Journal articles on the topic 'Customary law – Western Samoa'
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1
Land, Craig. "One Boat, Two Captains: Implications of the 2020 Samoan Land and Titles Court Reforms for Customary Law and Human Rights." Victoria University of Wellington Law Review 52, no. 3 (December 13, 2021): 507–40. http://dx.doi.org/10.26686/vuwlr.v52i3.7330.
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Samoa's 2020 Land and Titles Court reforms, which contributed to the Human Rights Protection Party losing support at the April 2021 elections after almost 40 years of government, have recentred attention on the tensions of legal pluralism in the South Pacific. Although Samoa maintains a system of English common law, 81 per cent of Samoan land falls under the traditional matai titles system, giving a central role to the customary Land and Titles Court (LTC). In December 2020, the Samoan parliament passed three Acts – the Constitution Amendment Act 2020, the Land and Titles Act 2020 and the Judicature Act 2020 – establishing the LTC in a parallel court hierarchy with equivalent status to the Samoan Supreme Court and Court of Appeal. This proposal has prompted debate between those favouring incorporation and promotion of Samoan custom over Western legal norms, and others who argue the amendments undermine human rights protections and the rule of law. This article evaluates the effects of these changes on the role and administration of custom in Samoa, contextualising them within broader socio-legal debates around customary legal systems. It first analyses the effect of the three Acts with regard to the bifurcation of the court system, procedural reforms in the LTC hierarchy and the introduction of a judicial guidance clause. This leads into a critical evaluation of these changes, highlighting impacts upon judicial coherence; constitutional human rights; consistency between customary and common law procedures; and resourcing constraints. The article concludes by providing broad options for future reform. It does not focus on issues which have received attention elsewhere, such as the amendments' potential impacts on judicial independence.
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Paulson, Deborah D. "Understanding Tropical Deforestation: the Case of Western Samoa." Environmental Conservation 21, no. 4 (1994): 326–32. http://dx.doi.org/10.1017/s0376892900033634.
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The case of Western Samoa is used to challenge the tendency in the recent literature to polarize the issue of tropical deforestation as caused by either political economic forces or increasing human demands. While it is recognized that political economic forces must be changed in many cases to make just and sustainable use of the forest possible, the case of Western Samoa is used to highlight the difficult challenge of conserving tropical forests and their biodiversity even under customary land-tenure and local control of forest resources.
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Corrin, Jennifer. "Customary Land and the Language of the Common Law." Common Law World Review 37, no. 4 (December 2008): 305–33. http://dx.doi.org/10.1350/clwr.2008.37.4.0176.
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Independence constitutions in most small island countries of the South Pacific acknowledge the significance of customary law by giving it official status in the hierarchy of laws recognized by the state. More particularly, many of those constitutions make special provision for customary land, limiting its alienation and allowing it to be governed by customary law. However, in practice, the philosophy underlying these provisions has been betrayed. While paying lip service to customary law, changes have been introduced through the written law. In addition, more subtle changes have crept in through the inaccurate representation of customary concepts in common law terms. Using examples drawn mainly from Samoa and Solomon Islands, this paper seeks to demonstrate that, in spite of the constitutionally enshrined intention to protect customary land and the customary law governing it, the operation of the common law has led to significant changes in customary land concepts. It is argued that such changes have the potential to bring about dramatic and unplanned changes to customary society in the South Pacific.
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Ye, Ruiping. "Torrens and Customary Land Tenure: a Case Study of the Land Titles Registration Act 2008 of Samoa." Victoria University of Wellington Law Review 40, no. 4 (May 3, 2009): 827. http://dx.doi.org/10.26686/vuwlr.v40i4.5249.
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This article describes the customary land tenure in Samoa, and analyses the effects of the introduction of a Torrens system of land registration on the customary land tenure. In particular, it examines the registration of adjudicated customary land (customary land in respect of which judgment has been made by the Land and Titles Court) under the Land Titles Registration Act 2008, as well as the combined effect of the Taking of Land Act 1964 and Torrens registration on customary land. It argues that the LTRA 2008 may be repugnant to the Constitution and that the Torrens system is incompatible with customary land tenure. It recommends that the law expressly exclude customary land from the indefeasibility of title effect of the Torrens system.
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Anriani, Anriani. "Comparison of Advanced Children According to West Law, Compilation of Islamic Law, and Traditional Law of Bugis Customs." Sultan Agung Notary Law Review 2, no. 4 (December 30, 2020): 656. http://dx.doi.org/10.30659/sanlar.2.4.656-671.
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The objectives of this study are as follows: 1) To determine the comparison to what extent the position of adopted children in inheriting the assets of their adoptive parents according to Western law, compilation of Islamic law and customary law of the Bugis tribe in Wolo District, Kolaka Regency. 2) To find out what are the obstacles in the application of inheritance distribution according to Western Law, Compilation of Islamic Law and Customary Law of the Bugis Tribe in Wolo District, Kolaka Regency. Based on the data analysis, it can be concluded that: 1) Comparing the extent to which the position of adopted children in inheriting the assets of their adoptive parents according to Western law, the Compilation of Islamic Law and Customary Law of the Bugis Tribe in Wolo District, Kolaka Regency is as follows: In Islamic law, adoption does not have legal consequences in terms of blood relations, guardian-guardianship and inheritance relationships with adoptive parents. He remains the heir of his biological parents and the child continues to use the name of his biological father.Meanwhile, according to the West Inheritance Law are: In Staatblaad 1917 No. 129, the legal consequence of adoption is that the child legally acquires the name of the adoptive father, becomes the child born from the marriage of the adoptive parents and becomes the heir of the adoptive parents. That is, as a result of the appointment, all civil relations are cut off, which originates from the offspring due to birth, namely between the biological parents and the child.Meanwhile, according to the Customary Law of the Bugis tribe, they are as follows: When using customary institutions, the determination of inheritance for adopted children depends on the applicable customary law. Especially the Bugis tribal law thatIf the adopted child is obtained from his/her own family environment, it will result in an unbroken relationship between the child and the biological parents in family relations and assets. And if the adopted child is adopted from the environment outside the family, it can result in the relationship between the adopted child and the biological parents being cut off, especially in relation to assets or inheritance. 2) What are the obstacles in the application of inheritance distribution according to Western Law, Compilation of Islamic Law and Customary Law of the Bugis Tribe in Wolo District, Kolaka Regency, namely: because of the lack of legal education for the community in the process of legalizing adopted children, Lack of public understanding and awareness in the process of distributing inheritance.
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Owino, Lisa. "Application of African Customary Law: Tracing its Degradation and Analysing the Challenges it Confronts." Strathmore Law Review 1, no. 1 (January 1, 2016): 143–64. http://dx.doi.org/10.52907/slr.v1i1.156.
