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Law from the earth, law from the demos and law from heaven : nature and intersections of authority of Madayin, Australian law and christianity in Arnhem Land

Kelly, Danial Terence (2014). Law from the earth, law from the demos and law from heaven : nature and intersections of authority of Madayin, Australian law and christianity in Arnhem Land. PhD Thesis, Charles Darwin University.

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Author Kelly, Danial Terence
Title Law from the earth, law from the demos and law from heaven : nature and intersections of authority of Madayin, Australian law and christianity in Arnhem Land
Institution Charles Darwin University
Publication Date 2014-02
Thesis Type PhD
Supervisor Price, David
McCrimmon, Les
Curtis, Richard
Subjects LAW AND LEGAL STUDIES
Abstract In Arnhem Land in the Northern Territory of Australia, normative pluralism exists between the three major normative systems present: Madayin or indigenous customary law, Australian law and Christianity. As such, individuals can find themselves simultaneously subject to more than one normative system. This can become an issue when the norms of the different systems are not mutually compatible. At times, an individual may breach a rule or norm of one system in order to follow another.

This thesis examines whether the Madayin normative system can be reconciled with the Australian legal system, and with Christianity, upon each system’s own terms. To accomplish this, the thesis makes a comparative analysis of the nature of normative authority in the three major normative systems. In each system the source and purpose of authority is analysed in order to discover the nature of authority of each system. The nature of authority of Madayin is then compared to that of the other two systems in order to discover if the nature of authority of the systems are reconcilable with each other.

Instances of pluralism between the systems are evaluated to determine if the integrity of the nature of authority of each system is maintained in the intersections that give rise to the pluralism. The primary conclusion that is drawn is that pluralism between Madayin and Australian law is consistent with the nature of authority of each of those systems whereas the pluralism that exists between Madayin and Christianity contains authoritative consistency from the Madayin perspective but not from the Christian perspective.

The findings are significant because scholarship on pluralism that involves Aboriginal customary law is rare in the Australian context. The conclusions drawn in this thesis provide a basis, previously non-existent, to evaluate instances of pluralism between Madayin (and possibly, by extension, other systems of Aboriginal customary law) with Australian law and Christianity.


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