Gurdur

This is on the philosophy of law especially as it touches upon the accomodation of the traditional law(s) of displaced native peoples, such as Native Americans, the Maoris of New Zealand, or Aboriginals in Australia.
I myself will be concentrating on the Aboriginals of Australia.

Basic ground facts:
You have a minority of Aboriginals in Australia (around 01.6 % of the total population).
Of that group, most live in the large cities, often in sub-standard conditions and poverty.
Of the small, small minority of that group who live in reserves or in tiny towns in the Outback, some live by more-or-less traditional law; raditional law that at times can shock people more used to "Western" concepts.

The question is, how much, and when, should traditional law be incorporated into the country-wide law ?
What should be its scope of coverage, and who gets covered by it ?

This already happens in ways you might never realise; and I'll illustrate that by looking at traditional British law.

British law provides a jurisprudence model for many other countries, including India, Tanzania, Kenya, Canada, etc. etc. etc.

It is the outcome of "high law" (medieaval law between nobility), "middle law" (the laws of the mediaeval Guilds, for example), and notably "common law", the formal recognition that there is a body of traditional law among the "commoners".
One formal example of this is the concept of a "common-law husband or wife".
If a man and a woman live together for at least 2 years without being formally married, they are recognised as being a common-law couple, something which is very important with regards to inheritance, divorce etc.

So as you see, dual law systems are not exactly new.

ju'iblex

i dont think we can use the example of English law when looking at integrating 'native' laws in to systems today.

high/middle/common law stems from the one original system in the first place, and it has had centuries in order to develop, and centuries more to be modified in to the <purportedly equal and unified> system it is today.

to be overly succinct, the UK is a class system the Australian is a cultural system. As such, i dont think its possible to compare the two.

how is this different to the idea of incorporating Aboriginal/Native law in with a modern system today?

a) cultural clashes as to what is appropriate punishment and drawing some sort of a middle ground there.

b)there is not only a cultural clash, but an age clash. It would be extraordinarily difficult to incorporate in to todays establishment practices which could be considered 'barbaric' etc.

c)there is the problem of where native law could and could not be exercised and on whom in those regions. Obviously, if we are going to talk about the UK we can see that all the peoples are generally of the same descent <even most of the minority groups have dealt with English colonisation at some stage> and no differentiation is necessary when passing such a judgement.

Dual systems may not be new, but trying to incorporate an ancient one in to a modern one <when i say modern, i mean the time beyond when racial segregation was an acceptable practise>, when it is so disparate from the western is definately new territory.

obviously i reiterated those problems when outlining the problem with the comparison. And this is indeed a difficult question to answer <it really has got me thinking>. Whilst i believe we should make the attempt to integrate levels of cultural law <but first we need a PM who will at least say sorry > into our system, its far beyond my abilities to define where that line lies. The logistics of regulating such a thing and determining who is and is not subject to it is near impossible. Especially considering the fact most Aboriginals are city-dwellers, and as such may have cast a lot of cultural law and practise behind them.

i hope that all makes sense.

Gurdur

It makes excellent sense --- but allow me to quibble with you on a vital point ?

My examples were chosen on the predicate that different classes are different cultures, very different cultures, and the dual law reflects that fact.

Plus, if you backed me into a corner, , I would suddenly spring out with the thought,
that under the British law system, much common law stems from the old "Saxon" law,
while the high law stems from the inter-French/Normandian law,

so it would in some instances be very much a cultural clash.

managalar

My take on this is, the present has afforded us the best possible opertunity to understand anything. This is true in any area (excluding history-which doesn't count) because we have the best resources of anyone in history, and those resources are being improved all the time. These resources allow us to study the impact of laws in great detail, and analize them from many directions including economic impact, psychological impact, cultural impact, health impact, and countless other long term effects. The ability to legislate effectively increases with technology and education, and like anything else improves with our clearing view of the universe and our place in it.

I almost think laws should have expiration dates, and reconsidered frequently to see how they could be streamlined, or optomized for freedom and a more secure future. This of course takes effort (resources) which might not be expendable on this luxury...but worth it if we can afford it.

old == needs reconsidered (not inherently bad, but we might do better for ourselves if we take another look at it)

ju'iblex

and whilst i do agree there is a difference in high and low culture, i would still argue in most circumstances they are different subcultures within the one.

and, upon your 'spontaneous' point on Saxon/French law, i would argue not only would it have been far easier centuries ago to combine the two systems <divide et impera>, but they both would have demonstrated similarities that would have made this process simpler. Considering the Roman occupation of Europe centuries beforehand, both of those cultures no doubt would have had that influence at the very least.

Hence, whilst there would be cultural clashes, there would be none quite to the extent of combining two which have developed completely seperately. And, at the time, the 'ethics' of such an action weren't needed to be thought over anywhere near to the level which would be needed today.

Hugo Holbling

I'd like to approach these questions by reference to an analogy to the EU. Where national laws differ, how much of and when should the uncommon elements be incorporated into European law? If a law in Germany would benefit a Frenchman, it seems a case could be made for unfair discrimination on the basis of the Charter of Fundamental Rights; on the other hand, if all such laws are to be applied evenly to all Europeans in accordance with the Charter, the distinction between national and European law would appear to be moot. Alas, this does not appear to be a false dichotomy as the terms of the Charter are quite clear.

To answer the questions, then, i would say that traditional law should be incorporated into country-wide when to not do so would result in unfair and illegal discrimination (assuming the country is subject to suitable legislation); its coverage should be universal if it is to avoid similar charges in its implementation. If the traditional law concerned consists merely of social customs or practices that are not illegal under national or international law then incorporation would provide the same protection afforded under the European Charter, but once again its coverage would have to be universal to not fall foul of anti-discriminatory law.

