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1
Rautenbach, Christa. "Case Law as an Authoritative Source of Customary Law: Piecemeal Recording of (Living) Customary Law?" Potchefstroom Electronic Law Journal 22 (December 12, 2019): 1–20. http://dx.doi.org/10.17159/1727-3781/2019/v22i0a7591.
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This contribution deals with the question of whether a judgment from a mainstream court dealing with customary law can be regarded as authority and thus as a recording of a customary rule or rules. When a mainstream court develops customary law to promote constitutional values or strikes customary law down for want of constitutionality, it creates new rules which are written down but which can easily be changed when society brings it to court and convinces the court that the rule needs to be changed. It is my contention that case law is a binding source of law, including customary law, which must be followed until such time that it is either absorbed into legislation or amended by a subsequent decision in terms of the principle of stare decisis. It gives us some measure of assurance as to the law to be followed. The high number of customary law disputes taken to a court of law is confirmation that traditional communities are embracing the power of the courts to settle their disputes. The judgments of these courts inevitably become the origins of customary rules that they develop and can thus be regarded as piecemeal recording of (living) customary law.
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Rautenbach, Christa. "Oral Law in Litigation in South Africa: An Evidential Nightmare?" Potchefstroom Electronic Law Journal/Potchefstroomse Elektroniese Regsblad 20 (October 30, 2017): 1. http://dx.doi.org/10.17159/1727-3781/2017/v20i0a3268.
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In the past, customary law has been applied rather haphazardly in the courts. Its inherent adaptive flexibility and indeterminate nature created confusion in a court system ill-equipped to deal with litigation dealing with customary law issues. Understandably, customary law was treated in the same way as a common-law custom, which also originates in a community's acceptance of certain standards of behaviour. This meant that anyone averring a rule of customary law had to prove it, except where the rule was contained in a statute or precedent. The courts were not keen to engage in law-making and where the ascertainment of customary law proved to be difficult, they would merely apply the common law. In 1998, the Law of Evidence Amendment Act 45 of 1988, which allows the judiciary to take judicial notice of readily accessible customary law, made fundamental changes to this situation. The Act is still in operation, although it must now be interpreted in the light of the Constitution of the Republic of South Africa, 1996 (the Constitution). No direction on how this must be done can be found in the wording of the constitutional provisions dealing with the customary law. Besides instructing the courts to apply customary law when "applicable, subject to the Constitution and any legislation that specifically deals with customary law", the Constitution is silent on the way forward. Given the fact that most of the judiciary does not have any knowledge of the content of living customary law and the fact that there are fundamental differences between the evidentiary rules applied in the common and customary laws of South Africa, a few problems are bound to surface when litigating issues involving the customary law. They include: the status of customary law in the South African legal system; the applicability of customary law; and especially the determination of living customary law. The aim of this analysis is to determine if the existing evidentiary rules are appropriate to deal with these challenges in litigating matters involving customary law in the ordinary courts.
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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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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 (January 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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Syihab, Mahdi Abdullah. "Crime Settlement of Khalwat in Aceh." SASI 28, no. 4 (December 30, 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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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 (December 18, 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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Chigara, Benedict Abrahamson. "The Administration of International Law in National Courts and the Legitimacy of International Law." International Criminal Law Review 17, no. 5 (October 15, 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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Pienaar, Gerrit. "The Methodology Used to Interpret Customary Land Tenure." Potchefstroom Electronic Law Journal/Potchefstroomse Elektroniese Regsblad 15, no. 3 (May 29, 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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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 (January 15, 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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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 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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Batubara, Chuzaemah, and Fatimah Fatimah. "STRUGGLING TO SURVIVE IN COMPLEX AND MODERN ERA." ALQALAM 34, no. 1 (June 30, 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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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 (January 31, 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 recent South African Supreme Court of Appeal decisions on integration, and the High Court decisions that have followed, we believe the courts are in fact not waiving the requirement, but recognising that the requirement of integration may be met in another way. In considering these cases, although the court does not explicitly rely on Ramose's 'social acceptance' thesis as to the validity of law, we believe that adopting this approach will do much to assuage concerns about courts ignoring custom. More importantly, Ramose's 'social acceptance' theory gives credit to living customary law as a legal system which, as widely observed, promotes the very values on which the Constitution is founded. We also believe that Ramose's approach is a much more balanced approach in this context than a typically Western approach that promotes certainty over the protection of vulnerable parties, and represents the very evolving nature of living customary marriage laws and practices.
