As it is common knowledge, when indigenous people were colonized, colonial administration changed the basic informal general ethical code of conducts in the indigenous way of life and worldviews into a more formal institution of what is now commonly referred to as ‘customary law.’ The conduct of life was essentially founded on ethical philosophies that served to guide the people on a day-to-day basis. The concepts of egalitarian, restorative justice and collective interdependence were the foundations of the ethical framework that provided the reference for general conduct - in effect ‘customary law.’
With the introduction of rigid state structures on indigenous societies, the ‘customary law’ became more institutionalized and legalized under the state legal system. As a result of which the tenet of ‘customary law’ ceased to reflect the ethical philosophies and values. With institutionalization and legalization, ‘customary law’ has frozen in time and rather than promoting the values and principles of the society, it has come to effectively limit and fracture the ethical framework of the society.
Due to its now static character, its now fails to meet the needs and engage with the issues of the present day. Rather than being a facilitator of a dynamic ethical framework, the institution of today’s ‘customary law’ has come to represent a static parochial view of reality. An indigenous friend said that “customary law has allowed itself to be manipulated by people in power to protect their own interests.” Eventually it has stopped facilitating restorative justice as it discriminates women, younger people and people of lesser privilege. In most indigenous societies, rigid ‘customary law’ has come to represent the power of a selected few that seeks to impose their will on the community.
As a result the ‘customary law’ of today contradicts the very values and democratic principles that nurtured its existence. In fact, it is one of the institutions that have come to promote hierarchy and the disempowerment that compounds oppression of women. Simultaneously, the state legal system is neither meeting the needs of the people. It remains alien and un-understandable to indigenous people, and dwells on a very rigid and impersonal structure of retributive justice in which the state is defined as the aggrieved party. Consequently, one needs to dispel the myth that indigenous peoples can find justice within a colonial legal system for it has been designed to encourage calmness even in the face of blatant injustice.
‘Cultural dislocation has led to despair, but the real deprivation is the loss of the ethic of personal and communal responsibility.’ Thus, it is imperative to rethink and transform the concept of ‘customary law’ within the ethical framework of democracy, restorative justice and equality. It implies that the old institutions of ‘customary law’ must be replaced with a new system that embodies the needs and aspirations of the present.
Therefore as indigenous people, where do we go from here? For a moment lets echo the words of Luigi Guissani, “traditions are not handed over to us so that we become fossilized with them. Like our ancestors, we should be able to develop tradition, even to the point of profoundly changing it.” However, in order to develop the capacity to transform traditions one must ‘act with’ what one has. This means using tradition critically, filtering it through ones own praxis and identifying and embracing the positive elements from both ‘customary law’ and state legal system.
A new democratic law should cover inclusive aspects of existence defining the full continuum of how one interacts and restores relationships with other human beings, land and nature. It needs to reflect a living and evolving system of norms and practices, regulated by a structure that will facilitate its fulfillment. Such a democratic law can be realized only when all forms of discrimination and gender bias are removed and the abuse of power is checked. Fundamentally, it applicability and relevance must be rooted in today’s aspirations based on restorative values that embrace the richness of humanity.
It is imperative that Nagas put in their perspective of laws, conducts and institutions within the ethical framework of democracy, restorative justice, equality, respect and dignity. As Sankara states, ‘we must be able to take from our past from our traditions - all that is good, as well as all that is positive in foreign cultures, so as to give a new dimension to our culture.’
