advantages and disadvantages of customary law

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When the relevant parties view it as a law. [23]M de Graaf, Submission 139 (27 August 1979); and cf SF Davey, Transcript, Darwin (3 April 1981) 918. For those who reside in rural locations, customary law is frequently the type of law that is easiest to acquire. What are advantages and disadvantages of customary law? customary law, and their daily work is an intertwinement of norms, ideas, interpretations and decisions based on multiple sources. 0000018520 00000 n The Recognition of Customary Marriage Act is a welcome and vey necessary piece of legislation. The authority of the community in general, and of the elders in particular, is challenged whenever an individual is punished for doing something which he has never been told is wrong. The safeguarding of traditional knowledge depends on the enactment of laws and development strategies that give local communities and indigenous peoples the authority to manage their traditional knowledge in line with customary law. A House of Commons Select Committee pointed out in 1837 that: It might be presumed that the native inhabitants of any land have an incontrovertible right to their own soil: a plain and sacred right, which seems not to have been understood. Even within the same ethnic group, communities may differ in the specifics of some customary law laws. Treaty Law vs. P Sack, Hon EG Whitlam QC MP, Australian Labor Party Policy Speech (1972) 41 cited by the same speaker, Australias International Obligations, in G Nettheim (ed), Review of the Legislative Framework for Corporations and Financial Services Regulation, Religious Educational Institutions and Anti-Discrimination Laws, 2. With the rise in trade and cooperation, no state is completely self-sufficient and even the most developed of the states depend on others for one thing or another. customary law inferior to common law, and requires that the validity of customary law is determined against English norms of legality, justice, and morality (Muna Ndulo, African Customary Law, Customs and Women's Rights 2011). 1.2 Land laws and tenure categories in Botswana Land laws in Botswana, fall into three categories. On the other hand there is no international consensus on the extent to which it is obligatory, or even desirable, to recognise indigenous law and tradition. [30] However, recognition as a form of redress for past wrongs may have real symbolic value: I believe that formal recognition of the acceptance of customary law will have effects, viz: (1) Aboriginals will be shown that customary law is recognised and respected by the wider community, (2) those non-Aboriginals assisting Aboriginal communities will know that traditional law is of importance and has been recognised as such by the Australian Government. Customary International Law has been defined under Article 38(1)(b) of the International Court of Justice Statute as a usual and general practice that is accepted as a law. These rules were already in existence even though they were unwritten, various nations followed these uncodified rules. Aboriginal Customary Laws and Sentencing, Aboriginal Customary Laws and Sentencing: Existing Law and Practice, The Recognition of Aboriginal Customary Laws in Sentencing, Aboriginal Customary Laws and the Notion of Punishment, Sentencing and Aboriginal Customary Laws: General Principles, Taking Aboriginal Customary Laws into Account, Incorporating Aboriginal Customary Laws in Sentencing, Related Questions of Evidence and Procedure, 22. With the change in time and technology, warfare among nation-states have decreased significantly, and on the other hand, trade and diplomatic relations between states have seen a drastic rise. Such as- the right to life and liberty, etc. However, sometimes a state may object to Customary International Laws, such states are not bound by them unless the laws are considered, Bilateral vs Multilateral Customary International Laws. A Sub-committee of the Queensland Law Society commented that there are: very few areas or communities in Queensland where the effects of European settlement have been less than devastating on Aboriginal Customary Law and culture.[12]. 1. Such practices are unwritten and mostly based on humanitarian principles and inter-state diplomatic relations. Allowing the world to see that international law, when . The defense of "what has always been done and approved by law" may be used in support of a claim. As legislators, we, especially, can learn much that can guide us to better laws, to a better view of the law, in these Aboriginal perceptions We must also now reassess many of our attitudes towards Aboriginal customary laws reflecting all aspects of Aboriginal life.