Wikipedia:Articles for deletion/Customary Aboriginal law

The following discussion is an archived debate of the proposed deletion of the article below. Please do not modify it. Subsequent comments should be made on the appropriate discussion page (such as the article's talk page or in a deletion review). No further edits should be made to this page.

The result was keep. There appears to be a general consensus that this article in some form should be kept. There's clearly good reasons to modify the content substantially and potentially rename it - this can be discussed on the talk page. ~ mazca ^talk 00:46, 28 May 2011 (UTC)[reply]

Customary Aboriginal law[edit]

(Find sources: Google (books · news · scholar · free images · WP refs) · FENS · JSTOR · TWL)

I suggest deletion of this article because I find it both ignorantly careless and racially offensive, and for those reasons worse than useless. These are stronger words that I am comfortable in using, but that is really how the article looks to this (non-Aboriginal) Australian. The issues with this article seem to me to matter very much, because the topic is very important.

I suggest that the article is ignorantly careless, for two reasons.

First: it refers to Aboriginal customary law (its more usual name) only as existing "before European colonisation", making it appear that, with colonisation, Aboriginal law died out. However, it has not died out but continues to be practised and developed in Aboriginal communities. This is recognised, albeit partially and indirectly, in Australian law.

Second: while acknowledging that Aboriginal customary law differs from one Aboriginal people to another, the article provides evidence only from one area and ignores the others - even to the extent of apparently assuming that there is only one Aboriginal language, whereas even today there are many. These seem to me to be errors way beyond improvement through further verification, but rather to support a case for "go back and start again".

The article is also, to my mind, racially offensive (which is why I originally proposed simple deletion - but an Admin asked me to prefer WP:AfD).

First: to make it appear that Aboriginal customary law died out with European colonisation is, effectively, to deny a major aspect (perhaps second to none) of present-day Aboriginal identity. To add the necessary discussion of later periods would be a major undertaking, amounting to writing a wholly new article.

Second: there may also be racial offensiveness in that only one Aboriginal culture is cited and all others are neglected - but, as a non-Aboriginal, I shall not express a view on that.

The Admin proposes that I should instead edit the article: however, while I have expertise on law in Australia, I am not qualified to write on this topic; and, until someone else were to do that, this piece would remain. Therefore my very strong preference is that it should go, and quickly. Hopefully someone who knows about Aboriginal customary law will soon write a replacement.

If anybody would like a highly viewable introduction to Aboriginal customary law, an Aboriginal law elder has told me that she approves the film Ten Canoes (2006). Please continue viewing the DVD, into the documentary discussion of law after the story itself has finished.

The first sentence of the article carelessly switches from "Aboriginal" to "Indigenous", which - as can be seen in Indigenous Australians - has a broader reference. That could easily be fixed, but I don't see any point in a small fix. Likewise, if I were to remove the material that I find objectionable, I would do that fix and then leave only the first two paras, which wouldn't amount to a useful article. Wikiain (talk) 06:34, 20 May 2011 (UTC)[reply]

WP:BEFORE. This is fixable, so the rules require that we fix it rather than deleting it. Cutting it back to a stub in the meantime is perfectly acceptable (and that's what I would suggest in this case).—S Marshall T/C 11:07, 20 May 2011 (UTC)[reply]

Note: This debate has been included in the list of Australia-related deletion discussions. — • Gene93k (talk) 00:04, 21 May 2011 (UTC)[reply]

Note: This debate has been included in the list of Law-related deletion discussions. — • Gene93k (talk) 00:04, 21 May 2011 (UTC)[reply]

Keep - Pretty clearly an encyclopedic topic. Keep and fix. Go for it, nominator. Carrite (talk) 02:37, 21 May 2011 (UTC)[reply]
- Carrite: I know something about the concept of customary law, but I do not know enough about Australian Indigenous law - that is, expertise is required - to be able to write about it without serious cultural offence. That is how I think it would look, here in Australia. It is what I think is happening, very badly, with the current article. Wikiain (talk) 12:45, 21 May 2011 (UTC)[reply]

