies particular,
culturally shaped ways of conceiving of the very structure of normative obligation
and normative relationship. Any order develops its own language of normative
analysis, its own grammar, that materially shapes how the fundamental elements of
legal relations are conceived. I shall explore the nature and effect of that grammar
over the course of this article. The realization of that diversity reveals what is at stake
in the encounter between indigenous and non-indigenous legal orders (or indeed
between any substantially different legal cultures). It helps us see the possibilities and
pitfalls of different ways of accommodating indigenous concerns, and it points
toward more respectful modes of interaction.

I. The Pragmatist Account of Customary Law

In his 1969 article, Fuller described customary law as follows: Customary law is
not the product of official enactment, but owes its force to the fact that it has found
direct expression in the conduct of men toward one another.8 Fuller sometimes
treated all law that was embedded in social practices as customary law, although at
other times he limited the concept to legal principles that had not been officially
declared.9 By this latter definition, judicial decisions would not be considered

6 See Jeremy Webber, Legal Pluralism and Human Agency (2006) 44 Osgoode Hall L.J. 167

[Webber, Human Agency].

7 Robert C. Ellickson, Order without Law: How Neighbors Settle Disputes (Cambridge: Harvard

University Press, 1991) at 149 [Ellickson, Order without Law].

8 Fuller, Human Interaction, supra note 1 at 1.
9 See ibid. Fuller apparently excludes officially declared law from customary law, although he then
goes on to suggest that official declared law cannot be understood without a grasp of customary law
(at 2), and see his characterization of the common law as at least in large measure customary law (at
26). Similar ambiguity exists in his other principal discussion of customary law: Fuller, Anatomy,
supra note 2 at 43ff.

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customary law. I will follow the first usage. All law has to have some mechanism of
social determinationsome way of determining which norm, or which interpretation
of a norm, is to serve as societys law when there are rival interpretations. This
mechanism may involve determination by an official (such as a judge) or by some
other social process (deliberation and consensus, the determination of a council of
elders, assertion and acquiescence, and so on). It is an error to think that norms
emerge in customary legal orders without any intervention of human agency.10 The
simple existence of mechanisms for specifying norms does not undermine those
norms customary nature. The crucial fact is that customary law exists in intimate
interdependence with social practices, not that it has been exempt from some form of
official determination.

Fuller goes to considerable lengths to emphasize that customary law is not the
result of mere habit, mere unreasoning repetition. He takes vigorous issue with
Thomas Hollands assertion that customary law develops like a path across a field:
people happen to walk on the same line, gradually beating a path into the ground until
a right of way forms. Rather, in Fullers view, customary law is always marked by the
need to organize and facilitate interaction.11 It has a reasoned dimension. Participants
perceive the value of norms to their interaction and therefore follow those norms in
their conduct. Fuller refers to customary law as a language of interaction, which
generates complementary and stable expectations of conduct among participants in a
social order.12 Customary law enables participants to coordinate their actions through
effective communication, predictably anticipating each others actions. The
perception that an action is obligatory arisescustomary law is createdwhen the
participants have come to guide their conduct toward one another by these
expectancies.13

The focus of the pragmatist account on coordination and facilitation has a number
of very great strengths. To begin with, it emphasizes the eminently social nature of
law. Law is not an abstract theory of justice. It is a method of social organization that
is grounded in a particular society, governing relations within that society. It is, in
Fullers words, a program for living together.14

Coordination is therefore the most common of common denominators in law. The
members of a society may not share much, but if they are to live in any kind of order
they at least need some method, some principles, even if rudimentary, for
coordinating their actions. The participants may not have a strong subjective

10 Webber, Human Agency, supra note 6; Jeremy Webber, Naturalism and Agency in the Living
Law in Marc Hertogh, ed., Living Law: Reconsidering Eugen Ehrlich (Oxford: Hart, 2009) 201
[Webber, Naturalism and Agency].

11 Fuller, Human Interaction, supra note 1 at 4.
12 Ibid. at 2-3.
13 Ibid. at 9, 16. See also Fuller, Anatomy, supra note 2 at 73; Postema, Implicit Law, supra note 3

at 364-65.

14 Fuller, Human Interaction, ibid. at 11.

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commitment to these understandingsthey may, if given the choice, prefer other
norms to the ones that are now in placebut if they are to have any order at all, some
rules of conduct need to be acknowledged as the societys rules, even if individuals
disagree. Coordination therefore captures the most basic, indeed definitional,
requirement of a legal order: that participants conduct be ordered by some social
process, by some socially determined principles.

The establishment of this process, these norms, is a considerable accomplishment
precisely because people do disagree on what they should beat least if one looks
beyond the norms abstract formulation and considers their practical implications in
specific situations. In all societies, mechanisms need to exist for determining which
norms, among the range of possibilities, should be treated as the societys norms.
Again, these outcomes do not have to be a matter of full substantive agreement; there
simply has to be a method for determining what the societys norms are. And note that
the essential element here is the specification of the norms, not necessarily their
coercive enforcement. The pragmatist theorists are quite right to emphasize that
coercion is not essential to law. The specification of norms may be sufficient to
prompt voluntary compliance, as when a trade association rules upon a contractual
dispute among its members or an ombudsman makes a finding on citizens
entitlements.15

The pragmatist account also focuses our attention usefully on the relationship that
exists between customary law and the practical conduct of interaction within a given
society. The two are closely intertwined, indeed mutually constitutive. The practices
can only work efficiently, frequently can only exist at all, if the norms are observed
if, for example, agreements are generally taken to be binding when concluded in the
customary manner. The norms, in turn, are developed and then elaborated by
participants who reflect upon the practices, consider their demands, try to articulate
appropriate rules of conduct, and think about what those rules should mean in
particular cases. It makes sense for participants to take the practices as the starting
point, because, after all, practices furnish both the need for coordination and the
concrete examples of living together from which one can fashion norms. Even among
people who share little elsewho have different ideas of justice, different interests,
perhaps even different metaphysical commitmentsthe practices provide a nexus of
interaction, from which norms to govern those practices can be identified.16

15 See Webber, Naturalism and Agency, supra note 10. Fuller did not emphasize the importance of
the specification of norms as directly as I have done, but it is implicit in his account. This can be seen
in his objection to E. Adamson Hoebels definition of law, which turned on coercion. Fuller notes that
this defines law by an imperfection, ruling out legal orders that are obeyed so regularly that coercion
is not necessary: Fuller, Human Interaction, ibid. at 10-11. See also his account of the spread of
customary law (at 17), which apparently turns on specification rather than coercion.

16 Jeremy Webber, Relations of Force and Relations of Justice: The Emergence of Normative
Community between Colonists and Aboriginal Peoples (1995) 33 Osgoode Hall L.J. 623. Compare
Gerald J. Postema, Custom in International Law: A Normative Practice Account in Amanda

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Moreover, we see here how that process is always a reasoned one, involving at
least an implicit deliberation to identify standards by which to align ones actions
with those of others. It is not the result of mere force of habit.17 Indeed, often
deliberation is both an explicit and dominating characteristic of customary legal
orders, in indigenous and non-indigenous contexts alike. Postema says of the English
common lawyers of the seventeenth and eighteenth centuries:

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To the common lawyers mind, these three activitiesarticulating standards,
showing them to be reasonable and sound, and applying them to particular
caseswere not three separate processes, but rather interrelated moments of a
single process of discursive reasoning. Through disciplined movements in this
process, common law rules emerged and common law doctrine evolved. In
their view, the life of the law was disciplined reason.18

Note that this also means that customary law is not locked in the past. On the
contrary, it requires critical reflection upon conduct in a particular society and
continual elaboration of the concepts used to understand and structure that conduct.

Participants may economize in that reasoning, accepting rules of thumb
developed in past deliberations so that they do not continually have to deliberate from
the ground up.19 That economization may even be fundamental to the notion of law
because (1) if people thought everything through for themselves each time they acted,
they would lose the capacity for a common rule; and (2) the common rule always
includes elements that go beyond any individuals personal rationalizations for the
rule: it at least incorporates the social warrant that the rule has obtained, and, in
achieving that warrant, the rule has generally drawn upon a breadth of experience that
goes well beyond that of any one individual. It represents, in some sense, the distilled
lessons of all who have participated in its creation and elaboration (though the
process of distillation is less than systematic).20

But economize as one does, the rule never completely escapes its reasoning, as
one sees when rules are applied. To apply them well, one has to have some sense of
their fit with broader practices, some judgment of the rationales that underlie the rule.

Perreau-Saussine & James Bernard Murphy, eds., The Nature of Customary Law: Legal, Historical
and Philosophical Perspectives (Cambridge: Cambridge University Press, 2007) 279 at 289 [Postema,
Custom] (emphasizing that it is the practice, the activity, that forms the commons upon which
normative agents draw).

17 See Postema, Custom, ibid. (Unlike some habits, customs are not merely acquired, but learned
social behaviour, and, although unreflective, they are to a degree accessible to explicit attention and
even to adjustment upon reflection at 284).

18 Postema, Jurisprudence Part I, supra note 5 at 167.
19 See James Bernard Murphy, Habit and Convention at the Foundation of Custom in Perreau-

Saussine & Murphy, supra note 16, 53.

20 The echoes of Hale and of Burke are intended: Edmund Burke, Reflections on the Revolution in
France (Harmondsworth: Penguin, 1969) at 193, 119ff; J.G.A. Pocock, The Ancient Constitution and
the Feudal Law: A Study of English Historical Thought in the Seventeenth Century (Cambridge:
Cambridge University Press, 1987) at 171-78, 242-43 [Pocock, Feudal Law].

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Otherwise, ones application is likely to be tone-deaf, unable to differentiate between
distinctions that speak to the basis of the rule and those that are spurious. Indeed, the
skillful application of rules is dependent on a sense of propriety, of the fit between
rules and their social roles, not simply on a parsing of their linguistic content. It is
dependent on a normative sensibility, grounded in familiarity with the practices of a
particular society.21

The pragmatist emphasis on the relationship between norms and practice also
avoids the dual errors of treating legal reasoning as though it were either (1) self-
contained, autopoetic, generated from its own internal resources;22 or (2) a purely
intellectual process (even if that process is not confined to legal materials), where the
only things that are considered are prior articulations within a given normative
tradition. The raw material of customary law is not limited to books and statements;
its own distinctive practices are not simply those of exegesis. This fact distinguishes
the method of customary law from some approaches to hermeneutics, where
normative deliberation is conceived as an entirely intellectual process, working purely
and simply off of others past expressions.23 As Postema explains, implicit rules

arise from conduct, not conception. Verbal formulations may more or less
accurately capture the rules implicit in the conduct, but the formulations are
always post hoc and strictly answerable to the conduct. No formulation is
authoritative in virtue of its public articulation alone. … Of course, agents, or
even observers, may give verbal expression to such rules, but their ability to
guide action is dependent on the substratum of ongoing practice. … [T]his
substratum will rise from time to time to the surface and, through the parties
relatively explicit awareness of it, play a vital role in determining solutions to
their problems.24

Postemas emphasis on conduct over conception should, of course, still be read
against Fullers insistence on the reasoned quality of customary law. Postema agrees
that what he calls implicit law is brought into being by purposive effort, continuing:

21 See Postemas answer to Murphy: Postema, Custom, supra note 16 at 284ff.
22 See e.g. Gunther Teubner, Law as an Autopoietic System, trans. by Anne Bankowska & Ruth

Adler (Oxford: Blackwell, 1993).

23 This, to my mind, distinguishes the conception developed here from the interpretive theories of
Ronald Dworkin and from many of those within the critical tradition, such as the otherwise
stimulating work of Nicholas Davey. See Ronald Dworkin, Laws Empire (Cambridge: Harvard
University Press, 1986). See also Nicholas Davey, Unquiet Understanding: Gadamers Philosophical
Hermeneutics (Albany: State University of New York Press, 2006).

24 Postema, Implicit Law, supra note 3 at 363, 365. Postema develops this relationship further in
subsequent essays: Gerald J. Postema, Conventions at the Foundation of Law in Peter Newman, ed.,
The New Palgrave Dictionary of Economics and the Law, vol. 1 (London: Macmillan Reference,
1998) 465 [Postema, Conventions]; Postema, Custom, supra note 16; Gerald J. Postema,
Salience Reasoning (2008) 27 Topoi 41.

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Typically, implicit rules are side-products of intentional, rational interaction. They
arise from and are sustained in this interaction.25
One way of explaining the relationship between norms and practices is that
statements of norms never exhaust the capacity for learning from reflection upon
experience. They are always approximations, distillations, interpretations, that are
perennially subject to further evaluation and refinement as a result of experience.26
And experience is always refractory: although norms may serve to shape our actions,
the success of those actions is dependent on factors that go beyond our knowledge
and intentions. An unexpected response, an initiative that causes suffering when it
was expected to improve lives (such as the many attempts to assimilate indigenous
peoples to a thoroughly non-indigenous way of life), may cause us to re-evaluate our
normsin the case of assimilation, it may cause us to reformulate our very
conception of equality.
The expressions of customary law therefore exist in an interpretive relationship

with practice, mediated by other participants interpretations and actions. That
reasoning is necessarily evaluative. Participants seek to weigh the impact of past
norms, judge the appropriateness or acceptability of that impactwhat has proven
important in previous decisions, what has proven ill-conceivedand seek to revise
the norms and their application accordingly.27

These evaluations are an important focus of deliberation in customary orders. The
members ultimate opinions may differ but, as Postema notes, their participation both
in the practices and in past interpretations allow them to anticipate, to some degree,
the solutions that their fellows are likely to propose with respect to the application of
norms and to the norms future development.28 They can anticipate the trajectory, or
range of possible trajectories, of their colleagues future interpretations. This process
of reflection and anticipation also reveals how participants develop a level of
expertise in their societys law: the deeper their engagement with the practices,
interpretive resources, and interpretative methods of their society, examined over a

26 Note that these norms may be embodied in non-propositional forms, such as the order of
ceremonies, which then function as a kind of metaphorical language. Drawing on Charles Taylors
argument of the need not just for dialogue but for participation, Oman notes the emphasis among the
Gitxsan and Wetsuweten on the need to participate in the institution of the feast in order to
understand those peoples normative orders: Natalie Oman, Paths to Intercultural Understanding:
Feasting, Shared Horizons, and Unforced Consensus in Catherine Bell & David Kahane, eds.,
Intercultural Dispute Settlement in Aboriginal Contexts (Vancouver: University of British Columbia
Press, 2004) 70 at 80-84.

