How to cite this journal: Author, Date of the post, WMO Conflict Insight, Title of the post, ISSN: 2628 6998, https://worldmediation.org/journal/
ABSTRACT
There is a misconception regarding the term justice that leads many to think of it from a solely Western approach to the detriment of perspectives originating in other cultures (primarily indigenous ones), which have historically been relegated to the legal margins due primarily to the impact of colonization. This reality is often translated into a failure to address the variety of cultural factors that affect the formation of different concepts of justice, which also influences the perspective of conflict resolution. This article acknowledges how the study and exchange of different cultural approaches to justice may enrich the development of conflict resolution strategies, both inside the State and in the international arena. We will start by addressing the features of one of those historically relegated concepts of justice (the Māori one) instead of the Western approach to justice. We will then explain how these ideas on the basic concept affect the approach given to conflict resolution.
KEYWORDS
Māori people, Tikanga Māori, retributive justice, restorative justice, community, social justice, punishment, mutual understanding, conflict resolution, and colonization.
INTRODUCTION
The cultural framework shapes what each society identifies as “fair,” as well as the processes that must take place when individuals break established legal norms; in other words, different cultural groups may have different conceptions of what justice is and how to apply that justice when legal codes are broken. However, this variety of concepts of justice saw itself restrained by the effect of colonization, which led to the imposition of the western conception of justice in many territories of the world and subsequently on the indigenous populations that had already exerted their customary legal norms in said territories. One of those indigenous populations were the Māori people.
MAIN CORPUS
Māori idea of justice as opposed to the western concept
The Western concept of justice is rooted in a current of judicial thought known as ‘retributive justice’, which understands the punishment of criminals as the ‘fair’ compensation for the damage caused to victims. To a great extent, the law of retribution comes from the premises of ancient Near East cuneiform law (e.g., Babylonian Code of Hammurabi, “an eye for an eye”).
The modern approach to the law of retribution considers the State (rather than the victim of the rule infringed) as the first affected party to the crime, as it is the law of the State that has been broken. The relationship between the term justice and punishment in the Western model, moreover, proceeds from the assumption that the breaking of the law applicable to the entire society of a state has broken the equilibrium of that society, and therefore, the punishment of the offender satisfies that society’s desire for vengeance, given the perceived injustice of the lawbreaker’s act. Critics of this approach argue that this system leaves real victims out of the process, which could weaken the compensatory aspect of punishment. In addition, they see punishment as a violent response to a violent act, which only fuels the conflict rather than addressing its real causes.
Retributive justice systems were established in the territories colonized by western nations, resulting in a justice model being imposed on many indigenous peoples. One of those were the Māori people, whose customary law (widely known as Tikanga Māori, a set of rules and customs that shape the right way of doing things for the Māori), already included a concept of justice that differs from the western idea.
For Māori people, the breach of a custom or rule included in Tikanga Māori results in disrupting relationships inside the community, which need to be repaired by mutual understanding. The Māori concept of justice understands that the “fair” compensation for the victim can only be achieved in the form of a mediated outcome negotiated between the offender and the victim; this way, the lawbreaker ought to take responsibility for the damage caused and its compensation while the needs of the victim of wrongdoing are also considered.
The fact that Māori people understand justice in terms of repairing community ties and acknowledging the offender’s responsibility in compensating the victim (instead of guilt and punishment) comes from their cultural particularities. In Māori culture, empathy, respect, and mutual understanding are very important because they keep the community together, and unity is translated into strength. This concept recognizes that when a conflict breaks community ties, punishing lawbreakers does not make them address the responsibility they have for the damage caused, and the real need of the victim is also overlooked, so the real nature of the conflict is not treated and as parties do not sew the broken relationship by mutual understanding community ties remain damaged.
Impact on conflict resolution
The cultural values that shape Māori practices and beliefs, as well as their customary law (Tikanga Māori), impact how they address conflict resolution. As we have previously stated, Māori people give a lot of importance to community ties, which need to be based on respect, empathy, and mutual understanding between the community members. That is why Māori conflict resolution strategies have a strong social healing character. When a conflict emerges, its resolution is based on a process of dialogue between offender and victim that favors an empathic understanding of the nature of the conflict and on the best way to heal the broken community link by acknowledging the needs of the victim and the responsibility of the lawbreaker. Both parties perceive the outcome as acceptable because it has been negotiated and reached by understanding each other, and the fact that they agree on the damage caused and the best way to repair it makes them convinced of the solution, and thus the relationship is repaired.
