Dissertations / Theses on the topic 'Customary law'
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Sijansky, Adam Wayne. "The Significance of Feudal Law in Thirteenth-Century Law Codes." Thesis, University of North Texas, 2011. https://digital.library.unt.edu/ark:/67531/metadc67948/.
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Although developments in feudal law in the thirteenth century influenced the legal environment of Europe for centuries, much of past and current historical research of feudalism examines the social system anthropologically but neglects an in-depth analysis of feudal law codes. My research combines the social-anthropological approach with relevant customary codes to demonstrate the importance of feudal law to a thirteenth-century society plagued by war, economic and social instability, and competing powers of the monarchy, judiciary, and religion. The assessment of feudal law within each legal code highlights its prominence as an accepted category of jurisprudence. This thesis provides a new perspective on the influence of feudalism in the thirteenth century, demonstrating the significance of feudal law as a mode of maintaining peace and prolonging land tenure.
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Chapeskie, Andrew. "Laws of the land: Aboriginal customary law, state law and sustainable resource management in Canada's north." Thesis, University of Ottawa (Canada), 1993. http://hdl.handle.net/10393/6514.
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This thesis presents a comparative analysis of Aboriginal customary law and Canadian law in relation to the management and conservation of natural resources on crown lands. By reference to field research carried out with respect to a specific context of Aboriginal resource management, the thesis highlights the sophistication and distinctiveness of the customary Aboriginal regulation of community-based common property resource harvesting and management in both subsistence and commercial use contexts. This perspective reveals the conflictual tendencies between Aboriginal and State systems of the regulation of resource management where the former has been largely unrecognized by the latter. An analysis of the relevant jurisprudence highlights the ethocentric bias mitigating against the recognition and acceptance of Aboriginal resource management that has continued right up to the present time.
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Mwambene, Lea. "Divorce in matrilineal customary law marriage in Malawi: a comparative analysis with the patrilineal customary law marriage in South Africa." Thesis, University of the Western Cape, 2005. http://etd.uwc.ac.za/index.php?module=etd&.
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This research aimed to undertake an investigation into the question of whether after divorce, in the matrilineal customary law marriage in Malawi, women's rights are severely violated. The study showed causes of divorce, how proceedings are done, how issues of property are handled, how the issue of custody of children and maintenance are also handled. All this was weighed against the constitutional provisions and international law.
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Mehlitz, Uwe. "Die Stellung des Customary law im Zivilrechtspluralismus Namibias /." Baden-Baden : Nomos Verl.-Ges, 2004. http://www.gbv.de/dms/spk/sbb/recht/toc/376086866.pdf.
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Sanger, Andrew Gareth. "Corporate liability for violations of customary international law." Thesis, University of Cambridge, 2015. https://ethos.bl.uk/OrderDetails.do?uin=uk.bl.ethos.709310.
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Elias, Olufemi Adekunle. "The consent of states and customary international law." Thesis, University College London (University of London), 1994. http://discovery.ucl.ac.uk/10061838/.
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This dissertation is an examination of the role of consent in the process by which rights and obligations are created under customary international law. Two related issues are examined. One is the role of consent in the creation of customary law generally, and the other is the question whether the consent of a State or a group of States to a stipulation of customary international law is a condition of the applicability of that law to those States. Part One examines the relationship between the notions of consent, state practice and opinio juris. Chapter I examines the nature of the law governing the creation of customary law. Chapter II compares opinio juris with consent. In Part Two, Chapter III sets up a framework for the enquiry, namely, a spectrum of views expressed about the role of consent. Chapters IV and V then examine the decisions of tribunals and the practice of States to see which of the points on the spectrum corresponds most closely to those decisions and practice. Chapter VI compares general and nongeneral custom as far it relates to the role of consent. Chapter VII examines the position of newly independent States in relation to customary law established before they achieve statehood, and is concerned more with evidence than with general considerations. Part Three deals with the main objections to, and the possible advantages of, the requirement of consent in the contemporary customary law process. It will be suggested that consent does, and should, play an essential part in the customary law process.
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Osman, Fatima. "The administration of customary law estates post the enactment of the reform of customary law of succession act: a case study from rural Eastern Cape, South Africa." Doctoral thesis, Faculty of Law, 2019. http://hdl.handle.net/11427/30791.
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After years of deliberation and judicial activism, the South African legislature in September 2010 brought into force the Reform of Customary law of Succession and Regulation of Related Matters Act 11 of 2009 (the Reform Act). The Act regulates the devolution of property of individuals who live according to customary law and die intestate. The notorious customary law principle of male primogeniture, according to which males inherited to the exclusion of females, has been abolished and replaced with the common law system of intestate succession. It has been nine years since the enactment of the Reform Act. This thesis investigates the implementation of the Act to understand its application by officials and people’s experiences thereof. It is a qualitative study that draws upon doctrinal and empirical research to address its objectives. The theoretical concepts of deep legal pluralism and the semi-autonomous social field are employed as the analytical prism through which the administration of customary law estates is investigated. The findings are based on a comprehensive case study conducted in a rural village in the Eastern Cape of South Africa. Individuals, the traditional leader, the headman and state officials were interviewed to understand how estates are reported and the devolution of benefits. The interviews were augmented by an analysis of a sample of case files drawn from the Master’s Office responsible for the administration of estates. The findings revealed the resilience of living customary law in the administration of estates, particularly in respect of homes situated in rural areas. In this regard, living customary law has evolved to allow women and daughters greater rights to property but it still displays patriarchal overtones as males are considered the true owners of homes. The Reform Act regulates more effectively the devolution of assets found in the formal sector, such as financial assets. The case study found most estates were valued at less than R250 000, with the result that deceased’s surviving spouse and children were the primary beneficiaries of the estate. However, a statutory right of inheritance is no guarantee that beneficiaries enjoy their rights as there is a significant risk of property grabbing. While much has been done to reform the customary law of succession, there is room for improvement in securing the rights of dependents of the deceased, facilitating the reporting of estates and ensuring the implementation of mediated solutions in communities. The thesis thus offers practical recommendations to improve the system of administration. First, the thesis recommends a move towards a functional, fact-based approach to inheritance which extends inheritance rights to individuals supported by the deceased while alive, regardless of whether they constitute a spouse or a descendant as statutorily defined. This addresses the lack of protection for unmarried partners and the broader notions of family found in customary law. Second, it advocates for the greater leveraging of traditional institutions such as chiefs and families in the reporting of estates and resolution of disputes. Third, the dissemination of information through state and non-state institutions is promoted. Fourth, it advocates for the explicit condemnation of corrupt state practices which exploit vulnerable individuals. Finally, the thesis recommends further research into practices such as the existence of family property and administration of estates in urban areas. Understanding the nuanced manner in which administration is experienced is argued to be necessary for successful reform.
