Indigenous Peoples, Customary Law and Human Rights - Why Living Law Matters

Brendan Tobin

• Publisher: Routledge
• Year: 2014
• ISBN:
  9781317697534
• Edition: 1
• Topic: Law
• Subtopic: Civil Law
• Index: Law

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.

1 Customary law in context

As humans began to band together the emergence of systems of incentives such as security, access to food and companionship, and of sanctions including violence and expulsion, will have proven necessary to ensure cohesion of larger social groupings. Through habitual practice these customs came to define the nature of social relations and to be viewed as obligatory. Custom was the primary building block for normative development whether by family groupings, tribal and Indigenous peoples, local communities, and later city states or nations. When habitual customs become customary conventions and obligatory rather than merely persuasive is at the heart of determining when custom becomes customary law.¹

Human society its survival and development depends upon the capacity to establish social structures providing the structure for realization of our natural instincts for society, security and procreation. Nature having provided these instincts needed to provide humans with the means to temper individual demands for their satisfaction in order to secure collective wellbeing. The notion that nature inscribed humankind with such internal ordering is at the basis of western theories of natural law, which viewed natural law as the source of universal truths common to all. Natural law is a key source of law for Indigenous peoples, their notion of natural law is, however, somewhat distinct. Indigenous peoples tend to see natural law as the law of nature, which is to be observed and complied with if the Earth is to sustain us. Viewed from this perspective, natural law is a guide on how to relate to nature and underlies notions of reciprocity between humans and the Mother Earth. Natural law is not of itself binding and its enforcement is dependent upon customary law and positive law. For some natural disasters and harms arising from disruption of life forces of nature may be seen as the cost of failure to comply with natural law.

As societies became more developed and power began to be centralized the law became a tool for the control and ordering of ever-larger social groupings. Emanating from a centralized power rather than arising from the practices of the people the law did not have the legitimacy of historical adherence by the populace. It was necessary therefore to establish a common understanding of the law and to establish compliance mechanisms capable of securing its enforcement. Written law served this purpose, recording and disseminating the will of the regulatory power, whether secular or religious, and whether or not based upon a democratic or monarchical system of governance. This written law came to be known as stipulated law or ‘positive law’.

These three sources of law, customary, natural and positive law, are the bedrock of legal ordering and, in some form or fashion, all three are ever present in the international legal order and most national legal systems, though they may not always be recognized as such.² Furthermore, these three sources of law have influenced the development of the internal legal systems of most local communities, Indigenous peoples and tribal peoples, other than those still in voluntary isolation. The interrelationship between these three sources of law shaped the world legal order and that of most nation states, and it has a direct bearing on the recognition and protection of Indigenous peoples’ legal rights. While this study focuses primarily on the status of customary legal regimes and their relationship to positive legal orders, the influence and presence of natural law will frequently be apparent. One of the primary aims of the book will be to raise awareness of the need for balance between these three areas of law and human rights in the search for intercultural justice and equity, which is discussed in detail in Chapter 9.

The historic status of custom

Aristotle (Rhetorica Ad Henennium II, 19) believed that law (ius) could arise by nature (natura), by statute (lege) and by custom (consuetudine), as well as by other ways.³ Greek philosophers did not clearly distinguish natural law and other forms of unwritten law applying the term nomos agraphos, primarily to describe ‘innate “laws”, natural law in a most elementary and not exclusively juristic sense’,⁴ and less frequently ‘customary law’.⁵ This indistinct line between custom and natural law is reflected in Artistotle’s apparent view of customary law as a manifestation of natural law and therefore immutable, making it superior to positive law.⁶

Unlike the Greeks, the Romans made a clear distinction between natural law and unwritten law, ius non scritpum.⁷ Cicero saw customary law as falling somewhere between natural and positive law, in his words, ‘[l]aw [ius] initially proceeds from nature, then certain rules of conduct become customary by reason of their advantage; later still both the principles that proceeded from nature and those that have been approved by custom received the support of religion and the fear of legislation [lex].’⁸ The notion that law finds its roots in the order intrinsic to human nature, becomes habitual through informal social practices and moves inexorably towards recorded legislation lends itself to perceptions of customary law as a step along a continuum towards the ultimate goal of pure legislative order found in positive law. This is not however what Cicero is saying, rather the tone of his message is one in which positive law is seen as a support for the enforcement of natural law principles that have been distilled through customary practices. In this role, custom is a source of law, not merely a stage in the legal development of societies. Although Roman jurists did not develop a theory of customary law, much has been made of comments by Julian that custom had the force of law because ‘as all laws rested on the tacitus consensus of the people, this must apply to unwritten law as well’. Meanwhile, Justinian famously said that ‘[f]rom the unwritten comes the law which is sanctioned by use, because long lasting customs, which are approved by agreement of those who are used to them, resemble laws’.⁹ The influence of custom in Roman law is found in a number of key areas, including ius gentium (law of the people) and ius civilis (civil law).¹⁰ Based on his research of historical records Smith argues that, while the ius civile may be equated with custom, it was the custom of the law-finders not of the wider populace that grounded Roman civil law.¹¹ The notion that the lawmakers, rather than the wider populace, were the arbiters of custom is one that will be continually returned to through this work, appearing as it does in early debates on the source of custom in English common law¹² and in current debates regarding the search for ‘living’ customary law of the people as opposed to ‘official’ recorded custom in South Africa.¹³

