Fania Davis on differences between traditional and modernist constructions of justice

….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.

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