Tribal Customary Law Research Articles

Between the Devil and the Deep Sea: Tribal Women’s Inheritance Rights in India

In recognition of their distinct culture and identity, tribal communities in India enjoy constitutionally guaranteed autonomy and self-governance, which extend to customary laws for marriage, matrimonial rights and inheritance. In contexts where the tribal customary law has denied women inheritance rights, some women have approached the courts of law. The Hindu law on inheritance specifically excludes tribal communities from its application; yet, courts have found a way to apply it by reasoning that the parties to the case were ‘sufficiently Hinduised’. This article examines Indian judicial responses to this issue, and the ramifications for the inheritance rights of tribal women. The article critiques law’s lack of imagination and inability to capture the complex dynamics of social relationships in tribal communities, in a context of their massive dispossession from tribal lands. While highlighting the distinct relationship of property, community and family in tribal communities, it examines how law could ensure that tribal women retain their tribal identity and yet secure equal inheritance rights, rather than force a trade-off between tribal identity and securing inheritance rights on grounds of ‘sufficient Hinduisation’.

Finding justice among the pre-colonial Ayt Ḥdiddu (Central Morocco)

Based on narrations about the ways of finding justice among the Ayt Ḥdiddu in the decades preceding the establishment of French Protectorate rule, this article attempts to reconstruct the principles of tribal customary law under the conditions of tribal autonomy in the period of ssiba before 1933. The ethnographic material I collected in the mid-1990s represents an idealised retrospective view of the practices involved in conflict resolution. In this view they appear more orderly than they must have been in social reality, which I assume was much more flexible. Nevertheless, the accounts provide us with an understanding of the main characteristics of pre-colonial customary law: the complete absence of executive power, the importance of the threat or actual practice of violence, and the plurality of alternative courses towards conflict resolution based on different logic. Thus, the material discussed provides insights into the principles of finding justice under conditions of tribal autonomy as well as some hints concerning their historical transformations.

السلم الأهلي في المجتمع الفلسطيني بين سيادة القانون والعرف العشائري "دراسة تحليلية

Abstract Human rights are indivisible and are considered as the basis of enjoyment of civil, political, economic, social, and cultural rights. It also ensures safe environment to exercise these rights through sustaining civil peace under the rule of law. Therefore, the researcher utilised the historical and analytical descriptive approaches. The findings confirm: first, that civil peace is a fundamental pillar of sustainable development of societies. Second, civil peace in Palestine is at its worst and at risk. In addition to this, the consequences of the collapse of civil peace in Palestinian society will have serious repercussions on the Palestinian cause. The researcher then reached a number of recommendations to restore civil peace in Palestinian society, some of which are: First, to renounce the culture of violence that sowed hatred and revenge among younger generations. Next, to invite the Supreme Council of the Judiciary to develop judges' skills and legal expertise. Then, to call on judges to expedite the disposition of cases before them to ensure fairness of the justice system. Finally, to call on the Palestinian legislature to codify the relationship between tribal customary law and the rule of law. Keywords: Tribal customary law, civil peace, rule of law, relationship of the tribal customary law and civil peace.

Kultura prawna w Polsce przed założeniem Akademii Krakowskiej

Culture is a very complex reality of human existence, which is comprehended in its different aspects. By the object of culture they are all products of human activity, events, behaviors ordered in certain examples present in societies in the form of rules of conduct which are determined by customs, morality and legal regulations. The acceptance of Baptism by Mieszko I of Poland in 966 was the turning point in the Polish history. The country of the first Polish Piast was rooted in the culture of the international community of European states. This situation favored the influence of certain rights of the foreign Polish legal system. In the then practice of Slavic states, the legal system was based on a tribal customary law (i.e., universally recognized, time-honored form of behaving, accepted in the given social community). From the 12th and 13th centuries the knowledge of Roman law and canon law broadened in Poland. During this period, developing the legal thought was based on both types of law. Knowledge of those systems derived from various sources. This process was used for the import of legal manuscripts of Roman and canonistic study to Poland. An example of the reception of Roman law and canon law in Poland until the beginning of the 13th century is the Chronicle of Poland by Master Vincent called Kadlubek (c. 1150–1223). The document is one of the most important and most abundant sources of law in this period.

Shari'a, Custom, and Statutory Law: Comparing State Approaches to Islamic Jurisprudence, Tribal Autonomy, and Legal Development in Afghanistan and Pakistan

This paper is limited to a comparative study of law and legal systems in contemporary Pakistan and Afghanistan, with an emphasis on how these states approach the complex relationships between Islamic law, tribal customary law, and statutory legal codes. Afghanistan and Pakistan provide valuable comparisons because both states are Muslim-majority countries that are extremely heterogeneous, yet bear the marks of increasingly centralized governments seeking to homogenize national judicial systems amidst rapidly-increasing economic and legal globalization. What is the nature of interaction between Islamic law, local customary/tribal law, and official state-sponsored law in these two countries? Is interaction between these three broad categories of law characteristic of an irreconcilable clash, harmonious fusion, or a series of overlapping jurisdictions? In an age of increasing statutory codification is there a dwindling role for local social customs in the production of Islamic law? How do Afghanistan and Pakistan govern conflicts between Islamic law and local sociocultural norms in tribally-governed areas, or between these bodies of law and international human rights law? By raising the above issues for discussion it is hoped this study will promote more constructive dialogues between international development organizations and local sociolegal actors in heterogeneous societies like Afghanistan and Pakistan, with potential lessons for additional contexts of legal pluralism.

Interplay between Tribal and Sharī Law: A Case of Tibbāwī Blood Money in the Sharīa Court of Kufra

AbstractIn the early 1940s the Sharīa Court of Kufra (Libya) issued a legal document dealing with a blood money dispute among the Tibāwī tribe. I provide here an annotated translation of this document together with an analysis of the interaction between sharia and customary law. Although the court issued its judgment in accordance with "Tibāwī tribal customary law," several indicators suggest that the apportionment of blood money among the victim's relatives reflects a compromise between tribal and sharī law. By conferring sharīa legitimacy on an earlier out-of-court agreement, the qādī contributes to bringing tribesmen within the orbit of the sharīa.

In Quest of New Law: The Perplexity of Legal Syncretism in Indonesia

When Dutch rule in Indonesia came to an end in 1950 the new Republic inherited a complex legal system whose main component parts were Dutch criminal and civil law, Adat or customary law and Islamic law. The Dutch legists had been divided in their ideas about what the proper content of “Indies” law should be. Until the latter part of the nineteenth century most jurists favoured the establishment of a positive, unified legal system throughout the Netherlands East Indies, based on modern Dutch law, modified where necessary to suit local conditions. It was anticipated that as education, effective administration and new legislation progressed the authority and operation of the “irregular” or non-Western legal systems would diminish. The non-Western systems of law encompassed regional and tribal customary law, often combined with Islamic law, and the legal usages and practices of the “foreign oriental” minorities, mainly Chinese and Indian.