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Historically, African customary law has occupied the lower rungs of the legal ladder, often being set aside for more formal laws. This is primarily due to the introduction of western and religious legal systems through the exploration of western nations into Africa, missionary activity and, subsequently, colonisation. However, African countries – including Kenya – are making an effort to give due recognition to customary law. This paper discusses the steady degradation of customary law from the colonial period to the promulgation of the Constitution of Kenya 2010 where there are attempts to resuscitate its application, it also discusses the challenges that the courts may face in this application of customary law today and possible solutions to these challenges.
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Carty, Anthony. "What Use Is Customary International Law?" Korean Journal of International and Comparative Law 9, no. 1 (May 28, 2021): 119–31. http://dx.doi.org/10.1163/22134484-12340149.
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Abstract Customary international law as a source of general law is given a primary place in Article 38 of the ICJ Statute. However, it is historically a concept created by legal doctrine. The very idea of custom supposes legal persons are natural persons living in a dynamic, evolving community. This was the assumption of the historical school of law in the 19th century when the concept of custom was developed. Now the dominant notion of legal personality is the State as an impersonal corporation and international legal theory (Brierly and D’Amato) can see well that the death of the historical school of law has to mean the death of the concept of custom. What should replace it? Two steps need to be taken in sequence. Firstly, following the Swedish realist philosopher Haegerstrom, we have to ascertain the precise constellations of the conflictual attitudes the populations of States have to the patterns of normativity which they project onto international society. Secondly, we should follow the virtue ethics jurisprudence of Paul Ricoeur and others, who develop a theory of critical legal doctrinal judgement, along the classical lines of Aristotle and Confucius, to challenge and sort out the prejudices of peoples into some reasonable shape, whereby these can be encouraged to understand and respect one another. Then one will not have to endure so many silly interpretations of international law such as the one declaring that there are only rocks in the South China Sea and not islands. Such interpretations have nothing to do with the supposedly ordinary legal language analysis of a convention and the State practice surrounding it. They have to do entirely with a continued lack of respect by Western jurists for non-Western societies and nations.
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Adhi, Yuli Prasetyo, Triyono Triyono, and Muhyidin Muhyidin. "Questioning the Customary Inheritance Law After Law No. 3 of 2006 about Religious Jurisdiction." Indonesian Journal of Advocacy and Legal Services 3, no. 1 (March 24, 2021): 111–22. http://dx.doi.org/10.15294/ijals.v3i1.45728.
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Customary inheritance dispute might occur when the heirs cannot reach agreement between divisions of property or during inheritance law point which will be used. Indonesia acknowledges 3 existing inheritance laws which are western civil inheritance law, Moslem’s inheritance law, and customary inheritance law. Legal action of inheritance law is usually resolved by deliberation but if there is no agreement reached between these processes, therefore court mechanism can be used to make law suit and dispute resolution. UU No 3 of 2006 about religious jurisdiction is a legal product that is issued to provide improvement (Amendment) against UU No 7 of 1989 about religious jurisdiction. UU No 3 of 2006 is giving significant impact against the existence of custom inheritance law in Indonesia. Before this constitution is created, religious jurisdiction can accept customary inheritance disputes for Moslem people according to the criteria which have been stated in UU No 7 of 1989. Since UU No 3 of 2006 is created, therefore customary inheritance law, even though the heirs are Moslem, must follow the district court mechanism. This will provide increasingly narrow space for the existence of customary law in the future. This program is held in Pati, Central Java, where custom inheritance law still exists and is being used in Pati community. Dissemination and harmonization regarding customary law is important to maintain sustainability and existence of customary law in Indonesia.
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Nwanna, Clifford Ezekwe. "The Awka Civil War (1902–1904) and the Legal Basis for Its Resolution." Matatu 48, no. 2 (2016): 301–8. http://dx.doi.org/10.1163/18757421-04802005.
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Most Western legal philosophers did not have Africa in mind when institutionalzing the meaning of law; hence, they consider African customary law as obscure and undesirable. This Western notion of the African judicial system is misleading—there was no record of breakdown of law and order in pre-colonial Africa, where only customary laws operated. This essay examines the consequences of the imposition of the Western legal system on Africa using the Awka civil war (1900–1904) as an example. The study reveals that the African traditional legal system was broadly accepted by the people as a means of providing stability, certainty, and social change. It represents the indigenous and authentic law of the people.
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Sagay, I. E. "Customary Law and Freedom of Testamentary Power." Journal of African Law 39, no. 2 (1995): 173–82. http://dx.doi.org/10.1017/s0021855300006318.
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The extent to which customary law restricts the freedom of testamentary power (if at all) has given rise to a spate of cases right up to the Supreme Court, in which the courts have attempted to interpret and apply section 3(1) of the Wills Law (1958) of Western Nigeria, which currently applies to Lagos, Ogun, Osun, Ondo, Edo and Delta States. Section 3(1) of the Wills Law of all these States provides thus:“Subject to any Customary Law relating thereto, it shall be lawful for every person to devise, bequeath or dispose of, by his will executed in a manner hereinafter required, all real and all personal estate which he shall be entided to, either in Law or in equity, at the time of his death and which if not so devised, bequeathed and disposed of would devolve upon the heir at law of him, or if he became entided by descent, of his ancestor, or upon his executor or administrator”.
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Farid, Muhammad, Ahmad Khisni, and Munsharif Abdul Chalim. "Position of Adopted Children in Leaving Appointment Parent's Assets According To Islamic Law, Civil Law & Custom Law." Sultan Agung Notary Law Review 3, no. 3 (August 18, 2021): 944. http://dx.doi.org/10.30659/sanlar.3.3.944-962.
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In Islam, adoption is known as tabann, Wahbah al-Zuhaily gives the understanding that adoption (tabann) is the taking of a child by someone to a child whose lineage is clear and then the child is assigned to him. One of the supporting factors for the realization of a household in accordance with this Islamic concept is property which is Zinatu al-Hayat, both movable and immovable property, even including securities and intellectual rights Inheritance rights that apply to adopted children to property adoptive parents in Islamic law, civil law, and customary law. Method This approach uses a secondary approach that is normative law or literature writing with a statutory approach. Indonesia adheres to a plural legal system, which means that Indonesia adheres to more than one legal system. This also makes inheritance law divided into three legal systems, namely Western Law, Islamic Law, and Customary Law. In general, the notion of inheritance law is a legal rule that regulates the transfer of property rights, which is the overall rights and obligations of the person who inherits to his heirs and determines who is entitled to receive it. Indonesia adheres to several systems of inheritance law including the civil law system, Islamic law and customary law. In civil law, adopted children still get inheritance rights from their adoptive parents. Then in customary law, the inheritance system used is dependent on the custom where the adopted child lives.
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Plotskaya, O. A. "COMMON LAW IN MEDIEVAL HUNGARIAN SOURCES." BULLETIN 3, no. 391 (June 12, 2021): 159–64. http://dx.doi.org/10.32014/2021.2518-1467.115.
