I\u2019m[1]<\/a> one of the many who found law school extraordinarily challenging. As dawning slowly rolled over my peers that first year, I fumbled clumsily in the dark. I waited for my light bulb to appear. I waited and waited, but it never came. I just couldn\u2019t get it. And I didn\u2019t understand why; I\u2019d been a strong student until then. Many of my professors were excellent too; in most instances, I couldn\u2019t tell myself the problem was their teaching. As clarity set over my friends, I slipped further into a cloud of confusion and I began to question if I belonged. As I listened to their brilliant questions\u2014which not only synthesized but creatively applied the material in new ways\u2014I felt stupid.<\/p>\n I understood the new words in my texts, the new words from the front of the lecture hall. But for the life of me, I couldn\u2019t understand how to make the right meaning of them in sentences and paragraphs. To me, these were an endless litany of non-sequiturs. None of them fit together to produce the understanding it seemed everyone else acquired. The lessons didn\u2019t slowly cohere as a structure that I could then wield to frame future sentences. I never learned to think like a lawyer. Class became a battleground, law school a war, but one I waged inside of and against myself. I wanted desperately to accept the knowledge shared as given, yet I resisted it with all my being. Some days it seemed I fought over almost every utterance. Every sentence was a clash over stakes I couldn\u2019t articulate, but which pounded their urgency throughout me, sometimes so powerfully it felt as though my chest might burst as I sat there, silently.<\/p>\n Unable to identify what was happening, my frustration turned into a deep sense of failure. A professor who asked from across his desk what happened during my December exam was kind and encouraging. He wanted me to succeed. But I\u2019d figured out I wasn\u2019t like the others here. I wouldn\u2019t be a lawyer or an academic. I\u2019d work till eleven almost every night and then fail out while others moved on to accomplish the things I wanted. I\u2019d be the one making excuses so as not to appear to others as stupid as I\u2019d come to know I was. I\u2019d just changed my mind, I\u2019d say, hoping they\u2019d quietly just leave me behind.<\/p>\n I hated my first year of law school.<\/p>\n Fortunately, second year, and especially the summer following it, brought three interventions that, together, set me on a new course. The first was that I began to read papers that hadn\u2019t been assigned but which addressed what I cared most about: how Canadian law works for and against Indigenous peoples. Some of these made an enormous difference for me, opening up critique unavailable in my classes, the lack of which seemed very much to have something to do with that pounding in my chest.[2]<\/a> These papers offered me three connected gifts. First, they helped me to identify that colonialism is alive today and that law, including constitutional law, is part of how it operates. This was to name an important part of why I hurt as I learned about the Indian Act<\/em>[3]<\/a> and about the section 35[4]<\/a> jurisprudence. Second, these papers began to disclose to me the boundaries of Canadian law. In identifying viable constitutional options not taken, I began to understand\u2014not consciously, not in a way I could yet articulate\u2014that Canadian law lives somewhere. Perhaps, I began to realize, it isn\u2019t just the law but the context that creates and sustains it which is adverse to Indigenous peoples\u2019 well-being. Third, some of these papers\u2014notably Darlene Johnston\u2019s \u201cAboriginal Traditions of Tolerance and Reparation\u201d[5]<\/a>\u2014take significant steps in revealing not just Indigenous peoples\u2019 own systems of law, but the Indigenous lifeworlds[6]<\/a> beneath them. I could tell that something deep was going on here and it made me hopeful.<\/p>\n The second intervention followed from the first. I enrolled in a summer program at the University of Victoria (UVic) on Indigenous peoples\u2019 own systems of law and, even more exciting, John Borrows was teaching a course on Anishinaabe law. The program had an enormous impact not just on my education but on my life. The following September, back in Toronto, I remember one of my friends commenting, as I crossed the parking lot between Falconer Hall and Flavelle House, that my shoulders seemed so much lower, my steps so much higher. The 2009 UVic summer program opened an entirely new world to me. If the articles I\u2019d read had been signposts for a new door to walk though, that program blew the door wide open. I understood that my life wouldn\u2019t have to pass either in the darkness of permanent critique or in fighting within a system at its best unrepresentative of how I understood law and at its worst openly hostile to that understanding. I could actually develop my own positive project based in Anishinaabe law and build understanding and professional community from there. I can\u2019t overstate the importance of this gift for my life.<\/p>\n The third thing that happened following second year was that I began to return to Couchiching First Nation, where I\u2019m a band member, as an adult. Although I\u2019d visited often, I hadn\u2019t grown up there for reasons that have everything to do with colonialism. But I now returned, wanting to learn about Anishinaabe law. Not Canadian law or international law as it regards us; I wanted to know about our own<\/em> law. In the UVic summer program, I\u2019d felt hope and I wanted to understand Anishinaabe law much more deeply. I began connecting with some of the nearby gete-Anishinaabeg<\/em>[7]<\/a> and knowledge keepers interested in sharing their teachings, especially nokomis<\/em>,[8]<\/a> Bessie Mainville of Couchiching, and Fred Major of Mitaanjigamiing. I was ignorant about how to carry myself in a good way around them and made many mistakes. Amazingly, my passion for our law was recognized, my errors forgiven, and I was allowed to grow important relationships that continue to have a leading role in slowly revealing the lifeworld beneath Anishinaabe law to me.