DECOLONIZING LAW THROUGH RESTORATIVE JUSTICE.

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Author: Melinda Meng
Date: Fall 2020
From: Harvard International Review(Vol. 41, Issue 4)
Publisher: Harvard International Relations Council, Inc.
Document Type: Article
Length: 2,266 words
Lexile Measure: 1590L

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Ideally, when we think about the law, we ideally view it as just, fair, and equal. However, the harsh reality of legislation is that it has also been used as a tool to oppress, incarcerate, and dispossess marginalized people across the world. For example, widespread systems of law inspired by European legal tradition were imposed on non-Western societies during the process of colonization. While most people have come to recognize the terrible harms caused by colonialism, many legal systems are existing holdovers from colonial periods, serving entrenched interests that perpetuate colonial power structures. Such powers have been seized by socially and economically privileged groups to the detriment of Black, Indigenous, and people of color (BI-POC) communities, communities where the law has long failed to uphold the promise of justice, fairness, and equality--in other words, equal protection.

Predominant legal systems are adversarial and retributive, focusing on the assignment of blame and suitable punishment. An alternative system is that of restorative justice, which prioritizes reconciliation and holistic community healing over punishment. In communities where enforcement of the law has resulted in theft of land and mass incarceration, principles of restorative justice have long been used to avoid relying on a broken judicial system. In North America, the restorative justice movement has been informed to a great extent by the teachings of First Nations in Canada and the United States as well as the Maori of New Zealand. Restorative justice also has deep roots in Africa, where it was the predominant justice structure in many communities prior to the arrival of colonists. As such, restorative justice is far from a new concept, but its adoption by postcolonial societies has only taken place in more recent decades.

Unlike most contemporary legal systems, restorative justice views crime mainly as a wrongdoing committed against an individual rather than the state. It is victim- and community-centric and integrates the understanding that criminal behavior is due to adverse social conditions rather than an individual's nature. The overarching goals of restorative justice can be understood as "restoring the losses suffered by victims, holding offenders accountable for the harm they have caused, and building peace within communities," aims informed by the principles of encounter, repentance, and reintegration. Even though this interpretation of restorative justice most directly involves criminal law, its principles and practices are applicable whenever wrongdoing is perceived. Therefore, restorative justice broadly encompasses both criminal and civil law. A prime example of this versatility is the growing popularity of mediation and arbitration, two encounter-based alternatives to resolving conflicts in court.

Restorative Justice in Canada

One of the cornerstones in the implementation of restorative justice programs in Canada is Section 718.2 of the Criminal Code, which states that "all available sanctions other than imprisonment that are reasonable in the circumstances, should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders." This means that incarceration is meant to serve only as a last resort, especially in the case of First Nations offenders who have "fundamentally different...

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Gale Document Number: GALE|A655912329