27 Gerald J. Postema, On the Moral Presence of Our Past (1991) 36 McGill L.J. 1153 [Postema,
Moral Presence]. Note Postemas insistence on the normative in his analogy to thinking in jazz:
Postema, Salience Reasoning, supra note 24 at 49.

28 Postema, Implicit Law, supra note 3 at 365, 371-72; Postema, Salience Reasoning, ibid. at

25 Postema, Implicit Law, ibid. at 364. He also describes this reasoning process in Salience

Reasoning (ibid.).

47-49.

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span of time, the better their capacity to judge the acceptability of future
interpretations of those normsand indeed the better the arguments they can muster
for the interpretations that they personally favour.29 The intersubjective dimension of
legal deliberation suggests another reason why participants grasp of their law is
perennially limitedindeed subject to what is almost an axiom of limitation: the
ultimate development of the law never depends on the views of one person alone, but
always requires a convergence among participants interpretations and conduct.

The pragmatists emphasis on coordination also furnishes criteria that participants
use to evaluate a particular set of norms, at least ostensibly. One can judge a body of
norms by the norms success in coordinating interactions. I say ostensibly, however,
because coordination alone is less useful as a source for evaluative criteria than one
might think. It is virtually tautological that law coordinates action in society precisely
because law exists to allow members of a group to live together in reasonable order.
One cannot conceive of a working legal order that does not coordinate action. The
critical questions, of course, are in what manner, to what ends, and how well it
coordinates, and these point toward criteria of evaluation that go well beyond the fact
of coordination. As we will see, this insufficient specification of the criteria for
evaluation constitutes the principal weakness in the pragmatist account.

The pragmatists emphasis on the socially grounded character of customary law
has led some to champion the common law against legislation, as though legislatures
did little more than meddle with the more embedded and responsive common law,
which they took to be internalized in the minds and conduct of its subjects.30 That is
not a view I share. All law is shaped by human agency, from the judges choice of one
interpretation among many in their application of the common law, to scholars
interpretation of the substance of the civil law in academic treatises, to the acts of the
legislature. Legislatures generally deploy that agency in a more transparent manner
than do judges, drawing upon the views of a wider swath of society through processes
that allow for more direct participation of the citizenry in rough equality. They can
accomplish objectives that would be impossible to achieve through the courts,
including the elimination or substantial restructuring of social practices that may well
be marked by profound asymmetries of power. The capacity for rapid and
democratically authorized governmental action, possible only through legislatures, is
worth preserving (even if in exercising that power, legislatures should be alert to and
deferential toward the areas of special competence of courts).

But it is important to realize that legislation too works, to some degree, in the
manner of customary law. First, the legislatures own procedures, their place within
the legal order as a whole, even the deference owed to their enactments, are in large

29 Compare Postemas insightful description of the classical common law: Postema, Jurisprudence

Part I, supra note 5 at 167; Postema, Jurisprudence Part II, supra note 5 at 4-5, 8-10.

30 For Fullers criticism of the idealization of customary law, see Fuller, Anatomy, supra note 2 at

70. The claim has a long lineage. See e.g. Pocock, Feudal Law, supra note 20 at 19-20.

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measure defined and regulated by customary norms.31 Second, their enactments
generally take the form of interventions into a body of existing law, deflecting the
evolution of that law rather than creating law out of whole cloth. They adjust
customary law, shape it, as much as they displace it. Third, much legislation is framed
on the basis of the legislators interpretations of social mores and is meant to have the
same close connection to social practices that judicial decisions do. There is still
something to be said for the now-archaic idea that Parliament is the highest court,
articulating the custom of the country.32

Fourth, and most importantly, even if legislatures do make changes to the law
without much concern for existing practices, and even if courts do respect the right of
the legislature to make those changes (as they ought to do), laws once passed are
nevertheless quickly customizedovertaken by the process of interpretation and
application, elaborated and extended.33 The statutes, if effective, come to structure
relations on the ground such that a statutes interpretation, and the practices
performed under it, converge into (in a phrase Postema uses in a different context) a
substantial congruence (but not identity).34 It may well be that over time these
further interpretations become the primary reference points for future decisions and
the terms of the statute itself fade into the background. Indeed, significant portions of
what we now think of as the English common law (contributory negligence, for
example) were founded upon statute, but the terms of the statutes have long since
disappeared in the judicial elaborations encrusted upon them.35 Moreover, this growth
of interpretation and elaboration is common to all legal orders. It is not restricted to
English law and its descendants. Even within the French civilian tradition, for
example, a layperson, faced with a legal issue, would have great difficulty reasoning
to a dependable conclusion from the terms of the Civil Code alone. In that tradition,
the process of customization may be accomplished more by scholars than by judges.
But scholars too develop the meaning of the Code through continual engagement
with an always expanding range of applications.

31 Fuller makes a stronger claim of enacted law, namely, that it too must conform to principles of the
rule of law so that it will serve to establish interactional expectancies (his claim is too strong, in my
view, at least if it is intended to give judges licence to overturn the enactments of legislatures): Fuller,
Human Interaction, supra note 1 at 24-25.

32 See Jeffrey Goldsworthy, The Sovereignty of Parliament: History and Philosophy (Oxford:

Oxford University Press, 1999) at 109ff.

33 Compare Fullers argument that one must draw upon implicit considerations when working with
legislation (in his section entitled Implicit Elements in Made Law): Fuller, Anatomy, supra note 2 at
57-69.

34 Postema, Jurisprudence Part II, supra note 5 at 27.
35 Indeed, Matthew Hale, the distinguished seventeenth-century common law lawyer, argued that
statutes became part of the ius non scriptum through their incorporation into common law reasoning
and into the life of the community: Postema, Jurisprudence Part I, supra note 5 at 174-75.

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There are, then, very great strengths to the pragmatist account of customary law.
But what about the weakness identified above: the comparative underdevelopment of
the criteria by which participants judge the quality of their law?

The pragmatist description of the role of law focuses overwhelmingly on
coordination, paying very little attention to other roles that the law might serve. It
especially overlooks the use of the law to affirm judgments of substantive value and
bring conduct into accord with those judgments. Yet these judgments lie at the very
core of what most participants think their law is all about. If, for example, one asked a
Cree hunter, Why are human beings obliged to treat the remains of harvested
animals with great respect? he or she would be unlikely to respond anything like,
Because it facilitates human interaction. 36 The same would be true if you asked a
non-indigenous citizen about the prohibition on murder, or about virtually any other
provision of the criminal law, or even about the obligation to compensate for damage
caused by ones negligence. In fact, for the vast majority of the principles of any legal
order, the coordination of human interaction would at least underspecify the
considerations that account for the content of the law. For a great many norms, the
disjuncture would be so dramatic that the coordination of human interaction would
seem like a complete non sequitur.

Fuller and Postema are, of course, alive to this objection. It is all the more
striking, then, that they still find it difficult to move beyond coordination. Fuller tends
to construct his account of customary law around the rules of the road (especially the
rule that one should pass oncoming traffic on the right), for which the rationale
underlying the rules is, unusually, coordination alone.37 He discusses the question of
murder, but he primarily emphasizes that even here coordination plays more of a role
than one might think. He notes in particular that the law of murder was designed to
provide a substitute for the blood feud. This response tends to confirm rather than
answer the objection, however, because of its abrupt change of focus from the
rationale for the prohibition to the social mechanism used to address it (Fuller does
acknowledge that other considerations operate in the prohibition on murder, although
he does not develop them).38

36 Note that for the Cree, the obligation to treat animals with respect is a true obligation, involving
reciprocity with entities conceived as persons or near-persons. See Harvey A. Feit, Hunting and the
Quest for Power: The James Bay Cree and Whitemen in the Twentieth Century in R. Bruce Morrison
& C. Roderick Wilson, eds., Native Peoples: The Canadian Experience (Toronto: McClelland &
Stewart, 1986) 171 at 174, 179-80 [Feit, Hunting]; Robert Brightman, Grateful Prey: Rock Cree
Human-Animal Relationships (Berkeley: University of California Press, 1993) at 76-135; Colin H.
Scott, Spirit and Practical Knowledge in the Person of the Bear Among Wemindji Cree Hunters
(2006) 71 Ethnos 51 [Scott, Spirit and Practical Knowledge].
37 Fuller, Human Interaction, supra note 1 at 12-13, 20-21.
38 Ibid. at 21-22. See also Postema, Salience Reasoning, supra note 24 at 53. Postema, when
discussing conventions with respect to dress or the constitutive rules of games, also insists upon the
role of coordination in circumstances where coordination may well be present (indeed is certainly
present, for reasons I indicate below), but nevertheless seems too rudimentary an answer.

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In his writings on customary law, Postema too tends to circle back to
coordination. This approach is especially puzzling given his close attention to
material in which much more than coordination is at play. In his most recent work, for
example, he develops a wonderful analogy between reasoning in law and the
interaction of a jazz ensemble. In discussing jazz, he expressly invokes criteria for
evaluation beyond mere coordination, noting that jazz follows a musical-aesthetic,
rather than instrumental or discursive, logic.39 And at a later point, The parts do not
merely avoid musical collisions, they enhance the musical significance of each other
and of the whole.40 But when he returns to law, he again speaks in terms of
solutions to cooperation problems and to best solutions that are defined in terms of
Pareto optimality or correlated equilibria.41 There is great potential in all this
discussion for the development of a dimension that goes beyond coordination.
Indeed, Postema acknowledges that coordination alone does not exhaust individuals
normative interactions.42 But that dimension is largely undeveloped.

I suspect that some theorists (though not, I believe, Postema) are strongly
attracted to the language of coordination in part because, by avoiding substantive
normative judgments, that language apparently allows one to finesse the problem of
disagreement. The language of coordination instead offers a standard of assessment
that is ostensibly neutral and uncontroversial. The theorist simply presents his or her
interpretation as the parties own lawlaw that has emerged from practiceand that
is, for that very reason, supposedly exempt from contention. The emphasis on
coordination serves the rhetorical purpose of minimizing the role of agency in
determining the content of the law. As should already be clear, I do not accept this
approach: except in rare cases of pure coordination (such as the rule that one should
drive on the right), law always involves interpretive judgments that embody
significant normative claims. It is thus inherently open to dispute.

39 Postema, Salience Reasoning, ibid. at 47, n. 16.
40 Ibid. at 48.
41 Ibid. at 50, 51, n. 21, 53. Part of the reason for this may be the predominantly game-theoretic
context in which his article is written. Postema is specifically addressing David Lewiss theory of
social conventions, but it is clear that Postemas reasoning applies to all norms that are socially
generated, including customary law. See also Postema, Conventions, supra note 24.

42 Postema, Custom, supra note 16 at 293 (and at 294 Postema notes that the instantiation of
general norms may well be coloured by the character or moral language of specific societies);
Postema, Salience Reasoning, ibid. at 54. The potential for a fuller account of these dimensions is
especially evident in Postemas profound treatment of common law precedent. See Postema, Moral
Presence, supra note 27; Gerald J. Postema, A Similibus ad Similia: Analogical Thinking in Law in
Douglas E. Edlin, ed., Common Law Theory (Cambridge: Cambridge University Press, 2007) 102 at
125, 126-31 [Postema, A Similibus]. The paper that goes furthest toward articulating such an
account is Conformity, Custom, and Congruence: Rethinking the Efficacy of Law, especially in its
recognition of the constitutive role of law (in Matthew Kramer et al., eds., The Legacy of H.L.A.
Hart: Legal, Political, and Moral Philosophy (Oxford: Oxford University Press, 2008) 45 [Postema,
Conformity, Custom, and Congruence]) .

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However, there is another, more limited sense in which Fuller and Postema are
justified in drawing attention to the role of coordination in all law, including such
things as the prohibition on murder: the fact that all law fashions a societal response
to prohibited conduct and in fashioning that response a range of competing
possibilities have to be narrowed down to one. On this view, the language of
coordination really comes down to the need to have a common rule; it says very little
about the content of that rule.43 This, I believe, is the role that coordination does play
in legal orders: it underlies the need for a common rule and explains why members of
the society may feel that they should follow that rule, even if they disagree with its
particular content. But an infinite range of potential rules can satisfy that requirement.
In the choice among various possibilitiesin arguments over what the legal order
should prohibit, or in attempts to interpret or extend an existing legal order
substantive normative considerations and not the mere fact of coordination take
centre stage. The failure to include those considerations is the major failing in the
pragmatist account of customary law. Can it be remedied?

II. Neglected Dimensions of Customary Law
I begin by exploring in more depth what the pragmatist account neglects. This

exploration helps to identify the kinds of things that the pragmatist account leaves
out, establishing their nature and significance to law. It also makes clear how the
neglected dimensions interact with the concerns of coordination and facilitation. The
two sets of concerns do not compete. They are integrally intertwined, both essential,
both simultaneously operative. My purpose is not to set aside the pragmatists
emphasis on coordination, then, but to see how it works in tandem with the more
substantive elements of the law. Grappling with the dimensions neglected by the
pragmatist account serves to locate those elements with accuracy, charting their
interrelationship with the concerns of coordination.
Many of the examples I use are drawn from indigenous legal orders. Those
examples further this papers project of engaging in comparative inquiry across a
broader range of legal cultures than generally occurs in comparative legal
scholarship. Identifying elements of connection and of difference across indigenous
and non-indigenous legal orders equips us more adequately to understand how those
orders might productively relate to one another. It certainly reveals the variety of law
and the challenges that are involved in normative dialogue across substantial
differences of legal culture, and, precisely because of those challenges, what one can
learn from engagement.

43 I believe that Postema points in this direction at the end of Salience Reasoning in his response
to criticisms, in relation to David Lewiss work, that cooperation alone is insufficient to account for
the content of all conventions (ibid. at 53-54). There, he shifts the focus from the content of the norms
themselves to the very fact of determining norms, saying in relation to the rules of games:
Determining the rules involves at least in a large part a coordination problem among potential
competitors (at 53).

