In Papua New Guinea there are some remote tribes which only discovered they are not the only people on Earth a few decades ago.
Of course they have had their own laws and traditions for a long time.
One of their laws demands compensation when members of one clan kill the leader of another clan (including money, livestock, and a female clan member).
When such a murder occured recently, restitutions had to be made. However, the young woman who was to be given to the other clan refused to go.
Papua New Guinea has a legal system, but the relationship between it and the ancient tribal law is uncertain and hasn’t been legally established clearly.
The woman went to court and argued that the traditional tribal law can be challenged if it violates Papua New Guinea’s democratic constitution. A judge ruled in her favor.
Of course, the elders of the tribes are quite upset. They plan to take the woman’s clan to court, using the modern legal system to demand their traditional tribal rights.
Should tribal law be respected?
The people of these tribes neved asked to be part of Papua New Guinea, or its legal system.
What about the rights of their minority culture?
(reference: Seth Mydans, “A Bartered Bride’s ‘No’ Stuns Papua New Guinea: Rejection of Tribal Customs is a Sign of Changing Times,” New York Times, 7 May 1997)
If the “civilized” world knew how to accomodate pre-modern cultures, this would be a much simpler world today. In other words, this is a very complicated question.
I would begin by suggesting that “tribal law” is a contradiction in terms. State-level societies have codified laws; tribes have customs for conflict resolution. It is not only the “civilized” society’s responsibility to respect the traditions of the indigenous culture, but the indigenous tribe must change its ways as it transforms into a modern society itself.
I do not believe people should respect tribal laws completely. I think we should view them as a sort of “state”, with some of their own laws, traditions, but things that would be considered human rights abuses, and blatantly illegal in their home country (not gambling, etc, I’m talking about rapes, female circumsicion, etc) should not be allowed. I believe that respecting the individuals is more important than preserving these particular aspects of the culture. Also, anyone whom desires should ALWAYS be allowed to leave.
Where’s Sofa King as I’m sure he can give chapter and verse where the US government doesn’t respect Native American tribal law.
Biggest contradiction to resolve is that by respecting tribal “law”, then a country ends up with more than one legal system, sets of punishments, “justice” and often based on race. Obviously, the general case is that tribes come under sway of the national or state level law.
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The “based on race” part is a little tricky, but having more than one legal system doesn’t seem to be an issue to me. Even in a federal state, you end up with several different legal systems, and nobody’s claiming that’s unaceptable.
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In the US maybe, but the question is more general. I’vfe no clue about the principles applied in Papua New-Guinea (actually I don’t even have a clue about the principles applied in french territories).
I’ve no issue with imposing the state laws in cases such as the situation described in the OP. I too believe that individual rights should trump the customs, and even the law of the land, at least for the most blatant offenses. Possibly we are/were wrong in imposing/having imposed our values to everybody else, but like most people I strongly believe in these values, at outlined for instance in the Universal Declaration of Human Rights, regardless whether they’re in agreement with the laws of a given country/tribe or not.
The difficulty is of course to determine exactly when custom is blatantly undermining such principles. For instance banning slavery is fine, but some people would want to ban polygamy as well.
Seems to me that any ‘tribal’ laws that are in effect in a given culture have been developed as what works in their society: the way that people think shapes their reactions to certain things, and the laws and traditions of a society are what keep people in it alive and healthy. Introduction of alternate values and circumstances may call for adaptation in order to keep the culture functioning, but a culture which has developed seperately has NO right to impose its morals or laws on another culture. This is a form of war, and assimilation, and although relatively few people may die, it is genocide.
Once upon a time people decided that it was wrong for non-Christians to live in England, and Jews were horribly persecuted. I’m not even going to touch the crusades. While we may consider our culture to have elevated morals, one must agree that there is still a lot of room to grow… and while we tout our strengths culturally we may neglect weaknesses in the way we do things which are strengths of the culture we are assimilating.
Everyone has a right to live as they see fit. Everyone has a right to follow an agreed-upon set of rules with the people that they live with. While those rules may seem strange to us, it is certainly not our concern what they do on land which is theirs in a culture which we can’t begin to understand.
Hmmm…but, by that logic, what right have we to impose our moral values on the medieval Englishmen who chose to live by an agreed-upon set of rules that included kicking out all the Jews?
Most of the time, tribal laws are barbaric, if nothing else. I don’t feel there is any need to accept or respect tribal laws. Maybe some of their traditions or parts of their culture.
Unless you think we should respect tribal laws similar to those in Pakistan in which gang rape is viable punishment.
