Trapped in dichotomies and individualism: The Western criminal legal system's failure to capture complexity

Introduction

This article uses micro-level data from two empirical studies, to show how the Western criminal legal system distorts events and the assignment of responsibility through its reliance on individualism and dichotomies. Rather than neutrally assessing facts, the system reconstructs complex situations to fit pre-existing legal categories—offense/not-offense, innocent/guilty, and victim/offender—making claims to truth and justice, that constitute epistemic injustice (Fricker, 2007) to criminalised people. These distortions do not merely misrepresent situations; they actively shape social understandings of crime and justice, obscuring structural violence and relational dynamics. Work on the criminal legal system has made widespread use of Foucault's (1977) insights on power/knowledge, which demonstrates how criminological and criminal law discourses and their classifications (a reflection of the Western ‘scientific’ emphasis), exert power over those subjected to them, shaping their subjectivities. Despite emerging from contingent historical practices of punishment, such discourses are retrospectively used to justify these same practices of punishment, their violence and cruelty (Valverde, 2017). An extensive existing literature challenges the criminal legal system's claims to truth and justice, emphasising its underlying functions of controlling the poor and racialised, and undergirding the state's power (e.g., Alexander, 2010; Davis, 2009; Fassin, 2018; Garland, 1996; Wacquant, 2009). It is a way to manage the poor (Wacquant, 2009), for the state to appear to do something about crime (Garland, 1996) and a continuation of slavery and Jim Crow discrimination in the US (Alexander, 2010; Davis, 2009). Such thinkers contribute important understandings to how the criminal legal system works through dichotomies and classifications, but to date offer limited engagement with the ways in which these classifications are inherent in Western thought, as discussed by Southern and decolonial thinkers.

This article joins scholarship on decolonialisation of crime, justice and criminology (Aliverti et al., 2021; Blagg and Anthony, 2019), but by examining criminal justice practices in one of the countries that colonised the world, Britain. It attempts to flip the usual gaze – where ‘traditional’ or non-Western ways of dealing with harm are assessed through the Western lens, taking the Western system as the ideal standard (Fonseca, 2018) – instead examining how the Western system of thought, reliant as it is on dichotomies and individualism, means its claims to truth and justice fail. We do not claim to give an exhaustive analysis of all lenses applied in Western legal systems, but concentrate on those most pertinent in our data.

Defining the West is notoriously difficult, but it tends to refer to countries ‘populated by European stock’ (McNeill, 1997: 514) and characterised in opposition to the East. Following Said (1978) we define the West as those countries whose citizens have taken the Orient – and other colonised regions – as ‘its contrasting image, idea, personality, experience’ (p. 2), seeing their own country as superior: ‘rational, virtuous, mature, “normal."’ (p. 40).

We first briefly discuss some existing literature on issues of epistemic injustice in the criminal legal system relevant to our thesis. We then draw on both Western and decolonial scholars’ work on dichotomous thought and individualism to demonstrate problems with the Western system of thought that were foundational to a criminal legal system exported as superior. The main body of the article discusses how the different dichotomies the criminal legal system applies fail to capture or respond meaningfully to our participants’ experiences of what happened and how the situations they described might be better responded to if individualism and dichotomy were less rigorously applied. We then discuss the status and implications of our findings, examining how we might move forward from here.

Epistemic injustice in the criminal legal system

Pitts (2017) highlights that the concern of decolonial thinkers (such as Said and Fanon) with “just and ethical knowing, as well as resistance to colonial epistemic violence” (p.151), predates the current concern within Anglophone philosophy with ‘epistemic injustice’. Said (1978) describes how the British were positioned as ‘knowing’ the Orient, with those characterised as Orientals not having ‘it in them to know what was good for them’ (p. 37) and inevitably inaccurate in their knowing. Since its conceptual formulation (Fricker, 2007), epistemic injustice has been described in many forms, but relates to the “wrongful treatment and unjust structures in meaning-making and knowledge producing practices” (Kidd et al., 2017:1), and clearly overlaps with concerns of decolonial thinkers, albeit usually based in analyses within the metropole. This article draws attention to such injustices of knowing, using language of ‘epistemic justices’ and explores their operation in the mismatch in the criminal legal process’ portrayal of the crime (and the criminal), with the lived experience of those undergoing the process.

