Thesis (L.L.M.)--University of Waikato, 2007. / Title from PDF cover (viewed April 7, 2008) Includes bibliographical references (p. 153-158)

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This thesis explores the imagery of underworld justice, and its associated beliefs and practices, as they developed throughout Chinese imperial history. Certain elements of the Chinese imperial legal system, including judges and trials, and laws and codes, were borrowed by the Daoists and applied to their construct of the afterlife. Underworld justice beliefs and practices flourished throughout China's imperial past, and are still influential to some devotees in today's Hong Kong. Among the various questions that are explored, this thesis examines the place of underworld justice in the legal consciousness, or everyday law, of the devotees in contemporary Hong Kong. There are two dimensions to this thesis: historical and empirical. In the historical part, I trace the development of underworld justice beliefs and practices in imperial China. I analyse some of the characteristics and rituals of underworld justice, and relate them to the imperial laws and procedures upon which they were modelled. Such tracing allows us to discern the considerable overlap between the imperial legal system and underworld justice beliefs and practices. In the empirical part, I present data gathered at mainly three City God temples in Hong Kong. Such data involve conversations with Daoist and Buddhist priests, temple keepers and devotees. The data gathered not only shed light on the general state of City God veneration in contemporary Hong Kong, but also the influence of underworld justice on the devotees' understanding of law. The data reveal that the studied devotees regard underworld justice, which administers the law of karma, as superior to the state legal system. Hence, underworld justice is not considered as an informal dispute resolution process alternative to that of the state, but as a mechanism that can intervene in court cases, due to its being more authoritative.

En tant que discipline universitaire, le droit comparé fabrique sa connaissance selon les principes d’un paradigme cognitif et méthodologique qui tend à reléguer au-delà des frontières disciplinaires, et dès lors dans l’indiscipline, toute recherche ne relevant pas du cadre de travail épistémologique ayant été imposé par la tradition. La pensée juridique comparative orthodoxe privilégie, entre autres postulats, l’hypothèse selon laquelle l’analyse juridique se révèle à ce point spécifique que le juriste ne pourrait utilement s’autoriser le recours à d’autres disciplines. Néanmoins, cette approche exclusive a été remise en cause par les comparatistes hétérodoxes qui estiment que seule une étude interdisciplinaire sensible à l’ancrage culturel du droit peut conduire à une meilleure appréciation des enjeux de la comparaison à l’heure de la globalisation. Etant donné qu’il n’existe pas encore d’analyse détaillée portant sur l’interdisciplinarité dans le domaine de la comparaison des droits, cette thèse propose , tout d’abord, dévaluer la pertinence d’une démarche située au carrefour des savoirs. Ensuite, cette réflexion se donne pour objectif de déterminer si l’agir interdisciplinaire doit s’inscrire dans une matrice méthodologique. Enfin, le comparatiste ne saurait ignorer la question des écueils d’un traitement interdisciplinaire des droits qu’il compare, tant sur le plan psychologiste que conceptuel. Somme toute, il s’agit de prendre la mesure des avantages mais aussi des limites d’une comparaison des droits interdisciplinaires. Surtout, il y a lieu, en fin de compte, de défendre cette approche, c’est-à-dire de soutenir l’idée d’une comparaison des droits indisciplinée. / As an academic discipline, comparative law fabricates its own knowledge pursuant to the dictates of a methodological and cognitive paradigm, which tends to relegate beyond disciplinary boundaries any scholarly undertaking not accounting for the epistemological framing that has traditionally obtained. Hence, contemporary orthodox comparative legal thought seems to favour, along with other postulates, the assumption that legal analysis is so specific that it cannot usefully allow for knowledge contributions deemed by legal scholars themselves to belong to other academic disciplines. However, heterodox comparative lawyers have challenged this exclusive perspective considering that only an interdisciplinary analysis attentive to law’s cultural embeddedness is conducive to an enhanced apprehension of the stakes involved within comparative research in the age of globalization. Given that there is no comprehensive study concerning the place of interdisciplinarity in comparative legal studies, this dissertation seeks to evaluate relevance of such an approach with specific reference to the work of comparative lawyers. In particular, this argument asks whether interdisciplinary thinking needs to be framed according to a given methodological matrix. Moreover, because the comparatist cannot ignore the pitfalls of an interdisciplinarity treatment of the laws she compares, whether from a psychological or conceptual standpoint, this text considers the limits of an interdisciplinary comparison of laws in addition to what it regards as its advantages. Ultimately, though, this dissertation defends an interdisciplinary approach, that is, it promotes an undisciplined comparison of laws.

