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 The Ethnic Conflict Research Digest |
2000, Vol. 3 No. 2 . |
The Future of Tradition: On Customary Law, Common Law and Legal Pluralism | |
Leon S. Sheleff | |
London: Frank Cass, 2000 512 pp. Index. Bibl. Hb.: £45.00/$64.50; ISBN 0-7146-4853-8; PB.: 0-7146-8012-5 | |
| Here we have a masterly, comprehensive and erudite survey of most of the legal issues which arise when a polity contains members of several ethnic communities and political strata whose central values differ from one another. Some would define a polity as the largest central government which contains more than one ethnic community - which distinguishes it from a tribe.
The values of each continuing community are reflected in possibly unwritten but well established "custom", codes of conduct and legal systems (e.g. Islam) which, within the polity, must find ways of co-existence. Polities differ in the degree to which they enforce the predominance of the state ethos and law; or find accommodations which allow co-existence. The situation is fraught with potential tension, misunderstanding, evolving case law - that is possibilities of conflict. It is thus a central theme for ethnic conflict research. Sheleff has mastered a broad sweep of examples, from colonial experiences (from which much of the sophisticated jurisprudence emerged) to modern day issues from Canada to India, and much more - and of course the underlying concepts of common law which provide the Roman Law under-pinning, and concepts such as the French idea of "personal law". Naturally, he concentrates on the usually understood concept of ethnic variation - but the principles he adduces can be and are applied to other sub-cultural elements, such as professional ethics and arbitration. He opens discussion of the modern intrusion of customary practices such as healing circles into the paraphernalia of state law and juridical practice. His sub-themes examine "The local tribe in the global village", land, family, holy ritual, women and children, the power of shame, and the issues involved in proving customary rule or "accounting for the past". He could perhaps have given more attention to the ideas of the jurist Julius Stone and the anthropologist Hoebel - that law is not about "justice" but about returning society to stability. There is an extensive bibliography. It is no criticism of Sheleff to remark that it is impossible for one writer to master the total literature on each of the almost infinite ethnographic examples. In this, he honourably follows Toynbee and Levi-Strauss. To take but one of many - the land issues of Fiji, much in the current news. His sources correctly point to the colonial inspired dominance of the practices of one tribal group amongst many in the creation of land law and land registration, and the problems thus created for the security of tenure of the non-indigenous Indian population - leading to intense political unrest. But there is much more to be said. First, the tensions are not limited to Fiji-Indian, but are a simmering source of political disruption among Fijians and Rotumans, behind the recent coup, and stimulating calls for Western Fiji and Rotuman independence. Second, in Western Fiji practice has simply ignored the rules of registration, permitting traditional dynamics in land ownership and use to over-ride the stasis of the official system. If Sheleff had delved deeply into this issue, and others, however, he could never have written his survey. Which leads me to a suggestion. Would that the book were available in on-line form. Would that specialists in specific areas could then communicate possible modifications, even newly arising data, to Sheleff. Would that Sheleff or his assistants could then amend his on-line text as a permanent but ever-amended almost universal record. This is the future of such work, for a valuable study such as this is worth continuous presentation and currency. | |
Cyril Belshaw, F.R.S.C. Vancouver. | |
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