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Corrin, Jennifer --- "Barava Tru - Judicial Approaches to the Pleading and Proof of Custom in the South Pacific" [2002] UQLRS 1; (2002) 51(3) International and Comparative Law Quarterly 611-639

Last Updated: 10 December 2008

The University of Queensland
Legal Research Series


This article was originally published in the International and Comparative Law Quarterly published by Cambridge University press on behalf of the British Institute of International and Comparative Law


Zorn, J & Corrin, J, 'Barava Tru - Judicial Approaches to the Pleading and Proof of Custom in the South Pacific' (2002) 51 (3) International and Comparative Law Quarterly 611-639


The original article can be found at:
HTTP://JOURNALS.CAMBRIDGE.ORG/ACTION/DISPLAYJOURNAL?JID=ILQ


‘BARAVA TRU’[*] -- JUDICIAL APPROACHES TO THE PLEADING AND PROOF OF CUSTOM IN THE SOUTH PACIFIC[**]


Jean G. Zorn[***]

Jennifer Corrin Care[****]


... it is the transformation of custom into customary law – into

something that State courts will recognize, enforce and require –

that disrupts the continuity of the indigenous systems. In pre-

colonial times ... [the settlement of disputes] ... depended ... on

the mutual processes of negotiation and compromise. There is no

need to romanticize these processes. ... But the important point in

this context is that norms play a very different part in negotiations to

that which they play in legal processes. They may be used to stake

out negotiating positions as a starting point from which to proceed

or as a sounding board as to the correct procedure in the cultural

and symbolic sense, but they cannot be cited as rules or conditions

which will be imposed.[1]


ABSTRACT


A fundamental question in giving effect to custom as part of the formal system, is how it is to be proved. There are two diametrically opposed views on this. The first is that the parties must prove it as a matter of fact by calling evidence. The opposing view is that custom is a question of law, and therefore can be found by the court without requiring the production of evidence as to its existence. Proving customary law as a question of fact may be a costly exercise. It may also involve complicated rules of evidence, alien to customary affairs. From a wider perspective, it subjects customary law to the adversarial system, which is arguably inappropriate in the South Pacific, where it is in direct conflict with cultural values of consensus and community decision-making. Treating custom as law, on the other hand, puts it on the same level as other sources of formal law. The court may take judicial notice of customary law or make its own enquiries as to the existence and applicability of custom, rather than having to rely on the parties’ submissions. However, customary law is mostly unwritten, and it may be difficult for the court to decide whether a particular custom does amount to law or not.
This Article summarises the constitutional and statutory provisions dealing with the pleading and proof of custom. It then analyses some recent cases demonstrating the tendency of judges to make the pleading and proof of custom even more exacting than might already be required by those sections. It looks at the means used by the courts for ascertaining custom and the advantages and disadvantages of each. It concludes by considering whether there are better ways for courts to go about the task of finding custom than those currently in use and whether it is a task that the formal courts should take upon themselves at all.


1 INTRODUCTION


Martin Chanock was writing about South and Central Africa, but his description of the differences between the customary norms of traditional cultures and the legal rules recognized in state courts applies equally to the South Pacific. There are, of course, many distinctions between the cultures of Africa and those of the Pacific, but it is also true, albeit in a very general way, that there have been significant similarities in the legal histories of these regions. The pre-colonial Pacific, like much of early Africa, was home to small, pre-industrial societies in which technology was relatively simple; membership in the society, status, and access to the means of production were primarily determined by kinship; there was relatively little economic, class or social differentiation;[2] and the law – like politics, religion and other normative systems – was intermeshed in customary life and not segregated into a separate institution.[3]


It is easy to assume that the colonial experience in British-ruled Africa must have been very different from that in the Pacific. The colonial regimes in Great Britain’s African colonies and protectorates mostly practiced indirect rule, in which indigenous political systems and customary dispute-settlement processes were permitted to continue, at least in those areas of life not of key importance to the colonial enterprise.[4] In the Pacific, however, the colonial authorities intended that the introduced courts would, if not immediately, then eventually, take the place of customary dispute-settlement processes.[5] The actuality was more complicated, and there may have been more similarities than are sometimes supposed. Chanock points out that, in much of Africa, the colonizers’ deference to custom did not extend to upholding any customs that might interfere with the colonial enterprise.[6] At the same time, in the colonial Pacific, most disputes that concerned only Pacific Islanders continued to be settled informally in the village; colonial authorities interfered only when the matter involved expatriate settlers, or the commission of a major (and widely publicized) crime, or in some other way impinged on the interests of the colonizers.[7] Moreover, the colonial courts in both Africa and the Pacific were expected to recognize and apply custom in certain disputes, particularly those concerning customary marriage, divorce and other clan and family matters.[8]


