Reviving Restorative Justice Traditions?

Abstract

This book chapter demonstrates that simple dichotomies contrasting pre-modern indigenous restorative justice with modern state-centred systems of justice are not necessarily helpful. Indigenous societies were, and are, complex and their processes for dealing with crime and social disorder cover a range of possible responses from the restorative to the retributive. In the chapter, it is argued that a context of hybridity is a more useful representation to consider contemporary developments, where new forms of doing justice are developed which merge the restorative in new practices. The flexibility of new justice practices may accommodate indigenous justice demands, but are not necessarily the same as indigenous practices. Yet as indicated in this chapter there is also a ‘dark’ side to a developing hybridity. Restorative justice has found itself a partner to a greater emphasis on individual responsibility, deterrence and incapacitation. Criminal justice systems that bifurcate by dividing offender populations between the minor offenders and serious repeat offenders have only a limited vision of restorative justice, and indigenous and other minorities are likely to be fast-tracked towards the hard end of the system. There are positive examples of indigenous/state processes merging in a hybrid way and which do respect indigenous claims for greater self-determination and control. In the examples of the indigenous courts and community justice groups we see the justice system reconfigured with different and more restorative values. However, it is also necessary to understand that processes like circle sentencing and indigenous courts exist within a broader state-based legal framework that still prioritise a range of considerations within sentencing. Further, we need to be clear that some indigenous laws and practices do not comply with generally recognised human rights standards. This is not an argument against restorative justice or indigenous justice. It is an argument for considering how we might deal with these conflicts.