1,729,217 research outputs found
Australia’s (Slow) Experiment with Indigenous Customary Law in Intestacy
Get PDFAustralia’s treatment of its Indigenous people in terms of dispossession of land is well known. What is thought of less is Australia’s lack of attention to the civil law needs of its Indigenous people. In the last twenty years there has finally been some attention paid to the issues Indigenous people face in respect of the common law of succession and how it affects them. The Northern Territory brought in an Indigenous customary law provision in 1979 but it has been little used. In 2009 NSW amended its intestacy legislation to allow Indigenous customary law to be used where the deceased died intestate. For nearly 11 years there were no cases using the legislation, but now there have been several. How these cases have dealt with the concept of customary law, and how the interaction of the customary law with the statutory and common law of inheritance in Australia has affected this jurisdiction is explored in this paper. Instead of treating Indigenous law using conflicts of laws methods, other methods have been used, sometimes for sound reasons, but running the risk of not accepting customary law as ‘real’ law. The paper asks how the questions of authority are to be dealt with in situations where the common law doesn’t really see the authority which customary law adherents see. Complex issues concerning access to justice may affect the ‘coherence’ of the concept of customary law in this situatio
Is Customary Law a Hindrance to Womens Rights in Democratic South Africa?
Get PDFThe constant clash between customary law and women s rights continues to bedevil the desired development and protection of women s rights in Africa African women suffer injustices through restrictions imposed on them in the application of certain customary laws Customary laws pertaining to marriage property and succession are amongst the most restrictive and unjust in African customary law Marriage laws that allow polygamy for example would be an impediment to principles of equality and would even pose health risks with the prevalence of HIV AIDS while customary laws that govern succession in many parts would discriminate unfairly between male and female heirs This dissertation was prompted by issues raised in cases such as Bhe and Shilubana decided in the Constitutional Court of South Africa In these landmark decisions the Constitutional Court dealt with the development of customary law so as to align it with the spirit and purport of the Constitution which is the supreme law in South Africa The decisions of the above mentioned cases are of particular import to the essay because not only do they seek to advance women s rights they also recognise customary law as a cardinal source of law in South Africa By so doing customary law is accorded its proper place in the South African legal context The essay focuses on South Africa and the development of women s rights against recognition and continued practice of customary law A comparison between the recognition of customary law and development of women s rights in other jurisdictions particularly Ghana Zambia and Zimbabwe and that of South Africa will be made In as much as South Africa is more progressive in terms of the Constitution the question still remains whether customary law and certain customary law practices do not undermine or circumvent the ideals of the Constitutio
Comparative analysis of the legal framework for adoption under African customary law
No full textMagister Legum - LLMWhile there is a comprehensive legal framework for the adoption of children under statutory
law in Nigeria, South Africa, and Botswana, there is far less clarity on customary law adoption.
This study explored how the legal framework of these countries provide for customary law
adoption. It also examined the extent to which the rights of adopted children are protected,
as mandated by international and regional human rights instruments. The study reveals that
the legislative framework on adoption in the sampled states does not formally accommodate
customary law adoption. Many children in these countries live in rural communities practicing
customary law, with the majority of them being born in families that struggle with poverty
and gender inequality. The violation of fundamental human rights of children adopted under
customary law in some Nigerian communities is treated with contempt
Incorporating customary courts law, customary courts rules and extracts from laws enforceable by customary courts
Get PDFThe Customary Courts Law, the Rules of Court and some of the Legislation which Customary Courts of Grade “C” have to administer. It is meant for the guidance of members and court clerks of Grade “C” Customary Courts. The purpose of these notes is to explain in simple terms the way a court works in the ordinary sort of case. The notes are not law so the court should not quote them, as the reason for doing anything, the court records or in a decision.Notes for Guidance.... 1
The Customary Courts Law....23
The Customary Courts Rules ....51
Extracts from Laws Enforceable by Customary Courts .....97
Specimen Charges.....147
Specimen Record ...153
List of Customary Courts .....15
Customary Law: The Way Things Were, Codified
No full textThe author explores the meaning of customary law from its most general meaning to the meaning and application within various tribal courts. Mr. Rosser discusses the weight of customary law when choice of law and conflict of law issues arise within tribal courts. He discusses the challenges in uniformly applying customary law. He also discusses the challenges in substantiating customs when presented to a tribal court, including the use of experts. Mr. Rosser highlights the complexity and variance of customary law between tribal courts while emphasizing the importance of tribal jurisprudence. Finally, the author provides an appendix of rules and rights derived from the customary laws of various tribes
Customary law
No full textAll countries around the world have social norms that regulate behaviour and structure the decisions of individuals. In many countries, these are sufficiently weighty as to fall into a category that we refer to as customary law. Customary law exists in places as diverse as Australia, sub-Saharan Africa, Asia, Melanesia and the Western Balkans. Customary law is a body of rules governing personal status, communal resources, and local organization. It can determine access to land and water, the pool of eligible marriage partners, and what a child or a spouse inherits. It is, therefore, socially and economically important. Customary law can be conceived of as a very strong social norm, and while it is possible to break that norm, the consequences, both social and economic, are so high as to prevent noncompliance. It is a normative order formed by rights and obligations controlling access to community and personal resources. Customary law is not exclusive and exists in hybridized forms, layering onto statute law in both rural and urban areas. It is complex, fluid, and resilient, differing across communities and reflecting social hierarchies and power. Customary law is typically unwritten, or incompletely systemized, enabling dynamism and adaptation in its application (Sage and Woolcock 2012).
