(2002) JLP 47: 83-111




Samuel C. Damren




This article compares and contrasts the absence of prison in indigenous native culture with the creation and reliance on imprisonment by the modern nation state and proposes a model for the native system of justice based, in part, upon the échange à trois in Marcel Mauss’ classic work, The Gift.


Utilizing the Maori parable of the échange à trois, Mauss originally expanded the economic patterns of native gift-giving and return to a wider cultural context.  From this perspective, gifts from one kin group to another were viewed as part of an intricate and dynamic balancing of relationships between and among kin groups.  This article contributes to the substantial body of literature based upon the theoretical construct of The Gift by demonstrating that the native response to the offending acts of individual kinsmen, or ‘the native sense of justice,’ is an inversion of the native response to gift-giving.  In native culture, a kin group’s response to the loss or harm caused by an offending act is to require the offending individual’s kin group to restore the imbalance in kin group relations created by this loss or harm through a process of exchange.  In this context, the article reformulates the ‘substantivist / formalist’ debate in economic anthropology and ethnojurisprudence to focus on the fact that in native culture, as opposed to state-based society, individual kinsmen are not only recipients and providers of exchange, but are part of the medium itself.


The article concludes by examining the inevitable clash between the principles underlying the Restorative Justice Movement, which are exemplified by the ‘native sense of justice,’ and the ‘radical isolation of the individual’ that is a primary imperative of punishment in state-based society, including the wider question of whether prison will forever constitute a defining element in state-based society.