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Finding Common Ground: Reconstructing Criminology with Epistemic Justice
Meredith Rossner, Elfie Shiosaki & Helen Taylor*
I. Introduction
The discipline of criminology is experiencing a resurgence of scholarship that critically reexamines its past, present, and future. This critical inquiry has taken many forms, most prominently in the overlapping work of decolonizing, Southern, and Indigenous criminologies.[1] While these approaches are distinct and marked by differences and tensions,[2] all seek to fundamentally challenge the discipline—how it produces and disseminates knowledge, and for whom it exists. Parallel to these academic debates, we are also witnessing a revitalization of abolitionist and transformative justice movements, which share some of these goals.[3]
In this Special Issue, we are asked to consider what reconstruction might look like as a path forward for criminal law, criminology, and criminal justice. Is reconstruction merely a band-aid that obscures the violence embedded in state laws, institutions, and academic scholarship? Or does reconstruction offer something truly transformative? In their seminal text Reconstructing Criminal Law, Nicola Lacey and colleagues seek to integrate a socio-legal understanding of history, power, political economy, and inequality into criminal law education.[4] This book also sought to reveal the often unspoken normativity in the discipline, critiquing the notion of neutrality or objectivity of criminal law and highlighting the social construction of both crime and law. This radical reframing asks us to engage with the law not merely as a set of rules but as a dynamic system deeply intertwined with broader social, political, and economic forces.
However, while Reconstructing Criminal Law represents a significant step forward, it also has limitations, particularly from the perspective of readers in a settler-colonial context like Australia. Arguably, the text does not go far enough in addressing the epistemic injustices that arise when Indigenous perspectives and knowledge systems are marginalized or omitted altogether. The book’s claim to provide a comprehensive examination of criminal law in context is undermined by its lack of engagement with First Nations standpoints. This omission is particularly striking given the ongoing impact of colonialism on the legal and criminal justice systems in Australia, where the experiences, legal traditions, and ongoing struggles for sovereignty of Indigenous peoples are vital to any truly comprehensive understanding of criminal law.
By not sufficiently considering First Nations perspectives, there is a risk of reinforcing the dominance of Western legal frameworks and sidelining the voices of those most affected by the law’s operation in a settler-colonial context. For Australian readers, and indeed for readers in any context shaped by colonial histories, this represents a missed opportunity to engage with the full spectrum of knowledge that should inform legal education and practice.
Building on the important work of Lacey et al., we propose a further step: the reconstruction of criminology, informed by the principles of epistemic justice, non-domination, and relationality. While criminal law and criminology are distinct fields, they are deeply interconnected, and both are in need of critical re-examination. Just as Lacey and her colleagues have sought to reframe the study of criminal law, we argue that criminology must also be reframed to better reflect the diverse experiences and knowledge systems that have been marginalized or excluded. These are not new ideas; Black and Indigenous scholars have long advocated for the recognition of alternative epistemologies and the need to dismantle systems of domination within criminology and beyond.[5] Scholars have consistently highlighted the ways in which traditional criminological frameworks have perpetuated systemic injustices and called for approaches that center the lived experiences and knowledge of those most affected by these systems.
In the collaborative effort that follows, we explore various elements of reconstruction within criminology. We are inspired by decolonizing, Southern, and Indigenous criminological traditions, as well as transformative justice practices, to develop common ground and envision a reconstructed criminology that is inclusive and attuned to the complexities of justice in a global context.
To do this, we offer an examination of core concepts that have inspired us as a diverse group of scholars working across the fields of restorative justice, transformative justice, and peacebuilding. We explore how reconstruction asks criminological scholars to embrace both the recognition of standpoint and a strength-based discourse, particularly when engaging with Indigenous and other marginalized communities. Ultimately, we suggest that a reconstructed criminology needs to consider epistemic justice, non-domination, and relationality as areas of scholarly inquiry and, more generally, as normative commitments of the discipline.
II. Ethical Listening, Standpoint Theory, and Strengths-Based Discourses
Our collaboration arose out of a series of conversations between three scholars with different disciplinary backgrounds and standpoints working in overlapping areas. Meredith has a background as a sociologist and criminologist, with a research interest in the emotional and ritual dynamics of restorative justice processes. Elfie has a background in international relations and human rights, and her research explores peace-building and nation-building in First Nation community practices, with a focus on centering Indigenous epistemologies and methodologies. Helen has a background in political science and has conducted research into restorative practices in Northern Ireland and more recently in criminal justice reform in Australia. Elfie is First Nations Australian (Noongar and Yawuru), Meredith is white American, and Helen is Anglo-Irish Australian. We have found our different standpoints to provide fertile ground for exploring reconstruction in criminology.
We live and work in Canberra, Australia, and acknowledge that we gather on millennia-old meeting grounds of the Ngunnawal and Ngambri people along the banks of Sullivan Creek that flows through the Australian National University campus. These freshwaters of Ngunnawal and Ngambri Country represent to us our “common ground.” We acknowledge our respect for Ngunnawal and Ngambri Elders past, present, and emerging, and the continuity of their culture, knowledge, and stories. We are all working in the area of transformative justice and would like to build collaboration because we believe we will be stronger together in our advocacy for futures of justice.
In a series of writing circles, we have been asking ourselves how we might build this important collaboration and, as scholars, explore the intersections between the two disciplines of Indigenous Studies and Criminology. Our shared desires for just futures which recognize Indigenous sovereignty and self-determination speak to points of intersection. However, the challenges to building common ground at the intersections of Indigenous systems of law and governance, and systems of common law in Australia seem impossible to overcome at times. The common law sought to eliminate Indigenous sovereignties and languages and replace them with the sovereignty and language of the Australian state. This common law does not recognize the multiplicity of sovereignty on our continent. Yet, Aboriginal and Torres Strait Islander Nations continue to practice their sovereignty, law, and governance, and it is within this contested space, brimming with the possibility of the future recognition of Indigenous sovereignty, that we choose to write.