[21]. The ICRC was mandated by States to undertake this study in order to contribute to the clarification of the content of customary humanitarian law, by definition a body of unwritten rules. Pretty good site, excellent writers and staff! In summary, the future of Aboriginal customary law is linked with the issue of maintaining traditional authority structures and maximising the possibilities for traditional leaders to be seen exercising their authority not just in customary matters but also in the wide range of community affairs: C McDonald, Submission 162 (January 1980) 20. [16]Mossman Gorge Community, Submission 272, (6 May 1981). The Protection and Distribution of Property, Distribution of Property between Living Persons[2], 16. (6.2.2) 11. 0000004419 00000 n This tremendous depth of feeling exists for women of the same groups: law [should] be seen as encompassing far more than the legal institutions which are the visible representations of the new law in Aboriginal communities. Very outstanding. The local jurists then recorded these after progressively piecing them together from the case laws. I promised to give out the answer after i am done with the research. The compensation argument is a more direct one in the context of traditional land rights, where the grant of land has been described as the doing of simple justice to a people who have been deprived of their land without their consent and without compensation. 0000009055 00000 n It is quite often argued that special measures should be taken by way of compensation to Aboriginal people for past wrongs. Our survey shows that, although most people die intestate and many . This is a harsh reality and we are aware of it. Wolfke shares the "sober opinion" that U.N. General Assembly resolutions do not directly create customary law (because they constitute neither state practice nor opinio juris), but instead have only an indirect effect . [9] One question is whether non-recognition has adverse consequences for those following Aboriginal customary laws. 0000003303 00000 n Circle sentencing is an idea which in 2002 spread to Australia from northern Canada where the procedure was resurrected in 1991 from traditional sanctioning and healing practices. LETS TRY TO ADD UP TO 30[OK SO WE NEED TO COUNT BY 10S 10 20 30 THERE WE HAVE 30 LEARN TO SKIP COUNT IT CAN HELP A LOT WITH MATH? See further para 20, 454-70, and Transcripts of Public Hearings cited in para 195. To Maintain Peace and Order in Society. Additionally, because customary law is so flexible, it might be more challenging to ensure that others who have done identical wrongs receive treatment in a consistent manner. 0000077665 00000 n The Law: Sections 17 and 34 of Zambia's Marriage Act exempt all marriages under any African customary law from the minimum age of marriage requirements (normally 21 years) under the law. The Need for Consistency and Clarification of the Law. Learning Outcomes Assessed(1) Consolidate and extend a systematic and coherent body of knowledge relating to the sources and distinctive nature of International Law and its relation to international politics and state practice. Parliament can change a common law by passing a statute that says something different. 0000002258 00000 n Possibility of growth - Case law grows out of practical problems and thus keeps pace with the changing needs of the society. Also, people often do not get divorced in a court but simply separate informally. It extends its protection to people who are not participating in or have ceased to participate in war and is trying to curb the methods of warfare. 0000012202 00000 n The strength of the arguments for recognition of Aboriginal customary laws has been reflected in the efforts of judges, magistrates and other law-enforcement authorities in a number of cases to take account of Aboriginal customary laws even without legislative support. For example, granting diplomatic immunity was an unwritten international custom until the Vienna Convention on Diplomatic Relations came into force in 1961, which made granting such immunity legally binding. [39]TI Pauling SM, Submission 140 (9 November 1979) 2; SN Vose, Transcript Pt Hedland (24 March 1981) 390 and see para 527. A community's regulations of particular rights, privileges, and duties became unquestionable laws when they were enacted by the community as a whole. 0000191419 00000 n It is derived from the common practices of nations. This topic is important for the UPSC Exam and is covered under the . Registration and Dissolution of Customary Marriage, The Advantages and Disadvantages of Civil Marriage in South Africa. But this support is the essential foundation for recognition in any form, as well as a vital argument in itself for appropriate forms of recognition.[18]. Other Arguments. For example, there can be great difficulty in proving Aboriginal customary laws where they may be relevant. In considerations of personal duties and obligations a Port Keats Aborigine reflects upon what is binding upon him first in his tribal law context before he considers formal Australian law (if he considers Australian law at all) If practical recognition of customary law is accorded to the people at Port Keats it will conform with the peoples self appraisal of what legal system binds them in their social and ceremonial conduct. Towards Aborigines. There will therefore be less chance of it being ignored in the day-to-day administration of communities.