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I explore the elements neglected by the pragmatist account under three headings:
Part II.A, persons and property (by far the largest section of the three); Part II.B,
requirements of legal community; and Part II.C, the sacred or mythic dimensions of
law.

[Vol. 54

A. Persons and Property

I start with a theoretical framework that, like the pragmatist account, focuses
overwhelmingly on the coordination of diverse individuals actions, is reticent in
judging questions of substantive value, and tends to evaluate law by using criteria of
practical efficacy rather than substantive justice: law and economics. This
examination will be useful for several reasons.

First, law and economics aims to provide rigorous means for coordinating
expectations and assessing efficacy in legal regulation. It articulates more precise
standards for the coordination of human interaction than do the pragmatists, who
generally appeal to coordination only in abstract terms. Even given that high level of
articulation, law and economics remains incomplete in instructive ways. That
incompleteness reveals similar limitations in the pragmatist account and suggests
precisely how and where it needs to be supplemented.

Second, the similarity in the two approaches is not haphazard: not only are both
committed to functionalist explanations that remain relatively agnostic as to questions
of substantive value, but there is a significant intersection in their theoretical
resources. In particular, both Fuller and Postema appeal to game theory and related
heuristic tools.44

Third, law and economics scholars have specifically addressed the question of
indigenous landholding. An examination of how they have done so not only reveals
the normative assumptions built into an approach that ostensibly focuses on
coordination aloneand thereby creates space for alternative accounts based on very
different assumptionsbut it also helps establish that functionalist explanations of all
kinds, including the pragmatist account, tend to provide only the most approximate
explanations for why law takes the forms it does. A purely functionalist analysis may
stipulate outer limits to the possibilities of legal form. It may state conditioning
factors. But it leaves unexamined much of what determines the content of legal
regulation. Many functionalist accounts smuggle in that additional content, encasing
it in the accounts assumptions about the structure of human interaction. We will
observe this smuggling in law and economics. One of the primary purposes of this
paper is to reveal that additional content, incorporating it expressly into a theory of
customary law.

44 See e.g. Gerald J. Postema, Coordination and Convention at the Foundations of Law (1982) 11

J. Legal Stud. 165; Postema, Conventions, supra note 24; Postema, Salience Reasoning, ibid.

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To begin, in law and economics, the market is ostensibly used to secure the
coordination of individuals diverse aims in a manner that does not prejudge
questions of substantive value. These questions are left, ideally, to the participants
own choices. But that agnosticism as to value can only go so far. For one thing, the
very structure of law and economics manifests greater commitment to substantive
ends than is initially apparent. This valuation plays a crucial role in the choice of the
market itself as a mechanism for reconciling disagreements. Moreover, it becomes
indispensable when true markets do not exist and the theorist has to predict what an
equivalent outcome would be, as is often the case in the economic analysis of law. In
the hands of Richard Posner and many other law and economics scholars, the
foundational value is wealth maximization.45 For Michael Trebilcock it is individual
autonomy.46 What is more, all the best practitioners of law and economics
acknowledge that whatever the basis for the commitment to markets, law and
economics can only provide an incomplete theory of law. They freely acknowledge
that competing principles, founded on different conceptions of substantive value,
have to be part of a full theory.47

This incompleteness is often conceived in terms that suggest that the norms
shaping the market have to be balanced against other values. An example would be
the debate over the commodification of human body parts, which is generally
discussed as though it were about constraining the pursuit of wealth in order to
protect the sanctity of the human body.48 But law and economics is incomplete in a
more foundational sense. It is not just that market mechanisms need to be balanced
against other principlesas though a system of law could work on market principles
alone, but in a rudimentary and impoverished way. Rather, those very mechanisms
presuppose a definition of agents and entitlements that the principles sustaining the
market take for granted.

Law and economics focuses, overwhelmingly, on how agents deploy their
property. Its natural focus is transactional, as is evident in the prominence of supply
and demand curves in its textbooks and the very use of markets as the theorys
principal analytical tool. It has much less to say about who counts as an agent or the
particular structure of agents property rights.49 But any market-based system of law

45 This is apparent throughout his leading textbook: Richard A. Posner, Economic Analysis of Law,

46 Michael J. Trebilcock, The Limits of Freedom of Contract (Cambridge: Harvard University Press,

6th ed. (New York: Aspen, 2003).

1993) at 8-9.

47 Posner, Economic Analysis of Law, supra note 45 at 11-15, 24-25, 27-28; Trebilcock, ibid. at 248.
48 See e.g. Trebilcock, ibid. at 23-57; Margaret Jane Radin, Market-Inalienability (1987) 100

Harvard L. Rev. 1849.

49 For arguments that complement those presented here, see Frank I. Michelman, Ethics,
Economics, and the Law of Property in J. Roland Pennock & John W. Chapman, eds., Ethics,
Economics, and the Law: Nomos XXIV (New York: New York University Press, 1982) 3. See also
Robert C. Ellickson, Property in Land (1993) 102 Yale L.J. 1315 at 1326, n. 34 (where he states
three foundational entitlements that underlie his analysis of economic efficiency), 1344-62 (where

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has to be founded on a reasonably determinate conception of those matters. It has to
identify who participates in markets, what resources they control, and what precisely
control consists of. Those conceptions make up the bulk of what are called (in the
civil law tradition) the law of persons and the law of property. They provide the
necessary elements out of which markets are created. Built into those elements are
normative assumptions that go well beyond the simple coordination of individuals
divergent desires.

Take the example of slavery. Law and economics scholars naturally assume that
all adult human beings have legal personality and that they cannot be ownedthat
the descendants of slaves can participate in market transactions on a basis of formal
equality with all others. But of course, this is a recent development in the legal
traditions of Europe and is based on principles that go well beyond the maximization
of wealth. It is true that slavery can be analyzed in terms of market efficiency. There
is, for example, a large literature on whether slavery was an efficient mode of
production in the antebellum United States, with the consensus now being that there
were circumstances in which slavery was efficient.50 But even those debates
necessarily beg the question, Efficient for whom? and implicitly answer, For the
non-slave population. Law and economics scholars rightly foreclose such answers in
their prescriptions for todays law, and they do so because they take all people as
agents, not objects, for reasons that have nothing to do with market efficiency.51

The same might be said for other principles that define the parties to legal orders.
Slavery involves an extreme denial of civil equality, but one can apply similar
reasoning to more limited forms of inequalityfor example, the use of zoning
requirements to impose racial limitations on who can purchase property in particular
areas. Those limitations also determine the capacities of the persons that then
participate in legal transactions. Some definition of legal personality, equal or
unequal, must underlie the markets that law and economics scholars deploy. Other
dimensions of legal orders also serve to define the actors who then engage in legal
transactions. Migration and naturalization, and the regulation of the age of majority,
specify who holds various sets of rights. Family law imposes conditions on
individuals use of property. Until not very long ago it severely limited womens legal

he notes the contribution of ideology to the structure of interests in land, although he attempts to
account for ideology through individuals utility functions; I suggest elements of ideology enter
more directly into the foundation of legal categories); Duncan Kennedy, Law-and-Economics from
the Perspective of Critical Legal Studies in Newman, supra note 24, vol. 2, 465. At a broader level of
generality, see Charles Taylors argument concerning the richer substantive implications built into the
liberal commitment to individual agency: Charles Taylor, Atomism in Philosophy and the Human
Sciences: Philosophical Papers 2 (Cambridge: Cambridge University Press, 1985) 187.

50 The pioneering article is Alfred H. Conrad & John R. Meyer, The Economics of Slavery in the
Ante Bellum South (1958) 66 Journal of Political Economy 95. See also Robert William Fogel, The
Slavery Debates, 19521990: A Retrospective (Baton Rouge: Louisiana State University Press, 2003).
51 Many do so implicitly, but see Ellickson, Property in Land, supra note 49 at 1326, n. 34.
Michelman includes the ownership of ones own body, talents, and labour power within the
foundational conditions of a private property regime: Michelman, supra note 49 at 5, 20.

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personality (of course, what qualifies as a family is itself a matter of current dispute).
All of these structures embody fundamental normative choices, choices that do not
depend on considerations of wealth maximization and that must be resolved, one way
or the other, before markets can be constructed. If that seems surprising, it may be
because we have come to take the outcome of so many of these choices for granted.

The continued significance of these choices is clear if one considers one salient
contrast between indigenous and non-indigenous orders: the status of animals as
bearers of rights and obligations. The James Bay Cree norm invoked abovethat the
remains of animals must be treated with respectis premised on the assumption that
animals are persons in society with humans, that they give themselves to humans in
the hunt, and that, in return, humans incur obligations to them.52 Laws markets would
appear very different if animals formed members of the society within which laws
efficiency was calculated.
Similarly, when one turns to what one owns, one finds normative judgments

encoded in the very structure of property rights. What, for example, does one own
when one owns a tract of land?53 Although left unexamined in the great bulk of law
and economics literature, this is a non-trivial and value-laden question. Even among
market-based legal orders, the ownership of land is structured in profoundly different
ways. The common law conceives of such interests as bundles of particular rights that
can be easily disassembled. The civil law in the French tradition works with a notion
of full ownership: it presumes that the most natural relationship to the land is one of
complete dominion and treats all limited interests as temporary departures from that
state. Different legal systems conceive of the physical and temporal boundaries to
rights in land differently, some excluding mineral rights, some treating rights over
water or airspace separately from rights over land, some allowing people to own
highly artificial bundles of rights with respect to apartments (condominiums), some
allowing ownership to apply to limited periods of time, recurring year over year
(time-sharing). The precise way in which one resolves these issues reflects the
conception of ownerships social role and understandings about human beings
relationship to the resources in their environment. But what is true of all of the
solutions is that the structure of the interests is not merely left up to individuals; it is
to some extent written into the structure of the law itself.
Now, law and economics scholars do subject these interests to judgments of
efficiency. Like most, Posner presumes that absolute rights of ownership are the most
economically efficient, at least in situations of low transaction costs where markets
can operate effectively.54 This supposed efficiency was indeed a crucial reason for the
abolition of feudal tenures in early nineteenth-century Europe and North America (or,
in the common law, the evisceration of such tenures). Absolute rights of ownership

52 See infra note 60.
53 See Michelman, supra note 49 at 8-20.
54 Posner, Economic Analysis of Law, supra note 45 at 55, 71ff.

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were created precisely to permit the development of land free from the constraints of
competing interests.55 But how does the presumption of absolute rights fit with the
division of ownership into increasingly complex regimes such as condominium or
time-sharing, or the creation of finely divided property rights to permit the
commercialization of highly specific aspects of things? Multiple rights have been
recreated in these regimes, so that once again the ability to reconfigure or alienate
things is constrained, often with the support of law and economics scholars (and of
course, the very notion of what constitutes a thing is far from obvious56).

The fact is that when applied to the structure of rights, the interests of efficiency
are frequently ambiguous. This problem is general, especially because the boundaries
of rights often have to serve for an undefined but large number of potential uses, and
therefore form at best a compromise among various efficiency claims.57 The
ambiguity is more pervasive than much of law and economics scholarship suggests.58
As a result, the definition of things tends to precede, not follow, the analysis, and
considerations other than efficiency shape to an important degree scholars
conception of the way in which rights over things ought to be structured.

This implicit structure is clear when one looks at indigenous rights to land, which
are often based on very different principles concerning relationships between human
beings, the land, and resourcesprinciples that shape how life on the land is
regulated. There is, in fact, considerable discussion of indigenous rights to land in the

55 Ibid. at 75. See also Brian Young, In Its Corporate Capacity: The Seminary of Montreal as a
Business Institution, 18161876 (Montreal: McGill-Queens University Press, 1986) at xiii-xvii
(describing how the aim of permitting the more effective commercialization of land was a reason for
the abolition of seigneurial tenures in Quebec).

56 Michelman, supra note 49 at 9.
57 See Ellickson, Property in Land, supra note 49 at 1332-34. He discusses physical boundaries to

land, but the same reasoning would apply to any delineation of the extent of a right.

58 But note Posners own recognition of the ambiguity: Posner, Economic Analysis of Law, supra
note 45 at 75-76. See also Trebilcock, supra note 46 at 20. David Sugarman has explored the
implications of the fact that English law, in the heartland of economic transformation, took a decidedly
non-rationalized form: David Sugarman & G.R. Rubin, Towards a New History of Law and Material
Society in England, 17501914 in G.R. Rubin & David Sugarman, eds., Law, Economy and Society,
17501914: Essays in the History of English Law (Abingdon, U.K.: Professional Books, 1984) 1 at
24ff.; David Sugarman, In the Spirit of Weber: Law, Modernity and The Peculiarities of the
English in Claes Peterson, ed., History and European Private Law: Development of Common
Methods and Principles (Stockholm: Olin Foundation, 1997) 217 [Sugarman, In the Spirit of
Weber]. Ellickson recognizes the challenges, but tends to resolve them through a theoretical
presumption (not an empirical demonstration) that additional boundaries will be determined on the
basis of transaction costs and incentives for wealth creation (Ellickson, Property in Land, ibid. at
1362-71)in the terms he uses when dealing with the separation of airspace and mineral rights from
land ownership: only in circumstances in which the creation of another layer of ownership interests
promises to generate benefits of greater magnitude (at 1364). Michelman makes restraints on the
decomposition of property interests (discussed in a different but complementary fashion to the
discussion in this paper) the centrepiece of his trenchant critique of the idea that efficiency
considerations alone are sufficient to determine a property rights regime (supra note 49 at 8ff.).

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law and economics literature. Many of those discussions focus on the emergence of
property rights against a backdrop of common property. They elaborate a theme of the
tragedy of the commons, in which the absence of property rights in indigenous
societies leads to the overexploitation of resources and individual rights of ownership
are then developed to institute an economically efficient pattern of use.59 These
discussions are not, however, all they seem.

