Relationship Problems: Searching for Relations of Justice in Contexts of Fundamental

Normative Diversity

Cherry 1

Keith CherryA Paper Submitted to the UBC Graduate Law Conference

May 2nd 2014

AbstractCanadian settler society has long attempted to impose its rights based morality upon indigenous peoples, displacing their own fundamentally different moral systems. It does so not least to prevent rights violations, which it genuinely believes are deeply, seriously wrong. Yet in imposing these beliefs upon others and displacing their own moral systems, the settler state itself violates their rights to liberty, moral autonomy and self-government.

Far from an ironic coincidence, I believe that this illustrates an important tension in inter-cultural theory. If we do not impose our views on others, than we may be forced to stand by while they do things that we find wrong. Yet in order prevent this, we must subordinate their morality to our own; an act whichis itself wrong. Either we permit an injustice, or we commit an injustice. The following paper asks how we might respond to this dilemma.

It explores recent innovations in the legal relationship between the European Court of Justice, the European Court of Human Rights, and the courts of their member states. This model of “Coordinate Constitutionalism” allows each party to insist on itsown fundamental beliefs without seeking to subordinate other moral systems to them. As such, I contend that Coordinate Constitutionalism may contain important principles and useful mechanisms that could help us seek relations of justice in contexts of fundamental normative diversity.

Section One - Confronting Fundamental DifferenceThe year is 1988. David Thomas is a Coast Salish man with

Cherry 2

substance abuse, emotional, and marital problems1. In response,

his common law wife, Kim Johnny, asks local elders to initiate

Thomas into the Spirit Dancing tradition of the community2. With

the perceived permission of immediate relatives, several

community members carried out Johnny’s request, grabbing Thomas,

taking him to a nearby longhouse without his consent, and

confining him there for four days while the initiation ceremonies

took place3. In accordance with tradition, Thomas was denied food

and water and repeatedly, if not severely, beaten4. After the

event, Thomas brought legal action against his initiators,

claiming he had been assaulted, battered and wrongfully confined,

claiming his human rights had been violated, in short, claiming

that he had been wronged. His initiators, however did not see

their actions as wrong. They did not dispute their actions, but

argued that they were acting according to their own customs and

beliefs5. In defending their actions, Thomas’s captors were

asserting an alternative moral system, one in which their actions

1 Thomas v. Norris, 1992 354 (BCSC) at 2.2 Ibid at 1.3 Ibid at 1.4 Ibid at 2.5 Ibid at 1.

Cherry 3

were right and just, one in which Thomas had not been wronged. In

this sense, the case represents a clash of moralities, one based

intrinsically in individual rights and one that uses a different

set of moral criteria.

Cases like this put many pluralists, myself included, in an

awkward position. I recognize that my own moral view is merely

one of many, a result of my own cultural and personal history6. I

realize that different historical contingencies give birth to

different moralities, and I can claim no special status for my

own perspective7. Moreover I believe in the positive value of

moral diversity8. I am, in this sense, a pluralist9. I cannot 6For an excellent discussion of the historical contingency of western moralitysee Adamantia Pollis and Peter Schwab, 'Human Rights: A Western Construct withLimited Applicability', in A. Pollis and P. Schwab (eds.), Human Rights: Cultural and Ideological Perspectives (Praeger: New York, 1980) at 3.7 Jeremy Webber, “Legal Pluralism and Human Agency” (2006) 44 Osgoode Hall LawJournal 1 at 185.8 Webber, for example, argues that because each legal order is organically connected to its social context, we might make an initial presumption that local legal orders are particularly well suited to local problems. See Ibid at 185. 9 As this paper concerns colonial relationships in which I am personally implicated, it is only appropriate to acknowledge my own positionality within the project. My background is European, and I was raised in a mainstream Canadian cultural milieu, living off the spoils of Indigenous dispossession. Iam not myself in any way Indigenous. In fact, I am Anglo-Saxon, English speaking, male, able-bodied, middle class and well educated, and readers should be aware that this social position inevitably colours my analysis. Readers should also recognize any acceptable model of intercultural relations will necessarily be born of intercultural conversation. In this sense, my paper must not be read as a proposal in and of itself, but rather as one voiceentering into a much needed conversation.

