Restorative Justice and Aboriginal Traditions

Restorative justice draws from aboriginal teachings, and yet there may be tension between the two. These articles address the dynamic linkage that exists in attempting to adapt aboriginal concepts and practices for used in restorative programmes.

. A study on the content of Atayal traditional concepts of justice.

Aboriginal literature have shown that aboriginals around the world usually possess particular cultures, and used religion or tribal leaders to peacefully resolve conflicts or crime. Braithwaite (1999) pointed out that, we ought to use restorative justice model first to deal with crime, and then we can reduce the need to use punitive or incapacitation justice model. There are two purposes for this study: to investigate the content of Atayal traditional justice concept and to compare it with other justice models. This study used in-depth interview to collect data. Data were collected from 8 mediators or pastors or Atayal police officials working in Atayal communities. Data analysis indicates that there is no concept of “crime” in the Atayal tradition, instead a “wrong” in used. It is also found that the traditional Atayal justice is deeply influenced by the Atayal belief system of Gaga that there should be social harmony, redemption and pursuit of absolute good in the handling of crime. This study also found that there is no punitive element in Atayal concept of justice. The Atayal traditional concept of justice is partially related to Reparatory Justice and Blood Feud model. However, the Atayal traditional concept of justice is highly related to the Restorative Justice. (authors' abstract).

. Culture, conflict resolution and the legacy of colonialism.

Colonialism impacted local cultures far beyond their infrastructure, government and geography. In addition to eroding indigenous power structures, the structural violence inflicted during colonialism left native populations with lasting self-doubt and rejection of traditional practices. Among these rejected traditions are informal processes of resolving conflict. Conflict resolution methods in different cultures often vary greatly in underlying values and perceptions. Western judicial systems reflect individualistic, highly uncertainty avoidant, low-context tendencies, while indigenous conflict resolution methods reflect collectivistic, minimally uncertainty avoidant, high-context tendencies. Research into the current state of formal courts and informal justice forums in present-day rural Cameroon and Vanuatu provides case study-based evidence arguing that the transition from restorative justice to retributive justice catalyzed by colonialism has effectively crippled both systems of justice. Due to impacted value systems, neither the restorative, social harmony focus of traditional processes, not the retributive, compensatory justice focus of the formal judicial system make the available forums wholly appropriate or adequate resources. (author's abstract)

A Separation

from Judy Bello's entry on Fellowship of Reconciliation: I just saw Asghar Farhadi’s A Separation last night. I’m not going to send formal reviews (do I ever?) but I just want to share my feeling that it is a really great film. ....One aspect of the film surprised me because it wasn’t the aspect of the film that was publicized. Farhadi’s depiction of the Iranian justice system as chaotic, overwhelmed, but intensely immediate and direct, is quite powerful as a ground for other aspects of the drama.... One might say that the film gives an insight into what might be right about the Iranian system in comparison with our own.

Barsh, Russell Lawrence. Evaluating the Quality of Justice

Barsh, a professor at a Canadian university, notes different meanings for the concept "justice," depending on one's cultural context. For example, non-Aboriginal students tended to define justice as equality before the law. Aboriginal students tended to speak of harmony or related ideas. Barsh observes that there have been few empirical studies hazarding a measurement of the extent to which modern Western legal systems apply rules equally. There are even greater challenges to meet before attempting to measure "justice" in the Aboriginal sense. He then discusses possible indicators or measures for evaluating justice in the Aboriginal sense.

Elgersma, Sandra. To Restore: Bring Back to Health/Cure, or Reinstate; Bring Back to Dignity or Right

In this essay the writer examines restorative justice and the issues of its commonality with and applicability to Aboriginal cultures and practices. She notes that restorative justice has been receiving much attention from the criminal justice system and community groups. In Aboriginal communities, restorative justice is seen by some as the revival of ancient approaches. In mainstream society, restorative justice is praised as an alternative to a punitive system. Programs, academic research, evaluations, and guidelines exist in these two separate communities regarding restorative justice. Yet there is little in the literature addressing how restorative justice can contribute to conflict resolution between natives and non-natives. Apparent similarities between mainstream restorative justice and traditional Aboriginal justice suggest that restorative justice could be a good tool for dealing with Aboriginal and non-Aboriginal conflict.

Fania Davis on differences between traditional and modernist constructions of justice

from Eisa Nefertari Ulen's interview at TheDefendersOnline.com: Traditional and modernist constructions of justice differ in a number of ways. First, a communal and participatory ethos pervades indigenous justice approaches. Indigenous justice proceedings tend to involve an expansive range of participants. All affected persons are actively engaged—each of the parties in conflict, their extended families, traditional elders, and community members at large. The process tends to be consensus-based and more egalitarian than hierarchical. On the other hand, in modern justice proceedings, the range of participants is quite restricted, typically limited to the two sides in conflict, along with a group of justice professionals who dominate the proceedings. Crime is impersonally viewed as an offense against the state rather than as an injury to a person or to relationships. The victim is usually excluded, except as a witness to support the “state’s” case. Offender-focused, modern justice asks: What law was broken, who broke it, and what punishment is deserved?

