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1
Msuya, Norah Hashim. « Challenges Surrounding the Adjudication of Women's Rights in Relation to Customary Law and Practices in Tanzania ». Potchefstroom Electronic Law Journal 22 (25 avril 2019) : 1–29. http://dx.doi.org/10.17159/1727-3781/2019/v22i0a5012.
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Women's rights litigation has produced varied outcomes in many African countries. Although courts have looked at the legislation that discriminates against women with different degrees of success, matters such as tradition and culture continue to be unpredictable when subject to lawsuit. In Tanzania, the judiciary has gradually begun to recognise that discrimination on a prescribed ground cannot be justified. However, this principle has not blocked some judges from maintaining that gender discrimination based on customary rules can still be justified, despite the existence of internal, regional and national human rights law, which prohibits it. It is contended that the judiciary has a significant role to play in ensuring that customary law and harmful traditional practices are reformed and advanced to comply with human rights legislation and ensure equality between men and women in Tanzania.
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Coutsoudis, Andreas. « Customary international law is law in South Africa — Now what ? Analysing the courts’ identification and application of customary international law over the last decade ». South African Law Journal 140, no 1 (2023) : 53–94. http://dx.doi.org/10.47348/salj/v140/i1a4.
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Customary international law is law in South Africa as much as property law, company law or contract law. It may not be as frequently relevant or applicable as many parts of domestic law. Courts and domestic legal practitioners may not be as familiar with its contours, nuances and methods of identification. But it is precisely for these reasons that it matters more, not less, how courts, legal practitioners and the parties they represent approach it. This article describes and analyses South African courts’ engagement with customary international law, particularly over the last decade. The analysis reveals that important issues of customary international law are determined and applied by South African courts. Thus, customary international law cannot be avoided; nor should it be. However, the analysis also reveals that the courts’ engagement with customary international law would benefit from a more reflective, rigorous and considered approach. Building on the analysis and description of South African courts’ past identification and application of customary international law, the article offers suggestions for how the road ahead ought to be navigated. It is past time for South African courts to give proper consideration as to how, both procedurally and substantively, they and the parties before them ought to approach the identification of customary international law. For customary international law is not some exotic and indeterminate set of rules emanating from another legal system. It is part of South African law. The sooner it is fully treated as such, the better it will be for courts, practitioners, litigants, and international law more generally.
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Rautenbach, Christa. « Case Law as an Authoritative Source of Customary Law : Piecemeal Recording of (Living) Customary Law ? » Potchefstroom Electronic Law Journal 22 (12 décembre 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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Badejogbin, Rebecca Emiene. « The Conundrum of Judicial Notice as a Means of Ascertaining Customary Law in Nigerian and South African Courts amid the Convergence of Positivism and Legal Pluralism ». Potchefstroom Electronic Law Journal 22 (12 décembre 2019) : 1–31. http://dx.doi.org/10.17159/1727-3781/2019/v22i0a7589.
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The roles of the courts have become an inevitable social reality in adjudicating customary law disputes in Nigeria and South Africa. Because these courts are established and validated along positivist practice, they inevitably require the adoption of a process for ascertaining and applying customary law since the judges of these courts are not ordinarily conversant with its norms. Hence judicial notice has been adopted as one of the ways of ascertaining customary law. The conceptualisation and theoretical basis of customary law cannot be ignored in the analysis of the process of its ascertainment. Crucial to this are theories of centralism, legal pluralism and positivism. This paper therefore identifies challenges in ascertaining customary law through judicial notice in the various cadres of courts operative in both jurisdictions amid the operation of these theories and the attendant implications thereof. It elucidates the rules that guide the judge and identifies the challenges encountered in each jurisdiction based on how each law is scripted. It also contends that while positivist rules and procedure regulate how customary law can be ascertained and applied by the courts, its application must however be limited to the point where it threatens the essence of customary law.
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Rautenbach, Christa. « Oral Law in Litigation in South Africa : An Evidential Nightmare ? » Potchefstroom Electronic Law Journal/Potchefstroomse Elektroniese Regsblad 20 (30 octobre 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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O’Keefe, Roger. « CRIMES, THE COURTS AND CUSTOMARY INTERNATIONAL LAW ». Cambridge Law Journal 65, no 3 (23 novembre 2006) : 473–76. http://dx.doi.org/10.1017/s0008197306217203.
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Care, Jennifer Corrin, et Jean G. Zorn. « Legislating for the Application of Customary Law in Solomon Islands ». Common Law World Review 34, no 2 (avril 2005) : 144–68. http://dx.doi.org/10.1350/clwr.34.2.144.65366.
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This article examines the problems surrounding the application of customary law in the formal courts of Solomon Islands. Commencing with a brief explanation of the status of customary law, it considers the vexed question of proof, in the context of decided cases. It also analyses three Solomon Islands Acts relevant to proving customary law: the Wills, Probate and Administration Act 1987, the Solomon Islands National Provident Fund Act 1973 and the Customs Recognition Act 2000. The article then considers the future of customary law in the formal courts of Solomon Islands.
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Silambi, Erni Dwita, Pangerang Moenta, Farida Patittingi et Nur Azisa. « Ideal Concept of Traditional Justice in Solving Criminal Case ». Academic Journal of Interdisciplinary Studies 11, no 1 (3 janvier 2022) : 293. http://dx.doi.org/10.36941/ajis-2022-0026.
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Customary law is an unwritten rule that lives in the customary community of an area and will continue to live as long as the community still fulfils the customary law that was passed on to them from their ancestors before them. Settlement in criminal cases through customary law that produces results is a form of legal certainty. This study aims to determine the ideal concept in resolving criminal cases through customary courts in Merauke Papua. The method used in this study is a combination of normative legal research and empirical legal research with the reason that the author wants to examine the norms related to the problem of resolving customary criminal cases and seek direct information on the implementation of customary justice in Merauke Regency which is presented descriptively. recognition of customary courts must be stated in writing in the law on judicial power so that this institution has a clear legal basis and its decisions can be recognized so that it does not need to be tried again through national courts, criminal threats under five years must be resolved through customary courts and are final decisions
Received: 23 August 2021 / Accepted: 25 October 2021 / Published: 3 January 2022
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Coldham, Simon. « Customary Marriage and The Urban Local Courts in Zambia ». Journal of African Law 34, no 1 (1990) : 67–75. http://dx.doi.org/10.1017/s0021855300008202.