Other scholars have explored epistemic injustice in the context of Western criminal legal systems: how those experiencing the situations under analysis were not trusted to know, understand, or define the situation. For example, Medina (2021) discusses how false confessions are produced through coercion to confess to crimes, creating conditions of diminished epistemic agency. Epistemic asymmetry means that these coerced confessions are believed over the many subsequent recantations. Similarly, for those going through the court and parole processes in Australia, Hall and Rossmanith (2016) suggest that ‘giving good narrative’ (acknowledgement of guilt and harm done, taking responsibility and demonstrating understanding of root causes of behaviour, plus plans for change) is expected. Despite contradicting the person's lived reality, such versions are recorded as ‘the truth’ in files and documents, making it impossible to deviate from this version and be trusted. A similar disjuncture between lived reality and the criminal legal apparatus’ view of them as wholly responsible actors results in the ‘fractured narratives’ of McKendy's (2006) prison interviewees.

Despite these critiques, in line with global thinking and pressure to adopt ‘superior’ Western models of justice (e.g., Fonseca, 2018) reports of instances of epistemic injustice in the court processes of non-Western contexts often still tend to see the Western system as superior. For example, Mou (2017) laments how, in China, police reports – solely based on victims’ reports and backed up by coerced confessions – are rarely challenged in court. Mou writes admiringly of how in the west: “Adversarial systems rely upon opposing parties presenting competing versions of the case, challenging each other's accuracy and thereby ultimately bringing about a composite picture of the truth.” (p. 75). This article argues that the Western system comes with its own distortions of the situations in which it intervenes; we should move beyond the societal ‘captive mind’ (Alatas, 1972 in relation to Eurocentric thought), which uncritically accepts it as the right way to respond to ‘offending’, displacing the dichotomous and individualistic lenses it relies on.

Dichotomies, individualism and colonialism

In ‘The West and the Rest’, Stuart Hall (2018) documented that Western modernity represented itself as dominant over the rest through the Orientalist application of brutal force, rather than superior rationality or morality. Peruvian sociologist Aníbal Quijano (2007) traces the development of modern, ‘rational’ thought in Western Europe alongside its colonial project and the subjugation and murder of indigenous populations. He highlights the individualism in Descartes’ ‘Cogito ergo sum’ as emblematic of Western thought, arguing that this atomistic view of being implies a dichotomy: that of rational man/God (as expressed by Descartes) versus irrational nature. This dualism ignores the importance of interdependence on others and qualities like compassion in the production of knowledge or being and render other cultures inferior to those of the ‘rational’ West. Quijano writes:

… Europe thought of itself as the mirror of the future of all the other societies and cultures; as the advanced form of the history of the entire species. What does not cease to surprise…is that Europe succeeded in imposing that ‘mirage’ upon the practical totality of the cultures that it colonized; and, much more, that this chimera is still so attractive to so many. (p. 176, emphasis added)

The intersubjective constructions that were imposed by colonial regimes as ‘objective’ and ‘scientific’, like ‘race’ or ‘ethnicity’ (Quijano, 2007: 168) and dichotomies like ‘male and female’ (Schiwy, 2007), or ‘sane’ and ‘mental illness’ (Fanon, 1963) have their counterpart in the Western criminal legal system – also imposed by colonisers as the right way to deal with harm. Fonseca (2018) highlights ongoing pressure from the West on former colonies to modernise their criminal legal systems by extending and professionalising penal institutions and joining the war on drugs. This ‘allocation of resources to an apparatus historically designed to repress subaltern groups and extract as much as possible out of their work capacities’ (p. 61) increases pressure on scarce public spending, while prison conditions in these spaces often remain horrific.

