The Future Of African Customary Law

Author: Jeanmarie Fenrich
Publisher: Cambridge University Press
ISBN: 1139497820
Size: 55.63 MB
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Customary laws and traditional institutions in Africa constitute comprehensive legal systems that regulate the entire spectrum of activities from birth to death. Once the sole source of law, customary rules now exist in the context of pluralist legal systems with competing bodies of domestic constitutional law, statutory law, common law and international human rights treaties. This book promotes discussion and understanding of customary law and explores its continued relevance in sub-Saharan Africa. The volume considers the characteristics of customary law and efforts to ascertain and codify customary law, and how this body of law differs in content, form and status from legislation and common law. It also addresses a number of substantive areas of customary law including the role and power of traditional authorities; customary criminal law; customary land tenure, property rights and intestate succession; and the relationship between customary law, human rights and gender equality.

African Customary Law

Author: Onyango, Peter
Publisher: LawAfrica Publishing Ltd
ISBN: 9966031340
Size: 66.87 MB
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The book is a summarised guide towards the conception of law in the post-modernism period and how African customary law can add value to the on-going law reforms in Kenya and other African states. This study is meant for practising customary lawyers, law students, researchers, jurists and professionals found in the Continent of Africa. African legal system is treated in this research as a pure legal discourse with unique impetus and relevance on the articulated foresaid laws of State. Prior to our analytical preview of customary law and its impact on law making process in Africa, it is procedural to first address its appropriate procedures, motivation, scope, aim and methodology before indulging ourselves fully into analytical and conceptual studies.

Indigenous Peoples Customary Law And Human Rights Why Living Law Matters

Author: Brendan Tobin
Publisher: Routledge
ISBN: 1317697537
Size: 75.64 MB
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This highly original work demonstrates the fundamental role of customary law for the realization of Indigenous peoples’ human rights and for sound national and international legal governance. The book reviews the legal status of customary law and its relationship with positive and natural law from the time of Plato up to the present. It examines its growing recognition in constitutional and international law and its dependence on and at times strained relationship with human rights law. The author analyzes the role of customary law in tribal, national and international governance of Indigenous peoples’ lands, resources and cultural heritage. He explores the challenges and opportunities for its recognition by courts and alternative dispute resolution mechanisms, including issues of proof of law and conflicts between customary practices and human rights. He throws light on the richness inherent in legal diversity and key principles of customary law and their influence in legal practice and on emerging notions of intercultural equity and justice. He concludes that Indigenous peoples’ rights to their customary legal regimes and states’ obligations to respect and recognize customary law, in order to secure their human rights, are principles of international customary law, and as such binding on all states. At a time when the self-determination, land, resources and cultural heritage of Indigenous peoples are increasingly under threat, this accessible book presents the key issues for both legal and non-legal scholars, practitioners, students of human rights and environmental justice, and Indigenous peoples themselves.

Ubuntu And The Law

Author: Drucilla Cornell
Publisher: Fordham Univ Press
ISBN: 0823233820
Size: 78.23 MB
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Although ubuntu is an ideal or value rooted in South Africa, its purchase as a performative ethic of the human goes beyond its roots in African languages. Indeed, this casebook helps break through some of the stale antinomies in the discussions of cultures and rights, because both the courts and the critical essays discuss ubuntu as not simply an indigenous or even African ideal but as one that in its own terms calls for universal justification. The efforts of the Constitutional Court to take seriously competing ideals of law and justice have led to original ethical reasoning, which has significant implications for post-apartheid constitutionalism and law more generally. --

The Rule Of Unwritten International Law

Author: Peter G. Staubach
Publisher: Routledge
ISBN: 1351207296
Size: 78.74 MB
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This book seeks to re-appreciate the concept of customary international law as a form of spontaneous societal self-organisation, and to develop the methodological consequences that ensue from this conception for the practice of its application. In pursuing this aim, the author draws from three different strands of scholarship that have not yet been considered in connection with one another: First, general jurisprudential theories of customary law; second, theories of customary international law, especially as they relate to international relations scholarship; and third, methodological approaches to the interpretation of international law. This expansive, philosophical layout of the book enables the author to put the conceptual enigmas of customary international law into a broader perspective. Among the issues discussed in the book are the dichotomy of its traditional and modern forms and the respective benefits and disadvantages of inductive and deductive approaches to its ascertainment. In the course of this analysis, the author draws insights from Friedrich August Hayek’s theory of law as a ‘spontaneous order’, an information-processing device which enables the participants of a legal system to make use of decentralised knowledge. The book argues that the major advantage of custom as a source of international law lies in the fact that it is the result of a gradual process of trial and error, rather than the product of deliberate planning. This makes it a particularly apposite source of law in a time of seismic shifts in the distribution of power within a vastly diverse community of States, when a new global order is expected to emerge, the contours of which are not yet clearly discernible. This book applies general concepts of legal philosophy to explain the continuing relevance of custom as a source of international law while at the same time inferring from this theoretical framework concrete practical and methodological consequences, the most important of which is the special role that purposive interpretation plays with respect to rules of international custom. Given this broad approach, the book will be of interest to several groups of potential readers including academics interested in the philosophy of customary law in general, academic international lawyers and legal practitioners, especially judges, scholars of international relations and all those interested in how the international community of States organises itself.