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Igiehon, Mark Osayomwanbo. "Abandonment : revisiting customary international law and moving the frontiers of public choice law." Thesis, Southampton Solent University, 2004. http://ssudl.solent.ac.uk/595/.
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In recent years there has been a likely increase in the incidence of decommissioning of offshore oil and gas installations and considerable dissension has arisen over the legal aspects of decomissioning. There is controversy as to the applicable rules of international law. There is also dissension as to adequacy of both international and state laws and practices in providing for the various interests identified by international law itself as vital to any consideration of the manner in which disused installations ought to be disposed of. The thesis therefore examines the international legal regime of the continental shelf, on which most offshore oil and gas installations are located. There is also a review of relevant principles of the law of the sea as well as other maritime zones known to international law. A comparative study is undertaken of law and practice on abandonment in six jurisdictions, selected as fairly representative of oil-producing regions of the world. Those jusrisdictions are Australia, Kuwait, Nigeria, Norway, the United Kingdom and the United States. From the analysis, it hoped to ascertain representative state practice on abandonment. In view of the issue within the abandonment controversy as to whether or not Article 60(3) UNCLOS and the IMO Guidelines 1989 had become customary international law rules there is analysys of the concept of customary international law. Following that analysis, a model or paradigm is developed for use in assessing the emergence of new norms of customary international law. The objective is that the emergence of the new model will in the future enable the objective, expeditious and forthright assessment of contended rules of customary international law. The work goes further to consider whether the IMO Guidelines achieved a strategic balancing of the contending interests set out in Article 60 (3) and tries to postulate the reasons why those rules and Guidelines failed following the Brent Spar incident. Aspects of the legal-economic theory of regulatory capture are considered as apposite. The work concludes by identifying new and emerging trends in relation to abandonment practices and concludes with a postulation and as well as proposals as to how abandonment is expected to develop into the future.
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Aladetola, Opeyemi. "Analysis of the Nigerian Supreme Court's constitutional duty regarding women's inheritance right under customary law." Master's thesis, University of Cape Town, 2017. http://hdl.handle.net/11427/24935.
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Customary law existed before the enactment of formal laws to govern the affairs of Nigerians. It started as behavioural norms that grew to be widely accepted by the community and became law. Inheritance rights are recognised under Nigerian customary law. Most customs provided for a way in which a person's properties could be distributed upon his death. However, most of these customs did not make provision for women in the distribution of a deceased estate. This disparity between the inheritance right of a man and woman was very prominent in the distribution of landed properties. Upon the demise of a man, his estate becomes family property and his eldest male child inherits it on behalf of other male members of the family. Where the deceased dies without a son, his brother inherits the estate. Notably, the Constitution did not abolish laws that existed prior to its enactment. It provides that these laws shall continue to exist subject to its provisions, the Constitution provides for its supremacy over every other law, and that the court has a duty to invalidate any law that is inconsistent with its provisions. The Court found the opportunity to alter the unfair discriminatory position against Nigerian women and develop customary law in line with Constitution in the case of Anekwe v Nwekwe. Here, the defendant (brother of the deceased) sought to evict the plaintiff (widow of the deceased and her female children) from the property of the deceased because she had no male child. He claimed that based on their customary law female children are excluded from inheriting property. The Supreme Court then invalidated this customary law of male primogeniture for being repugnant to natural justice, equity and good conscience. Although the decision of the court solved the problem of discrimination, it failed to develop customary law by invalidating only the discriminatory aspect of the customary law. Lessons can therefore be drawn from the minority decision of the South African Constitutional Court in the case of Bhe v Magistrate of Khaylistha, where recourse to developing the customary law was posited. This study will examine to what extent the court has applied customary law to bring it to conformity with the Constitution, drawing from other African countries especially South Africa. It utilises literature review and case law analysis, arguing that the court needs to review the Anekwe v Nwekwe case and make a more declarative position that brings customary law up to date with modern realities. It will recommend that the courts should in consultation with the people develop the customary law of inheritance.
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Supaat, Dina Imam. "Refugee children in Malaysia and the customary international law." Thesis, University of Birmingham, 2015. http://etheses.bham.ac.uk//id/eprint/5937/.