Keep The official basis of this nomination appears to lie in mere semantics that could be fixed - if they are broken - by a few simple edits, which is not sufficient reason for deleting an entire article. However, the nominator's main objection seems to be that the article implies that Customary Aboriginal law ceased to have any (much?) legal significance after European colonisation. Indeed, I cannot help but recognise the political agenda that the nominator is pushing with this AfD nomination: greater political recognition of Customary Aboriginal law in Australia. Deterence ^Talk 03:35, 21 May 2011 (UTC)[reply]
- Deterence: my point is factual, not political - although I will admit to a political motive for making the factual objection. My initial point is the fact that Aboriginal customary law continues to exist. If you would like to look into the politics around this, you might like to look at the official position regarding proposed constitutional reform in Australia: <www.youmeunity.org.au>. At least in Australia, it is not possible to recognise Indigenous identity without recognising the continuing existence of Indigenous law. (I would prefer not to characterise Indigenous law as "customary", which in the history of the western legal tradition has normally been a put-down.) Wikiain (talk) 12:45, 21 May 2011 (UTC)[reply]
  - I don't want to get into an argument over what is - essentially - a rather pedantic issue regarding semantics, (such as your objection to the use of the word "before" in the first sentence of the Lede). But, it is a bit much to throw around pejorative labels like "ignorantly careless and racially offensive" simply because the editor implied - correctly - that any legal significance that "Customary Aboriginal law" may once have possessed in Australia was, rightly or wrongly, rendered to a state of constitutional abeyance by colonisation and the legal institutions the colonisers brought with them. I recommend an examination of the Doctrine of Efficacy for more information on this legal issue, (which, surprisingly, does not appear to be in Wikipedia). I am reluctant to say much more on this issue because, in my experience, Aboriginal issues have become something of a sacred cow in contemporary Australia, where any comment that is even remotely critical or negative about Aboriginal people, or their culture, is met with venomous hatred and intolerance. (Please note that I am not accusing you of such behaviour.) Deterence ^Talk 13:28, 21 May 2011 (UTC)[reply]
    - My point is just that, in fact, Aboriginal customary law continues to operate. It has never depended on being constitutionally valid. That it does not count as "law" in the eyes of the Australian legal system does not entail that, in an encyclopedia, it should not be described as a type of law. Wikiain (talk) 18:09, 21 May 2011 (UTC)[reply]
      - Isn't that a bit like complaining about past-tense references to the use of the horse and buggy as a means of transport after the arrival of motor vehicles, simply because it is still used and desirable in some remote corners of Australia? A simple caveat would address any misunderstanding. Deterence ^Talk 22:52, 21 May 2011 (UTC)[reply]
Keep, the article is in an atrocious state, but I believe it could be fixed with a little elbow grease. If the article is kept, I'll try and have a crack at it. Lankiveil ^{(speak to me)} 08:32, 23 May 2011 (UTC).[reply]
Keep as the topic is notable, but agreed with all of the above that the content has major issues and needs work. Customary law does exist in parts of Australia, and while it has no formal status in Australian courts, it is sometimes referred to by judges and magistrates in cases relating to remote areas, especially in the Northern Territory, where there's even some legislation which recognises its role in defining proper relationships between members of a group. A minor issue - the title makes sense to us Australians, but the word(s) "Australian" or "in Australia" should be in the title somewhere. Orderinchaos 22:00, 23 May 2011 (UTC)[reply]

I agree about the need for the word "Australia[n]" in the title. Especially as "aborigine" is sometimes, albeit rarely, given a somewhat more generic interpretation: "indigenous". Deterence ^Talk 23:18, 23 May 2011 (UTC)[reply]

Consensus developing? Thank you to everybody for your responses. I think we have a developing consensus. All of us seem to agree on two things: (a) there should be an article on this subject matter; and (b) the title "Customary Aboriginal law" is unsatisfactory.

Since a choice of title is to an extent a definition of the subject matter, I will propose "Indigenous law (Australia)". That would serve several purposes:
- It would be a signal for the possibility of a category or general topic "Indigenous law", which I think, would be a good thing. Articles "Indigenous law (USA)", "Indigenous law (Canada)" and "Indigenous law (New Zealand)" might readily appear. I think that would correspond to the current tendency in international scholarship - Indigenous law experts in these countries are in very good touch with each other. Hopefully they will become editors here.
- Negatively, I think it would be good to omit the expression "customary", because in colonist law it is a put-down - "we have law, but you have only custom". The British and French colonial empires did that constantly.
- At the same time, I think it would be good to omit "Aboriginal" from this title. The expression used to mean, in Australia, what are now referred to as "Aboriginal and Torres Strait Islander" - e.g. in the Australian Constitution prior to the 1967 referendum. And the main Australian judicial decision recognising Indigenous interests, Mabo v Queensland (No 2) in 1992, is principally about Torres Strait Islander law. "Indigenous" includes both Aboriginal and Torres Strait Islander, as in the article Indigenous Australians. But, if "Aboriginal" should nonetheless be distinguished within that - see Australian Aborigines - would someone with the required knowledge please do so.
If someone with the knowledge to do so wishes to make a move in such a direction, please do. I will keep watching, with great interest. --Wikiain (talk) 01:33, 24 May 2011 (UTC)[reply]

