Monique Deveaux
- Published in print:
- 2006
- Published Online:
- January 2007
- ISBN:
- 9780199289790
- eISBN:
- 9780191711022
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199289790.003.0007
- Subject:
- Political Science, Democratization
Nowhere are the difficulties of protecting both the right to enjoy one’s culture and the right to sexual equality protections better illuminated than in the case of post-Apartheid South Africa. This ...
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Nowhere are the difficulties of protecting both the right to enjoy one’s culture and the right to sexual equality protections better illuminated than in the case of post-Apartheid South Africa. This chapter discusses efforts to reconcile constitutional recognition of African customary law (and to a lesser extent Muslim personal law) with formal protections for women’s sexual equality. It also presents the debate and consultations over the reform of African customary marriage (in the late 1990s in South Africa) as a good example of open-ended democratic deliberation grounded in principles of democratic legitimacy and political inclusion. It is this kind of model of deliberation that offers up the best solution to conflicts of culture, including those over gender roles, in socially plural, liberal constitutional democracies.Less
Nowhere are the difficulties of protecting both the right to enjoy one’s culture and the right to sexual equality protections better illuminated than in the case of post-Apartheid South Africa. This chapter discusses efforts to reconcile constitutional recognition of African customary law (and to a lesser extent Muslim personal law) with formal protections for women’s sexual equality. It also presents the debate and consultations over the reform of African customary marriage (in the late 1990s in South Africa) as a good example of open-ended democratic deliberation grounded in principles of democratic legitimacy and political inclusion. It is this kind of model of deliberation that offers up the best solution to conflicts of culture, including those over gender roles, in socially plural, liberal constitutional democracies.
Jason Ralph
- Published in print:
- 2007
- Published Online:
- September 2007
- ISBN:
- 9780199214310
- eISBN:
- 9780191706615
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199214310.001.0001
- Subject:
- Political Science, International Relations and Politics
This book is among the first to address the issues raised by the International Criminal Court from an International Relations perspective. By clearly outlining a theoretical framework to interpret ...
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This book is among the first to address the issues raised by the International Criminal Court from an International Relations perspective. By clearly outlining a theoretical framework to interpret these issues, it makes a significant contribution to the English School's study of international society. More specifically, it offers a concise definition of ‘world society’ and thus helps to resolve a longstanding problem in international theory. This groundbreaking conceptual work is supported by an indepth empirical analysis of American opposition to the ICC. The book goes beyond the familiar arguments related to national interests and argues that the Court has exposed the extent to which American notions of accountability are tied to the nation‐state. Where other democracies are willing to renegotiate their social contract because they see themselves as part of world society, the US protects its particular contract with ‘the American people’ because it offers a means of distinguishing that nation and its democracy from the rest of the world. In opposing the ICC, therefore, the US seeks to defend a society of states because this kind of society can accommodate American exceptionalism and advance particular US interests. This ‘sovereigntist’, or more accurately ‘Americanist’, influence is further illustrated in chapters on the customary international law, universal jurisdiction, transatlantic relations and US policy on international humanitarian law in the war on terror. The book concludes by evoking E.H. Carr's criticism of those great powers who claim that a harmony exists between their particular interests and those of wider society. It also recalls his argument that great powers sometimes need to compromise and in this context it argues that support for the ICC is a more effective means of fulfilling America's purpose and a less costly sacrifice for the US to make than that demanded by the ‘Americanist’ policy of nation‐building.Less
This book is among the first to address the issues raised by the International Criminal Court from an International Relations perspective. By clearly outlining a theoretical framework to interpret these issues, it makes a significant contribution to the English School's study of international society. More specifically, it offers a concise definition of ‘world society’ and thus helps to resolve a longstanding problem in international theory. This groundbreaking conceptual work is supported by an indepth empirical analysis of American opposition to the ICC. The book goes beyond the familiar arguments related to national interests and argues that the Court has exposed the extent to which American notions of accountability are tied to the nation‐state. Where other democracies are willing to renegotiate their social contract because they see themselves as part of world society, the US protects its particular contract with ‘the American people’ because it offers a means of distinguishing that nation and its democracy from the rest of the world. In opposing the ICC, therefore, the US seeks to defend a society of states because this kind of society can accommodate American exceptionalism and advance particular US interests. This ‘sovereigntist’, or more accurately ‘Americanist’, influence is further illustrated in chapters on the customary international law, universal jurisdiction, transatlantic relations and US policy on international humanitarian law in the war on terror. The book concludes by evoking E.H. Carr's criticism of those great powers who claim that a harmony exists between their particular interests and those of wider society. It also recalls his argument that great powers sometimes need to compromise and in this context it argues that support for the ICC is a more effective means of fulfilling America's purpose and a less costly sacrifice for the US to make than that demanded by the ‘Americanist’ policy of nation‐building.
