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Indigenous Perspectives and Legal Pluralism.docx

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York University
Social Science
SOSC 1375
Olena Kobzar

1 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 The Courts: 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? Aboriginal Law: 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 Theft Family feuds 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 Sentencing Circles - Operate within Canadian justice system - Mostly for offences for which punishment would be under 2 years in prison - Often taking the place o
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