(2009) JLP 59: 29-48
In countries of the South Pacific, societies are often discussed in terms of the dichotomy between ‘traditional’ and ‘modern’. Similarly, legal systems are often described by reference to the dichotomy between ‘customary’ or ‘traditional’ law and ‘state law’, and between ‘informal’ and ‘formal’ justice. In fact, these divisions are becoming a thing of the past, gradually blurred by changes in the pattern of society and by the interaction between different systems of law. Further, the approach taken to the accommodation of customary law, which has been to formally ‘recognise’ it in constitutions, has, at least in theory, put an end to its independent operation. In the search for a more effective approach to legal pluralism, the existing dichotomy may often obscure a more complex interplay between the interwoven spheres of ‘traditional law’ and ‘state law’ and a new sphere of ‘blended’ law. In each of these spheres there are uncertainties, including questions of definition and scope, which constitute a potentially destabilising factor and have significant rule of law implications.
Commencing with an overview of the different sources and types of law within the ‘customary’ and ‘state’ law spheres in the South Pacific region, this paper discusses some of the uncertainties and tensions that arise from pluralism in practice. Examples drawn mainly from Solomon Islands are used to illustrate the various ways in which the lines between customary law and state law have been blurred. These include attempts to incorporate customary law in statutes. Two examples of statutes which provide for this are considered, and the case-law arising from them is discussed