ve and indigenous legal system said all that is necessary to make your promise enforceable is proof that you intended to be bound. You made a solemn promise by which you intended to be bound and without anything more that is sufficient to make you liable if you break your promise. That is all that is important. The intention to be bound by the promise that you have offered to the other contracting party. In the primitive legal system that is sufficient to make a contract enforceable.
Not so under English jurisprudence where a promise is enforceable only if it is buttressed by the concept of consideration. That is, if I give you a promise, you can sue me on that promise only if you have given me something of value in return for my promise to you That is the passing of consideration. The transfer of something that is of pecuniary or monetary value. That is intrinsically an English concept that is part and parcel of the English common law tradition. It has no equivalent, no parallel in an indigenous legal system.
So as you move away from nature, as you move away from basic morality, as you move away from the attributes of human nature, you find yourself embroiled in complexities which defeat the very purposes of the legal system. I think that is a reality that we need to be conscious of when we evaluate the character of indigenous legal systems in comparison with contemporary legal systems.
To my mind the fundamental concept that is embodied in traditional systems of law and morality is just this. The Roman jurists put it in a particularly convincing way when they spoke of the concept ex aequo et bono. That is an equitable jurisdiction English law in due course spoke of equity. That is the idea that you will do good, you will do no harm and this equitable doctrine was utilised to fill any gaps in the existing law.
Today take the traditional law of Japan. In regard to the whole of labour relations, Japanese labour law even today has this large equitable content. The whole relationship between the employer and employee is strongly pervaded by this equitable premise. The employer is a kind of a father figure. When he takes you into his employment he undertakes to do all that is necessary for the well being of the employee.
It is a system that is lacking in details. Details are not spelt out. What are the reciprocal obligations of employer and employee? The Japanese system is very sparse in content.
That is basically the approach of the Japanese legal system which has a great deal in common in that regard with an indigenous legal system.
So, those are some of the ideas that I wanted to share with you in highlighting the essential features of the indigenous culture and indigenous law as compared with a contemporary approach to law and society. I think we need to be on our guard against the assumption that our system is superior. We know it all, they do not, and we have to be condescending in our desire to accommodate them.
Also we must recognise there are certain things in traditional custom and law which may defy our understanding. We may not be able to understand because our experience has been wholly different and we must be reluctant to reject what we are incapable of understanding.
So those are some of the thoughts that should be uppermost in our minds as we embark upon this year that is devoted to the rights of indigenous peoples and the preservation of their culture.
I understand that this is the first of a series of lectures that will address different aspects of the rights of the indigenous peoples. I think that this is a very timely initiative because much that is wrong with contemporary civilization can, I think, be rectified by injecting to our culture some of the elements that were so rich in indigenous civilizations. Therefore there is no better time than this to embark upon this endeavour.
And may I, in conclusion, thank you very much for your invitation to me to share my thoughts with you this evening. I have been greatly privileged to be here with you and I thank you for that opportunity.
Case Study: The Plight 