Much of what we know about customary law comes from the study of post-colonial societies. Customary law in colonial regimes was used as a tool of administering indigenous populations and was encouraged, transformed, and sometimes even constructed in ways to assist with domination and rule (Chanock 1991, 1998; Joireman 2011; Mamdani 1996). Colonial policies established communal land rights based on customary law, empowered a cadre of local leaders, and enabled customary dispute resolution institutions. After colonization, customary law often became embedded in the formal legal systems of independent states through explicit recognition, case law, or the use of assessors.
The use of customary law in colonial and post-colonial settings is distinct from customary law in socialist settings in which customary norms were allowed to continue insofar as they did not interfere with public law. To be explicit, customary law thrived and developed under colonization because it controlled access to important resources such as land, timber, water, and labour. The use of customary law under colonial regimes gave it a power that endured into the post-colonial era. Customary law in post-communist states is slightly different. Customary law survived the Soviet era and efforts to supplant its use in both family life and the control of resources (Edgar 2004; Joireman 2014; Upton 2009). In both post-colonial and post-communist settings, customary law clearly forms group identity and practices
Federal Restrictions on Tribal Customary Law: The Importance of Tribal Customary Law in Tribal Courts
No full textThis article examines the adverse effects of federal case law and legislation on tribal courts and tribal courts’ ability to incorporate tribal customary law. Tribal customary law is the law given to tribes by holy deities which governs tribal ways of life. It is important to maintain tribal customary law because it strengthens tribal communities’ identities and cultural foundations. While Supreme Court precedent has, at different times, both restricted and promoted tribes’ ability to use tribal customary law to adjudicate the cases of tribal members, federal legislation including the Major Crimes Act, the Indian Civil Rights Act, the Tribal Law and Order Act, and the Violence Against Women Act continues to restrict tribes’ ability to apply customary law in tribal courts. To illustrate one way in which current federal Indian policy limits tribes’ ability to use customary law, the author highlights the ways in which two-spirit tribal members are excluded and ignored by the protections established in the Violence against Women Act. As the use of tribal customary law is critical to the maintenance of tribal sovereignty, this article advocates for corrections to these legislative restrictions to promote tribal court’s use of tribal customary law
Indigenous Customary Law Forum
No full texttag=1 data=Indigenous Customary Law Forum.
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tag=10 data=p.10 Recognition of Indigenous Customary Law: the way ahead, by Alan Rose. p.20 Indigenous Customary Law and Family Law, Alastair Nicholson. p.42 Customory Law in the NT, Steve Hatton. p.51 Customary law and human rights, Michael Dodson. p.57 Customary law as a vehicle for community empowerment, Lois O'Donoghue.
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tag=32 data=ROSE, ALAN%NICHOLSON, ALASTAIR%HATTON, STEVE%DODSON, MICHAEL%O'DONOGHUE, LOISp.10 Recognition of Indigenous Customary Law: the way ahead, by Alan Rose. p.20 Indigenous Customary Law and Family Law, Alastair Nicholson. p.42 Customory Law in the NT, Steve Hatton. p.51 Customary law and human rights, Michael Dodson. p.57 Customary law as a vehicle for community empowerment, Lois O'Donoghue
Putting old wine in new skins: the customary code of Lerotholi and justice administration in Lesotho
No full textAlthough the interaction between the western colonizers and the African indigenous populations in the early eighteenth and nineteenth centuries produced responses that were mostly inimical to the development of African customary law, the thrust of the onslaught against its principles was somewhat diminished by political considerations. Undoubtedly, the significance that African customary law acquired during this period was a measure of the purpose that the colonial project found in it
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