Our findings apply the analyses discussed here and show how they pertain to criminal legal practice in the west, showing that the dichotomies and individualism inherent in Western thinking are foundational to Western criminal ‘justice’ undermining its claim to justice rather than making it a ‘rational’ response to crime.

Norrie (2002) argues that the individualism of Enlightenment was foundational to the emergence of modern law as it allowed judges to find the “individual responsible for her acts in isolation from questions of the social causes of action, and the social responsibilities for what occurs” (p. 540). Haney (1982) concurs, describing criminal law's tenets as:

“(1) individuals are the causal locus of behavior; (2) socially problematic and illegal behavior therefore arises from some defect in the individual persons who perform it; and, (3) such behavior can be changed or eliminated only by effecting changes in the nature or characteristics of those persons”. (p. 195)

Norrie (2002) has noted the false split or antinomy between abstract and concrete legal judgements and between the individual and social justice that should both be the aims of the law. He shows how abstract judgements only consider immediate causes, ignoring ‘deeper reasons’, broader social and historical context, and moral nuance around the awareness and intent of the person doing the harm, thereby exacerbating structural injustice. For example, he highlights how the Scarman report into the Brixton riots effectively bracketed off the social conditions in which the ‘rioters’ lived, in order to find them guilty (Norrie 2011, cited in Chowdhury, 2017: 9).

Kowalski and Mrdjenovich (2016), writing from a health science perspective, argue against imposing dichotomies for simplicity's sake in science (e.g., nature/nurture) and the social world. They highlight how doing so necessitates a choice between two terms placed in opposition, which is ‘totally inadequate to understanding complex situations’ (p. 517). They propose looking more closely at ‘those situations in which boundaries are blurred, where no clear-cut points of separation exist’ (p. 518). For our participants, the contexts and situations leading to punishment were almost always complex, not well served by imposing dichotomies or an individualist lens. In line with Ochoa, we aim to show the blurring and complexity of people's stories that nevertheless were judged as black and white. While decolonial thinkers offer critical insights for our understanding of responses to crime and harm in the periphery, they are equally valuable for prompting a rethink of labelling practices within the contemporary metropole (Fonseca, 2018). It is to two studies conducted in contemporary Britain that we now turn.

Methodology

This article draws on two separate research projects that took place around the same time (2014–19), with some overlap in focus. Neither was designed to investigate the underlying lenses and limitations of Western criminal justice, but the epistemic injustice that is from these became strong themes within them. The (redacted for peer review) (study 1) examined the meaning of persistent short-term imprisonment. Twenty-two men and fifteen women who had experienced persistent criminalisation were interviewed over three rounds, two years apart each, for a total of 62 interviews, with the majority (13 men, 12 women) interviewed in prison. Recruitment in prison happened through staff, a poster in the hall and word of mouth. Community participants were recruited through two support agencies, a hostel and a newspaper advert. The first research encounter was a life story interview (Atkinson, 1998) in which participants were asked to talk about their whole lives in depth, with a focus on experiences of punishment. Those who consented were re-contacted two years later, using the contact details given, or in prison when reincarcerated. Attrition levels in the community were very high; all but seven follow-up interviews across both rounds were conducted in prison, meaning those most stuck in the carceral web were most likely to be re-interviewed. Interviews were sent to a transcription service, and transcripts were thematically analysed using NVivo, and arranged into life stories for narrative analysis (Atkinson, 1998). The life stories were shared with contactable participants, who appreciated this and suggested very few alterations during member checking. For more information on the methodology see (redacted for peer review).