In both Africa and the Pacific, however, the customs of indigenous peoples changed radically, in large part as a response to the economic, social and political whirlwind that resulted from the contact of traditional societies with the technology, religions and colonizing fervour of the European powers. The importation of the colonizers’ legal system, a set of norms and an approach to norm-enforcement very different from the customary system, also had a great influence in changing custom. Chanock argues that custom in Africa was so changed during the colonial period that it can no longer be perceived as traditional, certainly not as a tradition that had preceded colonization.[9] He contends that, ironically, it was the Native Authority Courts, the very courts that were charged by the colonial authorities with recognizing and applying custom, that played the largest part in changing custom. Customs were changed, he says, by moving dispute settlement from the privacy of discussions and negotiations between the disputing parties and their families to a public forum controlled by public officials. The fluidity and variation, the compromise and consensus-building, that characterize private negotiations were exchanged for an adjudicatory model, in which rules were found and then applied to the facts of the dispute, in order to determine a winner and a loser. [10]


This caused, Chanock notes, a number of related changes. First, many customary norms disappeared entirely. Negotiation accommodates the simultaneous existence of numerous customary norms, values, beliefs and behaviour patterns relating to the same matter, but the adjudicatory process allows for only one rule to govern each issue.[11] Moreover, Chanock says, it was the norms favouring women or the younger, educated members of the group, especially if those younger members were commoners, that tended to disappear, because it was in the interest, both of customary chiefs or elders and colonial administrators, to recognize those customs that supported the colonial and chiefly orders and to ignore those that did not.[12] Thus, the decisions of the Native Authority Courts not only denominated one party a winner over the other, they also determined that one custom was the winner over others. One customary behaviour pattern or belief became lawful, and the others became, if not unlawful, then merely moral.[13]


Of course, in part what Chanock is describing is simply what state law does all the time to the culture of every country, including the home countries of the colonizers. Looked at as a set of rules, the formal law’s relationship to culture is always ambiguous, even in homogeneous societies. Some customary norms are made into laws, either by statute or by the courts, thereby making them enforceable not only through social means but also through the power of the state’s legal apparatus. Prohibitions against murder are an example. Other customary norms are not part of state law, but seldom, if ever, conflict with legal rules. Most (but not all) purely domestic norms – rules about table manners, for example, or the degree of deference owed to in-laws or people of an older generation – are in this category. Finally, there are customary norms that may conflict with legal rules. Many businesses are conducted on the basis of mutual favours and gratuities that are expected, even required, in the industry, but are actually in violation of state law or formal contract.[14]


Colonialism created, by definition, a plural society, with competing legal, ethical and social customs and norms. In such societies, there are even more opportunities than there are in single-culture societies for custom and law to differ. Each colonial society will consist of at least two cultures, that of the subject people, and that of the colonizers.[15] The latter, though actually lived by relatively few people in the territory, will be the one more likely to be brought into state law. Even where the courts are supposed to recognize the customs of the colonized, if those customs conflict too deeply with the customs of the colonizers, on matters of importance to the colonizers, they will not become law.


An example from Pacific jurisprudence is found in the various approaches of the courts to crimes such as the taking of human life.[16] If the victim or one of his family members had himself committed a wrong, the custom of some Pacific societies may have permitted, even required, that the defendant kill him, either because customary beliefs and values mandated revenge or because the victim was viewed as a dangerous sorcerer. State courts, however, would view the same defendant as a murderer who had violated state law, and would judge him accordingly, finding a place for custom, if at all, only in mitigation of sentence, and usually not even there. Customary norms and legal rules conflict here in a matter of supreme importance to the state, important not merely (or even primarily) because the ethics (the customs) of the colonizers found the taking of human life repugnant (there are many examples, including the imposition of the death penalty, in which the colonizers’ own law conflicted with that ethical principle), but mostly because the people who perpetrated the revenge were taking the law into their own hands, ignoring the superior claim of the courts to exact revenge on the person who had offended them, and thereby suggesting that they did not recognize the power and legitimacy of the state in their lives.


This is an example of colonial and post-colonial courts simply refusing to accept a customary practice. But, even when they purportedly recognized and applied custom, the colonial courts changed it. It is Chanock’s particular genius to have realized this, and to have described some of the ways it happened, even when judges and magistrates did not intend it to happen. Custom, he says, differs formally, as well as substantively, from state law. Like law, custom includes many discrete norms, but customary norms serve different purposes than do legal rules. Customary norms act as counters and benchmarks in the negotiation process. As a result, there can be many norms, all seemingly applicable to the same circumstances. The plethora of norms helps to resolve disputes by allowing participants to call upon those that best fit the moment, thereby enabling there to be a settlement between the parties that serves both principle and the needs of the parties, as well as a reassertion of harmony within the group. At law, on the other hand, there can be only one rule applicable to each situation, and it will apply regardless of the relations between the parties, their relative status and power, or the needs of the group, because the essence of the adjudicatory process is the application of a known rule similarly to all similar situations.