Perhaps an example would make the above discussion clearer. Let's suppose that traditional law provides for the penalty of banishment in the event of infidelity. If this punishment is incorporated into national law it would allow someone so convicted to appeal against the sentence on several grounds; for instance, the absence of trial in front of a recognized court, the resulting infringement of freedom of movement and association, or the possible lack of a precedent in national law for such a punishment to given under the aegis of the latter. On the other hand, to allow the sentence to stand would open the way to appeal on the grounds of unfair discrimination based on membership of the traditional community; i.e. such a punishment could not be awarded by the national courts.

I assure you this is alot clearer to me than i've made it here...

junkyardgod

The question is, how much, and when, should traditional law be incorporated into the country-wide law ?
What should be its scope of coverage, and who gets covered by it ?

I think the quetion becomes, how much leverage does the particular aboriginal culture have with the currently dominant culture?

If the ruling class, or dominant culture, wich ever you prefer, has no reason to incorporate outside practices; legal, traditional, or otherwise, why should it?

Is there some sort of moral imperative?

JYG

Waning Moon Conrad

In '93 I saw a documentary about an outback community a hundred miles west of Alice Springs.

An old man who was emu totem died of cancer. A younger man of wallaby totem was speared through the thigh for singing him because there's no such thing as cancer - if an old man dies it was obviously because he was sung.

Why was he sung? Oh well it turns out that he must have made a turinga without permission from the older-than-him-elders or whatever Kadaitcha-Man was entitled to wear more black cockatoo feathers than he was.

Tribal law? Allow it or stop it? I really don't know. Apparently the guy who took the spear through the thigh as punishment for singing him owned up to singing him in order to avert a full scale tribal war.

But nobody sang him, he died of cancer.

I see a few questions here but I don't feel entitled to go providing answers.

Gurdur

There was a very recent case in WA where an Aboriginal man preferred to be speared 13 times through his legs rather than go to jail for a particular case.
The man's preference was accepted by the local court, and in due course he was speared (though not fatally).

I'll be back soon with some more contributions, and replies to people.
Thanks, people !

echidna

To some extent maybe handling this cultural relativity isn’t such an impossible situation when one looks at several common-place situations which exist in today’s society.

Example 1 : few of us think much of travelling overseas, and yet each time we do we place ourselves subject to culturally different laws, laws which we are often not aware of ourselves. Although exceptions occur, generally countries accept that foreigners are not under the same obligation as themselves to behave in a certain way. Due consideration is generally given both ways, that foreigners generally try to behave in a culturally appropriate way & locals generally understand that behaviours other than their own are acceptable in other places. What seems most important is that people behave in a fashion appropriate to their own culture, or more accurately the negative that people do not behave in a fashion inappropriate to their own culture.

This is largely the justification Australian authorities use to enforce Australian anti-paedophilia laws overseas, that when it comes to paedophilia, tourists may not exploit cultural relativity to bypass their own legally-established culturally acceptable behaviours. Further it is also backed up by the near-universal United Nations policies towards such paedophilia.

Another example is that execution is a known risk for drug trafficking in many countries. Fortunately cases are few enough to be treated on an individual basis. With the crime receiving strong punishment in both countries (no death penalty in Australia though), I have little sympathy for foreigners caught. Reality is that this is one case where a death penalty is a real aversion, but that’s another topic …

Example 2 : As an international standard, embassies are considered sovereign territory (on a legal basis as well) of the country represented, further that embassy staff may even claim diplomatic immunity as protection from local prosecution. While such a system is open to exploitation, practically speaking, such international incidents attract widespread publicity & are uncommon, largely due to a degree of diplomacy exercised by both sides. Part of this diplomacy is to recognise that whatever the differences between each set of laws, individuals are at least subject to an external set of laws governing acceptable behaviour.

Comment : Pragmatism seems to dictate that laws be based geopolitically rather than culturally, that is, that a resident of Australia be subject to Australian law rather than Australians in a mixed community be subject to separate laws dependent on the individual’s ethnicity. Indeed in a multicultural society (mixed cultures genuinely living side by side), it seems impossible to afford Aboriginals their own legal system, without opening the Pandora’s Box to all other cultures. What then would prevent Shar’ia Law from being equally enforceable ?

Aboriginal context : Aboriginal law seems more applicable in stable, culturally homogenous communities, so as far as this can be determined as relevant to many outback communities, yes, maybe some degree of tribal law is workable.

Can Islamic Fundamentalists then use this precedent to initiate an Islamic State where Shar’ia Law over-rides Australian Law ? I would argue that special privilege can be afforded to the Aboriginal group given by their indigenous status.

What if such a community dictated that paedophilia was not a punishable offence, or decided that execution was necessary for some crimes ? I don’t know. These communities are generally small and local issues like crime are more likely settled more subjectively by individuals than by objective systems (not that Australian law is entire objective of course).

Aside from that I think that those living in multicultural communities must still fall subject to common law, however with the proviso that judgement and sentencing be conducted with sensitivity to culture (and other individual considerations as I indicated in last week’s thread). Not to say that Aboriginal heritage automatically gives special legal privileges, but that if the individual can demonstrate a close link to Aboriginal culture, then special consideration can be given, much the same that land claims post-Mabo now require proof of a continuous link with the land under claim.

Anyway, that’s far more than I intended to write. Cheers.