Jacob T. Levy
- Published in print:
- 2000
- Published Online:
- October 2005
- ISBN:
- 9780198297703
- eISBN:
- 9780191602948
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/019829770X.003.0012
- Subject:
- Political Science, Political Theory
Three broad kinds of incorporation of indigenous law in a multicultural society are described: customary law, common law, and self‐government. These modes of incorporation have different internal ...
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Three broad kinds of incorporation of indigenous law in a multicultural society are described: customary law, common law, and self‐government. These modes of incorporation have different internal logics, different moral and political implications, and different resulting legal rights for indigenous people. The chapter discusses these differences with reference to the experience of some societies that have incorporated indigenous law in these various ways. Inconsistencies in the treatment of indigenous law, and its treatment by hybrid approaches are also discussed, as is religious law.Less
Three broad kinds of incorporation of indigenous law in a multicultural society are described: customary law, common law, and self‐government. These modes of incorporation have different internal logics, different moral and political implications, and different resulting legal rights for indigenous people. The chapter discusses these differences with reference to the experience of some societies that have incorporated indigenous law in these various ways. Inconsistencies in the treatment of indigenous law, and its treatment by hybrid approaches are also discussed, as is religious law.
Jacob T. Levy
- Published in print:
- 2000
- Published Online:
- November 2003
- ISBN:
- 9780198297123
- eISBN:
- 9780191599767
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/0198297122.003.0007
- Subject:
- Political Science, Political Theory
Indigenous, and also religious, legal codes can be and have been incorporated into the legal systems of states in a number of ways. These include common‐law incorporation, which recognizes culturally ...
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Indigenous, and also religious, legal codes can be and have been incorporated into the legal systems of states in a number of ways. These include common‐law incorporation, which recognizes culturally distinct ways of establishing rights that are known to the general law, such as marriage and property rights; customary incorporation, which directly applies and enforces the customary rights, privileges, and duties associated with the relevant legal tradition; and self‐government, which grants legal status to the group to make, and revise, its laws on a territorial basis. Hybrid forms have often represented hypocrisy on the states’ part, according to indigenous peoples, the burdens of all these and the benefits of none. The inalienability of indigenous land against a generally common‐law background is such a hypocrisy.Less
Indigenous, and also religious, legal codes can be and have been incorporated into the legal systems of states in a number of ways. These include common‐law incorporation, which recognizes culturally distinct ways of establishing rights that are known to the general law, such as marriage and property rights; customary incorporation, which directly applies and enforces the customary rights, privileges, and duties associated with the relevant legal tradition; and self‐government, which grants legal status to the group to make, and revise, its laws on a territorial basis. Hybrid forms have often represented hypocrisy on the states’ part, according to indigenous peoples, the burdens of all these and the benefits of none. The inalienability of indigenous land against a generally common‐law background is such a hypocrisy.
Jason Ralph
- Published in print:
- 2007
- Published Online:
- September 2007
- ISBN:
- 9780199214310
- eISBN:
- 9780191706615
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199214310.003.0002
- Subject:
- Political Science, International Relations and Politics
This chapter examines why legal positivism emphasises the importance of sovereign consent and relates it to the pluralist conception of international society introduced in the previous chapter. This ...
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This chapter examines why legal positivism emphasises the importance of sovereign consent and relates it to the pluralist conception of international society introduced in the previous chapter. This is contrasted with a solidarist conception that identifies sources of law in processes that override the principle of sovereign consent. The chapter also examines the specific and contested role that peremptory norms play in the constitution of international society. Finally, it relates this debate to the contemporary critique of customary international law within American academia and within certain parts of the political and judicial branches of US government. It illustrates this with reference to the debate on the Alien Tort Claims Act and to documents claiming executive privilege in the war on terror.Less
This chapter examines why legal positivism emphasises the importance of sovereign consent and relates it to the pluralist conception of international society introduced in the previous chapter. This is contrasted with a solidarist conception that identifies sources of law in processes that override the principle of sovereign consent. The chapter also examines the specific and contested role that peremptory norms play in the constitution of international society. Finally, it relates this debate to the contemporary critique of customary international law within American academia and within certain parts of the political and judicial branches of US government. It illustrates this with reference to the debate on the Alien Tort Claims Act and to documents claiming executive privilege in the war on terror.
