http://www.usyd.edu.au/su/social/robert/arc/notes/webber2.htm My original source.

Webber, Jeremy (1996) 'Relations of Force and Relations of Justice: the emergence of normative community between colonists and Aboriginal peoples' Osgoode Hall Law Journal 33 (4): 623-60.

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p. 625
These two approaches....Both trace the origin of Aboriginal rights to positive rules existing independently of the relationship between the parties. In both, Aboriginal rights find their source in and derive their content from a set of norms existing before colonization, either the law of the colonial power, the law of the Aboriginal people, or the rules of international law....Aboriginal rights result from the application of a pre-existing body of law (application understood in its simplest sense), not the emergence of norms through the occult processes of social interaction.

p. 626
This way of approaching the issue is undoubtedly popular, but it is also wrong. It distorts the motives that underlie the evolution of Aboriginal rights, motives that give those rights their normative force.

This paper..... suggests that they [Aboriginal rights] are the result of the interaction between Aboriginal and non-Aboriginal peoples, and the processes of reflection on that experience, rather than the positive law of one people. They constitute a set of norms that are fundamentally intercommunal, created not by the dictation of one society, but by the interaction of various societies through time.

p. 627
... "community"...is frequently restricted to highly cohesive groups whose members epxress a strong sense of belonging, who share the same cultural values - perhaps only those groups that serve as the principal focus of allegiance for their members.

I want to retain the possibility of one member possessing multiple allegiance, multiple memberships, belonging to multiple communities....This sense of community is more flexible than many competing definitions, more tolerant of internal disagreement and debate, more willing to recognize the presence of multiple allegiances, while nevertheless capturing the [628] distinctiveness - the sense of separateness and cohesion - of communities.

My concern is simply that the emergence of a shared normative discourse be taken to be a significant development, that one admits that a single person might be a member of more than one discourse at the same time (some discourses being very rich, others more restrained), and that one does not fall back upon an implicit, restrictive definition of community, to presume that a normative discourse must be single and exclusive.

I also use the term "community" even though the order described here was not the product of the parties' unconstrained consent, indeed even though it was shaped by relations of force and domination.

p. 629
The role of force is generally neglected in the literature on so-called "spontaneous" orders, indeed in the literature on legal pluralism generally. This body of work tends to assume that the norms that result from the autonomous interactions of individuals or that emerge within non-state institutions are, in some ways, superior to those created by the state. To recognize the role of power in private relations would, these legal pluralists fear, undermine these assumptions given the common myth that force is the implacable enemy of the just. It might even undermine the spontaneous orders' claim to be normative....But...Social orders are marked simultaneously by relations of power and relations of justice. The challenge for the student of social normativity is not to deny the role of power, but to understand how standards can emerge from an interaction that is fundamentally imperfect, and yet acquire normative force.

[n.8. This article therefore rejects the tendency to deny the possibility of a negotiated normative order in situations of domination. In those situations, the order may well be unequal and even repugnant, yet still be normative in the sense that it is not simply the temporary expression of the will of the more powerful party, but rather imposes standards that constrain that party. This article thus joins the growing body of literature on the existence of negotiated orders in situations of profound inequality, such as slavery or paternalism.]

p. 630
This paper argues that Aboriginal rights are best understood as the product of practical reason - a process of experimentation and reflection that begins from the concrete reality of a lived relationship, tries to understand its strengths and weaknesses, and derives from it workable conceptions of justice.

p. 633
There is thus considerable evidence that, in the early stages of colonization, the settlers did claim sovereignty and often ownership of Aboriginal lands, with little regard for the presence of indigenous peoples....[But] Arriving in the new continent, the colonists encountered the power and autonomy of the Aboriginal peoples. If the colonists wished to benefit from the riches of the land - indeed if they wished to survive - they had to adapt to the societies that controlled and occupied that land.

The colonists chose a conciliatory approach for several reasons, the simplest one being their sheer vulnerability.

p. 635
The second reason for a conciliatory strategy was economic interdependence. [and competition between the French and the English]

p. 636
In all of this, competition between colonies played a very important role. Some colonies discovered the value of good relations precisely because they lost part of their commerce to their rivals.

p. 648
Often against their will, they found themselves making significant compromises to Aboriginal peoples' political autonomy and material control of their environment. These compromises were consolidated through the interaction of the parties over time and eventually became a structure of expectations and practices that regulated Aboriginal/non-Aboriginal relations. They became the principal source of the arguments and procedures used to resolve intercommunal disputes. They became the substance of a new normative discourse.

But why normative, and what kind of normativity? Was this really a matter of justice, or were all these solutions mere compromises, departures from law, practical concessions that had nothing to do with law?

p. 649
The content of these norms was not the result of an act of will; it was not the product of some sort of social contract. The colonists and the Aboriginal peoples did not choose to live in such a community. They found themselves in it, and they then tried to work out an acceptable modus vivendi. They did make choices, but they were choices strongly conditioned by necessity.

p. 651
...the courts...formulated a body of law that was sui generis, derived from experience rather than sovereign decree, to regulate the relations between the societies.

p. 656
Why ratify the outcome of unequal power, granting it moral authority? The answer lies in the value of peace and stability. Even if the resulting order was marked by inequality and oppression, even if it was not "just" in any absolute sense, the parties gained real advantage from acknowledging it to be normative. In the place of constant and arbitrary threat of force, the new framework provided moral constraints and stable expectations. The need to live together, founded as much on the cost of rupture as on moral affection, demanded order, and the first source of order was the normalization of fact.

There may have been points of similarity between their normative beliefs. Their common humanity may well have furnished some support for normative dialogue. But at the moment of contact, all these potential resources were expressed through cultural forms that had developed in complete isolation with each other. It was impossible to embark upon a metaphysical debate aimed at identifying similar beliefs and common rules by rational deliberation. Nor was it conceivable that the parties could suddenly agree on transcendental principles applicable to all. If they had tried to establish intercommunal relations on such a basis, they would have quickly encountered resistance, for the absolute principles of one were merely the unjustified presumptions of the other.

A more modest objective: a mode of life that would reduce the number of conflicts and furnish ways of resolving those that remained.

p. 657
The Aboriginal peoples' and the colonists' own normative orders did not disappear in this new community. They retained their specificity; the new community was limited to intercultural matters. The peoples therefore combined the maintenance of autonomy with the need for common standards - standards derived not from their traditions of justice taken independently, but from a mediation across traditions. This mediation did not occur merely at the level of the individual case, but it was a mediation of principle, producing a mediated justice.

p. 658
We are not irrevocably bound by the solutions of the 18^th century, just as we are not bound by 18^th century doctrines on delictual responsibility. Rather, that experience provides us with points of departure - with necessary normative presumptions - at the same time pushing us to refine those presumptions in order to render them more adequate.