The first thing I liked about Kirsten Anker’s book was its title.1 The idea of a declaration of interdependence is extremely evocative, and multilayered. It foregrounds values of connection and interdependence as basic to legal relations, within and between cultures, and also between human societies and our ecologies and environments. At the same time, it constitutes an ironic reflection on non-Indigenous histories, with their insistence on independence. Assertions of independence have been vital to shaping the nation-state world we currently live in, and which forms the legal and philosophical backdrop to this book. Declarations of independence may still have a defensible role in a world which oppresses marginalized groups and fails sufficiently to promote the self-determination of colonized peoples. But interdependence goes further, and acknowledges interconnection between peoples and their worlds – it reasserts that there are relations of dependence between groups, and relations between their laws. It also, and this is the real depth of this particular book, shows how the very act of defining and understanding any law in this context brings into play multivocal exercises of recognition, translation, and negotiation.
Throughout the book, Anker emphasizes that she seriously regards all sides of a relation as ‘dependent’ on the others (as well as, to a lesser degree, ‘independent’). In the context of Anker’s study, which primarily concerns legal relations between Indigenous and non-Indigenous people in Australia, the ‘sides’ of the relation are primarily two. When the two sides come together to negotiate or determine their legal relations, each is dependent on the other. This is not to deny the existence of state dominance or, on the other hand, to say that there can be no self-determination or autonomy for Aboriginal people. Rather it conveys the way that ‘decisions and their consequences will always be taking shape in relation to other communities and governments, at different scales.’ (P. 194). In order for there to be any real encounter between different legalities, they each have to be open to the other, and in particular to the process of being reconstituted by the other. Anker argues this mutual dependence by reference to philosophical tradition. In particular she points out that approaches to recognition and translation will be extremely problematic if understood or practiced simply in terms of one (sovereign) side having all of the power to recognize the other, or being permitted to assume that their own conceptual tools are sufficient to render the other’s world intelligible. For recognition and translation to work and for justice to be a plausible goal, the interpretive and conceptual horizons of both sides must shift. Even more importantly, Anker also argues this case inductively from detailed readings of significant native title cases, and through an analysis of the nature of negotiated settlements. At their most positive, even within the decision-making framework of state law, these sources show people coming together in a jurisgenerative space, in which ‘law’ appears as a dialogue rather than being given from above. (P. 103). At the same time, the opportunities for state law to misrecognize and mistranslate Aboriginal law, because of doctrinal dogmatism, ideology, or other limitations, remain considerable. The detail provided by Anker to illustrate these points is extraordinary, and quite impossible to do justice to in a short review.
The scholarly contribution of Declarations of Interdependence extends deeply into critical legal theory, legal pluralism, and jurisprudence. It is an especially effective contribution to and extension of contemporary critical legal pluralism. This strand of pluralist thought has, since the mid-1990s, argued not only that ‘pluralism’ is found where different legal orders exist within the one territory but also more importantly in ‘the very nature of law’ (P. 5) and in the kind of dialogue Anker describes as constitutive of law. In this sense, a critical pluralism is just as much related to legal theory and jurisprudence as it is to legal pluralism – it is more than just a variety of legal pluralism, more accurately it is a variety of legal theory or critical legal theory. It represents a convergence (though not a unification!) of the empirical and sociologically-informed elements of legal pluralism, with the anti-essentialism and conceptual innovations of critical legal theory. Such an approach characterizes legal plurality as a process, not as separately identifiable systems of law: law is open-ended, interpretable, in flux, formed by everyday relations, and contextual. It is both personal and dialogical, it is practiced, and reduced (albeit contingently) to a finite form. It thus occurs subjectively, as well as intersubjectively, and interculturally:
‘[critical] legal pluralism is something hosted by human selves: there is not a clash of two distinct systems in a social field, but a permanent interplay of ideas and principles in peoples’ minds, gleaned from innumerable sources, that resolves into ‘the law’ for any one person in any one situation.’ (P. 187).
Critical legal pluralism is a powerful and positive contribution to legal theory because it reimagines law in part from the bottom up, as a practice engaged in by human societies, rather than as a mere determinative limit to action or externalised set of rules or principles. Such a conception of law is key to intercultural co-existence.
For me, one of the most impressive aspects of Declarations of Interdependence is the way that Anker sustains her extremely detailed theoretical analysis throughout the text, while also undertaking an immensely complex and nuanced analysis of the native title cases. In the process, Anker adds her critical voice to a large and diverse number of theoretical issues, such as Hart’s distinction between habits and rules, Griffith’s conceptualization of legal pluralism as a fact, and theory relating to recognition. It all results in a very persuasive and thorough case being made for interdependence in legal relations, and in our understanding of law. This is therefore a book which is not only conceptually very satisfying, but also rich with promise for a critical reconstruction of the idea of law.
- As Anker notes (P. 60), her title was borrowed from the title of a chapter in a book by John Borrows, Recovering Canada (2002).