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

by Sheleff,Leon Shaskolsky

• ISBN13: 9780714649535
• ISBN10: 0714649538
• Edition: 1st
• Format: Hardcover
• Copyright: 2000-01-30
• Publisher: Routledge

Summary

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 ofpolygamous 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.

Author Biography

Leon Sheleff is a professor of law and sociology at Tel-Aviv University.

Table of Contents

Preface	vii
Part I: Background
Custom-Made Law	3	(5)
Pluralism in the Modern World	8	(21)
Tribalism -- Vague but Valid	29	(26)
Whither the State?	55	(24)
Customary Law as Common Law	79	(14)
Part II: The Framework
The Invention of Discovery	93	(28)
Between Recognition and Repugnancy	121	(15)
The Right to Group Rights	136	(17)
Belonging and Identity	153	(19)
The Local Tribe in the Global Village	172	(20)
The Trials of Tribal Courts	192	(25)
Part III: The Issues
Land is Forever	217	(26)
Holy Rites and Sacred Sites	243	(19)
A Reasonable `Cultural' Defense	262	(28)
From Harm to Harmony	290	(15)
For Shame	305	(25)
Family Matters	330	(24)
Women and Children First	354	(23)
Part IV: Special Topics
Proving the Customary Rule	377	(19)
Academic Questions	396	(14)
Accounting for the Past	410	(22)
Beyond the Law	432	(33)
Part V: Conclusions
History in the Making	465	(14)
Community in Society	479	(8)
Select Bibliography	487	(12)
Index	499