State Recognition of Customary Law in the South Pacific
thesis
posted on 2021-11-12, 01:03 authored by Campbell McLachlanThis thesis examines the recognition by the state of the customary law of indigenous peoples by reference to a comparative study of Commonwealth South Pacific Jurisdictions. It aims both to Illuminate the process of recognition as a contribution to the comparative theory of legal pluralism and to describe distinctive elements of the experience with recognition In the Pacific.
The Pacific case shares many of the features of the Introduction of Western law into non-Western societies generally, but the absence of complex plural legal systems during the colonial period and the contemporary vitality of traditionalism have required a reworking of the policy basis and techniques for recognition.
This task is approached from four propositions. 'The persistent fact of pluralism' envisages recognition as informed by an acknowledgement that legal pluralism exists and persists as a factual phenomenon, regardless of the extent of accommodation afforded to custom in the state legal system. The nature of this phenomenon and the options open to the state are explored in Chapter 'Legal pluralism and legal theory'. 'A legacy of colonial misconceptions' argues that the dominant paradigm for recognition is colonial and therefore requires critical re-examination. Chapter 11 'The colonial experience and the idea of customary law' discusses the status de jure of customary law in the Pacific during the colonial period and evaluates the impact of colonialism on custom and approaches to its recognition.
Independence and the reassertion of the indigenous identity of Pacific peoples has created a fresh impetus for recognition. 'The implications of a reassertion of autochthonous values' are explored in three chapters on contemporary reforms: Chapter III, 'custom as a source of underlying law' on the general incorporation of custom; Chapter V, 'Disputes: custom as process' on local-level 'customary courts'; and Chapter VI on 'Land: custom as title'.
Finally, the fourth proposition, 'justice and group identity', sees recognition as justified by the requirements of justice in relation to Indigenous groups within the nation state. Chapter IV, 'Human rights and cultural relativism', evaluates the scope for group Identity within a framework of non-discrimination and the protection of individuals' human rights.
The thesis concludes by contrasting the changing ideological role of custom with the realities of recognition and by contrasting recognition by the incorporation of custom into state law with recognition by the adjustment of state law to acknowledge the separate sphere of custom.
The Pacific case shares many of the features of the Introduction of Western law into non-Western societies generally, but the absence of complex plural legal systems during the colonial period and the contemporary vitality of traditionalism have required a reworking of the policy basis and techniques for recognition.
This task is approached from four propositions. 'The persistent fact of pluralism' envisages recognition as informed by an acknowledgement that legal pluralism exists and persists as a factual phenomenon, regardless of the extent of accommodation afforded to custom in the state legal system. The nature of this phenomenon and the options open to the state are explored in Chapter 'Legal pluralism and legal theory'. 'A legacy of colonial misconceptions' argues that the dominant paradigm for recognition is colonial and therefore requires critical re-examination. Chapter 11 'The colonial experience and the idea of customary law' discusses the status de jure of customary law in the Pacific during the colonial period and evaluates the impact of colonialism on custom and approaches to its recognition.
Independence and the reassertion of the indigenous identity of Pacific peoples has created a fresh impetus for recognition. 'The implications of a reassertion of autochthonous values' are explored in three chapters on contemporary reforms: Chapter III, 'custom as a source of underlying law' on the general incorporation of custom; Chapter V, 'Disputes: custom as process' on local-level 'customary courts'; and Chapter VI on 'Land: custom as title'.
Finally, the fourth proposition, 'justice and group identity', sees recognition as justified by the requirements of justice in relation to Indigenous groups within the nation state. Chapter IV, 'Human rights and cultural relativism', evaluates the scope for group Identity within a framework of non-discrimination and the protection of individuals' human rights.
The thesis concludes by contrasting the changing ideological role of custom with the realities of recognition and by contrasting recognition by the incorporation of custom into state law with recognition by the adjustment of state law to acknowledge the separate sphere of custom.
