A Mosaic of Indigenous Legal Thought

Legendary Tales and Other Writings

C.F. Black

• Publisher: Routledge
• Year: 2016
• Print ISBN: 9781138223844
• eBook ISBN: 9781315391083
• Edition: 1
• Topic: Law
• Subtopic: Civil Law
• Index: Law

This book offers an Indigenous supplement to the rich and growing area of visual legal scholarship. Organized around three narratives, each with an associated politico-poetic reading, the book addresses three major global issues: climate change, the trade in human body parts and bio-policing. Manifesting and engaging the traditional storytelling mode of classical Indigenous ontology, these narratives convey legal and political knowledge, not merely through logical argument, but rather through the feelings of law and the understanding of lawful behaviour produced by their rhythm. Through its own performativity, therefore, the book demonstrates how classical Indigenous legal traditions remain vital to the now pressing challenge of making peace with the earth.

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Part I
Visualizing Indigenous jurisprudence

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Chapter 1
A poem

The originals

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The originals,

they came long before us,

seeking out food and shelter,

harbouring their own ways of thinking,

their own ways of knowing the land.

So very different from us.

They held their nightly feasts

in places unseen by us.

They shared their knowledge

and built their towers of mud and clay

or burrowed deep underground.

Those on high chirped and discussed

the pervading winds

and the knowledge borne

by the spirits of the winds of the West.

They took their direction from the Unseen

and knew of places that we could not see

So very different from us.

As they spread with ease

and gentleness across the land,

their direction guided

by a collective unknown.

Their expectation was much

and their lives were devoid of stuff.

They fought and breed at the speed

that Nature preordained.

And so the balance came

and went and so did they.

No need of despair

that they no longer bore

nor breed.

So very different from us.

Their intention was not

to rule the world

for they barely noticed it

as their lives passed

with speed and intent.

Intent borne of survival

and rapture in the moment.

So very different from us.

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Chapter 2
Video clip

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As we are all basically cyber-connected through our handy mobile phones, it would not seem out of order to ask the reader to watch this short video clip of Marshall McLuhan before reading on, as it will contextualize my book and also show just how far we are behind in our understanding of the present world of technological development and control of the way we do things.

https://www.youtube.com/watch?v=viuIKgjLnDE

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Chapter 3
Visualizing Indigenous jurisprudence through a diverse range of narratives

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The manner in which primitive, tribal people understood the world and the way we must now understand the world are identical. We stand at the dawn of a new creation, for we can no longer process our experience into predetermined categories of explanation; we require a generalised approach to life which can give us meaning that transcends the immediate intake of data.

– Vine Deloria Jr¹

But now, gazing across a landscape that has shown us the consequences of the Cartesian model as it has played out from early to late modernity, it has become apparent a new paradigm is needed. We have come full circle and the renewal of the very impulse that gave birth to modernity, in the face of comparable epistemological crises, now calls for an integral rhetoric that complements the virtues and counters the defects of critical reason with the sublime elegance and binding power of ethical wisdom.

– Richard Sherwin²

Although we know a tremendous amount about the nuances of cognitive processing, that knowledge does not go all the way toward explaining human behavior. In fact, emotion turns out to be an enormously powerful predictor of behavior, especially in the area of politics and policy.

– Jennifer Lerner³

This book offers a timely departure from the standard form of Indigenous legal argumentation within the discourses of laws and returns to the ‘old’ for guidance on preparing text that may transition into the visual vortex now surrounding us with meaning. The exponential speed and volume of data upon us each day call for a different approach to understanding the world, as do the ways in which connectivity is eroding traditional power structures.⁴

Google alone is teaching us new ways of understanding our knowledge – the shift from the knowledge worker to the smart creative typifies the new employee in the internet century.⁵ This book is written for the smart creative – that person whose understanding of the world is lateral and diverse. Google rose as the shift from the dominance of the supplier moved to that of the ‘informed’ consumer: a consumer whose world is saturated with visual stimuli cached in tantalizing storylines. A consumer with an expectation that they must be entertained on the one hand, but choose the meaning they wish to draw from the information being offered on the other. The legal world is also subject to this fundamental power shift in meaning-making. We can no longer dictate who or what is an expert because the internet century is one of speed and constant change in social norms and geopolitics. Just as the nineteenth-century male legal theorist is now suspect in a world in which women and ‘the other’ have a voice and a right to practise their laws, so too is the manner in which we present knowledge. Therefore, this book offers a mosaic of writings that are more aligned to a matrix structure, and encourages the reader to connect with the stories and other writings in order to form their own opinions. The intention is not to offer a complete thesis on one subject, but rather to present a new paradigm as suggested by Sherwin – one built on Deloria’s call for a generalized approach to life – which can give us a meaning that transcends the immediate intake of data. Furthermore, it is designed to align the reader’s feelings about a topic rather than suggest that they try to ‘take in the immediate data’ on the subject being discussed, because:

when law migrates to the screen it lives there as other images do, motivating belief and judgement on the basis of visual delight and unconscious fantasies and desires. This condition of ontological and ethical uneasiness threatens the legality of law’s claim to power.⁶

Sherwin cautions that new factors have begun to influence judgement and belief and, as neurologists have discovered, it is emotions and experiences that shape decision-making; this points to the importance of storytelling, which I suggest is an important skill in the new paradigm. Just as legal judgments often come down to who tells the most compelling story, the same principle applies in the visual world.

The mosaic is therefore made up of a group of loosely interconnected themes and characters, meant to stimulate the reader to make connections to their own understandings of law and lawful behaviour in the Indigenous world and the world around them. This book does not guide or encourage the traditional ways of critical thinking, but instead follows the path of the traditional story and offers an opportunity for the reader to consider an issue by reading my account, in both narrative and rhetoric form, of how I came to an understanding of it. Just as anthropomorphic tales are not written for critical analysis, the mosaic of works can be said to be a series of journeys or songs through which the reader may move at their own pace. Like all journeys/songs, some are of interest and others are not. This certainly applies to the following works. I am not setting out a definitive account of any particular issue; rather, I invite the reader into the world of my moral compass and the ways in which I find meaning. I therefore take the reader on a journey/song to make their own connections, and to evoke their own emotions and experiences, which may help to formulate their own decisions and to guide their moral compass in these times of exponential growth of data and visual stimulation. My approach is a response to Sherwin’s argument that ‘motivating belief and judgement on the basis of visual delight and unconscious fantasies and desires’ requires a new approach to Legal Studies.⁷ This book offers a matrix of writing to bring forth the jurisprudence of ‘feeling the law’ or song of the law, as well as returning to a ‘tribal way’ of understanding Indigenous legal thought.

Building on that jurisprudence, this book is held together thematically by three anthropomorphized animal tales, which make up the Legendary Tales of the Wind Watchers. Each tale develops a narrative loosely centred on a major global issue. Those three issues are climate change, the trade in human body parts and bio-policing. The intention is not to turn the global issue into the central theme of each story, but rather to influence the interaction of the characters in the stories and also in the other writings.

Interwoven through the themes are a series of subtexts that are impacted by these global dilemmas, together with a smattering of poetry. Once again, the poetry is highly visual, and is an emotive response to the issues dealt with in the writings that follow each tale. The three themes, and the decision...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright Page
• Dedication
• Table of Contents
• Acknowledgements
• Part I Visualizing Indigenous jurisprudence
• Part II Climate change
• Part III The trade in body parts
• Part IV Bioinsecurity
• Part V Last words