Study 2 explored the relationship between recovery from trauma and desistance from crime within the narratives of people who were moving or had moved away from repeated offending. Sixteen participants were purposively recruited based on having experienced at least two problems from substance use, homelessness and mental health issues, anticipating greater likelihood of trauma among this group (Bramley and Fitzpatrick, 2015); self-reported offending was used to study their desistance from chronic offending and extended into their 30s. Recruitment took place across England and Scotland, through voluntary-sector resettlement organisations, conference attendance and the researcher's networks. Autobiographical narratives were gathered through life history interviews circa six months apart. The first interview used minimalist passive interviewing to allow participants to tell their story, pursuing only events introduced by participants. The second interview incorporated proactive questioning about their lives. For the 11 Scottish participants, art workshops were conducted to support the elicitation of narratives, although no visual data is presented here. Analysis was informed by, although substantially adapted, the Biographical Narrative Interpretive Method (BNIM) (Wengraf, 2001), along with insights from Interpretive Phenomenological Analysis (Smith et al., 2021). Pen portraits were created of each participant. The final project (redacted for peer review) resulted in a series of case vignettes, which bore witness to the complexities within the men's lives, and the nuances and contradictions within their stories.

Findings from both studies referred to in this article have been published elsewhere (redacted for peer review); this article's unique aim is to bring these studies into dialogue with the wider literature on colonial practices and Western lenses, to show how the dichotomies and individualism inherent in the criminal legal system are at odds with the realities of the participants’ lives, undermining claims to justice. This article proceeds by taking each dichotomy in turn, integrating discussions of individualism throughout.

Crime/non-criminal behaviour – the myth of criminal acts and events

It has long been acknowledged that crime is a social construct (e.g., Becker, 1963; Hillyard and Tombs, 2007). Nevertheless, the criminal legal system insists that individual behaviour that is criminal can be clearly differentiated from behaviour that is non-criminal. Data from both studies highlighted that whether behaviour counted as criminal frequently had little to do with the nature of that behaviour, in and of itself, but depended on the context within which it occurred. One cluster of behaviours that was sometimes defined as criminal, but not always, was drug taking. For example, Rory ¹ (study 2) had been self-medicating for PTSD with a range of illegal substances. When he is ultimately sectioned in hospital, he describes his experiences there:

“That was a horrible time […] I did feel as if I was losing it completely. […] All the medication I was experimenting with [in psychiatric hospital] as well. I mean I’m thinking these folk knew what they were doing […] at the end of it, when everything was said and done, I was told by [the psychiatrist] that a lot of the medications that I got in there was trial and error.”

With similar techniques of control being used in the metropole as in the colonies (Fonseca, 2018; Ochoa, 1996), we can draw on Fanon's (1963) analysis of deviance being defined in order to control the colonised body here, as well as on Said's (1978) explication of how definitions of legality are shaped by who holds authority to define “civilised” versus “deviant” behaviour. Connie and Rory's behaviours are deemed ‘crimes’ by powerful definers because of who engages in this behaviour. Connie was already perceived as not having lived up to the ideal of ‘rationality’ and was therefore coerced into behaving by an ASBO. This criminalisation of her behaviour and Rory's drug taking echoes Fanon's description of how colonial powers treat those they subjugate, as ‘a mother who unceasingly restrains her fundamentally perverse offspring from managing to commit suicide and from giving free rein to its evil instincts’ (p. 211), with the restraint here being enacted through punishment.

These examples also demonstrate the zemiological argument that the Western criminal legal system has lost a connection with harm (Copson, 2016); taking its own rules and definition as the benchmark of what behaviours need to be tackled. The word ‘crime’ was initially a synonym of sin, but in the late fourteenth century started to be used to describe an infraction against the monarch's peace, invented to legitimise his power to punish (Moore, 2025). Using a lens of infraction to examine a behaviour leads to the dichotomy of infraction/no infraction (i.e., crime/non-criminal behaviour). A less dichotomous approach would focus on harm, recognise degrees of responsibility (see below) and prioritise addressing the suffering caused instead of punishment. Seen through a different lens, drug-related offending would necessitate a response that tackles the context of social harm, structural violence and disadvantage (Pemberton, 2015) in which it occurs. The intervention in Connie's case would have come earlier, when people were disturbed by her presumably raucous behaviour, with a focus on mediation. One example of a helpful non-colonial practice in this kind of situation is the night patrols run by Aboriginal men and women (Blagg and Anthony, 2019), that provide ‘brief intervention, peacemaking, youth outreach, drug and alcohol interventions, and family violence prevention’ (p. 286). The contrast with the Western criminal legal system, which relied on infraction and punishment, is stark.

