Tom has a post about the role of Traditional Aboriginal Law in the sentencing process in Australia, mainly focussing on moral absolutism and the tricky necessities of cultural sensitivity (if I'm wrong, Tom, do correct me). Go read the post, then come back here.
So, in reading Tom's post, a few things from my "Crime and Punishment" class last semester came to mind. I shall now proceed to share with you from the fountain of useless crap that is my Arts Degree.
So, despite Tom's assertion that Traditional Law should be done away with in the sentencing procedures of Australia, I don't think that the idea of taking Traditional Law into account is necessarily a bad one, depending on how it is used. That said, there are still a whole lot of things that need to be considered, and it's probably easiest to put it in the too-hard basket. Does that mean we should, though?
So anyway, Traditional Law. If it's used as a means to substantially change functional law and go against values of what we consider to be right and wrong, as Tom described, this makes it a divisive mechanism. That's not cool. The point of a legal system, according to most modern legal philosophies, is to reflect and protect society's conception of right and wrong (lucky for us, there are still some Christian values enshrined in law). If taking another culture into account lessens the effectiveness of the law in reinforcing these concepts of right and wrong, then it's a bad thing.
However, taking other cultures into account is not all bad. This is where I talk about a school of legal philosophy that advocates the idea that the legal system must not only impose rulings upon those who commit crimes, but that those punishments should involve the communication of the idea of wrongdoing (communicativism, if you were wondering). How's this for a theory? Bob from an Aboriginal community does something that's against the law. He is sentenced and punished according to the laws of whatever state he happens to be in at that point in time. He is additionally punished according to the traditions of his Tribe. The values of wider society are upheld, and it is also communicated to him (by traditional punishments) that what he has done is wrong.
Now, of course, this raises a few other questions. What if the traditional punishment is against the laws of the State (eg flogging, removal of a limb, death)? Also, what do we do about the fact that Bob is being given a heavier punishment than those who aren't from an Aboriginal community who commit the same crime? Is this fair?
I'm not going to give my answer to these questions for the same reasons that my Philosophy lecturers withold their own opinions; discussion and the clear, open, frank, and often lunacy-tinged exchange of ideas. Go to Tom's blog and let him know what you think about what he has to say, and then come here and let me know what you think about my comments.
Captain Hobo, who may not ever get a good job but has fuel for blogging for years to come. Thankyou, BA.
Law, Australia, Aboriginal, Cultures.
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9 comments:
Not a fan of that moral absolutism business. Leaving aside aboriginal traditional law, don't our judges have the ability to alter a sentence on a case by case basis, according to that particular offence/perpetrator remosefulness/ mental capacity etc.?
If an individual has received some punishment already from his elders and is remorseful, i can see how that could be a factor to consider when finding a sentence for the individual. Why not?
It's certainly less offensive than that Aussie judge a while back who said it's okay to force your wife to have sex with you because she's your wife. That judge mitigated the husbands punishment because of his own warped cultural values.
Also, I think it's better to have Traditional law in consultation with a group of elders inside the legal system, where it can be monitored, and present a unified front to perpetrators. You won't get away with bad behaviour in Aboriginal culture or western culture.
Oh man, i've started, deleted and restarted my comment both here and over at the other post at least half a dozen times! I have so many conflicting and what I would consider hypocritical (on a personal level) thoughts about this whole issue that I'm struggling to put it into words! On the one hand I don't believe in different rules for different cultures. If you choose to live in this society then you choose to accept it's ideas of what is right and wrong as reflected in it's laws. On the other hand I think that if taking into account traditional sentencing is working, then why change it? But where do you draw the line? Who decides which cultures get this kind of consideration? Is it fair that it's ONLY aboriginals who have this kind of thing happening for them? Is it not sanctioned racism (in a very roundabout way!)to have one rule for one and another rule for someone else? But then part of me thinks that hey, the aboriginals never ASKED to be part of this society so do we have the right to foist our ideals onto them? Then another part of me says that they've accepted other aspects of being Australian - ie the welfare, education and health systems, so why not the law too? Or is the reasoning behind traditional law consideration based upon the fact that our legal system doesn't seem to WORK so well within the Aboriginal communities. I just keep going round in circles...it's late and my head hurts so i'm not in peak condition to be really trying to set my thoughts down! Sorry for just dribblin, i'll be back later once I can compose a cohesive and coherant thought ok?
