The Future of Tradition

Customary Law, Common Law and Legal Pluralism

Leon Shaskolsky Sheleff

• Publisher: Routledge
• Year: 2013
• ISBN:
  9781136326158
• Edition: 1
• Topic: History
• Subtopic: World History
• Index: History

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.

PART I:

BACKGROUND

1

Custom-Made Law

Social life is dependent on the capacity of people to create rules to guide them in their everyday activities. The rules themselves, in normal situations, will represent a common denominator of shared values and practices which may be enumerated in different ways – within a comprehensive prior framework in the form of legislation, by retroactive announcement while dealing with a particular issue that requires solution in the form of adjudication, or by the general acknowledgment and acceptance of agreed and known norms of behavior.

The usual manner in which concrete expression is given to most rules is through a state with its legislative and judicial organs, and generally accepted means of according recognition to prevalent customary practices. However, there are also situations, in which rules of an obligatory or strongly persuasive nature are created without the formal procedures of parliament, courts, and other constituted bodies that characterize a state. In some countries, a certain degree of formality may attach to them, in others they may be mainly amorphous.

Thus, although one of the main characteristics of a state is its power to make laws, yet, however extensive its power, however entrenched its sovereignty, however exclusive its claims, there will always be patterns of behavior that will follow the contours of norms that are extra-legal, there will always be subjects who will respond to obligatory demands that stem from non-governmental sources, there will always be interactions that will be determined and disputes that will be resolved by standards and procedures that emanate directly from the life of the people and the reality of their society.

Governmental authorities may choose to ignore such manifestations or they may decide to accommodate themselves to them by recognition in one form or another. But any comprehensive understanding of the legal system of a society must take due account of those normative structures which exist at its margins and possess, for some at least of the citizens, obligatory force.

There is increasing jurisprudential awareness of this situation, and various writers have attempted to incorporate a description of these processes into their theoretical framework. These jurists have attempted to provide a countervailing influence to the more positivistic theories of law that have for so long dominated in the philosophy of law, and that have focused concern so insistently on the formality and the certainty of law, and the sovereignty and the unity of its sources.

In contrast, schools of thought such as living law, legal realism or historical jurisprudence have collated examples of people carving out their rules, that are deeply embedded in the very fiber of their community life, attuned to its possibilities, and responsive to their needs. In the course of time, these rules take on a form and vitality of their own, and coalesce into a coherent, yet flexible, code of conduct.

The history of law is replete with such examples of ‘people law-making’, of vox populi making itself heard above the din of formal proclamations. But such processes are not just relics of the past; they are an ongoing fact of social life, often providing practical guidance for daily interactions and effective solutions for problematic situations in a more satisfying manner than that provided by the formal legal system. Indeed, the law itself, in its full and august splendor, often develops out of such customary practices. This was certainly the basis of Karl von Savigny's contention that law was, or rather should be, no more than the summation of prior binding rules, an expression of the volksgeist, of the spirit of the people.

Customs, then, have always played a significant role in the formation of law. This is widely acknowledged in the case of the legal system of the common law, where the judicial imprimatur of customary practices constituted the bulk of the law in the early stages of its growth, the term itself, ‘common’, indicating those customs that, over the years, had broken out of a local mould and become widely accepted throughout the realm. In France, too, there are distinctions from its earlier legal history between the lex coutoume (customary law) and the lex ecrit (the written law). In the German areas, there are descriptions of how ritual processes emerged by which the people would, in a question-and-answer catechism, make known to the rulers what the customs were in a particular field, before the latter would then incorporate them into their own official legal system.

There were also certain areas that were deliberately left outside of the legal system so as to allow for a maximum degree of responsiveness to changing situations in a specialized area – the most notable being the law that grew up around the law merchant, and still finds some continuation in private international law in the modern world. Public international law is another field where customary practices were gradually accorded growing support from individual states, until they came to have a binding status, some of them even receiving an additional affirmation as being of an immutable nature (the ius cogens).

But, of course, the most striking example of the role of custom in rulemaking making is in the pre-state period, where societies, despite lacking formalized institutions for enacting and enforcing the law, nevertheless created means of conveying to their members the parameters of desired behavior, and the scope of the obligations that devolved upon them and the rights that accrued to them. The term, tribe, is widely used to define such pre-state societies, for instance, the Teutonic tribes from northern Europe that engaged in military struggle and cultural rivalry against the empire that had developed out of the city-state that was Rome.

While the results of the military struggle were inconclusive, there were more definitive consequences to the cultural rivalry – the tribes were absorbed into the larger Roman empire, accompanied by their religious conversion to Christianity, their assimilation into the pattern of centralized state institutions, and their acceptance, especially from the eleventh century onwards, of the Roman law as a founding framework for a comprehensive legal system.