Drawing on Noongar practices of collaboration, Sue Wooltorton, Paul Horwitz, and Len Collard teach us about the practice of ngulluckiny wangaliny, meaning sharing conversation in Noongar language.[6] Ngulluckiny wangaliny involves sitting together on Country and sharing conversation through wango djinang, meaning inquiry, and wango birniny karnijil, meaning “yarning,”[7] to dig up the truth that is buried under the ground. These practices create katitj moordoin, meaning strong knowledge. We believe the foundation of this collaboration and the possibility of a shared understanding of truth, justice, and transformation lie in practices of ethical listening.[8] Drawing on Noongar and Pitjantjatjara practices of listening, Janice Buchanan, Len Collard, and David Palmer teach us that ethical listening involves listening to and showing respect for Indigenous ways of knowing.[9] This involves not only “listening” to knowledge which has been written down in academic canons, but also knowledge that is shared in Indigenous languages and storytelling traditions of story, song, dance, and art. Adapting these teachings into our collaboration on Ngunnawal and Ngambri Country, we recognize the significance of carefully listening to Indigenous ways of knowing truth and justice.
In our collaboration, we are engaging with critical theories within Indigenous Studies, including Indigenous Standpoint Theory[10] and strengths-based frameworks.[11] Indigenous Standpoint Theory is a distinct form of analysis that argues that the social position of the knower is epistemically significant because it influences the process of creating knowledge.[12] As Plains Cree and Saulteaux woman Margaret Kovach teaches, “we know what we know from where we stand.”[13] In our collaboration, we acknowledge our diverse standpoints on Ngunnawal and Ngambri Country, and how our standpoints influence our understandings of truth, justice, and transformation. Most significantly, we acknowledge the right of Indigenous people to “speak for” and define Indigenous understandings of these concepts. We adopt the position of listening and uplifting Indigenous voices in our reflections on these concepts in our article. In addition to Indigenous Standpoint Theory, we also engage with strengths-based frameworks, which celebrate the continuing strength and vitality of Indigenous culture, knowledge, and stories. In our collaboration, we view Indigenous understandings of truth, justice, and transformation as strong living knowledge that makes an important contribution to building futures of justice.
Drawing on these practices and theories of collaboration, we envision our collaboration as a relational process to both Country and each other as well as our disciplines. Our collaboration is built on ethical listening and respect for diverse ways of knowing. Our writing circles become transformative spaces in which concepts of truth, justice, and transformation can be expanded and futures of justice can be reimagined. We argue these generative practices are critical to both Indigenous Studies and Criminology, and are urgently needed to support processes of healing, truth-telling, and agreement-making and to broaden their reach and engagement in the Australian national community.
Guided by ethical listening, a sensitivity to standpoint, and a commitment to strength-based discourse that celebrates the vitality of Indigenous cultures, in what follows we explore epistemic justice, non-domination, and relationality as core principles of a reconstructed criminology. We then explore examples of justice practices that have attempted to center such principles, with varying levels of success. We conclude by turning to recent works within criminology that to us exemplify such a reconstruction.
III. Epistemic Justice
Before we arrive at a discussion about epistemic justice, it is appropriate to consider its opposite. Here we start with epistemic injustice, which refers to harm done to people through the denial, distortion, or misrepresentation of their knowledge and experiences. Miranda Fricker distinguishes between two types of epistemic injustice: testimonial injustice, which refers to the unfair treatment of a “knower” due to the prejudicial assumptions of the “hearer,” leading to a deflation of the level of credibility of the speaker’s word; and hermeneutical injustice, which occurs when the resources available for social interpretation are shared unequally, putting some at an unfair disadvantage when attempting to make sense of their social experiences.[14]
In the context of criminal justice, epistemic injustice perpetuates inequalities, particularly for marginalized communities whose narratives are often disregarded or undervalued. Such biases and systemic inequities silence the voices of disadvantaged groups within legal processes, preventing fair treatment and access to justice.[15] José Medina and Marsha Whitt introduce the concept of epistemic neglect in relation to testimonies from detainees of medical emergencies in places of incarceration.[16] They provide an example of medical neglect in a county jail which resulted in the preventable death of a detainee, Matthew McCain. The epistemic neglect occurred when the repeated calls of other detainees alerting staff that Mr. McCain was having a seizure were ignored. According to Medina and Whitt, “the guards repeatedly contended that they do not take seriously the detainees’ emergency calls because they do not believe them.”[17] A subsequent inquiry into Mr. McCain’s death identified multiple similar cases suggesting a pattern of epistemic neglect at the institutional level. Similarly, Emily Brisette explores epistemic injustices in courtroom practices in the United States.[18] In an analysis of arraignment practices at local court, which is meant to be a procedural check on state power and ensure due process rights, Brisette explores how the state marshals knowledge about defendants, silences their voices, and subjects them to racialized moral evaluations. This is not dissimilar to a long tradition in criminology that highlights the alienating and disempowering practices of the law.[19]
Brisette argues that epistemic injustices, compounded by material deprivation and standing injustices, prevent fair treatment and access to justice. This understanding of epistemic injustice within criminal law aligns with broader efforts to reconstruct criminology by centering marginalized standpoints and ensuring that their knowledge and experiences are fully recognized within legal frameworks. By addressing these gaps, we move towards a system that acknowledges and rectifies the structural biases that undermine justice.