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This work examines the issues of consolidation of customary law in medieval Hungarian sources. The relevance of the study of customary law as the most important part of the socio-normative culture and the traditional legal regulator, normatively fixing ethnic identity, expressed not only in the national-cultural worldview, but also in the written medieval Hungarian sources that operated for many centuries, starting from the origins of the creation of the Hungarian state until the beginning of the XVI century, no doubt. The aim of the work is to study customary law, its institutions in the sources of law of medieval Hungary. The novelty of the research lies in the fact that it analyzes the empirical historical and legal material, which makes it possible to identify the institutions of customary law in the medieval Magyar sources of law. In a comprehensive study of customary legal aspects, in Hungarian sources of law, it is important to be guided not only by the formational approach, which makes it possible to understand the changes that took place in the medieval period, during the emergence and development of feudal relations in the Western European state, but also by the civilizational approach, revealing the historical, political, socio-cultural components of the feudal Christian state. The methodological basis of this research is formed by a system of cognitive methods developed by various modern sciences. Thanks to the application of the systemic method, the customary law of the Hungarian people is important to consider as an element of the legal space of Hungary as a Central European state. The study shows that the Hungarians had a law as their initial act. Many Hungarian customs and customary legal institutions found their fixation precisely in written sources of law.
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Lagji, Amanda Ruth Waugh. "A Postcolonial Perspective: Law and the Literary World." Law, Culture and the Humanities 15, no. 2 (February 11, 2016): 305–18. http://dx.doi.org/10.1177/1743872116630698.
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This commentary shows the advantages of a postcolonial approach to law and literature, using Nuruddin Farah’s novel Maps as a suggestive case study to examine Somalia’s laws and literature and the colonial context embedded in both. Whereas Western and European juridical systems are often silent referents in law and literature scholarship, my reading of Maps also places it in dialogue with Somali customary laws and culture. I conclude my commentary by bringing together the history of Somali customary law and my reading of Maps to offer methodological suggestions for law and literature given this particular postcolonial perspective.
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Hannath, Luke. "Un-translatable? Interpreting customary laws in a western courtroom." Alternative Law Journal 44, no. 3 (February 28, 2019): 203–6. http://dx.doi.org/10.1177/1037969x18822552.
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This article observes interpretive issues that may arise when Aboriginal witnesses give evidence in western courtrooms. The author highlights this problem by observing native title claims in Australia. Two broad circumstances arise that present unique issues: first, when Aboriginal witnesses require interpreters for assistance in giving evidence, and second, when Aboriginal witnesses do not require such assistance. The clear difficulties that emerge for both Aboriginal witnesses and the judiciary are ultimately representative of a larger, fundamental disjunction between two legal systems.
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Nasution, Adelina. "PLURALISME HUKUM WARIS DI INDONESIA." Al-Qadha 5, no. 1 (July 1, 2019): 20–30. http://dx.doi.org/10.32505/qadha.v5i1.957.
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Law of inheritance in Indonesia up to now in a pluralistic (diverse). In the territory of the Unitary Republic of Indonesia, various inheritance legal systems apply, namely customary inheritance law, Islamic inheritance law and Western inheritance law listed in Burgerlijk Wetboek (BW). This legal diversity is increasing because customary inheritance laws that apply in reality are not single, but also vary according to the form of society and the family system of Indonesian society. Keywords: Pluralism, inheritance, custom
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Subekti, Subekti, and Suyono Yoyok Ucuk. "PEWARISAN BERDASARKAN HUKUM WARIS ADAT TERKAIT SISTEM KEKERABATAN DI INDONESIA." Jurnal Aktual Justice 5, no. 1 (June 8, 2020): 56–70. http://dx.doi.org/10.47329/aktualjustice.v5i1.520.
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There are three kinds of inheritance law in Indonesia, namely Islamic inheritance, Customary inheritance and BW inheritance. The scope of this writing is limited to customary inheritance law. The parts of customary law have a big influence on customary inheritance law and vice versa. Customary inheritance law has its own characteristics and characteristics that are unique to Indonesia, which is different from Islamic law and western law (BW). Because the difference lies in the natural background of the Indonesian people who have the philosophy of Pancasila with a society that is Bhinneka Tunggal Ika. The inheritance law that exists and applies in Indonesia to date is still not in the form of legal unification. The purpose of this study is to analyze the inheritance system according to the customary inheritance law related to the kinship system in Indonesia.The type of research used in this research is normative juridical research, namely research on legal systematic is research conducted on primary and secondary legal materials, the terms of reference used are the basic definitions contained in the legal system. The approach used is a conceptual approach, a statute approach and a case approach. Types of Legal Materials are primary legal materials and secondary legal materialsThe results of this study indicate that the inheritance system according to the Adat Inheritance Law does not refer to the kinship system of the customary law community. Customary law communities whose system of collective inheritance can occur are parental kinship systems. Heritage assets related to inheritance must be distinguished from the origin of the assets, because they are related to the kinship system that exists in the local customary law community, whether parental, patrilineal or matrilineal, because not all inheritance can be divided individually.
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Paisina, Mispa Christian Science, Adonia Ivone Laturette, and Novyta Uktolseja. "Hak Milik Atas Tanah Adat Di Wilayah Kepulauan." PAMALI: Pattimura Magister Law Review 1, no. 2 (October 12, 2021): 62. http://dx.doi.org/10.47268/pamali.v1i2.617.
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Introductioan: The Western Seram Islands have various customary rights that grow and develop in the lives of indigenous peoples and it becomes a rule that is believed by them, so that it becomes a law that binds them in determining their ownership rights to their customary land.Purposes of the Research: This study aims to determine how the position of customary land ownership rights in the national land law system, and what is the legal basis and the way in which customary land ownership rights occur according to customary law.Methods of the Research: This study uses the normative legal research method, which aims to find out how the position of ownership rights over customary land in the national land law system in the areas of Taniwel Timur, Negeri Maloang and Negeri Sohuwe, West Seram Regency, Maluku Province, and to understand what the legal basis and How to Have Land Ownership Rights According to Customary Law in the Taniwel Timur District, Maloang State and Sohuwe State, West Seram Regency, Maluku Province.Results of the Research: In principle, ownership of land rights by a member or group of customary law communities, whether individual or communal / group, has a very binding power de jure and de facto. The principle of ownership in the provision of de jure guarantees in the sense that the customary law community recognizes that if ownership rights are obtained by means of the permission of the head of the association (Kepala Adat or Kepala Soa), to open and manage land for customary law communities it can be said to be a legal act that is legal according to law. adat as long as it does not contradict the prevailing customary law norms, and the principle of ownership in a de facto manner, namely that the principle of ownership has been obtained from generation to generation. This is what the local government must pay attention to in terms of recognition of rights by customary law communities in West Seram District, Maluku Province.
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Tagupa, William. "Law, status and citizenship:Conflict and continuity in New Zealand and Western Samoa (1922–1982)∗." Journal of Pacific History 29, no. 1 (June 1994): 19–35. http://dx.doi.org/10.1080/00223349408572756.