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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 (March 29, 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 Religious Judiciary uses the concept and legal basis of Islamic Law, while the General Judiciary uses the concept and legal basis in the form of Customary Law. Customary Law, adopted children have the same position, including in bequeathing, with the biological child, while in Islamic law does not know the concept of adopted children, but nevertheless for the benefit of the Compilation of Islamic Law gives the opportunity to the community to perform the adoption of the child.Keywords: adoption, customary law, Islamic law
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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, 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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Capps, Patrick. "The Court as Gatekeeper: Customary International Law in English Courts." Modern Law Review 70, no. 3 (May 2007): 458–71. http://dx.doi.org/10.1111/j.1468-2230.2007.00647.x.
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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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O’Keefe, Roger. "CRIMES, THE COURTS AND CUSTOMARY INTERNATIONAL LAW." Cambridge Law Journal 65, no. 3 (November 23, 2006): 473–76. http://dx.doi.org/10.1017/s0008197306217203.
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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 (February 27, 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 results of the discussion made it clear that the Laws on Land Use and Customary Land Owners have much in common. As such, the controversies generated by these issues continue to defy consensus among our academic "egg heads" as well as learned judges in our courts. Indeed, many court decisions appear to indicate that the courts have not settled the controversy on this issue. As a result, the judicial confusion for Nigerian means of conveyance continues to this day.
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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 property in terms of customary law, which left them especially vulnerable in the absence of statutory protection if their marriages were dissolved for example. The achievement of gender equality is an important transformative and social justice goal in South Africa. Over the years, the courts have reconstructed customary law to promote gender equality. Customary law traditionally did not discriminate against women and they were allowed to manage property. However, this changed after contact with colonialism where, through collaboration with African men, women were treated as minors. This was a distortion of the legal system. The problem is that all the focus, including that of the courts and the legislature, is on the distorted version of customary law, and the true version that did not discriminate against women is being ignored. Consequently, in reconstructing and creating gender equality, a new form of customary law is being created, namely constitutional customary law. The true form of customary law does not recognise private ownership of property, A person can only manage property, not own it, but through constitutional customary law, the court and legislature have imposed common law concepts such as joint and equal ownership of property. This has unfortunate consequences, such as the fact that a customary heir can alienate family property after divorce while disregarding any responsibility to the family.
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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 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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Mayastuti, Anti, Luthfiyah Trini H, and Diana Lukitasari. "INSTITUTIONALIZING CUSTOMARY COURT IN INDONESIAN JUSTICE SYSTEM AS AN EFFORT TO REALIZE ACCESS TO JUSTICE RIGHT FOR INDIGENOUS PEOPLE." IJCLS (Indonesian Journal of Criminal Law Studies) 7, no. 2 (December 1, 2022): 227–44. http://dx.doi.org/10.15294/ijcls.v7i2.35087.
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This study aims to find customary court institution form in an effort to reinstitute customary court in Indonesia. This research is a prescriptive doctrinal legal research, using statutory and conceptual approaches. The data used is secondary data in the form of primary legal materials, while data analysis technique used is qualitative non-positivistic using hermeneutic interpretation method. Customary disputes are included in the realm of material law that occur in the space of indigenous peoples, if they are resolved by a different formal legal institution, namely the general court as regulated in Law no. 21 of 2001 on Special Autonomy for Papua Province. In principle, the customary court is the last judiciary based on customary law, but efforts to obtain justice (access to justice) and the truth are the human rights of everyone. Therefore, everyone who seeks justice must be interpreted as the right to obtain fair recognition, guarantee, protection and legal certainty and be treated equally before the law. The idea of reviving customary justice is important because as a body of customary courts it is in charge of adjudicating customary law disputes that occur in the community.