Of course, it is important to note that the effectiveness of this system relies on the values of the Māori people, as well as on the spirituality given to the process; their beliefs and the way in which they perceive society makes them see their conflict resolution methods as undisputable for the wellbeing of the community. In other words, Māori people are willing to trust the effectiveness of the process because they know that solving conflicts through understanding and respect preserve the links that keep the community together, and as social unity is something they consider primordial, parties involved in a conflict have a responsibility to solve their differences for the sake of those relationships.
SUMMARY *
The article’s argument turns on where the injury is located. In the retributive model the primary injured party is the state, whose law has been broken, and the response is directed at the offender in the form of punishment. In the account of Tikanga Māori given here, the injury falls on the relationships that constitute the community, and the response is directed at repairing them, through acknowledgment of responsibility and a negotiated form of compensation. The author’s further point is that this second approach cannot be extracted from the values that sustain it: the process works because participants share a conception of community in which restoring the relationship is the obligation, which is why the author distinguishes it from restorative justice as practised within state systems.
CONCLUSION
Conclusion and Outlook
As we have seen, the traditional western approach to justice differs greatly from the Māori approach, which understands justice as a need to restore broken community links by mutual understanding that leads to victim compensation instead of compensation through punishment. The Māori concept of justice is rooted in their cultural values, which also shapes the approach given to conflict management and resolution, which is based on respect and empathy building. As we have said, the profound cultural character of the Māori approach to conflict resolution is what makes it effective for Māori people, who share the values that make this process primordial for maintaining social unity in the breach of conflict. This also happens in other cultural groups whose customary laws recognize similar processes, although with their particularities; all those processes are effective for those communities because they are very rooted in their values and beliefs.
Many people compare Māori conflict resolution with restorative justice, even the New Zealand government, in their attempt to include Māori customary law into the country’s common law. However, it must be noted that, though they share some similarities (such as the promotion of offender-victim understanding to solve the conflict and find the right compensation for the victim according to its needs), restorative justice lacks common values and spiritual aspects that make Māori conflict management what it is. Despite that, it may be recognized that restorative justice may be the key to opening the door for a further study of different ways to perceive justice, an intercultural approach that may be positive for the development of conflict resolution strategies based on mutual understanding.
POTENTIAL SOLUTION *
The distinction the article draws in its closing paragraphs is the most valuable thing in it and deserves to be made central, because it names a hazard that runs through the whole field of culturally grounded practice.
Restorative justice as it operates within state systems is a procedure. Tikanga Māori is a legal order with its own concepts, obligations and authorities: whakapapa establishing who stands in relation to whom, mana and its restoration, utu understood as the restoration of balance rather than as revenge, and hohou te rongo as the making of peace. When a state adopts the procedure while leaving the order behind, what results is a technique that resembles the practice and lacks what made it work. The author is right to resist the equivalence, and the practical consequence is that adoption without authority is appropriation: a process conducted by state appointed facilitators, on a state timetable, according to state criteria, is not the practice it is named after, however sincerely it borrows.
That points to what genuine recognition would require, and the New Zealand experience offers material worth studying rather than only citing. Tikanga has been treated by the courts as part of the common law where relevant, most recently in litigation concerning customary authority, and the Māori Land Court and the Waitangi Tribunal operate with tikanga informing their procedure. The unresolved question, and it is the one this journal should find most interesting, is whether an indigenous legal order can be incorporated into a state system without being subordinated to it, since incorporation on the state’s terms places the state in the position of deciding which elements of another order it will accept. The alternative model, in which the two orders operate alongside one another with defined jurisdictions, is more demanding of the state and more faithful to what it recognises.
Two qualifications would strengthen the article’s own account. The contrast between a punitive West and a restorative indigenous world is drawn more sharply than the history supports: European legal traditions contained extensive systems of compensation before the state monopolised prosecution, and Māori practice included responses that were coercive and, where required, severe. What distinguishes the two orders is not the presence or absence of sanction but where responsibility is located and what restoration is understood to mean. And the safeguards that apply to any community based process apply here too: where a community is internally unequal, a process conducted within it can reflect that inequality, which is why the participation of those with least standing, and the availability of an alternative route, matter as much in customary as in state settings.
Finally, the wider implication the article gestures toward is worth stating plainly. Mediators trained anywhere carry assumptions about what a fair process looks like, and encountering an order built on different premises is the most reliable way to discover what those assumptions are. That is the argument for studying such systems, and it is a stronger one than the search for techniques to import.
* Added by the WMO Editorial Team
REFERENCES
References
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Supplementary references added by the WMO Editorial Team
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United Nations Declaration on the Rights of Indigenous Peoples, 2007, Articles 34 and 40.
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