[9]<\/a> This is why gete-Anishinaabeg<\/em> say to learn the language. This is why they encourage attendance at ceremonies. Although both are beautiful and effective, there\u2019s nothing literally magical<\/em> about either our language or our ceremonies that conjures up understanding. The point is rather that they serve to disclose the Anishinaabe lifeworld: the set of ontological, cosmological, and epistemological understandings which situate us in creation and thus which allow us to orient ourselves in all our relationships in a good way. Without having begun[10]<\/a> to internalize our lifeworld, one has no hope of understanding our law.<\/p>\n The same is of course true for all societies: without at least an implicit understanding of the world beneath Canadian law\u2014Canadian constitutionalism, which is a species of liberal constitutionalism\u2014one has no hope of understanding Canadian law. If you don\u2019t accept the sanctity of autonomous selves, you may understand every sentence of Canada\u2019s Charter<\/em> but you\u2019ll fail to derive its meaning. If the concepts of the sovereign and the consent of the governed aren\u2019t intuitive to you, you may understand every word in a constitutional provision establishing the separation of powers, but fail to appreciate what\u2019s at stake in it.<\/p>\n My lack of understanding of liberalism was my problem in law school. On the inside, I was railing against liberalism without knowing what or even that<\/em> it is. I had no idea that the concept \u201crule of law\u201d, taught to me as universally valid and morally unassailable, turns on an understanding of persons, of community, and of freedom situated in time and place\u2014an understanding which is genealogical, storied, and entirely wrapped up in culture. I had no idea that the rule of law, with all this baggage, is part of the very thing<\/em> said to be contracted for in the imagined social contract purported to justify Canada\u2019s sovereignty (including, importantly, for the purposes of this article, the imposition of its constitutional order) over the Indigenous lands, peoples, and lifeworlds already present. I didn\u2019t understand this until I took a course on law and liberalism in my LLM degree. Throughout my JD, I had no language for expressing the profundity of what was so terribly wrong with what I was learning. I had nothing more focused than a physical reaction and a relentless emotional response to all of the beneath-the-law that was unsaid yet taken as sacred and that was necessary to make the law I was learning coherent. But it felt like violence alright and my reactions were visceral.<\/p>\n All of which is a way of saying that my legal education presumed a common, foundational set of understandings between it and I that proved absent.[11]<\/a> I struggled to make sense of the words because the glue holding their assemblages together was the lifeworld of Canadian liberalism, which I couldn\u2019t get to stick. My Anishinaabe ears just couldn\u2019t hear why in a criminal law matter, I should desire vindication of the right, why liberty should even be forefront in my mind, or why a criminal harm to one person should constitute a harm to all. Similarly, my criminal law professor (who I very much liked) couldn\u2019t understand my strong rejection of desert as a justification for punishment. Across all my first-year courses there was a disconnect in context never breached, and that couldn\u2019t have been breached, for I wasn\u2019t taught \u201cthis is the law within Canada\u2019s liberal constitutional context<\/em>.\u201d I was taught \u201cthis is the law in Canada.\u201d I didn\u2019t even understand that the Canadian law I was learning had<\/em> a world beneath it, much less a liberal world. The things that accounted for the law\u2019s being Canadian were our constitutional idiosyncrasy (being formally a constitutional monarchy, federalist, and securing particular kinds of group rights) and, of course, the doctrine it gave rise to, but never our notion of legality itself<\/em>.[12]<\/a> Insofar as that goes, the story was simply: law is law is law. I experienced it as an institutional erasure of the distinction between the concept and conceptions of law.[13]<\/a><\/p>\n The rest of this article attends to the lifeworld-law relationship and my thesis in respect of it\u2014that what we call law exists as such only within its own lifeworld. In particular, I focus on Indigenous law revitalization today to illustrate the stakes in failing to attend to the distinction between internal and external legal pluralism (i.e., legal pluralism within and across distinct lifeworlds). In Part I, I canvass some recent Indigenous work that insists on the need to situate the study of Indigenous law within Indigenous lifeworlds. To expand upon what lifeworld means and to make the conversation more concrete, I turn to my doctoral work in Part II. I offer a simple sketch of what I call a \u201crooted\u201d constitutional logic, which characterizes Anishinaabe lifeworld and thus Anishinaabe constitutional order. My hope is that with at least the thin contours of rooted constitutionalism in view, some foundational differences between Anishinaabe (again, a species of rooted) and Canadian (a species of liberal) lifeworlds will be disclosed. I contend that where the lifeworlds of the peoples to be brought into a pluralist arrangement are not only different but different in kind<\/em>, external legal pluralism sometimes allows \u201clegal pluralism\u201d to serve as a redescription of imperialism. Thus, I then consider how distinctions of this magnitude might be responsibly taken up in legal education, offering three specific recommendations. The third of these is, I believe, novel to legal education in Canada, so I conclude with one example of what taking up this recommendation could look like: the syllabus for an intensive course I built and taught at Lakehead University in 2015.<\/p>\n Because of the groundbreaking work of Indigenous scholars like those I\u2019ve cited above, I\u2019m one of many new Indigenous scholars entering both an academy and a legal profession keen to better understand how we (that is, Indigenous societies) govern ourselves and manage conflict, and how they and the institutions they populate might learn from us. That\u2019s no small thing for those who\u2019ve come before me to have accomplished. And yet, seen from a distance, it\u2019s still only a small step. Now the central struggle is to educate those wanting to know more about the paramount importance of engaging not only with Indigenous legal orders, but also and necessarily<\/em> with the lifeworlds beneath them. One can\u2019t simply translate law across distinct constitutional contexts and expect it to retain its integrity and thus its functionality; the discussion must first be between the respective constitutional orders generative of each of those systems of law.