Accommodating Legal Pluralism in Pacific Courts: Problems of Proof

International Journal of Evidence and Proof, 15 1: 1-25, 2011

Posted: 19 Jun 2015

See all articles by Jennifer C. Corrin

Jennifer C. Corrin

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

Date Written: 2011

Abstract

The interface between state legal systems and customary law is the site of a number of complex problems. A particular difficulty lies in accommodating customary law in formal common law court processes, which are typically driven by the adversarial system. An important but much neglected issue within this area is how best to approach the proof of customary law in courts. A threshold question that arises is whether it should be treated as law or fact. Few countries give any legislative guidance on this issue, nor has it been the subject of extensive consideration by the courts themselves. This article examines the issue of proof of customary law and a number of associated questions, focusing on the common law courts in Australia. Comparison is drawn with the position in neighbouring South Pacific Island States, which are also grappling with this issue. The article commences with a discussion of proof of customary law within the broader context of legal pluralism. It then moves on to a survey of the legislation that impacts on proof of customary law in civil and criminal proceedings in Australian courts. Some illustrative case law is then explored. The article assesses the adequacy of the current regime and considers some of the options for reform.

JEL Classification: K00

Suggested Citation

Corrin, Jennifer C., Accommodating Legal Pluralism in Pacific Courts: Problems of Proof (2011). International Journal of Evidence and Proof, 15 1: 1-25, 2011, Available at SSRN: https://ssrn.com/abstract=2620040

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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