In my last “Catch” I considered how metaphors define us. This post continues those thoughts, particularly about how shifts in the predominant metaphors used in the law enable — even require — the law, itself, to change.
Perhaps one of the most pronounced and direct challenges to the western legal system has been that of aboriginal people: the claims of the First Nations to their own territory, in the face of the colonial power’s assertion of title over those same lands. It’s taken a long time to sort all of this out. We’re still sorting.
In the 1980’s, with other keen, young lawyers, I started working on behalf of First Nations’ communities. We faced a formidable task. It was like trying to open the sealed door of a kingdom which once belonging to the aboriginal people, but was now fully occupied and dominated by the settlers.
Metaphors are not only radical, they are subversive. They work beneath the level of consciousness.
As legal counsel, we had to listen very carefully in order to understand the nature of these aboriginal societies. Intuitively, we started to insinuate changes into the dominion of the metaphors which had taken hold in the legal system. For our clients’ voices to be heard, we had to change the prevailing metaphor from sight to sound. This was especially important because the foundation of most of their cultures — as with so many indigenous peoples — was based on orality (the transmission of the norms of the society through well-defined verbal customs and practices).
If we could achieve this, the entitlement to speak, as well as to be heard, would carry the newly established rights. First Nations would be ushered back into the kingdom from which they had been expelled.
But this was going to be a tough battle. The western legal system preferences the written word. Hearsay evidence is either discounted or entirely disallowed.
I noticed how this all was operating during a test case on the existence of aboriginal title called Delgamuukw v The Queen (1984-1997). It became the longest trial in the history of western jurisprudence.
Mary Johnson, an elder from the Gitskan tribe in northern British Columbia, was on the witness stand. She was giving evidence of her oral history as proof of her people’s jurisdiction over their territory. In the Gitskan traditions, a ceremonial song was sung at a particular fishing site when the people were gathered there. Despite the significance of the song to the case, the trial Judge was “embarrassed” at having to listen to it. “I have a tin ear,” Judge McEachern said. “It’s not going to do any good to sing to me.” Indeed, it didn’t do any good. He ruled that aboriginal title in B.C. had been extinguished and was no more.
On appeal to the Supreme Court of Canada, Judge McEachern’s ruling was overturned, largely because he did not accept First Nations’ evidence as being on an equal footing with written records.
The Courts courts are required to adapt the rules of evidence in order to give due weight to the “aboriginal perspective”. In other words, the legal system must “come to terms with the oral histories of aboriginal societies.”
The voices of the native peoples can no longer be officially silenced. The Supreme Court of Canada has ruled that the law of aboriginal and treaty rights is the reconciliation of those rights with the needs of the non-Aboriginal peoples. In court these days, counsel for the natives are talking about re-establishing a relationship of harmony between the cultures. The metaphor of singing continues.
Metaphors are part of our deep structure. When the existing metaphors have become rigid, they must change or the law will ossify (a metaphor about turning to bone). To expand the metaphors and let in the other senses — from sight to sound — is to accept more of the world, in every way. It is to let in more choices.