<\/p>\n This is a responsibility more and more scholars are taking up. I\u2019m in the third year of my PhD and my dissertation is on Anishinaabe constitutionalism.[14]<\/a> I\u2019ve carefully assembled what I think is a most incredible committee for such a project: John Borrows, James Tully, Heidi Stark, and Jeremy Webber. I\u2019m so blessed to be shaped and guided by this team. Each is brilliant and has reshaped or is reshaping his or her respective field. Each works very seriously with Indigenous legal orders. And critically, albeit in different ways and to different degrees, each has attended to the lifeworld point in how they go about that work.<\/p>\n Jeremy Webber has explicitly theorized the commitment to these ideas in two critically important papers that should be required reading for everyone in the field.[15]<\/a> He establishes that all<\/em> law\u2014not just Indigenous peoples\u2019 legal systems\u2014is a function of lifeworlds (although he uses different language to make the point). Heidi Stark\u2019s work on treaty relationships reflects the same commitment. She\u2019s intentional and rigorous in reasoning her treaty analysis through Anishinaabe lifeworld.[16]<\/a> John Borrows took working explicitly within Anishinaabe worldview and through Anishinaabe communicative practices as his central project in Drawing Out Law<\/em>.[17]<\/a> He not only told, but showed all of us one way to go about this work. Finally, James Tully\u2019s theory of dialogue, and his use of Bill Reid\u2019s The Black Canoe<\/em> as symbolic of it, invokes this very point. Tully shows that we have different customary ways of speaking and knowing, and that we shall have to learn these, first, if we\u2019re to communicate anything meaningful to one another.[18]<\/a> His extraordinary study of imperialism excoriates liberal (and neoliberal) powers for their shifting, imperial use of law to dominate Indigenous peoples, lands, and lifeworlds.[19]<\/a> Finally, his transformative new work on the nexus between Indigenous-settler relations and human-earth relations (earth democracy and Gaia citizenship) often draws explicitly from the lifeworlds beneath Indigenous legal orders.[20]<\/a><\/p>\n It\u2019s an incredible time for the resurgence of Indigenous law, and I have much gratitude. I\u2019m part of a generation of upcoming Indigenous scholars benefiting from the support and guidance of so many established scholars (importantly, not just through law schools) whose encouragement is to begin my work with the understanding that all systems of law live within and are generated through particular worlds. Rather than minimizing their differences, I must fully take them up. It\u2019s becoming part of the orthodoxy of legal education in Canada that<\/em> Canadian law needs to relate with Indigenous legal orders. The centre of the dialogue on that relationship is thus now beginning to shift to how<\/em> they ought to relate with one another. We realize that the answer isn\u2019t obvious; it has become commonplace for me to hear Indigenous legal scholars questioning what happens when we bring Indigenous law into Canadian or American law, legal institutions, and law schools. We advert to a question of power here. More and more of us identify an act of translation happening and worry about what gets structurally reframed or, worse, simply translated out<\/em>. Professor and judge Christine Zuni Cruz expresses this worry when she cautions that<\/p>\n [l]aw is a dynamic force. Western written law contains Western values, beliefs, and precepts that dictate thinking, behaviour, and approach to justice. Once law is adopted, it begins its work. If any law must be written, and applied to us, it should be law we fashion and create based on our own understanding of law, with knowledge of the importance of the relationships critical to our communities. It should also be based on what we know motivates and influences our social structure, with an understanding of our social reality and our separate consciousness as Indigenous peoples.[21]<\/a><\/p>\n Cruz\u2019s formulation beautifully captures the vital importance of lifeworld to law. Unless we intentionally guard against doing so, when we bring Indigenous law into Canadian legal education, legislation, or courts, we take it out of its own lifeworld and into another. I\u2019m not categorically suggesting that these aren\u2019t places for Indigenous legal orders. I\u2019m saying we must always account for this movement. I\u2019m saying that, for those of us who appreciate what\u2019s at stake in the relationship between a legal order and the constitutional order which gave and which sustains its life, there are very serious questions to be taken up in considering whether we may safely move law between constitutional contexts.[22]<\/a><\/p>\n To illustrate that the conversation is deepening, I want to focus on how many of us are now attending to the lifeworld-law relationship. We bring different understandings and use different words (even in English) to talk about the world beneath law and this is to be celebrated. Further, some of us openly engage the relationship between lifeworld and law while others of us prefer to work implicitly, even through indirection. We differ even in how we conceptualize the relationship: some of us draw out the kind of distinction between lifeworld (and hence constitutional order) and law that I have here, while others (including many gete-Anishinaabeg<\/em>) collapse lifeworld and law, saying that for Indigenous peoples, lifeworld is<\/em> law.[23]<\/a> But in our respective ways of organizing and expressing our understandings, each of us is disclosing the same powerful insight that every system of law\u2014Indigenous or not\u2014has a home.<\/p>\n S\u00e1k\u00e9j (James Youngblood Henderson)[24]<\/a> and Patricia Monture[25]<\/a> are for me among the most powerful intellectuals explaining the relationship between lifeworld and law. Much of Leanne Simpson\u2019s work builds from a world beneath too.