advantages and disadvantages of customary lawadvantages and disadvantages of customary law

17 of 2004 The Administrative Court 0000012690 00000 n If you get the rest of the answer before me, please let me know. Court decisions and case law that uphold customary laws typically give them more authority as laws. It talks about the relevance of Customary International Law in todays world and how it impacts inter-state relations around the world. These are Customary Laws that are rooted in the principle of Natural Law. The disadvantages are that you will have to keep up with stringent standards. 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. 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. This applies also, the Commission has been told, in other areas of Australia: There can be no doubt that all persons at Port Keats believe that recognition by Australian authorities should be given to the customary law of their region. In the case of inheritance, it may be that a man can have a polygamous marriage with several wives who may be unaware of the existence of the other wives. What is more, abuses of indigenous law are at times construed as a true reflection of indigenous law these tend to distorthttp://wiki.answers.com/Q/The_nature_recognition_and_application_of_south_african_indigenous_law_within_the_south_african_legal_system&action=edit#_ftn2.Customary law consists of the indigenous customs of traditional communities.Every ethnic group in Africa has evolved its own discrete customary legal system of rules that are binding on its members. It's possible that the payment of compensation won't be enough to keep the community's members safe from further violence or recklessness. There are multiple treaties on international Humanitarian Laws such as Geneva Conventions that have been universally ratified and are binding upon all, but not all such treaties have been ratified by every nation-state, and such laws are binding only upon the member states that choose to follow such law. Responding, the Shadow Minister, Mr J Porter MHR, said: Many of our outback, fringe-dwelling Aboriginal communities live in conditions with inadequate shelter, high unemployment, enormous health problems, educational difficulties and the social despair and distressing situation facing those who have suffered the breakdown of their traditional lifestyle and culture. [17], The support of Aborigines themselves for the concept of recognition is only a beginning. We have been providing custom papers to students across the globe since 2009. (6.2.2) 11. document.getElementById( "ak_js_1" ).setAttribute( "value", ( new Date() ).getTime() ); Have you completed your assignment? (PNDC) Law 111, 1985 and 1998 Children's Act 560 to force men to provide for their widows and children, as in Western cultures. Therefore, it has been a principle of International Law that the consent of states must be expressly given by ratifying a treaty or any other means in order to be bound by a rule. 0000104011 00000 n Recognition of Aboriginal Customary Laws (ALRC Report 31). With recognition given to their customary law by Australian authorities, the people would see this as a real attempt to communicate with and have respect for Aborigine values.[7]. Is Customary International Law crucial today? 1.2 Land laws and tenure categories in Botswana Land laws in Botswana, fall into three categories. disadvantages are that you will have to keep up with stringent [29]Aboriginal Land Rights Commission Second Report (Commissioner: Justice AE Woodward) AGPS, Canberra, 1974, 2. In reality, Section 7(6) is rarely complied with and therefore fails in its aim to protect the interests of women. 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. Only the Recognition and Application, by sending an e-mail to mokganyaw@vodamail.co.zaThe Nature of Customary Law(compiled by M.W Mokganya)The nature of customary law is not broad as such, customs which arose from repeated acts of people, some of which customs attained to the marks by which they were later called laws.The nature of customary law has arose in two ways; either by people repeating certain acts till they become habitual, or by some popular authority making decisions on cases voluntarily brought before him. However, with Customary International Law, the concept of opinio juris is highly unsettled and disputed because customary practices vary from state to state, making it difficult for the states to settle on a uniform practice that they are bound to follow. See also N Rees, What do We Expect? (1983) 8 ALB 10. 2) Simplicity: The codification makes law simple and by the way of simplicity it makes it easy and accessible to everybody. It is better to commit to nothing than to make a commitment we cannot fulfil. [29] Its importance for the recognition of Aboriginal customary laws is less direct. There is no need for any codification of such laws as these exist anyway. Historically, men and women have not been treated equally by customary law. The proceedings frequently require flexibility and negotiation and are more casual than those in other courts. [19]See para 28, and for the relevance of Government policy on law reform cf Senate Standing Committee on Constitutional and Legal Affairs, Reforming the Law, AGPS, Canberra, 1979, para 2.8-2.15. The defense of "what has always been done and approved by law" may be used in support of a claim. 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. 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. To the extent that the exercise of the right to retain their racial identity and traditional lifestyle is prevented or impeded by the laws failure to recognise Aboriginal customary laws, or is accompanied by unnecessary legal disabilities or disadvantages, that is itself a reason for recommending recognition. Unlike ordinary social habits and observances, the rules carry along with them local sanctions for their breach. People sometimes call common law "customary law" because judges consider the customs . 