Sandra F. Joireman
- Published in print:
- 2011
- Published Online:
- September 2011
- ISBN:
- 9780199782482
- eISBN:
- 9780199897209
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199782482.001.0001
- Subject:
- Political Science, Political Theory
Governments, farmers, homeowners, and academics around the world agree that property rights are important. But what happens when the state fails to enforce them? This book describes how a variety of ...
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Governments, farmers, homeowners, and academics around the world agree that property rights are important. But what happens when the state fails to enforce them? This book describes how a variety of non-state actors define and enforce property rights in Sub-Saharan Africa when the state is weak or absent. Examining the roles played by traditional leaders, entrepreneurial bureaucrats, NGOs, and specialists in violence, this text argues that organic institutions can be helpful or predatory, depending on their incentives and context. Because organically developed institutions are not assumed to be either good or bad, the book develops a set of measurement criteria to assess which types of property regimes and enforcement mechanisms are helpful and which are harmful to social welfare. It focuses on the politics of property rights enforcement in both rural and urban communities in Ghana, Kenya, and Uganda. Describing what happens in specific communities, the book provocatively challenges the fallacy of legalism—the idea that changes in property law will lead to changes in property rights on the ground—arguing instead that states which change their property laws face challenges in implementation when they do not control the authority structures in local communities. The book provides new information about competitors to state power in Sub-Saharan Africa and the challenges of providing secure and defensible property rights.Less
Governments, farmers, homeowners, and academics around the world agree that property rights are important. But what happens when the state fails to enforce them? This book describes how a variety of non-state actors define and enforce property rights in Sub-Saharan Africa when the state is weak or absent. Examining the roles played by traditional leaders, entrepreneurial bureaucrats, NGOs, and specialists in violence, this text argues that organic institutions can be helpful or predatory, depending on their incentives and context. Because organically developed institutions are not assumed to be either good or bad, the book develops a set of measurement criteria to assess which types of property regimes and enforcement mechanisms are helpful and which are harmful to social welfare. It focuses on the politics of property rights enforcement in both rural and urban communities in Ghana, Kenya, and Uganda. Describing what happens in specific communities, the book provocatively challenges the fallacy of legalism—the idea that changes in property law will lead to changes in property rights on the ground—arguing instead that states which change their property laws face challenges in implementation when they do not control the authority structures in local communities. The book provides new information about competitors to state power in Sub-Saharan Africa and the challenges of providing secure and defensible property rights.
Erika J Techera
- Published in print:
- 2009
- Published Online:
- February 2010
- ISBN:
- 9780199580910
- eISBN:
- 9780191723025
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199580910.003.0009
- Subject:
- Law, Comparative Law
This chapter examines the theoretical bases that may be used to support the formal recognition of customary law, and to illustrate why it should be acknowledged as an important source of law in the ...
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This chapter examines the theoretical bases that may be used to support the formal recognition of customary law, and to illustrate why it should be acknowledged as an important source of law in the legally pluralist post-colonial societies of the South Pacific. It shows that the recognition of customary law in the postcolonial societies of the South Pacific finds theoretical support in the concept of legal pluralism, principles of human and indigenous rights, and also environmental justice. However, there is little doubt that customary law has been eroded by colonization, and faces a modern challenge in globalization and its renewed interest in uniformity and homogenization. Conversely, the globalization of law, and more importantly, local responses to it, can offer an opportunity to access a broader landscape of laws leading to adaptation, transformation, and new forms of governance. Older forms of law and regulation can be resurrected, reinvigorated, and reinvented in order to achieve contemporary goals and address current issues. This transformative process can be started from above but must also be locally driven from below.Less
This chapter examines the theoretical bases that may be used to support the formal recognition of customary law, and to illustrate why it should be acknowledged as an important source of law in the legally pluralist post-colonial societies of the South Pacific. It shows that the recognition of customary law in the postcolonial societies of the South Pacific finds theoretical support in the concept of legal pluralism, principles of human and indigenous rights, and also environmental justice. However, there is little doubt that customary law has been eroded by colonization, and faces a modern challenge in globalization and its renewed interest in uniformity and homogenization. Conversely, the globalization of law, and more importantly, local responses to it, can offer an opportunity to access a broader landscape of laws leading to adaptation, transformation, and new forms of governance. Older forms of law and regulation can be resurrected, reinvigorated, and reinvented in order to achieve contemporary goals and address current issues. This transformative process can be started from above but must also be locally driven from below.