[26]<\/a> Harold Johnson[27]<\/a> and Sylvia McAdam (Saysewahum)[28]<\/a> have produced texts of exceptional importance. Because of the combination of their accessibility and their relentless commitment to situating Nehiyaw (Cree) law in respect of Nehiyaw lifeworld, they make wonderful starting points for anyone wanting to appreciate the importance of lifeworld to law.<\/p>\n A great many younger scholars who have or who are emerging from what I think of as the Victoria School (which marries a substantive commitment to Indigenous law with a theoretical commitment to the social production of law) have the lifeworld-law relationship squarely in their sights. I find so much to be excited about when I imagine the potential impact of Indigenous law scholars and practitioners like Aim\u00e9e Craft,[29]<\/a> Rob Clifford,[30]<\/a> Dawnis Kennedy,[31]<\/a> Johnny Mack,[32]<\/a> and Danika Billie Littlechild,[33]<\/a> just to name a few. Of course, there are many other amazing scholars to emerge from the University of Victoria Faculty of Law in recent years who are seriously engaged with Indigenous peoples\u2019 own legal orders, but these ones strike me as particularly engaged with the life beneath law. I\u2019m so fortunate to have been able to learn from them during my PhD (and in the cases of Kennedy and Littlechild, during my JD too).<\/p>\n Next, there are those doing work with the old people on the lifeworld-law relationship of their respective peoples.[34]<\/a> And finally, there are the growing number of old people choosing to speak for themselves, wanting to share aspects of their teachings openly, and insisting (although often too gently to be called insistence) on the primacy of understanding Indigenous lifeworld before one can understand Indigenous law.[35]<\/a> Texts of extraordinary value here include the three Treaty Relations Commission of Manitoba Treaty Elders Teachings<\/em> volumes.[36]<\/a> There aren\u2019t many texts in which our old people share so much about our lifeworlds and the legal orders they generate, outside the boundaries of established interpersonal relationships, which ordinarily serve as the condition of possibility for this sort of knowledge transmission. My lived experience with the gete-Anishinaabeg<\/em> I work with has been that the scope and depth of law teachings shared grows at the same rate as my participation in and understanding of our lifeworld. These books really are an incredible gift for those who want to learn.<\/p>\n My dissertation is a study of the Anishinaabe lifeworld-law relationship in two parts. The first part sets out my theoretical framework. I argue that there\u2019s a structure of normative relationship through which lifeworlds condition what ultimately counts as law. Importantly, although distinct political communities often vary widely and even foundationally in what they think law is, how it\u2019s made, and where it comes from, the general normative structure I lay out accommodates this difference. As a second step, I distinguish between liberal and rooted lifeworlds and argue that each is generative of a distinct constitutional mode and thus ultimately of distinct liberal and rooted legalities. In the third step, I suggest that because of their genesis in the rooted constitutional mode, relationships across Indigenous constitutional orders naturally take the form of treaty (intentionally deepened, always-already-interdependent relationships) as opposed to contract (an international, exchange-centred connection between independent autonomies).<\/p>\n The second part of my dissertation is a detailed exploration of how Anishinaabe lifeworld both empowers and constrains Anishinaabe inaakonigewin<\/em>, our conception of law. That is, I map out one view of the Anishinaabe instance of the rooted constitutional mode. And if I do a good enough job, it should be clear both that (1) while rooted is very different from liberal constitutionalism, it need not be scary for those considering living within it, and (2) not only is there room<\/em> for settler society to reconstitute itself in the rooted constitutional mode\u2014through treaty, settler society\u2019s invited in. This would mean a transformation of our shared political community, which at present has as conditions of its possibility both the domination of Indigenous peoples and the usurpation of our territories. But if settlers were willing to abandon their existing colonial relationship with Indigenous peoples, sustained through the imposition of Canada\u2019s liberal constitutional order over still-rooted Indigenous ones, they could find non-violent belonging within Turtle Island\u2019s rooted treaty order.<\/p>\n I offer this explanation of my project because I think that explaining the first part in more detail might assist in understanding what I mean when I invoke the lifeworld-law relationship. If you\u2019ve read this far, you\u2019ve understood the single, basic premise of this article. But I realize that having that understanding and appreciating what\u2019s at stake in it aren\u2019t the same. And we need to understand the stakes. Without that additional understanding, even if you can state back to me the nature of the disconnect in my Canadian legal education, you still aren\u2019t able to appreciate my experience of it.[37]<\/a><\/p>\n The explanation of rooted constitutionalism that follows will be a sketch only. This is necessary to avoid that discussion taking over the article. For readers wanting a fuller discussion, I\u2019ve said more elsewhere.[38]<\/a> I\u2019m sure there\u2019s much to critique here; it\u2019s just one way into the understanding. Following this discussion, I want to return to Canadian legal education and offer three suggestions in light of all that has been said.<\/p>\n John Borrows and James Tully, my supervisors, each give considerable attention to the Earth in their work. In Tully\u2019s recent work, human-earth relationships are central, and, for Borrows, the focus has spanned his entire career.[39]<\/a> Nokomis<\/em> and Fred, my two gete-Anishinaabeg <\/em>teachers, have ensured from the outset of our time together that I understand that I exist in relation to the Earth and all its myriad beings. Fred, in particular, has focused on trees\u2014how to identify them, how to work with them in a good way, how to determine direction from them, how to make medicines from them, how to hear when they speak. My mother, too, spends much of her time on the land and, in particular, in forests, hiking through bush trails almost every day, even in the dead of winter.