Customary Law

In this article I draw on the South African legal context to critique the argument that same-sex marriage would provide ‘equal recognition’ for same-sex relationships. I highlight the ways in which, despite strong equality provisions in the South African Constitution and an apparent commitment to substantive rather than merely formal equality, both customary marriage and same-sex marriage continue to be subordinate to heterosexual civil marriage. I then broaden my analysis to consider the extent to which this would also be the case in other jurisdictions, particularly the UK. Drawing on the Butler/Fraser debate on recognition and redistribution, I argue that there is a connection between misrecognition and material disadvantage that goes unacknowledged in ‘symbolic recognition’ claims for same-sex marriage. The critiques of ‘marriage equality’ should sound a warning not only to same-sex marriage advocates but also more generally to those who would seek ‘equal recognition’ through law reform.

Islamic legal tradition is discursive; it developed through discourses at two levels, one between jurists and society, and the other between jurists and state. The part played by differences of opinion (Ikhtilaf) and juristic reasoning (Ijtihad) cannot be overstressed. It provided strong basis for legal pluralism and accommodation of social practices,
especially in the area of marriage and divorce. State efforts to centralize law did not meet the approval of the jurists. Since  state had no direct role in the development of fiqh, the
systematization of Fiqh and Law Schools was achieved through consensus. Looking back at the history of Islamic law, we find that local practices in various cities like Medina and
Kufa generated diverse legal doctrines and gradually produced more than nineteen schools of law (madhhab); about seven are still in practice today. The distinct mark of the development of fiqh in this period is the diversity of views among the jurists on almost
each and every doctrine. This diversity was welcomed by Islamic legal theory as a valid
manifestation of Ijtihad. It is typically usual in the Fiqh texts to mention more than one view on almost every point. This is evident even in Fiqh texts like Fatawa Alamgiri, which were designed as a guide book for the qadis. Instead of giving just one doctrine of law, these texts refer to different opinions. It looks strange, but the underlying concept seems to be that it was not for the jurist, to choose between these varying opinions.

While there is now a rich and varied literature on the ‘archival turn’ in other disciplines, legal scholars have had relatively little to say about their own approach to archival materials, their conceptualisation of the archive, or the ethical implications of their work. This article draws on my own engagement with the records of land commissions and courts in Solomon Islands to consider the insights that might be gained from attending not only to the content of the archive nor even to its form, but to both the allure of the archive and the anxiety it induces. I suggest that paying attention to the affective dimensions of archival work casts new light on the ethical aspects of accessing, using, and interpreting court records. Furthermore, it draws attention to legal scholars' own investments in the archive, and the quiet, mundane, and epistemic violence of the law that might otherwise go unnoticed.

This article considers factors that have effected and influenced the continuity of the customary law named Kanun of Lek Dukagjini in some areas of Albanian and Kosovo. It draws on ethnographic data on the border area villages between state and non-state law vis-á-vis justice in highly complex and problematic social, economic, and political context. Customary law and state law seem to be  two conflicting legal ideologies. However, the article considers everyday settings where people make use both legal systems in order to regulate matters especially related to property issues. The new legal realities create around property ownership imply new type to relations vis- á -vis family and kinship structures which oscillate between the two systems.

This study explores the ways in which widows in Kampala, Uganda are deprived of homeownership upon the death of their husbands. Homeownership through inheritance usually means that widows have the authority to register the home in their names and have the power to use and sell the home upon the death of their husbands. This study, which is based on life story interviews with widows in the middle-income areas of Kampala, found that women are prevented from inheriting the matrimonial home due to customary laws and practices. According to customary law, women may not own property and hence, upon the death of the husband, the ownership of his home is passed on to a male member of his family. In terms of statutory law, the Succession Act dictates that the matrimonial home is inherited by the eldest son of the deceased. Although there have been successful legal challenges which have shown the intestate succession law to be unconstitutional parliament has yet to change this law. The research findings show that widows can only inherit the matrimonial home under the following circumstances. Firstly, if a widow is the joint owner of the home, there are no legal and social obstacles that prevent her from inheriting her husband’s share of the home. Secondly, a widow can inherit the home if her husband stipulates it in his will. However, even if she is the sole beneficiary, unless the husband also appoints the wife as the sole executor of the will, the husband’s family can conspire to prevent her from inheriting the home.

Traditional law continues to be relevant for the Svans (Georgians), who usually live in the highlands of the Caucasus, but who have also migrated to various parts of Georgia. To grasp its practice we draw on approaches in which its use is discussed as a strategy for ‘(re)asserting collective identities’ (Benda-Beckmann) in order to enforce specific goals. But our research also shows another dimension of traditional law: More than in actual conflict resolutions, traditional law is found in narratives, that is, in memories of how conflicts were resolved earlier and should be solved today. These stories, however, of how and when traditional law should be applied rarely correspond to lived reality. Drawing on Brubaker and Cooper, we argue that besides a rather instrumental motivated use of traditional law in asserting collective identities, its contemporary practice can only be fully understood if we also acknowledge its non-instrumental practice.

This document discusses the implications of legal pluralism in the construction of alternatives to facilitate access to justice for indigenous communities in Latin America. It argues that despite the introduction of multicultural constitutions in the region, the existence of strong monist states in Latin America (Yrigoyen, 2011) has limited the application of indigenous legal systems. The increasing official acceptance of indigenous justice has been accompanied by a partial legitimatization of customary law that in many cases is summarized as the subordination of indigenous law to the state law. The frictions and tension between the applications of both legal systems have lead to the violation of rights by the state and has lead to the creation of indigenous alternative forms of government that challenge the legal order.