Thus, the convulsions of the Middle Ages seemed to have led either to the demise of tribes in western civilization, or consigned them to the peripheries of its empire. As tribe became state, so custom became law; yet, in the interstices of the society, customary practises continued to hold their appeal – and, apart from being received, as noted, into the corpus of the law through judicial recognition, persisted also without any such official incorporation, as variously described by different non-positivistic theories of law.

A leading American jurist, Justice Oliver Wendell Holmes, pithily distilled the essence of the law when he said, in a much-quoted phrase, The life of the law has not been logic, it has been experience’: it may equally be said that the logic of life is not law but custom, an appreciation of the manner in which people will strive for the ultimate realization of their democratic right to express themselves as autonomous beings – by moving beyond the formal reaches of the law to lay down the rules that will govern their lives, beyond that which is contained in enacted codes, judicial pronouncements and learned treatises. Tribes may no longer exist in Europe, but they bequeathed to its people the compelling and persuasive power of custom as a source of authoritative rules.

These historical processes of Europe have been repeated throughout the world – firstly, where states or empires have emerged through the amalgamation of several peoples, or tribes, or the absorption of one by the other; second, where the colonial expansion led to European states imposing their rule and much of their law on people, many of whom were as yet stateless, and were then termed tribes. As colonialism came to an end, these conquered territories became states in their own right, searching in many respects for their own historical antecedents (for instance, taking on names that linked up with flourishing periods of the past), but moulded largely – in their institutions, ceremonials and, of special import, their legal systems – on the model of their former colonial rulers.

The inevitable question arose as to how to relate to infra-state groupings within these new states; in some cases, the problem was of a settler majority and a minority of indigenous people, in other cases, the problem was of nation-building by placing the demands and needs of the state above those of local population groups. But these local infra-state affiliations, with their bonds of allegiance and belonging, with their localized rules and rituals, continue to survive.

Two issues emerge – firstly, to what extent the all-encompassing state is able to concede the validity of the varied local customs and to share its rule-making and rule-enforcing power with local communities; second, to what extent the history of Europe is designed to serve as the role-model for other parts of the world in the present day? That is, whether the loose associations of people, such as the tribe, are doomed to surrender their own unique qualities and to be absorbed within larger state frameworks, or whether they may retain their inner vitality and corporate existence, and as such, to continue to shape some of the rules by which their members will conduct their lives; whether their customs that will doubtless subsist in one way or another, as part of some living law, will be sustained also by some conscious recognition as being of a defined and differentiated group, or whether they will be shorn of such support.

In a word, the question is whether or not the tribes of today, however defined and however named, may perhaps escape the fate of European tribes, and so continue to be the font out of which customary law may continue to grow and to change? In probing this, it is necessary to examine the manner in which the modern state is able to divest itself of some of the exclusive sovereignty that has so characterized it in the past; on the one hand to forgo claims not to be subject to any rules extraneous to the body politic, and on the other hand to forgo claims to have sole control over the legal parameters of social behavior.

Recent years have seen a move toward legal pluralism as an inevitable concomitant of social and cultural pluralism. In the final analysis such legal pluralism will most likely entail a certain degree of shared sovereignty; but any such suggestion clearly opens up possibilities of conflict between the different sources of legal authority. While pluralism offers prospects of a mosaic of different cultures in coexistence, with parallel legal frameworks, it also presents the danger of a clash of conflicting norms (between state law and customary practices). A true pluralistic society must learn to cope with such conflicts – searching for a modus vivendi that will allow the state to preserve social order (one of its prime tasks), while yet assuring its citizens of their legal rights to believe in and practice their own different ways of life.

In a sense this latter factor is really a pristine form of democracy, with norms being determined at the grass-roots level, by the people, sensitive to every nuance of their everyday needs, and respectful of the accumulated traditions of the past and their meaning for the present. But while many of these norms may be easily recognized and integrated, there are always likely to be some norms that are in violation of state law and general societal norms. The challenge is to seek reconciliation of the conflict; it is a challenge also to the nature of state sovereignty, and to the possibility of creating a meaningful pluralistic society.

2

Pluralism in the Modern World

Standardized concepts of a world neatly divided into independent states, each clearly differentiated by precisely drawn lines on a map, each presumed to possess absolute power within the designated area, presents a shallow, and ultimately false, picture of modern social and political reality. An earlier idea of sovereignty, which sanctioned total authority for the governing bodies to rule over the inhabitants of the territory under their control, has only limited value in a world of both increasing concern for the universal nature of human rights sparked by international and regi...

Table of contents

• Front Cover
• Half Title
• Title Page
• Copyright
• Contents
• Preface
• Part I: Background
• Part II: The Framework
• Part III: The Issues
• Part IV: Special Topics
• Part V: Conclusions
• Select Bibliography
• Index