<\/p>\n Given these influences, it made sense to me that the critical piece I\u2019d been missing as ideas for my dissertation developed came to me as the structure of a tree. One day I see poplar, another maple, sometimes oak, most often white birch. The roots push deep into the earth. They grow solid and powerful, holding the tree in place. They draw life from the earth up into a stout trunk\u2014strong enough to support the entire canopy about it. The rough lines marking the trunk\u2019s outer bark eventually give way to full curves as branches reach forth, all around, for giizis<\/em>, the sun. As the branches reach farther from the trunk, they produce magnificent leaves, leaves which sing in the wind, which explode into colour in fall, and finally which carpet the earth before biboon<\/em>, winter, settles in, helping to renew earth once again.<\/p>\n I think this image is a map for the relationship between lifeworld and law. The roots of a society are its lifeworld: the story it tells of creation, which reveals what there is in the world and how we can know. Creation stories disclose what a person is, what a community is, and what freedom looks like. The trunk is a constitutional order: the structure generated by the roots, which organizes and manifests these understandings as political community. The branches are our legal traditions, the set of processes and institutions we engage to create, sustain, and unmake law. The trunk conditions<\/em> the branches: it doesn\u2019t determine<\/em> what they\u2019ll look like, but it powerfully shapes them. A constitutional order similarly settles which legal processes are legitimate within it, but without ever determining a necessary given set of processes as the<\/em> legitimate ones. Subject to the conditions the trunk will support, legal processes and their institutions may vary considerably in object, scope, and means. Law, like leaves, experiences a still higher level of conditioning. It\u2019s subject to the branches, which are subject to the trunk, which is subject to what the roots will bear. All are intimately connected but never so tightly as to eliminate difference. No two trees are the same even if they\u2019re both white birch, the same age, and growing right next to one another. Similarly, while two Anishinaabe communities may have nearly identical constitutional structures, they will have laws that differ. Each level of legality within the lifeworld-law relationship is both empowered and constrained by the levels below. I want to say that every people is a tree. We tell different stories of creation (even those of us who don\u2019t acknowledge doing so or who explicitly disclaim a view of creation) and the story we tell powerfully conditions the constitutional order we bring into being. For all societies, that constitutional order will shape legal processes and institutions, and thus ultimately what we count as law.[40]<\/a><\/p>\n This isn\u2019t quite the full image, however. Unlike Canada\u2019s constitutional image of a \u201cliving tree\u201d,[41]<\/a> no tree is actually freestanding. The roots are buried in and wrapped tightly against earth. The tree is grounded in something beyond itself. A lifeworld doesn\u2019t reflect the spontaneous ideas of those standing within it. Our creation stories are of<\/em> something common: the earth beneath and all around us. What varies is how we understand it.<\/p>\n That\u2019s what\u2019s at stake. That\u2019s what I need you to understand.<\/p>\n The trouble isn\u2019t simply that we tell different stories which ultimately generate widely different bodies of law. That\u2019s a wonderful thing. We can learn from one another to the benefit of us all. The trouble is that some of us don\u2019t just<\/em> differ but differ in the kind<\/em> of stories we tell of creation. At thirty-five, my understanding is still small, but I\u2019ve yet to learn of a Turtle Island Indigenous people who tell a creation story that isn\u2019t rooted in earth.[42]<\/a> I believe all of our ancestors sustained political communities reconcilable to the earthway. This is why we\u2019re oriented to growth and renewal instead of progress and permanence, and ultimately why our political communities reflect conceptions of self, of community, and of freedom centred on interdependence (i.e., earthways), not autonomy.<\/p>\n The trouble I had as a law student is that Canadian constitutionalism isn\u2019t rooted. Its foundational presumption of earth-alienation is the condition of possibility for Canadians having as constitutional image a lone freestanding tree\u2014free even from the earth beneath it. This instrumental relationship with the Earth is true of all liberal constitutional orders. As you might imagine, this factored rather significantly into my Canadian legal education, establishing a major disconnect between the Anishinaabe lifeworld I brought to the classroom and the liberal lifeworld it expected of me. The latter world, as I experience it, is centred on division. It presents a categorical divide in moral status between humans (culture) and all other beings (nature). Humans are further divided internally. In our natural (i.e., literally as part of nature: pre-political) state, we exist (or imagine ourselves to have existed) as inherently disconnected units,[43]<\/a> although we\u2019re capable of choosing<\/em> inter-human connection through social contract. In this world, earth merely forms the background against which humans live out history. This world\u2019s constitutional order isn\u2019t rooted in earth but rather is spontaneously created through human will. It has no roots precisely because it isn\u2019t actually<\/em> connected to life. Humans simply imagined it and built their constitutional order upon an idea.[44]<\/a><\/p>\n The earth-alienation aspect of the lifeworld generative of liberal constitutionalism explains why most Canadians aren\u2019t able to see a link between the Charter<\/em> and global warming, which to me couldn\u2019t be clearer. Because of liberalism\u2019s view of persons as autonomous and because of its anthropocentric view that only humans are persons, from my perspective it\u2019s a worldview irredeemably committed to violence. And because this violent constitutional foundation is hegemonic within Canadian legal education, we generally allow it to occlude contestation that might otherwise enrich classroom discussion from rooted constitutional perspectives (\u201cgenerally\u201d because heroic attempts from Indigenous students and professors are sometimes made; note also that \u201crooted\u201d isn\u2019t to be conflated with \u201cdiverse\u201d or \u201cdissenting\u201d\u2014all good professors make room for these).