This paper examines the connection between equal access to certain social and economic rights for indigenous people and the proper management of the coexistence of state law and indigenous law regarding the adoption of indigenous children in Canada.  While customary systems of adoption have remained vibrant to this day in many indigenous communities, especially among the Inuit people, the failure of several Canadian jurisdictions to acknowledge these systems has resulted in the denial of vitally important entitlements to children and customary adoptive parents. This paper explores the feasibility of a dialogue between indigenous legal traditions and state law that would protect the equality rights of indigenous individuals without suppressing indigenous difference in the field of family law.

This paper reviews international law and policy regarding the rights of indigenous peoples and local communities that are defining the role of traditional and indigenous knowledge in the management and conservation of biodiversity. The most influential forums occur within the United Nations system, particularly the Working Group on Indigenous Populations and the Convention on Biological Diversity. We discuss the "soft-law" context of declarations, regional agreements, ethical guidelines, research protocols, and policy frameworks, which reinforce indigenous entitlements. The elaboration of these rights will increasingly impinge upon scientific research by regulating access to the knowledge and resources of indigenous and local communities, and by requiring that policy and management be made with their full participation. Scientists should respond by following these developments, institutionalizing this participation at all levels of scientific activity, and respecting the value of indigenous knowledge.

Since its emergence in the 17th Century, and up until and beyond World War II, international law defined a “people” as the aggregate of the population of a state. Further, the simultaneously evolving human rights system came to focus on the rights of the individual, vis-à-vis the state. This state-individual dichotomy remained essentially unchallenged into the 1970s, resulting in international law having little room for Indigenous Peoples and their collective rights. But the last 25 years or so have seen a paradigm shift in international law, predominantly occurring within the Indigenous Peoples‟ rights discourse. When the UN started to seriously address indigenous issues in the late 1970s, international law‟s traditional definition of a “people” in terms of citizenship was quickly contested. The UN and its member states soon acknowledged that Indigenous Peoples should be allowed to maintain, reinforce and develop the distinct societal structures they had managed to preserve despite colonisation. International law on Indigenous Peoples hence came to hold that the people as such could be bearer of rights, thereby legally and conceptually distinguishing Indigenous Peoples from minorities. The World Community has since then, gradually clarified what these rights encompass in more detail, and in the process also specifying where on the world‟s political and legal map, Indigenous Peoples belong. In particular, the adoption of United Nations Declaration on the Rights of Indigenous Peoples (DECRIPS) by the UN General Assembly in 2007, has helped to clarify the content and scope of several Indigenous rights relevant to the International Regime on Access and Benefit Sharing. The DECRIPS confirmed that Indigenous Peoples –do constitute “peoples” – and thus as “peoples” have the right to self-determination. Importantly, the right to self-determination that Indigenous Peoples enjoy is not a sui generis right but the general right to self-determination, applicable to all peoples. The right to self-determination encompasses a right of Indigenous Peoples to autonomy in their internal affairs, which in turn envelopes the right to determine over their genetic resources (GR) and traditional knowledge, innovations and practices (TK). The International Regime (IR) must be mindful of Indigenous Peoples‟ status as legal subjects under international law, but need not define who constitute an Indigenous People. The IR must rely on a general understanding until the relevant UN human rights forum has agreed on a formal definition.
Indigenous Peoples‟ status as legal subjects under international law has not only resulted in them enjoying the overarching right to self-determination. Recent developments in international law have also affirmed that Indigenous Peoples have rights specifically to GR and TK. The right to benefit from one‟s creativity has evolved from being merely an individual right to embrace also the rights of Indigenous Peoples as collectives, pursuant to which Indigenous Peoples have the right to own and control TK they have created. They also have right to redress for TK already taken without their free, prior and informed consent (FPIC). In the same vein, both the general right to property, understood in the light of the right to non-discrimination, and international legal sources particularly addressing Indigenous rights, confirm that Indigenous Peoples have the right to own and control natural resources on their territory. Nothing in international law indicates that the general right to natural resources should not include GR. Notably, also in such instances when the state retains ownership rights to GR, the Indigenous People must still be regarded as having rights to the GR, inasmuch as the Indigenous People has traditionally used the GR. However, when a GR originates from an Indigenous People‟s territory, but the people have not actively used the GR, the Indigenous People might only have a right to share in the profits from the utilization of the GR. Recognition of Indigenous Peoples‟ rights to TK and GR must also lead to acknowledgement of Indigenous Peoples‟ customary laws pertaining to GR and TK. This follows from international law, but also from the very nature of TK. TK protection must recognize TK‟s constantly evolving character within a defined collective, a people. Hence, TK protection cannot be confined to a particular moment in time and must not regulate in detail regarding who within a particular group may hold what rights to what aspects of TK. That would freeze the TK in time and result in the TK being absorbed into domestic legislation rather than being governed by the cultural and legal context from which it springs. In conclusion, Indigenous Peoples‟ rights to GR, TK and customary laws do not conflict with the principle of states‟ sovereign rights over natural resources. Indigenous Peoples‟ rights can, and should, be recognized side-by-side with states‟ sovereign rights.

Traditional knowledge is increasingly recognized as valuable for adaptation to climate change, bringing scientists and indigenous peoples together to collaborate and exchange knowledge. These partnerships can benefit both researchers and indigenous peoples through mutual learning and mutual knowledge generation. Despite these benefits, most descriptions focus on the social contexts of exchange. The implications of the multiple cultural, legal, risk-benefit and governance contexts of knowledge exchange have been less recognized. The failure to consider these contexts of knowledge exchange can result in the promotion of benefits while failing to adequately address adverse consequences. The purpose of this article is to promote awareness of these issues to encourage their wider incorporation into research, policy, measures to implement free, prior and informed consent (FPIC) and the development of equitable adaptation partnerships between indigenous peoples and researchers.