Indigenous Perspectives and Legal Pluralism
Law and Society:
All societies have laws
Laws grow from customs, social behavior and norms
Law draws a boundary of acceptable and not acceptable
Legal Pluralism: two or more legal systems coexisting together in one geographic area
What is law?
Normative order within a social group
1996: Canadian Criminal Code amended (sec. 718.2e): specifically instructs judges to look for
alternatives in imprisonment that are reasonable in circumstances of all offenders with
“particular attention to the circumstances of aboriginal offenders”
**R. v. Gladue (1999)
Stabbed her boyfriend because she thought he was sleeping with her sister
The judges looked at sentencing circles
Does this mean that aboriginals should get lighter sentences than non-aboriginal offenders?
Importance of Elders
Healing: body, mind, spirit
Harmony as an overriding principle in disputes and Creation stories
Non Guilty Plea” to a charge for which a person is responsible for in Western tradition = not
dishonest and in Aboriginal tradition = dishonest 2
Penalties for crimes carried out by the whole clan. Why is this important? Answer: harmony as
an overriding principle upon which aboriginal society/law was build
Not seen as a punishment. Seen as restoring order.
Differs from white legal system. Everyone is seen as responsible for one‟s self.
** Culpability and Responsibility:
How do you deal with lawbreakers?
Shame as sanction
Murder in Western tradition – an offence against the state
Murder in Aboriginal tradition – an offence against the family/clan of the victim
Criminal activity is a collective responsibility of a tribe
Aboriginal „truth‟ - the whole truth is a collection of everyone‟s responsibility
- Operate within Canadian justice system
- Mostly for offences for which punishment would be under 2 years in prison
- Often taking the place o