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Parsons, David --- "Book Review - Women's Rights and Traditional Law - A Conflict (Third World Legal Studies)" [1997] IndigLawB 66; (1997) 4(3) Indigenous Law Bulletin 30


Book Review -

Women's Rights and Traditional Law - A Conflict (Third World Legal Studies)

Penelope E. Andrews (editor)

for the Aboriginal and Torres Strait Islander Commission

International Third World Legal Studies Association (INTWORLSA) and Valparaiso University School of Law

Reviewed by David Parsons

Third World Legal Studies is the official publication of the International Third World Legal Studies Association (INTWORLSA). It is published annually by INTWORLSA, New York, USA, and the Valparaiso University Law School. INTWORLSA convened a workshop entitled 'Traditional Law and Gender Equality' in Orlando, Florida, USA in January 1994. The papers presented at that workshop provided the basis for this volume, Women's Rights and Traditional Law - A Conflict.

The editor, Professor Penelope E. Andrews of the City University of New York, in her introduction sets out the purpose of the volume as being to 'continue the global and cross cultural conversation about the quest for women's equality, and the enforcement of women's rights'. She considers that although there is an emerging scholarship of feminist issues in international human rights law (noting Professor Hilary Charlesworth's pioneering role in this respect), and increasingly effective lobbying by women's activists, there is limited consensus as to the most appropriate means of attaining gender equality, 'or indeed, a vision of a world liberated from the stranglehold of gender oppression'. In this context, traditional law has been a recurrent site of contention, and highlighted as a significant impediment to the goal of equality. By 'traditional law/ she means customary or indigenous law, and religious law.

She has collected a series of papers in which she has sought to elucidate the contours of this debate by focussing not only on theoretical underpinnings, but also on regional case studies where traditional principles have been incorporated into national laws and policies. The aim of such a collection is to establish a dialogue which reflects the complexities of pursuing gender equality in tandem with cultural dignity and autonomy.

There have been a number of attempts in Australia, since the early 1970s, to incorporate principles of Aboriginal traditional law into the criminal law (none of which have effected any lasting change). Debate seems to surface on those occasions when a sentence of a criminal court accepts that there will be a relevant punishment effected by the Aboriginal community on the offender.

I note, in this context, the recent article 'Canadian Supreme Court Clarifies Mabo Paradox' by Alex Castles and Jon Gill (Vol 3, 88 Aboriginal Law Bulletin 11), in which they state that five decisions of the Supreme Court of Canada in 1996 demonstrate that, as in the United States of America (with decisions dating back to 1823), the logic of the recognition of Aboriginal law in Mabo [No. 2] carries far more with it than simply determining the validity of claims to native title land. The Canadian cases recognise aboriginal rights if they are a 'practice, custom or tradition integral to the distinctive culture of the aboriginal group claiming the right' (p 12).

In the same Aboriginal Law Bulletin there is reference to the Canadian Royal Commission on Aboriginal Peoples, and its recommendation (inter alia) that customary laws involving divorce, child custody and so on should be recognised in amendments to legislation (p 19). There is also a note (p 19) that the Northern Territory Law Reform Committee is examining a reference on alternative dispute resolution in Aboriginal communities, and it is suggested that'... possible options would include recognising elements of customary law, and introducing practices which are currently in existence informally in the Northern Territory or which exist in other parts of Australia and overseas'.

Thus, the publication of Women's Rights and Traditional Law is timely, and provides valuable insights into the role of customary law in communities such as South Africa, Nigeria, Palestine, Papua New Guinea and Egypt.

The volume begins with an essay by Hilary Charlesworth setting out some theoretical perspectives. Charlesworth comments on the need for feminist scholars to find a productive path between tensions arising from the choice between engaging in 'privileged male structured debate' or seeking suitable political change.

Thandabantu Nhlapo addresses the possible conflict between cultural rights and the right to equality as outlined in the transitional Constitution in South Africa. He details the history of neglect and marginalisation of African customary law in South Africa's dual legal system, with the former being relegated an inferior status vis-a-vis Roman-Dutch and British common law. He also deals with the attempts by successive South African administrations to consolidate customary law. He includes an analysis of the conflict between African urban elites, mostly aligned with liberation organisations, and the rural chiefs, seen as puppets of the apartheid government.

Focusing on Oguta in Nigeria, Leslye Obiora explores local attitudes to gender inequalities and knowledge of their associated legal entitlements. She points out that social change requires demystification of conservative forces, including at times the distorted versions of traditional law.

Adrien Wing and Shobhana Kasturi detail how customary law and religious law have curtailed the role of Palestinian women, according them very limited public freedoms, confining them largely to the private sphere as the custodians of family honour. Wing and Kasturi examine the 1994 Draft Basic Law for the National Authority, a provisional document proposed during the period of the Intifada. They conclude that despite its advances, it assists in the preservation of traditional customs and practices which dictate a subservient role for women.

Jean Zorn details two cases where the 1975 Papua New Guinea Constitution's guarantee of equality for women allowed its National Court to overturn a village court's imprisonment for adultery of highland village women. She comments on the problems of recognising and defining discrimination, and on the risk of ethnocentrism in evaluating customs such as polygamy, bride price and the traditional division of labour. She deals with the difficulty of knowing, defining and implementing customary law, let alone structuring its co-existence with a centralised authority.

Takyiwaah Manuh contextualises customary law, both as a creation and perpetuation of colonial rule, and as a manipulable tool by emerging elites staking their claims for self-government and independence.

Further essays by Isabelle Gunning (analysis of current Western discussion of female genital surgeries), Sami Abu-Sahlieh (contemporary Muslim opinion on the advisability of religious circumcision-both male and female), and Sandy Liebenberg (the need to include social, economic and cultural rights in the final Constitution of South Africa) complete the volume.

Women's Rights and Traditional Law provides access to a number of countries and communities dealing with the interaction of traditional law and the law of the state-an issue which the Australian Aboriginal community is presently confronting, and which will need to be confronted for many years to come. The essays, primarily concerned with issues concerning women, also provide valuable insights of a more general character into the interaction between the law of the state and traditional indigenous law.

Professor Andrews lectured at La Trobe University for a period of two years before taking up her role in the City University of New York School of Law. She was recently elected to the position of Secretary-Treasurer of INTWORLSA. Professor Andrews is a regular visitor to Australia, and anyone who seeks to make contact with her may do so at the CUNY School of Law at Queens College, the City University of New York, 65-21 Main Street, Flushing, New York NY 11367, USA.

Membership of INTWORLSA is available from

INTWORLSA, G- International Centre for Law in Development, 777 United Nations Plaza, New York NY, 10017, USA for $(US)7 (students) and $(US)20 regular membership.


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