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Journal articles on the topic 'Customary law'

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Published: 4 June 2021

Last updated: 29 July 2024

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1

Syaufi, Ahmad, Aurora Fatimatuz Zahra, and Mursidah. "Existence of Customary Law: Badamai Customary Law." Research Horizon 1, no. 3 (June 28, 2021): 94–99. http://dx.doi.org/10.54518/rh.1.3.2021.94-99.

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Adat badamai is one form of dispute resolution commonly carried out by the Banjar people. Adat Badamai is also meant as a result of the process of deliberation in the discussion together with the intention of achieving a decision as a solution to a problem. Adat Badamai is done in order to avoid disputes that can endanger the social order. This study aims to determine the existence of Badamai Customary Law in Banjar Community, Kalimantan. The study was conducted by using socio-legal approach in analyzing the role of modern regulation with the customary practices. results showed that the existence of customary law in South Kalimantan in the Banjar tribe community is a reality that can be found in the people of Banjar people in South Kalimantan, known as the Badamai custom. Adat Badamai is done in order to avoid disputes that can endanger the social order. The Badamai decision produced through the mechanism of deliberation is an alternative effort in finding a way out to solve problems that occur in society. In the Banjar community if there is a dispute between residents or acts of persecution or violation of norms (adat) or fights or traffic violations, then the community tends to resolve in a customary-based manner.

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2

Brown, Ken. "Customary Law." Alternative Law Journal 32, no. 1 (March 2007): 11–15. http://dx.doi.org/10.1177/1037969x0703200105.

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3

BYUNG-WOON LYOU. "Local Customary International Law or Particular Customary Law." Journal of hongik law review 16, no. 2 (June 2015): 105–34. http://dx.doi.org/10.16960/jhlr.16.2.201506.105.

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4

Kleczkowska, Agata. "Changing Customary Law." International Community Law Review 21, no. 3-4 (July 12, 2019): 369–89. http://dx.doi.org/10.1163/18719732-12341407.

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Abstract The unwritten nature of customary international law (CIL) enables it to remain flexible and easily adaptable to changes in States practice and opinio juris, but at the same time may be the source of substantial uncertainties when it comes to the formation, identification and development of customary norms. To investigate this issue, this paper examines the attitudes adopted by States in the aftermath of the airstrikes conducted in Syria by the USA, the UK and France in 2017 and 2018, respectively. The paper is divided into two parts: the first part includes a brief summary of the statements made by States, including the intervening States, after the 2017 and 2018 airstrikes, while the second part is devoted to the analysis of how CIL may have been influenced by the reaction of States to the airstrikes.

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5

Anaya, S. James. "Customary International Law." Proceedings of the ASIL Annual Meeting 92 (1998): 41–44. http://dx.doi.org/10.1017/s0272503700057505.

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6

Weiner, James F. "Eliciting Customary Law." Asia Pacific Journal of Anthropology 7, no. 1 (April 2006): 15–25. http://dx.doi.org/10.1080/14442210600551842.

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7

Lee, Hyun-Kyung. "Beyond Skepticism, Towards Transformation of Customary Law – Jurisprudence of Customary Law –." YONSEI LAW JOURNAL 42 (July 31, 2023): 549–612. http://dx.doi.org/10.33606/yla.42.16.

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8

Ida Ayu Sadnyini and Ni Wayan Pariasih Cahyana. "Efforts to Resolve the Misuse of Customer Funds at The Village Credit Institution (VCI) of Sibang Kaja Customary Village." Sociological Jurisprudence Journal 5, no. 2 (July 30, 2022): 107–11. http://dx.doi.org/10.22225/scj.5.2.2022.107-111.

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Village Credit Institution (VCI) of customary village/desa pekraman in Bali is a village-owned financial business entity that carries out business activities in the village and for krama desa. In this case, the authors conducted research on the VCI of Sibang Kaja Customary Village, Abiansemal District, Badung Regency, Bali Province. This research was conducted to determine and examine (1) the factors that cause customer funds cannot be disbursed at the VCI of Sibang Kaja Customary Village; (2) the efforts to resolve the misuse of customer funds at the VCI of Sibang Kaja Customary Village. This is empirical and juridical research, using the qualitative descriptive method and Aristotle’s theory of justice. This research used primary and secondary data. Data were obtained through in-depth interviews. Three factors that cause customer funds cannot be disbursed: (a) the VCI does not record the money deposited by customers in their passbooks; (b) customers deposit their money through VCI employees in charge of collecting money in the field, yet, the money is not deposited to the VCI, resulting in the customer suffering a loss; (c) non-fulfillment of customer rights. The effort to resolve the misuse of customer funds at the VCI of Sibang Kaja Customary Village is through deliberation/paruman of the customary village. The result of deliberation/paruman of the customary village is reconciliation between the customers of the VCI and the perpetrators. Sanctions given on the perpetrators are: managers and employees of the VCI who, in carrying out their duties, violate the provisions and cause harm to the VCI must: (a) provide compensation according to the losses incurred; (b) receive customary sanctions according to awig-awig and perarem; (c) receive sanctions according to the applicable law.