Max Weber had already pointed out a second way in which custom and state law differ.[17] Customary norms operate in a network of social relationships. In everyday village life, or in a customary dispute-settlement negotiation, a norm will not be applied if to do so would harm the social relationships it is meant to foster. State law, however, or at least its common law variant, is predicated on the notion that rules apply equally to everyone, regardless of the status or relationship of the parties. Courts are treating customary norms as if they were legal rules whenever the court selects, from the variety of norms that can apply to the situation before it, just one, giving that norm the force of law and disregarding the others that could have applied to that, and similar, situations.[18]


However, Chanock says, the most serious change to custom occurs when, in choosing one rule, the court divorces that rule not only from the social milieu in which the customary norm was supposed to operate, but also from the principle that the customary norm was meant to further.[19] He offers, as an example, a court in Africa in which the magistrate was asked to decide whether a widow could be made to marry her dead husband’s brother (a custom so widespread that anthropologists have a name for it; they call it the levirate, after its Old Testament roots).[20] The magistrate wanted the witnesses, who were, for the most part, village elders, to tell him one rule that would apply to all cases of widow inheritance. They, however, wanted to describe the way widow inheritance actually functions in life. They mentioned all the qualifications about which any customary norm, in the interest of principle, is hedged. In their description, it became clear that the rule, such as it was, applied only now and then, depending upon the aims of the parties, their relative power and status, their relationships, their need for one another. Mostly, the witnesses wanted it understood that the purpose of the custom was to preserve the power of the elder generation to make decisions for the younger. The universal validity of this principle may itself be questioned, but the important point is that, in Chanock’s example, the court ignored the principle, the exceptions, the qualifications, the importance of relationships, and clung firmly to that valuable nugget it had obtained – a rule, which it proceeded to apply in a way that, in the case before it, totally abrogated any power or authority that the elders might have had. In turning custom into rules, Chanock says, the court may actually have undermined custom, because the particularity of the rule denied the generality of the customary principle.[21]


For many years, lawyers, anthropologists and legal scholars have debated whether the indigenous customs and customary dispute-settlement processes of traditional peoples should be accorded the status of law.[22] Positivists, who like their law written in books and decided by courts, tended to argue that custom was not law, because it was neither created nor applied by a state agency.[23] Legal Realists, who argue that, no matter how many law books there may be, the law exists only when it is enforced, tended to argue that custom was law, because, in societies without separate governmental and legal institutions, it served the same order-maintenance and dispute-resolution functions that other kinds of law serve.[24] But, like most seemingly disinterested debates, this had political overtones. The positivist side was adopted by colonizers, who wanted there to be no law, or at best a not very good law, in Africa and the Pacific, in order to justify their imposition on these territories of themselves and their law.[25] The realist side was adopted by social anthropologists, and by the colonized themselves, especially those working for independence, to justify their resistance to the colonial power.[26]


Chanock’s formulation provided a way to resolve this dispute. In effect, he demonstrated that custom and law are different, but that neither is inherently superior to the other.[27] In his theoretical framework, the indigenous peoples of Africa and the Pacific lacked nothing merely because they did not have a formal legal system. As the realists and social anthropologists had argued, customary processes did supply means of keeping order and resolving disputes. However, to say that customary and legal processes are equal, Chanock would argue, is not to say that they are the same. The pure functionalism of social anthropology obscures the real differences between custom and law. The presence of legislators, courts, law-enforcement authorities, and the whole regulatory apparatus of the state does make a difference. The state can choose which customs it wishes to turn into law, and which it doesn’t, and there is a world of difference between a norm that has all the might of the state behind its enforcement, and a norm that does not. Moreover, and this is Chanock’s main point, the realists’ conflation of custom and law obscured the enormity of the changes that customs underwent when they were adopted as legal rules by the state courts.


After Chanock, it can still be argued that the state legal systems of post-colonial nations should recognize and apply customary norms, but the argument must be refined to take into account Chanock’s contributions to the discourse of post-colonial jurisprudence. First, he reminds us that the norms of pre-colonial days may no longer exist, may no longer even be discernible; the norms available to the legal system are those of the current order, a society very different from the societies of pre-colonial Africa or the Pacific. Second, he tells us that the very act of integrating those norms into a common law system will change the norms so much that they may cease to act like customary norms at all.


