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- Title
Meeting Halfway: Reassessing "Cognizable to the Canadian Legal and Constitutional Structure".
- Authors
TOUSAW, JULIA
- Abstract
The Supreme Court of Canada has a tradition of not reasoning with Indigenous laws unless those laws are "cognizable" to the Canadian legal and constitutional structure. This tradition has created a standard that is too high, as it assumes that judges and lawyers cannot reason with law unless there is agreement on legal propositions or underlying values. But propositions and values shift over time. An important method of reasoning used in the common law is analogical reasoning, which is also used in Indigenous legal orders. Where Indigenous laws incorporate analogical reasoning, those laws are cognizable to the Canadian legal system. When courts realize this, they can engage with the legal propositions and values in Indigenous laws (and Indigenous laws can eventually impact the development of the common law). Until then, the cognizable tradition remains fundamentally unjust, contrary to the promise in Van der Peet, and it makes for poor legal reasoning.
- Subjects
LEGAL status of indigenous peoples; CANADA. Supreme Court; LAWYER attitudes; LEGAL reasoning; COMMON law
- Publication
Indigenous Law Journal, 2018, Vol 16/17, Issue 1, p85
- ISSN
1703-4566
- Publication type
Article