Freedom and Indigenous Constitutionalism

Book, 2016, 371 pp
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Indigenous traditions can be uplifting, positive, and liberating forces when they are connected to living systems of thought and practice. Problems arise when they are treated as timeless models of unchanging truth that require unwavering deference and unquestioning obedience. Freedom and Indigenous Constitutionalism celebrates the emancipatory potential of Indigenous traditions, considers their value as the basis for good laws and good lives, and critiques the failure of Canadian constitutional traditions to recognize their significance.

Demonstrating how Canada's constitutional structures marginalize Indigenous peoples' ability to exercise power in the real world, John Borrows uses Ojibwe law, stories, and principles to suggest alternative ways in which Indigenous peoples can work to enhance freedom. Among the stimulating issues he approaches are the democratic potential of civil disobedience, the hazards of applying originalism rather than living tree jurisprudence in the interpretation of Aboriginal and treaty rights, American legislative actions that could also animate Indigenous self-determination in Canada, and the opportunity for Indigenous governmental action to address violence against women.

"He's a law professor, and the title of his book doesn't sound all that fun, but John Borrows is a wonderful storyteller who will make you want to know more about Indigenous legal traditions. A devastating consequence of the Doctrine of Discovery has been the domination of European legal systems and the suppression of Indigenous legal systems. Borrows argues that we must find ways for the Canadian constitutional tradition to recognize Indigenous jurisprudence in order to address matters of injustice. This will be good news for all. Living Indigenous traditions have real potential to be liberating forces that can strengthen both Indigenous self-determination and the Canadian state." - Steve Heinrichs

Editors' Picks for Further Reading from Yours, Mine, Ours: Unravelling the Doctrine of Discovery

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