Andrew T Guzman
- Published in print:
- 2008
- Published Online:
- January 2008
- ISBN:
- 9780195305562
- eISBN:
- 9780199867004
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780195305562.003.0005
- Subject:
- Political Science, International Relations and Politics
This chapter applies the theory of international law (developed earlier in the book) to customary international law. The way in which reputation, retaliation, and reciprocity support a body of less ...
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This chapter applies the theory of international law (developed earlier in the book) to customary international law. The way in which reputation, retaliation, and reciprocity support a body of less formalized legal rules, that operate more forcefully than mere norms, is explained. The chapter reconsiders traditional views of custom and in particular the requirements of opinio juris and general practice, explaining why a better definition of custom would demand on the former.Less
This chapter applies the theory of international law (developed earlier in the book) to customary international law. The way in which reputation, retaliation, and reciprocity support a body of less formalized legal rules, that operate more forcefully than mere norms, is explained. The chapter reconsiders traditional views of custom and in particular the requirements of opinio juris and general practice, explaining why a better definition of custom would demand on the former.
Anja Seibert-Fohr
- Published in print:
- 2009
- Published Online:
- February 2010
- ISBN:
- 9780199569328
- eISBN:
- 9780191721502
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199569328.003.0007
- Subject:
- Law, Human Rights and Immigration, Criminal Law and Criminology
While the previous part of the book considers treaty law this chapter turns to the question of whether customary international law provides for a duty to prosecute serious human rights violations. It ...
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While the previous part of the book considers treaty law this chapter turns to the question of whether customary international law provides for a duty to prosecute serious human rights violations. It departs from an analysis of the protection of aliens as a precursor of human rights law and turns to contemporary concepts of general international law. Reference is made to international criminal law, to the emerging concept of State responsibility for human rights violations, and its relevance for criminal procedure. The chapter critically evaluates the idea of state crimes in international law. It also considers universal jurisdiction and the concept of aut dedere aut judicare. Finally, a description of current State practice highlights recent standards for post-conflict justice and explains the limited scope for amnesties. The chapter concludes with a summary.Less
While the previous part of the book considers treaty law this chapter turns to the question of whether customary international law provides for a duty to prosecute serious human rights violations. It departs from an analysis of the protection of aliens as a precursor of human rights law and turns to contemporary concepts of general international law. Reference is made to international criminal law, to the emerging concept of State responsibility for human rights violations, and its relevance for criminal procedure. The chapter critically evaluates the idea of state crimes in international law. It also considers universal jurisdiction and the concept of aut dedere aut judicare. Finally, a description of current State practice highlights recent standards for post-conflict justice and explains the limited scope for amnesties. The chapter concludes with a summary.
William Boothby
- Published in print:
- 2009
- Published Online:
- May 2009
- ISBN:
- 9780199569946
- eISBN:
- 9780191705250
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199569946.001.0001
- Subject:
- Law, Public International Law
This book is about the law of armed conflict governing the use of weapons. It interprets these rules and discusses the factors influencing future developments in weapons law. After relating the ...
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This book is about the law of armed conflict governing the use of weapons. It interprets these rules and discusses the factors influencing future developments in weapons law. After relating the historical evolution of weapons law, the book discusses the important customary principles that are the foundation of the subject, and gives a condensed account of the law that exists on the use of weapons. Thereafter, the treaties and customary rules applying to particular categories of weapon are stated and explained article by article and rule by rule in a series of chapters. The legal review of weapons is also discussed, both from the perspective of how such reviews should be undertaken and how such a system should be established. Having stated the law as it is, the book then discusses the way in which this dynamic field of international law develops in the light of various influences. In the final chapter, the prospects for future rule change are discussed. The focus of this book is thus more specific and detailed than that of the more general texts on the law of armed conflict. Throughout this book, a conscious effort has been made to explain the law as it applies to all states.Less
This book is about the law of armed conflict governing the use of weapons. It interprets these rules and discusses the factors influencing future developments in weapons law. After relating the historical evolution of weapons law, the book discusses the important customary principles that are the foundation of the subject, and gives a condensed account of the law that exists on the use of weapons. Thereafter, the treaties and customary rules applying to particular categories of weapon are stated and explained article by article and rule by rule in a series of chapters. The legal review of weapons is also discussed, both from the perspective of how such reviews should be undertaken and how such a system should be established. Having stated the law as it is, the book then discusses the way in which this dynamic field of international law develops in the light of various influences. In the final chapter, the prospects for future rule change are discussed. The focus of this book is thus more specific and detailed than that of the more general texts on the law of armed conflict. Throughout this book, a conscious effort has been made to explain the law as it applies to all states.
