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Nature's Law
Spiritual Life, Governance, Culture, Traditions, Resources, Context and Background
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What Is The Goal of "Justice"?
Making Room

The Goal of "Justice"

The United States
 Experience

Ensuring Space Is
Left Open In Canada

An Apache
 Paradigm

The Informal
System of Justice

Customary Law

Canada, Too, Has
 Deep Differences

The Indigenous
 Justice Process

The Navajo
 Approach to
 Reconciliation

Visual representation of nature's laws


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.

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