The concept, and indeed the consequences, of epistemic injustice is particularly relevant in Anglo-settler-colonial jurisdictions such as Australia, New Zealand, Canada, and the United States, where the colonizers’ knowledge systems and worldviews are imposed on First Nations peoples, devaluing, silencing, or attempting to erase Indigenous knowledge systems. In Australia, the struggle of First Nations people to receive legal recognition of land rights and native title is reflective of widespread epistemic injustice through the denial of Indigenous land ownership and connections to Country. This may also be seen in the education system, which prioritizes Western knowledge, history, literature, and scientific perspectives while neglecting or minimizing the contributions and viewpoints of non-Western cultures, particularly Indigenous and minority groups.[20] Within the criminal justice system, systemic racism, the enduring legacies of colonialism, and the exclusion of Indigenous knowledge serve to perpetuate the overrepresentation of Aboriginal and Torres Strait Islander people in the system.[21]
Epistemic justice, on the other hand, is a concept that is closely tied to the republican idea of freedom, emphasizing non-domination. Fricker argues that epistemic justice is crucial for ensuring non-domination, framed not just as freedom from interference but also as freedom from arbitrary power.[22] Taking this concept further, Medina advocates for epistemic resistance where individuals and communities actively challenge and resist epistemic injustices, structures, and practices.[23] Indigenous Standpoint Theory, as a distinct form of analysis, can also be viewed as a practice of epistemic resistance and non-domination by bringing diverse knowledge systems into conversation with each other in two-way dialogue and cultural exchange through ethical listening.
IV. Non-Domination
Drawing from republican theories of freedom, particularly as articulated by Phillip Pettit, non-domination is concerned with the elimination of arbitrary power and control, whether exercised by the state, social institutions, or individuals.[24] In the context of criminology, non-domination requires a critical examination of how power operates within the criminal justice system and a commitment to creating structures that minimize the potential for domination.[25] This can be seen, for example, in the advocacy for decarceration and the development of community-based alternatives to imprisonment that empower communities rather than subject them to the coercive control of the state.[26] Additionally, non-domination in criminology involves supporting the self-determination of Indigenous and other marginalized communities, ensuring that they have the autonomy to define and address issues of crime and justice in ways that are consistent with their values and needs.[27]
The concept of non-domination is foundational to republican theories of freedom, offering a contrast to the more traditional liberal view of freedom as non-interference. In the liberal tradition, freedom is often defined as the absence of direct interference by others—meaning that individuals are free so long as no one actively intervenes in their actions. Pettit argues that this view is insufficient because it fails to account for the pervasive influence of arbitrary power.[28]
Arbitrary power can exist even when no direct interference occurs, as it creates a situation where individuals or groups live under the constant threat of such interference. For example, while a First Nations person in Australia may never be directly oppressed by the police or other state powers, the ever-present threat of arbitrary arrest or punishment limits their freedom. True freedom, according to the republican view, requires the elimination of these conditions of domination.[29]
This principle of non-domination is especially relevant in discussions of social and political justice. In contexts of systemic racism, colonialism, and economic inequality, certain groups are systematically subjected to domination through laws, practices, and institutional structures that reinforce the power of the dominant group. For example, in criminal justice systems, the over-policing and mass incarceration of Black and Indigenous communities can be seen as forms of state domination, where the justice system serves as a tool of arbitrary power rather than a protector of individual rights.[30] In contrast, a justice system guided by the principle of non-domination would challenge these structures of arbitrary power and replace them with practices that empower individuals and communities.
V. Relationality
Relationality is a principle that emphasizes the fundamental importance of relationships in understanding human experience, social structures, and justice. At its core, relational theory posits that individuals are inherently interconnected and that our identities, well-being, and autonomy are shaped through our relationships with others.[31] This theory challenges the traditional individualistic models that dominate much of Western legal and social thought, and which often view people as isolated, autonomous agents. Instead, relational theory argues that the quality of our relationships—whether personal, communal, or institutional—directly influences the health and justice of society as a whole.[32]
In the context of justice, relational theory suggests that the pursuit of justice should focus not just on the resolution of specific disputes or the punishment of wrongdoers, but on the cultivation and maintenance of “just relations”—relationships that are fair, respectful, and characterized by mutual recognition and equality.[33] This approach is reflected in practices like restorative justice, which seeks to repair the harm caused by crime through processes that involve victims, offenders, and the community. Restorative justice, when viewed through a relational lens, is about more than just achieving an outcome—it is about fostering ongoing, healthy relationships that contribute to a more just society by ensuring that these relationships are just in their very nature.[34]
In a critique of traditional justice systems, Jennifer Llewellyn draws extensively on relational theory to propose a more transformative approach centered on the concept of just relations.[35] Llewellyn argues that the convergence of significant social movements—such as Black Lives Matter, Me Too/Time’s Up, and Indigenous recognition efforts—alongside the challenges presented by the COVID-19 pandemic, has exposed the systemic and structural failures of conventional justice approaches.[36] These movements highlight the deep-seated injustices that cannot be adequately addressed by systems that focus solely on punishment or legal compliance. Instead, she advocates for a justice system that prioritizes the restoration and nurturing of just relations, not only between individuals but also within communities and between communities and institutions.
