Aboriginal Customary Law VS European Law Essay -- essays research pape

Aboriginal commonplace legal philosophy and European police founder been at odds since the first years of the European invasion, but precisely recently has the clash come into the open. Stuart MacMillan of the Aboriginal Resource and Development serve in the Northern Territory says that remote Aboriginal communities there and in Western Australia, South Australia and Queensland see no reason why they should train to "whitefella justness".The governments of the Northern Territory and Western Australia are investigating how endemic law can be incorporated into state law. Chris Sidoti of the Human Rights Council of Australia says " many people would say that human rights runs opposite to Aboriginal law, others that it provides a normal standard to which other legal traditions must adapt. Customary law cant ride out immutable. The problem for those trying to bring the two frames into line is that human rights law derives from a western legal tradition which freq uently contradicts Aboriginal law.Colin McDonald, a Darwin barrister and expert in customary law, says that on such(prenominal) issues Australias legal system may simply have to bite the bullet and go against the norms of internationalist human rights.Aboriginal women have often claimed that the law has been slanted to place upright the rights of indigenous men over women.Lowitja ODonoghue, who formerly chaired the governments Aboriginal affairs carcass ATSIC, believes that Australian law should be more aggressive in such cases. Some aspects of Aboriginal law are f wholeing out of practice. Chris Sidoti believes that any(prenominal) balance is struck will be as distinct from traditional European law as it is from traditional Aboriginal law. "For traditional people, organism put in jail is more inhuman than spearing, and any unify law would have to recognise that. Aboriginal Customary LawThe graduate(prenominal) Court did, however, conclude in that case (a conclusion confirm ed in WA v Commonwealth, Wororra Peoples v WA and Teddy Biljabu and others v WA, high gear Court, March 16 1995) that some Aboriginal land law (that which attracted the consideration of native title) survived the colonisation process. What is far less certain is the fate of Aboriginal customary laws that were not concerned with title to land. Did traditional laws on subjects such as family relationships, title to goods, community justice mechanisms, inheritance and criminal law survive c... ...e necessary, and those laws which were to be applied could not be made applicable to all of the Aboriginal peoples but only to some.It would not be inconsistent with the dominion of equality before the law that, where members of the Aboriginal race have spare needs, those should be recognised by special rules laid down by the law. Further, the law is flexible enough to allow the courts to consider the special event of an Aboriginal party where that is relevant. As the courts have recogn ised, the sentencing of Aboriginal offenders presents particular difficulties. Judges, in an attempt to do justice in discharging the difficult role of sentencing tribal and semi-tribal Aboriginal persons, have gone further. Clearly the ordinary criminal law is capable of facing these difficulties. It is neither necessary, nor desirable, to apply to the Aboriginal peoples the rules of their customary law rather than the general law. The attempt to uphold Aboriginal customary law is one aspect of the notion that the Aboriginal peoples will benefit if they cover to be treated as a class separate from the eternal sleep of the community, which must necessarily be a dependent and disadvantaged class.