Even the term "justice" is bound up invisibly with
culture. Most indigenous systems have as their goal the
restoration of peace to their community. The processes and
procedures through which peace is restores are quite
different from a system that is seeking "justice."
Our first problem in drafting standards is to understand
that First Nation's viewpoints tend to see "justice" as an
element to be present throughout society, and not left to a
separate institution to provide. While there are those First
Nations who wish to have a system of justice that looks
very much like the Canadian system, many will want
significant variations.
A second purpose of traditional "justice systems," if we
may borrow that term for the moment, is to condition members
of the community, including "victim" and "offender," to
incorporate a sacred system of well-elaborated individual
duties and responsibilities in their lives so as to maintain
values of order, harmony, and peace within tightly -elated
and interdependent communities, rather than to punish
"offenders." The admonition is positive— "Thou shalt..."
rather than negative, "Thou shalt not....." People "break
the law" when they do not act positively. Even in the
absence of negative conduct, a person may be guilty of
failing to act on their duties and responsibilities.
While "crime" certainly was less prevalent in bygone
years in First Nations' communities, contrary to some romantic
viewpoints, before the arrival of Europeans, there were
murders, stolen property, assaults. There were disputes over
property. Every First Nation had the means and established
practices for resolving these problems. They each considered
the transgression in their own cultural context, interpreted
it according to their cultural standards, and resolved the
issues in accordance with their own practices. Government,
societies, clans, healers, relatives, elders each had their
part to play. Laws were not legislative, but were decided
and applied by the entire society. An action being "against
the law" had an entirely different meaning in that context.
If we are going to accommodate "traditional justice" for
First Nations, can we make room for, for example, a system
of justice that is non-adversarial, in which all
participants, "offender" and "victim" and community
interests, work together to resolve a problem or conflict in
a manner that positions them to work together in the
future, which restores peace in the community? A system in
which the healing of the human spirit and restoration of
dignity is the goal for both "victim" and "offender"?
Can we accommodate a non-adversarial system, if we should
want one, using the procedures of Canadian courts that are
derived from a different cultural and spiritual perspective?
Can we disperse justice throughout a nation’s institutions
rather than centralizing responsibility for it in one
institution? Can responsibility for remedial actions be
carried out by many institutions and methods rather than
relying upon a "correctional system."
Can we accept a system that restores balance between
informal and formal mechanisms of justice? "Traditionally," the expectation was that family, clan, society, and similar
relationship settings will be used before formal
adjudicative procedures are employed. Certain respected
elders, or even youth with a reputation for fairness, become
designated as dispute resolvers who can guide disputants to
a restoration of communal harmony.
To the outsider, such a system may appear to be only one
level above anarchy, but to the insider, there is a
well-functioning, coherent jurisprudence developed by
spiritual consensus. Can we get past our ingrained
definitions as to what "justice" is all about? The "western
model" focuses on individual rights, the placement of the
burden of proof on accusers, punishment for the guilty and,
frequently, both removal of the offender from the community
and imprisonment. There are written procedures, piles of
records and all the trappings of a formal institution. When
the two models are set side-by-side, those who are adherents
to the "western model" have far more to "show-and-tell" than
do the traditional adherents, leading to the
conclusion—sometimes even by traditionalists—that the
indigenous group is bereft of law and justice and in need of
having a "legal system" imposed upon them. |