Customary Law, Sentencing and the Limits of the State

Canadian Journal of Law and Society, Vol. 20, No. 1, 2005

University of Queensland TC Beirne School of Law Research Paper No. 10-23

1 Pages Posted: 7 Sep 2010

See all articles by Heather Douglas

Heather Douglas

The University of Queensland - TC Beirne School of Law

Date Written: May 6, 2005

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 judgements 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.

Keywords: customary law, payback, sentencing, Northern Territory

Suggested Citation

Douglas, Heather, Customary Law, Sentencing and the Limits of the State (May 6, 2005). Canadian Journal of Law and Society, Vol. 20, No. 1, 2005; University of Queensland TC Beirne School of Law Research Paper No. 10-23. Available at SSRN: https://ssrn.com/abstract=1672567

Heather Douglas (Contact Author)

The University of Queensland - TC Beirne School of Law ( email )

The University of Queensland
St Lucia
4072 Brisbane, Queensland 4072
Australia

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