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The local courts of Zambia are the successors to the native courts which the British set up in Northern Rhodesia, as elsewhere in colonial Africa, to administer justice to Africans. However, while the system of native courts originally existed in parallel with the system of English-style magistrates' courts, after independence the native courts (re-named local courts) were integrated into the judicial system, with appeals lying to subordinate courts (i.e. magistrates' courts) of the first or second class. Although it was the ultimate goal of the government to have a fully professionalised judiciary (a policy adopted by Kenya in 1967), it recognised that the local courts still had an important role to play in the administration of justice, particularly in the rural areas. Twenty years later it looks as if their future is secure. If the amount of business transacted by the local courts and the paucity of appeals from their decisions provide an indication of their popularity and effectiveness, they would seem to have proved their worth.Like their predecessors, the local courts have a limited criminal jurisdiction, but the bulk of their business is civil. They have jurisdiction in most civil matters where the claim does not exceed 200 kwacha. Some of these cases are actions for the recovery of a debt, actions for assault or actions for defamation of character (most frequently, accusations of witchcraft), but the majority of the cases could be broadly categorised as “family” cases, including divorce, adultery, seduction and inheritance claims.
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van der Wilt, Harmen. « State Practice as Element of Customary International Law : A White Knight in International Criminal Law ? » International Criminal Law Review 20, no 5 (3 septembre 2019) : 784–804. http://dx.doi.org/10.1163/15718123-02001003.
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Inter-state practice is relatively scarce in the area of human rights and international criminal law. This article ventures to inquire how this has affected the process of identification of customary international law by international criminal tribunals and courts. The main conclusion is that the two components of customary international law – opinio juris and state practice – have become blurred. In search of customary international law, international tribunals have resorted to national legislation and case law of domestic courts. These legal artefacts can be qualified as both evidence of state practice and opinio juris. The author attempts to explain the reasons for this development and holds that, if properly applied, the methodology, while seemingly messy, comports with the nature of international criminal law.
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Mujuzi, Jamil Ddamulira. « Reconciling Customary Law and Cultural Practices with Human Rights in Uganda ». Obiter 41, no 2 (1 octobre 2020) : 239–56. http://dx.doi.org/10.17159/obiter.v41i2.9148.
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Customary law has been part of Ugandan law for many years. Section 2 of the Local Council Courts Act, 2006 defines “customary law” to mean “the rules of conduct established by custom and long usage having the force of law and not forming part of the common law nor formally enacted in any legislation”. Ugandan courts have explained the relationship between customary law and other laws. In 1995, Uganda adopted a constitution that includes, among other things, a bill of rights that prohibits discriminatory and degrading laws and customs. This was informed during the making of the Constitution by the arguments of many Ugandans that discriminatory and degrading customary practices and laws should be abolished by the Constitution. In this article, the author illustrates the steps that have been taken by the drafters of the Constitution, Parliament (through legislation) and courts to outlaw discriminatory and degrading cultural practices. The author recommends ways in which some of these measures could be strengthened.
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Ntlama, Nomthandazo, et Dazo Ntlama. « The Constitutional Divide of Postapartheid South Africa in the Jurisdiction of the Traditional Justice System ». Southern African Public Law 29, no 2 (18 décembre 2017) : 282–93. http://dx.doi.org/10.25159/2522-6800/3641.
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The exclusive jurisdiction of the traditional justice system – which in effect is based on racial classification – has been the subject of debate in South Africa since the attainment of democracy in 1994. The debate is drawn from the Constitution, which recognises the general system of customary law, and limits its application to the people who observe it. The debate is further fuelled by the non-explicit recognition of the customary court system within the judicial structure of the Republic. These courts are inferred from the concept of ‘any other courts’ in the Constitution. The inference of customary courts from ‘any other courts’, compromises the legitimate status of these courts in the resolution of disputes that arise from the system of customary law – in line with the ideals of the new constitutional dispensation. This considered, this article critically reviews the constitutional status of the customary court system in South Africa. The objective is to examine the effect of its exclusive jurisdiction in the application of the principles of traditional justice. It is also limited to the review of South Africa’s constitutional perspective on the protection of customary law relating to the advancement of the traditional justice system. It is argued, therefore, that the exclusive jurisdiction of the traditional justice system is a direct racial classification under the guise of the foundational values of the new democratic dispensation. Equally, the status given to customary courts – which is inferred from the concepts of ‘any other’ – constitutes a manifestation of the historic divide that compromises the legitimacy of these courts in the application of traditional justice. The extent, to which the exclusive jurisdiction can move towards a system that inclusively reflects the values of the new democratic dispensation, is also reviewed in general.
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Forsyth, Miranda. « Beyond Case Law : Kastom and Courts in Vanuatu ». Victoria University of Wellington Law Review 35, no 2 (1 août 2004) : 427. http://dx.doi.org/10.26686/vuwlr.v35i2.5640.
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This article considers the relationship between customary law (kastom) and the official legal system in Vanuatu. It looks at the limitations of the reasons propounded for the lack of integration of customary law and the official legal system and argues that the integration should be a two-way process. The author asserts that a new methodological approach is required to assess the issue regarding the current extent of integration, desirability of integration and capacity for integration of the two systems. Rather than merely analysing case law or legislation, the author argues that the reality behind this picture needs to be investigated and empirical research undertaken.
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Batubara, Chuzaemah, et Fatimah Fatimah. « STRUGGLING TO SURVIVE IN COMPLEX AND MODERN ERA ». ALQALAM 34, no 1 (30 juin 2017) : 65. http://dx.doi.org/10.32678/alqalam.v34i1.735.