The authors of this Article have recently been engaged in a study of the uses (and non-uses) of custom in the state courts of the island nations of the contemporary Pacific, focusing particularly on the ways in which rules of pleading and proof limit the courts’ use of custom and determine the forms it must take in order to be used.[28] Our study provides material with which to extend Chanock’s conclusions – to the Pacific, to post-colonial courts, and, most importantly, into the particularities of pleading and proof. Chanock mentions that custom is changed by the very processes of the common law, and he even identifies the courts’ need for proof of custom as one of the causes of those changes.[29] But he is, for the most part, more concerned with the consequences of the change – the transformations to the content of customary norms and principles – than in the processes by which that change occurs. We will focus in this Article on some of the processes by which custom changes in response to the state court requirement that custom be pleaded and proved.


2 PACIFIC ISLANDS LEGAL SYSTEMS


In the 1960s and 70s the majority of the small island countries of the South Pacific emerged from the shadow of colonisation to become sovereign states. Pre-existing constituent laws were replaced by new constitutions, with preambles reasserting national identity and ideals.[30] In the context of the legal system this translated into a general desire for laws encapsulating local values and objectives. In most countries of the region, this desire was given substance by constitutional or statutory provisions requiring that custom become part of the formal, introduced system of law, which was kept in place.[31]


A fundamental question in giving effect to custom as part of the formal legal system, is how it is to be proved. Statutes and courts have two diametrically opposed views on this.[32] The prevailing view in England and most other common law countries is that the parties must prove custom as a matter of fact by calling evidence. The opposing view is that custom is a question of law, and therefore can be found by the court without requiring the production of evidence as to its existence.[33] In common law systems where custom may only be claimed as ‘a privilege out of the ordinary course of law’ it has been said to be an ancient principle that a custom requires strict proof.[34] The English courts, for example, have developed strict rules to determine, ‘as a matter of established fact’ the existence of any custom relied upon.[35] If a custom is proved by satisfactory evidence as to its factual existence, the court will then recognise it as law. In those societies, however, customary law is exceptional and limited. Only the common law may apply to all inhabitants of the jurisdiction.[36]


The role of custom in societies like England is very different from its role in the South Pacific. In most countries of the South Pacific region, custom is recognised as a formal source of law, often with a status superior to common law.[37] Custom is acknowledged as a ‘living source of law, rather than as a relic of the past, and the primary function of judicial analysis is to ‘examine the nature and reality of existing custom, not to invent new customs’.[38] In this context, proof of custom as a question of fact is not such a foregone conclusion. Moreover, the requirement that it be proved as a fact in order to merit recognition detracts from the automatic recognition provisions which exist in some Pacific constitutions and legislation.[39] From a practical point of view, such proof may be costly. It may also involve complicated rules of evidence, alien to customary affairs. From a wider perspective, it subjects custom to the adversarial system,[40] which is arguably inappropriate in the South Pacific, where it is in direct conflict with cultural values and customary processes that involve consensus and community decision-making.[41]


Treating custom as law, on the other hand, puts it on the same level as other sources of formal law. The court may make its own enquiries as to the existence and applicability of custom, rather than having to rely on the parties’ submissions, just as it can when it uses statutes or the common law. However, custom is mostly unwritten, and it may be difficult for the court to decide whether a particular custom does exist as a governing principle. From a more theoretical perspective there is also the possibility that the practice of certain customs may not be ‘inspired by any conscious abstract feeling or motive’. Rather it may be the corporate action of an aggregation of individuals’ and custom may ‘grow by the force of practical example far more than by the impulse of reasoned conviction’.[42] In this sense custom may be more a fact than an idea, and thus proof as a question of fact may be the most appropriate way to determine its existence.


The following section of this Article reviews, very briefly, the major constitutional and statutory provisions governing the pleading and proof of custom in the Pacific, in order to establish the framework within which judges make their evidentiary decisions. The focus of the rest of the Article is on the analysis of recent cases demonstrating the tendency of judges to make the pleading and proof of custom even more exacting than the statutes prescribe. We examine the different ways that custom is pleaded and proved in the state courts of the South Pacific, with a view towards demonstrating the processes by which, in Chanock’s words, customs become customary law.


3 A VERY BRIEF LOOK AT CONSTITUTIONS AND STATUTES GOVERNING PROOF OF CUSTOM[43]


Several Pacific countries have a constitutional provision or statute that addresses the question of proving custom, although there is much variety in these provisions from country to country. In five countries of the region – Fiji, Marshall Islands, Papua New Guinea, Solomon Islands, and Vanuatu -- there are constitutional provisions, essentially in the form of an instruction to parliament, either mandatory or directory, to legislate for the pleading and proof of custom.[44] However, such legislation, providing guidance for the courts on how to recognize and adopt custom, has been enacted in only four countries – Kiribati, Papua New Guinea, Tuvalu, and Solomon Islands – and is not yet in force in Solomon Islands.[45] In two other countries – Nauru and Niue -- there is brief legislative provision on point.[46] There are also evidence Acts and/or court rules in several countries of the region, which contain individual provisions relating to the proof or pleading of custom.[47] Another way of dealing with proof of custom is to provide for the appointment of chiefs, elders or others knowledgeable about custom to assist superior court judges. In two countries of the region – Tonga and Vanuatu -- there is legislation that provides for the appointment of such assessors.[48] Finally, Acts are in force in some countries that regulate proof of custom in relation to the subject matter of the Act only.[49]


