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SOSC 1375 Lecture - Legal Pluralism, Indigenous Perspectives

by Anu J
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Social Science
SOSC 1375
Olena Kobzar

- Aboriginals in jail - Responsibility vs. culpability o Responsibility = responsible for the crime o Culpability = who will be blamed? - Law and society o All societies have laws  Doesn’t have to have a background/basis  Can be unwritten o Laws grow from customs, social behavior and norms  Discriminatory  Emerging from moral panic and societal issues  Law can be regressive in response to fear o Law draws a boundary of acceptable and not acceptable - Legal pluralism = two or more legal systems coexisting together in a geographic area o What is law?  Codified system of rules  Institutions of the state  Courts  Parliament  CSIS  Corrections institutions (prisons, police stations, etc.)  Normative order within a social group  Set of rules, and process through which those rules are enforced - The courts in Canada o 1996: Canadian Criminal Code amended (sec. 718.2e)  Overrepresentation of aboriginal people in jail  Specifically instructs judges to look for alternatives in imprisonment for aboriginal people (to “soften” the sentence) o Jails are inefficient (bad)  Swedish jails give massages and create “better” people (less criminal)  Separate society from the individual  Make better criminals  Criminal networking o Sample case: Gladue (1999)  19 years old, Aboriginal, birthday, pregnant  Though the boyfriend was cheating with the sister  Got drunk, stabbed the boyfriend twice, died  No previous convictions… minor one for drinking and driving  Courts have to decide what to do  Aboriginal women have a high level of re-offending  We should give her a different process than other Canadian women  Fair or not?  YES o According to readings, Aboriginals already face punishment in their communities so they shouldn’t be double-punished o Take into account the circumstances of the individual  She had kids and they would have to put her away  Makes more sense to not send her to jail o Create sense of equality because it would compensate for their differences and their attempts to assimilate with the Western court systems o Canada is multicultural and we should try to be culturally-specific o Not necessarily a lighter sentence, but just a different sentence - Aboriginal laws o Importance of Elders  Source of law in the community  Wisdom, life experiences  Socio-legal system based on elders o Healing: body, mind, spirit  If something was wrong or they did something wrong, they needed to be healed  Important for the person who did wrong, and for their community o Harmony as an overriding principle in disputes and Creation stories  Restoration of harmony is a basic principle  Emerged from original ancestry  Community-based  Lived off the land with the help of the community members  Legal system evolved to have harmony be central to the Aboriginals o “Not Guilty Plea” to a charge for which a person is responsible for  Western tradition:  Not dishonest or disrespectful  Even if you committed the crime, you can plead guilty  Do what you have to do to “win”  Aboriginal tradition:
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