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The holistic implementation of Islamic law in the life of Acehnese community has brought “big changes,” one which is force the majority Acehnese involved in conflicts or disputes bringing their cases solved to Mahkamah Syari’ah as a formal legal instituon which mostly leads disputants to expensive costs, long consumed and waste time as well as exhausting, even unjust feeling. However, the implementation has revitalized the existence of customary court which almost gave up in New Order regimes. The paper argues that the Acehnese legal culture embodied in Peradilan Gampông as customary Law is living law that would resolve destructive conflict and reduce the intention and huge suggestion of some people to resolve their cases through formal legal solution in State Courts (Mahkamah Syariah). With a socio-legal approach the research is focused on case studies on resolving dispute in Aceh customary courts (Peradilan Adat Gampông) at several Gompông in Aceh. The study found that peace, equilibrium, societal hood and justice as dominant principles in the life of Acehnese people at gampôngs and cities have brought customary law revived and as socities’ primary choices in resolving their legal cases. Keywords: Alternative Dispute Resolution; Islamic Law; Customary Courts
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Croquet, Nicolas AJ. « The Import of International Customary Law into the EU Legal Order : The Adequacy of a Direct Effect Analysis ». Cambridge Yearbook of European Legal Studies 15 (2013) : 47–81. http://dx.doi.org/10.1017/s1528887000003001.
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Abstract The EU case law, embodied by the Racke judgment, constituted a normative compromise between the judicial treatment of international customary law and that of international treaties. Indeed, the lack of precision of an international customary norm would not prevent it from being assessed by the EU Courts on the merits of the case, albeit to a lesser degree of judicial review. The lack of precision of an international treaty provision would in contrast make it unenforceable on the facts of the case (subject to two exceptions and the doctrine of consistent interpretation), whereas when sufficiently precise, the treaty provision would be assessed in full by the EU Courts. In Air Transport Association of America, the Court of Justice projected onto the challenged EU secondary act a hybrid and alternative direct effect analysis, borrowed in part from the classical approach to direct effect and in part from the first branch of the direct concern standing requirement whilst also adopting an absolute manifest violation test due to an imprecision bias targeted at all international customary norms. The Court of Justice thereby disrupted this normative compromise: any international customary norm, provided that it or the challenged EU secondary act passes the hybrid direct effect test, would also trigger a marginal form of judicial review in validity review actions before the EU Courts, regardless of its nature and inherent qualities. This chapter aims to argue that the direct effect requirements, which emerge from the case law on the import of international treaties into the EU legal order, remain adequate to assess the judicial enforceability of ordinary international customary law in the EU legal system minus the requirement revolving around the broad logic and nature of the international customary norm. International customary norms should, accordingly, be assessed on the basis of the same direct effect criteria as those applicable to the Constitutive Treaties and EU secondary acts when assessing their relation to Member States’ national legal orders. However, the precision and unconditionality criteria ought to be appreciated with more flexibility with regard to the import of international customary norms in order to account for their unique normative character. The ‘express reference’ ‘implementation’ exceptions specific to the international treaty judicial context may also be transposed to the assessment of international customary law in validity review actions. The application of the doctrine of consistent interpretation to international customary norms and their use as interpretative tools before the EU Courts constitute judicial implications of the principle of primacy of international customary law binding upon the Union over inconsistent EU secondary acts.
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Syihab, Mahdi Abdullah. « Crime Settlement of Khalwat in Aceh ». SASI 28, no 4 (30 décembre 2022) : 578. http://dx.doi.org/10.47268/sasi.v28i4.1065.
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Introduction: Khalwat (Seclusion) is a despicable act that violates Islamic law because it leads to adultery. However, Qanun No. 6 of 2014 concerning Jinayat Law stipulates that the settlement of khalwat must go first through the Customary Court so that the punishment applied is not Islamic law punishment, such as ta`zir, but customary punishment.Purposes of the Research: This study aims to analyze the mechanism for resolving the crime of seclusion in Aceh.Methods of the Research: This is normative/doctrinal research using a statutory approach and a comparative approach.Results of the Research: Khalwat is a crime (jarimah) that violates Islamic law and it is categorized into jarimah ta`zir. Settlement of jarimah seclusion can be carried out by litigation through the Syar'iyah Court and the settlement goes to customary courts. However, Article 24 of Qanun Number 6 of 2014 concerning Jinayat Law, stipulates that the settlement of criminal acts of seclusion must first be through customary courts. The settlement mechanism for khalwat is first resolved through customary courts using a deliberation-consensus approach like village meetings, it is usually called Gampong Customary Meetings (RAG) by executing customary punishments such as penalties of paying fines, feasting, bathing, and the khalwat couple is forced to get married. The consideration of implementing customary punishment is to solve the case more effectively and efficiently and in return can raise the level of trust and community compliance.
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Enabulele, Amos O., et Bright Bazuaye. « Validity and Enforceability of Customary Law in Nigeria : Towards a Correct Delimitation of the Province of the Courts ». Journal of African Law 63, no 1 (15 janvier 2019) : 79–104. http://dx.doi.org/10.1017/s002185531800030x.
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AbstractWith a view to showing that courts do not have the power to validate native law and custom, this article highlights the different roles assigned to the assent of the people governed by native law and custom, and to the court called upon to determine its judicial enforceability. It argues that customary law is validated by the assent of the people and not by courts, and that the tests contained in different statutes by which courts are permitted to intervene in the regime of customary law are tests of enforceability and not tests of validity. As a result, it argues that the term “validity test” is misleading when used in relation to the power of courts to determine the enforceability of native law and custom, and should therefore be discarded.
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Temngah, Joseph N. « Customary Law, Women's Rights and Traditional Courts in Cameroon ». Revue générale de droit 27, no 3 (23 mars 2016) : 349–56. http://dx.doi.org/10.7202/1035782ar.
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This article highlights the controversy over Women's Rights in Cameroon given that women are regarded as a man's property under customary law. The article points out the position of women's rights under statutory law. It compares both rules without settling for either of them. Both rules are sources of Cameroonian law and are administered concurrently by the courts. Again, this article shows the awareness women have demonstrated by challenging the customary law position which considers a woman as an object. Finally, the article settles for the codification of laws notwithstanding the difficulties involved in this exercise, especially in a bi-jural state like Cameroon.
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Burmester, Henry. « The determination of customary international law in Australian courts ». Non-State Actors and International Law 4, no 1 (2004) : 39–47. http://dx.doi.org/10.1163/157180704323129430.
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Harmathy, Attila. « Customary law in Hungary : courts, texts, and the Tripartitum ». Comparative Legal History 4, no 1 (2 janvier 2016) : 87–91. http://dx.doi.org/10.1080/2049677x.2016.1176355.