GREAT post mate...
Danielle, our judges do generally have discretion in sentencing, although this is steadily being reduced. However, in several jurisdictions judges are compelled by law to take Aboriginal customary law into account. Since by definition this law is customary, not codified, it is essentially forcing the judge to relinquish his discretion and bow to the judgement of a group of Aboriginal elders. To be clear: Introducing customary law into sentencing is reducing judicial discretion, not enhancing it, because they are compelled to take it into account.
Keep in mind that when I subscribe to moral absolutism I don't claim that my set of ethics are absolutely right, merely that there exists a set that are absolutely right and that as a society we ought to strive to live by them. Part of that is enshrining them in our laws. It engenders not arrogance but humility, because I know that I don't and can't live up to them.
Debambam, that is a fantastic summary of so many of the hard problems surrounding the use of customary law. How the law ought to best serve Aboriginal people is a hard problem, no two ways about it. I don't for a moment think I know many answers.
Tom,
If customary law reduces a judges discretionay power, then that's a problem with the system or the way the legislation is written or some part of the mechanics, not a problem with the idea of white law acknowledging the value of customary law. I agree that reduction of judicial discretion is undesirable, but i wouldn't throw the baby out with the bathwater. There has to be a good way to marry the two effectively.
In my opinion, the only moral absolute we are obliged to follow is to treat others with love (of the christian varitey) and anything else is up for grabs, depending on the situation. Of course, this leads my views to often coincide with our legal system, with a few exceptions.
Debambam,
while you're thinking about the fact that there are different standards applied to white and aboriginal communities and individuals, consider why these 'positive discrimination' measures were concieved. When i was at uni, Aboriginal kids got more Abstudy than i would have got from Austudy. That's for a bloody good reason - I would have got to Uni anyway, most Aboriginal kids don't stand a chance. Shorter life expectancy, 4 time the infant mortality, more violence, more drug abuse, more likely to land in jail, more likely to have diabetes, the list goes on. They do not enjoy the support, infrastructure, oppourtunities and life-style that most Aussies do.
So, really, i think we should cut them a whole heap of slack and let the elders lead, if that works for their community. I've also been told i'm a pinko-hippie, so feel free to disagree.
Emma,
I'm thinking Tom is on the right track, but I'm still unsure of the moral absolutes, even there gray areas exist...
This is where my compulsory subject (2 1/2 years ago, now) on Contemporary Aboriginial Issues A would come in handy, if I could remember any of it. For the most part, all I recall is that the lecturer was one of those "pity the poor Aboriginals, and let's give them everything and let them break the law and not be punished because it is not their fault they are so hard done by" types and I learnt very quickly that she didn't want our personal opinion in our essays, she wanted to see her own opinion written by her students. Maybe that's why I thought the class was a useless waste of time and why I don't remember any details of what we studied.
I do remember having to write a paper on a report done about the disproportionate numbers of Aboriginals in jail as compared to Australian society as a whole, and the huge up roar there was about it. I just thought- They broke the law, they are where they belong. Due to the aforementioned lecturer, I had to write a "poor Aboriginals" paper to get the 'Distinction' instead of logically and objectively debating the issue (in which case, I would have gotten a low P1).
For the most part, I do not agree with "one law for this person, another law for that person" mentality. People who live in the same society should have the same set of laws applied to them.
I would write more, but I've got to get back to class. I'll be back. Sorry if this comment is long and useless. I lost my brain a week or so ago.
Danielle, not disagreeing with you on those points in the slightest. Its those same thoughts that hurt my head! Unfortunately for all this is not a simple black and white thing - and I don't mean in the color of skin sense! It's such a complex issue that one solution WON'T fit all...
Tom - I don't think anyone has the right answers!
hey where you at women??
I think this is the longest you have ever gone without posting.
Are you ok? Are you in a coma?
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