<\/p>\n What might such perspectives consist of? For political communities rooted in interdependent conceptions of self-community (i.e., in earthways), freedom has a very different meaning than it does within liberal constitutional orders. Most importantly, freedom isn\u2019t conceived in terms of autonomous human individuals. It\u2019s neither the self\u2019s experience of non-interference from<\/em> the choice-limiting actions of others (negative liberty), nor the self\u2019s entitlement to<\/em> a specified set of collective goods taken as necessary for establishing and securing its personal autonomy (positive liberty).[45]<\/a> Rather, interdependent persons experience freedom always and only with<\/em> and through<\/em> others. An individual\u2019s freedom, the freedom of his or her community, and the freedom of all of its other members are mutually constitutive; each serves as an ongoing condition of the possibility of the other.[46]<\/a><\/p>\n This has significant implications for the structure of law. Under a rooted vision of freedom, order isn\u2019t secured through rule<\/em> of law; law isn\u2019t the formal obligation to respect rules (i.e., rights and correlative duties). Rather, law consists in the informal responsibility to coordinate mutual aid (i.e., gifts and needs) within particular forms of relationship: law is a framework for proper judgment.[47]<\/a> In describing Anishinaabe legality in 1850, Anishinaabe author George Copway[48]<\/a> expressed the distinction this way:<\/p>\n Among the Indians there have been no written laws. Customs handed down from generation to generation have been the only laws to guide them. Every one might act different from what was considered right did he choose to do so, but such acts would bring upon him the censure of the nation, which he dreaded more than any corporal punishment that could be inflicted upon him.<\/p>\n This fear of the nation\u2019s censure acted as a mighty band, binding all in one social, honourable compact. They would not as brutes be whipped into duty. They would as men be persuaded to the right.[49]<\/a><\/p>\n In liberal societies, the obligatory, internal relationship between rights and correlative duties specifies that the normative orientation of the right- and duty-bearing parties to a given situation is directly to one another. Obligation\u2019s logic of mandatory direct exchange doesn\u2019t hold for rooted legalities, however, in which parties exercise a particular form of judgment (not judgment simpliciter<\/em>) to distribute gifts and needs throughout their shared circle of political community (albeit through specific relationships, not randomly).[50]<\/a> Thus, imagine that A gifts B and, instead of returning a gift to A, B gifts C. Where legality turns on responsibility instead of obligation, A isn\u2019t necessarily done a harm and A experiences indirect reciprocity. A\u2019s analysis of B\u2019s possible wrongdoing will turn on the relative need of A and C and, critically, on the relationships obtaining between each of them with B (and if relevant, certainly between A and C). Although a rooted legality analysis doesn\u2019t turn on this insight, it may well be that, from A\u2019s perspective, A\u2019s own interests are best served by B\u2019s gifting of C: given that A to Z are interdependent, A\u2019s freedom depends on C\u2019s gifts and, thus, as a general matter, A is interested in C\u2019s empowerment.<\/p>\n Finally, please note that this introduction of rooted legality is oversimplified! I present it in only the simplest of terms, without any attempt to work it through critically. For the purposes of this article, I want only to illustrate the magnitude of difference between rooted (mutual aid) and liberal (contractarian) legalities. I think the following quotation by Basil Johnston beautifully expresses what I\u2019ve tried to explain here:<\/p>\n The community had a duty to train its members as individuals not so much for its own benefit though there was that end, to be sure, but for the good of the person. The man or woman so trained had received a gift from the community which he was to acknowledge in some form; and that form consisted simply of enlarging one\u2019s own scope to the fullest of his capacity. The stronger the man, the stronger the community; and it was equally true that the stronger the community, the firmer its members.[51]<\/a><\/p>\n This insightful passage by Leroy Little Bear may also assist interested readers in developing further lines of thought in connecting the notion of a rooted constitutional order I\u2019ve shared here with the experience of freedom with <\/em>and through<\/em>. Explaining Indigenous law, he said that<\/p>\n [anthropologists] have done a fairly decent job of describing the customs themselves, but they have failed miserably in finding and interpreting the meanings behind the customs. The function of Aboriginal values and customs is to maintain the relationships that hold creation together. If creation manifests itself in terms of cyclical patterns and repetitions, then the maintenance and renewal of those patterns is all-important. Values and customs are the participatory part that Aboriginal people play in the maintenance of creation.[52]<\/a><\/p>\n On the understanding that at least some of the customs to which Little Bear refers have to do with law and in light of what has been shared about rooted constitutionalism, why might anthropologists sometimes struggle finding purpose behind these customs? Little Bear says that the function of Indigenous law (what he calls \u201cAboriginal values and customs\u201d) \u201cis to maintain the relationships that hold creation together\u201d and I\u2019ve offered above an example of the kind of thinking that produces such a statement. What\u2019s the function of Canadian law? What kind of thinking allows for its purpose and how does it differ from mine and Little Bear\u2019s? Finally, what implication should follow from this difference for how Indigenous law is taught in law schools, if it should be taught in law schools at all?