澳大利亚法学家论习惯与法律

Customs and Law Discussed by Australian Jurists

澳大利亚的法学研究者在讨论习惯与法律的关系时,主要关注原住民族的习惯法,因为原住民族习惯法的地位和与普通法的关系问题由来已久,可以追溯到殖民统治开始之初,至今仍是真正实现族群平等、人权保护和社会和谐的重大议题之一。因为原住民族学者和社会精英层有识之士共同努力和抗争,目前原住民族习惯法在司法实践中已获得一定程度的承认。但是社会上仍有部分人意识中还有殖民统治思想的余孽,许多法律建议未得到政府的积极响应,习惯法在具体适用方面尚存不少问题和障碍,而这些都是学者们正在努力回应的现实。

When it comes to the relationship between the customs and law, the Australian law schol-ars always focus on the customs law of indigenous people, because the place of customary law has re-lated to the common laws, which could be dated back to the early of colonial rule. Therefore, the real equality among ethnic groups, human-right protection and harmonious society has become important issues＊ Although the customs law of indigenous people has been recognized to some extent because of the co - effort between indigenous scholars and social elites, there still exists the idea of colonial rule. Therefore, there are some suggestions on laws which have not gotten feedback of government and some problems on the applicability of customs law, on which most of scholars have been working.