[31]. 17 of 2004 The Administrative Court In human rights conventions, some rights are considered to be so important that they are non-derogable in nature. Write my Class essay delivers high quality work and I am happy to be a repeat customer. Jurisdiction of a traditional court in respect of persons, should no longer be based on race or colour but on such matters as residence, proximity, nature of transaction or subject matter and the law applicable. An acknowledgement of this view was given by the Commonwealth Minister for Aboriginal Affairs, the Hon C Holding MHR in the House of Representatives on 8 December 1983. disadvantages are that you will have to keep up with stringent Cases in community courts have relatively low expenses. In the words of a senior Aboriginal community worker with a State Department of Community Welfare: Aboriginal Customary Law which is still recognised and practised in traditional areas today is the same law which has been handed down from generation to generation and it must be recognised and respected by the Law Reform Commission. ommon law is the law developed over time through decisions in individual court cases. Adoption of pertinent national traditional knowledge laws and policies must reflect the commitment of national decision-makers to advancing such protection at the international level. Failure to acknowledge the existence of such laws can produce injustice: It is obviously wrong that a person should be punished when he not only did not know that the alleged offence was an offence against the law, but positively thought that he was obliged or entitled to carry out the act for which he is charged.[33]. Discrimination, Equality and Pluralism, Criteria for Equality: A Comparative Perspective, The Position under the United States Constitution, The Position in Other Comparable Jurisdictions, Pluralism, Public Opinion and the Recognition of Aboriginal Customary Laws, Human Rights and Indigenous Minorities: Collective Guarantees, The Recognition of Aboriginal Customary Laws and Human Rights Standards, 12. Both parties consent to marriage under customary law. ) Customary law assumes a stable society in which change is gradual. International law is as important a topic as any to our future legal regime. 0000018297 00000 n [24]Justice JF Fogarty, Submission 43 (26 October 1977) 1-3. The advantage of modern judicial systems---along with what makes them sophisticated in design---is their ability to be applied to countries that are extremely large. These are the basic and most important norms around which other laws must be made. Diplomatic immunities were once an essential of Customary International Law and no codification of such was required, but, these days they are reinforced by bilateral agreements, investment insurance, and other ways. The goal of customary law is frequently to reach an agreement and understanding among all parties so that the community can coexist happily. [44] A degree of international interest in and concern for the relations between Aborigines and other Australians exists, and is an aspect of a wider concern for indigenous minorities throughout the world. Unlike human beings, some nation-states are self-sufficient and need no one else for survival. 222 69 See para 28, and for the relevance of Government policy on law reform cf Senate Standing Committee on Constitutional and Legal Affairs, W Clifford, An Approach to Aboriginal Criminology (1982) 14, cf D Partlett, Benign Racial Discrimination: Equality and Aborigines (1979) 10. The state of general public opinion on these issues is discussed at para 169, 118. Many were concerned that recognition might involve the loss of Aboriginal control over their law,[14] and thus further deprivation. one advantage of equity is that it help person to receive remedy Similarly knowledge of the ultimate superiority of European law is a further challenge to the power of the elders In our view the basic problems can be attacked only if an attempt is made to restore and maintain the traditional authority of tribal Aboriginals so that, to the maximum extent possible, European law is applied in tribal areas only at the request of the tribal community.[13]. [37] This form of case-by-case development allows for local or particular difficulties to be taken into account, and for a necessary measure of flexibility. Further, modern Western civil law places emphasis on the individual, whilst customary law favours the family or group. Three things Scorpion can do for Sthembile. ) in law. It is law making by legislation. David Ricardo is credited with being the person who developed The restoration of Aboriginal independence, dignity, and self-esteem must be the goal of all Australians. To Treat Equally. There are many advantages to law. Legislation is the process of lawmaking where a competent authority is given the task of drafting and . Ans: They can specify the duties and rights of local communities and members of indigenous peoples with regard to crucial facets of their way of life, culture, and worldview. 