Legal Pluralism Notes

Topic 9 Recap - Challenges for Pacific Legal Systems

• Powles minimum standards
  • The law should be responsive and understood.
  • All dispute-resolution bodies should be fair and effective.
  • Legal services should be appropriate and available.
  • The “minimum standards” help us with a framework to think about what we want in legislative reform.

Topic 10 - Legal Pluralism

• This topic focuses on custom and customary law and identifies the ways in which customary law is integrated into the State legal systems.
  1. What is legal pluralism?
  2. Custom in the legal system of England
  3. Custom in the Pacific
  4. Legal status of customary law in the South Pacific
  5. Why have a pluralistic system?

Introduction to Legal Pluralism

• Legal Pluralism:
  • Recognizes that societies are complex and regulated by multiple sources of laws.
  • There are many different forms of law which fulfill different functions and concern different values.
  • Certain customs can be regarded as “law” autonomously or without any necessary action by law-making agencies of the State.
• Related back to topic 5
  • View of some:
    • sociologists (legal sociology)
    • lawyers (legal realism)
    • Anthropologists
  • Law as a rule that is enforceable by an external authority
  • Authority not necessarily that of the State – may be a social group
• Importance in the Pacific
  • Customary law exists as a separate or parallel legal system in all USP member countries.
  • Customary law is also integrated into State legal systems.

Terminology

• Custom/customary law used interchangeably
  • Local values, practices, norms, ways of doing things
  • Some authors say customary law a subset of custom – just the ways of doing things that can be enforced through customary authority

Custom Features (Generalizations)

• Traditionally unwritten
• Informal/spontaneous
• Conservative (traditional)
• Reciprocity (in the sense of knowing rules and following them in respect of others within the community) – importance for the strength of custom
• Usually self-help remedies
• Status dependent

Custom and Common Law Introduction

• English customs have evolved in England into common law
• English parliament has evolved from English custom, practice, politics

Local Customs in England

• Customs = first laws on the basis of practices, habits, and usages of different localities in a country
• Gradual Change Because:
  • Widespread social and economic changes needed more centralized responses.
  • Instead of local courts, royal courts established by the King applied general unified customs of the kingdom, or the common law, rather than local customs.
  • Rise of legislation

Custom Still Part of UK Law

• For local customs to be recognized in English courts, custom must meet three criteria:
  • Immemorial usage
  • Certain
  • Reasonable

Custom v Other Sources of Law in England

• An Act of Parliament may abolish a custom either by express provision or by the use of words that are inconsistent with the contained exercise of the custom.
• On the other hand - local custom replaces the common law in the area where it is held to exist (remember the three conditions that need to be fulfilled!).

What Might This Mean for the Pacific?

• In countries where custom is recognized as a general source of law, alongside statute, common law, and equity; then, in theory/legal principle it may be that custom overrides common law and equity

Legal Status of Customary Law in the Pacific

• Customary Laws in the South Pacific
  • Evidence of the availability of custom is visible in the following aspects:
    • Constitutional preambles
    • Recognition of custom as a source of law
    • People’s behavior
    • Norms and values of community members
    • Court decisions
    • Traditional economy
    • Laws aiming at preservation of traditions, cultures, and customs

Customary Law vs. Custom

• Colonization was accompanied by the introduction of new systems of government, law, economy, and religion.
• This resulted in:
  • Multicultural societies
  • New, larger settlements
  • New political, economical, and legal systems created

Factors Influencing Contemporary Custom

• Developments result in a change in the context and content of customs or customary systems of the Pacific islands.
• Changes include:
  • Need for education
  • Introduction of the cash economy & income generation
  • Acquisition of new individual properties
  • Development of the concept of a nuclear family
  • New religious and political philosophies
  • Personal rights etc.

What Is the Legal Status of Customary Systems?

• Customary laws were sometimes supplanted by the introduced state legal systems.
• Sometimes customs and customary laws were maintained & recognized as part of the national legal system, subject to certain conditions

The Legal Status of Customary Law – Application Provisions

• Cook Islands
  • Customary laws still not provided to be part of the law of the country, except as the basis for determining title to, and interest in, customary land: ss421, 422 Cook Islands Act 1915 NZ.
• Fiji
  • Fijian customary law continues to be the basis upon which determination of interests in customary land are required to be made (Native Lands Act Fiji)
  • Until 1990 - there was no provision for customary laws to be part of the law of Fiji Islands.