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Komáromi, László. « Customary law in Hungary : courts, texts, and the Tripartitum ». Parliaments, Estates and Representation 39, no 1 (23 mai 2018) : 134–35. http://dx.doi.org/10.1080/02606755.2018.1475131.
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Coldham, Simon. « Customary Law and Local Courts Act, 1990 of Zimbabwe ». Journal of African Law 34, no 2 (1990) : 163–65. http://dx.doi.org/10.1017/s0021855300008305.
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Reinisch, August, et Peter Bachmayer. « The Identification of Customary International Law by Austrian Courts ». Austrian Review of International and European Law Online 17, no 1 (2015) : 1–48. http://dx.doi.org/10.1163/15736512-90000002a.
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Bakker, Pieter. « Integration of the Bride as a Requirement for a Valid Customary Marriage : Mkabe v Minister of Home Affairs 2016 ZAGPPHC 460 ». Potchefstroom Electronic Law Journal 21 (27 mars 2018) : 1–15. http://dx.doi.org/10.17159/1727-3781/2018/v21i0a1737.
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Since the Recognition of Customary Marriages Act 120 of 1996 was promulgated in 15 November 2000 the courts are faced with the daunting task to determine whether a customary marriage is valid under the Act. The courts find it troublesome to determine exactly what the essential requirements under the living customary law are. One of the issues the courts have to deal with is the question whether the incorporation of a bride into her husband's family is an essential requirement for a valid customary marriage or can the families waive the requirement or condone non-compliance? The court in Mkabe v Minister of Home Affairs [2016] ZAGPPHC 460 found that the requirement can be waived or condoned. This case note criticises the Mkabe decision and illustrates why the incorporation of the bride is indeed an essential requirement for a valid customary marriage.
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Fatima, Shaheed. « Using International Law in Domestic Courts – Part III : Customary International Law ». Judicial Review 8, no 4 (décembre 2003) : 235–40. http://dx.doi.org/10.1080/10854681.2003.11427280.
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Kuswardani, Kuswardani, Marisa Kurnianingsih et Andria Luhur Prakoso. « SPIRITUAL VALUES OF CUSTOMARY LAW ». Jurnal Jurisprudence 8, no 1 (15 octobre 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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Pienaar, Gerrit. « The Methodology Used to Interpret Customary Land Tenure ». Potchefstroom Electronic Law Journal/Potchefstroomse Elektroniese Regsblad 15, no 3 (29 mai 2017) : 152. http://dx.doi.org/10.17159/1727-3781/2012/v15i3a2506.
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Customary land tenure is normally not based on codified or statutory sources, but stems from customary traditions and norms. When westernised courts have to interpret and adjudicate these customary traditions and norms, the normal rules of statutory interpretation cannot be followed. The court has to rely on evidence of the traditional values of land use to determine the rules connected to land tenure. Previously courts in many mixed jurisdictions relied on common or civil law legal principles to determine the nature of customary land tenure and lay down the principles to adjudicate customary land disputes among traditional communities, or between traditional and westernised communities in the same jurisdiction. Many examples of such westernised approach can be found in case law of Canada and South Africa. The interpretation of the nature of customary land tenure according to common law or civil law principles has been increasingly rejected by higher courts in South Africa and Canada, e.g. in Alexkor Ltd v The Richtersveld Community 2004 5 SA 469 (CC) and Delgamuukw v British Columbia 1997 3 SCR 1010. This paper explores the methodology the courts should follow to determine what the distinctive nature of customary land tenure is. As customary land tenure is not codified or based on legislation, the court has to rely, in addition to the evidence of indigenous peoples, on the expert evidence of anthropologists and sociologists in determining the nature of aboriginal title (in Canada) and indigenous land tenure (in South Africa). The court must approach the rules of evidence and interpret the evidence with a consciousness of the special nature of aboriginal claims and the evidentiary difficulties in proving a right which originates in times where there were no written records of the practices, customs and traditions engaged in. The court must not undervalue the evidence presented simply because that evidence does not conform precisely with the evidentiary standards that would be applied in, for example, a private law tort case.
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SHADLE, BRETT L. « ‘CHANGING TRADITIONS TO MEET CURRENT ALTERING CONDITIONS’ : CUSTOMARY LAW, AFRICAN COURTS AND THE REJECTION OF CODIFICATION IN KENYA, 1930–60 ». Journal of African History 40, no 3 (novembre 1999) : 411–31. http://dx.doi.org/10.1017/s0021853799007513.
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If the aim of British colonizers, Frederick Lugard wrote, was to civilize Africans ‘and to devote thought to those matters which…most intimately affect their daily life and happiness, there are few of greater importance than the constitution of native courts’. Moreover, he argued that only from native courts employing customary law was it ‘possible to create rudiments of law and order, to inculcate a sense of responsibility, and evolve among a primitive community some sense of discipline and respect for authority’. Britain had not the manpower, the money nor the mettle to rule by force of arms alone. Essentially, in order to make colonial rule work with only a ‘thin white line’ of European administrators, African ideas of custom and of law had to be incorporated into the new state systems. In a very real way, customary law and African courts provided the ideological and financial underpinnings for European colonial rule.In Kenya from at least the 1920s, but especially in the 1940s and 1950s, administrators struggled with the question of how customary law could best be used in African courts. Prominent among their concerns was the codification of customary law, against which most administrators vigorously fought. British officials believed that reducing African custom to written law and placing it in a code would ‘crystalize’ it, altering its fundamentally fluid or evolutionary nature. Colonizers naturally harbored intentions of using the law to shape society (as Cooper has demonstrated for the Kenya coast) but a fluid, unwritten law provided much greater latitude to pursue these goals. It was necessary, as one administrator put it, to allow ‘changing traditions to meet current altering conditions’.This case study of Kenya offers a different understanding of the history of customary law.
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Chigara, Benedict Abrahamson. « The Administration of International Law in National Courts and the Legitimacy of International Law ». International Criminal Law Review 17, no 5 (15 octobre 2017) : 909–34. http://dx.doi.org/10.1163/15718123-01705004.
