NCJ Number
50317
Date Published
1977
Length
55 pages
Annotation
THE ROLE OF THE CRIMINAL LAW IN A PLURALIST SOCIETY IS EXAMINED, AND PRINCIPLES INVOLVED IN THE SENTENCING OF TRADITIONALLY ORIENTED ABORIGINES ARE CONSIDERED, ALONG WITH PROPOSALS FOR RESOLVING THE PROBLEMS INDICATED.
Abstract
THE EVOLVING ASPECTS OF LEGAL PLURALSIM IN AUSTRALIA, ATTEMPTS TO MITIGATE THE HARSHNESS OF THE LAW, THE AIMS AND FUNCTIONS OF THE CRIMINAL LAW WITH REGARD TO THE ABORIGINES, ATTITUDES OF THE COURTS TOWARD SENTENCING, DEFICIENCIES OF THE SENTENCING PROCESS AS A MITIGATOR, AND SUGGESTED SOLUTIONS ARE THE MAJOR TOPICS CONSIDERED. THE RIGHT OF GROUPS TO RETAIN AND ACT WITHIN IDENTIFIABLE CULTURAL TRADITIONS WITHOUT FEAR OF PUNISHMENT WHERE THEIR VALUES CONFLICT WITH THE CENTRALIST LAW OF THE DOMINANT CULTURE IS THE GENERAL ISSUE CONSIDERED AND HOW THE CENTRALIST LEGAL SYSTEM OF AUSTRALIA HAS TRIED TO DEAL WITH THIS ISSUE ARE IDENTIFIED AND DISCUSSED. WHILE MAINTAINING THE JURISDICTION OF THE CENTRALIST LEGAL SYSTEM OVER THE BEHAVIOR OF ABORIGINES, EFFORTS TO MITIGATE THE HARSHNESS OF THE LAW HAVE BEEN TRIED THROUGH THE USE OF TEMPERED SENTENCING, CONSIDERATIONS OF PROVOCATION, SELF-DEFENSE, DURESS, AND INSANITY AND AUTOMATISM. THE FLAWS IN EACH OF THESE DEVICES ARE INDICATED. WHETHER OR NOT THE LAW IS INTENDED TO FORCE THE ASSIMILATION OF VARIOUS DIVERGENT GROUPS IN A SOCIETY INTO THE MAINSTREAM OF CULTURAL NORMS OR TO HELP PRESERVE TRADITIONAL VALUES WITHIN DIVERSE GROUPS AGAINST BEING OVERWHELMED BY MAJORITY DICTATES IS CONSIDERED. ASSUMING THE DESIRABILITY OF THE LATTER OBJECTIVE, VARIOUS EFFORTS TO USE THE LAW TO ALLOW THE EXERCISE OF IDENTIFIABLE ETHNIC CUSTOMS WITHOUT SANCTION ARE DISCUSSED. THE ADVANTAGES AND DISADVANTAGES OF TRIBAL COURTS ARE GIVEN PARTICULAR ATTENTION. (RCB)