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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 (August 18, 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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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 (January 3, 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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Ddamulira Mujuzi, Jamil. "Domestic Courts’ Reliance on International Law to Interpret the Charter of Rights and Freedoms and/or other Domestic Law in the Seychelles." International Human Rights Law Review 12, no. 1 (July 11, 2023): 69–89. http://dx.doi.org/10.1163/22131035-12010003.
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Abstract Unlike the Constitutions of some African States such as Kenya, South Africa, Zimbabwe and Comoros, the Constitution of Seychelles is silent on the status of international law (both treaty law and customary international law) in the Seychelles legal system. However, Article 48 of the Constitution requires courts to, inter alia, ensure that the Charter of Rights and Freedoms (the Charter) is ‘interpreted in such a way so as not to be inconsistent with any international obligations of Seychelles relating to human rights and freedoms.’ Article 64(4) of the Constitution provides that for Seychelles to be bound by a treaty, such a treaty has to be ratified by Parliament. In this article, the author illustrates how Seychelles courts (the Supreme Court, the Constitutional Court and the Court of Appeal) have applied or interpreted Articles 48 and 64 of the Constitution. The author submits, inter alia, that there is room for the argument that Seychelles courts may also refer to treaties which have not been ratified by Seychelles when interpreting the Charter of Rights. It is also argued that for courts to refer to a treaty when interpreting the Charter, there is no requirement for such a treaty to have been domesticated in Seychelles. It is argued further that in the absence of a constitutional provision to the contrary, customary international law is part of Seychelles law.
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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 (April 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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Bahri, Robi Assadul. "Konsep Penegakan Hukum Pidana Adat di Indonesia Berdasarkan Asas Kepastian Hukum." Law, Development and Justice Review 7, no. 1 (April 30, 2024): 61–74. http://dx.doi.org/10.14710/ldjr.7.2024.61-74.
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One of the advances in Indonesian criminal law is the recognition of customary criminal law in the New Criminal Code. However, there will be problems in enforcing national criminal law if customary criminal law is accommodated. The problem that will be studied in this research is the consequences of the implementation of customary criminal law in enforcing national criminal law and enforcing customary criminal law in Indonesia that has legal certainty. This research is legal research with a typology of normative/doctrinal legal research which aims to produce a new argument, theory or concept on the problem being studied. The research results show that the application of customary criminal law in enforcing national criminal law will have the potential for disharmonious relations between law enforcement officials and local customary institutions. Therefore, enforcement of customary criminal law in Indonesia with legal certainty can be achieved by reviving the Customary Courts which have the authority to examine and try violations of customary criminal law. This research recommends immediately compiling customary law through regional regulations and immediately enacting a Draft Law on Customary Courts to ensure legal certainty of customary justice in the Indonesian Judicial System.
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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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de Smet, Simon. "The Immunity of Heads of States in US Courts after the Decision of the International Court of Justice." Nordic Journal of International Law 72, no. 3 (2003): 313–39. http://dx.doi.org/10.1163/157181003771013780.
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AbstractThis article investigates the law of Head of State immunity in the United States in light of the recent decision by the International Court of Justice in the Arrest Warrant Case (DRC v. Belgium). It does so by analyzing the U.S. law and comparing it with the customary international law on Head of State immunity as laid out by the world court. The article demonstrates that there are two competing strands in the recent jurisprudence of U.S. courts, neither of which is in conformity with international law. The reasons for this discrepancy are examined and explained in light of the underlying debate about the role of customary international law in the U.S. constitutional system. In conclusion, the author suggests that the best solution to the current dilemma is for the U.S. courts to apply the rules on Head of State immunity as explained by the world court and avoid as much as possible interference by the executive.
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Afrizal, Teuku Yudi, and T. Saifullah. "Legal Certainty in Customary Jurisdictions (Case Study In Muara Batu District, North Aceh)." SASI 29, no. 1 (March 11, 2023): 75. http://dx.doi.org/10.47268/sasi.v29i1.1247.