Cherry 4

therefore justify imposing my own standards of judgement on the

Coast Salish. I believe deeply that they should be able to live

by their own morality, just as I should be able to live by my

own. Yet at the same time, I cannot turn a blind eye to Thomas’

pleas for help. I also believe that the way Thomas was treated is

in some important sense wrong. What then, am I to do? Am I to

stand by while the Coast Salish do what I find unconscionable?

Alternatively, am I to impose my own standards upon them for no

better reason than because I can?

Section Two - Responding to Fundamental Difference

In one famous reaction to this problematic, Stanley Fish

argues, rightly I think, that without an objective space to speak

from, we are each a prisoner of our own ideology, unable to

escape our own worldviews10. As a result, he argues that we can

only ever show superficial respect for other normative orders,

that is to say that we can respect them just until the point that

they conflict with some deeply held belief of our own, at which

point we cannot help but impose our own standards upon them11. To

10 Stanley Fish, “Boutique Multiculturalism, or Why Liberals Are Incapable of Thinking about Hate Speech” (1997) 23 Critical Inquiry 2 at 383.11 Ibid at 383.

Cherry 5

tolerate them past this point would, after all, be to ignore our

own most fundamental moral impulses, which is something we simply

cannot do12. For this reason, Fish concludes that all

multiculturalism eventually collapses into what he calls

“boutique multiculturalism”, a thin version of diversity that

accepts only those forms of differences that do not challenge

dominant beliefs13. Ultimately, Fish suggests that this view

makes any sort of fair inter-cultural relation impossible, that

we have no choice but to buckle down and defend our own

fundamental beliefs when they are challenged by the fundamental

beliefs of others. Thus, Fish suggests that inter-cultural

relations should be understood as competitive, with each system

trying to “win” by doing whatever it can to increase its own

political power and undermine the position of other systems14.

When the political situation nevertheless demands some sort of

accommodation, this will be achieved by “inspired adhocery”,

rather than any illusion of a principled relation between the two

communities15. True, principled multiculturalism, Fish contends,

12 Ibid at 384.13 Ibid at 384.14 Ibid at 392.15 Ibid at 386.

Cherry 6

is entirely impossible16.

Thus, when Denis reacts to the Thomas case by writing “I am

in favour of self government, but does that mean having to accept

people being treated like this? I can’t accept this!”17, Fish would

respond that Denis is precisely right, that he can’t accept this.

That he has no choice but to force Thomas’s captors to live by

his own standards. To do otherwise would be to abandon these

standards altogether. Yet something about this conclusion strikes

me (and Denis, for that matter) as deeply unsatisfactory. I

understand Fish’s point, which I take to be that truly

accommodating the other sometimes requires accommodating what I

believe to be morally unconscionable. Yet I also believe deeply

in the value of diversity. Thus, to revert to a strategy of

callously and intentionally acting to undermine other worldviews

and to impose my own forcibly upon their adherents strikes me as

in itself morally unconscionable. This too, challenges my most

deeply held beliefs. In this sense, Fish’s attempt to save us

from having to violate our own most cherished principles in fact

16 Ibid at 384.17 Claude Denis, We Are Not You: First Nations and Canadian Modernity (Peterborough: Broadview Press, 1997) at 21.

Cherry 7

forces us to do just that, at least where toleration and

diversity are themselves cherished principles.

Section Three - Canadian Colonialism

Unsatisfying though it may be, Fish’s description seems to

match the Canadian experience well. In a sense, Settler society

has conducted itself precisely as Fish would suggest, by

asserting its own fundamentals as universal, acting however it

can to undermine alternative positions, tolerating them only at a

superficial level, and resorting to a sort of unprincipled

adhocery when the political situation absolutely demands it18.

The result has been nothing short of cultural genocide, and has

rightly been called the [north] American holocaust19 20.18 Webber, for example, contends that early colonial relationships were powerfully influenced by the degree of economic interdependence that existed between local Indigenous and Settler populations. Where Settlers had need of Indigenous fur traders, relations were more amiable. Where agriculture createdresource competition, relations were more violent. Moreover, Settler populations often found that conditions forced them to adopt more modest positions than their philosophical orientations suggested. In this sense, colonial policy did proceed on an ad-hoc, rather than principled basis. See Jeremy Webber, “Relations of Force and Relations of Justice: The Emergence of Normative Community between Colonists and Aboriginal Peoples” (1995) 33 Osgoode Hall Law Journal 1. 19 David Stannard, American Holocaust: Conquest of the New World (Oxford: Oxford University Press, 1997).20 The history of Indigenous suppression, dispossession, and subjugation is too long, varied and horrific to do justice to it here, and I can only apologise for the brevity and insufficiencies of my treatment. I strongly encourage readers to delve more deeply into the literature. Borrows, Alfred, Turner, the Truth and Reconciliation Commission, and the Royal Commission on Aboriginal Peoples are all excellent place to start.

