10. Legal pluralism

• Context


  • British influence can be felt everywhere in the legal systems of the region, either directly (colonies) or indirectly (annexed territories, trusteeships)
  • But law in the South Pacific is not simply English law which only formed the basis and was used as a model
  • English customs have evolved in England into common law
  • Pacific customs have not evolved into a Pacific common law
  • But Pacific customs were integrated (more or less successfully) into the Pacific version of the common law
  • This gave rise to legal pluralism in the Pacific
• Custom V customary


  • Custom = the usages, traditions, institutions, or practices of the indigenous people.
  • Legal Pluralists – some seek to distinguish between customary laws and mere customs whilst others don’t.
  • Pacific Island states’ view: no distinction between customs and customary laws because customs and customary laws are defined similarly and are used interchangeably.
• Local customs in England

  • Customs = first laws based on practices, habits, and usages of different localities in a country
  • Whether one could call these “laws” is sometimes a complicated issue
  • Customs are perhaps not laws in the modern sense but can certainly be law-like, or maybe laws in some other sense
  • In this topic we will refer to customs as meaning local 'laws in distinct regions, rather than one law for a whole country
• Development of local customs

  • Norman Conquest 1066-England was a rural country
  • Different localities scattered throughout the country with different practices and customs enforced by local and feudal courts.
  • No strong central government which could pass laws for the whole country
  • As larger settlements developed in the form of boroughs and cities - customs, practices, and usages were developed and enforced by their own borough and city courts.
  • Local customs were concerned with all aspects of life, more specifically matters relating to land and property ownership.
• Decline of local customs

  16th century – steady decline in the importance of local customs as a form of law in England.

  Two reasons for this decline are:

  • The local and feudal courts were replaced by royal courts established by the King - these applied general unified customs of the kingdom, or the common law, rather than local customs.
  • Important matters were increasingly dealt with by legislation issued by the King (Parliament) or by laws of boroughs and cities.
• Changes in England

  Why were these changes taking place?

  • widespread social and economic changes required more concerted and centralized responses (think of globalization today!)

  Result:

  • Local customs are no longer an important form of law
  • Customs applied by the courts only if they are: of immemorial usage, certain, and reasonable
• Application of local custom

  Wyld v Silver [1962] – Land was purchased in a village for building bungalows.

  Members of the village claimed that ground formed a crucial part of the village custom as it was used on past occasions to hold fairs COA upheld a customary right of the inhabitants of the village of Wraysbury to hold a fair or wake on the Friday in Whitsun week every year on the wastelands of the parish.

  • This is an excellent example of how local custom limits common law and equity.
• Features of local customs

  • For local customs to be recognized in English courts, it must meet 3 criteria.
• 1. Immemorial usage

  • customs that existed at the commencement of the reign of Richard I in 1189’. it is very rare for records to be available to trace local customs back to that date.
  • In practice, the courts have accepted that if local customs are shown as existing in the eighteenth or nineteenth centuries, then it will be assumed that they are of immemorial usage unless there is some evidence to the contrary. (Wyld v Silver)
  • It is not necessary that there has been continuous or recent usage of a local custom = Local custom is not lost because of lack of recent usage.
• 2. Certain

  • Courts can only enforce custom if it is sufficiently certain to enable the courts to know what is regulated by the custom, and in what way custom regulates the activity or thing in question. if it is not clear who is entitled to benefit from the local custom, or what those people are entitled to do, the courts cannot accept and enforce it as part of the law.
  • Remember - one reason why colonizers preferred common law was that it was more certain than the local customs of the South Pacific.
• 3. Reasonable

  • Local customs will not be enforced if it is not reasonable.
  • Lord Denning in New Windsor Corporation v Mellor – “a local custom was not enforced by a royal Court because it allowed people to ride horses over agricultural land on which corn was growing, and the Court declared that what is contrary to reason cannot be consonant to law”
  • Reasonable = logical, anything that “makes sense” to an average person
• Custom V law

  • Legislation and subsidiary legislation may abolish or modify local customs.
  • 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!).
• Customary law in the South Pacific

  • Colonization was accompanied by the introduction of new systems of government, law, economy, and religion.
  • This resulted in multicultural societies, new, larger settlements, and new political, economic, and legal systems created
  • Developments result in a change in the context and content of customs or customary systems of the Pacific islands.
• Changes include:

  1. Need for education
  2. Introduction of the cash economy & income generation
  3. Acquisition of new individual properties
  4. Development of the concept of a nuclear family
  5. New religious and political philosophies
  6. Personal rights, etc.
• Status of customary systems today:

  • 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
• Evidence of custom is visible, examples in:

  1. constitutional preambles
  2. People’s behavior
  3. norms and values of community members
  4. Court decisions
  5. Kastom ekonomi
  6. Laws aiming at the preservation of traditions, cultures, and customs
• 6 features of customary law

  1. Unwritten - oral pronunciation by chiefs, no written compilation of customary laws required for ‘legal effect’
  2. Informal – made by ruling elites/chiefs over time, no involvement of democratic institutions, no formal codification of customary laws in the form of ‘acts’ or ‘statutes’
  3. Conservative – based on traditions and habits of communities; difficult to adapt to modern times or embrace modern/foreign concepts (such as e.g. democracy, HR, individualism, positivism)
• 4. Reciprocal – e.g. in-kind compensation; Significant because compared with the formal laws, the enforcement mechanisms enforcement of customs or customary laws are either weak or uncertain.

  5. Based on Self-help (e.g. Payback Killings, Compensation, Banishment, etc.)

  6. Application is dependent on a person's status – has 2 connotations.

  • Means that the customs or customary laws of a society a person by his or her birth in the society.
  • Means that attach to the applicability or enforceability of customs to individuals depends on their status in the society.
• Legal monism V legal pluralism

  
  

  Legal pluralists:

  • Believe that many different forms of law fulfill different functions and concern different values.
  • In their view, certain customs can become law or be regarded as law (i.e. customary law) autonomously or without any necessary action by law-making agencies of the State.
  • Societies are complex and are regulated by multiple sources of laws.
  • Followers of such a view include anthropologists (legal anthropology), sociologists (legal sociology,) and lawyers (legal realism)
• Legal monists:

  • Believe there is only one single legal system in a country Legal Monism v Legal Pluralism (Cont.) and that only state that has the monopoly on law-making.
  • Portrays the views of the legal positivists
  • Customs cannot be regarded as law on their own unless the sovereign so commands - when a rule of custom is entrenched in a legislative enactment or is recognized and applied by a court of law.
• The pluralistic or dualistic legal system in the SP?

  • Pluralistic: if there are many forms of laws in a particular country: the laws of the state (official or formal state laws), customary laws practiced by people in distinct Indigenous societies
  • Dualistic: where two systems of law are recognized and applied in the resolution of legal issues or disputes.
  • Pacific legal systems operate mostly in a dualistic manner