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Introduction: Gampongs or villages in Aceh province are the only village-level government in Indonesia that is given the authority to resolve a number of civil and criminal cases through customary courts in gampongs.Purposes of the Research: This paper examines the legal certainty of customary court decisions in gampongs in the Muara Batu sub-district, North Aceh . The problems resolved in this paper are regarding the legal certainty of customary court decisions in gampongs and the extent to which gampongs in Muara Batu District implement customary justice in gampongs.Methods of the Research: This research is an empirical research. The data were collected from field data through interviews and observations as well as documentary data from legal writings.Results of the Research: The results of the research show that the decisions of the customary courts are binding and final. However, if the parties disagree with the customary court decision and seek legal proceedings, the customary court decision can become written evidence. In Muara Batu sub-district, each gampong has a customary court, but if they are related to minor crimes or jinayat, the gampong apparatus prefers to hand over the case to the authorities, if a peaceful process is not found. Except for cases of immoral khalwat and adultery committed in the gampong, the perpetrators are forced to marry or handed over to law enforcement to be processed according to jinayat law in Aceh.
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Alputila, Marlyn Jane, Mulyadi Alrianto Tajuddin, and Nurul Widhanita Y. Badilla. "Identification of Customary Delict of South Papua and Its Customary Sanctions as a Form of Preservation of Customary Law." Devotion : Journal of Research and Community Service 4, no. 12 (December 20, 2023): 2271–85. http://dx.doi.org/10.59188/devotion.v4i12.627.
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Until now, there has been no specific reference to customary offenses and customary courts in Papua, especially the South Papua Customary Court, except for the writings of some anthropologists who touch on this issue in discussing the leadership system or community structure or customary government system in Papua. The purpose of this study is to determine the existence or existence of customary law in the Anim Ha customary territory and the need for mapping customary law in force in South Papua by identifying customary violations and customary sanctions. This research uses a descriptive method of analysis with a normative juridical approach supported by empirical data, namely direct data from customary law communities and secondary data, namely legal material such as laws and regulations, legal doctrines, and court decisions/jurisprudence, and supported by primary data, namely by conducting interviews with related parties. There are three types of customary sanctions in South Papua, namely legal action in the form of imposition of fines (objects or goods), legal action in the form of imposing physical and spiritual suffering on violators (physical and psychological punishment), in the form of legal action to restore magical balance (punishment in the form of carrying out traditional ceremonies / rituals). Customary law communities in South Papua in fact although state law applies the principle of legal centralism, customary law is more dominant in regulating community life because it is considered more beneficial to the parties in resolving cases or disputes than positive law.
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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 people used to participate in the GDL courts, in which issues of ownership, land boundaries, obligations, and evidence of the noble origins of the families were examined. Their primary task was to remember the “real” facts, i. e. the old ones. They did not attend the courts often, but, if necessary, the court officials would go and question them. Interestingly, the personal names of the old people who testified at courts were written down extremely rarely and for some reason these people usually remained anonymous. In addition, their age and the exact number of the old people who participated were rarely indicated. Some sources allow us assuming that in the courts, the old people were not only witnesses who remembered a lot and could speak about the past; they also represented the old customary law. At that time, the GDL courts were characterized by formalism, various customary rituals that distinguished between the examined events and emphasized their significance. Perhaps the old people observed what was said in the courts and how the other members of the community behaved, ensuring that things were done according to the established ancient norms. Thus, alongside the written law of the GDL, elements of the customary law also existed.
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Simarmata, Rikardo. "Kedudukan dan Peran Peradilan Adat Pasca-Unifikasi Sistem Peradilan Formal." Undang: Jurnal Hukum 4, no. 2 (November 21, 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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Mujuzi, Jamil Ddamulira. "Reconciling Customary Law and Cultural Practices with Human Rights in Uganda." Obiter 41, no. 2 (October 1, 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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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 (September 3, 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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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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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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Batubara, Chuzaemah, and Fatimah Fatimah. "STRUGGLING TO SURVIVE IN COMPLEX AND MODERN ERA." ALQALAM 34, no. 1 (June 30, 2017): 39. http://dx.doi.org/10.32678/alqalam.v34i1.1797.
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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.
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Kontorovich, Eugene. "United States v. Dire." American Journal of International Law 107, no. 3 (July 2013): 644–49. http://dx.doi.org/10.5305/amerjintelaw.107.3.0644.