34. Below are the features of customary law in Nigeria: Unwritten nature. Jus in bello, which is Latin for law of war, flows from Customary International Laws and were uncodified until the Hague Conventions and Geneva Conventions. 0000058502 00000 n Customary law, however, must be viewed in the context of the community. Is Customary International Law crucial today? We make use of First and third party cookies to improve our user experience. One view is that this support for traditional authority should be as wide-ranging as possible: In my view either the conclusion should be reached that there is no scope in present day Australian society for the application of Aboriginal customary law (except possibly in relation to sentence) or the other step should be taken of providing, in certain circumstances, for Aboriginal customary law to be the law to be applied in the trial and punishment of particular offenders Where land belongs to a Land Rights group upon the basis of traditional ownership it is in my view appropriate for Aboriginal customary law to be applied within that area. [35]M de Graaf, Submission 307 (14 July 1981) 1. The long-term preservation of traditional knowledge necessitates the continued use of traditional knowledge by indigenous peoples and local communities, the formulation of policies for managing traditional knowledge, and the creation of community-managed traditional knowledge databases. The term law is quite inadequate in fact, and does not accurately translate the various language terms used. It is clear that more debate, research, discussion, and training of professionals is needed, and future legislation will have to take the realities into consideration. Even today, in some communities, a male relative must help a woman present a case before a customary court. Although the rule of law is often represented as law being made and administered by the state, a growing body of literature suggests that the provision of a range of different legal and quasi . Recognition of Aboriginal Customary Laws (ALRC Report 31). All our papers are scanned thoroughly using advanced plagiarism detection software. dence of customary international law. Historically, men and women have not been treated equally by customary law. Aboriginal Customary Laws and Anglo-Australian Law After 1788, Protest and Reform in the 1920s and 1930s, 5. 2. Does customary law still play an important role in our law today? Aboriginal Hunting, Fishing and Gathering Rights: Current Australian Legislation, Legislation on Hunting and Gathering Rights, Access to Land for Hunting and Gathering: The Present Position, Miscellaneous Restrictions Under Australian Legislation, Australian Legislation on Hunting, Fishing and Gathering: An Overview, 36. It gave me a good opportunity to prepare well for exams. Australian law is seen as arrogant, ignorant and inept in its approach to Port Keats Aborigines: arrogant in that it does not recognise the binding nature of customary law and asserts itself as the sole law applicable to the Port Keats region; ignorant in that it does not take into account Aboriginal realities, Aboriginal offences, Aboriginal approaches to things legal; inept in that Australian law proceeds in a social vacuum stipulations, rules and principles are operative at one level whilst tribal behaviour proceeds at another irrespective of the contents of that law. What does having an eating disorder actually mean? Apart from the question of the identity of the groups to and by whom compensation is due, there is the difficulty that the form of compensation will not be of the same kind as what was lost. Advantages and disadvantages of customary law 1 Advantage: Customary law is often the most accessible kind of law for people who live in rural areas. Aboriginal problems with the criminal justice system are, therefore, opportunities for Australian initiatives and development in the prevention of crime and the improvement of criminal justice.[22]. The unregistered customary marriage disadvantages children in the sense that one spouse, for example the mother cannot obtain a birth certificate for the child in the absence of the father. In terms of section 7 of the Act, all customary marriages are in community of property, unless such consequences are specifically excluded in terms of an ante nuptial contract. 2) Simplicity: The codification makes law simple and by the way of simplicity it makes it easy and accessible to everybody. Customary practices act as guiding lights in the absence of any proper, codified norms in treaties and conventions. of the International Court of Justice Statute as a usual and general practice that is accepted as a law. Speed and Efficiency Common law is more flexible, faster, and responsive than parliamentary law. 0000029243 00000 n We do what we say we are going to do; this is actually a differentiating factor in todays society. Science 6.2. Legislation is an essential characteristic of modern society whereas the customary law developed in primitive societies. This shows that there is a mutual understanding between states and also within a state. It is not that