May 23, 2006

Aboriginal Customary Law

Posted in Uncategorized at 10:13 pm by thelawthoughts

I find it so interesting to read about cultural relativist arguments, pro or con, such as that surrounding customary Aboriginal law and our tolerance thereof.

Essentially, the cultural relativist says it is ok for Aboriginal men to rape small girls because ‘that is the way we do it’. It has been used to shield people from consequences of performing female genital mutilation and the like in Africa. Proponents argue that it is not up to ‘us’ to impose ‘our’ culture on ‘them’.

Critics argue that there are certain universal standards below which no culture can fall below. This type of argument goes along with ideas like universal rights. Basically, it says that ‘you’ can keep ‘your’ cultural practices as long as they meet universally recognised baselines, such as not being allowed to rape people.

I think this falls short of the extreme kind of argument, which runs like ‘the West is civilised, we know how to behave, you don’t, therefore you can’t do X’. I don’t like that argument either.

I, for one, am against cultural relativism where it permits violation of these basic human rights. However, are there cultural practices which, if we allow them to happen, do not violate those rights? Are we only interested in practices that violate what we say are basic human rights? Who gets to decide?

In this case, my opinion is that Aboriginal law should not be used for criminals to hide behind, or to achieve indemnity from prosecution. Laws allowing these practices to continue do not exist in Australia and, whilst I am all for allowing Aboriginals to pursue their heritage, I don’t think the tolerance of the legal system should extend that far. What we do need to do is work with Aboriginal communities to discover which parts of their law can be successfully integrated into the Anglo model, so that practices which do not harm can be allowed to continue as a matter of law, and practices which conflict with, for example, Anglo criminal law, should not be allowed to continue.

What do people think about all that?

UPDATED: The judge in this case has admitted that he made a sentencing mistake, in that he took too much account of customary factors, and not enough of the ‘heinous crime’ that was committed. Very interesting, not often judges make those types of comments.

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2 Comments »

  1. Eric Grunin said,

    “Basically, it says that ‘you’ can keep ‘your’ cultural practices as long as they meet universally recognised baselines.”

    I think you mean “don’t breach universally recognized taboos;” but your logic is circular regardless. Any persistent practice is de facto not ‘universally’ rejected.

    In any case, a quick search suggests that, fortunately, the issue at hand isn’t about ‘cultural traditions.’ Here is another point of view.

  2. I see your point, and I agree that universal is maybe not the best term to use.

    What about ‘recognised by customary international law’ or ‘crimes recognised by the Rome Statute’ or similar. Even ‘almost universal’. I’m happy to go with that if you are.

    My argument about using such practices to gain immunity from prosecution doesn’t change.


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