Indigenous Customs Research Articles

Legal History in Action: Laying Down Indigenous Customs in Writing

Legal History in Action: Laying Down Indigenous Customs in Writing

The Confucian Scholar and the Brahmin Sannyasi: Matteo Ricci’s and Roberto de Nobili’s Adaptation to the Social Customs of the Other Traditions and the Legacies for Today

This essay reflects on the adaptation in seventeenth-century China and India in relation to the practice of Jesuit missionaries Matteo Ricci and Roberto de Nobili, especially their adaptation to indigenous social customs. By comparing their praxis, it concludes that their experiments are insightful for today’s comparative theologians in that they embody the commitment to one’s own tradition and creative openness to other traditions. Their stress on friendship as a religious virtue is also evident. A parallel study of the two missionaries illuminates and enriches how we understand them and their adaptation methodology. The first part is an overview of Ricci’s and de Nobili’s missionary activities. The second turns to Ricci’s adaptation in China: the change of clothes, writing as a way of evangelization, and the controversial concubinage issue. The third part reflects upon de Nobili’s praxis in India, specifically the opposition to and defense of his conversion method, which highlights problems in interreligious learning. An evaluation of the adaptation and concerns for future praxis in comparative theology conclude the essay.

Dermatoses due to Quackery: A Case Snippet and Concise Review of Literature.

A wide prevalence of socio-religious, cultural, and tribal practices in India often leads to a multitude of skin conditions, which can misled the dermatologists in arriving at a diagnosis. With increasing globalization and migration, the practice of indigenous customs and traditions are crossing boundaries, making it imperative for the dermatologists to be acquainted with the cutaneous side effects of these practices. Here, we report a unique case of thermal burn in a circumferential pattern over the umbilical region, a result of the placement of burning lamp over umbilicus to alleviate abdominal discomfort.

Western Legal Traditions for »Laying Down Taiwan’s Indigenous Customs in Writing«

The question of what the law is may preoccupy some legal theorists. Answering it is definitely the legal professionals’ nightmare. Constitutional and statutory requirements now require Taiwan’s officials and lawyers to confront the problem of ascertaining and applying indigenous customs in the exercise of all state powers. Yet, the most widely accepted juridical concept of custom results in a choice between two evils, to wit, breaching either the general duty to uphold law or the concrete obligation to respect indigenous values. So far, efforts have only been made to document the customs, but the documentation thus produced is too ethnographic to be legally useful. The challenge, therefore, is one of translation. Values are to be carried from an indigenous world into the modern one, and the little-known form of custom is to be expressed in the language of the science of law. This paper argues for the translation of indigenous customs with conceptions available in an array of examples from European legal history. This paper explains that, in cases like Taiwan, the solutions known to the English-speaking literature all end in the dilemma I call »modern state centralism« (MSC). The solutions are divided into two types: legal pluralism and Francisco Suarez’s conception of custom. The former defeats itself in that its criticism against the state’s monopoly of law amounts to suggesting that the state tolerate all kinds of non-state normativity. The latter reduces to MSC because recent literature ignores Suarez’s legal historical references and important studies written in German. The rest of the section shows how »non-modern« legal techniques may help. This paper concludes by suggesting that the concept pair of law and custom be dissociated from four others, to wit, written and unwritten law, state and society, law in books and law in action, and, finally, alien and native law.

Indigenous Customary Law in a Civil Law Context: Latin America and the Chilean Case

Based on anthropological and historical considerations, this paper analyses the evolution of the relationship between Western law and aboriginal custom in Latin America by focusing on the most tangible and problematic issue in customary law: land tenure. My aim is to provide a critical review of the impact of the rule of law in the arrangement of the alternative cosmologies that flows from the material and spiritual relationship of indigenous groups with their lands. Historical and political issues will be emphasised to illustrate the current problems concerning the interaction between custom and formal law in the case of the Mapuche people from Chile. By looking at some recent developments in the arena of public law, indigenous legislation and legal doctrine, the paper finally suggests how private law discourse, which traditionally has paid almost no attention to the discussion of indigenous law, might be integrated into the legal systems that widely recognise indigenous customs. Recommended citation: Míguez Núñez, Rodrigo, Indigenous Customary Law in a Civil Law Context: Latin America and the Chilean Case, in: Rechtsgeschichte - Legal History Rg 24 (2016) 302-313, online: http://dx.doi.org/10.12946/rg24/302-313

Dermatoses due to Indian cultural practices.