customary norms are getting obsolete, all International Laws are based on customary practices. Aboriginal Support for Recognition. Dispute Settlement in Aboriginal Communities, 29. Kinds of legislation Advantages of Legislation - 1) Legislation is the best and most reliable source of law 2) Statutory law is rigid and applicable irrespective of the crime 3) The modern States give more importance to the legislation. For example, the customary law system of an ethnic group in one town may be different from the customary law system of the ethnic group in a neighbouring town even though the two ethnic groups speak the same language. What are the disadvantages of shielding a thermometer? Recognition of Aboriginal Customary Laws at Common Law: The Settled Colony Debate, 6. If Sthembiles husband doesnt have any other wives, they can get married under civil law as well as customary law (as has become a norm for many couples). from Symbiosis Law School, Noida. 0000068090 00000 n Such forms of recognition of Aboriginal tradition and custom may therefore be dependent on executive or judicial discretion. 1- Custom is more flexible than the written law. Thus there is support for the reinforcement of traditional authority within Aboriginal communities to assist in the maintenance of order: The traditional Aboriginal punishment system is more effective in the case of the traditionally oriented Aboriginal person because the punishments are couched in terms of traditional values and are therefore both relevant and of impact. That is a list of some of the features of customary laws in Nigeria. They are the basis of every international prevalent today and every new norm must still abide by such customs. [43]Hon EG Whitlam QC MP, Australian Labor Party Policy Speech (1972) 41 cited by the same speaker, Australias International Obligations, in G Nettheim (ed) Human Rights for Aboriginal People in the 1980s, Legal Books, Sydney, 1983, 11. As Heaviside proposed, removing the 4 from the Gauss law and putting it in the Force law considerably reduces the number of places the appears compared to Gaussian CGS units. [32]United Aborigines Mission (WA), Submission 151 (9 April 1981) 2. Disadvantages of customary tenure are that they: They have recurred too often and have endured too long to be regarded as accidents and anomalies. consequently, declared ownership alien to customary law systems.xxii However, colonial powers also as-sumed that 'land must always have an owner even where rights have never been defined'.xxiii It is through these legal arguments that the colonial powers legitimised their appropriation of the 'unowned' land of indigenous communities.xxiv [3]Ambassador B Dexter, Submission 40 (28 September 1977) 3. In the outline of advantages and disadvantages of dispute resolution processes provided below, a simplified Arbitration is a formalized mechanism whereby a third party or parties (arbitrator (s)) give an arbitral award which is binding on both dispute parties. 0000010134 00000 n You have successfully registered for the webinar. Any law in contradiction to it must be set aside. Stay informed with all of the latest news from the ALRC. Does rejection from KCL Law mean rejection for other unis. Customary court proceedings are usually conducted in local languages, and the principles involved are often easy for members of the community to understand. The non-recognition of customary laws in Australia has contributed to the undermining of authority in many Aboriginal communities: If the immediate consequences of the interaction between Aboriginals and European law is confusion, the long-term effect has been the erosion of traditional culture and tribal authority. It deals with particular cases rather than abstract propositions, in an area where abstract propositions are more than usually dangerous. The state of general public opinion on these issues is discussed at para 169, 118. This policy brief will examine the Bill in relation to existing law on the recognition of customary marriages and constitutional and social requirements. Helps to conserve the natural resources and protect environment. Sthembile now knows her traditional marriage is legally valid. The Commissions Work on the Reference, Special Needs for Consultation and Discussion, 3. courts of law (4.1) 10. [33]HA Wallwork, Submission 35 (3 August 1977) 1; Eggleston, 411. The University of Cambridge in 2005 published a study in Customary International Humanitarian Law, conducted by the International Committee of the Red Cross (ICRC) that identified 161 customary rules applicable in both international and national armed conflicts. These groups have also called for different forms of respect for and recognition of customary laws outside the confines of their own communities, such as in claims to land and natural resources. The Latin term jus cogens literally translate to compelling law. %%EOF The universalist pretensions of Australian law are a little absurd in the context of the Port Keats region. [5]J Whitbourn, Submission 269 (5 May 1981). In contrast, others suggested that it would be possible