During the Middle Ages customary law came to dominate the European legal landscape with local custom abrogating regional custom and both being considered superior to national law. Its predominant position in the legal system required the development of a theory of customary law, the key elements of which were drawn from the most influential of Roman law texts: the Digest of Julian and the Code of Constantine.¹⁴ These included:

1. long-standingness of a practice;

2. flowing from the tacit agreement of the people;

3. unwritten;

4. it may or may not prevail over a contrary lex;

5. it must not be contrary to reason, ratio.¹⁵

Bartholus, a leading fourteenth century Italian jurist on medieval Roman civil law, claimed that the ‘causa proxima’ of enforceable customary law in medieval Europe was its ‘foundation in the consent of the people’, with long usage being the ‘causa remota’.¹⁶ According to Ibbetson, who discusses the writings of Bartholus at length, the Italian jurist placed greater emphasis on the issue of consent of those subject to the law than on the period for which it had been in force, he still, however, found that a period of at least ten years was required for crystallizing custom.¹⁷ Bartholus (Repetitio) considered it important that custom be proved as a fact and felt it should be evidenced in writing by at least two witnesses, except where a custom was so notorious that the judges would have been aware of it.¹⁸ He also took the view that as custom ‘existed on the interface between formal law and popular practice it would be a mistake to rely on juristic writings and ignore what was actually going on’.¹⁹ This supports the proposition that the dynamic nature of custom requires the courts to seek out ‘living custom’, an issue central to current debates on the identification of applicable customary law.²⁰

The compilation of Gratian’s Decretum, in the first half of the twelfth century, sought to bring together the various strands of canon law. The Decretum presented natural law as God’s law, thereby, shifting the emphasis from the notion of natural law as universal law to a law circumscribed by theology.²¹ Both custom and canon law remained, however, subordinate to natural law. Interestingly, Thomas Aquinas took a line similar to Cicero, arguing that laws contrary to natural law were not truly laws but rather a corruption of the law.²² The compilation of the Decretum was part of a process of transition in Europe from a legal system based largely on custom to a codified system of written law.²³ This shift responded to the growth of the modern nation state and the notion of sovereignty vested in an absolute monarch, who could not allow custom to override their actions or ‘deny his sovereignty and make his power merely governmental’.²⁴ That most people accepted the replacement of custom by a codified system of law was a mark of their antipathy towards the customary legal regimes open to systematic abuse by local elites.²⁵ There are parallels here with present day abuses of customary authority that bring Indigenous peoples and local communities’ customary legal regimes into disrepute.

While in continental Europe during the Middle Ages countries were seeking to develop codified systems of law, in England centralization of political power had occurred much sooner and was accompanied by the development of the King’s Courts, which applied and developed the common law.²⁶ As with the Greeks and Romans, English law was made up of separate Lex Scripta, the written law, which referred to statute, and Lex non Scripta, the unwritten law, which ‘obtain’d their Force by immemorial Usage or Custom’.²⁷ A distinction between general and specific customs is central to the development of English law and its relation with custom. In the first place, the English common law system is itself considered to be unwritten or customary law.²⁸ In the second place, the English courts recognize the existence of local customs, which can in certain ...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright Page
• Dedication
• Table of Contents
• Table of cases
• Acknowledgements
• In opening: Ever living law
• Introduction
• 1 Customary law in context
• 2 Self-determination in practice
• 3 Where custom is the law
• 4 In search of the living law
• 5 Ancestral rights recovered: lands and traditional territories
• 6 Natural resources or essences of life?
• 7 Right to culture and cultural heritage
• 8 Traditional knowledge
• 9 Intercultural equity and justice
• In closing: traditions for the future
• Notes
• Bibliography
• Index