Through the lens of relational theory, Llewellyn reimagines restorative justice as a transformative tool that can address both individual and systemic harms. She suggests that restorative justice, when fully informed by relational principles, has the potential to move beyond mere conflict resolution to facilitate broader social change. This involves integrating the strengths of both restorative and transformative justice, ensuring that justice processes do not just address the immediate harm, but also tackle the underlying conditions that give rise to injustice in the first place. In this framework, justice is redefined as the work of building and sustaining just relations—relationships that are characterized by equity, respect, and mutual responsibility.[37] In previous work, we have suggested that such a reframing can help address the legitimate critique that restorative justice as it is actually practiced in Western criminal justice systems is itself a form of epistemic injustice, particularly against First Nations people.[38]
Relational theory’s emphasis on interconnectedness and the quality of relationships resonates with Indigenous justice practices, which have long prioritized community harmony, relational balance, and the restoration of social equilibrium.[39] Relational justice not only addresses the relational dimensions of harm but also respects and integrates the knowledge systems of communities that have historically been marginalized by Western legal frameworks. This integration is a step towards epistemic justice; embracing diverse ways of knowing and practicing justice are acknowledged and valued within broader justice movements.[40]
VI. Reconstruction in Practice
Despite the ongoing exclusion and silencing of Indigenous knowledge and ways of knowing, there is growing movement and momentum towards inclusion, non-domination, and epistemic justice around the world. For example, in 2018, the University of Victoria in Canada introduced a new law program that combines the study of both Indigenous and non-Indigenous law, with students graduating with two degrees, one in Canadian Common Law (Juris Doctor or “JD”) and one in Indigenous Legal Orders (Juris Indigenarum Doctor or “JID”).[41] Responding to calls from the Canadian Truth and Reconciliation Commission to establish Indigenous law institutes, the program is considered to be the world’s first Indigenous law degree. The program not only contends with the historic denigration and exclusion of Indigenous knowledge within academia, but also creates a transformative space within a university, in which the concept of justice can be expanded and re-imagined by engaging with Indigenous systems of law and governance.
As another example, the U.S. Federal Indian Boarding School Initiative was established in 2021 by the Secretary of the Department of the Interior and member of the Pueblo of Laguna, Deb Haaland, to recognize the traumatic legacy of Indian boarding school policies. As part of “The Road to Healing” effort, Secretary Haaland made a historic 12-stop tour across the U.S. to give Indigenous survivors an opportunity to share their lived experiences and truths with the federal government and to participate in community healing through song and dance.[42] The initiative creates transformative spaces within U.S. communities, in which the concepts of truth, justice, and transformation can be expanded and re-imagined by engaging with Indigenous practices of healing through storytelling.
As a final example, in 2017 the government of New Zealand granted legal personhood to the Whanganui River in the North Island.[43] The Whanganui River is sacred to the Māori people of Aotearoa who have been fighting for the legal protection of the River for more than 160 years. As a legal entity entitled to basic rights, the Whanganui has the rights to exist and to thrive, as well as the right to restoration. Māori people’s obligations under Indigenous law to care for the River have now been enshrined in New Zealand’s common law. As in the other examples, the concept of justice is further expanded and re-imagined by engaging with Indigenous custodial responsibilities to care for land and waters.
A. Makarrata, Truth-Telling, Agreement-Making
In the Australian context, the 2017 Uluru Statement from the Heart could be viewed as an urgent and critical practice of reconstruction. The Uluru Statement emerged from a series of regional dialogues held across the country, culminating in a National Constitutional Convention at Uluru in 2017. These dialogues represented the most significant consultation process of First Nations peoples Australia has ever seen. Reflecting on the dialogues, Cobble Cobble woman and member of the Referendum Council Megan Davis stated that:
Time and time again, participants in the dialogues that preceded and shaped the Uluru Statement spoke of this phenomenon; this country is one way, not two ways. This is a nation that takes and cannot bring itself to give back.[44]
Davis described the Uluru Statement as a “call for peace” and its proposed reforms for a First Nations Voice, a Makarrata Commission, to supervise a truth-telling and agreement-making process, as a “roadmap to peace.”[45] As the Statement asserts:
Makarrata is the culmination of our agenda: the coming together after a struggle. It captures our aspirations for a fair and truthful relationship with the people of Australia and a better future for our children based on justice and self-determination.[46]
Makarrata is a Yolgnu word for peacemaking. To practice makarrata is to seek a full understanding of a conflict and, after this understanding has been reached, seek a settlement for both conflicting parties and next generations. Gumatj Elder Dr. Yunupingu describes this settlement as “a symbolic reckoning” which acknowledges that “from now on and forever the dispute is settled . . . it is finished.”[47] Makarrata is a practice of maintaining balance in the world.[48]
On October 14, 2023, a referendum was held proposing to alter the Constitution to recognize the First Peoples of Australia by establishing an Aboriginal and Torres Strait Islander Voice. Only 39.9 percent of legal votes were in favor of this constitutional change, and there was not a majority in any of the six Australian states (there was a majority, however, in the Australian Capital Territory). A First Nations Voice enshrined and protected by the Constitution was a key proposal of the Uluru Statement. In the post-referendum period, discussions about alternative models for implementing the proposals within the Uluru Statement have been muted.
The failure of the referendum represented the failure of successive Australian governments to listen and heed Indigenous understandings of truth, justice, and transformation. The practice of engaging in makarrata is a practice of epistemic justice and non-domination. It expands concepts of truth, justice, and transformation and reimagines futures of justice by giving recognition to Yolgnu epistemologies of peacemaking. It redresses historic and contemporary domination of Indigenous culture in colonial and post-colonial contexts. In campaigning for the Uluru Statement, Dr. Yunupingu had reflected:
What Aboriginal people ask is that the modern world now makes the sacrifices necessary to give us a real future. To relax its grip on us. To let us breathe, to let us be free of the determined control exerted on us to make us like you. And you should take that a step further and recognise us for who we are, and not who you want us to be.[49]
The recognition that Dr. Yunupingu speaks of involves the broader recognition of Indigenous people and their culture, knowledge, and stories. In the case of makarrata, it involves the recognition of Indigenous practices to restore balance to the world. This recognition is a practice of inclusion, non-domination, and epistemic justice.
In a global context of escalating violent conflict and advancement in weapons technology, millennia-old Indigenous knowledge about conflict resolution and peacemaking, such as makarrata, offers a gift to humanity. Dr. Yunupingu urged Australians to:
Let us be who we are—Aboriginal people in a modern world—and be proud of us. Acknowledge that we have survived the worst that the past had thrown at us, and we are here with our songs, our ceremonies, our land, our language and our people – our full identity. What a gift this is that we can give you, if you choose to accept us in a meaningful way.[50]
A strengths-based framework recognizes that Indigenous people have the agency and potential to lead cultural transformation and that Indigenous knowledge is strong and living. Overcoming the exclusion and silencing of Indigenous knowledge and ways of knowing through epistemic justice then has broader social impact for all members of a national community by drawing on an abundance of cultural strengths to build futures of justice. In this way, common ground becomes fertile soil for restoration, growth, and vitality for future generations.
