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Journal articles on the topic 'Customary law courts – Tanzania'

Author: Grafiati

Published: 10 March 2023

Last updated: 31 July 2025

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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 (April 25, 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, regiona

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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 anal

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Ardi Shidiq, Razin, and M. Sofyan Pulungan. "Alternative Dispute Resolution for Customary Land Through Customary Courts." Asian Journal of Engineering, Social and Health 4, no. 1 (2025): 152–62. https://doi.org/10.46799/ajesh.v4i1.517.

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The recognition of the customary rights of indigenous peoples is enshrined in the Basic Agrarian Law, specifically in Article 3 of the UUPA, which mandates that the implementation of these rights must align with national interests and not conflict with higher laws. Customary rights are respected as living law within indigenous communities, provided they do not contradict the spirit of national law. Although customary courts are not explicitly mentioned in formal judicial regulations, they remain acknowledged and respected, with their decisions influencing formal courts, particularly in dispute

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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 (December 12, 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 ascertainm

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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 (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 m

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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

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Silambi, Erni Dwita, Pangerang Moenta, Farida Patittingi, and Nur Azisa. "Ideal Concept of Traditional Justice in Solving Criminal Case." Academic Journal of Interdisciplinary Studies 11, no. 1 (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 examin

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Bahri, Robi Assadul. "Konsep Penegakan Hukum Pidana Adat di Indonesia Berdasarkan Asas Kepastian Hukum." Law, Development and Justice Review 7, no. 1 (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 o

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Care, Jennifer Corrin, and Jean G. Zorn. "Legislating for the Application of Customary Law in Solomon Islands." Common Law World Review 34, no. 2 (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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Kusmayanti, Hazar, Sonny Dewi Judiasih, Dede Kania, and Dewi Sulastri. "A COMPARATIVE ANALYSIS OF THE INDONESIAN AND PHILIPPINE JUDICIAL SYSTEMS: IDENTIFYING THE ROLE OF CUSTOMARY COURTS." Cepalo 9, no. 1 (2025): 13–24. https://doi.org/10.25041/cepalo.v9no1.3677.

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Customary dispute resolution institutions in Indonesia and the Philippines serve to provide indigenous peoples with access to justice beyond state courts. This research, employing a normative juridical approach with a descriptive-analytical specification, highlights key differences between the two systems. In Indonesia, customary courts derive recognition from the 1945 Constitution, while in the Philippines, they are explicitly regulated under the Indigenous Peoples’ Rights Act (IPRA) of 1997, leading to greater integration with the national legal system. Indonesian customary courts handle a b

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Makhari, M. R. "Post-Colonial Traditional Courts in Botswana, the Kingdom of Eswatini and South Africa." African Journal of International and Comparative Law 31, no. 4 (2023): 445–58. http://dx.doi.org/10.3366/ajicl.2023.0460.

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The evolution of customary courts in Botswana has brought changes from the traditional system of customary courts known from pre-colonial times. The change brought about successes but still has challenges that make the system far from perfect. Despite the state of imperfection, customary courts in Botswana have evolved in a manner that other countries, such as South Africa, may draw some lessons from, identifying what is constitutionally consistent in order to reform its own. On the other hand, traditional courts in the Kingdom of eSwatini did not evolve and are still regulated by tradition an

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Mujuzi, Jamil Ddamulira. "Reconciling Customary Law and Cultural Practices with Human Rights in Uganda." Obiter 41, no. 2 (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

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Ebi Purnama, Muhammad Syuib, and Azmil Umur. "EFFECTIVENESS OF CUSTOMARY DISPUTE RESOLUTION THROUGH CUSTOMARY COURTS: A STUDY IN LAWE SEMPILANG VILLAGE, LAWE ALAS DISTRICT." Justisi: Jurnal Ilmu Hukum 10, no. 1 (2025): 1–23. https://doi.org/10.36805/jjih.v10i1.8771.