<\/p>\n In an ideal world, I\u2019d like this article to assist in transforming legal education in Canada such that other Indigenous students don\u2019t experience the level of confusion that I did as a law student. At the same time, I hope non-Indigenous students can learn about our legal orders in a way that avoids the violence of colonial translation from an Indigenous constitutional context into a liberal one.<\/p>\n First, to those of you who are Indigenous law students facing the pedagogical challenge of lifeworld occlusion and who may feel lost and stupid the way I did, I hope this article shows that you aren\u2019t alone in your struggle and that there may be something much more than an embarrassingly bad case of the usual sort of misunderstanding we all experience now and then contributing to your confusion. I know from many conversations that I\u2019m not the only one.[53]<\/a><\/p>\n Second, for those faculty members who want to support their Indigenous students but aren\u2019t aware of the possibility of the lifeworld-law disconnect or of what an experience of it might be like, I hope this article supports your efforts to take up responsibility for this knowledge. Important steps might include making space for and participating in dialogue on this issue as it arises, advocating for your students to be heard, and constructively engaging colleagues (faculty and administration) in ways that advance discussion of this issue so that students aren\u2019t expected to do all the work themselves.<\/p>\n Third, I\u2019d like to suggest three institutional reforms that, when taken together, would go a long way in addressing the problem I\u2019ve presented. My first suggestion is already well underway in some of Canada\u2019s law schools. This suggestion is to include a module in the first-year curriculum\u2014perhaps as part of a bridge week or introduction to law camp\u2014that would expressly establish that law is storied. Before students can apprehend any particular lifeworld beneath a system of law, they must first be introduced to the more general notion that law is never a collection of freestanding rules and processes. The law always reflects narratives, and, deeper than these, a worldview. When I was in law school, \u201claw and<\/em>\u201d was a major movement. Students were encouraged to pursue inquiry at the nexus of law and other social science and humanities disciplines (law and philosophy, law and economics, law and literature, etc.). While I think the \u201claw and\u201d approach is to be recommended, such an approach is distinct from what I\u2019m advocating for here. I\u2019m talking about \u201claw in<\/em>\u201d. Law as a discipline isn\u2019t fully constituted in and of itself; like every field of practice and inquiry, it comes from and depends upon a story for meaning and coherence. Without first attending to how law is shaped by story, the rich analyses offered through the \u201claw and\u201d approach risks obfuscating and even overlooking much of the work law does. Heidi Stark has a wonderfully clear and accessible paper that makes the \u201claw in\u201d point.[54]<\/a> The Peter Gabel paper cited above would also be a wonderful choice for a module presenting the inescapably storied nature of law.[55]<\/a> And as I\u2019ve already indicated, Leroy Little Bear\u2019s ethnographic examination of the deeply idiosyncratic Naidanac people has deadly aim on this point.[56]<\/a><\/p>\n My second suggestion targets the imperialism of legal education in Canada. I suggest that teachers of constitutional law courses include a small section on constitutional context at the outset. Mine didn\u2019t. We jumped right into federalism and then spent two classes on section 35 before moving onto the Charter<\/em>, which filled out the rest of the year. The context piece\u2014before any doctrine is engaged\u2014would establish that Canada\u2019s constitutional order is one of many within liberal constitutionalism. As such, this approach would own up to Canadian constitutionalism\u2019s inflexible structural commitments. In very plain language\u2014language designed so that students with no background in political theory (or any theory, for that matter) can access it\u2014this context component would establish the ideas and understandings liberal constitutional orders take to be sacred, which frame the boundaries of Canadian constitutional discourse and, as a result, are never subjected to interrogation under it. This contextual approach would include core concepts like the primacy of the self, individual autonomy, the sovereign, social contract, consent of the governed, rule of law, rights discourse, the vote, etc. Each of these concepts would be disclosed as a choice taken amongst other possible choices, and the common thread between these particular choices would be revealed to students. The students would then hopefully begin to perceive this assemblage of concepts as a particular, coherent framework<\/em> for constitutionalism and thus for a particular view of legality.<\/p>\n The course would only proceed on the basis of the understanding that everything students are about to learn reflects this underlying framework. Evidently, such a context-setting module would be a small intervention into already dense constitutional law courses. Yet even in this limited way, this intervention will surely be met with strong opposition from many constitutional law professors who (for instance) refuse to teach section 35 on the basis that there isn\u2019t enough time in the year. Clearly, how each professor takes up such a responsibility will vary, but I\u2019m suggesting that students need only an introductory understanding of liberalism in order for courses on Canadian constitutional law to be accountably situated within the liberal lifeworld animating and bounding them. The purpose isn\u2019t to require law students to become skillful political theorists. It\u2019s to instill in students the idea that their constitutional law is partial (i.e., storied). Otherwise, they\u2019re likely to recognize that law and legal actors may be biased (subject as they are to the vagaries of human interest and fallibility) but then falsely believe that the constitutional structure beneath them is neutral and thus spared from a concern about its particularity and exclusions. Since the framing of Canadian constitutionalism within the liberal lifeworld would only be introductory, professors could consistently refer back to this foundational liberal vocabulary as they proceed through the course. For example, a professor could discuss with his or her students the role and function of individual autonomy within the provisions of the Charter<\/em>, noting also where Canada\u2019s constitutional order deviates from classical liberalism in important ways.