07:49 - 
No comments
No comments
Legal Pluralism
§
Legal pluralism is the simultaneous existence
and operation of various legal system in the society/societies meaning having to co-exist together
§
According to Glenn in his book he provided
for the 7 major legal systems of the world
v
Chthonic
v
Talmudic
v
Islamic
v
Common law
v
Civil legal tradition
v
Asian legal tradition
v
Hindu legal tradition
§
The three major legal systems would be the
common law; civil law and religious or moral legal system
MALAYSIA
§
Malaysia aspect of legal pluralism can be
seen where we mix 3 type of different legal system; the common law, Islamic law
and customary law
§
Look at the Law Reform Marriage and Divorce Act 1976 issue as example
§
Look at the Malay Adat both pepatih and temenggung as example and issue of
polygamous marriage
§
Whether Islamic law or malay adat will
prevail if there is contradiction between these two?
§
Malay adat comes from various sources
example hindu concepts
§
Malaysia still follow largely the common
law legal tradition in constitutional matters
BURMA
§
Burma has 3 combinations as well; the
military authorities, British colonial legacy and the customary law which is to
protect and applied only to Buddhists in Burma
§
Burma has lesser features of the common
law as compared to Malaysia or Singapore or even India especially in
constitutional matters
§
Burmese customary law mainly applicable to
Buddhist in matters of family law such as marriages, divorce, adoption and succession
§
Can use the example of Maung Kyo Gi case on marriage issues
and the scope does not only cover married couples
§
Section 13(1) of Burma Laws Act 1898 says that parties
who are Buddhists must be decided based on the Buddhist law and other religion
based on their own religious customary law
§
Burma has not make a single family law act
that governs everyone generally despite religion unlike Malaysia’s step in the LRMDA 1976
§
Burmese customary law mainly to apply to Buddhist
therefore there was previously the official law called ‘Burmese Buddhist Law’ but the chief court of the state provided
that it is not directly from Buddhism therefore should not be called so hence
they named it later called Burmese
Customary law
§
Because Buddhism don’t specifically regulate
on adoption, divorce, inheritance and succession what not
§
Burmese customary law applicable to:
(1) Burmese Buddhist citizens of Burma
(2) non-Buddhist man who are married to or cohabitated with Burmese Buddhist
women in matters of family law
§
Special Burmese Buddhist Women Marriage Protection Act (SBBWMPA) was enacted to govern on family matters where it provided that
the matters are to be decided based on the Dhammathat or Buddhist law
§
Case of Daw Kyi Kyi v Mrs Mary Wain (1971) - where deceased Christian man here, his
second wife is a Buddhist
AUSTRALIA
§
Predominately common law country with less
diversity of legal pluralism
§
Australia had aborigines before the British settlement in 1788 and
therefore practiced own customary law
§
Australia recognized very few of the
customary law example the ‘pay back’ concept for those whose family members
were murdered
§
13th September 2007, UN general assembly adopted Declaration on
the Rights of Indigenous People where countries such as; Australia, NZ,
US and Canada however voted against the adaptation
§
Concerns: customary law of the indigenous
people would be or should be accorded full recognition
OTHER EXAMPLES
§
Sri Lanka has mixture of roman-dutch legal
system (deriving from civil law) and English common law
§
Philippines mixture of Spanish civil law
and common law of the American version
§
Thailand and Japan did not inherit any
civil or common law legal tradition because never colonized but have mainly the
elements of civil legal system though
0 comments:
Post a Comment