First Nations Court opens in North Vancouver

from the article by Todd Coyne in the North Shore Outlook: The judge is out of her usual judging clothes and the court sheriff wears no gun. It’s not immediately apparent — not at first — if these are just oversights, but when Judge Joanne Challenger turns from the convicted man to the packed public gallery and asks for any suggestions on sentencing and the hands go up, it becomes clear: First Nations Court is different. It began in North Vancouver in February, modeled on a similar program in New Westminster that allows anyone who identifies as aboriginal and has been convicted of a crime in provincial court to have their sentence decided in a court that gives special heed to First Nations history.

Gibbs, Meredith. Using restorative justice to resolve historical injustices of Indigenous peoples.

This article explores the application of restorative justice to situations of historical injustice. It argues that applying restorative justice practices and principles could maximize justice for Indigenous peoples by, first, refocusing Indigenous land claims on the restoration of tribal respect and dignity rather than on the restoration of property rights, and second, acknowledging the wider social relationships in which such conflicts arise. This article also contends that using restorative justice in situations of historical injustice may impact on the practice of restorative justice itself. First, the roles and relationships of key players will change which may lead ultimately to a reconsideration of the role of the State in restorative justice. Second, applying restorative justice in situations of Indigenous historical grievances underscores the collective nature of such conflicts and the collective, contextual nature of evolving notions of the justice in restorative justice.

Guest, James J.R. Aboriginal Legal Theory and Restorative Justice

In this first of two articles, the author contends that Aboriginal peoples are attempting to displace the legal system from their communities and replace it with culturally relevant systems of justice. Aboriginal perspectives on what constitutes justice are as varied and distinctive as the various Aboriginal nations throughout the world. There is, however, more overlap than differences as to a sense of what the basis for truth and justice is. The definition of justice is not the sole domain of any single nation, Aboriginal or non-Aboriginal. In Canada today there are three justice system models in operation: (1) the main criminal justice system that uses raw coercive force as its power base; (2) a criminal justice system that is attempting to augment itself with restorative justice processes and remake its image after years of locking up Aboriginal peoples; and (3) Aboriginal justice systems within communities that use respect and teaching as the basis of knowledge for living together.. This article concentrates on the use of restorative justice principles within the criminal justice system and the differences in legal theory that make the implementation of these processes difficult.

Guest, James J.R. Aboriginal Legal Theory and Restorative Justice: Part Two

In this second of two articles, the author more sharply raises issues he sees in attempting to augment Western criminal justice systems with restorative justice practices. He perceives a real danger that reforms in the area of restorative justice will be a simple repackaging and relabeling of the existing criminal justice system. He believes these attempts may be used to deflect criticisms levied against the criminal justice system by the many reports and commissions, and that attempts at reform will come to be embodied within statistical data used to "prove" that restorative justice does not work. Hence, he maintains that the most appropriate place for restorative justice processes remains within separate Aboriginal justice systems existing within Aboriginal communities.

Gulati, Shruti Gola. Healing the Circle: Exploring the Conjuncture of Peacemaking Criminology and Native Justice Initiatives

Peacemaking criminology is a non-violent movement against oppression, social injustice and violence as found within criminology, criminal justice and Society in general. Richard Quinney proposes that crime and the criminal justice process are characterized by suffering to victims, offenders and society and that crime and justice problems may be eliminated or reduced by healing the suffering which makes them a possibility. A strategy of compassion and service is therefore advocated to affect suffering and thus crime. Peacemaking criminologists recognize the dialectical relationship between the individual and society, each shaping and being shaped by the other. It is therefore important that individuals achieve a measure of peace within themselves in order to move society in the direction of peace. To this end, peacemaking criminologists advocate spiritual practice, respect for the sacred and love as tools with which one may develop the discrimination to recognize injustice and the desire and ability to end suffering. This thesis discusses the peacemaking potential of Native justice initiatives within the context of Canadian criminal justice. Like peacemaking which rose as a revitalization of peace and non-violence within criminology and its concerns, Native justice initiatives can be viewed as a revitalization movement which has risen in response to the injustice of the criminal process for Native people. By offering alternatives to criminal justice or healing approaches within the structure of the conventional criminal process, Native justice initiatives seek to provide healing and restoration and a meaningful delivery of justice to Native people in conflict with the law. The peacemaking potential of such alternatives lies in the observation that the current euro-based structure of criminal justice is foreign to the traditional spiritual and social understanding of Native people. Author's abstract.

