Customary law, sentencing and the limits of the state

Douglas, Heather (2005) Customary law, sentencing and the limits of the state. Canadian Journal of Law and Society, 20 1: 141-156.

Attached Files (Some files may be inaccessible until you login with your UQ eSpace credentials)
Name Description MIMEType Size Downloads

Author Douglas, Heather
Title Customary law, sentencing and the limits of the state
Journal name Canadian Journal of Law and Society   Check publisher's open access policy
ISSN 0829-3201
Publication date 2005
Sub-type Article (original research)
Volume 20
Issue 1
Start page 141
End page 156
Total pages 16
Editor M. Valverde
M. Coutu
D. Moore
Place of publication Calgary, Alberta, Canada
Publisher University of Toronto Press
Language eng
Subject 1801 Law
Abstract The issue of customary law punishment, especially "payback", has stretched the limits of the criminal law in a range of sentencing judgements in Australia's Northern Territory. A number of judgments relating to customary law punishment are discussed in this essay. Successive Australian judicial decisions have stated that Aboriginal criminal law did not endure beyond British settlement. However, the jurisprudence of the Northern Territory does not quite reflect this position. The response of the judiciary in the Northern Territory to customary punishments has been to develop a kind of soft legal pluralism. Judges both take into account the proposed punishment, and yet do not formally condone it. The judiciary has attempted to maintain control over customary punishment while being beholden to Aboriginal communities for evidence of appropriate customary responses, and for the carrying out of the promised punishments. This leads to a complex situation where Aboriginal people are both supervised and supervisor, and the state is both in and out of control.
Keyword Northern Territory of Australia
Customary law
Aboriginal people
Criminal justice system
Q-Index Code C1

Document type: Journal Article
Sub-type: Article (original research)
Collections: Excellence in Research Australia (ERA) - Collection
TC Beirne School of Law Publications
Version Filter Type
Citation counts: Google Scholar Search Google Scholar
Created: Thu, 05 Feb 2009, 14:04:22 EST by Judy Dingwall on behalf of T.C. Beirne School of Law