A Disfunctional Spouse: The Relevance of the Public or Private Dichotomy for Indigenous Customary Laws in Solomon Islands and Vanuatu
(2015) 21 Comparative Law Journal of the Pacific 69-91
Posted: 12 Apr 2016
Date Written: September 9, 2015
In Western legal systems a conceptual distinction is made between public and private law. However, the value of this distinction and the boundaries between the two spheres are contested. Paul Verkuil has commented that '[i]f the law is a jealous mistress, the public-private distinction is like a dysfunctional spouse...It has been around forever, but it continues to fail as an organizing principle.' In the context of the plural legal systems of the small island nations of the South Pacific, the value of the distinction is largely unexplored. In these countries, the force of indigenous customary laws and traditional institutions is reflected in the constitutional and statutory recognition given to them in both public and private spheres. Regardless of state recognition, at the village level, such laws are accepted by members of the community as binding, without any distinction being drawn between public and private laws. This article commences with a brief discussion of the public/private dichotomy and a framework for distinguishing between the two is outlined. This is followed by an introduction to customary laws and traditions and their place in the legal systems of two independent Melanesian countries: Solomon Islands and Vanuatu. The article then discusses the practical implications of the distinction between private and public laws for South Pacific legal systems before moving on to consider how indigenous customary laws should be classified. The article explores whether the public versus private dichotomy is relevant and meaningful in the context of indigenous customary laws operating either as part of the state legal system or at the local community level.
JEL Classification: K00
Suggested Citation: Suggested Citation