First, their high abstraction becomes clear when one realizes that they discuss the
emergence of property rights not against a backdrop of the complex rights held by
families, clans, or kinship groups in actual indigenous societies, but against the
assumption of an unregulated free-for-all. Common property, in the canonical law
and economics accounts, consists of utterly unregulated resources of which anyone
can avail themselves at will. But this is not an accurate description of any North
American indigenous society, at least none for which we have any evidence. Those
societies all had and generally still have sophisticated rules for the harvesting of
resources. Thus, while new land-use regimes may have displaced prior ones, often
complex and well-elaborated ones, they did not simply crystallize out of a
propertyless state of nature.
Consider, for example, the detailed regulation of resource exploitation among the

James Bay Cree. The James Bay Cree are a subarctic people, living in a region that
can support only a modest population across a vast area. Hunting groups would move
extensive distances seasonally in order to harvest particular resources. The Cree
would, and to a large extent still do, divide into smaller groupsoften of about four
familiesto hunt game for much of the year. They would coalesce into larger
congregations at other times, especially for the goose hunts.
Yet the lands and animals of the Cree lands are subject to a complex regime of
regulation. In recent times, this regime was (and indeed is) constructed around the
hunting territories used by particular hunting groups. Each territory (of vast extent
an average of 1302 square miles in the northern reaches of the Mistassini nations
territories, an average of 300 to 550 square miles further south60) is under the
stewardship of a group leader who manages the harvesting of game. The consensus of
recent anthropological opinion is that these territories build upon the regulation of
hunting in the pre-contact period. They are primarily concerned with managing
wildlife and maintaining relations among the Cree, not directly with controlling land.
The description of the territories is therefore geared to the demands of harvesting
game; their definition tends to be vague around the edges. The composition of

59 See the foundational accounts: Garrett Hardin, The Tragedy of the Commons (1968) 162
Science 1243 at 1244; Harold Demsetz, Toward a Theory of Property Rights (1967) 57 American
Economic Review 347 at 351-53 [Demsetz, Property Rights]; Vernon L. Smith, The Primitive
Hunter Culture, Pleistocene Extinction, and the Rise of Agriculture (1975) 83 Journal of Political
Economy 727.

60 Adrian Tanner, Bringing Home Animals: Religious Ideology and Mode of Production of the
Mistassini Cree Hunters (New York: St. Martin Press, 1979) at 41 [Tanner, Bringing Home Animals].

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hunting groups is varied from time to time in response to local scarcity of game, the
need of a hunting group to rest its land, or more personal factors. On the territories,
different wildlife resources are subject to different controls: hunting for furs is
confined to the hunting group that holds the territory, subsistence resources are
available to groups passing through. There are highly detailed ethical and ritual
injunctions to be followed in hunting and in dealing with animals remains.61 One sees
then, among the James Bay Cree, complex principles for the regulation of land and
wildlife. The situation is a far cry from the unregulated free-for-all of the tragedy of
the commons, sufficiently far that it undermines the complacent assumptions
underlying that story. Indeed, there are instructive analogies between Cree interests in
land and traditional common law interests, although the interests are conceived in
substantially different terms.62
Martin J. Bailey, in one of the most careful and original studies of indigenous
property rights in the law and economics literature, recognizes the existence of strong
mechanisms for regulating even collectively held resources. As a result, he treats
family-held property, even property held by an extended family, as private property
(and he suggests that property owned by a large lineage group might also be

61 For discussions of James Bay Cree hunting territories and regulation of hunting practices, see
ibid.; Cree Trappers Association Committee of Chisasibi, Cree Trappers Speak (Chisasibi, Qc.: James
Bay Cree Cultural Education Centre, 1989); Adrian Tanner, The New Hunting Territory Debate: An
Introduction to Some Unresolved Issues (1986) 28 Anthropologica (N.S.) 19; Toby Morantz,
Historical Perspectives on Family Hunting Territories in Eastern James Bay (1986) 28
Anthropologica (N.S.) 64; Feit, Hunting, supra note 36; Harvey A. Feit, Waswanipi Cree
Management of Land and Wildlife: Cree Ethno-Ecology Revisited in Bruce Alden Cox, ed., Native
People, Native Lands: Canadian Indians, Inuit and Mtis (Ottawa: Carleton University Press, 1988)
75; Colin Scott, Science for the West, Myth for the Rest?: The Case of James Bay Cree Knowledge
Construction in Laura Nader, ed., Naked Science: Anthropological Inquiry into Boundaries, Power,
and Knowledge (New York: Routledge, 1996) 69 at 81-84 [Scott, Science and Myth]; Harvey A.
Feit, Myths of the Ecological Whitemen: Histories, Science, and Rights in North AmericanNative
American Relations in Michael E. Harkin & David Rich Lewis, eds., Native Americans and the
Environment: Perspectives on the Ecological Indian (Lincoln, Neb.: University of Nebraska Press,
2007) 52; Fikret Berkes, Sacred Ecology, 2d ed. (New York: Routledge, 2008) at 97-115. See also
Brightman, supra note 36 (regarding the obligations that the Cree societies west of James Bay owed to
animals, although Brightman takes the position that in the areas with which he is concerned, territorial
regulation emerged as a result of game scarcity following the introduction of the fur trade).

Tanner describes the way in which beaver dens were husbanded, including the taking of more
than the annual production of the dens in northern areas and the rotation of visits to allow dens
multiple years to recover, as the most efficient way of using resources dispersed over a vast territory
(Bringing Home Animals, ibid. at 144-45, 191). It is ironicand a sign of the abstract nature of the
discussion of these issues in much of the law and economics literaturethat the exploitation of beaver
is one of the examples used by Posner for the dangers of uncontrolled resource use. Posner notes that
it is hard to imagine a feasible scheme for giving the hunter who decided to spare the mother beaver a
property right in her unborn litter (Posner, Economic Analysis of Law, supra note 45 at 35). The
James Bay Cree (and, I suspect, other groups) have long had just such schemes.

62 See Michael Asch, Wildlife: Defining the Animals, the Dene Hunt and the Settlement of

Aboriginal Rights Claims (1989) 15 Can. Pub. Poly 205.

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considered private).63 Even with that expansive definition of private property, he
argues that what remains as common property is often optimally allocated when
held in common.64 The realization that property held by collectivities, even very large
ones, might still operate efficiently allows exceptionally wide latitude for different
ways of structuring both who owns the right and what can be owned and to what
extentall within the constraints of an economically viable social order, as Bailey
acknowledges.65 This latitude suggests that, far from being an important determinant
of the structure of economic interests, economic efficiency plays merely a
conditioning role, with the structure being determined by other considerations.

The story generally told by law and economics scholars about the emergence of
private property is best considered a myth of the emergence of economic manakin
to the political myth of the establishment of organized societies through social
contractrather than a plausible ethnohistorical account. The accounts of the rights
emergence are not grounded in observation. They are projected back upon an
imagined evolution of human resource use from free-for-all to private property. This
evolution is structured by a predetermined story of progression from primitive to
more advanced societies where the measure of advancement is precisely the
emergence of private property rights.66 My point is not that indigenous societies were

63 Martin J. Bailey, Approximate Optimality of Aboriginal Property Rights (1992) 35 J.L. &
Econ. 183 at 192. See also the gradations of forms of property ownership in Ellickson, Property in
Land and his discussion of the different circumstances in which those various forms might be
efficient (supra note 49 at 1322ff).

64 Bailey, ibid.
65 Ibid. at 194, 195.
66 See Demsetz, Property Rights, supra note 59 at 351-53; Harold Demsetz, Toward a Theory of
Property Rights II: The Competition between Private and Collective Ownership (2002) 31 J. Legal
Stud. S653 at S666-67; Smith, supra note 59 (Smith recognizes that mechanisms for regulating
resource use have been used extensively and ingeniously by primitive peoples, but he notes that
such evidence is recent and concludes, there appears to be no evidence to suppose that Paleolithic
practices exhibited such sophistication at 742although of course there is also no evidence to the
contrary); D. Bruce Johnsen, The Formation and Protection of Property Rights among the Southern
Kwakiutl Indians (1986) 15 J. Legal Stud. 41 (Johnsen does question whether the Southern Kwakiutl
should be considered primitive, given their possession of what he considers to be private property
(at 66)); Posner, Economic Analysis of Law, supra note 45 at 34 (referring to the works of Smith and
Johnsen just cited). In his 1967 article, Demsetz cited a single anthropological study by Eleanor
Leacock that had found that property rights emerged among the Montagne of Quebec (it is in fact
the Montagnais) only following the introduction of the fur trade. But Demsetzs account presents
the conclusions of that study in highly simplified terms. Leacock had made clear that resource use was
regulated prior to the fur trade, though not through private ownership (and her study has itself been
criticized for using a too-simple dichotomy of private and communal ownership). See Eleanor
Leacock, The Montagnais Hunting Territory and the Fur Trade, American Anthropological
Association Memoir No. 78 (Menasha, Wis.: American Anthropological Association, 1954). See
generally the special issue, (1986) 28 Anthropologica (N.S.), edited by Charles A. Bishop and Toby
Morantz, on the topic Who Owns the Beaver?: Northern Algonquian Land Tenure Reconsidered. In
his 2002 article, Demsetz repeats his claim, this time in entirely abstract terms, without reference to

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infallible stewards of their resources, always regulating resources so as to avoid
overexploitation. Like any other society, indigenous peoples could exhaust a resource
as a result of miscalculation, the discovery of a destabilizing new technology, ruinous
competition with other groups, or pressures caused by resource commercialization or
population displacement following European settlement. My point is rather that a
wide range of structures for regulating resources appears to be consistent with
sustained economic activity over time.

In fact, in their accounts of the potential efficiency of various structures of
property rights, law and economics scholars often appear to proceed post hoc. The
economic analysis does not so much explain the configuration of the rights as take
that configuration as its starting point, and then seek to describe how rights of that
kind might be compatible with efficiency.67 The efficiency analysis is read back
across rights that are, in effect, taken as given. This approach can be valuable. It can,
for example, reveal the effectiveness of unfamiliar legal formsforms that might
otherwise be discounted simply because they are unfamiliar. But one should not
reverse the direction of inference so that one presumes that efficiency requires a
single model for all human societies.
In law and economics, economic efficiency is often treated, at least implicitly, as

though it were a sufficient determinant of law. No one doubts that efficiency is a
consideration and that any legal order that profoundly impaired a society from
sustaining itself would have great difficulty surviving. But it may well be that
economic efficiency serves more as a limiting set of parametersor better, a set of
conditioning factorsthan anything approaching a complete determinant. If that is
the better description, then a wide range of possible legal forms may be compatible
with economic success, and, within that range, the particular form of a societys law

any intervening research. For a similar criticism of the absence of an evidentiary foundation for much
of the economic literature on the development of ownership rights, as well as an indication of the
pitfalls to which this has led, see especially Ellickson, Property in Land, supra note 49 at 1398-99.
However, at 1365-66 Ellickson relies upon a similar fable about the emergence of private property
rights out of a primordial soup (his term) of individual families attempts to defend their own
particular plots.

67 For an example in this area, see Richard A. Posner, A Theory of Primitive Society, with Special
Reference to Law (1980) 23 J.L. & Econ. 1. Ellickson criticizes a similar tendency in functionalist
anthropology: Ellickson, Order without Law, supra note 7 at 150. Retrospective explanation is
arguably true of much law and economics scholarship, not merely that dealing with indigenous legal
orders. See, for example, Posners discussion of why property rights in land, but not copyright, tend to
be perpetual. The discussion reads essentially like an attempt to rationalize what exists: Posner,
Economic Analysis of Law, ibid. at 41. Ellicksons approach is different, in a way that potentially
permits one to learn alternative modes of organizing for efficiency from the study of unfamiliar
patterns of social organization. He starts from a presumption that land rules within a close-knit group
evolve so as to minimize its members costs, and then examines those rules to see the circumstances
in which that might be the case (Property in Land, ibid. at 1320). However, Ellicksons approach
can lead him too into complacency about the ostensible inevitability of the fee simple and its
idiosyncratic modifications (at 1368-75).

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may be determined by considerations that have nothing to do with economic
efficiency.68
Now to return to the pragmatist account of customary law. Here too, the primary
role of law is taken to be coordination. Law is shaped by the practices within a
particular society and exists to facilitate those practices. The pragmatist account does
not require that coordination occur through markets, nor that coordination be shaped
by a commitment either to individual autonomy or to wealth maximization. It is open,
then, to a much wider range of ways of coordinating human action than is law and
economics. But this account continues to emphasize a pragmatic test for law: does
law serve to foster communication and coordination among members of society, such
that their mutual cooperation is facilitated? This question underspecifies law in a
manner very similar to what we have just seen in law and economics. It runs the risk
of collapsing into a tautologylaws exist, therefore they coordinate human action
when in fact coordination does virtually no work in explaining how a legal order
relates to the practices of a particular society.

In any society, coordination has to occur in some determinate way. The full
specification of the mode of coordination in that society will necessarily involve a
richer set of normative principles than is captured by a bare commitment to
coordination. Coordination captures the aspiration to order but says virtually nothing
about the terms on which order is to be achievedto take the examples discussed in
this section: who counts as a person for the purposes of legal relations, or what are the
forms through which things can be held and deployed. In those terms, an additional
array of normative considerations will be operative. These considerations are an
equally fundamental dimension of any legal order and are generally of more
relevance than coordination in any particular application of the law. To adopt a
linguistic analogy that will be developed further in this paper (and that builds upon
the analogy to language that was so important to Fuller): these distinctive terms
constitute the grammar through which the particular legal order achieves social
coordination; they constitute the grammar which any participant in the order has to
employ.69

It is essential that every legal order have such a determinate language through
which coordination is achieved, not that this language be the same for all legal orders.
The foundational categories of the grammar can differ profoundly in different legal
orders. This difference was the essential message of Clifford Geertz in his immensely
influential paper, Local Knowledge: Fact and Law in Comparative Perspective.70

68 See Marshall Sahlins, Culture and Practical Reason (Chicago: University of Chicago Press,

1976); Brightman, supra note 36 at 324ff (drawing on the work of Sahlins).

69 Fuller, Human Interaction, supra note 1 at 2-3.
70 In Local Knowledge: Further Essays in Interpretive Anthropology (New York: Basic Books,
1983) 167. In the specific context of ownership across indigenous/non-indigenous conceptions, see
also Bradley Bryan, Property as Ontology: On Aboriginal and English Understandings of
Ownership (2000) 13 Can. J.L. & Jur. 3.

