The Political Economy of “Aboriginal Customary Law”

Discussions about aboriginal-non-aboriginal relations in Canada have stressed the need to recognize “aboriginal customary law” in self-government arrangements. It is maintained that many aspects of “native law” differ radically from the legal systems that emerged in European countries, and so imposing Canadian conceptions of law on aboriginal communities is an obstacle to native self-determination; there will be a continuation of aboriginal dependency and social dysfunction because governance will be inconsistent with the values and world views particular to indigenous cultures. These arguments, however, have not considered the major difference between the forms of social control in kinship-based groupings and those that are required for self-determination in modern nation-states. Using a political economy perspective, this difference will be examined. A historical and materialist analysis will show that “aboriginal customary law” actually pertains to custom, not law, and this has tremendous implications for the capacity of “indigenous legal systems” to function effectively in the modern context. In addition to analyzing this fundamental difference between aboriginal and modern political systems, the paper will also raise questions as to why this circumstance has been ignored or downplayed in the literature.