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Deng, Mark A. W. "From Unwritten to Written: Transformation of Jieeng Customary Law into Qanun Wanh-alel." Australasian Review of African Studies 43, no. 1 (June 1, 2022): 41–55. http://dx.doi.org/10.22160/22035184/aras-2022-43-1/41-55.
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This paper is a case-study on Qanun Wanh-alel ‒ a customary law of the Western Jieeng enacted in 1975 to regulate offences that occur commonly in their jurisdictions. These include homicide, which has become the most common offence in recent times, elopement and premarital impregnation. The overarching aim in enacting Qanun Wanh-alel was to have a codified Jieeng customary law, although it has not been applied uniformly. This is especially clear in the case of blood compensation for homicide which varies across these communities.
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Paulus, Andreas, and Matthias Lippold. "Customary Law in the Postmodern World (Dis)order." AJIL Unbound 112 (2018): 308–12. http://dx.doi.org/10.1017/aju.2018.83.
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B.S. Chimni's thought-provoking article presents a welcome opportunity to reflect on both the value and the shortcomings of custom as a source in contemporary international law. Chimni convincingly identifies points of concern with respect to the representativeness of the relevant state practice and the availability of non-Western practice. His article is part of a stream of recent scholarship that examines the relationship between public international law and the so-called Third World under the label of Third World Approaches to International Law (TWAIL). The contribution, like much of the TWAIL literature, is helpful in that it reveals the biases of international law in favor of the former colonial powers and identifies the ways in which these inform the identification and interpretation of (customary) international law. Yet we do not agree with some of the premises of Chimni's critique or his suggested remedies. In particular, we would like to offer a different perspective on the importance of power, the distinction between formal and material sources, and the legitimacy of his concept of postmodern custom.
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Severance, Craig, Robert Franco, Michael Hamnett, Cheryl Anderson, and Fini Aitaoto. "Effort Triggers, Fish Flow, and Customary Exchange in American Samoa and the Northern Marianas: Critical Human Dimensions of Western Pacific Fisheries." Pacific Science 67, no. 3 (July 2013): 383–93. http://dx.doi.org/10.2984/67.3.6.
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McKenzie, Peter. "A shared commercial legal heritage - reflections on commercial law reform in former British Colonies and Dependencies." Victoria University of Wellington Law Review 39, no. 4 (December 1, 2008): 553. http://dx.doi.org/10.26686/vuwlr.v39i4.5478.
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This article reflects on Professor Tony Angelo's contributions to the laws of various British colonies, particularly Mauritius. The author illustrates different types of jurisdiction by reference to individual countries. First, the author discusses colonies with a received legal heritage – Mauritius, who has influences from its French colonial administration and English law, and Botswana who has hints of English commercial statutes. Secondly, the author discusses colonies with an underlying common law system – Uganda, Sierra Leone, and Samoa. None of these nations were settled colonies, but colonial administrators took with them a common law structure for contracts, and civil and commercial obligations, while retaining customary law and practices in relation to land. Finally, the Maldives is discussed as a "special case". The author then discusses his reflections on the colonial legal legacy, including the impact of the English language, the shared nature of the colonies' legal systems (including a common accounting and business framework), and the "colonial legal patchwork". The author hopes that the impetus given by Professor Angelo to law reform in Mauritius, as well as other nations, will continue.
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Beru, Tsegaye. "An Outline for the Study of Ethiopian Constitutional Law." International Journal of Legal Information 43, no. 2_3 (2015): 234–312. http://dx.doi.org/10.1017/s0731126500012531.
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This outline is prepared based on the 1995 Constitution of the Federal Democratic Republic of Ethiopia (“The 1995 Constitution”). It is important to acknowledge at the outset that the 1995 Constitution cannot be studied in isolation. Like its forerunners, it is not distinctively Ethiopian, save for the customary and religious laws that it recognized. Ethiopian constitutions, both past and present, have been derived, in part, from foreign constitutions including constitutions from western and eastern countries, including Japan. Although its immediate sources can be traced back to the Charter of the Transitional Government of 1991, this 1995 Constitution was built upon the constitutions that preceded it, the laws that have been promulgated since the 1930s, and the religious and customary laws that predated it.
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Kholis, Kholis Bidayati, Muhammad Alwi Al Maliki Alwi, and Suci Ramadhan Suci. "DINAMIKA PEMBAHARUAN HUKUM KELUARGA ISLAM DI NEGARA MUSLIM." ADHKI: Journal of Islamic Family Law 3, no. 1 (August 8, 2021): 51–68. http://dx.doi.org/10.37876/adhki.v3i1.45.
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The intertpersions between Islamic law and Western law that occurred due to colonialism demanded that Muslims reform the law once they were free. This law reform is done in order to maintain the existence of Islamic law. Although in some Muslim countries do not apply the concept of Islamic law traditionally at least in their legal legislation substantively reflects Islamic values. One of them is Malaysia and Brunei Darussalam. Based on the concept of law reform that the two countries did they tried to bring together the point of agreement between Islamic law, western law and customary law in their respective countries.
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Glennon, Michael J. "Can the President do no Wrong?" American Journal of International Law 80, no. 4 (October 1986): 923–30. http://dx.doi.org/10.2307/2202074.
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When the President does it, that means that it is not illegal.Richard M. NixonCustomary international law is part of federal common law. Federal common law is binding on every executive branch official, including the President. Congress can by statute create a different rule, however, because federal common law is interstitial; it fills in gaps between statutes and gives way when an inconsistent law is enacted. Consequently, with congressional authorization, the Chief Executive can disregard any norm of customary international law. But in the face of congressional silence, he is required to respect a clearly defined and widely accepted norm of customary international law. I consider this position, elaborated in a recent article in the North-western Univernty Law Review, to be most consistent with traditional separation-of-powers principles and also the soundest functional approach.
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Iksan, Muchamad, and Sri Endah Wahyuningsih. "DEVELOPMENT OF PERSPECTIVE CRIMINAL LAW INDONESIAN NOBLE VALUES." Legal Standing : Jurnal Ilmu Hukum 4, no. 1 (May 19, 2020): 178. http://dx.doi.org/10.24269/ls.v4i1.2662.
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The existence of criminal law is to protect and maintain central values insociety. As an independent nation, the applicable criminal law should be in accordancewith the noble values that live and develop in Indonesian society. KUHP (WvS) is aproduct of western colonial law, of course it carries the spirit of colonialism,individalism, and liberalism that is not in accordance with the noble values of anindependent Indonesian nation. The development of Indonesian criminal law must bebased on Indonesian philosophy, spirit, and values, in terms of ideology (Pancasila),religious/religious, social, political, economic, and cultural aspects that live anddevelop in society (customary law). Nor should it ignore international developments,because the Indonesian state is part of a civilized international community. Colonialinheritance criminal law that adheres to the teachings of positivist legal law, must beintegrated with the teaching of legal historism which is a legal understanding that isconsidered appropriate and adhered to by the people of Indonesia, so that in Indonesiathere is an unwritten criminal law (customary criminal law).