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The understanding of what constitutes a fact and what constitutes a law, who are
legally relevant agents, what are their intrinsic relations, how they are located within
the natural world, what types of relations are written into that world, perhaps even
what counts as orderare all structured, at least in some considerable measure, by
presuppositions that are not derivable from the aspiration to order itself. These
presuppositions are built into the terms that people bring to the very effort to
coordinate their actions.
As an example, consider the array of kinship regimes that exist in all societies.
These regimes determine people to whom one is related and whom one can marry,
sometimes introducing distinctions that are entirely foreign to non-members. Among
the Anishinabek of northern Ontario and Manitoba, for example, one refers to ones
parallel cousins (the children of the male siblings of ones father, or the children of
the female siblings of ones motheralthough in each case, one needs to use the
expanded notion of sibling that results from this system of kinship) as ones
brothers and sisters, who then fall within the incest taboo. In contrast, ones cross
cousins (the children of the female siblings of ones father, or the children of the male
siblings of ones mother) are not siblings and thus are potential marriage partners.71
Kinship rules control marriage and norms of social interaction, familial
obligation, patterns of inheritance, often the structure of political authority within a
people, and often also shape diplomatic relations between one people and
neighbouring ones. Undeniably, they play a coordinating role. One set of explanations
in anthropology has emphasized this role, attempting to account for the practices in
functionalist terms by noting that kinship rules build alliances and promote genetic
diversity. But these explanations alone are unable to produce the great variety of
kinship systems, a variety engrained in characteristics of the systems that matter
deeply to their adherents and that concretely shape their relations. It may be that some
general, structural distinctions (the existence of some sort of incest taboo, for
example) respond to features of human reproduction and interaction that are
challenges for all human societies. But the ways in which these relations are defined
in practice are remarkable in their variety. Those differences encode different visions
of human relationships. The best discussions of kinship in the anthropological
literature take that substantive content seriously, exploring the webs of meaning
through which familial relations are defined and organized.
In his explication of salience reasoning (the form of intersubjective, analogical

reasoning that underlies the emergence of conventions), Postema argues that a
conceptually sophisticated, but often transparent, deliberative framework gives
distinctive form to agents common normative reasoning. This framework
is defined by a conceptual template and associated attitudes that together shape
deliberation by relating deliberators and their decisions to the deliberations and

71 See A. Irving Hallowell, The Ojibwa of Berens River, Manitoba: Ethnography into History (Fort

Worth, Tex.: Harcourt Brace College, 1992) at 52-57.

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decisions of others and to the outcomes of their individual and concerted
actions. These deliberative perspectives or frameworks do not figure in the
content of desires, goals, or principles of choice, but rather structure and delimit
the deliberative domain in which such factors are used by agents to arrive at
rationally grounded decisions. They provide the basic materials agents need (1)
to conceptualize their practical environment, (2) to analyze the particular
problem of choice and action they face, colored by the desires, aims, goals, and
values to which they are committed, and (3) to survey feasible solutions.72

Postema describes this framework by identifying six features that relate to collective
agency, the form of participants intentions, and their reliance upon a common stock
of knowledge. His description is illuminating in its exploration of structural features
of collective moral reasoning but it remains abstract and formal. I am suggesting that
the very language that participants use to conceptualize and analyzethe very
concepts they employ to conceive of normative challengeshave particular
normative dispositions inscribed into them. These dispositions shape participants
deliberations and, alongside participants reflections on the stock of common
experience, account for the salience of potential solutions.73

In a backhanded way, Fuller demonstrates that rich normative content is built into
the very legal categories through which social coordination is achieved. In his
writings on the rule of law, he sets out a number of principles that he argues are
inherent, at least as dispositions, in all legal systems; they constitute an inner
morality of law.74

The content has a distinctly liberal individualist cast. It is premised on the
expectation that law consists largely of a set of explicit rules intended to allow self-
directing individuals to organize their activities in a manner that coordinates with the
activities of others75 (as opposed, for example, to norms communicated in narrative
form, or that are focused primarily on activities conducted fundamentally in concert).
Fullers account is also, like most accounts, idealized: it does not discuss differences
of resources or of social position that substantially affect individuals ability to be
self-directing, or how different systems of property rights may foster or discourage
these inequalities. Fuller treats the content he identifies as though it were inherent in
the very idea of law. But surely the existence of quite different ways of ordering
societies suggests that this is not sosuggests, in other words, that Fuller was
unpacking the implications of a particular legal tradition and generalizing them.
Paying attention to other traditions may reveal that richer substantive choices are built

72 Postema, Salience Reasoning, supra note 24 at 46.
73 Postema comes closer to what I mean when he says in his discussion of jazz: The shared musical
culture gives shape to otherwise shapeless lines; it offers inspiration and resources for innovation, and
contexts for anticipating the moves, often innovative ones, of the ensemble partners (ibid. at 49).

74 Lon L. Fuller, The Morality of Law, rev. ed. (New Haven: Yale University Press, 1969) at 33-94

75 See also Fuller, Human Interaction, supra note 1 at 24-25; Postema, Implicit Law, supra note

[Fuller, Morality].

3 at 369-73.

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into Western legal orders than we generally perceivechoices that are rendered
invisible if we treat law simply as a means of coordination for individual actors. It
may also reveal alternative forms of social ordering from which non-indigenous
institutions might learn.
Now, by emphasizing that such differences exist, I do not mean to suggest that
they are usefully analyzed in a simple dichotomy between individualist and
collectivist orientations. Every legal order is addressed to people who are in very
significant ways self-directing. Every society wrestles with the dual nature of persons
both as members of a community and as actors in their own right and resolves that
tension in a manner that gives some rein to both. One conclusion that can be drawn
from the foregoing discussion of law and economics, for example, is that in liberal
societies such questions as who counts as an agent, or what are the structures through
which persons can have rights over things, are in effect determined at a collective
level; they are not subject to the unencumbered choices of individuals.76 Indigenous
societies may answer these questions very differently. They may conceive of persons
relations to the land differently (for example, building a notion of stewardship, of
responsibility, into indissoluble unity with notions of ownership). They may conceive
of those who possess rights differently (perhaps privileging units based on kinship,
although note that family property laws in many Western countries also do this to
some extent). It would be a serious error to presume that the result is necessarily less
respectful of individuality simply because it differs from Western legal orders. The
differences in structure may form such a complex geography that it is not possible to
arrange them on a spectrum from individualist to collectivist.77

B. The Requirements of Legal Community
The error of such a presumption becomes clear when we look at the next

neglected dimension of customary law. Those of us who live under Western legal
orders tend to assume that, to have a legal order at all, there have to be authoritative
ways of resolving disputes, with the solution then being imposed on the parties. Even
theories that de-emphasize enforcement tend still to emphasize that norms have to be
authoritatively determined.78 Thus, although Western legal orders may permit a wide

76 Michelman, supra note 49.
77 In addition to the example given in the next section of the text, see Jeremy Webber, Individuality,
Equality and Difference: Justifications for a Parallel System of Aboriginal Justice in Royal
Commission on Aboriginal Peoples, ed., Aboriginal Peoples and the Justice System: Report of the
National Round Table on Aboriginal Justice Issues (Ottawa: Royal Commission on Aboriginal
Peoples, 1993) 133 [Webber, Individuality].

78 Indeed I have done so myself: Webber, Naturalism and Agency, supra note 10. But note that
this takes for granted the continued existence of a single legal order. An effective mechanism for the
specification of norms is a precondition of that continuation. It is precisely that assumption of
continued existence that a number of indigenous orders diminish by expressly contemplating
secession.

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sphere of individual autonomy, that autonomy occurs within a normative framework
that is subject to centralized determination so that, from the point of view of any
individual participant, the legal order is fixed by a mechanism independent of his or
her will. Indeed, the existence of such an externally determined orderclear, certain,
and enforcedis often taken to be the precondition of individual freedom.

The situation is very different in many indigenous orders. When colonists
encountered indigenous societies in North America, they were often struck by the
extent of individual autonomy in those societies. It was amazing to them that such
polities could survive at a time when European societies tended to be hierarchical,
authoritarian, and draconian.79 Among many North American indigenous peoples the
respect for autonomy extends to the very interpretation of societys norms. There is
great reluctance to impose a particular interpretation of the law either on any member
(in some societies) or on someone of high rank (when the society is hierarchically
ordered). Such an imposition is considered deeply incompatible with the persons
dignity. Indeed, this respect for a persons moral autonomy may contribute to the
prevalence of banishment as a punishment in many indigenous societies: rather than
forcing compliance, the community treats offenders as having, by their conduct,
placed themselves outside society.

But how can such orders function? For one thing, they tend to rely heavily on
deliberation, diplomacy, and mediation. Norms are determined through discussion
designed to promote the emergence of consensus without loss of face on the part of
any participant. In a wonderful paper, Val Napoleon has described the functioning of
a feast in resolving a controversy among the Gitxsan of northern British Columbia.80
That feast had been called by one chief as part of the raising of a totem pole carrying
a disputed crest. A chief from another village claimed that the crest was his and
denied the right of the first chief to use it. In the dispute, the chiefs of clans related to
those of the disputing chiefs (in a specific manner prescribed by Gitxsan law) played
a mediating role, and the aggrieved chief himself stayed away from the feast and the

79 See e.g. Eleanor Leacock, Ethnohistorical Investigation of Egalitarian Politics in Eastern North
America in Elisabeth Tooker, ed., The Development of Political Organization in Native North
America: 1979 Proceedings of the American Ethnological Society (Washington: American
Ethnological Society, 1983) 17; Richard White, The Middle Ground: Indians, Empires, and Republics
in the Great Lakes Region, 16501815 (Cambridge: Cambridge University Press, 1991) at 56ff; Alan
Taylor, The Divided Ground: Indians, Settlers, and the Northern Borderland of the American
Revolution (New York: Vintage, 2006) at 18-22. These are only three examples among a very large
literature.

80 Val Napoleon, Living Together: Gitksan Legal Reasoning as a Foundation for Consent in
Jeremy Webber & Colin Macleod, eds., Between Consenting Peoples: Political Community and the
Meaning of Consent (Vancouver: University of British Columbia Press) [forthcoming in 2010]. See
also the excellent discussion of the same events in Richard Overstall, Encountering the Spirit in the
Land: Property in a Kinship-Based Legal Order in John McLaren, A.R. Buck & Nancy E. Wright,
eds., Despotic Dominion: Property Rights in British Settler Societies (Vancouver: University of British
Columbia Press, 2005) 22 at 42-44.

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pole-raising both to indicate his displeasure and to avoid open conflict (although his
allies did attend). At the feast itself, those in attendance (importantly including chiefs
not directly allied to the disputants), through a series of speeches, recounted histories,
juxtaposed those histories, supplemented, corrected, and stated their approval for
them, until gradually a salient position began to emerge. The aggrieved chief was
treated with honour in other ceremonies at the time of the pole-raising, ensuring that
the dispute remained limited to the issue of the crest alone. The aggrieved chiefs
allies discussed the proceedings of the feast with him, assured him of their support,
noted the damaging consequences of continued conflict, but then left the decision of
whether to acquiesce in the emergent solution to him. Ultimately he did.

This mode of decision making depends directly on the cost of withdrawal from
the orderor, to put it positively, on the parties willingness to continue to live
togetheras the principal inducement to secure compliance with the societys law.
Within broad but significant limits, in virtually any order, participants have a
substantial interest in acquiescing to the orders norms in order to obtain the benefits
of social cooperation, even if those norms are not exactly what they would wish. In
non-indigenous societies, this interest has been overlain by the structure of the state,
which uses coercive authority to maintain the societys norms and boundaries. In
contrast, indigenous societies have tended to be much more willing to tolerate
continued disagreement among leaders with respect to the societys laws, they have
often relied upon the withholding of cooperation rather than compulsion as a
principal sanction, and they have also generally been more willing to accept the
withdrawal of a dissenting section from the community rather than require
compliance.81 As a result, reconfigurations of indigenous societies do occur, although
they are rare because of the significant costs incurred when one goes it alone.
Moreover, when reconfigurations do happen, generally they are partial, with many
ties maintained. The result is a system that comes much closer to being self-enforcing,
founded, at least apparently, on voluntary adherence.

Now, this does mean that indigenous societies also tend to be small-scale,
structured around complex relations among membersrelations often conceived
largely in terms of kinship. The exercise of authority within those societies does not
have the impersonal, formal character that one associates with the liberal state. Even
here, however, the situation is not quite as clear as it may appear. Kinship relations
are more than just familial relations. They establish structures of membership and
obligation that extend well beyond ones close family. They can extend over great
distances to people one has never met and can even bind one to members of

81 Overstall describes the situation among the Gitxsan as follows: Laws are not policed; instead,
there is a withdrawal of support from the person or group taking the illegal action. Those who
continue to offend established laws and morality eventually erode their authority and the daxgyet [the
power deriving from the peoples relationship to the land] of their House and wilnaatahl [a group of
related Houses or lineages] (ibid. at 35).

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neighbouring peoples.82 The kinship relations at the foundation of many indigenous
societies often seem, then, to have something of the formal, ascribed character one
associates with citizenship. Moreover, much of the law of those societies is also
conceived in terms that tend to separate it from the personal wills of the societys
current leaders. Among the Gitxsan, for example, this conception includes the
inscription of the law in ancient histories and lineages, and the sense that todays
leaders carry on responsibilities that extend well beyond their lifetimes, an
understanding reinforced by the inheritance of chiefly names and the Gitxsan belief in
reincarnation.83

I do not mean to minimize differences that exist between indigenous and non-
indigenous social organization. Of course, kinship creates a complex structure of
internal differentiation, stipulating differential rights and obligations that control such
fundamental relations as marriage. Societies based on kinship are also relatively
impervious to outsiders (although this is moderated by the possibility of adoption).
There would appear to be limits, then, to the scale of government, openness to new
members, and ability to choose ones life partner within forms of social organization
founded on kinship. Most contemporary indigenous societies have tended to loosen
or move away from strict rules of kinship, seeking to develop modes of government
that combine elements of their traditions in new ways, often joined with statelike
structures.84 My point is simply to note the possibility of customary legal orders
founded on very different premises of social organization, and to draw attention to the
particular combination of consensual adherence and embedded structure common to
many indigenous societies. The societies are not founded simply on consent, although
consensual processes do play a prominent role in the interpretation and application of
their law. Rather, they presuppose a web of relations that is largely taken as given.