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The Authority of Customary Court Institutions in Settling Disputes through Customary Courts is one of the Alternatives in resolving disputes. Customary courts generally accommodate the interests of the disputing parties in the customary law area that applies both in civil law and criminal law that are resolved through customary courts are acts that violate Customary Norms. This study is related to customary court decisions that were not implemented in Lawe Sempilang Village, Lawe Alas District, Southeast Aceh Regency. This study aims to determine how the process of resolving customary disputes

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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 judi

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15

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 (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 sta

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Ntlama, Nomthandazo, and Dazo Ntlama. "The Constitutional Divide of Postapartheid South Africa in the Jurisdiction of the Traditional Justice System." Southern African Public Law 29, no. 2 (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

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O’Keefe, Roger. "CRIMES, THE COURTS AND CUSTOMARY INTERNATIONAL LAW." Cambridge Law Journal 65, no. 3 (2006): 473–76. http://dx.doi.org/10.1017/s0008197306217203.

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18

Mustafa, Bukhari, Sumiadi, and Husni. "Penerapan Hukuman Adat Terhadap Pelaku Jarimah Kalwat di Aceh Tamiang." Cendekia: Jurnal Hukum, Sosial & Humaniora 1, no. 1 (2023): 52–64. https://doi.org/10.5281/zenodo.8116257.

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<em>The act of “khalwat” is a despicable act and “khalwat” is a “jarimah” that violates Islamic law and it is categorized into jarimah “ta`zir”. Settlement of jarimah seclusion in Aceh Tamiang 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 court

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Batubara, Chuzaemah, and Fatimah Fatimah. "STRUGGLING TO SURVIVE IN COMPLEX AND MODERN ERA." ALQALAM 34, no. 1 (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 li

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Singh, Subhash. "Recognition of Naga Customary Law and Practices in Northeast India: Convergence or Conflict." International Journal of Law and Society 8, no. 2 (2025): 83–102. https://doi.org/10.11648/j.ijls.20250802.13.

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India is a unique example of unity in diversity. The diversity and variety of the language, caste, culture, tribe and religion is remarkably distinguished as a wonderful mosaic of anthropological splendor. Tribal peoples generally prefer having their disputes determined by the customary courts because their procedures are simpler and cheaper compared to formal law courts. The courts are also located near the public and the justice is available at the doorstep of the people. The courts apply orally transmitted rules and norms while rendering decisions. Village Court in Nagaland is unique not on

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Syihab, Mahdi Abdullah. "Crime Settlement of Khalwat in Aceh." SASI 28, no. 4 (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

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Marian, Bedrii. ""Kopa" law and its application in Ukrainian community justice (XIV-XVIII cent.)." ScienceRise: Juridical Science, no. 3(9) (September 30, 2019): 32–38. https://doi.org/10.15587/2523-4153.2019.180309.

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The article is devoted to “kopa” customary law, which was applied by community courts in Ukrainian lands in the XIV–XVIII centuries. Interpretations of the concept of “kopa” law in the scientific literature are covered. “Kopa” law was a subsystem of material and procedural norms of customary law. It was characteristic of the Ukrainian and Belarussian peoples. In addition, “kopa” law was sometimes referred to as the community court, which enforced the relevant rules. The structure of “kopa” law and the origin of its elements are

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Enabulele, Amos O., and 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 (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 “validi

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Mtsweni, Lindiwe, and Charles Maimela. "The role and effect of the Constitution in customary law of succession." De Jure 56, no. 1 (2023): 687–703. http://dx.doi.org/10.17159/2225-7160/2023/v56a39.

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Customary law is the original law of the inhabitants of South Africa; however, it has always been treated as the stepchild of the legal system. The new constitutional dispensation requires that all laws be measured against the Constitution of the Republic of South Africa, 1996. This means that any law that is inconsistent with the Constitution is regarded as being invalid. Over the last few years, courts have had several cases, which have required them to test the constitutionality of some customary law principles and develop customary law in a manner that aligns it with the Constitution. Howe

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Salleh, Rafidah@Malissa, Ku Mohd Amir Aizat Ku Yusof, Muhammad Izwan Ikhsan, Lenny James Matah, and Hershan @. Ray Herman. "Jurisdiction of the Native Courts in Sabah." Malaysian Journal of Social Sciences and Humanities (MJSSH) 9, no. 11 (2024): e003042. https://doi.org/10.47405/mjssh.v9i11.3042.