<\/p>\n My third suggestion for institutional reform is the most important. Many of Canada\u2019s law schools are already engaging with Indigenous peoples\u2019 legal orders. I\u2019ve suggested that this interest has just about become mainstream and that the debate is now deepening. I frequently hear Indigenous law students and professors and Indigenous community members voicing mixed feelings and raising thoughtful, challenging questions about the uptake of Indigenous law by the state and in Canadian law schools. Often these questions regard issues of translation (ontological, epistemological, procedural, discursive) and the abstracting of law situated in particular lands, relationships, and cultural understandings (i.e., what I call rooted constitutionalism).[57]<\/a> Despite the considerable time and efforts of so many, I think the complex debate around the teaching of indigenous law in Canadian law schools is still in its early days.<\/p>\n Although I\u2019m still a doctoral candidate, with increasing frequency, a law professor will inform me about what\u2019s happening at his or her faculty or what new curricular moves they\u2019re contemplating with respect to Indigenous peoples\u2019 legal orders. I\u2019m always grateful for these conversations, but they often come with some awkwardness. I\u2019m not always able to support proceeding as described. Over time, I\u2019ve figured out the reply I\u2019m comfortable with and it\u2019s as follows. The first step is to gently suggest that I don\u2019t think it\u2019s okay to simply teach a course on an Indigenous legal order (or a comparative law course that draws on aspects of an Indigenous legal order with aspects of either Canada\u2019s common law or civil law traditions) that fails to attend to the question of lifeworld. When we do this, I worry that we do violence to Indigenous legal orders and that we mislead students about what it means to work with them. We disappear the stakes.<\/p>\n That said, I want to encourage the study of Indigenous legal orders at law schools in Canada. If we don\u2019t teach Indigenous law, how can we expect Canadian law practitioners to understand Indigenous perspectives (including, for instance, actions of civil disobedience which may seem like non-compliance but which are often compliant with a distinct Indigenous legal order) and, just as important, to advert to their own participation in suppressing Indigenous law, acting and advising clients as if there is none? I hope this article doesn\u2019t have a chilling effect on law faculties, but rather encourages and even supports them in taking up the significant challenge of teaching Indigenous law in the context of Indigenous constitutionalism<\/em>. That said, I would advocate for caution in how<\/em> we go about encouraging the study of Indigenous legal orders. Those committed to teaching and studying these orders must understand that the responsibility, and hence their commitment, is larger than perhaps they appreciate. Thus, the second step in my response is to suggest that before we proceed with teaching the content of any Indigenous legal order, we must first teach students about the Indigenous constitutional order that gives it life and meaning. We need to situate the Indigenous legal order we wish to learn and teach about within its lifeworld, which is not something that just anybody can do. Further, this isn\u2019t something that we can come anywhere close to fully accomplishing within a law school. What we can offer students is a glimmer of what exists and empower them to be able to learn more elsewhere.<\/p>\n To put this condition into practice in law schools, I propose that students need a course (and not just a few lectures) on an Indigenous people\u2019s constitutional order before they\u2019re prepared to begin learning about its legal order. If a law school fails to institute such a prerequisite course, the odds are extraordinarily high that the students will proceed to read and distort Indigenous law through the liberal constitutional lens they know, even if unbeknownst to them. The ideal curricular response to this worry would go further still. As part of its core first-year curriculum, each law school in Canada could have a mandatory course on the rooted constitutional mode or, better yet, the constitutional orders of the Indigenous peoples on whose traditional territory it\u2019s located. Such mandatory courses would soon come to be understood as equally necessary and foundational for a serious legal education in Canada as are courses on Canadian constitutional law, criminal law, voluntary obligations, and involuntary obligations. Of course, certain responsibilities are inherent to taking up such a curricular ambition. An obvious one is the hiring of instructors with the unique qualifications necessary for teaching such courses (recognizing that views as to what those qualifications are will vary). Another equally obvious responsibility is the necessity for the law school administration to build a relationship with local Indigenous communities, who should be involved in any such endeavour.<\/p>\n I don\u2019t know of any law faculty that requires its students to learn about Indigenous constitutional orders,[58]<\/a> so I thought it might be helpful to offer an example of what I mean. It\u2019s quite limited\u2014the students and I had twelve hours together, divided over five days\u2014but it\u2019s the only one I have. I built and, in January 2015, taught Law 2555: Anishinaabe Constitutionalism<\/em>, an intensive course at Lakehead University\u2019s Bora Laskin Faculty of Law (which I\u2019m fortunate to now be turning into a full-semester course).<\/p>\nI.\u00a0 Lifeworld and Contemporary Scholarship on Indigenous Legal Orders<\/h1>\n
II. \u00a0Lifeworld and the Revitalization of Indigenous Legal Orders Today<\/h1>\n
A.\u00a0 Rooted Constitutionalism: One Way of Understanding Lifeworld and Law<\/h2>\n
B.\u00a0 Implications of Lifeworld for Legal Education Across Liberal and Rooted Constitutional Contexts<\/h2>\n