82 See the example of Ojibway individuals who recognized kinship upon the identification of a
common totemic connection, even when they lived vast distances apart and had had no previous
interaction: Henry Youle Hind, Reports of Progress Together with a Preliminary and General Report,
on the Assiniboine and Saskatchewan Exploring Expedition Made under Instructions from the
Provincial Secretary, Canada (Toronto: J. Lovell, 1859) at 113, online: Early Canadiana Online
. For kinship structures that cross
what are now considered different peoples, see Overstall, ibid.

83 See Val Napoleon, Ayook: Gitksan Legal Order, Law and Legal Theory (Ph.D. thesis, University

of Victoria Faculty of Law, 2009) [unpublished] at 165-69 [Napoleon, Ayook].

84 Ibid., c. 5-6. Napoleon emphasizes the importance of kinship to social stability in Gitxsan society.
As she concludes at 149: decentralized Gitksan society, without a centralized governing or
enforcement bureaucracy, ensured compliance within its normative order through layers of implicit
and explicit authority and accountability that operated through reciprocal relationships in the kinship
system. She also describes ways in which the kinship system has been adapted to changes in Gitxsan
society, such as the increasing frequency of marriages that do not conform to established rules (at 81-
83).

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This web draws attention once again to the ways in which social ordering always
takes place using a particular language of social interaction.85 And it also emphasizes
the necessary copriority of a sense of community, which any order of consensual
decision-making, indeed any order of justice, has to presuppose.86 As Charles Taylor
has argued regarding the autonomous individual on which Western political theory is
based,

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The modern subject is … far from unmediated in fact. He may be, relative to
the local community; but he cannot be, relative to the whole society. On the
contrary, he is sustained on the one hand by the culture, which elaborates and
maintains the vocabulary of his self-understanding; and on the other by the
society in which he has a status commensurate with free subjectivity: … the
equal bearer of rights, who is producer and citizen. All this underpins my
identity as free individual, which could not long survive a state of nature.87

Indigenous peoples do not generally draw upon the same frameworks of
understanding as non-indigenous societies, although they do cherish conceptions of
human freedom. Those conceptions take form against a backdrop of social
commitment engrained in an ordered structure of society.

Comparisons across different orders of customary law allow us to see these
contrasting frames and to realize more clearly what is at stake when one frame is
forcibly imposed upon another, as settler societies have long attempted to do with
indigenous societies. They also allow us to see roles and possibilities for change that
are characteristic of non-indigenous institutions, but that are obscured by the fact that
we take those institutions for granted.

For example, in recent years considerable attention has been paid to the existence
of socially generated normative ordersto legal pluralismin non-indigenous
societies. Many approaches to such orders, it seems to me, implicitly see that
pluralism as existing within structures whose essential stability is provided by the
state. They conceive of non-state legal orders operating, in other words, within an
arena of social relations that state institutions play a large part in maintaining.88
Studying indigenous legal orders may help us understand what is necessary to sustain
truly self-sufficient, non-state legal orders. Those requirements may be something like
the tight, stabilizing web of relations provided by the structure of kinship. If kinship
relations are eroded, some other structure, perhaps adapted statelike institutions, may
have to be developed in their place.

85 See Andre Boisselle, Beyond Consent and Disagreement: Why Laws Authority Is Not Just

about Will in Webber & Macleod, supra note 80.

86 See Charles Taylor, Cross-Purposes: The Liberal-Communitarian Debate in Philosophical

Arguments (Cambridge: Harvard University Press, 1995) 181 at 187ff.

87 Charles Taylor, Legitimation Crisis? in Philosophy and the Human Sciences: Philosophical

Papers 2 (Cambridge: Cambridge University Press, 1985) 248 at 275-76.

88 This seems to me to be true, for example, of Eugen Ehrlich, Fundamental Principles of the

Sociology of Law, trans. by Walter L. Moll (New York: Arno Press, 1975).

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Studying indigenous societies may help us understand the capacity to sustain
viable polities without insisting on a highly centralized legal orderpolities that
allow for divergent understandings, permit significant normative autonomy among
subunits, and foster cohesion through practices of negotiation and consensus-
building, rather than through authoritative interpretation and imposition of a
centralized order. Recent developments in Canadian constitutional law suggest a
willingness to contemplate such features as integral to the Canadian constitutional
order, a willingness arguably shaped in part by Canadas fraught experience of treaty
relations with indigenous peoples.89

C. Sacred or Mythic Dimensions of Law

Thus far, I have tended to discuss aspects of customary law that fit reasonably
well with the view that laws purpose is to structure and control human practices. But
even a cursory acquaintance with North American indigenous orders reveals a
pervasive emphasis on the sacred, on the mythic. These elements do not fit at all well
with a purely pragmatist conception of legality.
My colleague John Borrows, for example, has begun a lecture by holding a rock
from near his home community of Neyaashiinigming, describing how the law is
inscribed in that rock.90 Val Napoleon speaks of the importance of reincarnation to the
Gitxsan legal order.91 Kiera Ladner describes the ways in which Blackfoot
governance is shaped by lessons learned by considering animal behaviour.92 As we
have seen, James Bay Cree conceive of their relations with animals in terms of a
sociality similar to that existing among humans.93 Many indigenous peoples ground

89 Consider the Supreme Court of Canadas reluctance to state definitively which branch of the
constitutional amending formula would apply to an attempt by the province of Quebec to secede;
instead, the Court interpolated an obligation to negotiate: Reference re Secession of Quebec, [1998] 2
S.C.R. 217, 161 D.L.R. (4th) 385. See also the Canadian courts preference for negotiation over
adjudication in the resolution of indigenous land claims: Jeremy Webber, Beyond Regret: Mabos
Implications for Australian Constitutionalism in Duncan Ivison, Paul Patton & Will Sanders, eds.,
Political Theory and the Rights of Indigenous Peoples (Cambridge: Cambridge University Press,
2000) 60 at 70-72 [Webber, Beyond Regret]. Compare Rod Macdonalds thought-provoking
invocation of the particle and wave theories of light in his argument for accommodating the co-
existence of competing, ostensibly incompatible, constitutional theories: Roderick A. Macdonald,
… Meech Lake to the Contrary Notwithstanding (Part I) (1991) 29 Osgoode Hall L.J. 253 at 291-92.
90 Something of the nature of this introduction can be gleaned from John Borrows, Recovering
Canada: The Resurgence of Indigenous Law (Toronto: University of Toronto Press, 2002) at 29-30.
See also John Borrows, Living Law on a Living Earth: Aboriginal Religion, Law, and the
Constitution in Richard Moon, ed., Law and Religious Pluralism in Canada (Vancouver: University
of British Columbia Press, 2008) 161 [Borrows, Living Law on a Living Earth].

91 Napoleon, Ayook, supra note 83 at 166-69.
92 Kiera L. Ladner, Governing Within an Ecological Context: Creating an AlterNative

Understanding of Blackfoot Governance (2003) 70 Studies in Political Economy 125.

93 Supra notes 36, 61.

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their law in narratives peopled with non-human beings. How then should those of us
who are not members of those societies understand this dimension of customary law,
given that we do not share the metaphysics?94
An important starting point is to realize that non-indigenous law too draws on
metaphor, myth, and narrative.95 This is certainly true of constitutional law, the area in
which I tend to work. Canadas constitutional discourse has, for example, been
shaped in important ways by the assertion that Canada has two founding peoples
(French and English) and that it was created by a compact variously defined as
between French and English, between Quebec and the rest of Canada, or between all
of the original colonies that ultimately formed Canada.96 These stories have been used
to claim that Canada has two linguistic cultures of roughly equal stature. They have
been cited to support constitutional interpretations in which provincial autonomy is
paramount.
There are, of course, other constitutional narratives that cut across these stories.

One such narrative was captured in the phrase from colony to nation, which
emphasized the progressive development of Canada toward a more perfect
nationhood. That phrase now appears archaic, but its underlying story has real staying
power.
Along with others, I was present at a remarkable after-dinner conversation
between former Prime Minister Pierre Trudeau and the Canadian political philosopher
Charles Taylor. The conversation took place in October 1994, at the Faculty Club of
McGill University. It turned on whether the Canadian constitution should have been
patriated in 1982 over the objections of the government of Quebec.

Prior to patriation, the Canadian constitution had been a statute of the British
Parliament, amendable only in Britain (although, by convention, amendments were
passed only at the request of Canada). As prime minister, Trudeau had vigorously
pushed for patriation, and in 1981 he succeeded in obtaining the agreement of the
federal government, and all provinces except Quebec, to a package that included a
charter of rights and a domestic amending formula. He then put that request to the
Government of the United Kingdom and the proposals were adopted. The making of
that request, over the objections of the government of Quebec, was (and is) a matter

94 Fuller also addressed this objection, making clear by his terms that he saw this as one of the chief
reasons that policy makers and legal theorists generally dismissed customary law in primitive
societies: Fuller, Human Interaction, supra note 1 at 6. His answer was that ritual too can serve as a
language of interaction. That doubtless is true, but, as I will argue, it dramatically underdetermines the
meaning and significance of ritual.

95 Robert Cover wrote a classic article on the role of narrative and myth in law: Robert M. Cover,
Nomos and Narrative, Forward, (1983) 97 Harv. L. Rev. 4. See also Hester Lessard, Rebecca
Johnson & Jeremy Webber, eds., Storied Communities: Narratives of Contact and Arrival in
Constituting Political Community (Vancouver: University of British Columbia Press) [forthcoming in
2010].

96 See Macdonald, supra note 89 at 284-88.

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of deep controversy in Quebec, not so much because of the content of the proposals
but because of the failure to secure Quebecs agreement. That dissatisfaction
contributed to a resurgence of the nationalist movement in Quebec.97

The conversation at the McGill Faculty Club between Trudeau and Taylor
occurred in the lead-up to the October 1995 referendum on Quebecs independence,
which came very close to succeeding. Taylor questioned Trudeau on the wisdom of
proceeding with patriation without Quebecs support. In the end he posed this
question: If patriation ultimately leads to the breakup of the country, will it have
been worth it? Trudeau thought for a moment and then replied, A country that
cannot amend its own constitution does not deserve to exist.

Trudeaus response reflects a metanarrative of what it takes to have a country. It
is not a product simply of functionalist or rationalist analysis. Such myths and
narratives do considerable work in both constitutional politics and constitutional
adjudication. The compact theory was frequently asserted in connection with the
interpretation of the Canadian constitution, and it was recently cited again to support
the position that Quebec could unilaterally secede from Canada. In the postwar
period, the idea that Canada has become a true nation, represented by the government
of Canada, has underpinned interpretations of the Canadian constitution that have
allowed an expansion of federal authority. And one could cite comparable myths in
other countries: the long influence of the idea of the ancient constitution in British
constitutionalism;98 the contest over the fundamental characterization of the United
States in the period up to and through the Civil War; and appeals to the social
contract in the constitutional discourse of many countries.

In the private law, consider, for example, the myths that underpin specific
conceptions of property: the idea that property is based on the transformation of land
through labour, or the often religiously framed conception that humanity has an
obligation to use the earth most productively. Both these myths contributed to the
refusal to recognize indigenous rights in land and have long influenced statutory and
non-statutory rules for the pre-emption of land. Myths also underlie the conception
that rights of ownership are absolute as a matter of natural law because they are
founded on the capacity to consume things, an idea that has shaped the structure of
property rights in the civil law.99 And, as we have seen, the tragedy of the commons is
best considered to be a fable about the emergence of economic man. Myths, which

97 For the story of patriation and its aftermath, see Jeremy Webber, Reimagining Canada:
Language, Culture, Community, and the Canadian Constitution (Montreal: McGill-Queens
University Press, 1994).

98 Pocock, Feudal Law, supra note 20.
99 See Jean-Marie-tienne Portalis, Address (Speech delivered upon introducing proposed
provisions on ownership for the Code civil des Franais before the Corps lgislatif, 17 January 1804),
in J.G. Locr, La Lgislation civile, commerciale et criminelle de la France (Paris: Treuttel et Wrtz,
1827) t. 8, at 146-52.

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continue to shape legal interpretation, are not confined to indigenous peoples.100 And
indeed, indigenous peoples have often been on the receiving end of European myths
of origin, not least those concerning the conditions of the state of nature.101

In non-indigenous societies, these myths now tend to be secular rather than
sacred. But one nonetheless still finds elements in the law that verge on the sacred, or
at least on a strongly charged aesthetic. This is true, for example, in the invocation of
the sanctity of the body, which shapes criminal law, the law of civil trespass,
obligations with respect to the disposal of human remains, the capacity to hold
property in human remains, and the regulation of the commercialization of body
parts. Similarly, many of the concerns of environmental law are informed by
conceptions of natural purity, beauty, wilderness, and stewardship that go beyond
purely functionalist concerns. Such fundamental aspects of the private law as legal
personality, human equality, the family, and the rights that one can exercise over land
have historically been shaped by religious and metaphysical concerns. That shaping is
less obvious today, but that may be because we share the commitments on which
todays conceptions of legal personality and property are based. Moreover, this
sacred/aesthetic dimension is not separable from the normative. It is not, for example,
merely a lens through which one might examine the law, as one might read a legal
text as though it were a literary text. The sacred/aesthetic dimension is integral to the
norms; it provides much of their content and furnishes the frame through which they
continue to be interpreted.102
One of the ways in which such myths operate is by helping to shape the
normative sensibility of those involved in applying and obeying the law. The
language of legal texts is never self-sufficient. Judgment is required to interpret and
apply them, and judgment depends upon a close understanding of the aims underlying
the rules, the considerations at play in practical situations, the ways in which the
rules aims relate to those considerations (including when situations are significantly
similar and significantly different), and the manner in which rules should be shaped
by competing rules (including the relative importance of rules, and the relationship
between the normative principles underlying the rules). These elements of judgment
are all the more important in the case of customary law where there is no canonical
expression of a rule. Instead, principles of conduct are worked out incrementally, by
reference to existing understandings of social norms and practices.
Metaphors, myths, and narratives assist this judgment by providing an
overarching framework to guide interpretation and by suggesting the relative

100 On the mixture of rational and irrational elements in the common law, see Sugarman, In the

Spirit of Weber, supra note 58.

