Barava Tru- Judicial Approaches to the Pleading and Proof of Custom in the South Pacific

International and Comparative Law Quarterly, Vol. 51, No. 3, pp. 611-639, 2002

University of Queensland TC Beirne School of Law Research Paper No. 08-22

31 Pages Posted: 1 Dec 2008 Last revised: 28 Oct 2009

See all articles by Jean G. Zorn

Jean G. Zorn

CUNY School of Law

Jennifer C. Corrin

The University of Queensland, Centre for Public, International and Comparative Law, TC Beirne School of Law

Date Written: November 28, 2008

Abstract

A fundamental question in giving effect to custom as part of the formal system, is how it is to be proved. There are two diametrically opposed views on this. The first is that the parties must prove it as a matter of fact by calling evidence. The opposing view is that custom is a question of law, and therefore can be found by the court without requiring the production of evidence as to its existence. Proving customary law as a question of fact may be a costly exercise. It may also involve complicated rules of evidence, alien to customary affairs. From a wider perspective, it subjects customary law to the adversarial system, which is arguably inappropriate in the South Pacific, where it is in direct conflict with cultural values of consensus and community decision-making. Treating custom as law, on the other hand, puts it on the same level as other sources of formal law. The court may take judicial notice of customary law or make its own inquiries as to the existence and applicability of custom, rather than having to rely on the parties' submissions. However, customary law is mostly unwritten, and it may be difficult for the court to decide whether a particular custom does amount to law or not.

This Article summarizes the constitutional and statutory provisions dealing with the pleading and proof of custom. It then analyzes some recent cases demonstrating the tendency of judges to make the pleading and proof of custom even more exacting than might already be required by those sections. It looks at the means used by the courts for ascertaining custom and the advantages and disadvantages of each. It concludes by considering whether there are better ways for courts to go about the task of finding custom than those currently in use and whether it is a task that the formal courts should take upon themselves at all.

Keywords: customary law, evidence, proof, pleading, south pacific law

Suggested Citation

Zorn, Jean G. and Corrin, Jennifer C., Barava Tru- Judicial Approaches to the Pleading and Proof of Custom in the South Pacific (November 28, 2008). International and Comparative Law Quarterly, Vol. 51, No. 3, pp. 611-639, 2002 , University of Queensland TC Beirne School of Law Research Paper No. 08-22, Available at SSRN: https://ssrn.com/abstract=1308382

Jean G. Zorn

CUNY School of Law

2 Court Square
Long Island City, NY 11101
United States

Jennifer C. Corrin (Contact Author)

The University of Queensland, Centre for Public, International and Comparative Law, TC Beirne School of Law ( email )

The University of Queensland
St Lucia
4072 Brisbane, Queensland 4072
Australia
07 33652295 (Phone)

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