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9

Rautenbach, Christa. "Case Law as an Authoritative Source of Customary Law: Piecemeal Recording of (Living) Customary Law?" Potchefstroom Electronic Law Journal 22 (December 12, 2019): 1–20. http://dx.doi.org/10.17159/1727-3781/2019/v22i0a7591.

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This contribution deals with the question of whether a judgment from a mainstream court dealing with customary law can be regarded as authority and thus as a recording of a customary rule or rules. When a mainstream court develops customary law to promote constitutional values or strikes customary law down for want of constitutionality, it creates new rules which are written down but which can easily be changed when society brings it to court and convinces the court that the rule needs to be changed. It is my contention that case law is a binding source of law, including customary law, which must be followed until such time that it is either absorbed into legislation or amended by a subsequent decision in terms of the principle of stare decisis. It gives us some measure of assurance as to the law to be followed. The high number of customary law disputes taken to a court of law is confirmation that traditional communities are embracing the power of the courts to settle their disputes. The judgments of these courts inevitably become the origins of customary rules that they develop and can thus be regarded as piecemeal recording of (living) customary law.

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10

Woodman, Gordon R. "Customary Law in Common Law Systems." IDS Bulletin 32, no. 1 (January 2001): 28–34. http://dx.doi.org/10.1111/j.1759-5436.2001.mp32001004.x.

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11

Kuldysheva, Gulsara, Sovetbek Minbaev, Shailoobek Paraidinuulu, Aigul Mirzaeva, Aktilek Atantaev, Mamazakirov Rustam, Kuldyshev Amanbek, Zhypargul Abdullaeva, and Elnura Toktobaeva. "Kyrgyz Customary Law Development." Open Journal of Social Sciences 09, no. 01 (2021): 321–27. http://dx.doi.org/10.4236/jss.2021.91023.

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12

D’Amato, Anthony. "Trashing Customary International Law." American Journal of International Law 81, no. 1 (January 1987): 101–5. http://dx.doi.org/10.2307/2202136.

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Central to the World Court’s mission is the determination of international custom “as evidence of a general practice accepted as law.” Students of the Court’s jurisprudence have long been aware that the Court has been better at applying customary law than defining it. Yet until Nicaragua v. United States, little harm was done. For in the sharply contested cases prior to Nicaragua, the Court managed to elicit commonalities in argumentative structure that gravitated its rulings toward the customary norms implicit in state practice. The Court’s lack of theoretical explicitness simply meant that a career opportunity arose for some observers like me to attempt to supply the missing theory of custom.

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13

Naumkina, V. V. "Subjects of customary law." Право и государство: теория и практика, no. 1 (2021): 206–7. http://dx.doi.org/10.47643/1815-1337_2021_1_206.

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14

JIA, Bing Bing. "Customary International Humanitarian Law." Chinese Journal of International Law 4, no. 2 (January 1, 2005): 739–41. http://dx.doi.org/10.1093/chinesejil/jmi034.

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15

Gradoni, Lorenzo. "Un-procedural Customary Law." Journal of International Dispute Settlement 10, no. 2 (May 3, 2019): 175–99. http://dx.doi.org/10.1093/jnlids/idz008.

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16

Swift, Hester. "Researching Customary International Law." Legal Information Management 19, no. 3 (September 2019): 169–75. http://dx.doi.org/10.1017/s1472669619000410.

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AbstractThis article written by Hester Swift is based on the online course entitled, ‘Customary International Law’, which was created by the Institute of Advanced Legal Studies (IALS) Library for the Postgraduate Online Research Training (PORT) platform and is available to all at <https://port.sas.ac.uk/course/view.php?id=120>. The PORT service is provided by the University of London's School of Advanced Study.

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17

Snyder, Francis. "RETHINKING AFRICAN CUSTOMARY LAW." Modern Law Review 51, no. 2 (March 1988): 252–58. http://dx.doi.org/10.1111/j.1468-2230.1988.tb01754.x.