Cherry 8

To take just a few woefully insufficient examples, settler

law was gradually superimposed on top of existing Indigenous

legal regimes21, first becoming dominant in inter-communal

affairs and then gradually invading even internal Indigenous

matters22. Eventually, the application and enforcement of

Indigenous law would itself be criminalized23. Similarly, treaty

processes were manipulated, carried out in bad faith, and

disregarded altogether24. Foreign governance structures were

imposed in the place of traditional ones25. Traditional

ceremonies, forms of dress and religious practice were outlawed,

even as the residential school system undertook the industrial

scale indoctrination and deliberate westernization of Indigenous

youth26. For years, the stated goal of Federal Indian policy was

21 Georges Erasmus and Rene Dussault, Report of the Royal Commission on Aboriginal Peoples(Ottawa: The Royal Commission on Aboriginal Peoples, 1996) at 123. 22 Ibid at 123.23 Val Napoleon and Hadley Friedland, “Indigenous Legal Traditions: Roots to Renaissance”. Forthcoming in The Oxford Handbook on Criminal Law (Oxford University Press, Oxford, 2014) at 7.24 Leonard Rotman, “Taking Aim at the Canons of Treaty Interpretation in Canadian Aboriginal Rights Jurisprudence” (1997) 11 University of New Brunswick Law Journal 46 at 13.25 John Milloy, “Indian Act Colonialism: A Century of Dishonor, 1869-1969” (2008) Research Paper for the National Centre for First Nations Governance at 9.26 Truth and Reconciliation Commission of Canada. They came for the Children: Canada, Aboriginal peoples, and Residential Schools (Winnipeg: TRC, 2012).

Cherry 9

the cultural extermination of Indigenous worldviews27. When this

approach became politically untenable, the colonial state sought

to accommodate Indigenous difference through multiculturalism,

aboriginal rights, and the modern treaty process28. Yet as

Charlotte Chicoine-Wilson has just pointed out29, bridges like

these are often unidirectional, as they force indigenous

moralities to conform to a baseline of fundamental rights which

cannot be challenged without creating space for indigenous

peoples to insist on their own most fundamental beliefs30.

As a result of these lopsided, unprincipled intercultural

relationships, the very sort that Fish suggests, human rights

have indeed come to act as a moral and legal baseline in many

settler-indigenous relations. In this sense, the settler state is

“winning” the moral contest, it is able to effectively outlaw 27 Ibid at 81.28 Johnny Mack, "Hoquotist: Reorienting Through Storied Practice". In Lessard,Johnson, and Webber, eds. Storied Communities: Narratives of Contact and Arrival in ConstitutingPolitical Community (Vancouver, UBC Press, 2011) at 291.29 Charlotte Chicoine-Wilson, “Recognition of Indigenous law in the Andean constitutional order: a one-way bridge?” (paper delivered at the UBC Graduate Law Conference, Vancouver, May 9th 2014), unpublished.

30 Johnny Mack, "Hoquotist: Reorienting Through Storied Practice". In Lessard,Johnson, and Webber, eds. Storied Communities: Narratives of Contact and Arrival in ConstitutingPolitical Community (Vancouver, UBC Press, 2011) at at 297. Aboriginal Affairs andNorthern Development Canada. “The Indian Reserve Land Base in Canada”. Communication Reports (2010). Accessed at www.aadnc-aandc.gc.ca. Web. 16 Apr. 2014.

Cherry 10

what it finds unconscionable. Yet this state of affairs has

itself come to pass through unconscionable acts – acts which fly

in the face of the very rights framework they sought to extend.

Indigenous territory has been reduced to less than 0.2% of its

initial total31, often without consent or under duress, and in

clear violation of indigenous property rights. Indigenous peoples

have also been dispossessed of control over their own lives.

Ruled over by a federal minister that does not represent them32

in clear violation of democratic rights33. Indigenous peoples

also continue to experience widespread individual and

institutional racism, in flagrant violation of their civic

rights34. All this in the pursuit of justice.

