The Harmonisation Of The Common Law And The Indigenous Law

Author : Mei Lin Ng
Publisher :
ISBN 13 :
Total Pages : 986 pages
Book Rating : 4.:/5 (891 download)

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Download or read book In Search of the 'golden Thread' written by Mei Lin Ng and published by . This book was released on 2006 with total page 986 pages. Available in PDF, EPUB and Kindle. Book excerpt: Abstract : The thesis explores the interactions of the common law with indigenous law in three jurisdictions: Australia, New Zealand and Canada. Case law involving family, criminal and land law is examined in detail, to establish how the common law has interacted with indigenous law. Two aspects of common law interactions are explored: judicial approaches to the recognition of indigenous law; and, judicial perceptions about the relationship between the common law and indigenous law. Courts faced with indigenous law have taken one of three approaches to recognising it. These are respectively referred to in the thesis as the non-recognition approach, the accommodation approach and the recognition approach. With regard to judicial perceptions about the relationship between the common law and indigenous law, the case law reveals seven different perceptions. They are: no relationship; mere acknowledgement; separate but capable of recognition; adjustment; assimilation/domination; assimilation/search for partnership; and absorption. Where a relationship is acknowledged, although perceptions may vary, essentially they can be placed in one of three categories. Courts may regard the relationship as one between two separate bodies of law, with points of intersection. They may regard it as one of convergence, perhaps even partial integration, between separate legal traditions. Finally, they may regard indigenous law as having been absorbed into the dominant legal system. Courts with this latter perception regard indigenous law as analogous to English local customs. Having identified more than one approach to the recognition of indigenous law, consideration is given to the circumstances in which the approaches are used, exploring differences arising out of the subject area in question and the jurisdiction in which the case is considered. The thesis also demonstrates that some correlation exists between the judicial approach to recognition of indigenous law and judicial perceptions about the relationship of the common law with indigenous law, though this correlation cannot be demonstrated in all cases. Lastly, the capacity of the common law to recognise changes to indigenous law is considered, where the case law reveals that both the judicial approach to recognition of indigenous law, and judicial perceptions about the relationship between the common law and indigenous law have a bearing on the capacity of the courts to recognise change. The thesis demonstrates that both the judicial approach to recognition of indigenous law and judicial perceptions about the relationship between the common law and indigenous law affect common law interactions with indigenous law.