Despite the dichotomy of infraction/no infraction, or crime/non-criminal behaviour that is applied, there is room for discretion in its distinction. In the discretion that exists its constructed nature is further crystallised. In study 2, Alfie described having a can of alcohol stolen from him, and running down the street after the thief, in so doing knocking “an old boy over with a stick”. This action resulted in multiple short prison sentences, with over a year spent in prison. It is hard to imagine that a similar scenario, involving a woman chasing after her purse, would elicit a similar response; Alfie's physical appearance as a large black man with a facial scar likely also contributed to how this behaviour was read. Some post-structuralist thinkers such as Foucault, and Deleuze and Guattari (see Crockett Thomas, 2020), have attempted to reconnect things beyond written and spoken forms into chains of meaning. Here, the beer can, stick, scar and paperwork all exert power to determine whether behaviour is deemed criminal. While the dichotomy is constructed, this construction almost always goes against colonised (e.g., Khan, 2023) or otherwise oppressed groups, making the (infr)actions of the racialised and targeted classes much more likely to be deemed criminal.

Guilt/innocence – simplifying and rewriting events

Additionally, the criminal legal process relies on the dichotomy of innocence versus guilt in its interpretation of specific events: guilt needs to be established, through a guilty plea or a trial, before a sentence can be imposed. The simplification of one event constitutes a serious flattening of the complexity of many situations participants described. Categories of victim and offender – another dichotomy we discuss at length in the next section – were blurred in situ, but the criminal legal process in holding one person ‘guilty’, attributing sole responsibility. Alex in study 1 was found guilty of assault and theft and punished accordingly, despite this being a mutual, repeated behaviour between her and another woman.

There was this lassie, this woman that was selling drugs, right? But she steals off everybody, right? I'd been sitting taking drugs wi’ her, but she ended up, she stole ma money, right? And this is how much she was oot her face, right? It was half hanging oot her pocket, so I've went over and taken it like that, right? See, because it was in her clothing and I taken it? I was done wi’ assault and robbery […] She never sustained injuries, but I got a 13 month for that, it was still assault and theft.

As with the crime/non-criminal behaviour dichotomy, the guilt/innocence dichotomy is also constructed through the decision-making of legal actors, with some participants playing a minor role. For example, several male participants from study 1 had taken the blame for a crime committed by their then-girlfriend (redacted for peer review). More often, criminal legal agents and processes shaped who was guilty of what (see also Schinkel et al., 2019; Tata, 2019). Participants reported negotiating with the police, basing decisions on the likely sentence, rather than which offences they had actually committed:

The polis were like that… “You plead tae that one, we'll drop this one.” And you ended up taking a charge that you never done […] but you just thought that was the better offer for you (Stuart, study 1)

Offender/victim – harm over a lifetime

Despite a well-documented overlap between victims and offenders (McAra and McVie, 2010; Rainbow, 2018), political discourse in the UK, and elsewhere, has continued to uphold the dichotomy between victims and offenders/perpetrators. Drake and Henley (2014:142) argue that this binary acts to delineate “those who are ‘deserving’ of legal protections and those who are not”, constructing people with convictions as “other”, who – crucially – are seen to have forfeited their rights. In another illustration of the epistemic injustice inherent in the criminal legal system, it is only harm done, not harm experienced that is taken seriously. For example, people with criminal convictions are not entitled to compensation for criminal injuries (Miers, 2014) and Charman (2019) found that new police recruits increasingly ignored cases where the victim had a history of previous offending, as they were not seen as ‘ideal victims’ that is, weak, victimised by a stranger, blameless and with sufficient social standing to claim victim status (Christie, 1986: 18). While the victimhood of people with criminal convictions is far from ideal, it “should certainly not be ignored” Rainbow (2018: 275). However, the criminal legal system can only operate by obscuring this victimhood from view (Anderson, 2025), treating those it sentences as autonomous and responsible individuals.