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18

Fleck, Dieter. "CUSTOMARY INTERNATIONAL HUMANITARIAN LAW." Military Law and the Law of War Review 44, no. 1-2 (December 2005): 244–52. http://dx.doi.org/10.4337/mllwr.2005.1-2.11.

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19

Tolkah, Tolkah. "Customary Law Existency in The Modernization of Criminal Law in Indonesia." Varia Justicia 17, no. 1 (May 7, 2021): 72–89. http://dx.doi.org/10.31603/variajusticia.v17i1.5024.

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Customary law is defined as assets owned by the Indonesian nation and developing in society. However, the existence of customary laws is often questioned to what extent these laws can be applied. In several criminal law cases in Indonesia, several regions still use the customary law system as an alternative to decisions because its role in law enforcement is quite dominant. This study aims to identify the existence of customary law as a modernization of criminal law in Indonesia. This study used a descriptive analytic method with a normative and empirical juridical approach. The data used are secondary data and primary data. The results show that the customary law can be used as a basis of law for developing new criminal laws that are acceptable to the society. Indonesian customary criminal law, which is divided into numerous customary law units, represents the Indonesian nation's original culture, which was once governed by Islamic law. Customary law is very relevant as a consideration for Indonesian criminal law reform, especially in the formulation of the Criminal Code (KUHP).

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20

Pratiwi, Putri Fransiska Purnama, Suprayitno Suprayitno, and Triyani Triyani. "Existence of Customary Law through Comparative Education between Dayak Ngaju Customary Law and National Law." Budapest International Research and Critics Institute (BIRCI-Journal): Humanities and Social Sciences 3, no. 2 (April 8, 2020): 712–17. http://dx.doi.org/10.33258/birci.v3i2.882.

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Resolving acts of adultery as the consequence of woman seducing a married man that sometime may lead to out of wedlock pregnany will not be sufficient to only be pursued through national legal channels in the point of view of the Dayak Ngaju tribe. National law regulates sanctions for adulterers/spouse poachers but does not consider the interests of legitimate wives who become the victims. This study aimed to educate the Dayak Ngaju tribe to have better knowledge regarding the local customary law and as a refinement material for the National Criminal Law.The research method used in this study was empirical research method conducted through interviews with damang and mantir adat in Palangka Raya City. The Dayak Ngaju Customary Law has distinct classification of adulterers. Therefore, all forms of actions committed by women who seduce other women's husbands are prohibited in Ngaju Dayak Customary Law. This is reinforced by different customary sanctions in each classification.The National Law has regulated the regulation regarding of homewreckers (husband poachers) in the latest Criminal Code Bill but does not formally regulate psychological recovery for wives who are the victims of infidelity.

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21

Sihotang, Amri Panahatan, and Ruetaitip Chansrakaeo. "Integration Between Customary Law and National Law: An Effort to Build a Pancasila Prismatic Law State." SASI 29, no. 2 (April 19, 2023): 248. http://dx.doi.org/10.47268/sasi.v29i2.1304.

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Introduction: This article to examine and analyze aspects of integration between national law and customary law in the context of the prismatic Pancasila state law, especially after the enactment of the draft criminal code (RKUHP) as a law. Purpose of The Research: This research seeks to answer two problem formulations, namely: integration of customary law and national law in the Pancasila law state and how are efforts to organize harmonious relations between customary law and national law in the perspective of the prismatic Pancasila state law, especially after the ratification of the RKUHP.Methods of Research: This study uses normative legal research methods based on authoritative legal products in the form of laws and regulations. The analysis was carried out by prioritizing the concept approach, historical approach, and statutory approach. Result of The Research: Even though customary law and national law are different in substance and character, but customary law and national law must be integrated because have important relations in relation to practice in society. Efforts to organize a harmonious relationship between customary law and national law in the perspective of the Pancasila prismatic state law, especially after the ratification of the RKUHP by optimizing the three year transitional provisions in the RKUHP to socialize as well as determining steps and efforts that can guarantee harmonious relations between customary law and national law.

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22

Tatum, Melissa. "Customary Law of Indigenous Communities: Making Space on the Global Environmental Stage." Michigan Journal of Environmental & Administrative Law, no. 9.1 (2020): 77. http://dx.doi.org/10.36640/mjeal.9.1.customary.