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In the first criminal piracy decision by a United States court in nearly a century, the U.S. Court of Appeals for the Fourth Circuit ruled that the federal piracy statute’s reference to the “law of nations” explicitly ties the scope of the offense to evolving customary international law definitions of the crime. The court went on to find that under current customary and treaty law, attempted piracy falls within the scope of the international crime. In doing so, it joined several courts in nations around the world that have confronted the issue as a result of the outbreak of Somali piracy that began in 2008.
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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 (November 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 and custom. Despite that they did not evolve and are imperfect, they have aspects from which South Africa can draw lessons. South Africa has no choice but to reform its traditional courts to be in line with the Constitution. South Africa will have to look beyond itself in order to find some solutions to the challenges it faces to properly enact legislation that will not just regulate traditional courts but provide an effective and efficient system of traditional courts that will contribute meaningfully to the administration of justice.
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Enabulele, Amos O. "Sailing Against the Tide: Exhaustion of Domestic Remedies and the ECOWAS Community Court of Justice." Journal of African Law 56, no. 2 (August 23, 2012): 268–95. http://dx.doi.org/10.1017/s0021855312000058.
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AbstractThis article examines the practice of the ECOWAS Community Court of Justice relating to the exhaustion of domestic remedies. It argues that the court is wrong to maintain the view that it is not bound by the doctrine, simply because the court's protocol is silent on the point. The author urges the court to reconsider its view in order to align its practice with prevailing customary international law and treaty trends on the exhaustion of domestic remedies in international suits espoused before international courts by or on behalf of individuals.
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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 (March 20, 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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Suwardi, Suwardi, and Rustan Rustan. "Settlement of Disputes Over Indigenous Land Ownership Based on Traditional Law." International Journal of Social Science Research and Review 5, no. 3 (March 1, 2022): 1–5. http://dx.doi.org/10.47814/ijssrr.v5i3.222.
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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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Cahyani, Andi Intan. "Peradilan Agama sebagai Penegak Hukum Islam di Indonesia." Jurnal Al-Qadau: Peradilan dan Hukum Keluarga Islam 6, no. 1 (June 30, 2019): 119. http://dx.doi.org/10.24252/al-qadau.v6i1.9483.
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Keberadaan Pengadilan Agama sebagai pengadilan Islam limitatif mempengaruhi masyarakat Islam untuk mendapatkan keadilan. Dengan demikian, adanya Undang-Undang 50 Tahun 2009 atas perubahan kedua Undang-Undang No.7 Tahun 1989 tentang Peradilan Agama, Menjadi tongak supremasi hukum peradilan Agama di Indonesia. Sumber hukum Pengadilan Agama secara garis besar terdiri dari sumber hukum materil yang bersumber dari hukum Islam dan hukum materil yang terikat dengan Undang-Undang Nomor 50 Tahun 2009 atas perubahan kedua Undang-Undang Nomor 7 Tahun 1989 tentang Peradilan Agama dan sumber hukum formil adalah sumber hukum yang terdiri dari hukum perundang-undangan, hukum kebiasaan, hukum yurisprudensi, hukum agama dan hukum adat yang dinyatakan sebagai hukum positif. Kewenangan memeriksa, memutuskan dan menyelesaikan Perkara di tingkat pertama antara orang-orang yang beragama Islam merupakan tanggung jawab Pengadilan Agama yang didasari atas kewenangan relatif dan kewenangan absolut. The existence of the Religious Court as an Islamic court that limits the influence of the Islamic community to obtain justice. Thus, the existence of Law Number 50/2009 on the second amendment to Law Number 7/1989 concerning the Religious Courts, has become a pillar of the supremacy of the law of the Religious Courts in Indonesia. The legal source of the Religious Courts in general consists of material legal sources sourced from Islamic law and material law which are bound by Law Number 50/2009 concerning the second amendment to Law Number 7/ 1989 concerning Religious Courts and formal legal sources are sources of law which consists of statutory law, customary law, jurisprudential law, religious law and customary law which are stated as positive law. The authority to examine, decide and settle cases in the first level among people who are Muslim is the responsibility of the Religious Court which is based on relative authority and absolute authority
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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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Sagay, I. E. "Customary Law and Freedom of Testamentary Power." Journal of African Law 39, no. 2 (1995): 173–82. http://dx.doi.org/10.1017/s0021855300006318.