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Syamsudin, M., and Journal Manager APHA. "Reorientation of Approaches in Indonesian Customary Law Studies." Journal of Indonesian Adat Law (JIAL) 1, no. 1 (October 15, 2020): 1–33. http://dx.doi.org/10.46816/jial.v1i1.15.
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This paper is intended to describe some approaches in studying the Indonesian Adat Law. From the exposure is expected to provide various perspectives in studying the sides of Indonesian Adat Law that is used as the object of study of legal scholars today. The current issue of Indonesian Adat Law studies shows a very distressing and lagging state when compared to other legal studies such as Western Law. This situation indicates how Indonesian Adat Law will be left behind and will likely be alienated from the academic community in the future. The problem is allegedly caused by among others the lack and freezing of existing materials and the absence of unity of theme and orientation of study. This paper is intended as an effort to respond to the situation, namely the effort to provide direction and contribution of thought and further development of the study and teaching of customary law which is still ongoing in the faculties of law in general. This study is considered a study of doctrinal law with reference to secondary data. Secondary data collected were processed in a non-statistic, analyzed descriptively-qualitative, and presented narratively based on the topic of the problem studied. The results of this study indicate the need for the Indonesian Adat Law study approach within the framework of Indonesian national jurisprudence. The object of study of this approach is the idea of Adat Law that was born and started since the Indonesian Youth Congress in 1928, which in its development has spawned Pancasila and the 1945 Constitution as the basis and constitution of the independent Indonesian state. In this development Adat Law is essentially an escalation of the values and principles of local adat law into the values and principles of law that serve as the basis of the framework of Indonesian National Law. Therefore, it is necessary to approach Indonesian national jurisprudence in studying Adat Law.
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Heirbaut, D. "Who were the makers of customary law in medieval Europe? Some answers based on sources about the spokesmen of Flemish feudal courts." Tijdschrift voor Rechtsgeschiedenis / Revue d'Histoire du Droit / The Legal History Review 75, no. 3 (2007): 257–74. http://dx.doi.org/10.1163/157181907783054923.
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AbstractDue to a lack of sources, the makers of customary law in the middle ages are largely unknown to us. However, a unique source, the Lois des pers du castel de Lille, makes it possible to identify the spokesmen of customary law courts, who were the intellectual authors of these courts' judgements and, thus, the main creators of customary law. An analysis of their careers shows that they were legal advisers, lords and/or bailiffs and members or spokesmen of other courts. In short, they were their community's legal experts. They had learned their trade by doing and can be considered to have been semi-professionals. Certain spokesmen were more successful than others and served as a court's main spokesman, but it is hard to determine why someone became the main spokesman or spokesman at all, though knights had more 'natural' authority for acting as spokesman than others. In fact, although the spokesmen formed a community of legal experts in their area, two subgroups (the knights and the others) can be distinguished. The case studied in this article concerns the spokesmen of a Flemish castellany court around 1300, but spokesmen can be found in Flanders already in 1122 and they were common in North-western Europe. Therefore, this article concludes with a call for further research about these key figures of medieval customary law.
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Gavrilov, S. N. "Russian Legal Mentality: Procedural Law vs. Customary People’s Justice." Lex Russica 74, no. 10 (November 12, 2021): 100–112. http://dx.doi.org/10.17803/1729-5920.2021.179.10.100-112.
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Russian customary law is a unique source for the study of the Russian traditional legal mentality. It is a kind of a cast from the people’s “instinctive right-feeling” (I. A. Ilyin), a product, a repository and at the same time a generator of legal mental attitudes. The results of research in the field of cognitive linguistics confirm the connection between thought processes and language. The author proceeds from the fact that the national language is an appropriate basis; and the means of linguistics are an effective tool for studying the national legal culture, legal mentality, legal consciousness. The paper describes separate approaches to the interpretation of the concepts of “mentality” and “mindset”, proposes a definition of the concept of “Russian legal mentality” and identifies the category of those possessing it.The procedures for considering and resolving cases according to the norms of secret, written, pre-reform (before 1864) and post-reform (after the Judicial Reform of 1864) process, fixed by positive law (legislation), not only in form, but also in the approach itself, differed significantly from the traditions of popular justice as a “branch” of Russian customary law.The main attitudes of the Russian traditional legal mentality are described in procedural aspects that are significant for the perception of law and legislation. Russian traditional legal mentality is reconstructed in order to identify the key mental attitudes inherent in the tradition of Russian customary law, in contrast with the approaches natural for the Western legal tradition. This is done in the context of the following phenomena: the ideal of justice, procedural order, legal qualification, the value of evidence, the purpose and result of justice.
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., Stella, and Hasni . "ANALISIS TERHADAP TANDA BUKTI HAK ATAS TANAH BERDASARKAN UUPA DAN PERATURAN PEMERINTAH NOMOR 24 TAHUN 1997 TERKAIT PENGGUNAAN GIRIK NOMOR 87 PERSIL 157 KELURAHAN CENGKARENG BARAT (STUDI KASUS: PUTUSAN MAHKAMAH AGUNG NOMOR 2459K/PDT/2014)." Jurnal Hukum Adigama 1, no. 1 (July 23, 2018): 1013. http://dx.doi.org/10.24912/adigama.v1i1.2184.
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Since of Agrarian Law in Indonesia, western right land and communal right land have been converted into land right according to Agrarian Law so the state is obliged to provide legal assurance through land registration, with the end product is certificate as a proof of title. Proof is an important part of law society as it is the legal standing of land ownership. A strong proof of title is defined in the Agrarian Law and Government Regulation as the implementing regulation, however Indonesian society especially low-economy society still the old proof of title. The main issue is how Customary Title Status relates to the proof of land right in the national land law and judge of Supreme Court made in consideration in resolving civil dispute number 2459K/Pdt/2014 on use of customary land title no.87 land parcel 157 West Cengkareng urban village. Based on the research outcome, that the existence of customary land title is still recognized to this date only as one of the requirements in the land registration process to prove the old title and conversion of communal land so that decision of Supreme Court is correctly made that customary land title is not a form of land ownership since there is no agency except National Land Agency can issue proof of title that is certificate. As of the result of this, certificate is a strong proof of land title. So should, there is an importance common understanding of customary land title from fiscal cadaster rather than legal cadaster.
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Treasure, Wendy, Joe Fardin, Wazi Apoh, and Kirsty Wissing. "From Mabo to Obuasi: mining, heritage and customary law in Ghana and Western Australia." Journal of Energy & Natural Resources Law 34, no. 2 (March 14, 2016): 191–211. http://dx.doi.org/10.1080/02646811.2016.1133986.
