A Comparison of Ancient Roman Justice Systems and Canadian Indigenous Justice Systems: Approaches to Crime and Punishment

Abstract

Canadian law is legally pluralistic and combines common law, civil law, and Indigenous legal traditions. Roman law has contributed largely to both the Canadian common law and civil law traditions while Indigenous law has developed from its own belief system and history. Conflict has arisen within Canada’s criminal system with respect to Indigenous offenders due to the retributive nature and positivistic approaches of both the common law and civil law systems in the face of the restorative methodology found in Indigenous approaches to crime. The retributive approach is largely reflective of the legal ideology developed by the Romans and their methods for punishing crime. However, Rome had many different periods of law and the history of Roman law before the classical period has largely been ignored in legal scholarship. By contrasting the two systems, I argue that criticism for Indigenous law as being largely custom is misplaced and that Indigenous law derives force from similar sources of law found in the Roman system. Moreover, I argue that the overincarceration and representation of Indigenous individuals within the Canadian criminal system is partially the result of differences in core values resulting from separate histories and customs. The Canadian criminal system may benefit from adopting smaller organizational structures in order to provide more personal services as is seen in Indigenous systems. Furthermore, the Canadian criminal law system needs to incorporate further aspects of Indigenous law into its structure which represent traditional Indigenous values in order to encourage reconciliation and help heal Canada’s Indigenous peoples. However, this presents difficulties given the sizeable population of modern cities and the needs of administering justice over a large population.