Henderson, James Sa'ke'j Youngblood. Exploring Justice as Healing

Youngblood maintains that, in Eurocentric thought, there are many theories about justice and punishment. The biblical approach of equivalence (lex taltionis) and nineteenth century British theories of intolerable wrongs, deterrence and retribution (vergeltung) establish the dominant theories of punishment in Canadian society. In March 1994, the federal/provincial Justice ministers reached a consensus on the problems of Aboriginal Peoples in the Canadian criminal justice system. They agreed that the Canadian Criminal justice system had failed and is failing the Aboriginal people. They agreed that a new holistic approach to criminal justice, based on Aboriginal values, practices and traditions, is essential in Aboriginal justice reform. In addition, they agreed that the Aboriginal idea of justice as healing be reflected in the general justice system. This statement is a good beginning for a renewed Canadian criminal justice system.

John Braithwaite video introduction to restorative justice

John Braithwaite is a leader in restorative justice (and in many other fields). He teaches at Australian National University which has now posted an 18 minute video in which he explains the basic theories and applications of restorative justice. It is well done, and is presented in segments, which means it can be used in whole or in part.

Justice and an ethic of care

[Bloggingheads.tv] recently hosted an interesting discussion between two psychologists—Michael McCullough and Dacher Keltner–on the evolutionary role of revenge and its place in contemporary society. The whole discussion is worth listening to but about 28 minutes into the videocast they discuss the idea of restorative justice, which takes repairing relationships to be central to the idea of justice. Repairing relationships is the main feature of an ethics of care as well, and it seems to me this is where an ethic of care is able to fill out our notion of justice.

Justice, reconciliation and peacebuilding: Seen through African eyes

from Rev. Clement Apengnuo's First Annual Fr. Bill Dyer Lecture: In 2000 the Catholic Diocese of Damongo in collaboration with the Catholic Relief Services started a peace project to build local capacity for justice-building, reconciliation and peace-building. In the course of my work I had to deal with the issue of the relevance of a Western style peace-building in African conflicts. Why not use the African traditional systems of conflict resolution? Implicit in these statements is the assumption that the Western style is foreign and in effective. African traditional systems work better in an African setting. African conflicts, African solutions. At the international level, indigenous and traditional practices of peace-building are regarded as unaccountable, opague and contradictory to the “enlightened” intentions of Western form of peacebuilding (liberal Peace) and internationally sponsored post war reconstruction efforts.

Lee, Gloria. Defining Traditional Healing

Gloria Lee discusses the philosophy behind the First Nations' understandings of illness and the healing practices that result. She applies these perspectives and practices, rooted in First Nations' religious beliefs and understanding of natural law, to justice. She claims that Euro-Canadian justice strives for impartiality and focuses on punishment for wrongdoing. In contrast, she claims that First Nations' justice is more holistic. This approach to justice, beginning with the harm caused, aims to restore peace to the community and to reconcile the offender with the individual or family harmed.

Macfarlane, Angus H. The Hikairo Rationale: Restorying the Individual

Comprising seven domains for intervention, the Hikairo Rationale is so named because of the way peaceful resolution was reached following intertribal encounters on Mokoia Island in 1823. According to Stafford (1967), the Ngati-Rangiwewehi Chief, Hikairo, spoke and acted with such mana and influence that the illustrious Ngapuhi chief, Hongi Hika, declared that calmness and powerfulness were not incompatible notions. On this occasion, Hikairo's assertive dialogue, fundamental assurances and simple sincerity brought about a change of attitude and behaviour. The Hikairo approach is appropriate for working with both Maori and non-Maori students and teachers, even though its guiding values and metaphors come from within a Maori worldview. The traditional Maori value of "aroha" (love) has a very real place in the model. Aroha does not depict a "soft" approach. In the context of discipline, aroha connotes cooperation, understanding, reciprocity and warmth. The Hikairo programme has these qualities in abundance and is simultaneously assertive. Abstract courtesy of the Centre for Justice and Peace Development, Massey University, http://justpeace.massey.ac.nz.

Mediation in penal case reconciliation

reviewed by Martin Wright The idea of retribution for wrongdoing is deeply ingrained, and its extreme form is the blood feud or revenge killing. Professor Elezi describes the long struggle to eliminate it in one country. A Western reader, on learning that there are still blood feuds in parts of Albania, may dismiss them as a relic from more primitive times; but perhaps it is worth reflecting that the principle is still at work among gangs in our big cities and, some would say, in civil wars and international conflicts. So it is interesting to see how it has been tackled in Albania.

New Report Explores Indigenous Conflict Resolution Mechanisms in Australia

In September the Indigenous Dispute Resolution and Conflict Management Case Study Project released the report Solid work you mob are doing: Case studies in Indigenous Dispute Resolution and Conflict Management in Australia. The report presents recommendations for improving conflict management work in the Indigenous context drawn from three in-depth case studies and several smaller snap shot studies.

Our law needs some cleansing

from the column by Sibongile Ndashe in the Sowetan: The idea that the enactment of the Traditional Courts Bill recognises and protects customary law institutions, is part of restoring the humanity and dignity that blacks were stripped of by apartheid, is an exercise in falsehood.