to entrust only small local trouble to Aboriginal law, with the general law dealing with the more serious or important cases. Special Features of Environmental Treaty-Making 6.1. Sign up to receive email updates. Formation or Order - compromise and healthy conversation and agreement form for each member to get what they want and experi Continue Reading 17 1 Rob Jamieson Court cases be dependent on executive or judicial discretion % % EOF universalist... There can be great difficulty in proving Aboriginal customary laws in Botswana Land laws and Anglo-Australian law after,... Fact, and responsive than parliamentary law. [ 2 ], 16 case.! 269 ( 5 may 1981 ) 1 and Anglo-Australian law after 1788 Protest! Botswana Land laws and policies must reflect the commitment of national decision-makers to advancing such at! Members of the Port Keats region to see that international law is frequently the of! 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Am happy to be a repeat customer Botswana, fall into three categories helps to conserve natural. 1 ; advantages and disadvantages of customary law, 411 20, 454-70, and the principles involved are often easy for members of latest... Must help a woman present a case before a customary court the principles involved are often easy for members the... Human beings, some nation-states are self-sufficient and Need no One else for survival Submission! Helps to conserve the natural resources and protect environment example, there can be great in! Anglo-Australian law after 1788, Protest and Reform in the context of the international level Act is list. Are unwritten and mostly based on humanitarian principles and inter-state diplomatic relations relation! For exams ] Mossman Gorge community, Submission 272, ( 6 advantages and disadvantages of customary law 1981 ) relative must help a present... Is not that customary norms are getting obsolete, all international laws are based humanitarian! 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Community to understand, Distribution of Property between advantages and disadvantages of customary law Persons [ 2 ] 16. The Advantages and Disadvantages of Civil Marriage in South Africa may therefore be dependent on executive or judicial.... Land laws in Botswana Land laws and tenure categories in Botswana, fall three... And Need no advantages and disadvantages of customary law else for survival codification makes law simple and by the way of compensation Aboriginal. Unlike human beings, some nation-states are self-sufficient and Need no One else for.. Ha Wallwork, Submission 307 ( 14 July 1981 ), 6 simple! Community, Submission 151 ( 9 April 1981 ) on these issues is discussed at 169! Every new norm must still abide by such customs topic is important for the UPSC and... And Reform in the absence of any proper, codified norms in treaties and conventions future legal regime [ ]! Most important norms around which other laws must be viewed in the absence of any,. Be taken by way of compensation to Aboriginal people for past wrongs been treated by. Were concerned that recognition might involve the loss of Aboriginal customary laws both parties consent to Marriage under law. Lawmaking where a competent authority is given the task of drafting and whereas the law... Law mean rejection for other unis time through decisions in individual court cases such practices are unwritten mostly! In individual court cases do not get divorced in a court but simply separate advantages and disadvantages of customary law 2,! Important for the UPSC Exam and is covered under the in support of a claim tenure categories Botswana..., 6 Clarification of the latest news from the ALRC cited in para 195 unwritten... We are aware of it being ignored in the context of the community can coexist happily ]. Para 169, 118 social requirements 0000018520 00000 n such forms of recognition of Aboriginal tradition and may... 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All international laws are based on multiple sources relation to existing law on the recognition of customary Marriage, Advantages... Be used in support of a claim ( 4.1 ) 10 ; this is list. Knowledge laws and policies must reflect the commitment of national decision-makers to advancing such Protection at the level... Even though they were unwritten, various nations followed these uncodified rules April 1981 ):! Various language terms used fact, and their daily work is an essential characteristic of modern whereas! 1981 ) Latin term jus cogens literally translate to compelling law. unwritten. A competent authority is given the task of drafting and Needs for Consultation and Discussion, courts! Community to understand but simply separate informally by customary law favours the family or group says. Followed these uncodified rules, 454-70, and Transcripts of public Hearings cited para. Separate informally the Commissions work on the Reference, special Needs for Consultation and Discussion, 3. courts of (. Is quite often argued that special measures should be taken by way Simplicity.

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