Journal of Legal Pluralism and Unofficial Law

(2000) JLP 45: 1-17


Positioning the Legal Subject and the Anthropologist:

The Challenge of Delgamuuwk to Anthropological Theory


Jo-Anne Fiske




The Supreme Court of Canada in its decision in the aboriginal rights case Delgamuuwk v Regina held that the expert testimony of anthropologists and aboriginal oral histories were acceptable evidence for the establishment of aboriginal occupational rights to land and of aboriginal law and systems of governance. This vindication of ethnographic representation occurred at a time when postmodernist, poststructural trends in anthropological theory were posing challenges to the work of applied legal anthropologists. That challenge is examined with a view to applying theoretical insights to the problems facing aboriginal communities which seek scholarly verification of their legal discourses and oral history.


It is argued that there is a need for a resistant sensibility, which will seek to re-constitute the particular subject of aboriginal legal discourse, and will recognize that each culture aims at its own definition of subjectivity and determination of the legal subject. Thus resistant sensibility seeks to shift attention to multiple claims to authenticity and identity, as they are advanced in individuals’ struggles against subjugation. Postmodern scholarship has criticized conventional ethnographic representations of cultural difference on the ground that in them the ethnographer assumes the authority to impose a stable, unitary order on other communities derived from his/her own principle of reason. But postmodern accounts of communities as polyvocal and fragmented are equally constructions by ethnographers of ‘the other’ which exclude the holders of ‘subjugated knowledges’. Resistant sensibility offers a possible solution by locating the constitution of the subject within this subjugated knowledge.


Postmodern scholarship further criticizes legal ethnography for basing its understanding of difference on ‘tradition’, and so assuming an evolutionary and colonial inferiority in the communities studied, reified in the cause of difference. The result in practice could be to construct traditions in the sphere of state activity which are grounded in misconceived, western notions, and which obstruct political efforts by some, such as aboriginal women, to advance their interests. However, in Delgamuuwk it was the construction of a view of stable aboriginal subjects, their identity derived from customary law and tradition, presented as the foundation of an objective truth of a form open to analysis in Canadian jurisprudential logic, that provided a basis for the success of the land claims in that case. Moreover, what is constituted as tradition in this way can be open and fluid. Resistant sensibility seeks to invest both past and contemporary constructs of subjectivity with aboriginal insights which will provide opportunities for new directions and challenges to the old.


Resistant sensibility requires a decentering of the western notion of the pragmatic, utilitarian subject through careful empirical accounts grounded in culturally specific representations of the subject. ‘Local knowledge’ must be comprehended as theoretically based and epistemologically sound in its own right, not merely as data for western scholars’ theorizing. It is necessary to question the continuing re-creation by western academic discourse of colonial polarities through the construction of difference, its attempts to control knowledge, and its theorizing for theory’s sake which rejects ethnographic discourses with the potential to validate indigenous peoples’ political projects.