(2010) JLP 61: 145-170
Throughout the world many former colonies are struggling with an inheritance of legal pluralism that gives recognition to both customary law and formal, written law. The interaction of such laws, which are very different in nature, often raises complex questions, especially because in practice the boundaries between them are often blurred. Each has had to adapt to accommodate the other, and in some cases hybrids have emerged. Questions of jurisdiction also arise, since recognition of a discrete legal system requires definition of the community to which it applies. This article explores the question of how, when state law gives recognition to custom, boundaries between different communities are determined within the State legal system for the purposes of legal jurisdiction. The geographical context of this examination is the South Pacific, and in particular Solomon Islands.
In many countries of the South Pacific, including Solomon Islands, the Constitution establishes a hierarchy of laws. In this customary law is placed below the Constitution and statute, but sometimes above common law and equity. However, in practice choice of law issues arise and are debated, as it is not accepted that customary law necessarily applies to every branch of substantive law or to everyone present in the country. Whilst most South Pacific countries give special treatment to customary land, in other areas the choice of law rules are unclear and cases are determined on an ad hoc basis. Frequently reference is made to the notion of a ‘personal law’, determined according to whether a party is an ‘islander’. The interpretation of the term ‘islander’, as used in various places and with various meanings in the statute law of Solomon Islands, is shown to raise complex problems. This is the case, whether or not choice of law rules are provided by statute or have to be developed by judicial action. It is argued that it is imperative to have clear definitions, or at least a clear process for identification, if a plural system is to flourish. It appears that in cases of uncertainty the rules underpinning the State system will be adopted by default. If South Pacific jurisprudence is to develop then more appropriate solutions must be found, but this will be best done through exploration of the boundaries of legal identity together with the communities themselves.