B. The Yoorrook Justice Commission
Despite, or perhaps in response to, the failure of the 2023 referendum, calls for truth-telling and self-determination by First Nations people have taken on renewed urgency. A recent example is the Yoorrook Justice Commission’s truth-telling inquiry—the first formal truth-telling process into injustices experienced by First Peoples in Victoria. The Commission is chaired by Wergaia and Wamba Wamba Elder Professor Eleanor Bourke and members of the Commission include First Nations senior leaders and scholars. Yoorrook seeks to investigate both past and ongoing injustices experienced by First Peoples in Victoria since colonization, with a particular focus on the child protection and criminal justice systems. As the Yoorook Justice Commission’s report highlights, these systems have long been instruments of colonial oppression with enduring legacies due to historical practices such as the removal of Aboriginal children from their families and the criminalization of resistance to dispossession. The Commission’s recommendations call for transformative changes to be addressed through a treaty process and specific reforms in both the child protection and criminal justice systems.[51] The Yoorrook Justice Commission highlights the importance of voice, truth, and listening:
The State of Victoria acknowledges the importance of non-discrimination, uncovering truth, providing justice and reparation, supporting wellbeing and preventing further harm to First Peoples. . . . Hearing First Peoples’ stories and acknowledging the truth about their experiences is essential for healing and justice for First Peoples. It will also contribute significantly to a public dialogue, providing a foundation for new and positive relationships between First Peoples, non-Aboriginal Victorians, and the State of Victoria.[52]
The work of the Yoorrook Justice Commission arguably demonstrates the principles of epistemic justice, non-domination, and relationality. By prioritizing the voices and knowledge systems of First Peoples, the Commission is actively working to address epistemic injustices that have historically silenced Indigenous perspectives in legal and social contexts. The emphasis on truth-telling and the acknowledgment of past harms aim to redress the domination that has been exerted over Indigenous communities through systemic oppression. While it may be too early to assess the Commission’s work, as the truth-telling process is still ongoing, the focus on building new and positive relationships between First Peoples and the State of Victoria holds the potential to cultivate and maintain just relations based on sustained dialogue and healing.
C. R. v. Gladue and Bugmy v. The Queen
We also see the struggle for epistemic justice, non-domination, and the recognition of relationality in the criminal law. The 1999 case of R. v. Gladue is a landmark Canadian legal case that established important principles that must be considered in the sentencing of First Nations people in Canada.[53] As First Nations Canadian scholar Naomi Sayers writes, “Gladue sentencing principles account for the unique history of Indigenous people in Canada, with a focus on the trauma experienced by Indigenous people as a result of Canadian policies, to address the over-incarceration of Indigenous people in Canadian prisons.”[54]
The Gladue decision was upheld by the Supreme Court of Canada in the 2012 R. v. Ipeelee decision, which confirmed that the Court remained committed to the principles it set out in Gladue.[55] The Gladue decision may be seen as an attempt to elevate the voices of First Nations Canadians within the Canadian criminal justice system through the development of Gladue reports which are written to include the defendant’s voice and story.[56] This struggle for epistemic justice and non-domination through Gladue has not, however, resulted in a reduction of incarceration rates for First Nations people. As Sayers points out this is likelydue to the uneven application of Gladue sentencing principles and a lack of involvement of Elders.[57]
Similar conversations regarding the impact of colonialism and structural racism have taken place in the Australian High Court. In Bugmy v. The Queen it was acknowledged that First Nations people often come from backgrounds of profound social disadvantage due to the impact of colonization and ongoing systemic racism.[58] However, unlike the Canadian example, the Australian High Court rejected the notion that these disadvantages should automatically be considered in sentencing, maintaining that “tak[ing] judicial notice of the systemic background of deprivation of Aboriginal offenders cannot be accepted” and that to do so, could undermine the principle of individualized justice.[59]
The decision by the Australia High Court has been heavily criticized. Indigenous criminal law scholar Mary Spiers Williams argues that the Australian High Court missed an important opportunity to recognize how colonialism and structural racism have shaped the experiences of Indigenous people, particularly in relation to criminal justice.[60] As Williams points out, the refusal to consider the broader context of Indigenous disadvantage, as is done in Canada, in fact limits the potential for truly individualized justice and represents a denial of a significant attempt within criminal law to center the voices, knowledges, and experiences of Indigenous people. Her re-written judgment for the Indigenous Legal Judgments Project seeks epistemic justice, explores the importance of standpoint, and centers Indigenous history and experiences.[61]
VII. Reconstructing Criminology
We do not seek to discount the long history of criminological work that is deeply critical of the Western-centric basis of the discipline. We celebrate in particular the work of Indigenous and decolonial scholars who have long sought epistemic justice within criminology.[62] This work is ongoing and vital. As we reflect on the ongoing efforts to reimagine and reconstruct criminology and justice, we offer three areas in recent scholarship that have stood out for their transformative contributions. First, we suggest that John Braithwaite’s book Macrocriminology and Freedom is a contemporary example of a reconstructed criminology.[63] Second, we consider a critical counter-historiography of First Nations law and justice. Finally, we suggest a deep engagement with scholarly and creative practices of First Nations scholars who are seeking to envision a transformative justice. We suggest that each of these approaches, in its unique way, offers a blueprint for how we might move beyond traditional frameworks and towards a more inclusive and creative approach to criminology and justice.