There were clear examples of people in both studies who had experienced far more harm than they had ever inflicted, particularly in study 1 which explicitly recruited those who had experienced repeated short-term imprisonment. In this study, not only the women (see Barr, 2019; Sered, 2021), but also almost all the men had been harmed extensively and repeatedly by others (abuse and violence in childhood, the murder of family members and friends, repeated violent victimisation, see Batchelor and Gormley, 2023) Comparatively, the harm inherent in their own ‘offending’ seemed relatively insignificant. Very common among both men and women were strings of shoplifting offences to feed alcohol or drug addiction, which itself followed abuse or trauma. The relative insignificance of the harm done is best symbolised by Jim's vivid recollection of a judge's comments on his ‘criminal record’ that almost exclusively contained breach of the peace and resisting arrest.

I've never been done for anything really serious. I mean all ma charges are…nonsense, basically. I mean even the last sheriff […] he turns round and goes “What a waste ae a life.” He had all ma previous convictions in front ae him […] and that's what his exact words were. “A waste ae a life.”

There is little engagement with moral questions about the prosecution of people who have been subject to much harm. In findings of guilt or innocence, criminal courts limit the purview to specific events, decontextualised from the lives in which these are situated. The individualism of Western thought sees the offence as the choice of a rational actor, ignoring the interconnected web of events, social relations, distributed resources and social structures that preceded their acts that are construed as crime. As Quijano writes ‘the ‘subject’ is a category referring to the isolated individual because it constitutes itself in itself and for itself, in its discourse and in its capacity of reflection’ (p. 172), thereby denying intersubjectivity. Ironically, in the process of considering people's behaviour as the behaviour of isolated subjects, they are also ‘othered’ as inferior: either they are unsuccessful rational actors, having made bad choices; or alternatively their traumatisation and subsequent emotional responses and substance use are seen to render them irrational, uncontrollable, wild and dangerous. Both poles justify forms of repression and preclude a consideration of them as victims.

Discussion

We have sketched how people's own accounts of events are flattened beyond recognition in order to be addressable by the criminal legal system. The binary rendering of acts and people in black and white not only fails to capture shades of grey (the situation's complexity) but also ignores the metaphorical colour spectrum in people's lives (everything else i.e. going on, including structural issues). It is only because of this reduction in complexity that it is possible for the system to process and punish cases. Fassin (2018: 115) proposes ‘the relationship of otherness’ as ‘the invisible foundation of punishment’. While the victim – of course only the ideal one, a status few can live up to – is to be protected, those flattened dehumanised ‘others’ become punishable subjects. In this, the criminal legal system might well be one of the more extreme manifestations of dichotomous and individualist Western thought in our society – the ability of those going through this system to define their own reality is reduced to almost nothing. It is literally not admissible in the process, and their voice is usually not heard (Natapoff, 2005).

Readers might object that we have largely focused on low-level offences, eschewing examples where victims are clearly innocent and are harmed greatly by a clearly guilty offender. While the dichotomies discussed above might make more intuitive sense in cases like rape or child sexual abuse, Steve's case illustrates how serious harm also has important contextual factors. Neither is the current criminal legal system effective at reducing such harms, or providing the victims with satisfaction and a chance to heal and satisfaction (Brooks-Hay, 2020; McGlynn, 2011). Particularly in such cases, victims experience epistemic injustice in the criminal legal system, which is not designed to do justice to their lived experience either (Pemberton and Mulder, 2025)

With both studies carried out in Britain, predominantly Scotland, the arguments above will have the most traction in countries with similar justice systems. For example, in places where the state is more absent in relation to justice, infractions, as opposed to harm, might less frequently become the basis for intervention. We would nevertheless argue that our findings on dichotomies and individualism, which also lie at the roots of legal systems elsewhere, have relevance beyond Britain.

