The following post is not written in the 'academic style', just notes I use when discussing with students in my Indigenous Justice unit at Queensland University of Technology, arguments for and against extending the use of 'customary law', or what I prefer to call Indigenous Law. My apologies to colleagues if I haven't referenced as per the academic convention (as long as I've presented our ideas accurately!). Nor have I rewritten the piece to correct grammar, etc; instead it is written very much how it is spoken in class; in general, not specific terms. I've simply uploaded the notes as prepared for the lecture; in other words posted 'as is' in order to contribute to debate on this issue:
A Few Comments on Customary Law to my QUT Indigenous Justice Students
For JSB381 students to consider:
The term customary law: is something that should give you all pause to think; why is it that any other ‘law’ besides European (British) law is often described as ‘customary’?
This is an issue within ‘law’ and justice that has been pondered by great Indigenous theorists, jurist and thinkers. For example, the great Nigerian Criminologist, Biko Agozino refers to this type of ‘reasoning’ – that all European law is ‘the law’ while all others are ‘customary’ - as a continuation of the Imperialist Reasoning used to legitimise the colonisation of Indigenous peoples and the imposition of European legal jurisdiction over subjugated peoples.
The Maori jurist, Moana Jackson, goes a little further, describing this kind of representation of Indigenous law as being based upon racist assumptions of the superiority of Eurocentric law, and the baseness of the law of coloured folk; of its inherent weakness due to its not being written, codified or institutionalised. Building on the work of the legal Anthropologist Fitzgerald, who wrote about the mythology of law, we might describe these assumptions as forming the Great White Myth of Law, one based on the racist assumption of the inherent superiority of ‘White Ways’ due to a related belief that the legal system we now practice in Settler Societies is the end point of legal evolution; that is it the ‘best way’ of 'doing law and seeking justice'.
Let us take a moment to consider and dissect these notions:
1. That Indigenous law was not codified: we are able to demonstrate that this is pure myth; at the time of colonisation, Europeans were writing of the codified laws of the Dine (Navajo), and of the six Nations of the Iroquois peoples who straddled what is now the Eastern US/Canadian border, and who’s Confederation the founding fathers of the American constitution and the Republic, actually based that constitution upon (at least in part).
2. The myth of codification is based on an assumption that Indigenous law is inherently weak(er) than White Law because it was not written down; it was practiced and hand down thru generations orally. And yet we have 19th and 20th century European Anthropologists recording and reporting the sophisticated, orally derived legal processes of numerous First Nations; of Tohunga, legal specialists trained in linking genealogy with ‘cases’ that demonstrate precedence and an evolving jurisdiction, the supposed hallmark of the superior, codified Western European law.
3. Indigenous law is inferior because it is based in the distant past: things have changed, so therefore it is not applicable to the contemporary moment: and yet we see in Africa, over the past 2 decades, more and more jurisdictional autonomy being given to First Nations in various countries, to mould a contemporary justice system based on ‘ancient’ philosophies and practices, carried out via resurrected, localised justice institutions. We see in New Zealand over the same period (in a small number of largely rural areas), the resurrection of communal, marae-based justice processes, based on tikanga (think about Aroha Terry's marae-based justice process for dealing with sexual offending, practiced in the Waikato region in the 1990s onwards), blended with contemporary notions and practices of human rights, which yet again highlights the racism inherent in the assumption that Indigenous justice and cultural is incapable of ‘evolving and changing’, and incapable of being applicable to the modern world.
If this were so, then how do we explain the movement amongst Western, European jurisdictions to adopt so many of our justice philosophies and practices; FGC’s, Circles, significant elements of what they call restorative justice, etc? It is evident that continued moves by existing legal institutions, law makers, politicians and the like, to block the extension of jurisdictional autonomy to First Nations, has little to do with the inherent weakness of Indigenous law, or the inability of our peoples and culture to ‘evolve’, but instead has everything to do with maintaining the status quo, namely the hegemony of their way of law.
4. So, let's look closely at the law and legal institutions of contemporary Settler States: does the fact that it is written (in fact almost all contemporary Indigenous justice processes are now written and codified, yet again underlining the myth of our inability to grow and adapt), that it is codified and institutionalised make it inherently more just than Indigenous justice? If your answer is yes, then think about the growing numbers of exonerations being passed down in American, Canadian, New Zealand jurisdictions, and becoming a not so rare feature of Australian jurisdictions: decisions that come about, in the main (or in part, depending on your ideological persuasion!), because of judicial and police racism, classism and sexism. Think about the racist laws passed (or the laws and powers used in racist ways) that drive people of colour in to the system, or drive them ever deeper into it; e.g. the anti-drug laws of America, search and seizure laws in Great Britain targeting black youth, ‘move on’ and search laws in Australia, the NTER, and so on. Think about the massive amount of research evidence gathered by white criminologists and Indigenous researchers on the failings of our legal system; of its class, race and gender bias, of the myriad unjust sentences/decisions, and of the inhumanity of our correctional regimes….. consider all this body of evidence and think twice about arguing, as some do here in Australia, that Indigenous justice should not be promoted or extended because it promotes/supports child rape, violence against women, and is founded on archaic, inhumane punishments.
5. On the argument of the violence of Indigenous justice: we often hear or read non-Indigenous commentators saying that ‘customary law’ supports violence, that it is inhumane – let us be frank, in times past our responses to social harm were by today’s standards, ‘inhumane’, but as previously discussed, this presupposes that those same penalties will be employed in a contemporary, reconstituted Indigenous legal system. In others words, those espousing such views are falling back on the tired, racist assumptions about our inability to change with the times. And with all the injustice and inhumanity practiced in Western jurisdictions, as stated previously, can anyone truly argue that the contemporary system is always just and humane?
Lastly, on the argument that Indigenous law supports violence against women and children, we have no evidence to that effect so we can’t argue definitively either way on this matter: unfortunately, what we most definitely have is evidence that western influences have permeated some Indigenous communities, re: ‘imported’ notions and practices of gender and familial relations, power and authority, that have framed ‘institutionalised’ violence within our communities (and yes, a trend we must acknowledge, own and respond to ourselves).