2. Criminal justice and legal pluralism

We have previously looked at how certain legal systems differ from even as they may claim to be part of the broad construction of criminal justice. In this section, we look at how various legal traditions can coexist within a particular legal order, the phenomenon often known as legal pluralism. Although this phenomenon is often linked to the presence of indigenous groups, legal pluralism is a far broader concept that is also relevant in societies in which the state is weak, in the colonial and post-colonial context, as well as in several industrialized societies.

It is tempting to think of criminal justice as a high place of legal monism (the idea that there should be a single law within the state).  After all, we have seen that criminal justice is essential to and indeed in its better known retributive form inherent and inseparable from the emergence and operation of the modern state. Even states that otherwise tolerate a degree of legal pluralism in civil matters, may be loathe to do so when it comes to criminal justice and at any rate only do so at their discretion. The history of Western legal construction is by and large a history of legal unification in the context of national projects, reinforced by notions of equality before the law.

By the same token we also know that the criminal law is compatible with federal structures that give significant leeway to federated entities, or increasingly that either adapt or grant autonomy to certain groups, notably indigenous communities. This is what is known as soft legal pluralism in that it operates within the shadow and with the imprimatur of the state. In its accommodationist variant, it may merely involve adaptation of the dominant criminal justice institutions to the needs or specificities of certain groups. It may also incorporate elements of the justice thinking of various sub-national groups, either for members of such groups or for the criminal justice system generally. In its autonomizing variant, it may lead to the recognition of actual criminal jurisdiction in limited cases to such groups. We will examine in particular some of the efforts that have been undertaken in Canada to make way for forms of indigenous justice but it should be clear that some countries have gone far further in granting criminal jurisdiction to indigenous peoples. Accepting legal pluralism, including in matters pertaining to criminal justice, may contribute to reconciliation in settler societies and more generally pave the way to autonomy and self-determination. By the same token, it may challenge the dominant's system conception of what criminal justice ought to entail, by making some of its premises appear less inevitable than they are often presented as being. Finally, legal pluralist arrangements may create concerns when seeking to promote certain human rights.

Aside from soft legal pluralism, it is worth remembering that social forms of coercive, punitive and sometimes violent norm-based social control exist in many societies, sometimes outside the official legal system (hard legal pluralism). The survival of such practices, which the state often seeks to eradicate but may also tolerate for a variety of reasons, testifies to the limits of the state's reach. Where the state is particularly weak and/or community links particularly strong, alternative forms of law enforcement may take over. Normative arguments may exist, all other things being equal, to protect such practices notably in colonial or post-colonial as well as intensely multicultural societies. Moreover, there may be much that can be learned from them in terms of reinventing the form and content of criminal justice.

At the same time, some practices may intensely conflict with the liberal mindset. It is at least open to question whether some qualify as forms of  justice at all, although some popular support. The role of the state may be in certain cases to tolerate community forms of criminal justice whilst limiting some of their less acceptable manifestations, although this may not always be an acceptable compromise for the communities involved and may be reminiscent of an earlier colonial era in which the settler was all too willing to find that local practices "repulsed the conscience." In some cases, the only viable response to alternative forms of criminal justice that defy the state by imposing sanctions outside the law may be the criminal punishment of those responsible for it.

This session is meant as a general introduction to the question of legal pluralism. The extent to which the mainstream criminal justice system might take into account some characteristics of defendants (the accommodationist framework) for the purposes, for example, of assessing negligence or sentencing will be examined in the more directly relevant sessions.

“Wetiko” by Liana Buszka
“Wetiko” by Liana Buszka

Criminal Justice and Legal Pluralism

Class Preparation:

Law Commission of Canada, Justice Within: Indigenous Legal Traditions, 2006

Although Indigenous peoples were the earliest practitioners of law in what is now Canada, their laws have often been ignored or overruled by non-Indigenous laws. In the face of colonialism, Indigenous legal traditions lost much of their influence, all but disappearing from some communities. Today, however, many Indigenous communities have begun the often difficult task of reinvigorating their legal traditions. And in recent years Canadian society has begun to recognize the insights of Indigenous legal traditions. Through the exploration of restorative and transformative justice as an alternative to conventional criminal justice programs, for example, the courts have acknowledged the importance of such traditions in a number of circumstances.