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The interest in embarking on this study is prompted by the predicament of refugee children under Malaysian jurisdiction and the dire need to improve their situation. This thesis is aimed at investigating the applicability of two rules relating to refugee protection: the principle of non-refoulement and the best interests of the child, which are believed to have become customary international law (CIL) which binds all states without their consent. The focus of this thesis is the prolonged problem of refugee children’s protection and the possibility of improving their conditions using international law while acknowledging that Malaysia is not a party to the 1951 Convention Relating to the Status of Refugees. The thesis begins by discussing the international refugee protection regime and the position of the CIL mechanism; this will be followed by a discussion of the Malaysian legal framework to show the gap between international law and domestic law relating to refugees. The next focus of attention is the general condition of refugee children in Malaysia and the treatment accorded to them by the authorities. Their unpleasant condition explains the link between the absence of law and their protracted situation. The next task is to examine whether or not the two principles have attained CIL status; the thesis also considers the duties of the state under the two rules, the persistent objector rule, and the application of the principles and the obligation that accompanies them as CIL in the domestic courts. Lastly, the conclusion and recommendation are presented at the end of this thesis. Noting that local resources and literature on this subject are limited, this thesis will contribute to the existing body of knowledge on this matter and provide an interesting argument to advocate legal reform to improve refugee protection in the country.
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McLachlan, Campbell Alan. "State recognition of customary law in the South Pacific." Thesis, University College London (University of London), 1988. http://ethos.bl.uk/OrderDetails.do?uin=uk.bl.ethos.285211.
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Mwambene, Lea. "The impact of the Bill of Rights on African customary family laws : a study of the rights of women in Malawi with some reference to tevelopments in South Africa /." Online Access, 2008. http://etd.uwc.ac.za/usrfiles/modules/etd/docs/etd_gen8Srv25Nme4_8528_1271625878.pdf.
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Dennison, David Brian. "The status, rights and treatment of persons with disabilities within customary legal frameworks in Uganda: A study of Mukono District." Doctoral thesis, University of Cape Town, 2017. http://hdl.handle.net/11427/27074.
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This thesis addresses the question: How do customary legal frameworks impact the status, rights and treatment of persons with disabilities? It is motivated by two underlying premises. First, customary legal frameworks are highly consequential in Sub-Saharan contexts. Second, human impairments are likely to impact status, rights and treatment in customary legal scenarios. In addition, the reality of deep legal pluralism and an anthropologically versed conception of customary law inform the research design. Customary legal content is rightly discerned by researching its substance and application within the lived environment. The researcher gathered input and stories of 63 persons with disabilities and conducted interviews of 23 community members with heightened knowledge of cultural matters in order to discern the experiences of persons with disabilities in non-formal legal contexts. In her semi-autonomous social field approach, Sally Falk Moore considers diverse and layered sources of law when determining the normative legal content in lived contexts. However, this research uncovered little in the way of normative principles specially pertaining to persons with disabilities within lived environments. Instead, legally consequential occurrences take place in customary scenarios that are largely autonomous from formal actors and institutions. The perceived normative substance of formal and customary law can influence the outcome of customary scenarios, but the decision makers' working knowledge of this legal content as it pertains to people with human impairments is limited and disparate. Decision-making family, clan and community members take various factors into consideration when determining rights, status and treatment in customary scenarios. Suppositions about the capacity and functionality of persons with disabilities are particularly influential. Thus, human impairments can be consequential factors in these decisions. This thesis demonstrates that customary scenarios are highly significant forums for establishing customary rights and status in the contexts of marital relations, clan leadership, customary guardianship, customary succession and land rights. Moreover, it indicates that effectual social and legal influences in these scenarios are multi-sourced, multi-layered and dynamic. Finally, the thesis offers practical change strategies suggested by the research for those seeking to improve the status, rights and treatment of persons with disabilities in Mukono District and similar settings.
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Maphalle, Kagiso Annette. "Succession in woman-to-women marriages under customary law: a study of the Lobedu Kingdom." Master's thesis, University of Cape Town, 2017. http://hdl.handle.net/11427/26908.
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This study looks into the ways in which official customary law addresses succession complexities and legitimacy in woman-to-woman marriages. The social, political, cultural and legal background against which these marriages are concluded show the history of succession in woman-to-woman marriages and the position of women and children. The thesis highlights provisions of customary succession laws legislators sought to redress through the Reform of Customary Law of Succession and Related Matters Act 11 of 2009 and the Recognition of Customary Marriages Act 120 of 1998, which affect widowed spouses and certain children in customary marriages. The study uses literature review, case analysis and interviews to investigate the operation and legitimacy of woman-to-woman marriages, the benefits or harmful effects thereof, the background, context and history of the customary law of succession and acceptance of children in Bolobedu, and the application of living customary law. The study finds that woman-to-woman marriages are legitimate customary marriages under Lobedu customary law. It also finds that customary succession laws in such marriages have traces of patriarchy, although the community is under a matriarchal system of governance. It finds that the rule of male primogeniture is still applicable, and that women do not have a right to inherit from their deceased parents except at the discretion of the male heir. It finds that the acceptance of children in woman-to-woman marriages includes the performance of ceremonies symbolising the female husband's acceptance, and the child's use of her surname. It further finds that the application of official customary laws in Bolobedu is negligible, with the living customary law being the applicable law for all succession disputes. A further finding is the general lack of knowledge and understanding of succession rights under official customary laws by the community and their traditional leaders, who are aware only of provisions of the Lobedu living customary law which they readily provide. The study concludes that the legislators, judiciary and policy makers' lack of knowledge and understanding of woman-to-woman marriages and its accompanying succession laws inhibits and limits the adequacy of official customary law to regulate succession complexities. Rural communities' perceptions of their rights and knowledge of customary laws of succession, the practicality of provisions of official customary laws of succession, and their relatability to lived realities of rural communities further add to the inadequacy of official customary law.