A wide prevalence of socio-religious and cultural practices in the Asian subcontinent often leads to multitude of skin diseases which may be missed by the dermatologists because of a lack of awareness. ‘Henna’ use causes IgE-mediated hypersensitivity reactions and contact dermatitis. ‘Kumkum’ application can result in pigmented contact dermatitis and lichen planus pigmentosus. Sticker ‘bindis’ and ‘alta’ induce contact leukoderma. Irritant and allergic contact dermatitis occurs after playing with ‘Holi’ colors. Threading and drawstring dermatitis lead to koebnerization of pre-existing dermatoses, infections and even squamous cell carcinoma of skin. Mild irritant reactions and contact sensitization occur secondary to balm and hair oil use. ‘Mudichood’ represents the comedogenic effect of hair oils combined with occlusion and humidity. Aromatherapy oils can cause contact dermatitis and photosensitive reactions. Heavy metal and steroid toxicity along with severe cutaneous adverse effects like erythroderma can occur as a consequent to the use of alternative medicines. Squamous cell carcinoma due to chronic heat exposure from the heating device “kangri” is seen in Kashmiris. Prayer nodules in Muslims and traction alopecia in Sikhs illustrate how religious practices can negatively affect the skin. With increasing globalization and migration, the practice of indigenous customs and traditions is no longer limited to regional territories, making it imperative for the dermatologists to be acquainted with the cutaneous side effects they can cause.

A dimensão imperial do espaço jurídico português. Formas de imaginar a pluralidade nos espaços ultramarinos, séculos XIX e XX

When the Portuguese Civil Code of 1867 was enforced in colonial territories, the right to be judged according to their »customs and law« (usos e costumes) was recognized for a large set of indigenous groups. Both decisions – the application of the Civil Code and the recognition of indigenous customs – reflected an existing tension between principles of unity and diversity in what concerned Portuguese legal order Overseas. In this article, I examine the role played by this tension in the judicial theories of Portuguese law teachers, colonial legislators, governors, judges and officers. By looking at their lessons, reports and memoires, as well as at the laws enacted, I identify their changing thoughts about the role of legal pluralism and its practices in the civilizational improvement of indigenous individuals and societies. In the closing pages of my contribution, I pay special attention to the changes that occurred in the late 19th and early 20th centuries, when an indigenous system (indigenato) was first conceptualized and then enforced in Portuguese African colonies. Recommended citation: Nogueira da Silva, Cristina, A dimensão imperial do espaço jurídico português. Formas de imaginar a pluralidade nos espaços ultramarinos, séculos XIX e XX, in: Rechtsgeschichte - Legal History Rg 23 (2015) 187-205, online: http://dx.doi.org/10.12946/rg23/187-205

Between Subjection and Accommodation

This article provides an explanation for why José de Anchieta, S.J., the most influential missionary in early colonial Brazil, engaged in apparently contradictory evangelization practices. Anchieta’s belief that both subjection and accommodation were necessary in the process of converting natives is evidenced by his epic poem, De gestis Mendi de Saa, which praised Governor Mem de Sá for the peace he brought to Brazil. The climax of the poem is the death by cannibalism of a bishop. This act, in the minds of Anchieta and fellow Portuguese colonists, constituted a cause for just war. While Anchieta’s initial evangelization strategies were focused on taming “savages” by subjecting them to the laws of the colonial governor and altering their indigenous customs, after a relative state of peace was established in the Jesuits’ mission villages Anchieta was able to catechize with great attention to indigenous sensibilities. An analysis of his most popular play, On the Feast of St. Lawrence, highlights how European and indigenous customs combined on the stages of colonial Brazil. Through Anchieta’s poetry and drama, we see that there were many ways of proceeding among the Jesuits, and that their apparent contradictions are better understood in view of their ultimate purpose: converting souls.

Searching the Academy (Soushuyuan搜書院): A Chinese Opera as Rule of Law and Legal Narrative

In earlier scholarship on traditional societies that became colonised, relations between imported legal systems and indigenous customs that had long operated with quasi-legal effect are often studied in terms of conflict and opposition, to show how western or European institutions progressively displaced what existed before their arrival. In her more recent studies of legal pluralism, however, Lauren Benton argues persuasively from many historical examples and cases that indigenous culture and contingent historical situations are major forces that mediate legal development and change. Though acknowledging her debt to Homi Bhabha’s theorising of hybridised subjects and their disruptions of asymmetrical colonial relations, Benton nonetheless critiques Bhabha’s assumption of ‘a preexisting and relatively constant cultural divide’ (Benton and Muth 2000).