Francesco Parisi and Vincy Fon
- Published in print:
- 2009
- Published Online:
- January 2009
- ISBN:
- 9780195374155
- eISBN:
- 9780199871834
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780195374155.001.0001
- Subject:
- Law, Constitutional and Administrative Law
This book explores the relative advantages and limits of alternative sources of law. It views the sources of law through a law and economics lens, and considers the important issue of institutional ...
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This book explores the relative advantages and limits of alternative sources of law. It views the sources of law through a law and economics lens, and considers the important issue of institutional design in lawmaking. It considers the respective advantages and proper scope of application of four fundamental sources of law: legislation, judge-made law, customary law, and international law. The defining features of these four sources of law are examined using the formal methods of public choice theory: lawmaking through legislation; lawmaking through adjudication; lawmaking through practice; and lawmaking through agreement. The book begins by examining the sources of law dependent on collective political decision-making, such as legislation. Multiple issues are considered, such as optimal specificity of law, optimal timing of legal intervention and optimal territorial scope of law, and include a thorough discussion on the sources of law derived from judges' decisions, such as common law. It provides an extensive study on the roles of litigation and judicial path-dependence on judge-made law, biases in the evolution of legal remedies through litigation, and the effect of alternative doctrines of legal precedent, such as stare decisis and jurisprudence constante. It also considers the customary sources of law, with special attention on the mechanisms that determine their emergence and evolution, and explores sources of law derived from international treaties and conventions. The Economics of Lawmaking is the first systematic law and economics treatment of this field and will shed new light on the process of lawmaking.Less
This book explores the relative advantages and limits of alternative sources of law. It views the sources of law through a law and economics lens, and considers the important issue of institutional design in lawmaking. It considers the respective advantages and proper scope of application of four fundamental sources of law: legislation, judge-made law, customary law, and international law. The defining features of these four sources of law are examined using the formal methods of public choice theory: lawmaking through legislation; lawmaking through adjudication; lawmaking through practice; and lawmaking through agreement. The book begins by examining the sources of law dependent on collective political decision-making, such as legislation. Multiple issues are considered, such as optimal specificity of law, optimal timing of legal intervention and optimal territorial scope of law, and include a thorough discussion on the sources of law derived from judges' decisions, such as common law. It provides an extensive study on the roles of litigation and judicial path-dependence on judge-made law, biases in the evolution of legal remedies through litigation, and the effect of alternative doctrines of legal precedent, such as stare decisis and jurisprudence constante. It also considers the customary sources of law, with special attention on the mechanisms that determine their emergence and evolution, and explores sources of law derived from international treaties and conventions. The Economics of Lawmaking is the first systematic law and economics treatment of this field and will shed new light on the process of lawmaking.
R. Aída Hernández Castillo
- Published in print:
- 2002
- Published Online:
- January 2005
- ISBN:
- 9780199256457
- eISBN:
- 9780191601989
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/0199256454.003.0012
- Subject:
- Political Science, Democratization
This chapter examines the ways national law and indigenous customary law respond to the struggle of indigenous women in Chiapas, Mexico for rights within the new macro-political context of ...
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This chapter examines the ways national law and indigenous customary law respond to the struggle of indigenous women in Chiapas, Mexico for rights within the new macro-political context of multiculturalism. It is argued that certain academic paradigms used to analyse indigenous normative systems have contributed to creating an image of customary law as a harmonious space free of contradiction, and in isolation from national law. This is an image that can impede the development of proposals for reform aimed at increasing access to justice for indigenous women.Less
This chapter examines the ways national law and indigenous customary law respond to the struggle of indigenous women in Chiapas, Mexico for rights within the new macro-political context of multiculturalism. It is argued that certain academic paradigms used to analyse indigenous normative systems have contributed to creating an image of customary law as a harmonious space free of contradiction, and in isolation from national law. This is an image that can impede the development of proposals for reform aimed at increasing access to justice for indigenous women.
Sandra F. Joireman
- Published in print:
- 2011
- Published Online:
- September 2011
- ISBN:
- 9780199782482
- eISBN:
- 9780199897209
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199782482.003.0002
- Subject:
- Political Science, Political Theory
Customary tenure systems control the allocation of land over 75 percent of the land area of Sub-Saharan Africa, bringing with them customary enforcement regimes. This chapter addresses the genesis of ...