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Increasingly, national courts find themselves called upon to determine matters where un lex specialis; regional supranational law; customary international law and domestic law all appear relevant. Lower court judges may be challenged significantly because such matters often lie beyond their day-to-day practice of interpreting and applying national law to local legal issues. This article recommends that to ensure both justice and legitimacy of international law, national courts − especially lower courts, should a priori consider whether the matters before them would be best served by appointing an expert academician ‘friend of the court’ to illuminate the contested applicable international law.
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Fombad, Charles Manga. « Gender equality in African customary law : has the male ultimogeniture rule any future in Botswana ? » Journal of Modern African Studies 52, no 3 (18 août 2014) : 475–94. http://dx.doi.org/10.1017/s0022278x14000391.
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ABSTRACTThe actual and perceived conflicts between customary law and human rights law, especially in issues dealing with gender equality, have remained a major challenge in Africa. Some of these conflicts are further complicated by the varying and contradictory interpretation of some customary laws by the courts. Different approaches have been adopted at different times and in different places to deal with some of these conflicts. One of the most controversial areas of customary law has been the traditional exclusion of women from property inheritance. This paper takes a critical look at how the courts in Botswana have dealt with the issue of the right to inherit the homestead or family home. It examines this issue in the specific context of the recent case of Ramantele v Mmusi in which the Court of Appeal had to consider the customary law rule of male ultimogeniture – which permits only the last-born son to inherit the homestead intestate to the exclusion of other siblings, especially females. It argues that courts need to be more proactive and progressive in their approach to dealing with such issues than they have been in the past in order to recognise the nature and extent of changes that are taking place today. The main lesson that can be drawn from the Botswana case is that if customary law is to survive and develop, more needs to be done to promote research and scholarship in this area and judges also need to take advantage of this research and deal with these customary law disputes with knowledge, understanding and sensitivity.
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Alvarez-Jiménez, Alberto. « Foreign Investment Protection and Regulatory Failures as States’ Contribution to the State of Necessity under Customary International Law – A New Approach Based on the Complexity of Argent ». Journal of International Arbitration 27, Issue 2 (1 avril 2010) : 141–77. http://dx.doi.org/10.54648/joia2010009.
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The customary norm of necessity contains several requirements that must be cumulatively met, one of them being that the state invoking the excuse cannot have substantially contributed to the situation of necessity. However, the NAFTA tribunals in S.D. Myers and GAMI recognized that adverse consequences for foreign investors caused by wrong regulatory choices could not be considered as a violation of the minimum standard of treatment. Implicit in this finding is the premise that perfection is not the standard regarding the quality of abstract regulation. If this is so, the question that needs to be answered is how courts and tribunals should evaluate the issue of a crisis prompted by the failure of regulation of this character, when interpreting the customary rule of necessity. The purpose of this article is to draw on the factual richness of Argentina’s 2001 crisis to develop a framework of analysis that permits courts and tribunals to evaluate regulatory failures as contributors to the situation of necessity under customary international law.
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Heirbaut, D. « Who were the makers of customary law in medieval Europe ? Some answers based on sources about the spokesmen of Flemish feudal courts ». Tijdschrift voor Rechtsgeschiedenis / Revue d'Histoire du Droit / The Legal History Review 75, no 3 (2007) : 257–74. http://dx.doi.org/10.1163/157181907783054923.
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AbstractDue to a lack of sources, the makers of customary law in the middle ages are largely unknown to us. However, a unique source, the Lois des pers du castel de Lille, makes it possible to identify the spokesmen of customary law courts, who were the intellectual authors of these courts' judgements and, thus, the main creators of customary law. An analysis of their careers shows that they were legal advisers, lords and/or bailiffs and members or spokesmen of other courts. In short, they were their community's legal experts. They had learned their trade by doing and can be considered to have been semi-professionals. Certain spokesmen were more successful than others and served as a court's main spokesman, but it is hard to determine why someone became the main spokesman or spokesman at all, though knights had more 'natural' authority for acting as spokesman than others. In fact, although the spokesmen formed a community of legal experts in their area, two subgroups (the knights and the others) can be distinguished. The case studied in this article concerns the spokesmen of a Flemish castellany court around 1300, but spokesmen can be found in Flanders already in 1122 and they were common in North-western Europe. Therefore, this article concludes with a call for further research about these key figures of medieval customary law.
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Walton, Beatrice A. « Nevsun Resources Ltd. v. Araya ». American Journal of International Law 115, no 1 (janvier 2021) : 107–14. http://dx.doi.org/10.1017/ajil.2020.103.
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In Nevsun Resources Ltd. v. Araya, the Supreme Court of Canada declined to dismiss a series of customary international law claims brought by Eritrean refugees against a Canadian mining corporation for grave human rights abuses committed in Eritrea. In doing so, the Supreme Court opened the possibility of a novel front for transnational human rights litigation: common law tort claims based on customary international law. Under the doctrine of adoption, customary international law is directly incorporated into the Canadian common law. However, Canadian courts have not yet upheld a private right of action for violations of customary international law. Writing for a divided court (5–4), Justice Abella allowed the plaintiffs’ claims to proceed, finding that it is not “plain and obvious” that the plaintiffs’ customary international law claims are bound to fail under either Canada's burgeoning “transnational” or “foreign relations” law, or international law itself. In reaching this conclusion, she offered a unique and overdue reflection on the role of national courts in identifying, adopting, and developing custom. A larger majority of the court (7–2) also rejected outright the application of the act of state doctrine in Canada, tracking several common law systems in limiting the doctrine in favor of human rights litigants.
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BRANNAGAN, CRAIG, et CHRISTOPHER WATERS. « ICRC Privilege in Canada ». Canadian Yearbook of international Law/Annuaire canadien de droit international 53 (10 août 2016) : 144–71. http://dx.doi.org/10.1017/cyl.2016.1.
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AbstractThis article explores whether the International Committee of the Red Cross (ICRC) enjoys testimonial privilege before Canadian courts. The authors argue that there is strong evidence to suggest that customary international law requires that the ICRC be granted a privilege not to testify or disclose confidential information in domestic court proceedings. Such a privilege, they argue, is entailed by the ICRC’s mandate to engage in international humanitarian law protection activities using confidential means. Given that customary international law forms part of the common law in Canada, the authors argue that this privilege should be recognized by Canadian courts despite its potentially uneasy fit with traditional Canadian evidence law.