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The Native Courts in Sabah are established under the Native Courts Enactment 1992. The courts serve as a crucial institution for administering justice within the native communities of the state. The jurisdiction of Native Courts in Sabah is designed to uphold and administer native customary law. These courts have the authority to adjudicate matters among others, breach of customary law, land disputes, inheritance, marital issues and adoption. This paper explores the scope of jurisdiction exercised by Native Courts. It highlights the importance of these courts in preserving natives' rights and

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Kusmayanti, Hazar, Madiha Dzakiyyah Chairunnisa, Dede Kania, and Rafan Darodjat. "Legal Politics of the Existence of Customary Courts in Civil Procedure Law." Legitimasi: Jurnal Hukum Pidana dan Politik Hukum 13, no. 1 (2024): 68. http://dx.doi.org/10.22373/legitimasi.v13i1.23079.

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Along with the development of increasingly modern globalization, the authority and existence of customary institutions for dispute resolution began to be questioned, especially now that some people tend to resolve their disputes through formal institutions such as state courts and the police. This article examines the legal politics of the existence of customary courts in civil procedure law. The research approach is normative juridic and is analyzed through qualitative juridic, which studies data based on legal aspects. The study's findings indicate that legal discrepancies regarding customar

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Wadjo, Hadibah Zachra, and Novyta Uktolseja. "Implementation of the Customary Law System in Criminal and Civil Law Enforcement in Coastal Communities." PAMALI: Pattimura Magister Law Review 5, no. 1 (2025): 182. https://doi.org/10.47268/pamali.v5i1.2459.

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Introduction: Customary law plays a crucial role in resolving various social conflicts and maintaining justice within the local context.Purposes of the Research: The objective of this article is to examine the role of customary law in resolving criminal and civil disputes within the coastal communities, focusing on the practices of customary law in Negeri Tamilouw, Maluku.Methods of the Research: This research employs a normative-empirical approach, combining literature analysis of customary law with direct observation of its application in the Tamilouw community.Results Main Findings of the R

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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 (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

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Bintoro, Rahadi Wasi, Antonius Sidik Maryono, Sanyoto Sanyoto, Weda Kupita, and Muhammad Bagus Tri Prasetyo. "Determination of The Authority To Adjudicate Child Adoption For Muslims in Indonesia." Jurnal Dinamika Hukum 21, no. 3 (2022): 480. http://dx.doi.org/10.20884/1.jdh.2021.21.3.3150.

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This article seeks to raise legal issues regarding child adoption, because adoption of children in the customary law system and Islamic law in Indonesia brings different legal consequences in family law. The focus of this study is to discuss the implications of the adoption of children in district courts and religious courts and the determination of the competence of the court in the adoption of children. This study uses normative research with a conceptual approach and legislation with the main data in the form of laws and regulations and the law of adoption. Based on the analysis, The Religi

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Pienaar, Gerrit. "The Methodology Used to Interpret Customary Land Tenure." Potchefstroom Electronic Law Journal/Potchefstroomse Elektroniese Regsblad 15, no. 3 (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

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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 s

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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 (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 t

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Forsyth, Miranda. "Beyond Case Law: Kastom and Courts in Vanuatu." Victoria University of Wellington Law Review 35, no. 2 (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

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Ruti Johnson Mwamfupe, Cornel K inanila Mtaki, and Benedict Thomas Mapunda. "Examination of the effectiveness of ward tribunals in mediating land disputes in Tanzania: A case study of Kibaha District Council." International Journal of Science and Research Archive 13, no. 1 (2024): 127–40. http://dx.doi.org/10.30574/ijsra.2024.13.1.1531.