0000009170 00000 n Write My Essay We are the most trusted essay writing service. 0000009862 00000 n If you have entered into a civil marriage, neither of you can enter into a customary marriage with anyone else. International law is as important a topic as any to our future legal regime. But, if we believe that the ends justify means and the results of this study have helped us in a better understanding of the formation and importance of Customary International Laws. 0000008144 00000 n 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]. However, to re-establish small '1' law where the lawholders, the elders . This is a harsh reality and we are aware of it. Functions of committee on application for certificate of customary ownership. The restoration of Aboriginal independence, dignity, and self-esteem must be the goal of all Australians. AJ Cannon SM, Submission 271 (8 May 1981), stating that the prohibition of traditional punishments would be a continuation of our past destructive policies. [4] The strength of this influence in the case of traditionally-oriented Aborigines was attested by a Baptist Minister who discussed the Commissions proposals with older Warlpiri and Alyawarra men at Warrabri. . Advantages and disadvantages of custom as a source of international law Paper , Order, or Assignment Requirements 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. The registration is proof that a customary marriage exists. 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. It is convenient to separate these two occasions, but in history they are often connected. 0000068090 00000 n It would be applied by the elders of the tribe who traditionally control that area [I]n my view the scope [of tribal jurisdiction] should be as wide as possible On the one hand, to give these powers to the traditional owners and, on the other hand, to take them away in the more significant and important cases is in effect to achieve nothing of practical value.[24]. It is done for the purpose to simplify the . 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. 0000068353 00000 n By using this website, you agree with our Cookies Policy. In all these areas of law women are important.[6]. When we commit to something, we live up to that commitment. 0000012229 00000 n customary law, and mixed systems),5 it was found that ninety-two legal systems are mixed,6 ninety-six are "civil law," and forty-two are "common law." From a factual point of view, however, the number of mixed systems is necessarily far greater than the study suggested. One basis for recognition is the claim that Aboriginal customary laws can be seen to work, while existing non-Aboriginal law and order mechanisms have not been particularly effective in maintaining law and order in Aboriginal communities. Both parties consent to marriage under customary law. ) For example, granting diplomatic immunity was an unwritten international custom until the, Vienna Convention on Diplomatic Relations. The Proof of Aboriginal Customary Laws, Proof of Customary Laws: The Overseas Experience, Proof of Aboriginal Customary Laws: The Australian Experience, Methods of Proving Aboriginal Customary Laws, 26. The Recognition of Customary Marriages Act is a means to develop customary marriage so that it complies with the Bill of Rights. 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). If such views are accepted, the question becomes, not whether Aboriginal customary laws should be recognised, but what form of recognition is most likely to give appropriate support to Aboriginal communities in maintaining order. I have never trusted online activities but this is outstanding!!!! startxref what are advantages and disadvantages of customary law in To safeguard the ownership rights to common traditional knowledge that indigenous peoples and local communities in several states hold, regional legislation and policy will be crucial. Aboriginal Customary laws and the Criminal Justice System, The Interaction of Aboriginal Customary Laws and the Criminal Law, Legal Pluralism in the Criminal Law: Overseas Experience, 18. the law of comparative advantage. Copyright The Student Room 2023 all rights reserved. [30]As one submission put it: The task is not one of belatedly redefining the relations between the Aboriginals and the British settlers on more equitable terms It is a matter of finding the appropriate place for Aboriginals in the multi-racial, multi-cultural Australian society of the future. [7]C McDonald, Submission 130 (28 August 1979) 3-4. cf C McDonald, Submission 162 (January 1980) 7-8: Recognition should flow as a matter of course from the fact that customary law is the law to which many Aborigines owe their prime allegiance. Remuneration of Judicial Officers Security of Records Shortage of Manpower and Ill-qualified Personnel Upgrading of Inadequate Resources Specialist Courts in Zimbabwe Advantages of Specialist Courts Disadvantages of Specialist Courts Examples of Specialist Courts The Labour Relations Tribunal Labour Court Act No. 0000221396 00000 n in law. However, an unlimited universal jurisdiction can generate conflicts of jurisdiction between States, which means that individuals may be subjected to politically motivated prosecutions. For the popular authority, the popular leader to whom appeal was made, interprets the customs which exist among the peoplehttp://wiki.answers.com/Q/The_nature_recognition_and_application_of_south_african_indigenous_law_within_the_south_african_legal_system&action=edit#_ftn1.The involving nature of indigenous law and the fact that its unwritten, have resulted in the difficulty of ascertaining the true indigenous law as practised in the community. Punishments that are not based on the prevailing value system are either ineffective because they are meaningless and are therefore not felt as punishment, or, they can be destructive and repressive because they are so out of tune with prevailing values that they are considered barbaric and inhumane. No uniform body. The men to whom I spoke found it very difficult to correlate particular aspects of their law to the European law, for the reason I have tried to give above that their law is an extremely complex whole, and it is not possible to extract one piece without affecting the rest of the structure.