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Bonthuys, Elsje. "A Duty of Support for All South African Unmarried Intimate Partners Part 2." Potchefstroom Electronic Law Journal 21 (October 30, 2018): 1–36. http://dx.doi.org/10.17159/1727-3781/2018/v21i0a4411.
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Part I of this two-part article argued that post-constitutional developments of the right to support have excluded the largest and most vulnerable sector of South African women – African women in invalid customary marriages and in intimate partnerships which do not resemble monogamous Western nuclear households. Part II explores the avenues to develop customary and common law to extend rights to support to these women. It argues that the current position discriminates against poor, rural African women on multiple intersecting grounds, which creates a duty for courts to develop the current legal rules. Customary law affords scope for development in relation to women in invalid customary marriages. Common law rights to support can be extended either ex contractu or ex lege. Because contractual support rights are of limited use to poor women, the legacy of the majority judgments in Volks v Robinson 2005 5 BCLR 446 (CC) (Volks) must be confronted to strengthen the legal basis for an automatic duty of support to all women in unmarried intimate relationships. The argument in Volks that, women choose to forego legal rights by not getting married is criticised. The minority judgment in Laubscher v Duplan 2017 2 SA 264 (CC) does, however, create potential for overturning this reasoning.
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Suka Asih K. Tus, Desyanti. "HAK PEREMPUAN HINDU BALI ATAS HARTA WARISAN SUAMI." VYAVAHARA DUTA 16, no. 1 (March 31, 2021): 68. http://dx.doi.org/10.25078/vd.v16i1.2199.
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<p><em>Indonesia does not have a unified regulation regarding inheritance law. This legal pluralism occurs with the application of three different regulations related to inheritance law namely is Western Civil Law, Compilation of Islamic Laws and Customary laws which is applicable based on the region such as Bali Customary Laws. The customary law sourced from the norms, religion, principle that develop within the society. Customary inheritance law is strongly influenced by the family system that applies in every region in Indonesia. Customary inheritance law in Bali is influenced by the patrilineal system adopted in Bali. The patrilineal system adheres to the male line. The patrilineal system places men as the successors of the family including those who are obliged and entitled to family inheritance. This situation makes the position of women as subordinate parties in the family, especially in terms of inheritance. The rights of Hindu women in Bali to her husband's inheritance are often disregarded, forgotten, and abolished. Based on national law, a wife who is left dead by her husband will automatically become an heir. This situation does not necessarily apply to Balinese customary law with the patrilineal system. Social change and demands of the feminist theory have not brought a change to the application of Balinese customary inheritance laws in the community. The presence of provisions in the form of the MUDP (an Indonesia Governmental Body for Balinese) decision and the Supreme Court's decision have not been able to bring a change to the position of women (widows because of death) as husband's heir. The lack of knowledge and legal awareness of Hindu women in Bali over their position as heirs is one of the causes of the weak position of Hindu women in Bali as heirs. This paper will discuss the rights of Hindu women in Bali for husband's inheritance. This paper uses a normative juridical research method.</em></p><p><strong>Keywords</strong>: <em>Rights of Hindu Women in Bali, Husband's Inheritance</em></p>
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Norcahyono, Norcahyono. "PROBLEMATIKA SOSIAL PENERAPAN HUKUM ISLAM DI INDONESIA." JURIS (Jurnal Ilmiah Syariah) 18, no. 1 (June 30, 2019): 23. http://dx.doi.org/10.31958/juris.v18i1.1399.
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The application of Islamic law in Indonesia has experienced obstacles since the entry of Western law into Indonesia. So that legal theories were born in response to friction between Western law with Islamic law. Receptie theory emerged as a Dutch strategy for corner and reduce Islamic law in Indonesia. Then, the coming of the theory of Receptie Exit law and Receptio a Contrario legal theory as symbols of resistance to prove that Islamic law still exists in Indonesia. There are two social problems which has a big influence on the application of Islamic law in Indonesia; First: the entry of Western law into Indonesia which intersects with Customary law. Second: Political and cultural influences of the community. In sociological reviews, Islamic law is difficult to be applied in Indonesia, because Islamic law is existed in the area of Religion to territory of the country.
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Okubuiro, Joycelin Chinwe. "Third World Resistance as a Counter-hegemonic Phenomenon in Customary International Law." Global Journal of Comparative Law 9, no. 2 (June 19, 2020): 183–219. http://dx.doi.org/10.1163/2211906x-00902002.
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The role of non-state actors in custom-making provokes divergent views, skewed by state practice and opinio juris and derived from a Western perspective, which promotes hegemony. This paper shines a new light on this perennial debate by presenting resistance of Third World non-state actors as a counter-hegemonic tool in the development of customary international law. It contributes to scholarship relating to non-state actors in the formation of custom from a Global South perspective by reflecting African reality. This has become relevant in the clamour for increased participation of the Third World in international affairs as post-colonial states are deemed ineffective in representing their interests. It is observed that non-state actors employ diverse mechanisms to assert their position in law-making, thereby expanding the frontiers of custom-making. This paper explores such roles by non-state actors in the development of international custom and recommends an inclusive system that accommodates these stakeholders in custom-making.
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Kodintsev, Alexander. "Historiography of the customary law of the Finno-Ugric and Samoyed peoples of Western Siberia." OOO "Zhurnal "Voprosy Istorii" 2019, no. 08 (August 1, 2019): 166–71. http://dx.doi.org/10.31166/voprosyistorii201908statyi20.
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Abbasi, Muhammad Zubair. "Sharī‘a and State Law." Journal of Law, Religion and State 3, no. 2 (May 6, 2014): 124–38. http://dx.doi.org/10.1163/22124810-00302002.
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The growing numbers of Muslims in the West have ignited a debate about the compatibility of Sharī‘a with state law. The present article explores the issue from a historical perspective by providing a brief survey of Islamic legal history. It specifically focuses on the interaction of Sharī‘a with the English legal system in colonial India. The main argument of the article is that during its long history, Sharī‘a co-existed with the ruler’s law (siyāsa) and customary law (‘urf). It was formally incorporated into the structure of the state with the active participation of Muslim legal commentators, judges, lawyers, politicians, and the ‘ulamā’ in colonial India. The incorporation of Sharī‘a into the state law was facilitated through the transplantation of legislative and hierarchical judicial institutions, which provided venues for a legal discourse among various stakeholders. Historical evidence suggests the feasibility of incorporating Sharī‘a into state law in Western democratic countries.
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Doolittle, Amity. "Colliding Discourses: Western Land Laws and Native Customary Rights in North Borneo, 1881-1918." Journal of Southeast Asian Studies 34, no. 1 (February 2003): 97–126. http://dx.doi.org/10.1017/s0022463403000067.
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A comparison of European tobacco plantations and native shifting cultivation in North Borneo between 1881 and 1928 illustrates the discursive and political strategies through which colonial administrators justified intervention into native land matters and articulated their vision of ‘appropriate’ land management. The discourse of rational law, scientific agriculture and commercialisation provided the tools of colonial power that pushed native people and their customary laws into an increasingly peripheral position in relationship to the centralising state.