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Weeks, Sindiso Mnisi. "The interface between living customary law(s) of succession and South African state law." Thesis, University of Oxford, 2010. http://ethos.bl.uk/OrderDetails.do?uin=uk.bl.ethos.669981.
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Popkins, Gareth. "The Russian peasant volost court and customary law 1861-1917." Thesis, University of Oxford, 1995. http://ethos.bl.uk/OrderDetails.do?uin=uk.bl.ethos.320934.
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Morudu, Ntebo Lauretta. "The indiginisation of customary law : creating an indingenous legal pluralism." Diss., University of Pretoria, 2019. http://hdl.handle.net/2263/77420.
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In the advent of the current dispensation, South Africa’s Constitution elucidates that customary law is in parallel with common law under section 39 of the Constitution,1 in light to this contention, the study begs to claim that this is only superficial.2 The constitutional advancement of customary law has been delayed in terms of legislative and judicial reform and development, and the legislature is inattentive with respect to remedying the inadequate position customary law is placed in. Instead, the legislature has been replacing customary law considered ‘non-transformative and undeveloped’, with common law to promptly deal with customary disputes.3 The insufficiency of the development and reform of customary law allows the judiciary and the legislature to limit the development of customary law as a whole in terms of its application and interpretation. It is highly significant to engage with the need to ascertain indigenous people's human rights in South Africa, by paving the way and ensuring due regard to their legal regimes.4
Even at the advent of the codified version of customary law; there are still ambiguities and misunderstandings that exist within the official customary law.5 Engaging in the creation of indigenous legal pluralism in questioning whether customary law can exist as a separate pluralism within the South African state law pluralism, it is both bold and daunting. If an argument cannot be successfully made, the question left to ask by the study is, can customary exist successfully, undistorted and purposefully within the current dispensation? Can the courts and the legislature ensure its constant development and codification, especially giving due regard to living customary law and the customs that exist concurrently?
There are foreign and international legal improvements and ways in which some states seek to enforce indigenous people's rights to self-determination and enforcing their legal regimes to recognise and apply their laws in solving their prevailing customary disputes.6 A comparative analysis is essential to assess the longstanding argument that will be made in the study. It is of great significance to consider not only national law in terms of seeking advancement and legislative reform of South Africa’s indigenous pluralism. Additionally, comparatively studying the legal status of foreign customary law that will be used in the study to shed light on how to create such deep indigenous pluralism. Not only considering foreign law but also the current reform of intellectual property law and environmental law; which seeks to recognise the indigenous people's rights for the protection of their indigenous knowledge and resources, respectively. The study would like to engage such legislative reform in order to answer the daunting question of the creation of deep indigenous legal pluralism to ascertain indigenous people's legal regimes and the hegemonic realism of their customary law.Dissertation (LLM)--University of Pretoria, 2019.
Private Law
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Khumalo, Zamantungwa. "The role of customary law in women's access to land." Diss., University of Pretoria, 2017. http://hdl.handle.net/2263/65667.
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Ozoemena, Rita Nkiruka. "African customary law and gender justice in a prograssive democracy." Thesis, Rhodes University, 2007. http://hdl.handle.net/10962/d1003207.
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The constant clash of African culture and traditions with human rights continue to militate against the adequate protection of women’s rights. Thus, African women constantly face challenges resulting from restrictions under customary laws of succession and inheritance, witchcraft violence, degrading treatment to widows, domestic violence; women killed by their partners, rape of women and children under all kinds of circumstances. This thesis was prompted by the issues raised in the Bhe case of the Constitutional Court of South Africa. In this landmark judgment, Ngcobo J dealt with the development of customary law, and how it must be approached by the courts in a manner that would have due regard to the rights of women on one hand and, on the other, would also accord customary law of its proper place, purpose and values within the African context. Against this background, the thesis focused on South Africa, Nigeria and Lesotho as excellent models of the broader challenges for women as well as governments; despite certain legislative measures put in place by the latter, the battle continues unabated for the balance of traditions and culture with women’s rights issues. Although South Africa is more progressive in terms of Constitution and practice than Nigeria and Lesotho, a lot still needs to be done particularly in the area of harmonization of laws. Regrettably, in Nigeria and Lesotho respect for the Constitution is superficial and lacks substantive policies that would promote women’s rights. To this extent, the balance of democratic values and promotion of women’s rights issues within the continent lie in women being partners in development rather than unduly suffering under intense burden of culture, tradition and societal stereotypes.
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Shabana, Ayman. "Customary implications in Islamic law the development of the concept of ʻurf in the Islamic legal tradition /." Diss., Restricted to subscribing institutions, 2009. http://proquest.umi.com/pqdweb?did=1905705581&sid=4&Fmt=2&clientId=1564&RQT=309&VName=PQD.
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McIntyre, John P. "The uses of custom in Gratian." Theological Research Exchange Network (TREN), 1987. http://www.tren.com.
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Kontou, Athanassia. "Treaty termination or revision in the light of new customary law." Thesis, University of Cambridge, 1990. http://ethos.bl.uk/OrderDetails.do?uin=uk.bl.ethos.358689.
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Fullan, Daniel F. "Customary law and gender relations in Zambia : the case of Serenje District." Thesis, University of Sussex, 1992. http://ethos.bl.uk/OrderDetails.do?uin=uk.bl.ethos.384878.
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Sunde, Jacqueline. "Customary governance and expressions of living customary law at Dwesa-Cwebe: contributions to small-scale fisheries governance in South Africa." Doctoral thesis, University of Cape Town, 2014. http://hdl.handle.net/11427/13275.