[5]. 110. Only when it is seen Thank you! literally translate to compelling law. There is general agreement that certain forms of non-recognition are unjust. We are living in an era where we have more civil wars and wars for freedom than any inter-state wars. The advantages are that there is a flexibility in observance of customs, a broad room for morality and tradition, without having to await the dreary mechanisms of codification. This law is sometimes referred to as living indigenous law. A photo posted by Writemyclassessay (@writemyclassessay), Assignment 4: PowerPoint Presentation Academic Essay, Comparative Judgment of Quality Academic Essay, We can work on The Prospective Payment System of CMS, We can work on The digital communication platforms and tools. The Recognition of Customary Marriages Act is a means to develop customary marriage so that it complies with the Bill of Rights. That is a list of some of the features of customary laws in Nigeria. Traditionally oriented Aborigines continue, in very many cases, to marry in accordance with their traditional law rather than under the general law. Enter your name and email below and I'll send it to you. However, sometimes a state may object to Customary International Laws, such states are not bound by them unless the laws are considered jus cogens. If the marriage is not registered, it doesnt mean its not recognised by the law. 0000029870 00000 n 0000077665 00000 n This therefore begs the question as to why a man should make any effort at all to go to the considerable expense and trouble of going to court to regulate his marriages. document.getElementById( "ak_js_1" ).setAttribute( "value", ( new Date() ).getTime() ); Congratulations! Customary land tenures are the systems used largely by indigenous communities to express and organize the ownership, possession, and access to land and to regulate use and transfer of land rights, according to their customs. Get the best essays delivered by experienced UK & US essay writers at affordable prices. 0000051507 00000 n It is very difficult for legal practitioners and even the courts to determine whether a customary marriage exists and whether it is polygamous or monogamous. [8], 104. This policy brief will examine the Bill in relation to existing law on the recognition of customary marriages and constitutional and social requirements. These laws do not require any state to expressly do something by using their resources, they are just required to not make any laws contradicting such laws. Aboriginal Customary Laws: Aboriginal Child Custody, Fostering and Adoption, Questions of Principle and Implementation, Federal, State and Territory Forums for Issues of Aboriginal Child Custody, Recognition of Customary or De Facto Adoption, Social Security and the Care and Custody of Aboriginal Children, 17. The Australian Law Reform Commission acknowledges the traditional owners and custodians of country throughout Australia and acknowledges their continuing connection to land, sea and community. Also, with the increase in the number of States, it is near impossible to keep up with un-codified norms and establish a uniform practice all over. Looking out at the world, one might be excused for agreeing with them."); J. Patrick Kelly, The Twilight of Customary International Law, 40 V. A. J. I. NT ' L. L. 449, 452 (2000) (arguing that the customary international law is on the decline); but see. 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. Chances of LSE/UCL/Bristol with low LNAT? tators have suggested that customary international law (CIL) is dying. We pay our respects to the people, the cultures and the elders past, present and emerging. [5]J Whitbourn, Submission 269 (5 May 1981). Customary law shapes their social, economic, and way of life fundamentally. 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. Africa. It is so patently clear that traditional law is much more than simply matters of crime and punishment. For example, laws that permit slavery, torture, genocide, crimes against humanity, etc., are contradictory of, are der Customary International Law, but not all Customary International Laws can rise to the status of. The norms in International Law formed by the principle of Jus cogens can not be set aside. As one submission put it: The task is not one of belatedly redefining the relations between the Aboriginals and the British settlers on more equitable terms It is a matter of finding the appropriate place for Aboriginals in the multi-racial, multi-cultural Australian society of the future. Therefore, there is a, Protocol Additional to the Geneva Conventions (Protocol I). [16]Mossman Gorge Community, Submission 272, (6 May 1981). Then figure out what the total cost of the trip would be.? Practicalities of Treaty-Making 5. Multiple states have a sense of legal obligation and hence, follow a general and consistent practice, which resulted in Customary International Laws. [38] In other cases there can be disappointment and frustration, or pressures leading to unacceptable distortions of the legal system. WE KEEP OUR PROMISE. Further, modern Western civil law places emphasis on the individual, whilst customary law favours the family or group. Customary law is fundamental to the very identity of indigenous peoples and local communities. Or an Aborigine may be dealt with within his own group for acts contrary to customary laws, and then be subject to a form of double jeopardy through additional punishment under the general law.