My current federal problems are a direct outgrowth of this decision to hold certain dictum absolute. In acting thusly, I do appreciate that that about which I have chosen to align myself is a "construct." And, having no "faith" I must decide this alignment because I have no idea as to what really "is" or "is not"...how can one who derides leaps into the great unknown...derides so-called "leaps of faith?"
The First Nations/Wasichu relationship so too has been defined by a personal decision to align according to constructs. In this instance I decided to rally round the "fact" (assertion) that some issues, some posits ought not to change. That such will remain, should remain(?), unaltered despite the passage of time. This now causes discomfort in that, on the one hand, how can I admit that there are no "definites," picking and choosing a cause accordingly and, on the other hand assert that there are issues which do not, ought not, to change over time? It is a good thing that no one is listening to me carefully for I have been standing on thin air.
I have always felt that in some areas there was "universality." For the purpose of this discussion we will limit my concern to the Law. I have also alleged that "all" of social life as we know it is a construct. Obviously, one cannot believe one and still believe the other.
If the Law (I choose to capitalize the word) is indeed:
...local knowledge not placeless principle and that it is constructive of social life not reflective, or anyway not just reflective, of it... Geertz, pg.218
Law reflects but in no sense determines the moral wisdom of a society. The values of a reasonably just society will reflect themselves in a reasonably just law...The values of an unjust society will reflect themselves in an unjust law. Geertz, pg. 217
then, as in the Golding work, Lord of the Flies, what is current, what is "local" defines what "is" and this "is" is as relevant, as valid as any other past or future "local" legal environment. Another way of putting this might be that we are what we are at any given point in time and the are-of-us is changing second by second, each transition being no less consequential that the last. Quite frankly I am not heartened by this believing instead that it is good to be able to hang on to constants. Something that doesn't change. If one doesn't have such, what to do...how to cope?
an enduring and cooperating social group whose members have developed
of relationships through interaction with one another
So, the question, for me, is whether Law "...is...a mechanism for the settlement of disputes on whose soundness, it must be assumed, there is a general consensus between us," Geertz, page 216, based, apparently, on a foundation of "local knowledge," or whether, as I have led myself to believe, there is a "universal" corelike concept of Law upon which specific agreements may be based. To paraphrase Shakespeare, the question may not be "To be or not to be," but rather whether "Law is, or is concocted."
Bluntly put...Are there legal fundamentals from which the practice of Law may spring? Or, are legal fundamentals relative to a particular time and place.
If it is true, as was recently asserted by a friend, that what was, was, hence is no longer relevant (particularly as regards First Nations/Wasichu treaty rights) then a sovereign people indeed have no hope:
Under the rules and principles of federal Indian law derived from the doctrine [Doctrine of Discovery], the United States acquired a continent in 'perfect good faith' that its wars and acts of genocide directed against Indian people accorded with the rule of law. Williams, pg.325
However, if there is something above and beyond America's social appetite then there may be hope for a people from whom rightful ownership has been torn. I am not optimistic that this is case.
Geertz, Clifford, Local Knowledge, Further Essays in Interpretive Anthropology , Basic Books, 1983
Williams, Jr. Robert A., The American Indian in Western Legal Thought , Oxford University Press, New York/Oxford, 1990