Is The Law Round?

Neil Degrasse-Tyson is an American astrophysicist who is also a cult hero. His books, written for the layman, are extremely popular and readable. He has almost a million followers on Twitter. The Imaginary Foundation, an experimental research think tank, which also hosts a website and blog where they post cool ideas, has multiple postings on Degrasse-Tyson. There is even a magical video as part of the Symphony of Science series where one of Degrasse-Tyson’s lectures is to put to music.  In short, he rocks. His lecture series, which I have had the opportunity to watch, are informative, interesting, and hilarious. He is above all thought provoking and the lecture I recently watched on “On Being Round,” started me thinking about the connection between “being round” and the law.

“Being round” is such an important concept in our physical world because all objects want to be round. Being in a state of roundness is being in the most efficient shape as it provides the largest surface area for an object. It is, in other words, the natural shape for an object. Rain, is spherical as it falls from the sky. Our stars, planets, and even the observable Universe are round. However, other forces, such as gravity, may squash the sphere either a little, like our earth to make it more an oval shape, or completely, like our flattened solar system. Either way it is the circle shape that is the most natural and most sought after shape.

So applying this premise, I ask is the law round? In many ways the law is, particularly if you consider that roundness means that two ends meet to complete an object or an event. Certainly in the civil context, usually the best-case scenario is where the parties come to an agreement before a trial of a matter. This is the most efficient and equitable outcome.

There is also continuity and stability with roundness. The rule of law is in place to provide a familiar and thus stable form of discourse in society: we all understand what a stop sign means and we all have the same expectations when we see it. However, despite this, there are times when people do not act as the rule of law dictates. In these instances, the bubble bursts and the completeness of the law seems to be imperfect. Like the forces of gravity causing our planet to bulge in the middle and therefore deviate from the perfect spherical shape, the law must provide an outlet or a mechanism for those situations when the perfectness of the law is broken. Criminal law attempts to provide another set of rules for those instances, perhaps making the law more elliptical in shape than perfectly round.

There is one instance in the criminal law, where roundness is everything: the sentencing circle. The sentencing circle is an innovative sentencing practice, which arose out of the need to provide a more meaningful and relevant outcome to criminal offences for the Aboriginal community. Our criminal law, based in English common law, imposes sentences based on traditional sentencing concepts such as deterrence, retribution, and rehabilitation. These concepts are decidedly based on Western ideals and do not accommodate differing cultural practices. This rigidity translated into a disproportionate amount of Aboriginals in the criminal justice system, resulting in a disproportionate number of Aboriginals serving jail sentences. It was clear that the traditional precepts of the criminal law did not resonate with the Aboriginal community. It was equally clear that the adversarial system so entrenched in our criminal law was part of the problem. This conflict-oriented system was at odds with the Aboriginal values of community and collective respect. The idea of a sentencing circle embraced the concept of reconciliation and collaboration requiring the input of the community, not just the judge and case law, in crafting an appropriate, and hopefully rehabilitative, sentence. Thus the “round-table” becomes part of the criminal law nomenclature.

Unfortunately, unlike nature, “being round” does not guarantee success. According to the 2011-2012 Annual Report of the Office of the Correctional Investigator, released by Howard Sapers, the number of Aboriginal offenders in the penitentiary system has increased. In fact, over the past ten years the Aboriginal inmate population has increased by 37.3% and although only 4% of the Canadian population is Aboriginal, 21.4% of the penitentiary population is Aboriginal. Although, sentencing circles are not typically used for the most serious offences and this could explain why the numbers in the penitentiary system are still high. However, this does not mean that alternatives to traditional criminal law do not work. Indeed, to “think outside of the box” and to be open to different legal solutions, may in fact, make the law more transparent, more equitable, more efficient, more impactful, and well, more round.

Comments

[Peter]

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