Criminal Justice, Democratic Fairness, and Cultural Pluralism: The Case of Aboriginal Peoples in Canada

Abstract

The place of criminal justice in democracy has been little studied in recent democratic theory. This is surprising insofar as much of the theory of democracy concerns how shared norms become binding law, and where are shared norms more forcefully expressed or enforced than in the domain of criminal law? Perhaps the reason for democratic theorists’ recent neglect of criminal justice and punishment is the fact that there is so little agreement in most democratic societies as to the purpose of punishment. Is it fundamentally retributive in purpose, and therefore appropriately measured out in proportion to the seriousness of the offense? Is its purpose deterrent, so that no greater (and no lesser) punishment should be inflicted than is necessary to dissuade individuals from violating the law? Or is its purpose rehabilitative, to “discipline” in its root meaning as synonymous with “teach”? Or, finally, we might conceive of criminal justice as restorative, with the aim of repairing victims’ injuries and reintegrating offenders into responsible membership in the community. There is clearly no settled consensus on these questions in contemporary democracies.