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Tanzania has established a separate system for dealing with land disputes, which is less formal than ordinary civil courts and more accessible to citizens with less formal education. The Village Land Act and the Land Dispute Courts Act provide the institutional framework for land dispute settlement, including the Ward Tribunal, District Land and Housing Tribunal, High Court, and Court of Appeal of Tanzania. Ward Tribunals are established by the Ward Tribunal Act in 1985 to secure peace and harmony in their areas by obtaining justice and amicable settlement of land disputes. However, some cases

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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 (March 27, 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

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Walton, Beatrice A. "Nevsun Resources Ltd. v. Araya." American Journal of International Law 115, no. 1 (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

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., Zuhrah, I. Gusti Ayu Ketut Rachmi Handayani, and Burhanuddin Harahap. "Legislative Legal Politics of Inheritance Law in Indonesia." Journal of Ecohumanism 3, no. 6 (2024): 910–16. http://dx.doi.org/10.62754/joe.v3i6.4059.

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This article is the result of research on the legal politics of inheritance law legislation in Indonesia. This study employs normative research methods, focusing on literature review and legal documents to understand the principles and regulations in force. Through the approach of case analysis, legislative analysis, and an examination of legal politics in Indonesia, the research delves into the relevant aspects. Data analysis was used to identify and understand legal norms related to inheritance distribution within the systems of customary law, Islamic law, and civil law in Indonesia. The res

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Kruuse, Helen, and Lea Mwambene. "Recognising form through function in the context of integrating the bride requirement in customary marriages in South Africa." African Human Rights Law Journal 23, no. 2 (2024): 354–85. http://dx.doi.org/10.17159/1996-2096/2023/v23n2a6.

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In previous scholarship we argued how the state and courts have tended to favour a formal or definitional approach to customary marriages in South Africa, leaving vulnerable parties, particularly women, not adequately protected. In this article we focus on a new approach emerging from the courts, particularly relating to the integration of the bride as a requirement for the validity of a customary marriage. While we affirm the courts' emerging approach regarding integration, we take issue with the language used by the courts, particularly that relating to the word 'waiver'. In considering the

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Suriyani, Meta, Zaki Ulya, Vivi Hayati, and Fuadi Fuadi. "Structuring customary marine courts to achieve legal certainty in the settlement of customary marine disputes." Jurnal Geuthèë: Penelitian Multidisiplin 7, no. 1 (2024): 01. http://dx.doi.org/10.52626/jg.v7i1.308.

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The aim of this study is to build legally and socially independent Panglima laot and fisher community groups to resolve adat laot issues through adat laot courts, and to increase community empowerment in the area of services in social conflicts in fishing communities. Panglima laot lhok Idi Rayeuk in Alue Dua Muka O village in resolving disputes between fishermen and violations of customary maritime law, where there is still confusion in its application. The existing guidelines for customary courts in Aceh are considered to be very general and only discuss gampong customary courts. Meanwhile,

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Khalid MD, Moh Muafiqul, Aldi Hidayat, Muhammad Alan Juhri, and Elvina Lintang Solehah. "Tracing The Trialectic: The Process and Influence of Three Laws in The Establishment of Religious Courts in Indonesia." Justicia Islamica 21, no. 1 (2024): 137–54. http://dx.doi.org/10.21154/justicia.v21i1.8741.

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This article discusses the legal trialectic in establishing the Religious Courts in Indonesia. Since its establishment in 1882, the Religious Courts have not fully represented Islamic law as its primary source. To trace this trialectic, the author uses Ebrahim Moosa's theoretical framework of "transculturation, counterpoints, social imaginary, networks, and legal orientalism." For this purpose, the author proposes two problem formulations. First, what is the process of trialectic attraction between Islamic law, positive law, and customary law in the establishment of the Religious Courts? Secon

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BRANNAGAN, CRAIG, and CHRISTOPHER WATERS. "ICRC Privilege in Canada." Canadian Yearbook of international Law/Annuaire canadien de droit international 53 (August 10, 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, t

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Jones, Carwyn. "Lost from Sight: Developing Recognition of Māori Law in Aotearoa New Zealand." Legalities 1, no. 2 (2021): 162–86. http://dx.doi.org/10.3366/legal.2021.0015.