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Hawai'i was once an independent Indigenous sovereign island nation with a distinctive culture, history, and legislative past. The laws of the modern state of Hawai'i reflect that history as Indigenous heritage has been integrated into state law. However, during the last forty years the laws protecting Native Hawaiian rights have been challenged in Hawai'i through a series of significant land claim lawsuits. Native Hawaiian struggles for sovereignty are based on the assertion of their heritage rights in lawsuits. This dissertation explores the use of heritage in land claim lawsuits and the role it plays in the construction of a modern Indigenous identity. It uses Native Hawaiian efforts for land control in Hawai'i as a case study to explore how involvement in the legal process has impacted both Indigenous identity and heritage. In this dissertation I examine three major lawsuits following one line of legal precedent: traditional and customary access rights. The investigation answers the questions of how legal narrative construction using heritage impacts Indigenous identity; how heritage values are substantiated; what the role is of experts in formulating cases; if there is a measurable change over time in the way that cultural claims are structured; and what the impact is of increased Indigenous political leadership and land control on Native Hawaiian identity and heritage. To complete this research, I applied a mixed qualitative method approach of ethno-historical, socio-legal, and legal narrative analyses with content analysis to examine Indigenous textural production and court performance as forms of social practice. I supported my research with ethnographic semi-structured interviews and participant observation in recognition of Indigenous protocol. The results indicate that Native Hawaiian use of heritage in courtrooms has contributed to Indigenous identity construction by enhancing collective memory, increasing land control, and protecting group rights. The results also provide insight into how such actions by Indigenous peoples can advance upward social mobility, encourage collective identification and civic involvement, regenerate cultural practices, and strengthen group identity. This research provides new insights into how Indigenous heritage can be used as a means of Indigenous empowerment and develops a greater and more complex understanding of the uses of heritage for land control and sovereignty. These findings may be used by other special interest groups using heritage to achieve common goals.

This study was undertaken to establish whether rights of personality are known in indigenous law. Since indigenous law differs not only between tribes but is also affected by the degree of exposure to Western values, a micro-study has been done in a semi-rural environment in the Kingdom of Swaziland to establish to what extent own value systems have been influenced or altered when Western legal concepts are utilised. The information, obtained by interviewing a panel of experts, was compared with the available literature. During the process of gathering information, the aims of the research were not only to describe how the legal principles function, but also to take note of those socio-cultural processes which function outside of the law. Rights of personality were studied against a background of the culture and way of life of the peoples concerned. The importance of culture has been acknowledged in the Constitution of the Republic of South Africa, wherein the recognition and application of indigenous law generally rests on a constitutionally protected right to culture. Whilst the identifiable rights of personality may generally be classified according to specialised legal systems, the separation of rights to good name and to dignity may be inappropriate in the indigenous sphere. Dignity in indigenous legal systems is to be viewed as a comprehensive right of personality, into which should be subsumed the right to good name and reputation in the community. It is such dignity, embracing the ubuntu quality of humanness that is protected as a comprehensive indigenous right of personality. Although the indigenous law of personality is showing some signs of adapting to new developments, there is also proof that the established legal principles and human values are being retained. However, these changes are unique and are neither typically traditional nor Western. The indigenous law of personality, operating in a changing social environment, has to retain its flexibility and adaptability in order to remain ”living” law for the peoples concerned. / Jurisprudence / LL.D.

This study was undertaken to establish whether rights of personality are known in indigenous law. Since indigenous law differs not only between tribes but is also affected by the degree of exposure to Western values, a micro-study has been done in a semi-rural environment in the Kingdom of Swaziland to establish to what extent own value systems have been influenced or altered when Western legal concepts are utilised. The information, obtained by interviewing a panel of experts, was compared with the available literature. During the process of gathering information, the aims of the research were not only to describe how the legal principles function, but also to take note of those socio-cultural processes which function outside of the law. Rights of personality were studied against a background of the culture and way of life of the peoples concerned. The importance of culture has been acknowledged in the Constitution of the Republic of South Africa, wherein the recognition and application of indigenous law generally rests on a constitutionally protected right to culture. Whilst the identifiable rights of personality may generally be classified according to specialised legal systems, the separation of rights to good name and to dignity may be inappropriate in the indigenous sphere. Dignity in indigenous legal systems is to be viewed as a comprehensive right of personality, into which should be subsumed the right to good name and reputation in the community. It is such dignity, embracing the ubuntu quality of humanness that is protected as a comprehensive indigenous right of personality. Although the indigenous law of personality is showing some signs of adapting to new developments, there is also proof that the established legal principles and human values are being retained. However, these changes are unique and are neither typically traditional nor Western. The indigenous law of personality, operating in a changing social environment, has to retain its flexibility and adaptability in order to remain ”living” law for the peoples concerned. / Jurisprudence / LL.D.