In jurisdictions around the world, constitutions are held up as venerable national texts available to strike down legislation and government action offending basic societal commitments. Constitutions are seen as forces of good and not just due to their explicit rights-granting provisions, but also the unwritten principles courts have held them to house. But similar to how law schools and other educational institutions have “hidden curricula” that can subvert an institution’s formal written principles of inclusivity and equality, recognizing unwritten constitutional provisions can cut in different directions. Specifically, how might they undermine more formal equality provisions?
In The Unwritten Constitution and the More-than-Human World, Jessica Eisen considers the case of the Canadian Constitution, which many regard as a model for equality and justice due to both its written and unwritten commitments. Eisen’s article provides a valuable corrective to the sense of the implicit goodness of the Canadian Constitution. It illuminates the “ignominious” (P. 571) unwritten principles that “shap(e) constitutional praxis even as they are ignored, denied, or repudiated by actors within the system.” (P. 553.)
Eisen argues that the Canadian Constitution houses two closely related unwritten commitments that should be acknowledged in the “constitutional story” (P. 595) told about the document. One involves “anthropocentric exploitation,” by which she means “a particular dynamic of extraction . . . premised on a hierarchy of human over other, and a denial of reciprocal obligation to nonhumans”. The second unwritten commitment in the Canadian Constitution is the “the subordination of Indigenous legal orders to Canadian state law.” (P. 552.) Eisen terms both of these commitments “shadow commitments.” (P. 553.) Both operate “quietly” alongside written and unwritten constitutional commitments. “[W]hen named, they strike many actors within the system as embarrassing or disreputable.” (P. 554.)
Eisen’s article is notable for the calibre of the writing. The analysis is elegant, incisive, and far-reaching. Eisen skillfully conveys a complex argument. In the first part, she shows how anthropocentric exploitation infuses constitutional text and is a “stable, core and binding [commitment] — enduring over long time horizons, making the legal order what it is, and demarcating the outer limits of interpretive possibility.” (Pp. 553-54.) The second part of the analysis illuminates the intertwined nature of anthropocentric exploitation and the subordination of Indigenous legal orders. Here, Eisen calls our attention to the disconnect between anthropocentric exploitation and “the commitments within many Indigenous constitutional orders to relations of kinship and reciprocity with the more-than-human world.” (P. 555.) Eisen convincingly argues that the shadow commitments to anthropocentric exploitation and dominance of state law over Indigenous laws holds an equivalent influence in Canada’s constitutional order to that of the more officially recognized unwritten constitutional commitments. (And this situation obtains despite the significant inroads that have been made to integrate Indigenous law within Canadian law.) “Unwritten constitutional commitments” in this sense are the values that Canadian jurists regularly celebrate, such as the “rule of law, democracy, minority protection, and the Crown’s honourable dealing with Indigenous peoples.” (P. 553.)
Eisen argues that these lamentable shadow commitments operating with equal force to formal unwritten constitutional commitments should not cause animal, Indigenous, or equality rights advocates to despair. Legal change is possible, Eisen suggests, but only by apprehending the more accurate picture of Canada’s constitution as “polyvalent” that her work provides. (P. 557.) This especially insightful and thought-provoking part of the analysis is its second standout feature.
Eisen recalls the Supreme Court of Canada’s doctrine that the orthodox unwritten principles such as the rule of law and democracy work together symbiotically. She argues that this is also how we should view the workings of constitutional shadow commitments that intertwine with unwritten constitutional principles. Eisen shows these dynamics at work in recent litigation involving Indigenous rights, in which an Indigenous group sought to protect land and the animals associated with it from proposed commercial development that the government was permitting.1
In the last part of the analysis entitled “Hope, Activism, and the Shadow Commitments”, Eisen addresses the concern that emphasizing the extent of shadow commitments’ operation in Canadian constitutional law might stymie law reform efforts to redirect law toward non-anthropocentric outcomes respectful of nonhumans and toward the vindication of Indigenous rights as well. Her response is eminently sensible, and she proposes that if we wish to transform the Canadian Constitution’s shadow commitments, we must have a complete picture of them. We must know the full extent of the barriers to paradigm change to change both them and the paradigm itself.
Eisen’s article also generously enhances our understanding of how animal rights struggles and Indigenous rights struggles align. This may help to inform scholarly and public conversations that often posit the movements as invariably in tension with one another. We are left to consider how successful contemporary Canadian state commitment to reconciliation with Indigenous peoples and legal and social trends embracing Indigenization and decolonization will be if status quo animal uses by states and the larger public are not revisited.
The article also deepens the growing body of scholarship that explains why legal pursuit of equality and justice in general must go beyond the human actor and the traditional.
- Eisen discusses the decision Ktunaxa Nation v British Columbia, [2017] S.C.R. 54 (Can).