31 Aboriginal Affairs and Northern Development Canada. “The Indian Reserve Land Base in Canada”. Communication Reports (2010). Accessed at www.aadnc-aandc.gc.ca. Web. 16 Apr. 2014 at 1.32 John Milloy, “Indian Act Colonialism: A Century of Dishonor, 1869-1969” (2008) Research Paper for the National Centre for First Nations Governance at 9.33 Mary Ellen Turpel, “On the Question of Adapting the Canadian Criminal Justice System for Aboriginal Peoples: Don’t Fence Me In” In Dussault and Erasmus, eds, Aboriginal Peoples and the Justice System: Report of the National Round Table on Aboriginal Justice Issues (Ottawa: RCAP, 1993) at 7.34 Anaya, James. “United Nations Special Rapporteur on the rights of Indigenous peoples, Statement upon conclusion of the visit to Canada” (speech delivered in Ottawa,15 October, 2013); Frank Iacobucci, First Nations Representation on Ontario Juries (Toronto: Government of Ontario, 2013); Johnny Mack, “Primitive Amalgamations,Regeneration and Intimate Critique in Indigenous Contexts” (2014) Forthcoming.

Cherry 11

Section Four - Searching for Relations of Justice in Contexts of

Fundamental Normative Diversity

Fish’s position on inter-cultural relationships is troubling

enough in the abstract. Even there, the tensions it creates cry

out for a more satisfactory approach. Yet the Canadian context

shows the gruesome human face of such an orientation towards

cultural difference. I don’t see how anyone can look on at this

relationship with approval, especially those like Fish who hold

the settler morality of human rights and universal equality so

dear. This relationship is clearly unacceptable, and for reasons

rooted firmly in European worldviews. It is our own aversion to

oppression, unjust dispossession, and cultural genocide, our own

commitment to freedom, equality and diversity which prevail upon

us to reconsider our approach.

Yet how can we possibly re-conceive this approach without

doing what Fish says is impossible, that is, escaping the

particularity of our own positions, or sacrificing our own

fundamentals? James Tully suggests an intercultural dialog in

which neither member sets the terms of the discussion, in which

Cherry 12

these terms are set mutually35. In stark contrast to Fish, Tully

contends that the very act of entering into such a dialog will

help create the mutual understanding needed to forge some common

ground through which to regulate our interactions36. But what

could this look like in institutional terms? What mechanisms,

principles and doctrines might we employ in order to facilitate

an intercultural relationship in which no one is required to

abandon their own most cherished beliefs?

Section Five - Coordinate Constitutionalism

I believe that I may have found some promising ideas in an

unexpected place: the European Union. This source is unexpected

because Europe is not typically characterized by the sort of

deep, fundamental, ontological, epistemological and axiomatic

diversity that I have been describing. The differences between

European worldviews, although considerable, pale in comparison to

those between settler and indigenous Canadian societies.

Nevertheless, I will try to show why I think the Europeans have

developed certain tools which are in fact unexpectedly well suited

35 James Tully, Strange Multiplicity: Constitutionalism in an Age of Diversity (Cambridge: Cambridge University Press, 1995).36 James Tully, “Cultural Demands for Constitutional Recognition” (1995) 3 Journal of Political Philosophy 2 at 129.

Cherry 13

to contexts of deep normative diversity.

According to Sabel and Gerstenberg, recent extensions of EU

law into the field of human rights has created competition

between the interpretive claims of the European Court of Justice

(EJC), European Court of Human Rights (ECtHR), and the Courts of

their member states37. However, the authors contend that these

competing claims are being resolved through a novel model of

coordination, rather than conflict38.

The core of this emerging approach is the Solange principles

of the German Constitutional Court. In Solange 1,39 the court held

that because the EU legal system did not offer sufficient rights

protection, EU laws must be reviewed for compatibility with the

German constitution40. In Solange 2,41 the Court found that the EU

had since developed an impressive rights jurisprudence which

offered protections broadly equivalent to its own42. As a result,

it declared that it would no longer review EU laws unless a

37 Charles Sabel and Oliver Gerstenberg, “Constitutionalising an Overlapping Consensus: The ECJ and the Emergence of a Coordinate Constitutional Order” (2010) 16 European Law Journal 5 at 512.38 Ibid at 512.39 BVerfGE 37, 271 (Solange I); English translation at [1974] 2 CMLR 540.40 Ibid at 513.41 BVerfGE 73, 339 (Solange II); English translation at [1987] 3 CMLR 225.42 Ibid at 513.