Indigenous Customs and Colonial Law

This article looks at the contesting articulations of gender, family, and religion in colonial South India. The article discusses the encounter between matrilineal customs and the Anglo-Muhammadan law in the site of Mappila Muslim matrilineal practices in colonial Malabar, of the Madras Presidency during c. 1910-1928. Young male members of the joint family used the language that matriliny is un-Islamic, and passed laws in the Legislative Assembly to demand that joint family property requires to be inherited in the patrilineal line. Three legislations were passed during the period of 1910-1940 to bring Muslim families in accordance with the ideal notions of familial organization existed in that period. The ideal notions were set up by the precepts of the Anglo-Muhammadan law, the orientalist knowledge of Islam, ideologies of colonial modernity, and dreams of caste and religious reform movements among the people of Malabar, and other neighboring states, Cochin and Travancore. In response to that, there was a re-articulation of customs and familial practices by using legal provisions available in the Islamic law, and an effort for justifying the practices to avoid the ruin of matriliny. Subsequently, the matrilineal Mappilas of Malabar retained matrilineal customs rather intact, though the gender relations and religious practices were re-articulated in the idioms of patriarchy and textuality.

Pluralismo jurídico: derecho indígena y justicia nacional

Based on doctrinal and legal considerations, this paper analyses the progress and setbacks of Chilean jurisprudence with regard to the recognition of indigenous customs, the justiciability of indigenous law and the implementation of a pluralistic legal approach. Since the entry into force of the 169 ILO Convention, there have been some developments in the jurisprudence pertaining to the legal recognition of the ancestral property right to water; rights of use, exploitation and protection of the land; natural resources and ecosystems that make up indigenous habitats; and the right to consultation taking into account the ethnic specificity of indigenous peoples. However, Chilean jurisprudence tends to protect the hegemony of State law and its structuring principles, both in criminal matters, where customary law can be applied exceptionally as a ground for excluding or mitigating criminal responsibility, and in civil matters, where the rules and principles established in the Indigenous Act and in the 169 Convention have been reluctantly adopted with regard to indigenous people’s right to property and possession of the land. Finally, the courts have not recognized the jurisdiction of indigenous authorities to resolve community conflicts.

Revisiting the Salafi-jihadist Threat in Xinjiang

The fear of a burgeoning Salafi-jihadism in Xinjiang has been a public driving factor in Chinese policies in the region. This menace is exaggerated. Though there may be Salafi-jihadist elements among the larger, discontented Uyghur population, it is not a mass movement posing an existential threat to the Chinese political order in Xinjiang. Nationalism fuels this Sino-Uyghur conflict while Islam functions as a pragmatic weapon. Uyghur Islam, Uyghur identity, and the history of Uyghur rebellions in the twentieth century, all undergird this conclusion. The form of Islam—Hanafi, Sufi, and indigenous customs—commonly practiced by Uyghurs is antithetical to Salafism and the state imposes constraints on religious praxis. A Muslim identity is only one among several competing identities that comprise the ethnic idea of a Uyghur. The character of Uyghur rebellions, even ones that blatantly declare jihad, demonstrates the primacy of nationalism, the absence of Salafi-jihadism, and the malleability of Uyghur identity. These three evidences bolster the case to revisit the question of Salafi-jihadism in Xinjiang and find a more complex socio-religious perspective.

"Some were wild, some were soft, some were tame, and some were fiery": Female Dancers, Male Explorers, and the Sexualization of Blackness, 1600-1900

This article examines how the discourse and imagery of West African female dance coalesced with notions of power, desire, disgust, and superiority in Western travel narratives from the sixteenth to the nineteenth century. The authors of these publications wrote extensively of the cultures they encountered in West Africa, noting indigenous performances and customs—especially dance. Informed by their own cultural and social norms, these writers transformed African dance performances into pornographic scenes for consumption and sexual enticement for a mainly white male audience. African dance became evidence of the overt sexuality of blackness, helping create racial stereotypes of the black "other," and provided validation for the sexual abuse of black women in the Atlantic slave system. There is an association between performance and blackness that influenced negative racial conceptions of blacks in the North American slavery system. Travel narratives presented the identity of black femininity as malleable and capable of being shaped according to the desired purpose of the gazer. This sociocultural construct reassured these travelers of their sexual power and at the same time denied any sexuality of women other than the white male desires. These women were thus depicted as sexual predators who lacked traditional feminine qualities, therefore placing them outside the traditional female sphere reserved for white womanhood. Using these travel narratives and tying together dance culture in both Europe and Africa, this article examines how the white male gaze sexualized African dance, contributed to the construction of race and gender, and affected the experiences of black women in the Atlantic world.