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Afeadie, Philip Atsu. "Ambiguities of Colonial Law: the Case of Muhammadu Aminu, Former Political Agent and Chief Alkali of Kano." History in Africa 36 (2009): 17–52. http://dx.doi.org/10.1353/hia.2010.0002.
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Colonial law in Africa involved European moral and legal codes representing some rules of western law, as well as elements of African customary law. However, the colonial situation embodying political and economic domination necessarily negated the ideal practice of the rule of law. Nevertheless, the need arose to introduce some aspects of western law and codes of administration, including salary and benefits schemes for African employees of the colonial government, and legal entitlements such as court trials for accused government employees. These considerations were deemed necessary, if at least to propitiate metropolitan critics of the colonial establishment. Also some rule of law was required for the organization of the colonial economy, including regulation of productive systems and commercial relations. As well, the need for indigenous support necessitated dabbling in indigenous customary conventions. In Muslim polities such as Kano in northern Nigeria, customary conventions included Islamic law.On the establishment of colonial rule in Kano, judicial administration was organized on three principal institutions, involving the resident's provincial court, the judicial council (emir's court), and the chief alkali's court in Kano City with corresponding district alkali courts. The resident's provincial court had jurisdiction over colonial civil servants, including African employees such as soldiers, police constables, clerks and political agents. Also, the provincial court was responsible for enforcing the abolition of the slave trade in the region. The judicial council, classified as “Grade A” court, was composed of the emir, thewaziri(chief legal counselor), the chiefalkaliof Kano (chief judge), theimam(the religious leader of Kano mosque), thema'aji(treasurer), and general assistants including some notable scholars of Kano city. The council adopted thesha'ria(Muslim law) and local Hausa custom, and its jurisdiction extended over “matters of violence, questions of taxation and administration, and cases involving property rights, whether over land, livestock, trade goods, or slaves.” On the issue of capital sentencing, the judicial council required the approval of the resident. The council was also prohibited from authorizing punishments involving torture, mutilation, or decapitation.
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Fitri, Winda. "Implikasi Hukum Kewarisan terhadap Ahli Waris Yang Lahir Dari Perkawinan Berbeda Agama." Wajah Hukum 5, no. 2 (October 15, 2021): 509. http://dx.doi.org/10.33087/wjh.v5i2.596.
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Law of inheritance in Indonesia up to now in a plurality, consisting of Islamic inheritance law, western inheritance law in the Civil Code and customary inheritance law. The plurality will have implications for various things. Religious differences are seen to be a factor preventing a child from obtaining inheritance rights from parents. In Islamic law, children from different religions and their parents will prevent from receiving inheritance, not in line with civil law that one barrier to receiving inheritance is religious different. This study analyzing the legal implications of the implementation of interfaith marriage for the heirs and how the legal protection of the rights of heirs born from interfaith marriages. The research methodology that the uses is normative by conducting analysis. The settlement of the issue children born from different religions of each party is subject to different laws based on religious law or customary law. There are similarities and differences in the implications of the provisions of Article 832 of the Civil Code and Article 171 of the Compilation of Islamic Law. However, protection for children born of different religions can obtain asset from their parents through grants, wills and gifts with the principle of justice.
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Grammond2, Sébastien, and Christiane Guay3. "Understanding Innu normativity in matters of customary “adoption” and custody1." First Peoples Child & Family Review 12, no. 1 (October 12, 2021): 12–23. http://dx.doi.org/10.7202/1082439ar.
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This article presents the preliminary results of a research project on customary custody and “adoption” in the Innu community of Uashat mak Mani-Utenam in northeastern Québec. From a legal pluralist perspective, the authors used a biographical method to understand the workings of the ne kupaniem/ne kupanishkuem Innu legal institution, which can be compared in certain respects to adoption in Western legal systems. The authors present certain characteristics of this institution in order to expose the limits of bills that seek to recognize “indigenous customary adoption” in Québec law. Innu “adoption” stems from an agreement between the concerned persons, which can crystallize gradually, which never breaks the original filial link, and which does not immediately create a new filial link. In theory, this type of adoption is not permanent. As such, a Québec law that only recognizes indigenous adoptions that create a new filial link runs the risk of either being ineffective, or of distorting the Innu legal order.
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Srikantan, Geetanjali. "Secularisation and Theologisation." Journal of Law, Religion and State 4, no. 1 (December 12, 2015): 49–95. http://dx.doi.org/10.1163/22124810-00401002.
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The formation of Hindu law has been chronicled by historians and others as a complex process involving the negation of customary law and the upholding of sacred texts, upon which codes of law were formulated. This paper seeks to interrogate the truth behind this narrative by examining the category of Hindu law and the processes that allowed it to emerge within the British colonial legal imagination. It argues that the making of Hindu law was a process of theologisation within an outer framework of secularisation i.e. the Christian theological framework embedded in the secular framework of Western legal epistemology was the background by which “Hindu law” emerged in the eyes of the colonisers. It examines Western legal notions of divine law, natural law, and human law and the role of historical jurisprudence in this process. It finally concludes by examining the implications of the argument for the formation of secular legal systems.
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Stasiulis, Nerijus. "COMMUNICATIVE CREATIVITY: FROM CUSTOMARY METAPHYSICS TO ORIGINAL ONTOLOGY." Creativity Studies 11, no. 2 (December 6, 2018): 326–77. http://dx.doi.org/10.3846/cs.2018.3671.
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This paper deals with the metaphysical basis of creative communication in the society and the creative city and seeks to uncover the metaphysical grounds of the practical issues we currently face in our everyday academic life and economy. The focus is on the metaphysics of genius and also on former Christian metaphysics of creation from nothing and the importance of individual will as the predecessors of genius. Both Western rationalism as manifested in definite boundaries of sciences and the irrationalism as manifested in metaphysics of genius still shape the framework of our current thought and polemics relating to copyright and patent law, the communication (collaboration) of sciences and arts. After rooting the practical problematic in its metaphysical context, this paper provides a Heideggerian reworking of Western metaphysics to shape an original ontology which is to shape practice in time to come. The notion of ecstatic time itself proves to be of key importance to original creativity. Santrauka Straipsnyje tiriamas kūrybinės komunikacijos visuomenėje ir kūrybinio miesto metafizinis pamatas, taip pat siekiama atrasti praktinių problemų, su kuriomis šiandien susiduriame kasdienybėje ir ekonomikoje, metafizinius pagrindus. Susitelkiama į genijaus metafiziką ir ankstesnę krikščioniškąją kūrimo iš nieko metafiziką, taip pat ir į individualios valios svarbą kaip genialumo sampratos pirmtakus. Vakarų racionalizmas, kurio viena iš apraiškų yra apibrėžtos mokslų ribos ir iracionalizmas,o jo apraiška yra genijaus metafizika, vis dar nustato mūsų šiandienės minties bei polemikos rėmus autorių ir patentų teisių, mokslų ir menų komunikacijos (t. y. bendradarbiavimo) klausimais. Ištyrus praktinės problematikos metafizinį kontekstą, pateikiama haidegeriškoji Vakarų metafizikos pertvarka, siekiant suformuoti originalią ontologiją, kurios tikslas – formuoti praktiką ateityje. Parodoma, kad pati ekstatinio laiko samprata yra itin reikšminga originaliam kūrybiškumui.
