Divers Paths to Justice - English - Forest Peoples Programme

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Divers Paths to Justice: Legal pluralism and the rights of indigenous peoples inSoutheast Asiatarget groups are the indigenous leadership, supportive lawyers, humanrights commissions and social justice campaigners. The logic is that if forestpeoples in Southeast Asia are to achieve effective control of their lands andresources based on rights or claims to customary ownership, selfgovernanceand the exercise of customary law, then policy-makers andcommunity advocates need to be clear what they are calling for and howsuch measures will be made effective once and if tenure and governancereforms are achieved.The study also takes into account the studies and consultations beingundertaken with funds from the initiative by Epistema in Jakarta, which hasalready undertaken four case studies in different parts of the archipelago andheld several workshops to bring together insights and experiences relevantto legal pluralism in Indonesia. 10Indigenous peoples and customary lawSince the time of the Romans and probably before, it has been widelyunderstood by jurists that custom can be more ‘binding than formalregulation, because it was founded on common consent’. 11 An early legalauthority of the Roman period, Salvius Julianus, noted:Ancient custom is upheld in place of [written] law not withoutreason, and it too is law which is said to be founded on habit.For seeing that the statutes themselves have authority over usfor no reason other than they were passed by verdict of thePeople, it is right that those laws too which the Peopleendorsed in unwritten form will have universal authority. Forwhat difference does it make whether the People declares itswill by vote or by the things it does and the facts? 12A working convention once current among anthropologists is that ‘custom’10 HuMA Learning Centre 2010. The HuMA Learning Centre has now been renamedEpistema.11 Harries 1999:3212 Salvius Julianus cited in Harries 1999:3321
Divers Paths to Justice: Legal pluralism and the rights of indigenous peoples inSoutheast Asiatakes on the character of ‘customary law’ where infractions arepunishable. 13 Yet, so diverse are societies’ systems of governance thatapplying such general definitions to varied realities is bound to generateconfusion or uncover imprecisions. The reality is that customary law isitself plural.For example, Favali and Pateman in their study of legal pluralism inEritrea, discern three distinct layers of customary law, the first being thewritten codes of customary law which have developed through a history ofdealings with the colonial and post-colonial State, the second being the orallaws which are widely followed by members of the various societies.However they observe that:there is a third body of unrecorded legal rules that are deeplyrooted in a particular system… that constitute the mentality,the way of reasoning about the law, the way of building a legalrule. These rules cannot be verbalised. They form part of anunrecorded and unexpressed background that an outsidercannot understand, and certainly cannot supplant. This is oneof the main aspects of a legal tradition. Tradition is notsomething that has been built or invented overnight. Certainlyit cannot be curbed or abolished on short notice. 14In like vein, Bassi’s study of decision-making among the Oromo-Borana ofsouthern Ethiopia shows how the society’s norms are not codified norotherwise set out in an explicit, logical form, but are expressed in asymbolic and metaphorical way, through myths and rituals, which areinvoked or which otherwise inform judgements and decisions made toresolve disputes. 15It seems plausible to argue that in Southeast Asia in the ‘pre-modern’ era,where the key to power in coastal polities lay with control of labour and13 Gluckman 1977. For the Romans ‘custom referred to law which was usuallyunwritten and which was agreed by “tacit consent”’ (Harries 1999:31).14 Favali & Pateman 2003:21815 Bassi 2005:9922
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Divers Paths to Justice - English - Forest Peoples Programme

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