Aboriginal Law Recognition in Australia

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  • Topic: Law, Common law, Legal systems of the world
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  • Published : September 10, 2009
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Foundations – Assessment One.

Cultural pluralism is a term used when small groups within a larger society maintain their unique cultural identities.[1]Legal pluralism goes one further to incorporate multiple legal systems within one geographic area.[2] Plural legal systems are particularly common, where the law of a former colonial authority may exist alongside more traditional legal systems.[3] The following paper will look into whether or not two legal systems can co-exist and if they can co-exist in an equitable way acknowledging that both are valid ‘law’ and what makes up the ‘law.’

In anthropological circles it is accepted that all societies (human) have law consisting of some form of legal principles and legal processes, and whether or not they have codified laws and law courts.[4] Social Scientist John Metge argues that all societies chase maintenance of order except in times of exceptional crisis. This maintenance of order includes the reinforcement of accepted values and the punishment of breaches.[5] It can be said that all societies equally depend on the maintenance of social norms, whether or not they are in the form of codified law or not, and social norms have the same aim, which is to maintain order within their society. If the statement by Mete is true it would be very difficult to argue that Aboriginals do not have a legal system in place. Berndt RM and Berndt CH in an article on ‘law and order, in World of the First Australians’[6] highlights different punishment systems employed for particular crimes and who has the authority and power to enforce the punishments and the system of punishment that occurs within a community. For example the article discusses in the event that a mother kills her baby or abandons him or her, the mother will be punished by her husband or her co-wives. From the example it can be seen that the law is not like that of the Western law with strict formal systems and courts but this does not mean that it in any way is ineffective or any less a law then the Western or any other legal system. It maybe different but it serves the same purpose which is to maintain order within a society.

Aboriginal law not only embraces ritual, economic, residential and kinship rules and conventions but also what we would call natural laws and technical rules. As stated above Aboriginal law is not written and codified in the Western sense and is passed on through language, song and ceremony. Law is inscribed into the landscape and often in the being of the Elders who are its living embodiment. Aboriginal people are justified in their concerns about the implications for their law of the application of the ‘recognition’ process.[7] Many argue that the laws are simply too different and without understanding the history and the origin behind the Aboriginal law, one cannot pass judgement. Maybe there is a belief of some understanding to an extent of what Aboriginals identify as law but because it is not in the same form as what is recognizable as being a legal system in Western societies it is feared. Additionally, there may be disagreement within communities or groups on aspects of customary law and their application to particular circumstances. Aboriginal men and women may also interpret customary laws differently; they may have competing views regarding what should prevail in those particular circumstances. However do all these reasons mean that the Western legal system should not recognise the laws passed down from generation to generation and fear what it’s impact might have on the Western legal system if recognised as law. Some modern Aborigines have made comparisons between their law and the Australian legal system on the basis of common notions of rules and sanctions for their breach but they have also interpreted the word ‘law’ to mean ‘way of life’ and ‘religion’.[8] This is not denying that there was a system of ‘law’ in traditional Aboriginal society. By using a functional definition...
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