Cherry 14

plaintiff could present systematic evidence that the EU no longer

accords with German constitutional essentials43. Thus, the

Germans relaxed their standard, allowing the EU a broad range of

case-by-case discretion. Or, to put it the other way, Germany,

without ceding its own ultimate authority, decided to defer to EU

decisions, even when they differed substantially from its own,

subject only to the condition that the EU not systematically

violate their most fundamental legal beliefs.

Subsequently, the ECJ and ECtHR both adopted similar

policies towards national governments, and towards each other44.

As a result, each legal order now allows the others a broad range

of discretion while simultaneously asserting its own ultimate

kompetenz-kompetenz. When one order does find a systematic

violation of its own essentials, it remands the issue to the

offending party’s legislature, requiring the offender to achieve

a particular result without dictating the instruments and methods

for achieving it45, thus allowing the other to respond to the

relevant concern in a way they see fit.

43 Ibid at 517.44 Ibid at 520.45 Ibid at 522.

Cherry 15

According to Sabel and Gerstenberg, the result is a sort of

coordination without hierarchy, as each legal system checks and

is checked by the others until their decisions reach a mutually

acceptable space. In this way, “the relationship between the

three European legal systems—EU rights; Convention rights;

domestic fundamental rights—is characterised less by hierarchy

(or a contest between claims to hierarchy), than by an effort to

achieve rule-of-law oriented coordination in an overall system

with no final decider and no Archimedian point. Private

litigation at the behest of aggrieved individuals sets in motion

a process in which each court must explain its concerns, and its

respective law, in terms that can be understood and shared across

plural legal regimes”46. This arrangement is polyarchic, in that

decisions are made horizontally with no final power, and

deliberative, as each order is called upon to explain itself in a

manner cognizable to the others47.

Section Six -Coordinate Constitutionalism and Contexts of

Fundamental Normative Diversity

The authors describe Coordinate Constitutionalism as

46 Ibid at 526.47 Ibid at 546.

Cherry 16

operationalizing a sort of overlapping consensus48. They

emphasize how each system provides equivalent protections in

different ways, thus stressing a core of fundamental similarity.

In this way, they present Coordinate Constitutionalism as a

mechanism for managing relatively shallow normative differences.

Perhaps this is because Europe largely is characterized by a

normative consensus regarding the importance of individual

rights, as evidenced by the very existence of bodies like the

ECtHR. As such, differences may be largely limited to how certain

rights will realized. However, I would argue that this degree of

fundamental consensus is more a result of common historical and

philosophical traditions than of the constitutional coordination

the authors describe.

On my reading, Coordinate Constitutionalism itself can be

understood as little more than an agreement by each legal order

not to regularly do what the others find unconscionable. While an

overlapping consensus limits the political to that which can be

agreed upon, this arrangement permits anything not fundamentally

unconscionable to one of the participants. It requires no pre-

48 Ibid at 544.

Cherry 17

existing consensus at all. In fact, it is specifically based on

dissensus. In fact, I believe that the ideas and principles

contained in this process of coordination may have the potential

to help us respond to Fish’s concerns in a far more satisfying

manner than his own suggestion of unfettered cultural

competition.

Ironically, they do so primarily by conceding Fish’s primary

point; that no person is capable of stepping outside of their own

morality. Indeed, Coordinate Constitutionalism does not ask us

to. It recognizes that we may all feel compelled to place limits

on what we can accept from others. Instead of asking us to eschew

these limits, something Fish finds impossible, Coordinate

Constitutionalism asks us only to afford this same privilege to

others. This model allows us to hold fast to our own ideologies,

to object to what we find unconscionable in the other. Yet it

does not seek to replace their normative system with our own,

like the early colonial institutions. Instead, each system exerts

only as much influence as is necessary to protect its own

essentials. Nor does it seek to establish relations of hierarchy,

like many modern self-governance mechanisms. Instead, it

Cherry 18

facilitates a multi-directional flow of influence, allowing

multiple normative systems to interact on a basis of formal legal

equality49. In this sense, it represents a more restrained way to

stand by our fundamental beliefs. It allows us to cherish our own

moral system without requiring us to elevate it above others. I

therefore contend that Coordinate Constitutionalism provides

unexpected conceptual resources which transcend their European

roots, providing important tools to help us to think about how we

might work towards more just relations between Indigenous and

Canadian legal orders, and between fundamentally different

normative systems around the world.