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The high stakes often involved in controversies regarding who owns valuable natural resources and who has the authority to regulate environmental contaminants have resulted in fierce legal battles and struggles to establish and define international principles of law. Grand theoretical debates have played out on the international stage regarding the principle of free, prior, and informed consent and the legal contours of corporate social responsibility. Meanwhile, often under the radar, Indigenous people around the world have worked to create a sustained niche for their community and culture in the face of exploitation and environmental devastation at the hands of the dominant culture. Working both within and outside of formal legal systems, Indigenous communities have consciously stayed rooted in their customary law and traditions to address the biggest challenges facing their way of life. As the beginning of an effort to study these approaches more thoroughly, this article sets forth a taxonomy for classifying different uses of the customary law of Indigenous peoples. A taxonomy will provide a common language for identifying and discussing these efforts and how they fit into a multicultural, international legal system.

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23

M Najib Ibrahim and Ade Saptomo. "Comparison Of Customary Law In Indonesia And Australia From The Terms Of Customary Rights Of Customary Law Communities." JURNAL HUKUM, POLITIK DAN ILMU SOSIAL 3, no. 1 (January 10, 2024): 316–22. http://dx.doi.org/10.55606/jhpis.v3i1.3370.

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The research aims to analyze and compare aspects of customary rights in the context of customary law in Indonesia and Australia. Customary privileges are an integral part of the life of customary law communities, which include traditional rights to land. This comparison provides in-depth insight into how two countries with different cultural and legal backgrounds manage and protect the ancestral land rights of their customary law communities. This study uses comparative legal procedures to explore the development, protection, and implementation of conventional rights in the two countries. Factors such as the history of colonialism, legislative changes, and local cultural influences play an important role in shaping the legal framework regarding customary rights. This analysis also includes case studies to provide a concrete picture of how traditional liberties are implemented in real situations in customary law communities. The findings of this research can provide a better view of the challenges and opportunities faced by customary law civilizations in defending the sustainability of their customary freedoms amidst the dynamics of modernization and globalization. In addition, this comparison can be a basis for improving policies and a better legal framework to ensure fair and sustainable protection of customary rights for customary law communities in both countries. This analysis presents a cross-cultural understanding of the management of customary rights and the potential integration of traditional law principles in a modern legal context.

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24

송재일. "Customary Law as Source of Civil Law." Seoul Law Review 20, no. 1 (May 2012): 151–204. http://dx.doi.org/10.15821/slr.2012.20.1.005.

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25

Tunkin, Grigory. "Is General International Law Customary Law Only?" European Journal of International Law 4, no. 4 (1993): 534–41. http://dx.doi.org/10.1093/oxfordjournals.ejil.a035843.

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26

Henckaerts, J. "International humanitarian law as customary international law." Refugee Survey Quarterly 21, no. 3 (October 1, 2002): 186–93. http://dx.doi.org/10.1093/rsq/21.3.186.

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27

Nnona, Chukwuemeka George. "Customary Corporate Law in Common Law Africa." American Journal of Comparative Law 66, no. 3 (September 2018): 639–68. http://dx.doi.org/10.1093/ajcl/avy032.

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28

Kamaruddin, Kamaruddin, Iswandi Iswandi, Andi Yaqub, Layyin Mahfiana, and Muh Akbar. "Justice, Mediation, and Kalosara Custom of the Tolaki Community in Southeast Sulawesi from the Perspective of Islamic Law." Samarah: Jurnal Hukum Keluarga dan Hukum Islam 7, no. 2 (June 10, 2023): 1077. http://dx.doi.org/10.22373/sjhk.v7i2.13183.

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The existence of customary law has been less a concern as a source in the law enforcement process for law enforcers. The Tolaki community in Southeast Sulawesi has a custom capable of resolving legal disputes called kalosara. This study aims to examine the customary role of the Kalosara in resolving land disputes to create justice and social order in society. This empirical legal study used the sociological theory of law and benefit in Islamic law. Data were collected by means of in-depth interview and literature review. The results of the study revealed that the Kalosara that has become a customary law or living law in society has played a role in resolving cases through mediation. The Kalosara customarily carried out through a mediation process has been able to mitigate internal cases of the indigenous people. Dispute resolution resolved in terms of land cases has also succeeded in creating social order in society. The philosophical principles in the Kalosara consist of ate pute penao moroha (chastity and justice), the values that are able to bind the parties to the disputes in a customary way to create justice. Theoretically, the social function of the customary law in society is to realize social harmonization so that disputes and conflicts can be avoided. In the context of the Islamic law, creating harmony and social order in society is one of the main goals.Keywords: Justice, mediation, customary law, Kalosara, mediation, social order, Islamic law

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29

Kurniawan, Kukuh Dwi, Yaris Adhial Fajrin, and Ade Sathya Sanathana Ishwara. "The Synergy of Customary Criminal Law and National Criminal Law: Orientation Towards Criminal Law Pluralism." Pena Justisia: Media Komunikasi dan Kajian Hukum 22, no. 3 (January 12, 2024): 552. http://dx.doi.org/10.31941/pj.v22i3.3358.