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Includes bibliographical references.Customary systems of marine resource governance have gained increasing attention internationally in the past three decades. Notwithstanding this, and despite the Constitutional recognition of customary governance and customary law in South Africa, the post-apartheid legislative reforms in the fisheries sector have failed to recognise customary systems of marine resource governance. Drawing on a case-study of the Dwesa-Cwebe community in the Eastern Cape, South Africa, this research aimed to describe and understand the customary marine resource governance system of this community and its relationship to living customary law. It explores how this customary system of marine resource governance has interfaced with statutory and other systems of law in the past and how it continues to develop in the current context. The findings from this research highlight the distinctive nature of the customary system of marine resource governance practiced by the community of Dwesa-Cwebe and their expressions of living customary law embedded in this governance system. The nature of this system is foundationally different to that of a Western statutory governance system. This customary system of governance has interacted with the statutory system for over a century, in part distorted by this system but retaining its integrity. In the context of the Constitutional recognition of customary systems of governance and customary law, this governance system now requires understanding and recognition in a new system of marine resource governance in South Africa. This thesis explores the contribution that this system of customary governance can make towards promoting socially just smallscale fisheries in South Africa. It argues that harmonisation of the statutory and customary system of marine resource governance demands an approach to governance theory and practice that is able to imagine an alternative ‘ecology of governance’.
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Byers, Michael. "Custom, power and the power of rules international relations and customary international law /." Cambridge : Cambridge University Press, 1999. http://www.ebrary.com/.
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Orakhelashvili, Alexander. "Peremptory norms in international law /." Oxford [u.a.] : Oxford Univ. Press, 2006. http://www.gbv.de/dms/spk/sbb/recht/toc/508437466.pdf.
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Mqeke, Bangilizwe Richman. "Traditional and modern law of procedure and evidence in the chief's courts of the Ciskei." Thesis, Rhodes University, 1986. http://hdl.handle.net/10962/d1003202.
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In this thesis it is intended to show, among other things, the evolution of the Ciskeian traditional African Court practice and procedure from the time of the advent of white rule up to the present day. In chapter two we show the manner in which the various Cape Governors tried to suppress the traditional court system and law by superimposing western type law and norms (repugnancy clause) on the unwilling African population. The case law discussed in chapter 3 clearly shows the problems that arose and which to a large extent, still arise in the application of the Chiefs' Civil Courts Rules. Non-compliance with these rules reveals the need both for the training of the personnel of these courts and reform of the rules governing the Chief's courts. The areas that need urgent attention have been identified and the necessary recommendations have been made.
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Lohvin, Victoria. "Ukrainian customary law, an attempt at analyzing some aspects of women's rights." Thesis, National Library of Canada = Bibliothèque nationale du Canada, 1997. http://www.collectionscanada.ca/obj/s4/f2/dsk3/ftp04/nq21594.pdf.
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Radijeng, Godfrey Olebogeng. "Customary law and gender equality : the legal status of women in Botswana." Thesis, University of Oxford, 2004. http://ethos.bl.uk/OrderDetails.do?uin=uk.bl.ethos.404025.
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Gale, J. L. H. "Nature's secret art : the evolution of conventions, cooperation and customary international law." Thesis, University of Cambridge, 2011. http://ethos.bl.uk/OrderDetails.do?uin=uk.bl.ethos.599274.
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This central aim of this thesis is to provide sound foundations for understanding two persistent and closely related questions within international relations and international legal theory. First, can genuine cooperation arise in a world of self-interested states that recognise no political superior? And second, can we defend the reality of international law as a force for shaping state behaviour in a decentralised world? Most pertinently, building on international relations scholarship regarding the problem of cooperation, a profound redirection in our thinking about international law has gained momentum in recent years. This approach, based on game theory, emphasises the centrally of state interest and rationality as the basis concepts of international affairs; so far as state behaviour can be understood as the product of the rational pursuit of self-interest, it is argued that law and genuine cooperation have no explanatory parts to play. Game-theoretic scepticism regarding the reality of law and cooperation requires a robust game-theoretic defence, and this is what this thesis attempts to provide. It is first argued that customary international law is the logical basis of international law. This is not a defect of international law, for any system of law is ultimately based on custom. Conventions, defined as stable regularities of cooperative behaviour ultimately founded on self-interest, are taken to provide the theoretic foundations of social customs. The central theoretic difficulty is then to explain how self-regarding agents, unrestrained by a prior social order, may form conventions that give rise to social customs. Kant hypothesises that ‘Nature’ may play her hand and extricate us from the antagonism that characterises our relations before social norms have evolved. Identifying Nature with the forces of evolutionary selection, the tools of evolutionary game theory are used to demonstrate how self-interested egoists may establish stable norms of international behaviour. International interaction is modelled by the repeated Prisoner’s Dilemma, and how a state behaves in any interaction is determined by its strategy. So long as states occasionally imitate the strategies of other better-performing states, and so long as states occasionally switch spontaneously to other strategies, the evolutionary game theory may be used to understand how conventions arise and persist: importantly, rationality need not be presumed. Three mechanisms for the genesis of social conventions are presented. These are reciprocity, punishment based on multi-level selection, and reputation. Each mechanism provides a basis for an idealised understanding of the genesis and persistence of social conventions, and consequently international cooperation and customary law. It is hoped that this preliminary attempt to introduce evolutionary thinking to international affairs will broaden our understanding of, and help to direct future research into, the perennial controversies over the potential for cooperation and effectiveness of legal norms in international affairs.
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Beckett, Jason A. "The end of customary international law? : a purposive analysis of structural indeterminacy." Thesis, University of Glasgow, 2005. http://theses.gla.ac.uk/2754/.
