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. [40]Sub-Committee of Queensland Law Society, Submission 301 (22 June 1981) 13. 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). What are the advantages of the custom? Customary international Humanitarian Law is a part of Customary Law, it refers to uncodified norms of public International Law, that governs the conduct and legality of armed conflicts which is why it is also known as the law of war. This practice has been common in sentencing, but has occurred in other areas, including the admissibility of evidence, court practice and procedure, the exercise of prosecutorial discretion, and the recognition of traditional marriages for particular purposes. 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. what are advantages and disadvantages of customary law in 0000051686 00000 n Thus, they constantly navigate in a hybrid ideological sphere that comprises religious beliefs, traditions and state values. Adverse Consequences of Non-Recognition. While we offer high-quality products, we understand that students and researchers have other financial obligations. Such practices are unwritten and mostly based on humanitarian principles and inter-state diplomatic relations. The given table illustrates the major advantages and disadvantages of customary law. %PDF-1.7 % The advantage of customary law is that it is not necessary for a State to formally accept a rule in order to be bound by it, as long as the overall State practice on which the rule is based is "widespread, representative and virtually uniform" and accepted as law. Unsure whether her marriage was valid, Sthembile sought legal answers. 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. 2.1 ZAMBIAN LAW The Constitution: At the time of TGCC program design, Zambia's 1991 Constitution was the The reverse is equally true.[23]. The law was passed in relation to true islamic values, arguing that the discrimination was a byproduct of traditional values and true islamic values supported gender equality. Customary law is an adaptable system and can vary from region to region, as well as from family to family. 0000009437 00000 n Customary law can cover a wide range of topics, including how natural resources are used and accessed, the rights and responsibilities associated with land, inheritance of property, how spiritual life is lived, the preservation of cultural legacies and knowledge systems, and many other topics. It gave me a good opportunity to prepare well for exams. There is no need for any codification of such laws as these exist anyway. He first mentioned it in his book 222 0 obj <> endobj ITH strong ties to their culture, Sthembile and Themba decided to have a traditional wedding. 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. trailer Advantages and Disadvantages of Customary Law The given table illustrates the major advantages and disadvantages of customary law Codification of Customary Law The customs of medieval citizens eventually gave rise to the present codification of civil law. 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]. Their power is eroded whenever offences committed within the community are tried and punished by someone else and a strange punishment is imposed. Such as- the right to life and liberty, etc. To Treat Equally. We offer competitive prices and discounts to loyal customers. Write My Essay We are the most trusted essay writing service. The states by way of ratification are bound to follow such law according to the doctrine of opinio juris. Rich people can easily buy their way out of trouble when wrongdoing is punished through compensation. Customary law is an adaptable system and can vary from region to region, as well as from family to family. 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. There will therefore be less chance of it being ignored in the day-to-day administration of communities.[31]. The parties have less control in deciding the outcome. In the case of Portugal v. India, the existence of bilateral Customary Law was recognized for the first time by the International Court of Justice. [26] There can be no doubt of the reality of these wrongs. Humanitarian law also flows from humanitarian principles and is aimed to cut the ill effects of war. The Recognition of Customary Marriages Act is a means to develop customary marriage so that it complies with the Bill of Rights. This field is for validation purposes and should be left unchanged. One is that it provides a system of rules that everyone in a society must follow. Generally, the customary law rules among ethnic groups speaking a common language tend to be similar, but the rather significant differences that can sometimes exist make it misleading to speak of a uniform customary law rule applicable to all members of the language group.http://wiki.answers.com/Q/The_nature_recognition_and_application_of_south_african_indigenous_law_within_the_south_african_legal_system&action=edit#_ftn3The_nature_recognition_and_application_of_south_african_indigenous_law_within_the_south_african_legal_systemGilbert T Sadler- The relation of custom to LawThe_nature_recognition_and_application_of_south_african_indigenous_law_within_the_south_african_legal_systemPara 154 Bhe v Magistrate of Khayelitsha 2005 (1) SA 580 (CC)The_nature_recognition_and_application_of_south_african_indigenous_law_within_the_south_african_legal_systemPaul Kuruk- African Customary Law and Protection of Folklore-Vol XXXVI,No. 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. By using this website, you agree with our Cookies Policy. It is usually necessary to examine several court cases decided over time to understand the common law on any specific topic. [38] In other cases there can be disappointment and frustration, or pressures leading to unacceptable distortions of the legal system. 0000068353 00000 n 0000018297 00000 n [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. Stimulates the economic development within communities. They are in a position to turn down the benefits of cooperation with other states and the responsibilities of participating in the community under law. It is one of the elements that are necessary to set up a legally binding Customary Law. 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. Conclusions and Implementation: The Way Forward? Behaviour and misbehaviour flow logically from the Dreaming, for Dreaming is a unitary principle involving determinism. What is the benefit of customary law? [13]Commission of inquiry into Poverty, Second Main Report, Law and Poverty in Australia (Commissioner: R Sackville), AGPS, Canberra, 1975 280-1. Other Arguments. Some United States Supreme Court justices appear to use international law, including unratified customary international law, (1) as a source upon which to draw in defining the category of citizens constitutionally subject to the death penalty. (id, 3494). [33]HA Wallwork, Submission 35 (3 August 1977) 1; Eggleston, 411. We handle assignments in a multiplicity of subject areas including Admission Essays, General Essays, Case Studies, Coursework, Dissertations, Editing, Research Papers, and Research proposals, A photo posted by Writemyclassessay (@writemyclassessay) on Oct 13, 2016 at 11:26pm PDT, We handle papers in a multiplicity of subject areas including Admission Essays, General Essays, Case Studies, Coursework, Dissertations, Editing, Research Papers, and Research proposals. This shows that there is a mutual understanding between states and also within a state. Customary law tribunals are inexpensive, accessible, and speedy. 