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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 ins

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Otu, Michael Takim, and Joseph Edet. "The Status of Customary Tenants in Relation to Land Held by Him: An Overview of Customary Law." International Journal of Law and Society (IJLS) 2, no. 1 (2023): 1–18. http://dx.doi.org/10.59683/ijls.v2i1.34.

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The article seeks to examine the effects of the Land Use Act of 1978 on the customary system of land holding in Nigeria. Since the birth of the Act, the problem facing our courts, ordinary people and lawyers is determining the actual position of customary tenants under the system of property rights introduced by the Law. The empirical legal research method used in this study is a type of qualitative research. This method focuses on cases in the community using legal studies, while the scope of this research is the Land Use Act 1978 against the customary land tenure system in Nigeria. The resul

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Čelkis, Tomas. "Senieji žmonės XIV–XVI a. Lietuvos Didžiosios Kunigaikštystės istorijos šaltiniuose. Kas jie?" Tautosakos darbai 66 (January 26, 2024): 121–34. http://dx.doi.org/10.51554/td.23.66.07.

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Various sources of the Grand Duchy of Lithuania (GDL) from the 14th–16th centuries quite frequently mention the old people. The author proposes a hypothesis that these individuals could have been connoisseurs and custodians of the customary law and the old tradition. They testified in the treaties between the GDL and the neighbouring countries, in which the borders of the states were determined, because, at that time, the “correct” borders were considered those that had been established for a long time, i. e. by the customs. These people tried to remember and indicate these borders. The old pe

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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 su

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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 (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

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Manthwa, Tshepo Aubrey. "The role of the recognition of the Customary Marriages Amendment Act 1 of 2021 and wills in determining the proprietary consequences of polygynous customary marriages [Discussion of Mshengu v Estate Late Mshengu (9223/2016P) 2021 ZAKZPHC 49 (6 August 2021)]." Stellenbosch Law Review 34, no. 3 (2023): 451–59. http://dx.doi.org/10.47348/slr/2023/i3a5.

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The Recognition of Customary Marriages Amendment Act 1 of 2021 amends section 7(1) of the Recognition of Customary Marriages 120 of 1998 as a sequel to Gumede v President of the Republic of South Africa 2009 3 SA 152 (CC) and Ramuhovhi v President of the Republic of South Africa 2018 2 SA 1 (CC) in which this section was declared unconstitutional on the basis that it unfairly discriminated, on the basis of gender and race, against women married in terms of customary law before the commencement of the Act. According to the Constitutional Court, these women did not have the right to possess prop

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Ispolinov, Aleхey. "Risks of modern customary international law and ways of minimizing them." Meždunarodnoe pravosudie 13, no. 2 (2023): 70–91. https://doi.org/10.21128/2226-2059-2023-2-70-91.

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Traditionally, international custom is considered one of the most problematic sources of international law. In many ways, this explains the cautious attitude of Russian doctrine and Russian courts towards it, even while combined with a recognition of the importance of international customary law. At the same time, in the second half of the twentieth century serious changes began to occur in customary international law, the accumulation of which by the end of the century made it possible to talk about the emergence of modern customary international law, which is strikingly different and even op

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Temngah, Joseph N. "Customary Law, Women's Rights and Traditional Courts in Cameroon." Revue générale de droit 27, no. 3 (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 difficult

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Luawo, Fipy Rizky Amalia, and Haswida Amalia. "The Implementation of Inheritance Based on The Tribe of Kaili Ledo and Islamic Inheritance Laws." Jurnal Dinamika Hukum 19, no. 2 (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 eac

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