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Where CLS, and other critical discourses, seek to “uncover” and “explode” the ideologies and biases of law, to demonstrate its inability to fulfil its promises, the present work is intended to initiate the task of demanding that law, and especially CIL, live up to those very promises. But first, the nature of these promises, and the structure and purpose of law must be examined, analysed, and where necessary contested and decided, or rather, defined. In this regard, the hidden assumptions of legal theory must be uncovered and problematised; the debates over law must be disaggregated, before law itself can be properly determined. Only after these tasks have been completed can the nihilist challenges of NAIL be met. This thesis argues that CIL is best understood as an independent system of rules, against which state conduct may be assessed; rather than as a necessarily authoritative institutional reality. This highlights the distinction between law-creative, and merely legally evaluable, state actions. The theory presented in the final chapter - which is developed from the methodology outlined in the preceding four chapters - acts as a lens through which those actions of states which alter or develop CIL may be distinguished from those actions which ought, merely, to be judged in the light of CIL. This allows us to distinguish legal from illegal state conduct, regardless of the absence or presence of enforcement. This distinction between the legal and the illegal is distinct from, analytically prior to, and more important than, the enforcement of legal commands.
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Band, Helen Margaret Kathleen. "Customary law, social memory and collective identity in Essex c.1540-1700." Thesis, University of East Anglia, 2011. https://ueaeprints.uea.ac.uk/32631/.
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Kwonyike, Joshua K. "Legal pluralism in Kenya : a study of Tugen-Arror customary family law." Thesis, University of the West of England, Bristol, 2002. http://ethos.bl.uk/OrderDetails.do?uin=uk.bl.ethos.392856.
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This thesis looks at legal pluralisln in fatnily law. Its Inain concern can be divided into two: the extent of co-existence of indigenous customary family law in a Kenyan society on one hand, and state law (principles and rules) regulating family relations, on the other. This study was based on the Tugen-Arror ethnic community in the Rift Valley Province. One among the 43 ethnic groups found in Kenya; a country colonised by Britain from 1895 to 1963. This left a legal structure which is pluralistic in nature. Nothing confirms this more than the sources of law, the institutions and procedures that exist today. As indicated in this thesis, the sources of law in Kenya can be divided into two main categories: First and foremost, those referred in the thesis as 'inherited' or 'official' state laws which were at first introduced during the colonial rule and later through the post-colonial legal institutions. Secondly, those referred in here as 'indigenous' or 'customary law'. These are custolnary 'legal' norms representing the many ethnic communities in Kenya. The aim of the dissertation, therefore, concerns the implications of legal plurality, the co-existence of different legal principles, institutions and processes all interconnected with the various sources of law, on the general operation of customary family law in Kenya. This co-existence of diverse competing legal systen1s, institutions and processes creates an inevitable conflicting situation. This is nowhere better observed than in the rules and processes connected with customary family relations; particularly in marriage, brideprice, divorce and issues pertaining to parentchild relations (adoption, guardianship and fosterage). In the process of discussing these customary family related matters under the auspices of Tugen-Arror customary law, the different facets of customary and family rules, behaviours, relationships and likewise principles, rules and relations under state law are highlighted. The reason for doing so is to try and reveal the different aspects of Tugen-Arror customary practices that differ from those observed in other communities. The dissertation therefore, focuses mainly on the customary practices of the Tugen-Arror community, at a period of social, economic and political change exerted by forces unrelated to their traditional past, values and aspirations deeply entrenched and in which any social change taking place does so with the interest of the wider family at its core.
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Kazemi, Abadi Alireza. "Reaffirmation and development of customary international humanitarian law by international criminal tribunals." Thesis, King's College London (University of London), 2017. https://kclpure.kcl.ac.uk/portal/en/theses/reaffirmation-and-development-of-customary-international-humanitarian-law-by-international-criminal-tribunals(df866a57-9959-4706-888e-737e75e68d2b).html.
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The codifying of international humanitarian law (IHL) that began in the mid-nineteenth century has not diminished the importance of customary international humanitarian law (CIHL), at least, in filling the gaps between the needs of the victims of armed conflicts and the inadequacies of conventional law. This is fully reflected in the case-law of international criminal tribunals (ICTs) where customary law has been extensively applied in areas that are not sufficiently regulated by treaty provisions or where the parties to armed conflicts were not parties to similar treaties. This study mainly focuses on the contributions of the judicial decisions of the ICTs to the current state of CIHL. It examines how the decisions have reaffirmed certain rules of CIHL or, when applicable, how they have influenced the subsequent development of CIHL. It also seeks to analytically study the rules of IHL identified as customary in the decisions of ICTs. In the course of research, the customary definition of non-international armed conflicts (NIACs), tests for determining internationalized armed conflicts, customary content of war crimes, and their application to NIACs are discussed in greater details. It is argued that the ICTs contribute to customary rules by way of reaffirmation and development. They develop CIHL through judicial interpretation or practical application of existing laws to new cases. CIHL has the advantages of flexibility in formation and universality in application. The case-law of ICTs, however, clearly reveals that the prime advantage of CIHL is its constituent elements and the prerogative that the ICTs can exercise in identifying customary rules. The ICTs deliberately choose combinations of the elements of opinio juris and State practice to draw the rules that they consider to be suitable for protecting the victims of armed conflicts. The methodology has been occasionally criticized to be ultra vires law-making. This research shows that the methodology is still definable in the positivist views to international law-making, though they have managed to develop CIHL beyond its traditional boundaries to cover areas of IHL, such as NIACs where States have been traditionally reluctant to develop.