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<em>The synergy between customary criminal law and national criminal law is an important orientation in criminal law reform. This can be seen from the substance of the New Criminal Code which emphasizes the importance of acknowledging the existence of customary criminal law so that aspects of legal pluralism are implemented. This study aims to analyze aspects of the notion of pluralism of criminal law in Indonesia as well as to describe the new orientation of Indonesian criminal law which emphasizes the synergy between customary criminal law and national criminal law. This research is a juridical-normative legal research using a conceptual and statutory approach. The results of the study confirm that the development of the idea of legal pluralism in Indonesia has implicitly been going on for a long time and has even been discussed in a limited way at the BPUPK-PPKI session. After the ratification of the New Criminal Code, the idea of criminal law pluralism has increasingly come to the fore by providing recognition of customary criminal law which emphasizes that after the passage of the New Criminal Code there has been a change in the orientation of legal pluralism which leads to aspects of public law, namely criminal law pluralism. orientation and synergy between national criminal law and customary criminal law based on legal pluralism also requires synergy and precise division of tasks between national law enforcement officials and customary law enforcement officials</em>

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30

Iskandar, Dedi, Nelvitia Purba, Ismed Batubara, and Yeltriana Yeltriana. "The Position of Traditional Law as a Source of Law in the Civil Law System in Indonesia." Jurnal Akta 9, no. 3 (October 14, 2022): 345. http://dx.doi.org/10.30659/akta.v9i3.26719.

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Indonesian law essentially comes from four sources of law, namely customary law, Islamic law, ex-colonial law and ratified international treaties. But what makes it sad is that from these four sources of law, customary law is left behind or forgotten, it looks inferior compared to other laws. In scientific forums it is only used as research material and academic studies and is narrated rhetorically. Against this background, the problem studied in this research is how the position of customary law in the national legal system with a civil law pattern in Indonesia is. The research method used is normative juridical sourced from primary, secondary and tertiary legal materials. The results show that traces of customary law are scattered in legislation, as legal principles in positive law in Indonesia and also in jurisprudence. Research findings that customary law fulfills two requirements of reality and ideals as the primary source of law in Indonesian legislation.

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31

Zejnullahu, MSc Njomëza. "Judicial Institutions in Albanian Customary Law and in Comparison with Modern Law (The Canon of Lekë Dukagjini)." ILIRIA International Review 5, no. 2 (December 31, 2015): 151. http://dx.doi.org/10.21113/iir.v5i2.86.

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This article compares judicial institutions of customary law and modern law. There are many discussions between authors regarding the relation between customary and modern law, specifically the impact of customary law in modern law. The role of the customary law is of crucial importance especially its impact in the positive law of the country. Although, the customary law was practiced years ago, similarities with current positive law are obvious. Many of the judicial institutions in Albanian customary law can be compared with similar ones in modern law, but is also crucial to identify differences between them. Main judicial institutions that served as enforcement mechanisms in Albanian customary law are identified in this article in comparison with respective institutions of modern law. In addition, it is important to view and analyse customary law in regard to its power as governing law in a given period. In this regard, an analysis of the Albanian customary law in view of Hart’s rule of recognition is provided.

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32

Viñuales, Jorge E. "CUSTOMARY LAW IN INVESTMENT REGULATION." Italian Yearbook of International Law Online 23, no. 1 (November 17, 2014): 23–48. http://dx.doi.org/10.1163/22116133-90230036.

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This article explores the expression of State sovereignty through customary norms in a regulatory space dominated by investment treaties. It argues that, because most of the actionable concepts expressing sovereignty in international law are general (not specific to a “branch”) andcustomary, misunderstanding the role of customary law in investment regulation amounts to confining sovereignty to a few narrow carve-outs and exceptions in investment treaties. However, customary concepts operate autonomously and in parallel to treaties, unless specifically excluded by the latter. The lex specialis principle does not necessarily command the exclusion in toto of relevant customary rules. The article discusses the work of the Institut de Droit International in this regard and then analyses the investment case law relating to the application of the police powers doctrine, necessity, countermeasures and transnational public policy. It shows that failure to address specifically the articulation of treaty and customary norms even in the event the former apply as lex specialis is subtly eroding, without clear legal grounds,the customary expression of sovereignty in foreign investment disputes.