To the extent that constitutional provisions on the recognition or proof of custom exist, they suggest that custom should play a major role in the state legal system, perhaps even superior to that of the introduced common law.[50] This would suggest that statutes or judicial decisions, prescribing how custom should be pleaded and proved, would be as liberal as possible. This is not uniformly the case. The statutes of Tuvalu and Kiribati do provide that custom be treated as law, as does the newly enacted Papua New Guinea Underlying Law Act.[51] But the newly enacted Solomon Islands Customs Recognition Act (and its model, the PNG Customs Recognition Act 1963, which may or may not have been superseded by the newer Papua New Guinea statute), place many limitations in the way of the recognition of custom, including requiring that courts treat custom as fact.


4 JUDICIAL APPROACHES TO PROVING CUSTOM


Most Pacific Island jurisdictions have no legislation on the pleading and proof of custom, leaving it to the courts to make their own rules. The judges in just about every Pacific country, then, could have elected to treat custom as law. They could even have decided that they were capable of finding custom by a simple process, such as judicial notice, very much the same way that they find the common law. However, in general, Pacific courts, even in systems in which it is not required by statute, have chosen to subject themselves to the requirement that custom must be pleaded and proved.[52] Many courts require that custom be treated as a fact, and those that treat custom as law tend nevertheless to require counsel to present some sort of evidence of its existence.


Many judges, especially expatriate judges who were educated only in statutes and the common law, erect barriers in the way of recognizing and adopting custom because they are uncertain whether custom is, or even ought to be, a source of state law. Judges who are comfortable with the culture – many of the indigenous judges, for example -- are not so likely to be as rigid in their requirements that customs be pleaded and proved.[53] Similarly, judges in mono-cultural states seem less likely to require pleading and proof of custom than those in multi-cultural nations, probably because people in a homogenous society are more confident that they are familiar with all the customs of their society than people in diverse, multi-cultural societies can be.[54]


a. Finding Custom as Fact


Many judges presume, even in the absence of a statute defining custom as fact, that the existence and nature of customary rules must be proved before the court can use those rules in deciding a case, just as the facts of each case must be.[55] It is treating custom as fact to require a hearing at which counsel for both sides present evidence about what the relevant custom is and how it applies to their case. It is treating custom as fact to prefer that such evidence be in the form of testimony from recognised experts such as tribal elders or anthropologists. Only if no anthropologist is available to testify, are these judges willing to look at books and treatises. And only if none of these sources exist, are judges willing to hear what the parties and their witnesses say about their own customs. In this section, we will discuss each of these means of ascertaining custom, focusing on the benefits and drawbacks of each method, as well as on the ways in which each method reshapes custom into customary law.


i. Anthropologists’ Testimony


The case of Malas Family v Songoriki Family is an example of the misapprehensions that can arise when the courts place too much reliance on outside experts.[56] In that case, the Vanuatu Supreme Court used the reports of an anthropologist to confirm the accuracy of evidence gleaned from elders and the parties.[57] One can understand why the courts would expect the testimony of anthropologists to be germane and reliable. It is the business of anthropologists to observe traditional cultures.[58] The model anthropologist is a participant-observer, living in a village for several months, perhaps for several years, learning and recording the social structure and customs of the village. Ideally, an anthropologist is expected to live in a culture without becoming part of the culture, to participate in village life enough to understand it, whilst maintaining distance and objectivity.[59]


To the extent that anthropologists live up to this model, they are ideal sources of information about custom. Recently, however, anthropologists themselves have begun to question the human ability to remain utterly objective.[60] They point out that there are a number of possible causes for anthropological bias.[61] The anthropologist’s choice of informants can affect the outcome of a lawsuit if, by chance, the anthropologist’s information came from one (but not the other) of the parties now before the court.[62] Every anthropologist is, by definition, an outsider. While this may support objectivity, it also means that the anthropologist, like the expatriate judge, may miss nuances or qualifications that are important to those living the culture.


