The Future of Tradition: Customary Law, Common Law, and Legal Pluralism

Front Cover
Psychology Press, 2000 - 512 pages

Recent years have seen an increased interest in the variety of cultures co-existing within one state, and a growing acknowledgement of the values ensconced in pluralistic social structures. this book examines the manner in which indigenous people can function in modern states, preserving their traditional customs, while simultaneously adapting aspects of their culture to the challenges posed by modern life. Whereas it was formerly assumed that these tribal frameworks were doomed to extinction, and some states even encouraged such a process, there has been a revival in their vitality, linked to a recognition of their rights.
The book offers a comprehensive survey of various aspects of tribal life, focusing on political issues such as the meaning of sovereignty, legal issues dealing with the role of custom and social issues concerned with sustaining communal life. A focused study is made of a whole series of legal factors, relating to possession and ownership of land, religious rites, the nature of polygamous marriages, the assertion of group rites, the manner of peacefully resolving disputes and allied questions. Recent judicial decisions are analysed as a reflection of the far-reaching changes that have taken place, in a process that has seen the former disregard of basic rights of indigenous people being replaced by an awareness of the injustices perpetrated in the past and a willingness to seek to redress them. The comparison between approaches of different English-speaking countries provides an account of interwoven developments.

 

Contents

CustomMade Law 30252
3
Pluralism in the Modern World
8
Tribalism Vague but Valid
29
Whither the State?
55
Customary Law as Common Law
79
The Framework
91
The Invention of Discovery
93
Between Recognition and Repugnancy
121
A Reasonable Cultural Defense
262
From Harm to Harmony
290
For Shame
305
Family Matters
330
Women and Children First
354
Special Topics
375
Proving the Customary Rule
377
Academic Questions
396

The Right to Group Rights
136
Belonging and Identity
153
The Local Tribe in the Global Village
172
The Trials of Tribal Courts
192
The Issues
215
Land is Forever
217
Holy Rites and Sacred Sites
243
Accounting for the Past
410
Beyond the Law
432
History in the Making
465
Community in Society
479
Select Bibliography
487
Index
499
Copyright

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About the author (2000)

Leon Sheleff Tel Aviv University

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