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33

Bahri, Robi Assadul. "Konsep Penegakan Hukum Pidana Adat di Indonesia Berdasarkan Asas Kepastian Hukum." Law, Development and Justice Review 7, no. 1 (April 30, 2024): 61–74. http://dx.doi.org/10.14710/ldjr.7.2024.61-74.

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One of the advances in Indonesian criminal law is the recognition of customary criminal law in the New Criminal Code. However, there will be problems in enforcing national criminal law if customary criminal law is accommodated. The problem that will be studied in this research is the consequences of the implementation of customary criminal law in enforcing national criminal law and enforcing customary criminal law in Indonesia that has legal certainty. This research is legal research with a typology of normative/doctrinal legal research which aims to produce a new argument, theory or concept on the problem being studied. The research results show that the application of customary criminal law in enforcing national criminal law will have the potential for disharmonious relations between law enforcement officials and local customary institutions. Therefore, enforcement of customary criminal law in Indonesia with legal certainty can be achieved by reviving the Customary Courts which have the authority to examine and try violations of customary criminal law. This research recommends immediately compiling customary law through regional regulations and immediately enacting a Draft Law on Customary Courts to ensure legal certainty of customary justice in the Indonesian Judicial System.

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34

Karista Putri, Luh Putu Yeyen, and Eric Gordon Withnall. "Protecting the Village Credit Institution: Should Traditional Communities Adopt Modern Financial Management Practices?" Udayana Journal of Law and Culture 2, no. 2 (July 31, 2018): 115. http://dx.doi.org/10.24843/ujlc.2018.v02.i02.p01.

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A Lembaga Perkreditan Desa (Village Credit Institution or LPD) is a type of financial institution that is associated with a Balinese customary village. LPDs face competing pressures to both maintain their traditional character and align themselves with national standards for financial management. This article establishes the hybrid legal character of LPDs (under Balinese customary law and Indonesian national law) in order to analyse their evident shortcomings, being the vulnerability of some monitoring and protection systems to misappropriation. We rely on normative legal research methods, including statutory analysis and analysis of case studies. We examine the LPD Regulations and Balinese customary law, supplemented by interviews on issues of relevance. We conclude that the recognition of LPDs under the law, given the fundamental basis of the LPD in the customary village, ought to be given primacy to their status under Balinese customary law. However, the monitoring and protection systems of LPDs must be improved and uniform standards must be enforced – otherwise, their customers will simply use other financial institutions. We also conclude that it is possible to improve management practices while respecting the autonomy of customary villages. Therefore, we assert that properly implemented measures will make a direct intervention from government unnecessary.

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35

Mbikiwa, Michael. "Towards Living Customary Administrative Law." Journal of Southern African Studies 47, no. 2 (March 4, 2021): 251–72. http://dx.doi.org/10.1080/03057070.2021.1892315.

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36

Webber, Jeremy. "The Grammar of Customary Law." McGill Law Journal 54, no. 4 (May 4, 2010): 579–626. http://dx.doi.org/10.7202/039646ar.

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Abstract All law is customary. This article explores how we should conceive of the customary nature of law, proposing a framework for understanding how legal orders are related to their various societies. The article builds upon the pragmatist conception of law developed by Lon Fuller and Gerald Postema, but it goes well beyond their accounts, arguing that their predominantly functionalist approaches are inadequate. Although law does serve to coordinate social interaction, it does so through specific conceptual languages, through particular grammars of customary law. Law can only be understood if one takes those grammars seriously. The article pursues this argument by drawing comparisons between indigenous and non-indigenous legal orders, both to expand the comparative range and to explore what indigenous legal orders can reveal about law generally. It explores the limitations of functionalist accounts (including law and economics) in the law of persons and property, in presumptions about the foundational requirements of legal order, and in the presence of the sacred or mythic in law. The article concludes that attending to the various grammars of customary law allows one to engage, productively and with insight, in legal reasoning across the normative divide separating different legal cultures.

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37

Norman, George, and Joel P. Trachtman. "The Customary International Law Game." American Journal of International Law 99, no. 3 (July 2005): 541–80. http://dx.doi.org/10.2307/1602291.

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Customary international law (CIL) is under attack as behaviorally epiphenomenal and doctrinally incoherent. In this article, we reject both claims. To be sure, CIL is a feat of levitation; it rests not on a rock-solid natural law basis of divine principles, but on a fabric of rational acts, woven through a multiplicity of relations over time. And while there are limits on, and variations in, the effectiveness of CIL, we argue that there are circumstances where it may independently affect the behavior of states. There is no reason in theory, or in data adduced by others, to believe CIL to be generally epiphenomenal. Since certain components of CIL serve as the foundation of all international law, this article suggests the circumstances under which one would expect international law to affect state behavior.