Braithwaite is of course not a marginal figure in criminology. Indeed, he is considered by many to be core to the discipline. However, his contribution to standard criminological education often obscures the more radical potential of his ideas. As he notes in a recent discussion of his 2021 book Macrocriminology and Freedom :
Criminologists afflicted with a standard graduate school curriculum can be excused for thinking of Braithwaite as a theorist who tweaked labeling theory through reintegrative shaming. That is not incorrect. Macrocriminology and Freedom reveals me more fundamentally as a scholar who integrates explanatory and normative theory.[64]
We suggest that Macrocriminology and Freedom both integrates and surpasses Braithwaite’s previous work on reintegrative shaming and peacebuilding to offer a radical reconstruction of criminology that centers non-domination and freedom. Braithwaite advocates for a criminology that not only seeks to reduce harm but also actively dismantles the structures of domination that perpetuate injustice. His focus on non-domination as a core principle provides a powerful framework for rethinking the role of criminology in society. This approach calls for a shift from punitive, control-oriented systems to those that empower individuals and communities, ensuring that justice processes are participatory, equitable, and geared towards the common good.[65] Braithwaite’s approach to criminology is inclusive of diverse epistemologies, particularly those of marginalized communities that have traditionally been excluded from mainstream criminological discourse. He emphasizes the importance of learning from societies that have experienced different forms of governance, social organization, and justice practices, suggesting that these experiences can offer valuable insights for rethinking justice in a global context. As with Jennifer Llewellyn, Braithwaite also envisions restorative justice as a practical application of relational justice with transformative potential.[66] We suggest that this text exemplifies a reconstructed criminology that is deeply engaged with epistemic justice, non-domination, and relationality, offering both theoretical insights and practical pathways for reform.
We further suggest that a reconstructed criminology engage with a growing critical counter-historiography that explores the complexity and ongoing legacy of Indigenous governance and legal systems. In this work, we see the continued assertion of epistemic justice by Indigenous leaders and scholars. For instance, Ned Blackhawk details the fundamental contributions of Native governance systems to American history.[67] Writers such as Robert Yazzie, Barbara Alice Mann, Barbara Gray Kanatiiosh, John Mohawk, and Taiaike Alfred have written extensively about the resilience, legal traditions, and importance of peace and relationality in both Haudenosaunee and Navajo law.[68] The Haudenosaunee Great Law of Peace, in particular, is an example of Indigenous governance based on principles of consensus, relational governance, balance, and collective well-being. It has long served as a sophisticated legal framework that challenges Western assumptions about justice, centering peace and the restoration of relationships over punitive measures.[69] Nicole Eustace has provided historical examples of how representatives of the Haudenosaunee Confederacy asserted their legal traditions in response to colonial injustice, demanding through a series of treaty negotiations that their own legal principles be recognized.[70] This counter-historiography continues to challenge and reframe criminology by centering Indigenous governance systems, the historical and continued struggle for epistemic justice, and political autonomy of Indigenous people.
Finally, we argue that a reconstructed criminology needs to make space for creative practice that both explores our history and offers a transformative vision for our futures. Noongar storytellers are doing this through a combination of scholarly and creative practices which reclaim Noongar voices, stories, and histories. Interrogating colonial archives, in Benang: From the Heart, That Deadman Dance, and Taboo, award-winning author Kim Scott revitalizes histories of first encounters between Noongar and European people, colonization and violence with living Noongar knowledge.[71] In Homecoming, Elfie Shiosaki intertwines personal narrative with archival material to tell the story of four generations of Noongar women in her family, revealing the resilience and agency of First Nations women in the face of dispossession and systemic oppression.[72] Refugia extends this narrative, connecting the past with the present and future, and examining colonization through a lens of Noongar sovereignty and lawfulness.[73] In Terra Nullius, a work of speculative fiction, award-winning author Claire G. Coleman explores themes of imperialism and colonialism in a future context, celebrating the agency of First Nations people to resist and survive, and ultimately to protect the continuity of their culture.[74] These works seek epistemic justice by bringing Indigenous perspectives to the forefront. Through storytelling, Scott, Coleman, and Shiosaki not only preserve and honor Indigenous knowledge systems but also invite a reimagining of justice that is deeply rooted in relationality, cultural memory, and resistance.
Together, these works demonstrate the diverse ways in which criminology and justice can be reconstructed to better reflect the principles of epistemic justice, relationality, and non-domination. They contribute to a broader understanding of epistemic justice and non-domination that is grounded in lived experiences and relationships.
VIII. Conclusion
In reflecting on the contributions of Nicola Lacey and her colleagues in Reconstructing Criminal Law, it is clear that their work represents a significant step towards critically examining the foundations of criminal law and its broader social implications. Their efforts to reframe the study of criminal law by integrating socio-legal perspectives have paved the way for a more inclusive and contextually aware discipline. However, as we seek to push this conversation forward, our argument for reconstructing criminology extends this critical project into new dimensions. By embracing the principles of ethical listening, Indigenous standpoint theory, epistemic justice, non-domination, and relationality, we propose a criminology that finds common ground across diverse standpoints, histories, and frameworks. Through this approach, we envision a reconstructed criminology that actively and creatively engages with diverse perspectives and methodologies to foster a more inclusive and transformative discipline.
* Meredith Rossner, Professor of Criminology, POLIS: The Centre for Social Policy Research, Australian National University; Elfie Shiosaki, Associate Professor, POLIS: The Centre for Social Policy Research, Australian National University; Helen Taylor, Lecturer, POLIS: The Centre for Social Policy Research, Australian National University. The authors are listed in alphabetical order, and all contributed equally to the work.