101 See Quentin Skinner, Hobbes and Republican Liberty (Cambridge: Cambridge University Press,
2008) at 98-103; James Tully, An Approach to Political Philosophy: Locke in Contexts (Cambridge:
Cambridge University Press, 1993) at 137-76.

102 See Desmond Manderson, Songs Without Music: Aesthetic Dimensions of Law and Justice

(Berkeley: University of California Press, 2000).

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importance of norms. They can supply a range of examples of the norms in action,
furnishing models for how the norms should be applied. They often record a wide
swath of the experience of social interaction, weighed, assigned value, and ordered,
against which possible formulations of norms can be tested and refined. And they
give salience and a memorable quality to certain norms, so that those norms are
retained, internalized, and sometimes made a focus of identification and allegiance.
All legal orders, including non-indigenous ones, use metaphor, narrative, and
myth in these ways. However, note that this discussion has tended to translate the
sacred into other terms. It has domesticated the sacred by treating it simply as the
bearer of normative content or as a way of reinforcing elements of normative
judgment. The supernatural dimensionthe spirit world, the dimension that tends to
be all-important to a believerfalls out of the analysis. Surely we need to take those
metaphysical assertions seriously if we are to deal with claims of the sacred in a
manner adequate to their force and meaning for believers.

The problem is a real one, and differences of metaphysics can certainly cause
problems in interaction across normative orders. To see how seriously, consider an
argument floated by historian Keith Carlson concerning the 1906 delegation of Salish
leaders from British Columbia to King Edward VII. That delegation sought to secure
redress for a long list of grievances, and specifically sought the fulfillment of
promises said to have been made by the first governor of the colony and later by the
Governor General of Canada. The representatives toured London, met with the King,
and returned to argue that the King had given them assurances. But the problem is
that there is no independent evidence that King Edward made those promises in the
short audience he granted the delegation. Carlson wonders whether in fact the
assurances had been made, in the delegations eyes, by a much earlier King
EdwardEdward the Confessor or Edward Iwhose tombs and relics (in one case a
shrine, in the other the coronation chair then containing the Stone of Scone) the
delegation had visited in Westminster Abbey and which had greatly impressed
them.103
Now, this particular interpretation is presented as a conjecture by Carlson, but it
is undeniable that many indigenous peoples believe in the ability to communicate
with ancestral spirits, accept the existence of connections between persons alive today
and those in the past (especially those bearing the same chiefly names), believe in the
existence of spirits associated with objects non-indigenous people consider to be
inanimate, or believe that human beings are distinctively connected to particular
animals or tracts of land.104 Each of these beliefs has strong normative consequences,

103 Keith Thor Carlson, Rethinking Dialogue and History: The Kings Promise and the 1906

Aboriginal Delegation to London (2005) 16:2 Native Studies Review 1.

104 Cf. John Pococks argument that, in the case of Maori/non-Maori relations in Aotearoa/New
Zealand, part of what is in issue is the tension between a cyclical and a linear conception of time:
J.G.A. Pocock, Law, Sovereignty and History in a Divided Culture: The Case of New Zealand and
the Treaty of Waitangi (1998) 43 McGill L.J. 481.

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and it has those consequences precisely because of the metaphysical significance of
the beliefs. Moreover, in cases of cross-cultural interaction, there will be situations
where one needs to adjudicate among these beliefs, such as in Keith Carlsons
hypothesis of a promise made by an ancestral spirit, or a claim that indigenous land is
inalienable because of a peoples sacred ties to that land. How can we come to terms
with different visions of the spirit world?

I am too much a child of my own society simply to say that we should accept the
truth of these spiritual beliefs. One does no honour to deeply held beliefs if one treats
them as though their truth or falsity was of so little consequence that one can accept
any belief as true. But I do know that we have to worry over the implications of these
understandings of the world, not dismiss them out of hand.
Although there is no complete solution, precisely because there are deep
differences that divide us, we can do the following: First, we can keep in mind the
influence of mythical or metaphorical elementseven conceptions of the sacredin
non-indigenous legal orders, so that we realize that at least part of the problem is one
of divergent myths, divergent metaphysical beliefs, supporting different norms. At
least at that level, the problem continues to be one of pervasive normative diversity.
Second, we should also keep in mind that there are broader and deeply held spiritual
claims that go beyond mere metaphor, claims of great significance to believers.

Third, we should ask, then, in any particular situation, whether there is reason to
forbear, not because we accept the truth of the beliefs, but because of their
demonstrable importance to the people concerned. This is the classical foundation for
religious toleration.105 It is particularly appropriate in the indigenous/non-indigenous
context because of the impositions visited upon indigenous people as part of
colonization. The coercive nature of that encounter can lead us to misperceive and
misunderstand assertionswe can fail to attend, for example, to indigenous
understandings of the obligations of the treaties or to indigenous conceptions of
humans relationship to the landor simply to dismiss beliefs, failing to see that they
are analogous to commitments still influential within non-indigenous society. Our
actions have impeded indigenous peoples ability to develop and express their
distinctive understandings, not least by placing their languages and lands under heavy
pressure. There is reason to make space.

Fourth, it is also worth considering whether we might learn something from
indigenous understandings. This is not to denigrate our epistemological assumptions
but rather to emphasize the continual value of humility. We often treat religious
differences as though they are impervious to discussion, but Jeffrey Stout has argued
convincingly that there are ways in which genuine deliberation can occur across

105 Jeremy Webber, The Irreducibly Religious Content of Freedom of Religion in Avigail
Eisenberg, ed., Diversity and Equality: The Changing Framework of Freedom in Canada (Vancouver:
University of British Columbia Press, 2006) 178 at 191ff. A more complete version of this argument is
in preparation.

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metaphysical differences. He urges us not simply to assume that we cannot
communicate, but to try and see.106 When we do, we may find that we have access to
valuable insights that we would otherwise have missed. There is, for example, now a
substantial body of work on the insights to be drawn from indigenous knowledge in
environmental management, insights that are themselves grounded in indigenous
metaphysics, such as indigenous peoples assumption that animals are intentional
beings in society with humans.107

Fifth, we should always remember that not every difference needs to be
adjudicated: we can agree to disagree, persisting in our different conceptions of the
ways in which humans relate to animals, for example, and mediating between those
conceptions in our approach to the regulation of harvesting. That option is not always
available. It would not be available, for example, if one sought to rely squarely on the
promises of the Edwards. But that option (or partial variants of it) is available more
frequently than we tend to think. We should be alert to those possibilities.

III. The Grammar of Customary Law

I began this paper by accepting several key features of the pragmatist account: the
primacy and ubiquity of customary law; the grounding of customary law in a
particular societys practices; the process of reasoning and deliberation surrounding
the derivation of norms from those practices; and the intersubjective dimension of
that process of deliberation and interpretation, in which a social interpretation is
determined by means of social institutions.

I have not accepted, however, the pragmatists suggestion that the content of
customary law is best understood in terms of the facilitation of human interaction.
That suggestion, it seems to me, provides altogether too limited an account of the
normative content of lawso partial that it is misleading, detrimentally affecting the
other dimensions of the pragmatist account, including the way in which laws
relationship to social practices is conceived. In this final section of the paper, I wish
to offer a more adequate account.

First, it is important to give facilitation its due. By emphasizing laws role in
coordinating the actions and intentions of diverse individuals, the pragmatist account
does focus attention on laws enabling role: by settling the terms of interaction, law
establishes the preconditions for effective cooperation. It also makes clear that for that
settlement to be effective, the terms have to be socially determined and socially
validated: they have to become engrained in action, dependable standards that people

106 See Jeffrey Stout, Democracy and Tradition (Princeton: Princeton University Press, 2004) at 85-

107 See e.g. Scott, Spirit and Practical Knowledge, supra note 36; Nancy J. Turner & Fikret
Berkes, Coming to Understanding: Developing Conservation through Incremental Learning in the
Pacific Northwest (2006) 34 Human Ecology 495; Berkes, supra note 61 (especially Berkes
discussion of the differences in Cree and non-indigenous fisheries management strategies (at 139-59)).

91.

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can expect to be followed by diverse parties (parties who may have different
normative views from their own), not decrees dependent on one persons whim.
Fuller captures this social warrant of the law in his parable of the king who, in order
to secure his subjects obedience to the law, must himself act consistently with the
rules he promulgates. He thereby sets in motion a process by which the law is
separated from his will and achieves a social grounding in the interaction of members
of the society.108 The pragmatists emphasis on law as facilitating social action directs
us to this process of social determination, stresses the need for a common rule, and
insists that this common ruleprecisely because it has to coordinate the actions of
diverse partiesmust have some independence from the wills of each of those
parties. However, Fuller also emphasizes, rightly, that the common rule is continually
open to elaboration and revision as participants reflect upon their moral experience.109
All this is very important. It emphasizes laws social operation, social efficacy,
and social determination. It counters theories of law that emphasize merely the
downward operation of sovereignty, or that try to derive the content of law from
nothing more than a philosophical conception of justice.

But the emphasis on facilitation does not specify, to any significant degree, what
determines the content of law. This is because an enormous variety of potential rules
can conceivably furnish the means of social coordination. It is not the case that in
order to secure human cooperation a particular structure of norms is required, so that
one can explain the content of the law by pointing to the demands of coordination.
Many different forms of lawdifferent definitions of legal agency, different
conceptions of property, different understandings of obligation and responsibility
can all meet that desideratum. For anyone working within a particular legal order,
coordination will therefore play a very minor role in explaining the particular content
of the rules, and will not provide sufficient criteria for criticizing and revising those
rules. Instead, coordination occurs through distinct legal languages. Those languages
set the terms through which coordination is achieved; indeed they set the foundational
concepts by which norms and practices are conceived.
This language is the grammar of customary law signalled in the title of this

paper. I use grammar in the broad sense in which Wittgenstein used the term: to
include not just the express rules that purport to regulate the use of a language, but
rather the way in which a languages structure and terms enable and constrain what a
competent speaker can say intelligibly.110 Through the distinctive grammar of each

108 Fuller, Morality, supra note 74 at 48.
109 Compare, for example, Postemas argument for the theoretical modesty of the common lawits
desire to achieve a localized coherence, not a comprehensive theory of justiceon precisely these
grounds: Postema, A Similibus, supra note 42 at 132. See also Jeremy Webber, A Judicial Ethic for
a Pluralistic Age in Omid A. Payrow Shabani, ed., Multiculturalism and Law: A Critical Debate
(Chicago: University of Chicago Press, 2007) 67.

110 See James Tully, Situated Creatively: Wittgenstein and Political Philosophy in Public
Philosophy in a New Key: Democracy and Civic Freedom, vol. 1 (Cambridge: Cambridge University

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customary legal order, much of the normative content of that law is encoded,
organized, and expressed.

Sometimes the linguistic analogy is very close indeed. Consider the example
given above of the Anishinabek use of kinship terms, where there is no separate word
for immediate siblings (the offspring of ones own mother and father) and the term for
siblings is applied to a class of both siblings and cousins. Engrained in that linguistic
practice is a clear disposition to treat those cousins and ones siblings similarly,
extending to them ones close concern and treating them all as being within the range
of the incest taboo. The very linguistic usage encodes that practice.111
On other occasions, normative dispositions are not so much encoded in the words
themselves as enshrined in complexes of concepts. Thus, broader categories of
kinshipmembership in clans, relationship within a particular lineageserve to
shape relationships across whole societies and at times across national boundaries.
These kinship categories regulate such things as entitlement to chiefly names,
obligations of mutual support, and privileged roles as witnesses in ceremonies, which
in turn serve to affirm laws and settle disputes. Similarly, foundational conceptions of
land determine what it is permissible to do with landindeed, they define the very
object to which rights and responsibilities attach.

The linguistic analogy is apt because often these elements are built into our
conceptual structure so deeply that it is only through considerable effort that we can
conceive of them being different. Richard Overstall captures this well in relation to
Gitxsan law: Kinship … is not just about how a Gitxsan person assumes legal
responsibility for people and thingsit is also about how he or she knows them. It is
a knowledge system.112 The normative effect of these terms, the normative
dispositions they express, are most readily apparent when we study legal cultures that
are structured quite differently or encounter situations in which the possibility of a

Press, 2008) 39 at 69 [Tully, Public Philosophy]; Ray Monk, Ludwig Wittgenstein: The Duty of
Genius (New York: Free Press, 1990) at 468:

Wittgenstein had many ways of characterizing grammatical propositionsself-
evident propositions, concept-forming propositions, etc.but one of the most
important was in describing them as rules. In emphasizing the fluidity of the
grammatical/material distinction [the distinction between what one can properly say
using a language and what exists in the world], he was drawing attention to the fact that
concept-formationand thus the establishing of rules for what it does and does not
make sense to sayis not something fixed by immutable laws of logical form … but is
something that is always linked with a custom, a practice [emphasis in original].

111 See Hallowell, supra note 71 and accompanying text. Compare Borrows, Living Law on a
Living Earth, supra note 90 at 163-64. Hallowell emphasizes how the Anishinabek language served
to maintain, however unconsciously, the concepts, connotations, and classifications embedded in
speech that were consonant with the Ojibwa world view, although he goes on to say, This does not
mean that the semantic content expressed in speech was unchanging, or even the prime determinant of
Ojibwa thinking (at 60).

112 Overstall, supra note 80 at 23.

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different characterization begins to be evident. The section of this paper dealing with
the requirements of legal community provides an example. The encounter with
indigenous legal orders suggests how it might be possible to conceive of and sustain a
legal order that relies directly on participants own realization of the demands of
continued social cooperation, without the centralized determination and enforcement
of norms.
Of course, much of the normative content of any legal order is not engrained in
the terms of the order. Any legal order contains room for debate in the use of those
terms to deal with disputes. The terms themselves provide foundational concepts,
structure the inquiry, and embody normative dispositions, but consistent with those
linguistic resources, a range of arguments can be made. Here again the linguistic
analogy holds true: languages shape what can be saidthey make some things
straightforward, other things very difficult to saybut they do not determine
everything that is said. Languages can be deployed in making a variety of arguments.