Another cause of possible errors in an anthropologist’s perception comes from the norms of the anthropological endeavour itself. Until recently, anthropology posited that traditional cultures inhabited an eternal, unchanging present.[63] Anthropologists were expected to write about the villages they were studying as if they had always existed in the form that the anthropologist found them and as if the village had never had contact with the world outside itself. Standard ethnographies omitted changes that had occurred in the social structure or culture of the village before the anthropologist arrived there. They also tended to omit any reference to colonialism or the global economy. The anthropologist wrote as if no change would ever occur, even those that were happening while the anthropologist was in residence. Many anthropologists, asked about current customs of a village, will talk about the customs that existed when the anthropologist did his fieldwork, which may have occurred years ago, and will presume that those customs still exist unchanged.


Village life is varied, and there are usually numerous groups within each village, each with its own special take on norms, customs, beliefs and values. But, for many years, most anthropologists were men, and they tended to look primarily to other men to be their informants. Thus, to the delight of the elders who benefit if the most traditional norms are upheld over the differing mores of other groups, especially those of women and young upstarts, the anthropological account often tends to sound very much as if there was only one set of customs in the community, and it was that of the elders.


The anthropologist may be a more reliable source of accurate information about the customs of a village than any other expatriate, but, contrary to what most courts probably believe, the anthropologist is not necessarily an entirely accurate or unbiased informant.


ii. Books, Treatises and Other Documents


The written word occupies a superior, but anomalous position in common law jurisprudence. It is considered more trustworthy than oral communication, especially about events that happened far in the past. And yet, it is not considered as trustworthy as a court trial or hearing, even though those are entirely oral.


The courts accord different levels of trust to different kinds of writing. Courts give the highest level of trust to writings that purport to be the law. Thus, when the writing is a statute or a case, it is, rather like the Bible in the hands of a true believer, subject to interpretation, but not refutation. Writings that purport to offer factual information are treated with less reverence. The courts require that their credibility be established, but that is done by verifying the expertise of the author, not by independently checking the accuracy of the information presented in the writing. An ethnography, for example, is only as credible as the credentials of the anthropologist who wrote it. Once those credentials have been established, then the book is treated as if it spoke the truth.


Most courts, will take judicial notice of the information contained in writings that are widely known and that the general public has come to believe are accurate without requiring a hearing or other evidence of the author’s expertise.[64] In this category are histories,[65] almanacs, calendars, maps and Admiralty charts,[66] scientific and professional records,[67] encyclopaedias and dictionaries.[68] The courts tend also to presume, without further substantiation, the accuracy of government documents –deeds, the reports of patrol officers, survey maps, etc.[69] Since many land cases involve a dispute between local people and the government over whether the land was actually sold to the government during the colonial period, and since the government usually had a paper deed, this preference for print works against the interests of the indigenous owners, no matter how the original buyers set about getting the signatures on the deed.[70]


The courts’ preference for writings over the parties’ memory of oral communications bodes ill for custom, which, in its most real form, is not written.[71] A reference to custom in a book will get more respect from a common law court than will an oral description of custom by someone who actually practices it.[72] Yet, writings that purport to be lists of customary rules or descriptions of customary behaviour are not themselves custom. They are attempts, more or less accurate, to capture custom. Often, they are written by someone from outside the group that practices the customs being transcribed. A book describing custom is already one remove from the reality of custom, and the older the book, the farther it probably is from the customs of today.


iii. Elders, Chiefs and Other Assessors


Another method of ascertaining customary law is to ask for advice from community elders or customary chiefs. This can be a wise use of community resources, because elders and chiefs may be expected to know the customary law of their communities. There may be an incidental advantage, if the elders or chiefs command the respect of the parties, and so increase the chances of acceptance of the court’s decision.


An elder or chief, acting as an assessor may play a role either in the assessment of testimony and other evidence or by giving advice as to the customary norm that is applicable in the circumstances of the case. Under the former the assessor may weigh the evidence in the light of their special knowledge of customary norms. As has been pointed out by Allott, in an African context, ‘assessors are peculiarly qualified to judge the probability of the story told by a witness, and may detect in his misdemeanor what may escape the presiding judge.’[73]


However, the use of assessors is not without complications. First, an elder may interpret customary law to suit his own interests or those of his clan or age group. Second, reliance on chiefs or elders can be problematic in circumstances of rapid cultural change, when traditional chiefs might espouse one version of custom and younger members of the society might be living by other rules.[74] An elder may, perhaps unconsciously, interpret custom so as to perpetuate old ways, ignoring or ignorant of contemporary changes in behaviour and values. Third, because the authority of elders may depend upon their community’s continued belief in traditional norms and structures, an elder may choose to ignore changes that undermine tradition. Finally, in small societies, it may be difficult to find an elder who is truly a disinterested party. In Regenvanu Family v Ross & Abel,[75] the first two assessors appointed to sit with the Supreme Court judge, pursuant to the Island Courts Act, had to be replaced after objections by the appellants.[76]


Lack of clear guidelines in relevant statutory and court rules has often resulted in an undue restriction of assessors’ roles. In Vanuatu, their role in appeals from the Island Court is not spelt out in the Act. In Regenvanu Family v Ross & Abel[77] the Island Court had been asked to determine the ownership of a piece of customary land. Assessors sat with the judge throughout the hearing of the appeal. However, the judge expressed the view that their function was merely to advise him on matters of custom, and not to participate in the decision making. Moreover, he limited their advice to answering specific written questions that he put to them.[78] The questions were very obviously written by a Western trained jurist, approaching his judicial task in the traditional Western manner.