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Croquet, Nicolas AJ. « The Import of International Customary Law into the EU Legal Order : The Adequacy of a Direct Effect Analysis ». Cambridge Yearbook of European Legal Studies 15 (2013) : 47–81. http://dx.doi.org/10.5235/152888713809813567.
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AbstractThe EU case law, embodied by the Racke judgment, constituted a normative compromise between the judicial treatment of international customary law and that of international treaties. Indeed, the lack of precision of an international customary norm would not prevent it from being assessed by the EU Courts on the merits of the case, albeit to a lesser degree of judicial review. The lack of precision of an international treaty provision would in contrast make it unenforceable on the facts of the case (subject to two exceptions and the doctrine of consistent interpretation), whereas when sufficiently precise, the treaty provision would be assessed in full by the EU Courts. In Air Transport Association of America, the Court of Justice projected onto the challenged EU secondary act a hybrid and alternative direct effect analysis, borrowed in part from the classical approach to direct effect and in part from the first branch of the direct concern standing requirement whilst also adopting an absolute manifest violation test due to an imprecision bias targeted at all international customary norms. The Court of Justice thereby disrupted this normative compromise: any international customary norm, provided that it or the challenged EU secondary act passes the hybrid direct effect test, would also trigger a marginal form of judicial review in validity review actions before the EU Courts, regardless of its nature and inherent qualities. This chapter aims to argue that the direct effect requirements, which emerge from the case law on the import of international treaties into the EU legal order, remain adequate to assess the judicial enforceability of ordinary international customary law in the EU legal system minus the requirement revolving around the broad logic and nature of the international customary norm. International customary norms should, accordingly, be assessed on the basis of the same direct effect criteria as those applicable to the Constitutive Treaties and EU secondary acts when assessing their relation to Member States’ national legal orders. However, the precision and unconditionality criteria ought to be appreciated with more flexibility with regard to the import of international customary norms in order to account for their unique normative character. The ‘express reference’ ‘implementation’ exceptions specific to the international treaty judicial context may also be transposed to the assessment of international customary law in validity review actions. The application of the doctrine of consistent interpretation to international customary norms and their use as interpretative tools before the EU Courts constitute judicial implications of the principle of primacy of international customary law binding upon the Union over inconsistent EU secondary acts.
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Jones, Carwyn. « Lost from Sight : Developing Recognition of Māori Law in Aotearoa New Zealand ». Legalities 1, no 2 (septembre 2021) : 162–86. http://dx.doi.org/10.3366/legal.2021.0015.
Texte intégralRésumé :
In Aotearoa New Zealand, the state legal system is increasingly drawing on aspects of Māori law. Recent decisions suggest that the courts are willing to consider Māori law as a source of New Zealand law. This marks a change from earlier approaches which recognised discrete customary practices as customary law. Questions of state recognition of customary law have tended to focus attention on common law tests and so obscure processes of the Indigenous legal system, the sources of Indigenous law, and Indigenous forms of legal reasoning and communication. This article suggests that by focusing instead on understanding the application of Māori law within a fuller cultural context, the New Zealand courts may be better able to reveal and understand the Indigenous legal principles and processes at work. This would include engaging with a different range of legal sources, including working with Māori stories as legal texts, to make visible aspects of Indigenous law that can help to drive developments in the state legal system.
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Hoffman, Katherine E. « Berber Law by French Means : Customary Courts in the Moroccan Hinterlands, 1930–1956 ». Comparative Studies in Society and History 52, no 4 (octobre 2010) : 851–80. http://dx.doi.org/10.1017/s0010417510000484.
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As the French conquered Muslim lands in their nineteenth- and early-twentieth-century quest for empire, they encountered multiple and sometimes mixed judicial systems among the native populations. In many places, legal codes were shaped by eitherfiqh, meaning Islamic law, one component of which is customary law, or by non-Islamic custom, or some combination of the two. To administer native justice in French colonies and protectorates, officials sorted through this multiplicity in order to standardize procedures, principles, and punishments. The standardization of customary law codes, whether written or oral prior to submission to themakhzan(the central Moroccan government, lit. “storehouse”) under the Protectorate, required that French officials both maintain pre-contact codes and create new institutions to administer and monitor them. Through new judicial bureaucracies, the French transformed indigenous law. Customary law was a “residual category” in the sense that it consisted of what remained after colonial powers ferreted out what they considered morally offensive and politically objectionable. Legal codification involved what Vincent calls “a compromise between those recognized as leading elements in indigenous societies and the colonial administrators who co-opted them.” Yet customary law, “if understood as allowing local people to do their own cultural ‘thing,’ should also be understood to have been a carefully restricted fragment of ‘tradition.’” This tradition when manifest as customary law “implies that there is a different kind of law with which it can be contrasted,” making customary law “the ongoing product of encounters between subordinate local political entities and dominant overarching ones.” In such encounters the distinction made between custom and law has long preoccupied legal historians, as well as anthropologists, colonial administrators, and importantly, lay people. Throughout French African colonies and protectorates, this distinction was key to the French usurpation of social institutions, as was true in British overseas territories as well.
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Capps, Patrick. « The Court as Gatekeeper : Customary International Law in English Courts ». Modern Law Review 70, no 3 (mai 2007) : 458–71. http://dx.doi.org/10.1111/j.1468-2230.2007.00647.x.
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Farran, Sue. « South Pacific Land Law : Some Regional Challenges, Cases and Developments ». Victoria University of Wellington Law Review 32, no 4 (3 décembre 2001) : 953. http://dx.doi.org/10.26686/vuwlr.v32i4.5864.
Texte intégralRésumé :
Land in the South Pacific is largely regulated by introduced English Common Law. However, the vast bulk of the land in the region is held under different forms of customary land tenure, and the perceptions of land and its use are distinctly regional. In this article, the author considers how the Common Law has been adapted in the region to accommodate and reflect customary law and practice. Selected cases from the region are used to highlight the difficulties that the courts face in blending Common Law principles with customary practice and accommodating changing uses of land that challenge traditional solutions.