The same holds true for the grammar of customary law. Val Napoleon, for
example, has described the ways in which the Gitxsan have responded to the
increasing prevalence of intraclan marriage by using adoption to restore the proper
clan relationships. That solution is not perfectmembers know that an unsatisfactory
situation is being regularized and some would rather that the situation had not arisen
in the first placebut the response continues to draw upon distinctively Gitxsan
forms.113 She notes the need to develop new norms to deal with Gitxsan who lack a
clan (because they have married outside the community, or because of the
accumulated impact of the exclusionary band membership rules imposed by the
Indian Act).114 And she recounts a rare instance in which the Gitxsan determined that
a chiefly name be shared because one of the claimants was better situated to care for
the resources of the territories attached to that name, while a second claimant was
better suited to fulfill the chiefly duties in public deliberation.115 Any society
generates disputes about the content and application of norms. Normative orders are
complex, subject to varying interpretations. Norms are always expressed in general
terms; they require assessment and adjustment in their application to the vagaries of
life in society. Deliberation is inherent in law.

It is useful, then, to recognize three levels of normative determination in
customary legal orders. First, there is coordination, which emphasizes the need for a
common order of norms and thus for a social process by which norms can be
determined. This process in turn means that norms will have some autonomy from the
will of individuals. Second, there is the language through which norms are
expressedthe terminology, the conceptual structure, the basic architecture that
determines who are subjects of legal rights, what counts as an object of legal rights,

113 Napoleon, supra note 83 at 82-83.
114 Ibid. at 83, n. 109.
115 Ibid. at 124-26.

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and so onin other words, the grammar of the law, in which rules and principles are
framed and through which coordination is achieved. Third, there are the particular
debates that occur using these conceptsdebates that weigh those concepts, deploy
them, regulate disputes, and through which the concepts themselves are continually
adjusted and refined.116

The second and the third levels are not strictly separate from one another. In part,
this lack of separation exists because the conceptual structure of the law is never
univocal. The structure does contain normative dispositionsit makes some things
much more easily affirmed than others, and the very way in which it states issues
tends to define a privileged class of solutions (such as treating marriage to parallel
cousins as a form of incest, as in the Anishinabek example given above117). But like
any language, it also has a measure of flexibility, so that alternative arguments can be
presented. The concepts themselves can be subjected to criticism by, for example,
probing and revising conceptual distinctions. And over time, the grammar of the law
will evolve as a result of core concepts being applied to new situations, new concepts
being grafted onto the original concepts to address new challenges, adjustments to the
original understanding of concepts as their implications are explored in varied
circumstances, the reformulation of concepts as they are juxtaposed with others in the
normative order or are extended by analogy to speak to additional situations (such as
the use of adoption to regularize marriages that violate kinship rules, as Val Napoleon
has described118). Thus, the distinction between the second and third levels is more
one of degree than of kind, various concepts being embedded to different degrees in
the legal culture.
Nevertheless, it is useful to distinguish between the levels in order to capture the
fact that some concepts become so engrained in the way we think about issues that
they become part of the landscape, taken for granted in day-to-day applications of the
law. Even if it is possible to work around these concepts, that work-around requires

116 Compare Boisselles emphasis on the need to take into account the existence of background
normative concepts (in Charles Taylors terms) when determining the legitimacy of political structures
designed to resolve normative disagreementan argument that similarly turns on the distinction
between the second and third levels: Boisselle, supra note 85.

It is worth speculating whether my second level corresponds roughly to Fullers inner morality
of law, although modified by the recognition that the inner morality may vary between societies,
which both raises the possibility of there being different inner moralities in different legal orders and
allows for a broadening of the content of any one inner morality beyond what might plausibly be
universal. Fuller distinguished the inner morality from the external or substantive morality which
infused the content of law in different ways in different systems; perhaps that category is best
conceived in terms of my third level. See Nicola Lacey, Out of the Witches Cauldron?:
Reinterpreting the Context and Reassessing the Significance of the Hart-Fuller Debate in Peter Cane,
ed., The Hart-Fuller Debate in the Twenty-First Century (London: Hart) [forthcoming in 2010] (from
which my quotation is drawn).

117 Supra note 71 and accompanying text.
118 Supra note 113 and accompanying text.

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very substantial effort to redefine terms, justify redefinitions, and then deploy the
redefined terms in a manner that runs against the established grain.119 Such
reconceptualizations are much more difficult to achieve than arguments that take the
existing terms as given. To take one example, it is easier to argue that the concept of
marriage is able to embrace same-sex unions than it is to argue that the very notion of
marriage should be reconceived to recognize an array of very different unions,
including relationships that have no heterosexual equivalent. What is more, the
underlying conceptual structure is more likely to be shared than are specific
normative judgmentsalthough by shared I do not mean agreed, but rather that it
furnishes the terms through which participants have come to define their normative
positions.120

In all of this, social practices serve as an essential touchstone for the evolution of
the law. Arguments that people make about norms inevitably refer to how those
norms are likely to operate against the complexity of human interaction. But those
practices, that interaction, are not the purely functional relations that the pragmatist
accounts portray. The practices are complex amalgams, already infused with
linguistic categories and normative dispositions (as, for example, in the case of
kinship or marriage).121 The practices are best conceived in Wittgensteinian terms,
with normative language entirely interwoven in them.122 And the relationship between
norms and practices is not one of simple facilitation. Rather, it is better expressed as
one of normative consonance, in which ones arguments address whether a particular
norm is likely to fit well with the judgments of parties engaged in practices, to foster
the achievement of ends to which the practices are directed, to instill in that
interaction qualities taken to be important across the society as a whole, and so on.123
As this list suggests, the possible criteria for normative consonance are many and
varied. There is certainly room for disagreement in their application. There is, for
example, significant and, I suspect, ineradicable disagreement over the ends to which

119 Cf. James Tully, Public Philosophy as a Critical Activity in Public Philosophy, supra note 110,

15 at 32ff.

120 See Webber, Individuality, supra note 77; Boisselle, supra note 85.
121 See e.g. Brightman, supra note 36 at 28-36, 324ff (on the existence of multiple ways of relating
successfully to ones environment, which serves to undermine purely material or purely symbolic
accounts of practices).

122 I suspect that the Wittgensteinian conception of practices would be congenial to Postema, despite
his general reliance on functionalist language. Indeed, he specifically invokes Wittgenstein in his
understanding of how one follows a rule: Postema, Salience Reasoning, supra note 24 at 49.

123 This provides further support for Postemas emphasis on the need for congruence between the
norms and modes of reasoning of a legal system and the informal social customs, practices, and
modes of reasoning that predominate in the society governed by it (Postema, Conformity, Custom,
and Congruence, supra note 42 at 56-57). Postema argues for normative congruence as the
foundation for laws efficacy (and therefore laws practical existence). I suggest it is this and more: it
is an integral aspect of the way in which customary law relates to social practices, and explains that
relationship better than the language of functional coordination.

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marriage is directed, precisely because marriage is a complex institution serving
many ends and to which participants have attached a wide range of normative
expectations. Judgments as to consonance can very well conflict, just as the
judgments of people involved in practices conflict. Normative consonance does not
produce, then, a single right answer, but rather a range of plausible arguments:
different possible characterizations of marriage, different readings of the comparison
between these characterizations and same-sex relationships, and so on. Participants
advance these arguments by interpreting the practices and explaining their import. It
then becomes necessary to decide among these arguments by some process of social
determination, through which the norm to govern the society is determined.

The need to coordinate compels such a common solution, at least to some degree.
But note that the process of advancing possible solutions and of deciding between
them does not appeal purely and simply to the needs of coordination. Instead, it takes
the form of a complex normative deliberation, starting from the established grammar
of the societys norms, reading that grammar against the various practices to which it
relates, and criticizing and refining ones understanding of the norms. Sometimes it
takes the form of substantially revising societys norms if their premises no longer
seem consistent with the decision makers understanding of the normative order as a
whole, if they appear to conflict with other cherished norms, or if the consequences of
their past application now appear to have been deleterious. 124

The ultimate result will likely not accord with any one individuals view of what
the normative order should be. It is likely to be a distillation of views, having
sufficient support from members of society to secure their willing compliance but
nevertheless abstracting from any individual members actual opinions and beliefs.
The final step of coming to a societal solution inevitably involves a measure of final
determination, of stipulation, from among a variety of alternatives held by members
of the society. As we see in the case of religious belief, that distillation may tolerate
areas where members can continue to pursue divergent practices, with no socially
determined result imposed. In other areas, a single result will be established in the
face of continued disagreement among members of the society.

Cass Sunstein has argued that in adjudication we should aim for incompletely
theorized agreementsresults that are framed only at the level of generality that is
necessary for social cooperation, without demanding that people agree on the far-
reaching normative theories that might support those outcomes.125 Sunsteins
argument points in the right direction in its modest ambition and its focus on the need
to determine a working result, not a grand theory, for our social order. But I would
cast the process somewhat differently. First, Sunstein is wrong to suggest that public

124 See Postema on the method of argument from precedent: Postema, Moral Presence, supra note
27; Postema, A Similibus, supra note 42. See also Jeremy Webber, The Jurisprudence of Regret:
The Search for Standards of Justice in Mabo (1995) 17 Sydney L. Rev. 5.

125 Cass R. Sunstein, Legal Reasoning and Political Conflict (New York: Oxford University Press,

1996) at 35-61.

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deliberation can be limited to the level of practical compromise without reaching
back to underlying arguments of justification. Those underlying arguments must be
engaged; they remain the active impetus for peoples normative commitments, even if
wholehearted agreement is too high a standard for their resolution.
And this brings us to the second point: agreement is an impossibly and
unnecessarily demanding standard. In any society, all members do not and cannot
agree on social norms, even when those norms are defined with theoretical modesty,
and even when a robustly deliberative process exists to narrow disagreement and
ensure a large measure of popular support. Our disagreements are simply too deeply
rooted. But members realize that, within broad limits, they have to put up with
normative positions, normative interpretations, that they do not fully agree with if
they are to live in society with people who have their own minds. The benefit of
living in a society governed by some conception of justice is better than living in no
society. The range of potentially acceptable norms is broad, given the interest
members have in securing the benefits of social cooperation. That said, even within
that range, the degree of consonance matters: the greater the degree of substantive
support from members of the society, the more effective and stable the norms are
likely to be, because members will both know and accept them more readily.
Legitimacy is a relative concept, in which there can be greater or lesser degrees of
acceptance. It is not on-off, either accorded or not.

In emphasizing the complexity of social practices and arguing that they are
already infused with linguistic and normative content, content that inevitably shapes
the process of fitting norms to practices, I do not mean to suggest that the linguistic
forms are entirely self-standing, without any connection to material relations. It is of
course true that human beings operate in a world that transcends their concepts, and
that the world is, to a degree, refractory to concepts. Concepts are frameworks of
understanding that order and shape how we conceive of the world. They can be
destabilized by changes in that world; they can, over time, be considered less
effective than alternative conceptions in explaining the world. And indeed, one sees
in indigenous normative orders continual processes of change and adaptation of those
cultures distinctive concepts in a manner not unlike those one sees in non-indigenous
orders.126

It is precisely because our conceptions are always provisional, revisable, and
even defeasiblealways existing in complex relation to a world that extends beyond
themthat it is possible to translate across linguistic and conceptual frameworks and
to learn from others conceptual schemas. There are areas of overlap in experience,
analogies among our attempts to create meaning, which can serve as starting points

126 Regarding the responsiveness of indigenous knowledge to experience, and its continual
adjustment in relation to experience, see Scott, Science and Myth, supra note 61; Scott, Spirit and
Practical Knowledge, supra note 36; Berkes, supra note 61 at 117-59. See generally Turner &
Berkes, supra note 107.

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for mutual understanding. And of course, the extent of overlap can be increased by
entering into the practices of another society, either through living within that society
or through attending to its narratives and explanations. The relation of concepts to the
world therefore provides potential reference points for communication and
comparative evaluation.

The process of reasoning across legal languages is not easily accomplished. It
may, for example, require immersion in the entire complex of environment, language,
world view, deliberation, and practices of a society, in order to truly understand how
concepts are deployed. The process of engaging in comparisons is certainly not
reducible to evaluation on the basis of a neutral, norm-free, functionalist common
denominator, as many functionalist approaches implicitly assume. Both the world and
our schemas are sufficiently complex that there are likely to be strengths and
weaknesses to any conceptual framework. Our very capacity to evaluate strengths and
weaknesses is inevitably constrained by our vastly greater comfort with and mastery
of the scheme in which we have come to form our own opinions.

But most importantly, we can only discuss these comparisons in language. Our
theories never get outside language. We can do our best to translate across languages,
but whatever we say is inevitably afflicted by the limitationsand the strengths, and
the normative overtonesof the tools we use to say it. This fact again provides us
with reasons not to dismiss an alien metaphysics out of hand but instead to remain
open to insights that may, in the end, prove translatable. And even if they are never
translatable, we may simply have insufficient justification, insufficient understanding,
to impose our own view.

Conclusion

The conception of customary law set out here has important implications for the
way in which one engages in comparative legal analysis and develops and assesses
institutions that operate at the interface between legal cultures. A full exploration of
those consequences will have to await future papers,127 but their main lines should
now be clear.

They include, for example, the need for humility and respect in the encounter,
precisely because differences of law are tangled up with differences of normative
language, which are in turn the product of extended experience and long reflection.
Their meanings can be profoundly difficult to access, requiring immersion in the
practices and concepts of the society. They can also be vulnerable to dislocation by
practices and concepts imposed on a society in ignorance of the societys own
normative resources (even if that imposition is well-meaning). The risk is all the
greater in situations of substantial asymmetries of power, when conceptual
incomprehension is compounded by differences of material interest, as indigenous

127 But see Webber, Individuality, supra note 77; Webber, Beyond Regret, supra note 89.

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peoples have found to their severe detriment. Differences of legal culture therefore
furnish important arguments for institutional autonomy and suggest an ethic that
should temper interactions across the normative divide. Arguments for recognizing
different traditions of customary law meld with arguments for self-government.

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