[1] Harry Blagg & Thalia Anthony, Decolonising Criminology: Imagining Justice in a Postcolonial World (2019); Kerry Carrington, Russell Hogg & Máximo Sozzo, Southern Criminology, 56 Brit. J. Criminology 1 (2016); Chris Cunneen & Juan Tauri, Indigenous Criminology (2016); The Routledge International Handbook on Decolonizing Justice (Chris Cunneen, Antje Deckert, Amanda Porter, Juan Tauri & Robert Webb eds., 2023); Marginalised Voices in Criminology (Kelly Stockdale & Michelle Addison eds., 2024).
[2] Chris Cunneen, Indigenous Challenges for Southern Criminology, in The Palgrave Handbook of Criminology and the Global South 19 (Kerry Carrington et al. eds., 2018); Leon Moosavi, The Decolonial Bandwagon and the Dangers of Intellectual Decolonisation, 30 Int’l Rev. Sociology 332 (2020); Leon Moosavi, A Friendly Critique of “Asian Criminology” and “Southern Criminology,” 59 Brit. J. Criminology 257 (2019).
[3] Listening to the Movement: Essays on New Growth and New Challenges in Restorative Justice (Ted Lewis & Carl Stauffer eds., 2021); Mimi E. Kim, Transformative Justice and Restorative Justice: Gender-Based Violence and Alternative Visions of Justice in the United States, 27 Int’l Rev. Victimology 162, 162-72 (2021); Jennifer J. Llewellyn, Transforming Restorative Justice, 4 Int’l J. Restorative Just. 374 (2021).
[4] Nicola Lacey, Celia Wells & Oliver Quick, Reconstructing Criminal Law: Text and Materials (4th ed. 2010).
[5] Angela Y. Davis, Are Prisons Obsolete? (2003); Angela Y. Davis, Gina Dent, Erica Meiners & Beth Richie, Abolition. Feminism. Now. (2022); Cunneen & Tauri, supra note 1.
[6] Sue Wooltorton, Paul Horwitz & Len Collard, The Land Still Speaks: Ni, Katitj!, 13 Phil. Activism Nature 57 (2017).
[7] Yarning is an Indigenous cultural form of conversation. It is a method of producing knowledge though two-way dialogue which connects the speaker and listener to culture. Each cultural group adapts its own rules, language, and protocols for yarning. See Dawn Bessarab & Bridget Ng’andu, Yarning About Yarning as a Legitimate Method in Indigenous Research, 3 Int’l J. Critical Indigenous Stud. 1 (2010).
[8] Wooltorton, supra note 6; see also Janice Buchanan, Len Collard & David Palmer, Ngapartji Ngapartji Ninti and Koorliny Karnya Quoppa Katitjin (Respectful and Ethical Research in Central Australia and the South West), 23 Learning Communities: Int’l J. Learning Soc. Contexts 32 (2018).
[9] Id.
[10] Martin Nakata, An Indigenous Standpoint Theory, in Disciplining the Savages: Savaging the Disciplines 213 (2007).
[11] Eve Tuck, Suspending Damage: A Letter to Communities, 79 Harv. Educ. Rev. 409 (2009).
[12] Nakata, supra note 10.
[13] Margaret Kovach, Indigenous Methodologies: Characteristics, Conversations, and Contexts 7 (2009).
[14] Miranda Fricker, Epistemic Injustice: Power and the Ethics of Knowing (2007).
[15] Nicola Lacey, Criminal Justice and Social (In)Justice, in Structural Injustice and the Law 168 (Virginia Mantouvalou & Jonathan Wolff eds., 2024); see also Medina José, The Epistemology of Resistance: Gender and Racial Oppression, Epistemic Injustice, and Resistant Imaginations (2013).
[16] José Medina & Marsha S. Whitt, Epistemic Activism and the Politics of Credibility, in Making the Case: Feminist and Critical Race Philosophers Engage Case Studies 293 (2021).
[17] Id. at 187.
[18] Emily Brisette, Bad Subjects: Epistemic Violence at Arraignment, 24 Theoretical Criminology 353 (2020).
[19] Pat Carlen, Magistrates’ Justice (1976); Paul Rock, The Social World of an English Crown Court: Witnesses and Professionals in the Crown Court Centre (1993).
[20] Nakata, supra note 10.
[21] Chris Cunneen & Juan Tauri, Indigenous Peoples, Criminology, and Criminal Justice, 2 Ann. Rev. Criminology 359 (2019).
[22] Fricker, supra note 14.
[23] Medina, supra note 15.
[24] Philip Pettit, Republicanism: A Theory of Freedom and Government (1997).
[25] John Braithwaite & Philip Pettit, Not Just Deserts: A Republican Theory of Criminal Justice (1992).
[26] John Braithwaite, Macrocriminology and Freedom (2021); see also Davis et al., supra note 5.
[27] Harry Blagg, Crime, Aboriginality, and the Decolonisation of Justice (2008).
[28] Pettit, supra note 24.
[29] Philip Pettit, On the People’s Terms: A Republican Theory and Model of Democracy (2012).
[30] Braithwaite, supra note 26.
[31] Christine M. Koggel, Anca Harbin & Jennifer J. Llewellyn, Feminist Relational Theory, 18 J. Global Ethics 1 (2022).
[32] Jennifer Nedelsky, Law’s Relations: A Relational Theory of Self, Autonomy, and Law (2011).
[33] Being Relational: Reflections on Relational Theory and Health Law (Jocelyn Downie & Jennifer J. Llewellyn eds., 2011).
[34] Howards Zehr, The Little Book of Restorative Justice (2002).
[35] Llewellyn, supra note 3.
[36] Id.
[37] Being Relational, supra note 33.
[38] Meredith Rossner & Helen Taylor, The Transformative Potential of Restorative Justice: What the Mainstream Can Learn from the Margins, 7 Ann. Rev. Criminology 357 (2024). For more of this critique, see Juan M. Tauri, An Indigenous Commentary on the Globalisation of Restorative Justice, 12 Brit. J. Cmty. Just. 35 (2014); Juan M. Tauri, Restorative Justice as a Colonial Project in the Disempowerment of Indigenous Peoples, in Routledge International Handbook of Restorative Justice 342 (Theo Gavrielides ed., 2018).