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Kabandula, Abigail. "Women of St. Marks, Transkei : negotiating customary law, c.1940 - c.1960." Master's thesis, University of Cape Town, 2009. http://hdl.handle.net/11427/8969.
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Includes bibliographical references (leaves 68-73).This thesis explores the ways in which customary law affected the women of the St. Marks district, Transkei between 1940 and 1960. In particular, it examines how women worked within and through customary law and the customary law courts in order to obtain redress for their problems. The thesis discusses the argument that the codification of customary law was the result of collaboration between older African men and colonial administrators and that its effect was to increase and render more rigid the patriarchal control of women. It argues that literature on women and customary law shows that after African customs were codified, their form and content changed in accordance with British administrators' legal and administrative needs. Women's legal and social status was negatively affected. The codified law emphasised the patriarchal aspects of the African custom and reduced women's social status in society. However, the thesis concludes that the question of how far customary law oppressed women has not yet been resolved. Using Customary Law Court Cases and records from the Chiefs Courts, the Native Commissioner Courts and the Native Appeal Courts of St. Marks District in Cofimvaba in Transkei from the late 1930s to the early 1960s, this thesis explores how women viewed themselves in relation to the law and also to the way it was applied by officials in the courts. It also explores and how women negotiated customary law in a bid to deal with the changes in the lives brought about by Christianity, capitalism and migrant labour. Missionary teachings, colonial rule, capitalism and migrant labour were significant social and economic factors that greatly affected the lives of the women of St. Marks. In court, educated women married by Christian rites were able to manipulate and challenge patriarchal values and frustrate men's attempts to prevent their access to property and inheritance or their efforts to demean women in various ways. The thesis shows that African women were not merely victims of customary law. Rather, they found ways of negotiating their agency within the confines of the customary law courts.
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Kawai, Toshinobu. "1977 protocol II additional to the 1949 Geneva Conventions and customary international law." Thesis, University of Hull, 2001. http://hydra.hull.ac.uk/resources/hull:5450.
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Traditionally the laws of war, or widely known as international humanitarian law today, in principle did not cover civil wars but only wars between States. The Geneva Conventions were adopted in 1949 to increase the protection of victims in armed conflicts, but the protection of the victims in internal conflict by the Conventions was limited. Thus, Protocol II additional to the Geneva Conventions of 1949 was introduced in 1977 to be specifically applicable to non-international armed conflicts in order to ameliorate the conditions of those who suffer in such conflict. A State confronting a conflict in its own territory is almost always unwilling to apply an international treaty to the situation, and therefore the pace of the ratification of Protocol II has been slow. The State is not bound by the treaty unless she ratifies it, and an internal war tends to become severe and cruel with few regulations. Despite such inadequate protection, however, customary international law based on State practice and opinio furls applies to such circumstances. The purpose of this thesis is therefore to ascertain the customary status of Protocol II. This thesis first examines whether customary rules had existed before the introduction of the 1949 Geneva Conventions, and proceeds to study what is customary international law applicable to non-international armed conflict. Then this author determines whether each article of Protocol II has become customary by investigating into State practice and opinio juris, and he finds through the investigation that only a little part of the Protocol has become customary. Notwithstanding such insufficient protection for the victims in civil conflict, however, the general principles of the laws of war are always applicable to internal conflict. In addition this writer emphasises the importance of the domestic "implementation" of the humanitarian rules and recommends the introduction of a unified and simplified treaty in the future revision of the Geneva Conventions and their Protocols.
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Oluya, Donatus Sunday. "Bini Customary law of inheritence : a shift in Igiogbe as a case study." Thesis, Högskolan Dalarna, Historia, 2012. http://urn.kb.se/resolve?urn=urn:nbn:se:du-11774.
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Igiogbe cultural heritage has existed since the founding of Bini kingdom without any controversy; however since the Supreme Court decision in Idehen v Idehen the issue of Igiogbe has assumed new dimensions. Igiogbe - the house in which a Benin man lived and died devolves on his first son absolutely; but since the beginning of 20th century litigation as to the real meaning of Igiogbe and who is entitled to inheritance thereof began to increase. Controversies and increase in litigation over Igiogbe has occasioned a shift in the practice, the Bini’s are not conscious of some of these changes, most of them (Bini’s) still claim Igiogbe practices is rigidly adhered to. This study on Igiogbe inheritance in Bini kingdom is therefore carried out with a view to bringing out the changes in Igiogbe cultural practice using legal and anthropological tools to examine the changes. While laying the foundation for the discussion on the main research object the researcher examined the origin and status of customary law in Nigeria. There after I examined Igiogbe inheritance in Bini kingdom. Igiogbe and the issue of first son were critically analyzed with the aid of the research questions bringing out the changes in Igiogbe concept from traditional practice to modern practice. Study shows Igiogbe practice is still relevant in modern Bini kingdom, however, the shift and changes in practice of this cultural milieu has lead me to ask some fundamental questions which I intend to answer in the broader research work in future.
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Rogers, Nanette. "Aboriginal law and sentencing in the Northern Territory Supreme Court at Alice Springs 1986-1995." Connect to full text, 1998. http://hdl.handle.net/2123/1142.
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Luluaki, John Yavavu Yakienjo. "Customary family law in Yangoru : implications of legal pluralism in a Papua New Guinea society." Thesis, University of Cambridge, 1990. http://ethos.bl.uk/OrderDetails.do?uin=uk.bl.ethos.386093.
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Salim, Wan Noraini Binti Mohd. "Problems in the administration and distribution of intestate estates in Malaysia with reference to its foundations in customary law, Islamic law and English law." Thesis, University of Exeter, 2001. http://ethos.bl.uk/OrderDetails.do?uin=uk.bl.ethos.419178.