This approach assumes that the judge knows what the pertinent questions are. This is a dangerous assumption, particularly in the case of expatriate judges whose lack of knowledge and understanding of custom may prevent them not only from knowing the answers, but also, from knowing the questions. Expatriate judges tend to assume that custom works in the same way as the common law and fail to recognise that in many important respects the two legal systems are very different. In the Regenvanu Family case, the appellate court failed to get advice from the assessors on aspects of custom outside the knowledge of the judge and to which he had not addressed his mind, as those aspects had no equivalent in the Western style legal system.


As a result, the appellate court not only reversed the decision of the Island Court but also added that the custom owners should be ‘the head chiefs for the time being of these two islands, who shall hold the land on behalf of their people in the capacity of trustees’. Among the judge’s most significant oversights was his failure to put any questions to the assessors regarding this order. Their advice would have been useful as to whether this was an acceptable solution under customary rules and practice. It is altogether probable that, in custom, it is not the practice to name the head chief as owner of the land, and especially not as a trustee – a concept that is peculiar to the common law.[79] The judge also ordered that the division of the land be agreed between the two head chiefs based on the proportionate populations of the two islands. Again, advice could usefully have been sought as to whether this was a workable scheme or whether a more appropriate procedure might be available under custom.[80] The translation of customary concepts into the nearest common law equivalent by Western-trained judges is another example of the ways in which custom is transformed by the courts into customary law.


iv. Demeanour of the Witnesses


When the courts have nothing else that will tell them the appropriate customary rule, they must fall back on asking the parties (and their friends and relations) to tell them what it is. But, when the only testimony about custom comes from those with an interest in the outcome of the case, the judges suspect that the parties may not be telling them the truth, especially when each side claims that the customary rules or practices are different.[82].


Thus, many cases are decided upon the basis of which side’s witnesses seemed the more credible, the better organised, the better able to remember long lists of erudite information, such as place names and family trees.[83] This is especially true of arguments between indigenous groups over the ownership of customary land, because land cases tend to turn on arguments about things that happened long before any of the parties were alive. The disputes usually center on who moved onto the land generations ago, who was then adopted by whom, which chief gave whose uncle rights to the land at some point before World War II, etc. Just about all the evidence is hearsay, people reporting what their fathers or grandfathers told them about events that happened before the parties were born. Malas Family v Songoriki Family,[84] a Vanuatu case decided in 1990, is a good example of the genre. In it, the judge opined that, whilst some witnesses were convincing, His Lordship felt that others had, ‘a tendency to exaggerate in an attempt to convince the Court their version is the correct one’.[85]


One problem with the focus on the believability of the witnesses is that the side with the better educations or better preparation will probably win, whether or not they in fact own the land under custom. In the Malas Family case, for example, David Hudson, counsel for the Songoriki family, prepared his clients exceptionally well. Before the hearing, each of them rehearsed his or her testimony, so that, by the time of the hearing, they all could tell their stories in an organised and persuasive manner.[86] The main witness for the Songoriki family gave the court written exhibits (including a written family history and family tree, old maps and deeds, key chapters from an anthropology book, lists of land names, the names of nakamals, and written statements of the witnesses) which, though most simply put in writing what the various witnesses were testifying about, nevertheless mightily impressed the court.[87] Finally, Hudson made sure to use as witnesses those members of the family and their supporters, including the then President of the Republic of Vanuatu, who spoke the most fluent English and were the most educated. Without suggesting for a moment that the Songorikis would not have won purely on the merits, it is nevertheless true that they won, in large part because the Malas family’s witnesses did not impress the judge and the Songoriki family’s did.


Another problem with the courts’ focus on the witnesses’ demeanour is that both sides may be telling the truth as they see it. This is particularly likely in cases like the Malas Family case, where the parties are testifying to things that happened before they were born. All of them might believe the stories they have been told about the land are true. If both parties appear credible, then what is the court to do? Hudson referred the court to the test suggested in Adjeibi Kojo II v Bonsie,[88]. in which the Judicial Committee of the Privy Council suggested that the best way to deal with a conflict of tradition was not to try to ascertain which of the witnesses seem more honest, but to look at the facts about who has used the land in what ways in recent years, using the current situation as a guideline to which of two competing histories is more probable.[89]


The Judicial Committee’s test is preferable to tests that focus primarily on the demeanour of the witnesses, because it focuses on actual facts, rather than on hearsay, communication skills and faulty memories. It has its own failings, however. Used consistently, it would tend to give the land to whichever party was currently in possession, even if that party had come into possession unlawfully, unless the other party could muster convincing evidence, based also on the facts of recent years, to show that the possessors took over the land wrongfully.