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Doo, Aziyata Maskyrovna. "National intelligentsia and customary law." Право и государство: теория и практика, no. 1 (2022): 242–44. http://dx.doi.org/10.47643/1815-1337_2022_1_242.

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Kuswardani, Kuswardani, Marisa Kurnianingsih, and Andria Luhur Prakoso. "SPIRITUAL VALUES OF CUSTOMARY LAW." Jurnal Jurisprudence 8, no. 1 (October 15, 2018): 18–27. http://dx.doi.org/10.23917/jurisprudence.v8i1.6267.

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Recognition of living law in society or customary law / unwriten law, marking a pluralistic spiritual life that have law. Lawmakers (legislative or judge) must accommodate those values in their legal products. Moreover, judges as formers of practical law are obliged to explore and understand the values that live in society, which is the soul of the nation's personality (volkgeist), which is reflected through its Verdicts, so that the verdict can have transcendental values / spiritual values. The enactment of customary law as the basis of the Verdict of the judge or in other words the formation of the law by the judge through the Verdicts based on customary law, has existed before the Indonesian constitution is amended, namely in Article 5 paragraph (3) sub b Act No. 1/1951 About Measures - Temporary Measures for Conducting the Union of Suspended Power and Events of the Civil Courts.

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Meron, Theodor. "Revival of Customary Humanitarian Law." American Journal of International Law 99, no. 4 (October 2005): 817–34. http://dx.doi.org/10.2307/3396670.

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Burman, Sandra, and Nicolette van der Werff. "Rethinking customary law on bridewealth1." Social Dynamics 19, no. 2 (December 1993): 111–27. http://dx.doi.org/10.1080/02533959308458554.

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Graham, Tom, and Noah Idechong. "Reconciling customary and constitutional law." Ocean & Coastal Management 40, no. 2-3 (August 1998): 143–64. http://dx.doi.org/10.1016/s0964-5691(98)00045-3.

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Kelly, J. Patrick. "Revolution by Customary International Law?" AJIL Unbound 112 (2018): 297–302. http://dx.doi.org/10.1017/aju.2018.81.

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B.S. Chimni's Customary International Law: A Third World Perspective announces a provocative normative approach to customary international law (CIL) designed to develop progressive norms by deemphasizing state practice and promoting deliberative reasoning as the basis for opinio juris rather than the general acceptance of states. Many of his historical concerns are compelling: the unfairness and dubious validity of the persistent objector principle, the lack of access and attention to non-European state practice, and the questionable legitimacy of CIL norms developed without the participation of a majority of states or their consent. While Chimni makes a compelling case for the problematic origins of much of CIL, his approach to reform raises serious legitimacy and practical questions that undermine the viability of his proposed solution. Problems such as extreme poverty, environmental degradation, and nuclear weapons are best resolved through democratic political institutions rather than weak and undemocratic international tribunals. I will analyze Chimni's approach first as a theory of customary law and then as a theory of the role of international tribunals. Finally, I will raise concerns about his normative goals.

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Roughan, Nicole. "The Nature of Customary Law." Res Publica 15, no. 3 (January 30, 2009): 305–13. http://dx.doi.org/10.1007/s11158-008-9079-6.

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Wanda, Boyce P. "Customary Family Law in Malawi." Journal of Legal Pluralism and Unofficial Law 20, no. 27 (January 1988): 117–34. http://dx.doi.org/10.1080/07329113.1988.10756407.

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Costa, Anthony. "The Myth of Customary Law." South African Journal on Human Rights 14, no. 4 (January 1998): 525–38. http://dx.doi.org/10.1080/02587203.1998.11834992.

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Radityani, Fitri. "The Existence of Customary Law in Managing Fishery Resources in Indonesia." MAIYAH 3, no. 1 (March 30, 2024): 52. http://dx.doi.org/10.20884/1.maiyah.2024.3.1.11529.

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The diversity of cultures and customary laws in Indonesia is reflected in the management of fisheries resources. This article explores various customary laws that are still valid in several regions in Indonesia, such as Sasi customary law in Maluku, Laot customary law and the Panglima laot institution in Aceh, Awig-awig customary law in Lombok, Masa ombo customary law in Central Sulawesi, customary law Lubuk ban in Jambi, Lilifuk customary law in NTT, and the Bapongka cultural system in the Bajo tribe. Through descriptive and qualitative research, this article highlights the implementation, changes and challenges faced by customary law in the face of modernization and globalization. It was found that this customary law not only functions to manage fisheries resources sustainably, but also plays an important role in maintaining local wisdom, traditional values, and the welfare of local communities. This research emphasizes the importance of understanding and respecting customary law in efforts to preserve natural resources and local culture in Indonesia.