49 Of course, important material, social, political and other inequalities would continue to impede substantive equality, and these concerns would remainbe highly relevant. Legal reform must therefore be seen as only one component of what must necessarily be a much larger anti-colonial movement.

Cherry 19

JURISPRUDENCE

BVerfGE 37, 271 (Solange I); English translation at [1974] 2 CMLR540.

BVerfGE 73, 339 (Solange II); English translation at [1987] 3 CMLR 225.

Thomas v. Norris, 1992 354 (BCSC).

SECONDARY MATERIAL

Aboriginal Affairs and Northern Development Canada. “The Indian Reserve Land Base in Canada”. Communication Reports (2010). Accessed at www.aadnc-aandc.gc.ca. Web. 16 Apr. 2014.

Alfred, Taiaiake and Corntassel, Jeff. “Being Indigenous: Resurgences against

Contemporary Colonialism” (2005) 40 Government and Opposition 4.

Anaya, James. “United Nations Special Rapporteur on the rights ofIndigenous peoples,

Statement upon conclusion of the visit to Canada” (speech delivered in Ottawa, 15 October, 2013).

Denis, Claude. We Are Not You: First Nations and Canadian Modernity (Peterborough:

Broadview Press, 1997).

Erasmus, Georges, and Rene Dussault. Report of the Royal Commission on Aboriginal Peoples

(Ottawa: The Royal Commission on Aboriginal Peoples, 1996).

Fish, Stanley. “Boutique Multiculturalism, or Why Liberals Are Incapable of Thinking about

Hate Speech” (1997) 23 Critical Inquiry 2.

Cherry 20

Iacobucci, Frank. First Nations Representation on Ontario Juries (Toronto: Government of

Ontario, 2013).

Mack, Johnny. “Primitive Amalgamations, Regeneration and IntimateCritique in Indigenous

Contexts” (2014) Forthcoming.

Mack, Johnny. "Hoquotist: Reorienting Through Storied Practice". In Lessard, Johnson, and

Webber, eds. Storied Communities: Narratives of Contact and Arrival in Constituting Political Community (Vancouver: UBC Press, 2011).

Milloy, John. “Indian Act Colonialism: A Century of Dishonor, 1869-1969” (2008) Research

Paper for the National Centre for First Nations Governance.

Napoleon, Val and Friedland, Hadley. “Indigenous Legal Traditions: Roots to Renaissance”.

Forthcoming in The Oxford Handbook on Criminal Law (Oxford University Press: Oxford, 2014).

Pollis, Adamantia and Schwab, Peter. 'Human Rights: A Western Construct with Limited

Applicability', in A. Pollis and P. Schwab (eds.), Human Rights: Cultural and Ideological Perspectives (Praeger, New York, 1980).

Rotman, Leonard. “Taking Aim at the Canons of Treaty Interpretation in Canadian Aboriginal

Rights Jurisprudence” (1997) 11 University of New Brunswick Law Journal 46.

Sabel, C and Gerstenberg, O. “Constitutionalising an Overlapping Consensus: The ECJ and the

Emergence of a Coordinate Constitutional Order” (2010) 16 European Law Journal 5.

Stannard, David. American Holocaust: Conquest of the New World (Oxford: Oxford University

Cherry 21

Press, 1997).

Truth and Reconciliation Commission of Canada. They came for the Children: Canada,

Aboriginal peoples, and Residential Schools (Winnipeg: TRC, 2012).

Turpel, Mary Ellen. “On the Question of Adapting the Canadian Criminal Justice System

for Aboriginal Peoples: Don’t Fence Me In” In Dussault and Erasmus, eds, Aboriginal Peoples and the Justice System: Report of the National Round Table on Aboriginal Justice Issues (Ottawa: RCAP, 1993).

Tully, James. “Cultural Demands for Constitutional Recognition” (1995) 3 Journal of Political

Philosophy 2.

Tully, James. Strange Multiplicity: Constitutionalism in an Age of Diversity (Cambridge:

Cambridge University Press, 1995).

Webber, Jeremy. “Legal Pluralism and Human Agency” (2006) 44 Osgoode Hall Law Journal 1.

Webber, Jeremy. “Relations of Force and Relations of Justice: TheEmergence of Normative

Community between Colonists and Aboriginal Peoples” (1995) 33 Osgoode Hall Law Journal 1.

Webber, Jeremy. “The Grammar of Customary Law” (2009) 54 McGill Law Journal 4.