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Rifaldi Setiawan, Muhammad, Muhammad Fakhry, and Mahardika Apriano. "Perlindungan Hukum Kreditor Dalam Warisan Atas Harta Peninggalan Tak Terurus Menurut Sistem Waris Barat." Jurnal Komunikasi Hukum (JKH) 7, no. 1 (February 2, 2021): 107. http://dx.doi.org/10.23887/jkh.v7i1.31461.
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The enactment of inheritance law in Indonesia adheres to 3 (three) inheritance law systems, namely; First, Western Inheritance Law, Second, Customary Inheritance Law, Third, Islamic Inheritance Law. So that in Indonesia is known for the pluralism of inheritance law. The western inheritance legal system allows for heirs to reject the inheritance left by the heirs because there is a greater pasiva than the assets. then the status of the property will be an unmanageable inheritance. Doctrinal research method, which is a study that systematically examines the legal norms governing certain legal categories and analyzes the relationship between legal norms. In this case the state through the Heritage Hall that will manage the property. As a form of protection creditors can apply to be a replacement heir for the deposit of receivables will be carried out by the state through the Heritage Hall a number with the value of the heir's debt or or the value of the property or objects left by the heirs is sufficient.
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Boege, Volker. "How to Maintain Peace and Security in a Post-conflict Hybrid Political Order – the Case of Bougainville." Journal of International Peacekeeping 14, no. 3-4 (March 25, 2010): 330–52. http://dx.doi.org/10.1163/187541110x504382.
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After a decade-long large-scale violent conflict, the Pacific island of Bougainville in Papua New Guinea has gone through another decade of post-conflict peacebuilding and at present is confronted with the task of state formation. Peacebuilding has been a success story so far, and the prospects of state formation look promising. The maintenance of order, security and justice in post-conflict Bougainville is based on legal pluralism, with strong customary law and strong customary non-state policing. The violent conflict on Bougainville was a hybrid social-political exchange, with the causes and motivating factors stemming from both the sphere of statecentred politics (‘war of secession’) and the local societal realm in which non-state customary issues (land conflicts, pay back etc.) played a major role. This article explores the specific features of post-conflict peacebuilding on Bougainville that flow from this context, focussing on the local capacities, but also acknowledging the contribution of international peacekeeping, particularly through the United Nations and a regional Peace Monitoring Group. Based on the Bougainville experience, the article develops a critique of the conventional Western peacebuilding-asstatebuilding approach to fragile post-conflict situations, and it critiques the accompanying focus of external actors on capacity-building of state institutions for maintaining order and internal peace. It makes a case for an alternative approach which acknowledges the hybridity of political order and the co-existence and interplay of state and non-state providers of security and justice. Positive mutual accommodation of state and non-state customary institutions are presented as a more promising way to sustainable internal peace and order than the attempted imposition of the Western Weberian model of the state.
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Hudson, John, William Eves, and Sarah White. "CLCLCL - Civil Law, Common Law, Customary Law: Consonance, Divergence and Transformation in Western Europe from the late eleventh to the thirteenth centuries - ERC." Impact 2019, no. 1 (February 22, 2019): 6–8. http://dx.doi.org/10.21820/23987073.2019.1.6.
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Socher, Johannes. "Lenin, (Just) Wars of National Liberation, and the Soviet Doctrine on the Use of Force." Journal of the History of International Law 19, no. 2 (May 16, 2017): 219–45. http://dx.doi.org/10.1163/15718050-19231018.
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Today, the prohibition of the use of force is universally accepted as a norm of customary international law. Nevertheless, several exceptions are discussed in international law scholarship. One of them, wars of national liberation, originates in Lenin’s socialist war theory and was subsequently maintained by the former Soviet doctrine of international law. Little known in western academia, this Soviet argument of national liberation struggles to be ‘just wars’ is still alive in Russian international law scholarship today, and, therefore, a lasting legacy of Lenin’s theory of wars of national liberation in international legal discourse as developed around the time of the Russian Revolution (even if sometimes ignored) may be conceded.
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Brunnée, Jutta, and Stephen J. Toope. "SELF-DEFENCE AGAINST NON-STATE ACTORS: ARE POWERFUL STATES WILLING BUT UNABLE TO CHANGE INTERNATIONAL LAW?" International and Comparative Law Quarterly 67, no. 2 (November 6, 2017): 263–86. http://dx.doi.org/10.1017/s0020589317000458.
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AbstractCan a few primarily Western States expand the right to self-defence against non-State actors, incorporating the unwilling or unable standard? Even on a traditional reading of customary law formation, the answer is no because proponents have failed to attract consistent and widespread support. What is more, using our interactional international law approach, we show that efforts to date have not been successful because they have failed to address fundamental rule of law concerns. The current state of world politics has perhaps caught proponents of the unwilling or unable standard in a difficult bind. We suggest how proponents might carefully develop the law on self-defence against non-State actors.
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Meitzner Yoder, Laura S., and Sandra F. Joireman. "Possession and Precedence: Juxtaposing Customary and Legal Events to Establish Land Authority." Land 8, no. 8 (August 18, 2019): 126. http://dx.doi.org/10.3390/land8080126.
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Land restitution carries implicit recognition of some previous claim to ownership, but when are first claims recognized? The concepts of first possession and original acquisition have long been used as entry points to Western concepts of property. For Austronesia, the concept of precedence is used in customary systems to justify and describe land claims and Indigenous authority. Conflict and political change in Timor-Leste have highlighted the co-existence of multiple understandings of land claims and their legitimacy. Considering customary principles of precedence brings into relief important elements of first possession important in land restitution processes. This paper juxtaposes the concept of original acquisition in property theory to two different examples of original claims from Timor-Leste: a two-part customary origin narrative from Oecusse and the development of a national land law for the new state. In these three narratives, we identify three different establishment events from which land authority develops. The article then uses this idea of the establishment event to explore five points of customary-statutory intersection evident from the land restitution process: (1) legitimate sources of land authority; (2) arbitrary establishment dates; (3) privileging of social order; (4) recognition of spiritual ties to land; and (5) the possibility for reversal.
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Apoh, Wazi, Kirsty Wissing, Wendy Treasure, and Joe Fardin. "Law, land and what lies beneath: exploring mining impacts on customary law and cultural heritage protection in Ghana and Western Australia." African Identities 15, no. 4 (May 16, 2017): 367–86. http://dx.doi.org/10.1080/14725843.2017.1319752.
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