Skip to content. | Skip to navigation

Personal tools

Navigation

Fania Davis on differences between traditional and modernist constructions of justice

Feb 02, 2010

from Eisa Nefertari Ulen's interview at TheDefendersOnline.com:

Traditional and modernist constructions of justice differ in a number of ways. First, a communal and participatory ethos pervades indigenous justice approaches. Indigenous justice proceedings tend to involve an expansive range of participants. All affected persons are actively engaged—each of the parties in conflict, their extended families, traditional elders, and community members at large. The process tends to be consensus-based and more egalitarian than hierarchical.

On the other hand, in modern justice proceedings, the range of participants is quite restricted, typically limited to the two sides in conflict, along with a group of justice professionals who dominate the proceedings. Crime is impersonally viewed as an offense against the state rather than as an injury to a person or to relationships. The victim is usually excluded, except as a witness to support the “state’s” case. Offender-focused, modern justice asks: What law was broken, who broke it, and what punishment is deserved?

....A second major difference between modernist and indigenous constructions of justice is that, while the former is based upon interpretation and application of written rules, regulations, procedures, and statutory and common law, indigenous justice decision-making is grounded in values, history, proverbs, and other cultural teachings handed down through oral tradition.

Additionally, though modern justice forbids prayer and spirituality, based upon the doctrine of separation of church and state, indigenous justice intentionally relies upon prayer, ceremony and ritual. For instance, prayer may be offered and libations poured to open the process and to invoke the assistance of the ancestors or other supernatural beings, and to create an atmosphere of reconciliation, healing and unity. The process usually closes with a feast or other ceremony to celebrate reconciliation, to invoke the continued assistance of the supernatural and the community in keeping the peace and enforcing the decisions reached.

....A third major difference is in overarching aims. In indigenous justice, the focus is on repairing and rebuilding relationships with the intent of bringing reconciliation and social harmony. It seeks to strengthen relationships and bring about healing: Justice is a healing ground, not a battleground. Punishment as we know it today was the exception rather than rule. Reconciliation, not punishment, was the overarching concern. Indeed, in most indigenous languages, there is no word for prison.

If you stole something or hurt someone then, you would pay restitution—for instance, in Africa, maize, palm oil, chickens, goats, cows. Since your family has to pay, you are subjected to the sanction of your family, exerting a corrective influence. Your wrongdoing is shamed—the act, not you. You are urged to empathize with your victim, to acknowledge the wrong, apologize, make amends, and ask for forgiveness.

Of course, this contrasts sharply with our modern justice system whose approach is to isolate and eliminate alleged wrongdoers from the community by incarcerating them. The retributive essence of modern justice has spawned the highest absolute and per capita incarceration rates in the history of the world. We spend far more on incarcerating youth than on educating them. We sink endless resources into abysmally failing systems.

Read the whole article.

Document Actions

Add comment

You can add a comment by filling out the form below. Plain text formatting. Comments are moderated.

RJOB Archive
View all

About RJOB

Donate

 

Correspondents

Eric Assur portlet image

 

LN-blue
 

 lp-blue

 

lr

 

dv-blue

 

kw-blue

 

mw-blue