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Luawo, Fipy Rizky Amalia, et Haswida Amalia. « The Implementation of Inheritance Based on The Tribe of Kaili Ledo and Islamic Inheritance Laws ». Jurnal Dinamika Hukum 19, no 2 (22 décembre 2019) : 318. http://dx.doi.org/10.20884/1.jdh.2019.19.2.2525.
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Law is an inherent part of Indonesian society, which does not only national law but also customary law. One of the customary laws in Indonesia is the Kaili customary law. Kaili customary law is only applicable to specific communities. Whereas Islamic law applies broadly to all Muslims. One of them is in the field of inheritance law. From many disputes that occur in inheritance law, the distribution of heritage in inheritance law has always been a major problem that occurs in society, both in Kaili's customary inheritance and Islamic inheritance laws. It is interesting to find out more that each of the rules has different dispute resolution where Kaili‘s customary inheritance law trusts Totua nu ada as a person who has the capability to distribute the heritage. This study was conducted by the Conceptual and Comparative Approach. In conclusion, Kaili indigenous community, are familiar with customary institutions, and, in Islamic law, they have the Religious Courts to resolve their inheritance disputes. Keywords: Customary Inheritance law, Islamic Law, Division of inheritance
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de Wet, Erika, et André Nollkaemper. « The application of customary international law by national courts : Introduction ». Non-State Actors and International Law 4, no 1 (2004) : 1–2. http://dx.doi.org/10.1163/157180704323129403.
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Tsafrir, Nurit. « Arab Customary Law in Israel : Sulha Agreements and Israeli Courts ». Islamic Law and Society 13, no 1 (2006) : 76–98. http://dx.doi.org/10.1163/156851906775275457.
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AbstractIn this article I describe various aspects of the complex link between the Israeli legal system and the Arab customary institution of sulha (an agreement for peaceful settlement of a dispute). On the basis of contemporary decisions of the Supreme Court and the District Courts in Israel, I argue that a sulha agreement between an accused and his victim (or the victim's family) often influences the judges' decisions during criminal proceedings against the former. This influence tends to work in favor of the accused—mainly in decisions about detention and sentencing—but when a sulha agreement affects the verdict, it tends to work against the accused. The weight attached to the sulha by the court has some problematic aspects: it may cause the accused to force a sulha agreement upon his victim and lead to perversion of the course of justice.
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Ao, Dr Moatoshi. « On the Dispensation of Justice by Customary Courts in Nagaland ». International Journal of Research and Review 9, no 3 (28 mars 2022) : 504–15. http://dx.doi.org/10.52403/ijrr.20220356.
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Customs and usages have been the sole means by which any kind of disputes were adjudicated in the Naga society. It is highly appreciated for it is simple, speedy and does not involve expensive litigation. The British Raj continued this system of settlement of disputes by enacting legislations exempting the application of technical procedural laws enforced in other parts of the country. After the Indian independence, the Constitution of India provided special provisions recognizing the whole realm of Naga customary law. However, with the growth of society, the requirements of the people change and the age old customs may not cater to the current needs in many cases. Similarly, some customs and practices may conflict with the rule of law and other provisions of the Constitution. Thus, in such transitional period, the governmental organs of the state have been casted with a special responsibility. This paper endeavours to study the customary courts and its structure, functioning and authority in settlement of disputes and administration of justice. The paper also endeavours to study the customary courts vis-à-vis the formal laws in contemporary times with help of judicial decisions. Keywords: customary courts, Constitution, Article 371A, Dobhasi, Gaon Bura.
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Oba, Abdulmumini A. « Juju Oaths in Customary Law Arbitration and Their Legal Validity in Nigerian Courts ». Journal of African Law 52, no 1 (20 mars 2008) : 139–58. http://dx.doi.org/10.1017/s0021855308000065.
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AbstractTraditional oaths play decisive roles in customary law arbitration and are recognized and accorded due respect by the courts. This position is now threatened by four emerging factors. First, all customary law arbitrations (including those based on juju oaths) are now subjected to stringent conditions before the courts will enforce them. Secondly, there are discordant voices in the Supreme Court on the legal relevance and juristic value of traditional oaths. Thirdly, in August 2005, the gruesome activities of some shrines where juju oaths are administered in some Igbo communities were exposed in the mass media. This exposure has given traditional oaths a bad image. Lastly, the onslaught of Islam and Christianity is taking its toil on traditional oaths. There is the need to protect traditional oaths from these threats.
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Simarmata, Rikardo. « Kedudukan dan Peran Peradilan Adat Pasca-Unifikasi Sistem Peradilan Formal ». Undang : Jurnal Hukum 4, no 2 (21 novembre 2021) : 281–308. http://dx.doi.org/10.22437/ujh.4.2.281-308.
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After the implementation of state policy on the unification of the national justice system in 1951, the customary courts are still functioning and are part of the existing customary law system. In fact, this policy abolished the position of customary court as part of the formal justice system. Customary courts continue to function after that period because the said policies did not aim to abolish the existence of customary courts, yet to negate the binding force of its decisions. Moreover, afterwards the state implemented legislation which recognizes informal forums for dispute resolution, including customary courts. The state even enacted laws and regulations whose provisions to eliminate criminal charges against someone who has been decided and given customary sanctions by the customary court. However, such legislative policies and politics do not aim to provide a strong formal position for customary courts so that they can play an important role as a dispute resolution forum favored by justice-seeking communities. This paper uses two methods to discuss the position and role of customary justice in the national justice system. The first method is by discussing two legal ideas, namely Law and Development and Access to Justice. The second method is to compare the legal politics of customary justice in two countries, namely Eritrea and Papua New Guinea. The discussion through these two methods leads this paper to a proposal regarding the need to reconsider giving binding force to customary court decisions.