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The extent to which customary law restricts the freedom of testamentary power (if at all) has given rise to a spate of cases right up to the Supreme Court, in which the courts have attempted to interpret and apply section 3(1) of the Wills Law (1958) of Western Nigeria, which currently applies to Lagos, Ogun, Osun, Ondo, Edo and Delta States. Section 3(1) of the Wills Law of all these States provides thus:“Subject to any Customary Law relating thereto, it shall be lawful for every person to devise, bequeath or dispose of, by his will executed in a manner hereinafter required, all real and all personal estate which he shall be entided to, either in Law or in equity, at the time of his death and which if not so devised, bequeathed and disposed of would devolve upon the heir at law of him, or if he became entided by descent, of his ancestor, or upon his executor or administrator”.
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Mora, Paul David. "Jurisdictional Immunities of the State for Serious Violations of International Human Rights Law or the Law of Armed Conflict." Canadian Yearbook of international Law/Annuaire canadien de droit international 50 (2013): 243–87. http://dx.doi.org/10.1017/s0069005800010857.
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SummaryIn its recent decision in Jurisdictional Immunities of the State (Germany v Italy: Greece Intervening), the International Court of Justice (ICJ) held that Italy had failed to respect immunities enjoyed by Germany under international law when the Italian courts allowed civil actions to be brought against Germany for alleged violations of international human rights law (IHRL) and the law of armed conflict (LOAC) committed during the Second World War. This article evaluates the three arguments raised by Italy to justify its denial of immunity: first, that peremptory norms of international law prevail over international rules on jurisdictional immunities; second, that customary international law recognizes an exception to immunity for serious violations of IHRL or the LOAC; and third, that customary international law recognizes an exception to immunity for torts committed by foreign armed forces on the territory of the forum state in the course of an armed conflict. The author concludes that the ICJ was correct to find that none of these arguments deprived Germany of its right under international law to immunity from the civil jurisdiction of the Italian courts.
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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 (February 7, 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. However, we have witnessed a reluctance to develop customary law from the courts, instead, the laws which could have been developed were declared invalid. The focus of this paper will be to interrogate the role and effect of the Constitution in the administration and application of customary law of succession. Furthermore, to justify why we hold the view that customary law is a stepchild of the South African legal system post the democratic dispensation, this is attributed to the fact that most cases that involve the customary law of succession still leave many women in dire social and financial situations where the head of the family dies due to the distorted prevailing principle of male primogeniture.
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Ternando, Albi, M. s. Alfarisi, and Rahman Rahman. "Implementasi Hukum Adat Sebagai Penanganan Restorative Justice Dalam Membangun Sistem Alternative Penyelesaian Hukum Pidana di Indonesia." Legalitas: Jurnal Hukum 15, no. 2 (December 30, 2023): 204. http://dx.doi.org/10.33087/legalitas.v15i2.506.
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In the implementation of the resolution of criminal law violations in customary courts, it is felt to be very effective in dealing with many criminal cases through a restorative justice approach which theoretically relies on values that are characterized by Indonesian harmony, balance and conduciveness to ensuring shared life in society. Therefore, all forms of recognition of customary law must be carried out through acceptance and granting legal status related to the existence of its implementation in areas where the application of customary law is very strong. This research is a qualitative type of research with a normative conceptual and juridical approach. The data source was obtained by examining positive legal norms in the form of applicable laws and customary law norms. The conclusions that can be drawn from this research are: In customary justice it is not considered as non-formal justice outside of the judiciary under the State judiciary institution. The Supreme Court is on par with other customary justice bodies. Customary justice is something that actually occurs in the midst of society, therefore the basis contains the principles of restorative justice which focuses on resolving criminal cases outside of court so that the value of justice can be accepted by each group and individual in the customary law that occurs in Indonesian society.
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Forsyth, Miranda. "Beyond Case Law: Kastom and Courts in Vanuatu." Victoria University of Wellington Law Review 35, no. 2 (August 1, 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.