Engendering New Netherland: Implications for Interpreting Early Colonial Societies

Here, we study the Algonquian and Iroquoian women who lived in settlements surrounding the Dutch colony of New Netherland, in today’s northeastern United States. We begin by examining their roles in the colony and find that their lives did not fall into the pattern of servitude, concubinage, culture-brokering, and intermarriage that many have seen as the fate of Native or African women in other colonial societies. Instead, these women were, by and large, independent agents and followed their own indigenous customs as they interacted with Europeans. We then go on to explore how this new revisionist view of their actions affects archaeological interpretations of their households and the households of the Europeans as well. We further point out how the role of Native women in New Netherland was influenced in part by the presence and absence of other groups of women—both European and African—there.

The Tree of Jesse and the “Relación de Michoacán”: Mimicry in Colonial Mexico

When the Spanish viceroy Antonio de Mendoza first visited Michoacán, Mexico (about 1539), he commissioned a Franciscan friar to record the indigenous customs of the region. The friar, together with local native nobles and artists, produced the illustrated manuscript known as the “Relación de Michoacán.” One of these indigenous artists transformed the European Tree of Jesse, a motif depicting Christ's genealogy, to represent the local indigenous noble family. Such an act of mimicry and appropriation allowed the artist to represent the native nobles as the rightful rulers of Michoacán and to communicate this conviction to the manuscript's colonial audience.

Common Law Crimes and Indigenous Customs: Dealing with the Issues in South African Law

This article examines the so-called ’cultural defence’ in South African criminal law. The expression ’cultural defence’ refers to the phenomenon where indigenous customs are taken into account in the processes of a criminal trial and may have an effect on the outcome. In South Africa they may play such a role in two respects: first during the process of inquiry to ascertain if the requirements for a particular crime have been met; and secondly when a suitable punishment for a convicted accused must be determined. By making use of case law, illuminated by some comparisons with the role of Aboriginal customs in criminal trials in Australia, it is shown that culture played a definite role in South African cases prior to 1994, albeit not strictly in the sense of a true cultural defence.The paper then examines whether the South African Constitution and, in particular, its human rights provisions, brought about a new approach to be taken in matters where custom has been an element in the motivation for an act which would normally be a crime. Making particular reference to the examples of the twala custom (a form of abduction, with or without the consent of the girl or her parents, as a preliminary to a customary marriage) and belief in tokoloshe spirits, it is shown that South African courts have sometimes, although often reluctantly, given attention to these customs, although sometimes showing little understanding of them. The major question which emerges today is whether the constitutional provisions demand a formalisation of the cultural defence or whether the existing principles used in the evaluation and punishment of crimes could continue to be applied.

Ecos del ayer en los pueblos zapatistas: Fernández de Lizardi e Ignacio Ramírez

Desde la Reforma hasta el Porfiriato hubo rebeliones de los pueblos originarios que fueron derrotadas (genocidio). La filosofía del positivismo evolucionista y la Ley Lerdo los obligaron a ingresar a una capitalismo que les negó la “alteridad” de su lengua, de la propiedad comunal de la tierra, sus usos y costumbres. Los gobernantes apostaron a su integración, a “civilizarlos” (etnocidio). Frente a tal estigma se oyó, antes de tales catástrofes, la voz de un objetor, y en plena agudización del conflicto otra. El zapatismo y otras rebeliones indígenas son su eco actualizado. Aquellas voces son la estrella que brilla en medio del naufragio.

Indigenous Payment for Environmental Service (PES) Opportunities in the Northern Territory: negotiating with customs

Recent government initiatives have acknowledged Indigenous ranger groups in the ‘top end’ (northern region) of the Northern Territory (NT), Australia, for their holistic role in environmental management and community development. The services provided by these groups are of national significance with respect to biodiversity protection, ongoing cultural maintenance, employment for remote communities, border protection, and biosecurity. However, the acknowledgement of these services has received only limited translation into meaningful financial and technical support for Indigenous ranger groups. The present paper highlights the value of environmental services provided by Indigenous ranger groups and contrasts this with the inadequate recognition of these services by government agencies. Although government budget initiatives and policy directions are moving towards greater recognition of Indigenous environmental service provision, border protection negotiations between key NT Indigenous sea ranger groups and Australian Customs Service illustrate some of the limiting factors to progression of this recognition. The present paper highlights the necessity of ensuring accountability of processes to Indigenous rangers themselves so that payment for environmental services does not become an imposition, but rather a mechanism for realising Indigenous community aspirations, as well as addressing issues of regional, state/territory, and national significance.