Unless I’m mistaken (and that’s possible) part of the ancient tradition, not to say law, of tribal New Guinea included head hunting and/or cannibalism. Should those “laws” also be respected, or should the civilized valuses of the greater world society trump the tribal “right” to abuse individuals?
In the specific case cited in the OP one tribal group wanted to “give” one of its female members to another group as “payment” of a debt. How is that different from slavery? Why should the fact that the practice is ancient make it acceptable now? loupdebois’ assertion that imposition of modern law is a form of war, assimilation, or even genocide strikes me as a little excessive. If the tribal leaders in question were in the majority, would their practice of bartering human beings be right?
Is the practice of “honor killing” in other parts of the world right just because it is still allowed, or rarely prosecuted?
I think it is completely fair to apply the same standard that we use in the United States, wherein each state has its own laws, but all must submit to the supreme law of the land. Sure it’s majority rule, but that’s the way it has always been.
So in answer to the OP’s question, “should tribal law be respected?” I would say yes, but only to the same extent that state laws are respected in my country as long as they don’t contravene the Law of the Land.
Well…It seems I’ve to relinquish my skepticism. Though in this case it doesn’t appear to be tribal or customarily law (which follow traditionnal rules and precedents) but informal arbitration…and also, apparently imposed by the stronger tribe to the feebler one. It seems to me it’s more an application of “might makes right” than of traditionnal justice.
I strongly disagree. The law of the land in modern states encompass pretty much everything you can think of and leave little room for a really culturally distinct society to exist. IMO, only the most important principles of the law of the land should be imposed, and only in order to preserve the fundamental rights of the individuals. For instance, if the customs don’t allow for private property of land, then no state laws about it should be imposed, but if the customs allow for slavery, then states laws forbidding slavery should be imposed.
Nope. Customary justice is based on traditions, accepted norms and precedents, basically it’s oral “juris prudentia”. Societies always have accepted sets of rules, and people in charge of rendering justice don’t just make up these rules on the spot according to their good (or bad) will. You’re mistaking customary law with personnal dictatorship or mob rule.
In the example given, it seems there’s a powerful tribe which impose a judgement on the members of another tribe who are too affraid to protest. It’s possible that raping a girl from tribe A because a boy from said tribe tried to seduce a girl from tribe B is an accepted norm in this part of Pakistan, but given the content of the article, it’s as likely possible that’s it’s only members of tribe B deciding to exert vengeance on members of tribe A in any way they want and regardless of any customary rule because they’re stronger and tribe B should better shut up.
I would say that the answer to the OP is an unequivocal No IMNSHO. Subsets of laws within a legal framework are fine as long as they subject themselves to the overriding legal framework they exist within and do not infringe on the freedoms dictated therein. Of course I should add that I believe that any legal framework needs to subject itself to the Universal declaration of Human Rights. The right to cultural integrity for minorities is protected therein as long as it doesn’t infringe on any of the other universal principles laid down in the UDHR.
Some of you might remember this thread on the topic It’s okay to gang rape your sister? They dirty scumbags that perpetrated this awful travesty of justice were condemned in a real court today. From Reuters: Six Sentenced to Death for Gang Rape in Pakistan. I don’t agree with the death penalty, but hell, am I glad to see that the Pakistani courts take this seriously enough and do not bend over to the willful oppression carried out by a minority in the name of tradition. That’s exactly what tribal laws that are set above national laws are; a tyranny of the minority.
Nope. At worst it’s a tyranny of a minority on a subset of this minority. People in the majority (not belonging to the tribe or whatever else subset) aren’t subject to tribal law, except when they willingly put themselves in a situation where they are, by say going to the territory belonging to this people (not different than going to a foreign country and complaining that you’re subject to the laws of said country).
Anyway, I’m not sure why people are constantly refering to rape, of female circumcision, or similar ugly things when talking about tribal law. These are usually not allowed by the sovereign state the tribe/people/nation is subjected to. When tribal law applies, it’s generally on much more ordinary and trivial things like a dispute about property. And it’s not different than a large autonomy granted to a culturally very different people.
To take a couple of examples I vaguely know about : the shar’ia applies in most civil matters in the french island of Mayotte, not the napoleonic civil code, and it’s enforced by muslim cadis, not by judges. Similarily, the islands of Wallis and Futuna are ruled by three hereditary kings and their tribal councils for most issues. Though this at stakes with several basic principles of the french constitution, I’ve no issue with it. I don’t feel like I’m subject to any tyranny. If I’m going to Mayotte and get involved in some dispute, I know I’ll have to throw the civil code out of the window and peruse the Koran instead. But nobody is forcing me to go to Mayotte. As long as they’re not allowed to cut off the hands of thieves, I don’t see any problem with them using whatever law they agree upon.