The Making Of South African Legal Culture 1902 1936

Author: Martin Chanock
Publisher: Cambridge University Press
ISBN: 9780521791564
Size: 35.21 MB
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Martin Chanock's definitive perspective on the development of South Africa's legal system in the early twentieth century examines all areas of the law: criminal law and criminology; the Roman-Dutch law; the State's African law; Land, Labour and 'Rule of Law' questions. His revisionist analysis of the South African legal culture illustrates the larger processes of legal colonization, while the consideration of the interaction between imported doctrine and legislative models with local contexts and approaches also provides a basis for understanding the re-fashioning of law under circumstances of post-colonialism and globalization.

Aboriginal Customary Law A Source Of Common Law Title To Land

Author: Ulla Secher
Publisher: Bloomsbury Publishing
ISBN: 1782253777
Size: 75.15 MB
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Described as 'ground-breaking' in Kent McNeil's Foreword, this book develops an alternative approach to conventional Aboriginal title doctrine. It explains that aboriginal customary law can be a source of common law title to land in former British colonies, whether they were acquired by settlement or by conquest or cession from another colonising power. The doctrine of Common Law Aboriginal Customary Title provides a coherent approach to the source, content, proof and protection of Aboriginal land rights which overcomes problems arising from the law as currently understood and leads to more just results. The doctrine's applicability in Australia, Canada and South Africa is specifically demonstrated. While the jurisprudential underpinnings for the doctrine are consistent with fundamental common law principles, the author explains that the Australian High Court's decision in Mabo provides a broader basis for the doctrine: a broader basis which is consistent with a re-evaluation of case-law from former British colonies in Africa, as well as from the United States, New Zealand and Canada. In this context, the book proffers a reconceptualisation of the Crown's title to land in former colonies and a reassessment of conventional doctrines, including the doctrine of tenure and the doctrine of continuity. 'With rare exceptions ... the existing literature does not probe as deeply or question fundamental assumptions as thoroughly as Dr Secher does in her research. She goes to the root of the conceptual problems around the legal nature of Indigenous land rights and their vulnerability to extinguishment in the former colonial empire of the Crown. This book is a formidable contribution that I expect will be influential in shifting legal thinking on Indigenous land rights in progressive new directions.' From the Foreword by Professor Kent McNeil (to read the Foreword please click on the 'sample chapter' link).

African Customary Law In South Africa

Author: I.P. Maithufi
Publisher: OUP Southern Africa
ISBN: 9780199057184
Size: 39.15 MB
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African Customary Law in South Africa: Post-Apartheid and Living Law Perspectives provides a clear introduction to African customary law in South Africa. The text provides a structure for understanding the nature and overarching system of customary law, illustrating the distinctness of African customary law in relation to other areas of South African law. It explores the dynamic, foundational precepts and values of living customary law, which are vital tounderstanding the role and application of this system of law.

The Challenge Of Legal Pluralism

Author: Marc Simon Thomas
Publisher: Taylor & Francis
ISBN: 131703919X
Size: 72.86 MB
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Within the Latin American context, legal pluralism is often depicted as a dichotomy between customary law and national law. In addition, the use of customary law alongside national law is frequently portrayed as a vehicle of resistance. This book argues that, because ordinary Indians are not positively biased in favor of customary law per se, a heterogeneity of legal practices can be observed on a daily basis, which consequently undermines the commonly held view of customary law as a "counter-hegemonic strategy", even if, on other socio-geographical levels, this thinking in terms of resistance holds true. Based on qualitative research, the work analyzes how internal conflicts among indigenous inhabitants of the Ecuadorian highlands are being settled in a situation of formal legal pluralism, and what can be learned from this in terms of Indian-state relationships. It is shown that, on a local level, the phenomenological dimension of legal pluralism can be termed "interlegality." On a macro level, ontological assumptions underscore that legal pluralism is still seen as a dichotomy between customary and national law. Multidisciplinary in nature, the book will be of interest to academics and researchers working in the areas of Legal Pluralism, Cultural Anthropology and Latin American Studies.