Handbook 1996 : Faculty of Law (Volume 3 page 220)
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Optional Law subject.
Availability: Not offered in 1996.
Prerequisite: Torts and the Process of Law; History and Philosophy of Law.
Contact: 2 hours per week
Objectives:
A student successfully completing the course will have: examined Islamic legal traditions and the nature of syariah, or Islamic law, its jurisprudential schools and social roles. This will involve understanding of the historical development of syariah, as well as its contemporary place in Asian societies. Students will understand the different roles of syariah in Indonesia and Malaysia and the reasons for those differences; examined case studies of the application of syariah to substantive law in Indonesia and Malaysia, including, in particular, family law, property law and inheritance; understand the nature of traditional customary law or adat, its definitions, nature, functions and social roles. This will involve understanding of its place in legal theory, its historical development in Asia and its contemporary place in Southeast Asian societies and legal systems; examined case studies of the application of adat to substantive law in Indonesia and Malaysia, including property law, family law and inheritance, as well as relationship between adat and modern commercial and foreign investment regimes in the two countries; considered the place of syariah and adat in the constitutional systems of Indonesia and Malaysia; understand the development and operation of Indonesia and Malaysia's complex plural legal systems and the place in those systems of adat and syariah. Students will have compared these systems in light of Australian moves towards recognition of aspects of traditional customary law and the growth of Islamic communities in Australia and considered the role of adat and syariah in the criminal justice systems of Malaysia and Indonesia and in the context of notions of negara hukum or the rule of law. This will involve consideration of the human rights debate in Asia and at international law.
Content:
The first seven weeks of the course is intended to introduce students to the basic structure and operation of the Indonesian and Malaysian legal systems and their legal inheritance from traditional customary law (or adat), Islamic traditions and from Western civil and common law models. This part of the course also introduces students to Islamic jurisprudence and basic concepts of traditional customary law.The second part of the course examines the practical operation and interaction of adat, Islamic law and Western-derived systcal development - jurisprudential schools and rival traditions - the modern international context). Colonialism & 'Native' Laws: the Impact of the West - (the introduction of Western models - the growth of plural systems - the role of ethnicity and 'intergroup law' - Indonesian & Malaysian experience compared). The Indonesian Legal System: the European Model - (the Dutch-derived civil system in Indonesia and its adaption to legal pluralism - the inquisitorial model in action - the court system - constitutional implications). Adat & Syariah in Indonesia - (the Islamic courts in Indonesia - the role of adat in court - locating and determining adat - examples of adat and syariah in practice). The Malaysian legal system: The English Model - (the British common law system in Malaysia and its adaption to legal pluralism - the adversarial model in action - the court system - constitutional implications). Adat & Syariah in Malaysia - (Islamic law in Malaysia - the role of adat in court - locating and determining adat - examples of adat and syariah in practice). Islam, Adat, Ethnicity & Citizenship - (notions of ethnicity and citizenship at Indonesian and Malaysian law - pribumi & peranakan v. 'foreign' - religion as a determinant of national and legal standing - the place of the Chinese - the place of indigenous peoples - ethnic v. state borders). Women, Marriage & Family Law - (the status of women in Indonesian and Malaysian law - reforms and protests - legitimising marriage in a plural society - divorce, property & custody - inter-ethnic and inter-racial marriage). Adat & Property Law: Land Rights, the Environment & Foreign Investment - (traditional customary title v. registered title - traditional rights to land use - environmental disputes in the context of adat - relevance to foreign investment and land use). Inheritance - (interaction between Islamic law and adat - patrilineal and matrilineal systems - dispute resolution - land ownership). Adat, Islam & the Rule of Law - (crime and traditional punishment - criminal justice procedure at adat - application of Islamic criminal law - notions of the rule of law and democracy in adat and syariah-). Overview. at - patrilineal and matrilineal systems - dispute resolution - land ownership). Adat, Islam & the Rule of Law - (crime and traditional punishment - criminal justice procedure at adat - application of Islamic criminal law - notions of the rule of law and democracy in adat and syariah-). Overview.
Assessment:
EITHER a research assignment of 4,000 words (100 per cent) OR Final Exam 3 hours (100 per cent).
Prescribed texts:
Law subject : Next:730-331 | Prev:730-352 | Search | Help
Handbook 1996 : Faculty of Law (Volume 3 page 220)
Status: Official 1996 Date created: Oct 9 1995 Last modified: Oct 9 1995 Authorised by: Academic Registrar Email enquiries: Course_Information@registrar.unimelb.edu.au
Maintained by: Faculty of Law.
Copyright © University of Melbourne 1995,1996.