0000086954 00000 n 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. International Medical University - Consequences for Failing Semester 1, Brownies, books and planning a wedding - your favourite fiancs 2nd blog , Law Applicants 2023 entry - discussion thread, Rejected from Kings Law, do I have a chance at LSE and UCL. This is connected to the very idea that 0000012690 00000 n [3] Circle sentencing is part of the court process and results in convictions and criminal records for offenders. We can observe that the pattern of states behaviour is changing drastically from a custom driven state to a rule of law. [6]D Bell and P Ditton, Law: The Old and the New. what are advantages and disadvantages of customary law in However, an unlimited universal jurisdiction can generate conflicts of jurisdiction between States, which means that individuals may be subjected to politically motivated prosecutions. But an unregistered marriage can be invalidated if the husband marries a second wife. The relationship between the European settlement of Australian and its impact on Aboriginal peoples, and the present position of Aboriginal people, was discussed in Chapter 5. Leaders gained authority and legitimacy from people who voluntarily affiliated to them. 0000096907 00000 n Advantages and disadvantages of Heaviside-Lorentz units Advantages. Creative Code. What are advantages and disadvantages of customary law? [31]JL Wauchope, Submission 384 (25 July 1983). Africa. sign. courts of law (4.1) 10. The Master of the High Court can call a family meeting to determine the scope of the customary marriages and the potential beneficiaries. 0000012202 00000 n However, non-compliance does not render the marriage void. treaty, the ICCPR remains just that, a treaty. It depends very much on the judge, magistrate or official in the particular case, and therefore tends to be inconsistent. Recognition is the first step in coming to terms with the real; it is the necessary first step in accepting the fact that an Aborigine may have different principles, a different code and concept of the conduct of his life . General Issues of Evidence and Procedure, 24. 0000058184 00000 n 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. Australian Government Policy Towards Aborigines. Understanding the Different Marital Regimes in South Africa, Professional Divorce Attorneys: The Cost of an Effective Legal Separation, The truth about the bond application process. [12]Sub-Committee of Queensland Law Society, Submission 301 (22 June 1981) 1. cf CD Rowley, Outcasts in White Australia, Penguin, Ringwood, 1972, 3. Under the influence of 'mixed jurisdiction' studies and legal pluralism, however, there is growing awareness that mixed systems, whether restrictively or expansively defined, are a widespread and recurrent reality. 0000058475 00000 n [36]WJ Faulds, Crown Counsel (Tas), Submission 275 (8 May 1981) 2 (in the context of spousal non-compellability). Once the marriage is valid and in existence, the marriage can only be dissolved by a court through a decree of divorce, as in the case of a civil marriage. 0000096467 00000 n The pressure of community opinion is, in the absence of regular procedures, often directed at the Aboriginal legal aid organisation or its lawyer, putting defence lawyers in a difficult situation of conflicting interests: Legal Aid face an impossible dilemma in deciding whether they can put forward community views adverse to their client and still honour their professional obligation in the solicitor/client relationship.[39]. We regard it as necessary, that the existence of such laws should be brought into consideration when tribal Aboriginal people stand on trial in Australian courts.[32]. If you have entered into a civil marriage, neither of you can enter into a customary marriage with anyone else. | Powered by, Importance of Customary International Law. That is a list of some of the features of customary laws in Nigeria. [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. Aboriginal Customary Laws: Recognition? Advantages and Disadvantages of Alternative Dispute Resolution Article Topics Civil Law Administrative Law False Claims Trial Strategies Real Estate Insurance Intellectual Property Legal Writing Bankruptcy Ethics and Professionalism Discovery Taxation Transportation Technology Family Law Environmental Law Business Law Labor Law Criminal Law This is an estimate of how much your order will cost. I have to say that you have exceeded my expectations. Advantages and Disadvantages of Dispute Resolution Processes In order to select the most appropriate process, it is important to understand and appreciate the advantages and disadvantages of the various dispute resolution processes. 0000018352 00000 n Customary court proceedings are usually conducted in local languages, and the principles involved are often easy for members of the community to understand. Science 6.2. Customary practices act as guiding lights in the absence of any proper, codified norms in treaties and conventions. We also emphasize on critical thinking as opposed to paraphrasing and word switching, so we avail copies of the material used to produce our custom papers. I found a tremendous depth of feeling in all discussions relating to their traditional law. [3] The reality and relevance of customary laws as a guiding force for many Aborigines became increasingly apparent during the public hearings and during the field trips. Compensation for Aborigines. Indigenous peoples' and local communities' social and economic structures, as well as their way of life, are fundamentally influenced by customary law. From region to region, as well as from family to family table illustrates the major Advantages and of... To determine the scope of the legal system control in deciding the outcome as well as from family to.. To life and liberty, etc out of trouble when wrongdoing is punished through compensation and to! 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P Ditton advantages and disadvantages of customary law law: the Old and the New disappointment and frustration or! The potential beneficiaries Essay writing service the ICCPR remains just that, a treaty of! Master of the legal system in all discussions relating to their traditional law judge, magistrate or official the. From a custom driven state to a rule of law any specific topic over time to the! Most trusted Essay writing service Submission 301 advantages and disadvantages of customary law 22 June 1981 ).! Of ratification are bound to follow such law according to the doctrine of opinio juris and... We offer competitive prices and discounts to loyal customers Cookies Policy committed within community! Region to region, as well as from family to family ] in other cases can... Judge, magistrate or official in the absence of any proper, norms... Knowledge laws and policies must reflect the commitment of national decision-makers to advancing such protection at the level. 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