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Customary tenure systems control the allocation of land over 75 percent of the land area of Sub-Saharan Africa, bringing with them customary enforcement regimes. This chapter addresses the genesis of customary tenure regimes in the British system of Indirect Rule and focuses on the persistence of customary land in the contemporary era and its interdependence with customary law and customary leaders. An illustration of the combination of authority and property in Ghana case is discussed and contrasted to Ethiopia, which was not colonized and does not have the same dual legal system or power of customary leaders. Winners and losers from traditional tenure systems are identified with particular attention given to women and migrants. Women and migrants are often caught between constitutional equality guarantees and customary tenure systems that do not recognize them as members with rights to possess and control land. Customary tenure regimes are then compared to state institutions in their provision of social welfare through land administration and adjudication systems.Less
Customary tenure systems control the allocation of land over 75 percent of the land area of Sub-Saharan Africa, bringing with them customary enforcement regimes. This chapter addresses the genesis of customary tenure regimes in the British system of Indirect Rule and focuses on the persistence of customary land in the contemporary era and its interdependence with customary law and customary leaders. An illustration of the combination of authority and property in Ghana case is discussed and contrasted to Ethiopia, which was not colonized and does not have the same dual legal system or power of customary leaders. Winners and losers from traditional tenure systems are identified with particular attention given to women and migrants. Women and migrants are often caught between constitutional equality guarantees and customary tenure systems that do not recognize them as members with rights to possess and control land. Customary tenure regimes are then compared to state institutions in their provision of social welfare through land administration and adjudication systems.
Crawford Emily
- Published in print:
- 2010
- Published Online:
- May 2010
- ISBN:
- 9780199578962
- eISBN:
- 9780191722608
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199578962.003.0001
- Subject:
- Law, Human Rights and Immigration, Public International Law
The first chapter of this book examines how the traditional legal distinction between international and non-international armed conflict has become, in practice, increasingly blurred through the last ...
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The first chapter of this book examines how the traditional legal distinction between international and non-international armed conflict has become, in practice, increasingly blurred through the last century, to the point where it seems specious to continue to assert the primacy of the distinction. A number of factors, both legal and practical, have contributed to this change in the status quo. The first chapter of this book establishes that the law of armed conflict has converged to the point where there is a substantial body of law equally applicable in both international and non-international armed conflicts.Less
The first chapter of this book examines how the traditional legal distinction between international and non-international armed conflict has become, in practice, increasingly blurred through the last century, to the point where it seems specious to continue to assert the primacy of the distinction. A number of factors, both legal and practical, have contributed to this change in the status quo. The first chapter of this book establishes that the law of armed conflict has converged to the point where there is a substantial body of law equally applicable in both international and non-international armed conflicts.
Jan Wouters and Cedric Ryngaert
- Published in print:
- 2009
- Published Online:
- May 2009
- ISBN:
- 9780199565221
- eISBN:
- 9780191705281
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199565221.003.0006
- Subject:
- Law, Human Rights and Immigration, Public International Law
This chapter looks at the ‘human rights method’ of ascertaining customary international law, with its emphasis on opinio juris over state practice, with a favourable eye. It argues that while it is ...
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This chapter looks at the ‘human rights method’ of ascertaining customary international law, with its emphasis on opinio juris over state practice, with a favourable eye. It argues that while it is primarily a doctrinal construct, it actually draws support from the International Court of Justice's 1986 Nicaragua judgment. Section 2, drawing in particular on a study by the International Committee of the Red Cross, shows how this method works in practice in the field of international humanitarian law. Section 3 attempts to conceptualize the specific character of human rights and humanitarian customary law formation as opposed to classical positivist customary law formation. The final section focuses on the applicability of modern positivism beyond the strict human rights and humanitarian law fields. It argues that the more important the common interests of states or humanity are, the greater the weight that may be attached to opinio juris as opposed to state practice. If the stakes are high, inconsistent state practice may be glossed over, and a high premium may be put on states' statements and declarations, inter alia in multilateral fora, in identifying customary law combined with general principles of law.Less
This chapter looks at the ‘human rights method’ of ascertaining customary international law, with its emphasis on opinio juris over state practice, with a favourable eye. It argues that while it is primarily a doctrinal construct, it actually draws support from the International Court of Justice's 1986 Nicaragua judgment. Section 2, drawing in particular on a study by the International Committee of the Red Cross, shows how this method works in practice in the field of international humanitarian law. Section 3 attempts to conceptualize the specific character of human rights and humanitarian customary law formation as opposed to classical positivist customary law formation. The final section focuses on the applicability of modern positivism beyond the strict human rights and humanitarian law fields. It argues that the more important the common interests of states or humanity are, the greater the weight that may be attached to opinio juris as opposed to state practice. If the stakes are high, inconsistent state practice may be glossed over, and a high premium may be put on states' statements and declarations, inter alia in multilateral fora, in identifying customary law combined with general principles of law.