“Fictionalizing” Indigenous Mourning: Taiwanese Funerals under Japanese Imperialization

In 1941, a year when the Japanese wartime campaign of kminka (imperialization) pervaded the island, the magazine Folk Customs of Taiwan (Minzoku Taiwan, 1941 – 45) appeared in colonial Taiwan.1 Set against ruthless attempts to eradicate indigenous language, religion, and customs — part of the Japanese effort to inculcate Japanese culture and forms into the colonized populations — the Japanese-language magazine featured the folk customs and culture of the Han Chinese in Taiwan.2 On occasion, it even criticized the formalism of the imperialization policy, gaining support and contributions from Taiwanese intellectuals in doing so. Half a century later, Japanese literary critic Kawamura Minato related the magazine’s activities to the imperialist genealogy of the Greater East Asian folklore project (daita minzokugaku) and retroactively charged the magazine’s Japanese leaders with racism and colonialism. Vehemently refuting Kawamura’s accusations,

African Womanhood in Colonial Kenya, 1900-50, Tabitha Kanogo

Reviewed by: African Womanhood in Colonial Kenya, 1900-50 Maurice N. Amutabi Kanogo, Tabitha . 2005. African Womanhood in Colonial Kenya, 1900–50. Oxford: James Currey; Athens, Ohio: Ohio University Press. 268 pp. $24.95 (paper). In African Womanhood in Colonial Kenya, 1900–50, Tabitha Kanogo utilizes archival sources and interviews to interrogate political and sociocultural structures and practices that shaped and controlled women's lives in colonial Kenya. She shows how colonial administration, missionaries, and indigenous customs variously used clitoridectomy, dowry, marriage, maternity, and motherhood to control African women. In the first chapter, Kanogo examines the dilemma of African women within the milieu of two oppositional legal frameworks—precolonial and colonial—and how women dealt with them, with varying degree of success. She casts women as victims whose morality, sexuality, and physical and socioeconomic mobility society sought to control. She implies that Europeans [End Page 118] and African elders seem to have conspired to oppress women legally, so that "under the colonial administration . . . virtually no one in authority . . . could express much satisfaction with the way that women's legal status was defined" (p. 17). The second chapter suggests that the colonial system allowed female agency to flourish. Kanogo shows how "the intervention of the formal procedures of colonial law influenced the cultural status of women and allowed them to find new avenues for self assertion and agency within the confines of [culture] and customary law" (p. 42). Contrary to previous studies, which have presented women in colonial spaces as helpless, hers finds that those in colonial Kenya had ways in which they negotiated against adversity, and even influenced diverse social processes. In the same chapter, she intimates at some gender conspiracy, of men against women—which neutralizes her previous representation of the colonial system as "liberating" and "privileging" to the agency of African women. Kanogo argues that in colonial Kenya, African women were oppressed and had a lower status than that of African men. Though this type of separation between men and women in studies of colonial projects in Africa has been seen as artificial (Oyewumi, 1997), through cases of the pawning of women, she shows how women surmounted obstacles to survive. Her examples suggest that it was women, and not men, who were pawned; however, there seems to be a thin line between pawning and forced marriage (pp. 50–55), to which distinction the author seems ambivalent. Discussing rape, she draws the conclusion that "social representations of the rape crime treated women as social capital, to the exclusion of their individual legal personhood" (p. 55). From the way fines were levied on rapists, she contends that women's "personal suffering was irrelevant" (p. 55). Did colonial laws rescue African women? Kanogo thinks they did when she says, "Colonial sensibilities tended toward the reworking of social hierarchies to the advantage of women" (p. 59). Though claims that men were privileged by the colonial system under paternalism have been rejected as inaccurate (Zeleza, 1997; 2003), Kanogo shows how African men continued to dominate knowledge-creation on various issues: they sanitized their gender while dragging that of women in sludge. In Maragoli, for example, she says "venereal diseases came to be referred to us urukuzu rwa avakali, women's diseases, after World War I" (p. 61), making it look as if men innocently contracted diseases from women, making men victims while female bodies are pathologically characterized as carriers of diseases. In the third chapter, Kanogo connects female circumcision with ethnic identity, gender reproduction, land claims, morality, sexuality, and patriarchal and state authority and religion, in interesting ways. She discusses female circumcision (using its technical name, clitoridectomy) and womanhood. She focuses not on the physical form (the surgery), but on the cultural function, where "the rite delineated right from wrong, purity from impurity, insiders from outsiders" (p. 74). She explains how the female body was positioned at the center of the refashioning of Kenyan societies that have [End Page 119] practiced female circumcision and still practice it, making the female body a site of negotiation, contestation, and prescription in the encounter between indigenous culture and modernity. Using case studies, she dramatizes the impact of female circumcision on Kenyan societies, often in fascinating ways...