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Plockaya, Olga. "Customary Law Experience of Crime Prevention in the Customary Law of the Permian Peoples." Russian Journal of Criminology 13, no. 2 (April 26, 2019): 354–64. http://dx.doi.org/10.17150/2500-4255.2019.13(2).354-364.

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The goal of this research was to study the customary law experience of the Permian peoples in the sphere of crime prevention. To achieve this goal, the author studied the specific features of the model of crime prevention in the ethnic community and the methods of legal education used by the Permian peoples and aimed at crime prevention. The object of research is the customary law norms and institutes, as well as traditional beliefs common for the Permian peoples and widely used in the customary law practices of the eastern Finno-Ugrians. The study uses different research approaches. Thus, the use of some elements of the civilization and formation approaches contributed to the analysis of the object of this work from the standpoint of the development of public, spiritual and moral, general cultural relations in the Permian ethno-local society. The anthropological approach was necessary for the analysis of the mentality and legal consciousness of some ethno-local groups of the Permian peoples and their influence on the early detection and prevention of crimes. The institutional approach, the elements of which were used in the current study, made it possible to show the mutual correlation between the customary law sources of law, the forms of positive law and state institutions. The historical approach gave the author an opportunity to describe certain elements of customary law of the Permian peoples as part of the legal system of the Russian state. The methodological basis of this study is the integral complex of the cognition methods used not only in the contemporary legal science, but also in other humanities. These are the historic-legal, systemic, structural-functional, formal legal, comparative legal methods, the method of logical analysis, etc. Special attention is paid to the text analysis of legal, mythological, historical sources, as well as the reconstruction of the elements of common law experience in the sphere of crime prevention in the customary law of the Permian peoples. The author attempts to identify the specific feature of legal education, and the causes of the effectiveness of customary law norms. She presents a comparative legal analysis of the sources of law, such as the retrospective normative legal acts, as well as the historical-legal, ethnographic, folklore data. The research of ethno-linguists, ethnologists, studies in pedagogics, the theory and history of law are used to reconstruct the genesis and replication of the specific features of the customary law experience in the sphere of crime prevention in the customary law of the Permian peoples.

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CHANOCK, MARTIN. "NEITHER CUSTOMARY NOR LEGAL: AFRICAN CUSTOMARY LAW IN AN ERA OF FAMILY LAW REFORM." "International Journal of Law, Policy and the Family" 3, no. 1 (1989): 72–88. http://dx.doi.org/10.1093/lawfam/3.1.72.

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Rautenbach, Christa. "Oral Law in Litigation in South Africa: An Evidential Nightmare?" Potchefstroom Electronic Law Journal/Potchefstroomse Elektroniese Regsblad 20 (October 30, 2017): 1. http://dx.doi.org/10.17159/1727-3781/2017/v20i0a3268.

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In the past, customary law has been applied rather haphazardly in the courts. Its inherent adaptive flexibility and indeterminate nature created confusion in a court system ill-equipped to deal with litigation dealing with customary law issues. Understandably, customary law was treated in the same way as a common-law custom, which also originates in a community's acceptance of certain standards of behaviour. This meant that anyone averring a rule of customary law had to prove it, except where the rule was contained in a statute or precedent. The courts were not keen to engage in law-making and where the ascertainment of customary law proved to be difficult, they would merely apply the common law. In 1998, the Law of Evidence Amendment Act 45 of 1988, which allows the judiciary to take judicial notice of readily accessible customary law, made fundamental changes to this situation. The Act is still in operation, although it must now be interpreted in the light of the Constitution of the Republic of South Africa, 1996 (the Constitution). No direction on how this must be done can be found in the wording of the constitutional provisions dealing with the customary law. Besides instructing the courts to apply customary law when "applicable, subject to the Constitution and any legislation that specifically deals with customary law", the Constitution is silent on the way forward. Given the fact that most of the judiciary does not have any knowledge of the content of living customary law and the fact that there are fundamental differences between the evidentiary rules applied in the common and customary laws of South Africa, a few problems are bound to surface when litigating issues involving the customary law. They include: the status of customary law in the South African legal system; the applicability of customary law; and especially the determination of living customary law. The aim of this analysis is to determine if the existing evidentiary rules are appropriate to deal with these challenges in litigating matters involving customary law in the ordinary courts.

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