2. "Western" Retributive v. "Indigenous" Restorative?

Western criminal justice, as we saw in the session on the historical development of criminal justice, has tended to be defined by its very punitiveness. In this context, indigenous justice systems raise puzzling issues for the study of criminal justice. Whilst they have an inherent element of social control, they tend to be less punitive than Western criminal justice, or at least not essentially punitive. There is therefore a real epistemological question as to whether it even makes sense to speak of indigenous criminal justice, and whether in doing so one does not risk imposing a particularly colonial way of treating offenders. At the same time, indigenous approaches to justice and social regulation may emphasize that no tradition has a monopoly on what counts as criminal justice. Criminal justice could be understood as less about punitiveness than as the distinct social response to societal transgressions. This may mean, in turn, that non-punitive approaches to such transgressions can rightly be considered as belonging to the broader realm of criminal justice.

To make matters more complicated, the Western criminal justice tradition, partly as a result of interaction with indigenous systems partly as a result of its own endogenous developments, has increasingly explored a range of restorative experiments (in fact, restorative justice is by now a global phenomenon, even if a marginal one by comparison to traditional punitive approaches, see e.g.: http://restorativejustice.org/). Restorative justice can operate both as a component/adjunct to the official criminal justice system notably in relation to aboriginal peoples (where it should not be confused with resorting to indigenous peoples' own systems of justice), or as an alternative/substitute to it. The Canadian Supreme Court has been at the forefront of seeking to incorporate a restorative dimension notably through sentencing of indigenous sentencing, as you will see in the Galdue case. At the same time, indigenous systems may have absorbed elements of punitiveness.

This raises the question of whether either system can be defined wholly in terms of being punitive or restorative, and also highlights the need to distinguish between different types of restorative justice and motivations for adopting them. One of the central issues in understanding both restorative and punitive approaches is seeing them as being in constant tension between each other both and within traditions. The debate on the comparative merits of each approach is, at any rate, a lively one.

In this session we will focus on Western and indigenous systems seen as fairly independent ideal-types, leaving it to the session on criminal justice and legal pluralism to better understand how particularly non-Western systems of criminal justice may become part of or co-exist with the state's system of law.

Further Reading:

• • Braithwaite, John. “A Future Where Punishment Is Marginalized: Realistic or Utopian Symposium: The Future of Punishment.” UCLA Law Review 46 (1999 1998): 1727–50.

  • Constitutional Court of South Africa, The Azanian Peoples Organization (AZAPO) v. South Africa, Case CCT 17/96, (Read only pages 1-11).

  • Robinson, Paul H. “The Virtues of Restorative Processes, the Vices of Restorative Justice,” 2003. https://papers.ssrn.com/sol3/papers.cfm?abstract_id=661123.

  • Daly, Kathleen. “Restorative justice The real story” (2002) 4:1 Punishment & Society 55.

  • Maloney, Maureen. From criminal justice to restorative justice: a movement sweeping the Western common law world (Vancouver: International Centre for Criminal Law Reform and Criminal Justice Policy, 2006).

  • Mirsky, Laura. “Restorative Justice Practices of Native American, First Nation and Other Indigenous People of North America: Part One”

    • Hirsch, Andreas von et al. Restorative Justice and Criminal Justice: Competing or Reconcilable Paradigms (Bloomsbury Publishing, 2003).

    • Jim Dignan, Restorative Justice and the Law: the case for an integrated, systemic approach