Larissa van den Herik
- Published in print:
- 2010
- Published Online:
- January 2011
- ISBN:
- 9780199591466
- eISBN:
- 9780191595585
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199591466.003.0005
- Subject:
- Law, Human Rights and Immigration, Public International Law
This chapter examines the customary international law basis for the development of the definition of crimes against humanity before the ad hoc Tribunals. It argues that the approach taken by the ad ...
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This chapter examines the customary international law basis for the development of the definition of crimes against humanity before the ad hoc Tribunals. It argues that the approach taken by the ad hoc Tribunals to the identification of custom has been inconsistent and at times has relied on questionable deductions from case-law. Close attention is placed on the domestic case-law deemed to be representative of opinio juris on the elements of the offence, such as the nexus with an armed conflict, the presence of discriminatory intent, and the requirement of a specific state policy or plan. The chapter shows that in a good number of instances the case-law cited does not support the conclusion reached, thereby illustrating that this flexible approach to customary law is being used not as a source of law but rather as a possible means of legitimizing pre-ordained judicial determinations.Less
This chapter examines the customary international law basis for the development of the definition of crimes against humanity before the ad hoc Tribunals. It argues that the approach taken by the ad hoc Tribunals to the identification of custom has been inconsistent and at times has relied on questionable deductions from case-law. Close attention is placed on the domestic case-law deemed to be representative of opinio juris on the elements of the offence, such as the nexus with an armed conflict, the presence of discriminatory intent, and the requirement of a specific state policy or plan. The chapter shows that in a good number of instances the case-law cited does not support the conclusion reached, thereby illustrating that this flexible approach to customary law is being used not as a source of law but rather as a possible means of legitimizing pre-ordained judicial determinations.
Alexander Orakhelashvili
- Published in print:
- 2008
- Published Online:
- January 2009
- ISBN:
- 9780199546220
- eISBN:
- 9780191720000
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199546220.003.0005
- Subject:
- Law, Public International Law
Having identified consensual positivism as the basis of international legal reasoning, this chapter examines the consensual basis of customary rules. After identifying opinio juris as an expression ...
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Having identified consensual positivism as the basis of international legal reasoning, this chapter examines the consensual basis of customary rules. After identifying opinio juris as an expression of consent, it proceeds to examine theories that come up with explaining customary law other than on the basis of consent, and also focuses on side aspects of custom-generations, such as the issues of persistent objection, new States and regional customary law. The problem of inherent rules is addressed which combines positivist and extra-positivist reasoning, ultimately to back up the effectiveness of existing legal regulation.Less
Having identified consensual positivism as the basis of international legal reasoning, this chapter examines the consensual basis of customary rules. After identifying opinio juris as an expression of consent, it proceeds to examine theories that come up with explaining customary law other than on the basis of consent, and also focuses on side aspects of custom-generations, such as the issues of persistent objection, new States and regional customary law. The problem of inherent rules is addressed which combines positivist and extra-positivist reasoning, ultimately to back up the effectiveness of existing legal regulation.
Gordon Woodman
- Published in print:
- 2009
- Published Online:
- February 2010
- ISBN:
- 9780199568666
- eISBN:
- 9780191721595
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199568666.003.0004
- Subject:
- Law, Public International Law
This chapter considers some of the difficulties in determining what was the law of Pitcairn at the time the offences were committed and tried. The law of Pitcairn is not necessarily the same as the ...
