Problemen rond recht en rechtspraak in niet-westerse samenlevingen

Samenvatting

The transition from colonialism to pol'al independence in non-Western communities has brought into focus the dual nature of their law & legal procedure. The formal Western exterior of their legal system belies the actual functioning & interpretation of their indigenous `unwritten law,' which is intimately linked to other cultural phenomena. New Guinea exemplifies the inner legal structure of such communities. Cases are subjected to communal scrutiny & evaluation; `physical force' is replaced by soc pressure, whose psychol'al value is effective in implementing the 'law.' The native legal tradition, though rooted in the past, adapts to changing soc circumstances, & plays an integral role in community life. Judgments are based not on precedents, but on personal insight. An illustration is the Yoruba tribe in West Nigeria, whose `unwritten law' continued despite the advent of British influence in 1900. The Native Courts Ordinance of 1933 established one main court under native jurisdiction, enabling written & unwritten law to co-exist, despite the British 'power of review,' which was rarely enforced. However, the post-war generation of natives wishes to reform its courts & legal system. They have tried to pattern that system after the British one, resulting in much misunderstanding & resentment on the part of the older, uneducated masses. The `educated men' are only beginning to be aware of the essential links between a formalized,Western legal system & the pulse & rhythm of the masses. A. Chapman.