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Kontou, Nancy. "The termination and revision of treaties in the light of new customary international law /." Oxford : Clarendon Press, 1994. http://www.gbv.de/dms/spk/sbb/recht/toc/278845193.pdf.
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Josiah-Aryeh, Nii Armah. "Family, property and the state in Ghana : changing customary law in an urban setting." Thesis, SOAS, University of London, 1996. http://ethos.bl.uk/OrderDetails.do?uin=uk.bl.ethos.243955.
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Costa, Anthony Alec. "Segregation, customary law and the governance of Africans in South Africa, c.1919-1929." Thesis, University of Cambridge, 1999. https://www.repository.cam.ac.uk/handle/1810/272699.
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Chigara, Benedict Tendayi. "The process of custom and the legitimacy of norms of customary international law : a deconstructionist perspective." Thesis, University of Nottingham, 1998. http://ethos.bl.uk/OrderDetails.do?uin=uk.bl.ethos.267675.
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Cotton, Sonya. "The constitutional and statutory position of the 'other' wife: a comparative study of constitutional rights and polygamous customary marriages in Commonwealth Africa." Master's thesis, University of Cape Town, 2018. http://hdl.handle.net/11427/27853.
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In the context of a perceived globalisation of human rights, this thesis considers whether constitutional rights to equality and non-discrimination apply to polygynous customary marriages in Commonwealth Africa from a legislative perspective. In other words, I examine whether there is a correlation between constitutional protection of rights and legislation, sensitive to the human rights of women in polygynous customary marriages. It is shown that at a constitutional level, there is often a strong indication that human rights to equality and non-discrimination apply to customary laws, including customary institutions of marriage. This, however, often does not translate to a statutory level, resulting in marriage laws that largely side-line and ignore the possibility of polygyny in a customary marriage and the potential for human rights violations therein. I analyze the discursive mechanisms that facilitate the contradiction that arises when constitutional commitments to protect the rights of women in polygynous marriages are not met at a legislative level. I argue that practices of 'silence' and 'omission' are used to perpetuate the myth that monogamy is the default position of all marriages governed by statute. This effectively constructs polygynous marriages as an aberration to the norm, and further renders invisible the parties in polygynous customary marriages. In failing to provide statutory guidance for the complexities that may arise in polygynous marriages, I argue that women in polygynous marriages are discriminated against in comparison to women in monogamous relationships.
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Constantinou, Avra. "The right of self-defence under customary international law and Article 51 of the United Nations Charter." Thesis, University of Nottingham, 1996. http://ethos.bl.uk/OrderDetails.do?uin=uk.bl.ethos.339650.
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Hurst, Lauren. "The protection and assistance of internally displaced persons and the creation of customary international law." Thesis, University of British Columbia, 2010. http://hdl.handle.net/2429/28258.
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Since the mid-1990s, internally displaced persons have outnumbered refugees 2 to 1 in most emergencies. These are dire statistics, but I have been encouraged by recent response developments: the African Union adopted in October of 2009 the Kampala Convention for the Protection and Assistance of Internally Displaced Person in Africa, and the International Conference on the Great Lakes Region Pact on Security, Stability and Development, which includes the Protocol on the Protection and Assistance to Internally Displaced Persons, and which entered into force in June of 2008. These two hard law documents are based on the 1998 Guiding Principles on Internal Displacement, which is considered to be a soft law document.
With this foundation, my thesis seeks to examine whether these African responses to internal displacement can have an impact outside the continent’s borders through customary international law.
I argue that while it is still early to determine the full influence of the Kampala Convention and the Great Lakes Protocol, these two initiatives are indeed legitimate building blocks toward a generally applicable rule of customary international law. We should anticipate growing reference to them, and to the African experience in general, as issues of internal displacement increase in regions across the globe. However, before this normative framework can become binding international law, we will likely need to see more conventionally powerful states also adopt similar Guiding Principles-based initiatives. To support this statement, I outline the hardening process of soft law and the creation process of customary international law, and find that international legal theory suggests that African leadership can indeed initiate global norm development. I also found, however, that the potential of these two African instruments could not be wholly explained by law, and thus turned to international relations’ theory for supporting analysis.
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Mashalaba, Siyabulela Welcome. "Discrimination against women under customary law in South Africa with reference to inheritance and succession." Thesis, University of Fort Hare, 2012. http://hdl.handle.net/10353/505.
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In South Africa, it is evident that women are uniformed of their essential human rights, especially their inheritance and succession rights, including protection of such rights. Human rights are international norms that protect individuals everywhere from the states’ political, legal and social abuse. Human rights are entitlements which human beings have in order to enhance their human condition. They are the fundamental entitlements or minimum standards to be met for individual so that they live with dignity. This study focused on discrimination of women under customary law in South Africa with reference to inheritance and succession. The study validated the findings of other researchers on the impact of cultural practices on women’s rights to inheritance and succession. In addition the findings revealed that efforts t eliminate traditional practices, should foremost come from men and from communities that hold such destructive attitudes towards women. The outcomes and recommendations of this study would assist the government and other institutions to adopt effective measures to empower women and especially educate them so that they can assert and defend their human rights
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Mkhabela, Happy. "The effects and human rights implications of the dissolution of a Swazi customary law marriage." Diss., University of Pretoria, 2017. http://hdl.handle.net/2263/65689.
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Ogbonna, Nkechinyere. "What role should customary law play in the protection of traditional medicinal knowledge in Nigeria?" Thesis, University of Leeds, 2013. https://ethos.bl.uk/OrderDetails.do?uin=uk.bl.ethos.718851.
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