Legal Pluralism in Australia: Multiple Legal Systems within a Geographic Area
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
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
Bibliography: Articles/Books/ Reports - Australian Law Reform Commission, The Recognition of Aboriginal Customary Laws (Report 31, 1986) - Berndt, RM and Berndt, CH, The World of the First Australians (1992) - Merry, Sally Engle - Roger Keesing and Andrew Strathern, Cultural Anthropology: A Contemporary Perspective, (3rd edition ed, 1998 (1981) - Tamanaha, A General Jurisprudence of Law and Society (2001) ch 7 - Twining, W, ‘A Post-Westphalian Conception of Law’ (2003) 37 Law & Society Review Case Law - Mabo and Others v Queensland (No. 2) [1992] HCA 23; (1992) 175 CLR 1 Other Sources [2]Merry, Sally Engle. 1988. “Legal Pluralism.” Law & Society Review 22: 869-896. [4]Roger Keesing and Andrew Strathern, Cultural Anthropology: A Contemporary Perspective, (3rd edition ed, 1998 (1981)) [6] CH Berndt and RM Berndt The World of the First Australians (1992)chapter 10. [7] E Eggleston, Fear, Favour or Affection: Aborigines and the Criminal Law in Victoria, South Australia and Western Australia (Australian National University Press, Canberra, 1976) at 278. [10] Australian Law Reform Commission, The Recognition of Aboriginal Customary Laws (Report 31, 1986) [11] Mabo and Others v Queensland (No [12] Australian Law Reform Commission, The Recognition of Aboriginal Customary Laws (Report 31, 1986) [13] ‘Prison Under the Stars’, Sydney Morning Herald, 17th August 2004 [accessed online] [14] Australian Law Reform Commission, The Recognition of Aboriginal Customary Laws (Report 31, 1986) [15] RM Berndt and CM Berndt, The World of the First Australians (1992) p 361. [17] Twining, W, ‘A Post-Westphalian Conception of Law’ (2003) 37 Law & Society Review at 250 [18] Ibid. [19] Tamanaha, A General Jurisprudence of Law and Society (2001) ch 7 page 114 [20] Australian Law Reform Commission, The Recognition of Aboriginal Customary Laws (Report 31, 1986) [21] Mabo and Others v Queensland (No. 2) [1992] HCA 23; (1992) 175 CLR 1