Customary law is the legal term used to indicate that body of informal (less formal?) laws and rules that develop within a community over an extended period of time (usually measured in centuries) and, eventually, earn some degree of legal recognition and enforceability. While customary law is usually sourced from indigenous communities, (whatever "indigenous" means in this increasingly cosmopolitan world - i.e. who on Earth are the indigenous people(s) of Britain after 2 millennia of invasions?), customary law can also develop among (or be imported with) people(s) who have settled relatively recently, so indigeneity is not a prerequisite for customary law.

As a further point, the term "customary law" is not used in a negative or derogatory sense in the legal context. While "customary law" is usually held to be the poor cousin of Statute, Common Law and Equity, vis-a-vis its enforceable legal authority, this is not necessarily the case. Indeed, many of Britain's customary laws are steeped in tradition and prestige and the Courts would be loathe to allow their violation without a very clear and express imperative from Parliament (statute) that left no other option. That said, ultimately, customary law generally possesses less enforceable legal authority, which is not to negatively imply that it is inferior or possesses less moral authority in some way.

My suggestion for a more appropriate title for this article is something like, "Customary Law of the Australian Aborigine". Deterence ^Talk 02:22, 24 May 2011 (UTC)[reply]

I agree with your first point and had not wished to suggest otherwise. As to the second point, however, we are dealing here with a colonial situation. Moreover, unlike other British colonies - such as those in Africa - in Australia there was no statutory or judicial "recognition" of Indigenous law. That was so in colonial days and, with minor judicial exceptions, remains the case. Mabo (No 2) did not "recognise" Indigenous law - it gave some status in Australian law to certain Indigenous interests in land, irrespective of whether those interests also registered in Indigenous law. --Wikiain (talk) 04:05, 24 May 2011 (UTC)[reply]

Very much against it being called "Indigenous" law. The Torres Strait Islanders are a distinct cultural group, and it would be potentially offensive to imply that Aboriginal law = TSI law. I also don't think it's a good idea to lump the two very distinct systems together in one article for the same reason (although Torres Strait Islander customary law or similar would be a valid article topic). Otherwise I'm broadly in agreement with what's been proposed here. Lankiveil ^{(speak to me)} 11:02, 24 May 2011 (UTC).[reply]

I was thinking that the article would have introductory discussion similar to the first two paragraphs in Indigenous Australians. --Wikiain (talk) 22:23, 24 May 2011 (UTC)[reply]

I'd be against the name change to "Indigenous law" simply because that's not what it's referred to in Australia, either formally or informally. The name "customary law" - which has no cultural or colonial implications beyond that it has a different existence to the Australian legal system and can be referred to on some matters between members of certain groups - is covered in university law courses, can be found printed in legislation (as I linked in an earlier comment), etc, and therefore seems sensible to use. Orderinchaos 16:56, 25 May 2011 (UTC)[reply]

The expression "Indigenous Law" is used by the Australasian Legal Information Institute (AustLII), which is the principal database of Australian law <http://www.austlii.edu.au/au/special/indigenous>. AustLII lists there the Australian Indigenous Law Review and other publications that use the expression. That's more than good enough for me. --Wikiain (talk) 00:53, 27 May 2011 (UTC)[reply]

I'll note in reply that your understanding here is mistaken - "Indigenous law" in this context relates to all interactions between indigenous people and the law, not just customary law. If you read the link you've provided, and others like it, you'll see that pretty quickly. Orderinchaos 22:35, 29 May 2011 (UTC)[reply]

The above discussion is preserved as an archive of the debate. Please do not modify it. Subsequent comments should be made on the appropriate discussion page (such as the article's talk page or in a deletion review). No further edits should be made to this page.