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This chapter provides a genealogy of the Gladue–Ipeelee principle of special consideration of Indigenous circumstances at sentencing. The principle is codified in the 1996 statutory requirement that “all available sanctions other than imprisonment … should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders” (s. 718.2e of the Criminal Code of Canada). Using the Foucaultian genealogy method to produce a “history of the present,” this chapter eschews normative questions of how s. 718.2e has “failed” to reduce Indigenous over-incarceration to instead focus on how practices of “special consideration” reproduce settler-state paternalism. This chapter addresses three key components of the Gladue–Ipeelee principle: the collection of circumstances information, the characterization of those circumstances, and finally their consideration at sentencing. Part one focuses on questions of legitimacy and authority and explicates how authority and responsibility to produce Indigenous circumstances knowledge was transferred from the Department of Indian Affairs (DIA) to Indigenous Courtworker organizations in the late 1960s/early 1970s. Part two identifies how authority shapes problematization by examining the characterization of Indigenous circumstances in the two eras, finding that present-day Gladue reports articulate an Indigenous history and critique of colonialism as the root cause of Indigenous criminalization, whereas DIA reports prior to 1970 generally characterized this criminalization as a “failure to assimilate.” Part three focuses on the structural reproduction of power relations by exploring historical continuities in judicial and executive-branch consideration of Indigenous circumstances, suggesting that the Gladue–Ipeelee principle reinscribes a colonial “mercy” framework of diminished responsibility. The author discusses how the principle operates in the shadow of Indigenous over-incarceration as a form of state “recognition” and a technique of governance to encourage Indigenous participation in the settler justice system and suggests that the Gladue–Ipeelee principle produces a governing effect that reinforces settler-state authority by recirculating colonial practices and discourses of settler superiority.

The following sections will present a brief overview of theories of justice that have underpinned the development of the institutions and administration of justice in modern Western societies. It will begin with an examination of the general political–philosophical ideas and concepts in the area of justice in the modern era. It will then examine the perspectives of punishment, which are linked to these philosophical theories.

The contours of the question of transmission or jurisdiction receive a particularly sharp delineation in a recent judgment from the annals of contempt of court. How can the solicitor scandalise the court, without destroying the law? Consider Anissa v Parsons. It involves the doctrine of contempt by scandalising – the most feudal of the three legally recognised types of contempt used to keep “the streams of justice clear and pure.”⁵ And the question that the judgment confronts is the technical and representational ordering of law, and specifically the articulation and disarticulation of two orders – that of the court and that of law.

This chapter examines the delicate balance achieved by apex courts in new democracies when dealing with impunity for rights violations during times of transitional justice. While international law has clearly rejected amnesties for past rights violations, domestic politics sometimes incorporate amnesties as part of larger peace settlements. This puts courts in the difficult situation of balancing the competing demands of law and politics. Courts have achieved equipoise in this situation by adopting substantive interpretations and procedural approaches that use international law’s rights-based language but without implementing international law’s restrictions on amnesties. In many cases, courts do this without acknowledging the necessarily pragmatic nature of their decisions. In fact, oftentimes courts find ways of avoiding having to make any substantive decision, effectively removing themselves from a dispute that could call into question their adherence to international legal norms that transcend politics. In doing so, they empower political actors to continue down the road toward negotiated peace settlements, while at the same time protecting the courts’ legitimacy as institutions uniquely situated to protect international human rights norms – including those they have effectively deemphasized in the process.

This is an interpretive study in the sociology of literature that explores Aeschylus’s trilogy of dramatic plays known as the Oresteia. The plays dramatize a normative argument that exemplifies the dialectical struggle between domination and democracy. Social relations are characterized by agon (struggle), domination, and contradictions brought about by learning through suffering. These social realities reflect the primary theoretical claim of radical interactionism (RI) that domination and conflict are profound, pervasive, and perennial. On the interpersonal level, the plays dramatize structure, agency, role-taking, and the Thomas Axiom. As the first drama to interrogate an inchoate polity as an object of the public’s gaze, the Oresteia anticipates the sociological importance of critical consciousness, collective decision-making, political institutions, moral and, ultimately, cultural transformation. Despite a social context of slavery, imperialism, xenophobia, ostracism, misogyny, exclusivity, and constant warfare, the Oresteia foreshadows Western civilization’s ideals of legal-rational domination, citizenship, human rights, persuasion, and justice that have been imperfectly institutionalized to reduce surplus domination. The West still struggles to realize those ideals.