[39] Marcia Langton & Aaron Corn, Law: The Way of the Ancestors (2021); Tyson Yunkaporta, Sand Talk: How Indigenous Thinking Can Save the World (2019).
[40] Cunneen & Tauri, supra note 1; Blagg & Anthony, supra note 1.
[41] Joint Degree Program in Canadian Common Law and Indigenous Legal Orders (JD/JID) (https://perma.cc/BB2Q-M74F).
[42] U.S. Department of the Interior, Federal Indian Boarding School Initiative (https://perma.cc/B8X6-8T5N).
[43] Toni Collins & Steven Esterling, Fluid Personality: Indigenous Rights and the Te Awa Tupua (Whanganui River Claims Settlement) Act 2017 in Aotearoa New Zealand, 20 Melb. J. Int’l L. 197 (2019).
[44] Megan Davis, The Long Road to Uluru: Walking Together—Truth Before Justice, 60 Griffith Rev. (2018) (https://perma.cc/566V-4FKE).
[45] Id.
[46] Uluru Statement from the Heart, National Indigenous Australians Agency (https://perma.cc/YF23-78N7).
[47] Yunupingu, Makarrata the Map: Now It’s Over to You, The Australian, July 31, 2017.
[48] Yunupingu, Rom Watangu, The Monthly, July 2016 (https://www.themonthly.com.au/issue/2016/july/1467295200/galarrwuy-yunupingu/rom-watangu).
[49] Id.
[50] Id.
[51] Yoorrook Justice Commission (https://yoorrookjusticecommission.org.au/).
[52] Victoria Government, Victoria Government Gazette, 2 No. S 217 (May 14, 2021).
[53] R. v. Gladue, [1999] 1 S.C.R. 688 (Can.).
[54] Naomi Sayers, The Relationship Between Restorative Justice and Prison Abolition in Neo-Colonial Injustice and the Mass Imprisonment of Indigenous Women 38 (Lily George et al. eds., 2020).
[55] R. v. Ipeelee, [2012] 1 S.C.R. 433 (Can.); see Jonathan Rudin, Looking Backward, Looking Forward: The Supreme Court of Canada’s Decision in R. v. Ipeelee, 57 Sup. Ct. L. Rev. (2012).
[56] Sophie April & Mia Orsi, Gladue Practices in the Provinces and Territories, Department of Justice (2013); Paula Maurutto & Kelly Hannah-Moffat, Aboriginal Knowledges in Specialized Courts: Emerging Practices in Gladue Courts, 31 Can. J.L. & Soc’y 451 (2016).
[57] Sayers, supra note 54.
[58] Bugmy v The Queen, (2013) 302 A.L.R. 192 (Austl.).
[59] Bugmy [2013] HCA 37; see also Thalia Anthony, The Limits of Reconciliation in Criminal Sentencing, in The Limits of Settler Colonial Reconciliation: Non-Indigenous People and the Responsibility to Engage 249, 249-69 (Sarah Maddison, Tom Clark & Ravi de Costa eds., 2016).
[60] Mary Spiers-Williams, Bugmy v. The Queen (2013) 302 ALR 192, in Indigenous Legal Judgments: Bringing Indigenous Voices into Judicial Decision Making 277 (Nicole Watson & Heather Douglas eds., 2021).
[61] Id.
[62] See, e.g., Lisa Monchalin, The Colonial Problem: An Indigenous Perspective on Crime and Injustice in Canada (2016); Davis, supra note 44; Yunupingu, supra notes 47 & 48, Spiers-Williams, supra note 60.
[63] Braithwaite, supra note 26.
[64] John Braithwaite, Beyond Predatory Peace, 6 Ann. Rev. Criminology 1, 5 (2023).
[65] Braithwaite, supra note 26.
[66] Llewellyn, supra note 3; see also Rossner & Taylor, supra note 38.
[67] Ned Blackhawk, The Rediscovery of America: Native Peoples and the Unmaking of U.S. History (2023).
[68] See, e.g., Robert Yazzie, Life Comes From It: Navajo Justice Concepts, 24 N.M. L. Rev. 175 (1994); Barbara Alice Mann, Iroquoian Women: The Gantowisas (2000); Barbara Gray (Kanatiiosh) & Pat Lauderdale, The Web of Justice: Restorative Justice Has Presented Only Part of the Story, 21 Wicazo Sa Rev. 29 (2006); John Mohawk, Thinking in Indian: A John Mohawk Reader (2010); Taiaiake Alfred, Peace, Power, Righteousness: An Indigenous Manifesto (2009). Though note Val Napoleon and Hadley Friedland’s warning against fetishizing Indigenous Law as utopian. Val Napoleon & Hadley Friedland, Indigenous Legal Traditions: Roots to Renaissance, in The Oxford Handbook of Criminal Law 225 (Markus D. Dubber & Tatjana Hörnle eds., 2014).
[69] Mohawk, supra note 68; Alfred, supra note 68.
[70] Nicole Eustace, Covered with Night: A Story of Murder and Indigenous Justice in Early America (2021).
[71] Kim Scott, Benang: From the Heart (1999); Kim Scott, That Deadman Dance (2010); Kim Scott, Taboo (2017).
[72] Elfie Shiosaki, Homecoming (2021).
[73] Elfie Shiosaki, Refugia (2024).
[74] Claire G. Coleman, Terra Nullius (2017).
Suggested Citation: Meredith Rossner, Elfie Shiosaki & Helen Taylor, Finding Common Ground: Reconstructing Criminology with Epistemic Justice, 1 Mod. Crim. L. Rev. 143 (2024).