Chamberlen and Carvalho (2022) argue that, as a society, we have come to have a passive conception of justice, focused narrowly on individualised wrongdoing, so allaying anxieties about the precariousness of our social condition. They liken our reaction when we experience injustice to bodily awareness when we experience pain – at other times justice is not actively sought. Experiencing injustice, we seek an immediate and robust response, aimed at individuals, rather than wider social conditions. Thus, punitive responses have become assumed and naturalised. They write that ‘we lack a comprehensive understanding of how to actively practise justice in non-hostile ways’ (p. 94), assuming that ‘justice as a value or idea is something straightforward, which does not require questioning or reflection’ (ibid). To combat this, they argue, we need to invest in the pursuit of justice viewed as a skill to develop, rather than relying solely on the state and its apparatus.

While the Western tradition of thought, like the criminal legal system, has been exported globally and imposed on other ways of seeing, there are other systems of understanding, often originating from the global South, that are not as wedded to dichotomous thinking. These also underpin ways of dealing with conflict and harm that ask more from society's members and do not rely on the state. The idea of Tíbí Tìrẹ (Olúwáṣèyí, 2022) questions the juxtaposition of good vs evil, instead seeing them as mutually inherent. Ubuntu, or the longer Zulu proverb ‘umuntu ngumuntu ngabantu’ emphasises connection, rather than the Cartesian individualistic world view of ‘I think therefore I am’. Capturing its meaning completely is beyond the capacity of English, but it roughly translates as ‘one is only human through other humans’ (Nagel, 2022: 7), or more colloquially, ‘I am because you are’. This worldview conceptualises freedom differently, where true freedom comes from belonging to a community, rather than being free from such ties (ibid). Ubuntu also has implications for forgiveness; Tutu and Tutu (2014) define Ubuntu as a bundle of humanity, insisting that everyone deserves forgiveness because there is no such thing as the unforgivable.

This article does not fully explore these systems of thought, which we do not feel qualified to do and will leave to people more grounded in them. We do want to highlight, though, that there is some evidence of such systems delivering a more recognisable justice, with an active role in the process for those involved in the harm (Benyera, 2014; Oko Elechi et al., 2010). Conversely, we do not want to suggest that there is no injustice in non-state or traditional justice mechanisms, where inequality remains an issue. Scholars in international development have noted how customary justice processes often treat women as commodities to be traded to restore balance, allow for revenge killings and fail to protect the powerless (Harper, 2021), violating basic human rights (Connolly, 2005). However, such scholars tend to imply that the nebulous ‘international community’ has justice systems that are ‘inclusive, egalitarian and rule-based’ (Harper, 2021: 344), based on ‘legal equality, due process protections and rights of participation’ (ibid: 346) or ensure ‘the right to a fair and impartial hearing’ (Connolly, 2005: 246). Our findings suggest that the state systems that are used as a basis for comparison fail to uphold these ideals. These authors rightly cast a critical eye over non-state justice mechanisms but fail to do so towards state justice mechanisms as practiced in the West. Others have noted how the human rights discourse often used against traditional justice mechanisms is itself dichotomous: analysing situations along savage-victim lines: the issue lies with a backwards or evil person, group or culture, excluding geopolitical influences, like globalised capitalism, from the analysis (Ciocchini and Greener, 2024). In line with the ideal victim ideology, some victims (e.g., of international trafficking for sex work) are seen as completely innocent and worthy of protection, yet devoid of agency, while others who fail to live up to this ‘ideal’ are responsibilised and deported (ibid). The authors argue that in reality, ‘victims’ and ‘perpetrators’ are doing the best they can to secure the best life available to them under conditions of restrained choices due to international greed and unequal power relations. This mirroring of dichotomous and individualist thinking on the international stage shows how embedded it is within the Western view of the world.