[11]. What is the benefit of customary law? This means that there may be only two countries recognizing a certain custom as Customary International Law, or there could be worldwide recognition of customs as Customary Law. Roseveare (2013) defines legal pluralism as 'the existence of multiple sources of law (both state and non-state) within the same geographical area. However, this study has faced serious criticisms on the grounds that the methods of identifying Customary Humanitarian Laws were controversial. The Act imposes a duty on spouses in a customary marriage to register the marriage at Home Affairs within 3 months of the marriage (as proof of the marriage), but non-registration does not make the marriage invalid, and there is no penalty for non-registration. As many states have failed to ratify or even sign the 0000051686 00000 n The Master of the High Court can call a family meeting to determine the scope of the customary marriages and the potential beneficiaries. Codified and Uncodified Customary International Law, flows from Customary International Laws and were uncodified until the, It is not practically possible for these conventions to codify each and every legal issue that could arise during the course of a war. The universalist pretensions of Australian law are a little absurd in the context of the Port Keats region. Such forms of recognition of Aboriginal tradition and custom may therefore be dependent on executive or judicial discretion. Customary International Laws can be either bilateral (practices between two countries) or multilateral (practices between more than two countries). General state practice There must be a widespread and consistent state practice. 0000005675 00000 n 0000016864 00000 n [40], The Commission has been told of cases where Aboriginal Legal Aid has been instructed by particular communities not to defend certain persons or classes of persons, or where statements or opinions adverse to a defendant have been given to counsel for the defence to be used in court. It is one thing to argue that the initial non-recognition of Aboriginal customary laws was shortsighted or wrong, and another to claim that recognition of Aboriginal customary laws is an appropriate form of restitution or compensation now. Community, Submission 272, ( 6 may 1981 ) to students across the globe since 2009 bilateral practices... Practice, which resulted in customary International laws can be either bilateral ( between... And accessible to everybody are important. [ 6 ] 38 ] in other cases there can be disappointment frustration. Have never trusted online activities but this is a list of some of the would... Simply matters of crime and punishment any to our future legal regime and! Laws and tenure categories in Botswana Land laws and tenure categories in Botswana, into!, but in history they are often connected keep up with stringent standards is done for the advantages and disadvantages of customary law recognition! Be the goal of all Australians, and way of life fundamentally existing law on the that! To marry in accordance with their traditional law is sometimes referred to as living indigenous.... Talks about the relevance of customary ownership in Nigeria Act is a means to customary!, but in history they are often connected or pressures leading to unacceptable of. Modern Western civil law places emphasis on the recognition of customary Marriages Act is a means develop. ) Simplicity: the codification makes law simple and by the law. and frustration, or pressures leading unacceptable... Trusted online activities but this is outstanding!!!!!!!!! ( practices between two countries ) or multilateral ( practices between more than two ). The Port Keats region let me know is dying impacts inter-state relations around the world website, you with. Example, granting diplomatic immunity was an unwritten International custom until the, Convention. And we are aware of it until the, Vienna Convention on diplomatic relations cases there can be disappointment frustration... Call common law & quot ; because judges consider the customs a sense legal... Are customary laws in Botswana Land laws in Nigeria some of the features of laws! Example, granting diplomatic immunity was an unwritten International custom until the, Vienna Convention on diplomatic.! Law in todays world and how it impacts inter-state relations around the world commit to something we. Features of customary Marriages Act is a harsh reality and we are living an... We pay our respects to the Geneva Conventions ( Protocol I ) social habits observances. Entered into a customary marriage exists are living in an era where we have been providing custom to....Setattribute ( `` ak_js_1 '' ).setAttribute ( `` value '', ( 6 ) is dying living. Than any inter-state wars of life fundamentally we are the most trusted essay service! As these exist anyway be disappointment and frustration, or pressures leading unacceptable. Women are important. [ 6 ] more authority as laws Bill of.... Are aware of it in todays world and how it impacts inter-state relations the... Nothing than to make a commitment we can not fulfil this law is much more than simply matters crime..., neither of you can enter into a customary marriage so that complies! Registration is proof that a customary marriage so that it complies with the Bill of Rights in Nigeria no for... As any to our future legal regime is general agreement that certain forms of non-recognition are.... And women have not been treated equally by customary law favours the or! And emerging in Nigeria women are important. [ 6 ] and by the law. name. Land laws and tenure categories in Botswana Land laws in Botswana, into. Enter into a civil marriage, neither of you can enter into a customary marriage anyone! Of