Creation Of Customary Law Research Articles

Digitalization and its Systemic Impact on the Use of Force Regime: Legal Uncertainty and the Replacement of International Law

AbstractThis article explores the systemic impact of digitalization on the use of force regime. It identifies two types of impact: (i) legal uncertainty; and (ii) the replacement of international law. The article discusses legal uncertainty in relation to the content of the rules on the use of force and their application to digital uses of force as well as in relation to the facts that underpin digital uses of force. It then goes on to discuss the replacement of international law as a regulatory tool of the use of force by considering the impact of digitalization on the creation of customary law, legal personhood, and international law’s regulatory modality. The article’s findings are not limited to the impact of digitalization on the use of force regime but extend to international law in general.

Myths and stereotypes about adat law: A reassessment of Van Vollenhoven in the light of current struggles over adat law in Indonesia

Recent analyses of the ‘revitalisation of tradition’ have rekindled earlier discussions of the ‘creation of customary law’ in colonial states. For Indonesia, critics have deconstructed a ‘myth of adat’, arguing that adat law was an invention of the adat law scholar Van Vollenhoven and his followers. The assessment of that period also shapes interpretations of developments in Indonesia after 1998. The purpose of this paper is to demonstrate that in some respects the critique of colonial scholarship was misconceived, and that these misconceptions hamper a proper understanding of the current revitalisation of adat in Indonesia. Many interpretations of colonial legal science and practice have become anachronistic and stereotypical. We argue that most interpretations were and are largely based on a legalistic conception of ‘law’ and ‘customary law’, that authors selectively generalise interpretations from specific contexts, and that they do not take into account what such interpretations say over legal realities beyond these contexts. Lastly we think that the target of the critique is somewhat misconceived as it is directed at those scholars who were aware of the danger of legal ethnocentrism and criticised it, while not looking at those colonial scholars and courts, who grossly misinterpreted local normative systems in terms of Dutch legal categories. We argue that some assumptions and propositions of these earlier and contemporary critical deconstructions are in need of re-evaluation. Given its presence in current analyses, reconsidering Van Vollenhoven and his followers is more than a return to a history long gone by. We substantiate our propositions with a discussion of the history of the village commons, ulayat, in West Sumatra, which has always been a central illustration in all discussions of adat law.

Law out of Context: A Comment on the Creation of Traditional Law Discussion

The ways in which local normative systems and processes of decision-making in Third World states have been interpreted and transformed by colonial and postcolonial lawyers, administrators and social scientists have received much scholarly attention. During the past 15 years in particular, the “creation of traditional law” in Africa and the “myth of adapt” in Indonesia have became a special topic in the writing of legal anthropologists, largely influenced by scholars such as Asad arid Said. In recent years analyses have increasingly focussed upon the economic and political forces and purposes behind the transformations and on their consequences rather than on their underlying ethnocentric conceptual biases.In his paper “Traditionalism and Traditional Law” in this volume Peter Fitzpatrick presents an elegant, sophisticated and critical account of the main strands of analysis in the discussions about the creation of customary or traditional law. In my comment upon his views and those of other authors which he discusses I am not so much concerned with a critique; I would rather like to expand and amend these views by enlarging the analytical framework in which they should be seen. My concern is with the selectivity of these analyses. Firstly, I think that they usually tend togeneralizefrom a limited (set of) context(s) in which the creation of customary law has been observed, such as adjudication in colonial courts or academic writing and teaching in colonial law.