Critiques of traditional justice mechanisms seldom comment positively on aspects that our focus on categorisation and punishment precludes, including the space afforded for those bearing responsibility for harm to give a full account of events. Benyera (2014) describes how in ceremonies following political killings, a family representative relates all their questions to the person who did the killing, which they answer openly until the family is satisfied. This happens while working the victim's (family's) field. This is followed by the person who did the killing and the elders of their tribe, who also bear and acknowledge their responsibility, requesting forgiveness and making restitutions. Hereby, individualism is subverted, and the inclusion of the ‘killer’ in the subsequent feasting shows how no one is characterised as the sole – or exclusively- guilty party. Recounting their full version of events, they do not have to carry more or less culpability than this account reflects, and others take responsibility for their failings too. As noted above, Oko Elechi et al. (2010) have described a traditional African Ubuntu process in a cases of theft, showing how both the theft (which would be seen as criminal in a Western court) and the failure to meet responsibilities towards a child (which would not) are discussed and rectified (Oko Elechi et al., 2010). Again, this is not to idealise such mechanisms, but to point out the space created to view things differently.

Similarly, we do not advocate an adoption of processes based in incomparable contexts. Restorative justice processes, now widespread in Europe, have largely been co-opted into existing systems (Chamberlen and Carvalho, 2022; Willms and Malzahn, 2024) and their systems of thought (Copson, 2016), so failing to transform. Restorative justice is pushed to the margins to deal with very few and insignificant cases (Willms and Malzahn, 2024) with existing dichotomies inevitably applied, leading to calls for its decolonisation (e.g., Levers, 2023). This leaves little space to tackle issues, with the larger context and the needs and harms suffered by the person who caused the harm ignored (see Butler et al., 2024). Similarly, family group conferences, taken out of their Maori context, have travelled badly, focusing on avoiding further bad behaviour from the young person, rather than addressing their concerns and context (Moyle and Tauri, 2016). Rather than adopting the processes of non-Western justice, it is crucial to see that they are grounded in a different way of seeing the world. It is perhaps only by starting to notice our own, dichotomous, blinkers and, as Chamberlen & Carvalho recommend (2022), actively engaging with and learning about justice, that we can escape from our societal ‘captive mind’ in relation to our ‘criminal justice’.

Positively, different ways of seeing are finding footholds in the west. Transformative justice, developed initially by grass-roots initiatives in the US, is well elaborated in the literature (e.g., Brown, 2019; Kaba, 2021; Kim, 2021). It operates intentionally outside of the state to bring about systemic change, rather than focusing on the individual, including for very serious crimes like child sexual abuse (Generation Five, 2017). Other practices work with the state but recognise that the Western criminal legal system has neither the power nor tools to adequately meet people's need for safety, notably within the home. In the Netherlands, the organisation Veilig Thuis (VT, Safe Home) works in situations of domestic violence. Under their strategy of Veiligheid Voorop (Safety First), the focus is on safety instead of on determining guilt. Prioritising provisional safety first, it then addresses underlying risk factors to achieve safety longer-term (Stichting Civil Care, 2023; Vogtländer and van Arum, 2016). After a referral, VT gathers information to assess if there is an urgent (rare) need for immediate intervention, for which the police is called, or whether safety can be restored using existing formal and informal support systems. VT then facilitates a discussion and an analysis of the situation, first with the individuals harming and being harmed separately, then including people who have been part of any existing support systems. A constellation of interventions is then agreed upon in this group, and the criminal legal system is only involved when provisional safety can’t be ensured or when the harm done is extreme. While this is not consciously or fully a non-dichotomous, non-individualist and non-punitive approach, it might serve as an illustration that the shortcomings of the criminal legal model are spurring people into new ways of tackling harm, in order to achieve more meaningful interventions and outcomes. It also highlights that less dichotomous and punitive ways of dealing with harm can emerge out of western contexts if shortcomings of the criminal legal approach are evident and acute enough.

While this article falls short of showing a clear way forward in dealing with harm, we hope that grounding some of the shortcomings of the criminal legal approach in Western ways of thinking, provides a way to assess responses to harm in terms of their ability to accommodate the messiness and complications of real-life situations. Do they see only black and white, guilty or not guilty, victim or offender? Do they attribute all blame to one individual without taking context into account? If so, its view is limited by the criminal legal lens, even if not part of the criminal legal system. Does it see the grey in between, and perhaps even a little colour? Then it might contribute to solving the problem of how situations can be accommodated in a recognisable form when issues of harm, and how to respond, are addressed.