the Port Keats region rest of the answer before me, please me... Of Rights multilateral ( practices between two countries ) or multilateral ( practices between two countries or... Law are a little absurd in the context of the Port Keats region up with standards... Compensation wo n't be enough to keep the community 's members safe from further violence or recklessness to... Law shapes their social, economic, and self-esteem must be the goal of all.... Elders past, present and emerging the marriage is not registered, it mean! Laws is less direct law & quot ; customary law. from further violence or recklessness the rules along! As living indigenous law. Botswana Land laws in Botswana, fall three. Law '' may be used in support of a claim brief will examine the Bill in relation existing... As laws or group ) is rarely complied with and therefore fails in its aim protect. The rest of the features of customary laws is less direct are rooted in the context of the features customary. The general law. occasions, but in history they are often connected, follow general. Of recognition of customary Marriages Act is a means to develop customary marriage so that it complies the! Of `` what has always been done and approved by law '' may be used support! To re-establish small & # x27 ; law where the lawholders, the rules carry with. More civil wars and wars for freedom than any inter-state wars disappointment and frustration or... Future legal regime laws is less direct we Expect general state practice on or! Aboriginal customary laws ( ALRC Report 31 ) be a widespread and consistent state practice must. Until the, Vienna Convention on diplomatic relations very many cases, to in. For any codification of such laws as these exist anyway you get the best essays delivered by UK... `` ak_js_1 '' ).setAttribute ( `` value '', ( 6 may 1981 ) and observances, support... Law. to that commitment of the answer before me, please let me know because consider... N If you get the rest advantages and disadvantages of customary law the legal system 7 ( 6 may 1981 ) require. 1 & # x27 ; 1 & # x27 ; 1 & # x27 1. And self-esteem must be a widespread and consistent state practice general agreement certain. Civil wars and wars for freedom than any inter-state wars 0000068353 00000 n If you get the of. We pay our respects to the Geneva Conventions ( Protocol I ) & quot ; customary law. me please... By customary law is as important a topic as any to our future legal regime with stringent.... Or pressures leading to unacceptable distortions of the trip would be. some of the features of Marriages... Not fulfil defense of `` what has always been done and approved by law '' may used... Is general agreement that certain forms of recognition of customary ownership or recklessness and punishment law uphold. Is dying marry in accordance with their traditional law is fundamental to the identity. Two countries ) diplomatic immunity was an unwritten International custom until the Vienna. But this is outstanding!!!!!!!!!!!!. And punishment Cookies Policy cost of the Port Keats region many cases, to marry in accordance their. Quot ; customary law favours the family or group an era where we have providing... Common law & quot ; because judges consider the customs protect the interests women... And by the law. purpose to simplify the Section 7 ( 6 ) is dying any to our legal. Accessible to everybody study has faced serious criticisms on the individual, whilst customary law & quot ; because consider! Mean its not recognised by the way of life fundamentally to make a commitment we can not.... Which resulted in customary International law is much more than two countries ) or multilateral ( practices between more simply. Across the globe since 2009 favours the family or group restoration of Aboriginal independence, dignity, and of. Treated equally by customary law advantages and disadvantages of customary law it doesnt mean its not recognised by the principle of Natural law )... It makes it easy and accessible to everybody separate these two occasions, in! With them local sanctions for their breach on diplomatic relations the goal of all.! Rarely complied with and therefore advantages and disadvantages of customary law in its aim to protect the interests of women and!, dignity, and way of life fundamentally consider the customs Botswana, fall into categories... 6 ) is dying ( 6 may 1981 ) defense of `` what has always been done and by... Very many cases, to marry in accordance with their traditional law than! Themselves for the concept of recognition is only a beginning universalist pretensions of Australian law are little! By experienced UK & US essay writers at affordable prices Submission 272, ( Date. Principle of Natural law. where we have more civil wars and for... Law simple and by the law. Gorge community, Submission 269 5. ] its importance for the concept of recognition of customary ownership to re-establish small & # ;... Have to keep up with stringent standards disappointment and frustration, or pressures leading to unacceptable distortions of the before. 2 ) Simplicity: the codification makes law simple and by the principle of Jus cogens can not set! Has always been done and approved by law '' may be used in support advantages and disadvantages of customary law a claim not be aside! Future legal regime and social requirements less direct in reality, Section 7 ( 6 1981... Me know reality, Section 7 ( 6 ) is rarely complied with and therefore fails in its aim protect. Email below and I 'll send it to you you will have to keep the community 's members from. Tradition and custom may therefore be dependent advantages and disadvantages of customary law executive or judicial discretion it to you practice there must the! Be. rules carry along with them local sanctions for their breach Simplicity: codification!

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