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This chapter considers some of the difficulties in determining what was the law of Pitcairn at the time the offences were committed and tried. The law of Pitcairn is not necessarily the same as the law of England. So it needed to be determined on what basis, if any, the English Sexual Offences Act 1956, under which the defendants were prosecuted, applied to Pitcairn. The criteria for this decision are provided by the common law — the interaction of the common law and Acts of the UK Parliament is thus crucial to the question. And this in turn raises the questions whether the common law is the same in whatever jurisdiction it operates, and to what extent the common law itself is ‘customary law’, and whether, alongside the common law, a system of customary law can operate. The chapter expands on the point that the Judicial Committee of the Privy Council was prepared to accept the statement by the Crown as to the status of Pitcairn as a settled colony, exploring the implications if the judges had taken a less deferential line on this. It discusses the abuse of process point, taking on the ‘ignorance of the law is no excuse’ doctrine.Less
This chapter considers some of the difficulties in determining what was the law of Pitcairn at the time the offences were committed and tried. The law of Pitcairn is not necessarily the same as the law of England. So it needed to be determined on what basis, if any, the English Sexual Offences Act 1956, under which the defendants were prosecuted, applied to Pitcairn. The criteria for this decision are provided by the common law — the interaction of the common law and Acts of the UK Parliament is thus crucial to the question. And this in turn raises the questions whether the common law is the same in whatever jurisdiction it operates, and to what extent the common law itself is ‘customary law’, and whether, alongside the common law, a system of customary law can operate. The chapter expands on the point that the Judicial Committee of the Privy Council was prepared to accept the statement by the Crown as to the status of Pitcairn as a settled colony, exploring the implications if the judges had taken a less deferential line on this. It discusses the abuse of process point, taking on the ‘ignorance of the law is no excuse’ doctrine.
Menno T. Kamminga and Martin Scheinin (eds)
- Published in print:
- 2009
- Published Online:
- May 2009
- ISBN:
- 9780199565221
- eISBN:
- 9780191705281
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199565221.001.0001
- Subject:
- Law, Human Rights and Immigration, Public International Law
Traditional international law aims to protect the values and interests of states. The rapidly increasing corpus of international human rights law (including international humanitarian law and ...
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Traditional international law aims to protect the values and interests of states. The rapidly increasing corpus of international human rights law (including international humanitarian law and international criminal law) increasingly challenges the basic tenets of general international law. In order to become accepted as the law of the world community, general international law needs to reflect better the values and interests of a wider range of actors, including the individual. This book examines the impact of international human rights law on general international law. It considers areas including the structure of international obligations, the formation of customary international law, treaty law, immunities, state responsibility, and diplomatic protection. The book traces the extent to which concepts emanating from international human rights law are being incorporated by the guardians of traditional international law: the International Court of Justice and the International Law Commission.Less
Traditional international law aims to protect the values and interests of states. The rapidly increasing corpus of international human rights law (including international humanitarian law and international criminal law) increasingly challenges the basic tenets of general international law. In order to become accepted as the law of the world community, general international law needs to reflect better the values and interests of a wider range of actors, including the individual. This book examines the impact of international human rights law on general international law. It considers areas including the structure of international obligations, the formation of customary international law, treaty law, immunities, state responsibility, and diplomatic protection. The book traces the extent to which concepts emanating from international human rights law are being incorporated by the guardians of traditional international law: the International Court of Justice and the International Law Commission.
Paul Friedland
- Published in print:
- 2012
- Published Online:
- September 2012
- ISBN:
- 9780199592692
- eISBN:
- 9780191741852
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199592692.003.0003
- Subject:
- History, European Medieval History, European Early Modern History
Although customary and Roman law are often thought of as two entirely different bodies of law, this chapter charts the intrusion of Roman legal concepts—especially malice aforethought and exemplary ...
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Although customary and Roman law are often thought of as two entirely different bodies of law, this chapter charts the intrusion of Roman legal concepts—especially malice aforethought and exemplary deterrence—into customary law. From the twelfth century onward, punishment became increasingly spectacular and violent. New methods of execution, such as drawing and quartering, burning, boiling, beheading, live burial, and the wheel, were invented or borrowed from ancient Rome in order to transform the practice of punishment into a graphic exercise in exemplary deterrence. As the staging of punishment became more complex, fewer jurisdictions were entrusted with the authority to execute capital sentences, with the result that the practice of punishment gradually became less local in character. An increasingly powerful monarchy encouraged judicial discretion as a means of circumventing local irregularities and instituting a more homogenous, national system of punishment.Less
Although customary and Roman law are often thought of as two entirely different bodies of law, this chapter charts the intrusion of Roman legal concepts—especially malice aforethought and exemplary deterrence—into customary law. From the twelfth century onward, punishment became increasingly spectacular and violent. New methods of execution, such as drawing and quartering, burning, boiling, beheading, live burial, and the wheel, were invented or borrowed from ancient Rome in order to transform the practice of punishment into a graphic exercise in exemplary deterrence. As the staging of punishment became more complex, fewer jurisdictions were entrusted with the authority to execute capital sentences, with the result that the practice of punishment gradually became less local in character. An increasingly powerful monarchy encouraged judicial discretion as a means of circumventing local irregularities and instituting a more homogenous, national system of punishment.