Abstrak
Pasca-pemberlakuan kebijakan unifikasi sistem peradilan nasional pada 1951, peradilan adat tetap hidup dan menjadi bagian dari eksistensi sistem hukum adat. Padahal, kebijakan ini menghapus kedudukan peradilan adat sebagai bagian dari sistem peradilan formal. Peradilan adat tetap berfungsi setelah periode tersebut karena kebijakan unifikasi tidak bermaksud untuk mengakhiri eksistensi peradilan adat, melainkan meniadakan kekuatan mengikat dari putusannya (binding force). Apalagi, setelah itu negara memberlakukan politik legislasi yang mengakui forum-forum informal penyelesaian sengketa, termasuk peradilan adat. Bahkan, dalam perkembangannya, bermunculan peraturan perundang-undangan yang mempunyai ketentuan menghilangkan tuntutan pidana pada seseorang yang sudah diputuskan dan diberikan sanksi adat oleh peradilan adat. Kebijakan dan politik legislasi mengenai peradilan adat yang seperti itu memunculkan pertanyaan mengenai bagaimana sebenarnya kedudukan peradilan adat dalam sistem peradilan nasional. Tulisan ini menggunakan dua metode untuk mendiskusikan bagaimana kedudukan peradilan adat dalam sistem peradilan nasional. Metode pertama dengan mendiskursuskan dua pemikiran hukum yaitu Law and Development dan Access to Justice. Kedua pemikiran ini memiliki tesis-tesis yang diametral mengenai kedudukan peradilan adat. Metode kedua yaitu membandingkan dengan politik hukum terhadap peradilan adat di dua negara yaitu Eritrea dan Papua Nugini. Pembahasan lewat dua metode tersebut membawa tulisan ini pada suatu usulan mengenai perlunya mengembalikan kedudukan peradilan adat sebagai hanya forum perdamaian menjadi pengadilan yang putusannya bersifat mengikat.
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Beckerman, John S. « Toward a Theory of Medieval Manorial Adjudication : The Nature of Communal Judgments in a System of Customary Law ». Law and History Review 13, no 1 (1995) : 1–22. http://dx.doi.org/10.2307/743954.
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Historical inquiry into the character of local dispute resolution and the operation of customary law in medieval England begins in manorial courts, since it is from those local courts that the most abundant documentation survives. Were the judgments of these courts “principled” in the sense of being rooted in substantive legal rules that courts ordinarily followed, or were they ad hoc determinations based on factual circumstances invisible to the modern reader? Can historians extrapolate behavioral norms and shared cultural values from the manor court records that survive in increasing profusion from the second quarter of the thirteenth century?
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Suwardi, Suwardi, et Rustan Rustan. « Settlement of Disputes Over Indigenous Land Ownership Based on Traditional Law ». International Journal of Social Science Research and Review 5, no 3 (1 mars 2022) : 1–5. http://dx.doi.org/10.47814/ijssrr.v5i3.222.
Texte intégralRésumé :
The research used in this dissertation process uses a type of legal research, the way it works is researching library or secondary materials that have been collected. The civil justice system contains norms and principles that provide space for the practice of customary justice which has a combination of characteristics as informal justice, communal justice, alternative dispute resolution and simplified court regardless of the inconsistency of laws and regulations regarding the existence of customary justice in the power system positive Indonesian judiciary. The state and positive judicial system ideally recognize and give position to customary courts in customary law. It is not directly proportional to the lack of state power over the administration of justice and the facilitation of narrow cultural identities. Second, a positive judicial system provides recognition and position of customary justice in the national justice system, with an effort to make law (both state law and customary law) a representation of universal values, not a representation of the values of narrow interest groups.
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Owino, Lisa. « Application of African Customary Law : Tracing its Degradation and Analysing the Challenges it Confronts ». Strathmore Law Review 1, no 1 (1 janvier 2016) : 143–64. http://dx.doi.org/10.52907/slr.v1i1.156.
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Historically, African customary law has occupied the lower rungs of the legal ladder, often being set aside for more formal laws. This is primarily due to the introduction of western and religious legal systems through the exploration of western nations into Africa, missionary activity and, subsequently, colonisation. However, African countries – including Kenya – are making an effort to give due recognition to customary law. This paper discusses the steady degradation of customary law from the colonial period to the promulgation of the Constitution of Kenya 2010 where there are attempts to resuscitate its application, it also discusses the challenges that the courts may face in this application of customary law today and possible solutions to these challenges.
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Mejía-Lemos, Diego. « Custom in General International Law and International Criminal Law : A Survey of Selected Issues ». International Criminal Law Review 20, no 5 (3 septembre 2020) : 805–40. http://dx.doi.org/10.1163/15718123-bja10025.
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Abstract This article surveys selected decisions of international criminal courts and tribunals, and related literature, examining custom from a general standpoint. This article considers the place and nature of custom, with a particular focus on challenges levelled against custom’s suitability in international criminal law. This article also analyses custom’s ‘structure’, and, more specifically, the application of the ‘two-element approach’ by international criminal courts and tribunals. This articles then discusses claims that international criminal courts and tribunals engage in sui generis customary law-making, and revisits the distinction between custom in foro and in pays, examining that distinction’s pertinence to assessing such claims. Having emphasised the influence of general international law on international criminal law, this article lastly reverses its focus, and addresses custom’s wider functions as source for rules on custom’s identification and, more generally, other sources’ recognition, showing how some decisions of international criminal courts and tribunals elucidate those wider functions.
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Batubara, Chuzaemah, et Fatimah Fatimah. « STRUGGLING TO SURVIVE IN COMPLEX AND MODERN ERA ». ALQALAM 34, no 1 (30 juin 2017) : 39. http://dx.doi.org/10.32678/alqalam.v34i1.1797.
Texte intégralRésumé :
The holistic implementation of Islamic law in the life of Acehnese community has brought “big changes,” one which is force the majority Acehnese involved in conflicts or disputes bringing their cases solved to Mahkamah Syari’ah as a formal legal instituon which mostly leads disputants to expensive costs, long consumed and waste time as well as exhausting, even unjust feeling. However, the implementation has revitalized the existence of customary court which almost gave up in New Order regimes. The paper argues that the Acehnese legal culture embodied in Peradilan Gampông as customary Law is living law that would resolve destructive conflict and reduce the intention and huge suggestion of some people to resolve their cases through formal legal solution in State Courts (Mahkamah Syariah). With a socio-legal approach the research is focused on case studies on resolving dispute in Aceh customary courts (Peradilan Adat Gampông) at several Gompông in Aceh. The study found that peace, equilibrium, societal hood and justice as dominant principles in the life of Acehnese people at gampôngs and cities have brought customary law revived and as socities’ primary choices in resolving their legal cases.