Tradition Of The Law And Law Of The Tradition

The essays in this book present important perspectives on the role of Indigenous legal traditions in reclaiming and preserving the autonomy of Aboriginal communities and in reconciling the relationship between these communities and Canadian governments. Although Indigenous peoples had their own systems of law based on their social, political, and spiritual traditions, under colonialism their legal systems have often been ignored or overruled by non-Indigenous laws. Today, however, these legal traditions are being reinvigorated and recognized as vital for the preservation of the political autonomy of Aboriginal nations and the development of healthy communities.

Traditionally, social theorists in the West have structured models of state social control according to the tenet that socialization is accomplished by means of external controls on behavior: undesirable actions are punished and desirable actions result either in material reward or a simple respite from the oppressive attentions of an authoritarian state. In this volume, the author presents the tradition of law in China as an exception to the Western model of social control. The Confucian bureaucracy that has long structured Chinese social life melded almost seamlessly with the Maoist revolutionary agenda to produce a culture in which collectivism and an internalized adherence to social law are, in some respects, congenital features of Chinese social consciousness. Through her investigation of the Maoist concept of revolutionary justice and the tradition of conformist acculturation in China, the author constructs a fascinating counterpoint to traditional Western arguments about social control.

This volume of the Indigenous Justice series explores the global effects of marginalizing Indigenous law. The essays in this book argue that European-based law has been used to force Indigenous peoples to assimilate, has politically disenfranchised Indigenous communities, and has destroyed traditional Indigenous social institutions. European-based law not only has been used as a tool to infringe upon Indigenous human rights, it also has been used throughout global history to justify environmental injustices, treaty breaking, and massacres. The research in this volume focuses on the resurgence of traditional law, tribal–state relations in the United States, laws that have impacted Native American women, laws that have failed to protect Indigenous sacred sites, the effect of international conventions on domestic laws, and the role of community justice organizations in operationalizing international law. While all of these issues are rooted in colonization, Indigenous peoples are using their own solutions to demonstrate the resilience, persistence, and innovation of their communities. With chapters focusing on the use and misuse of law as it pertains to Indigenous peoples in North America, Latin America, Canada, Australia, and New Zealand, this book offers a wide scope of global injustice. Despite proof of oppressive legal practices concerning Indigenous peoples worldwide, this book also provides hope for amelioration of colonial consequences.

Recent years have seen an increased interest in the variety of cultures co-existing within one state, and a growing acknowledgement of the values ensconced in pluralistic social structures. this book examines the manner in which indigenous people can function in modern states, preserving their traditional customs, while simultaneously adapting aspects of their culture to the challenges posed by modern life. Whereas it was formerly assumed that these tribal frameworks were doomed to extinction, and some states even encouraged such a process, there has been a revival in their vitality, linked to a recognition of their rights. The book offers a comprehensive survey of various aspects of tribal life, focusing on political issues such as the meaning of sovereignty, legal issues dealing with the role of custom and social issues concerned with sustaining communal life. A focused study is made of a whole series of legal factors, relating to possession and ownership of land, religious rites, the nature of polygamous marriages, the assertion of group rites, the manner of peacefully resolving disputes and allied questions. Recent judicial decisions are analysed as a reflection of the far-reaching changes that have taken place, in a process that has seen the former disregard of basic rights of indigenous people being replaced by an awareness of the injustices perpetrated in the past and a willingness to seek to redress them. The comparison between approaches of different English-speaking countries provides an account of interwoven developments.

This book presents a comprehensive history of law and religion in the Nordic context. The entwinement of law and religion in Scandinavia encompasses an unusual history, not widely known yet important for its impact on contemporary political and international relations in the region. The volume provides a holistic picture from the first written legal sources of the twelfth century to the law of the present secular welfare states. It recounts this history through biographical case studies. Taking the point of view of major influential figures in church, politics, university, and law, it thus presents the principal actors who served as catalysts in ecclesiastical and secular law through the centuries. This refreshing approach to legal history contributes to a new trend in historiography, particularly articulated by a younger generation of experienced Nordic scholars whose work is featured prominently in this volume. The collection will be a valuable resource for academics and researchers working in the areas of Legal History and Law and Religion.

This book explores different theories of law, religion, and tradition, from both a secular and a religious perspective. It reflects on how tradition and change can affect religious and secular legal reasoning, identifying the patterns of legal evolution within religious and secular traditions. It is often taken for granted that, even in law, change corresponds and correlates to progress – that things ought to be changed and they will necessarily get better. There is no doubt that legal changes over the centuries have made it possible to enhance the protection of individual rights and to somewhat contain the possibility of tyranny and despotism. But progress is not everything in law: stability and certainty lie at the core of the rule of law. Similarly, religions and religious laws could not survive without traditions; and yet, they still evolve, and their evolution is often intermingled with secular law. The book asks (and in some ways answers) the questions: What is the role of tradition within religions and religious laws? What is the impact of religious traditions on secular laws, and vice-versa? How are the elements of tradition to be identified? Are they the same within the secular and the religious realm? Do secular law and religious law follow comparable patterns of change? Do their levels of resilience differ significantly? How does the history of religion and law affect changes within religious traditions and legal systems? The overall focus of the book addresses the extent to which tradition plays a role in shaping and re-shaping secular and religious laws, as well as their mutual boundaries.

Firmly rooted on Roman and canon law, Italian legal culture has had an impressive influence on the civil law tradition from the Middle Ages to present day, and it is rightly regarded as "the cradle of the European legal culture." Along with Justinian’s compilation, the US Constitution, and the French Civil Code, the Decretum of Master Gratian or the so-called Glossa ordinaria of Accursius are one of the few legal sources that have influenced the entire world for centuries. This volume explores a millennium-long story of law and religion in Italy through a series of twenty-six biographical chapters written by distinguished legal scholars and historians from Italy and around the world. The chapters range from the first Italian civilians and canonists, Irnerius and Gratian in the early twelfth century, to the leading architect of the Second Vatican Council, Pope Paul VI. Between these two bookends, this volume offers notable case studies of familiar civilians like Bartolo, Baldo, and Gentili and familiar canonists like Hostiensis, Panormitanus, and Gasparri but also a number of other jurists in the broadest sense who deserve much more attention especially outside of Italy. This diversity of international and methodological perspectives gives the volume its unique character. The book will be essential reading for academics working in the areas of Legal History, Law and Religion, and Constitutional Law and will appeal to scholars, lawyers, and students interested in the interplay between religion and law in the era of globalization.

​International Law is usually considered, at least initially, to be a unitary legal order that is not subject to different national approaches. Ex definition it should be an order that transcends the national, and one that merges national perspectives into a higher understanding of law. It gains broad recognition precisely because it gives expression to a common consensus transcending national positions. The reality, however, is quite different. Individual countries’ approaches to International Law, and the meanings attached to different concepts, often diverge considerably. The result is a lack of comprehension that can ultimately lead to outright conflicts. In this book, several renowned international lawyers engage in an enquiry directed at sorting out how different European nations have contributed to the development of International Law, and how various national approaches to International Law differ. In doing so, their goal is to promote a better understanding of theory and practice in International Law. /divChapter “What Are and to What Avail Do We Study European International Law Traditions?” is available open access under a Creative Commons Attribution 4.0 International License via link.springer.com.