Custom in the Courtroom, Law in the Village: Legal Transformations in Papua New Guinea

Abstract

After more than twenty-five years on the legal landscape of Papua New Guinea, 'customary law' is ripe for reassessment, particularly as it appears to be an ideal mechanism with which the Papua New Guinean state can meet some of its obligations to a burgeoning body of international law. This article addresses the need to understand customary law in the context of its varying usage across different legal domains in an archetypally pluralistic state. In contrast to older approaches focusing on the problematic interface between an exogenous legal system and indigenous methods of dispute settlement, my concern is with the ways in which these distinct legal forms have fared in each other's company since independence in 1975. Case studies from a village court and an urban national court demonstrate that village court magistrates and high court judges alike use custom and law as strategic sources of authority. While village courts take custom for granted and therefore must 'discover' law, high courts take law for granted and must 'discover' custom. These processes indicate that,rather than being hybridized as 'customary law', the distinctiveness of custom and law are often maintained in order for one to appear as a resource upon which the other can draw.

Keywords: Legal pluralism, customary law, village courts, Papua New Guinea

JEL Classification: K39, K49