More likely, it may be impossible to determine which party is acting wrongfully and which not, or which party is telling the truth, and which not, because, from their own perspectives, each of them acted rightfully and each of them is telling the truth, not only about the facts, as they were told them, but also about the customary norms that ought to govern the case. At custom, there can be several rules operating simultaneously, and some, if not all, of them may be in conflict. For example, it may be the rule that the first family onto land is its owner, and, at the same time, that land won in war goes to the victor. Just to make things more complex, the same land might also be subject to the rule that heads of households determine which of their children should get which gardens and to the notion that those who cared for a person in his old age, regardless of their relationship to him, should get his land when he dies. Thus, when the opposing parties present conflicting norms to the court, it is not that one has put forward the true custom, and one a make-believe rule. Both are offering true customary norms.


It is very difficult for Western-trained judges to understand that, however, and next to impossible for them to do anything about it, once they do understand. Common law adjudication does not allow for multiple rules governing the same situation. A common law court seldom has to determine what the rule is; it usually has to determine only what the facts are and how the rule applies to those facts. So, faced with the conflicting stories in the land dispute, the judge will most probably react by deciding that one party’s rule-story is true, which makes the other’s rule-story false. For purposes of court proceedings, at any rate,


v. Observations on Finding Custom as Fact


Allott called it ‘juristically inelegant’ to treat custom as fact.[90] As this review of relevant cases suggests, a major problem with the requirement that custom be treated as fact is that none of the methods commonly used to prove custom as a fact seem consistently able to do so.


The cases reveal another problem with the notion that custom can be proved in the same way that facts are proved. When evidentiary rules refer to custom as a fact, it adds to judges’ confusion about what it is they are looking for when they are asked to use and apply custom. Saying that they are trying to ascertain custom, the judges sometimes come up with a fact, such as who was on the land at a certain time or whose uncle gave the land to which nephew, and sometimes a rule, such as whether the first person on the land is considered its owner or whether men are permitted to give their land to nephews. The former are facts; the latter are rules. But judges refer to both as custom, and use both interchangeably, although only the latter can truly become customary law.


b. Finding custom as law


If a court believes that custom is a fact, then the court is very likely to require a hearing in order to ascertain which fact is true and which is not. If a court believes that custom is law, then that court might feel freer to dispense with hearings, to find custom on its own, or to look for custom where other laws are found – in legislation and precedents.[91]


i. Legislation


Codifications of custom were produced during the colonial period in Africa,[92] but, though some might have been attempted in the Pacific, nothing pretending to completeness has been published. This may be just as well. A codification would lose the essence of custom because it would freeze the rules as they were at the moment they were written. Custom, by its very nature, is unwritten, changing all the time, as the culture of which it is an expression changes or simply to accommodate the needs of the parties.[93]


The Republic of the Marshall Islands is currently working on a the compilation of a customary code,[94] and there have been any number of statutes, and pieces of subsidiary legislation that have attempted to codify aspects of custom.[95] Many of them are about customary land tenure, because it is an area of custom that assumes great importance for both people and governments.[96] Codification of customary land rules is problematic, however, because, in most traditional Pacific societies, the customary norms governing interests in land are extremely flexible, giving various present and potential usufructuary rights – some overlapping, some even conflicting -- to quite a large number of people.[97] This system works very well for subsistence societies, where the rules are subject to mediation and compromise, in order to accommodate the changing needs of a shifting population.


Once colonialism and global capitalism turned land into a valuable commodity, however, rights to the proceeds became a matter for dispute, involving not only the customary land holders but also foreign and domestic industries, and the colonial (or post-colonial) government that supported industrialisation. To lower the transaction costs of buying, selling or leasing land, business and government want the ownership of every piece of land to be stable.[98] Codification of customary rules is a way to achieve stability, both of the law and of land ownership. Once the rules have been written, they are no longer subject to change, at least not short of a legislative majority. And once the rules are less susceptible to change, then whoever is denominated the land owner under them will stay the land owner – at least until she sells or mortgages the property.


Two attempts to codify land law in the region, the Administration Order No. 3 of 1938 of Nauru and the Native Land Act of Fiji,[99] both changed custom markedly, by the very attempt to organize it and write it down. In both Nauru and Fiji Islands, the courts still insist on applying the definition of custom contained in these regulations, even in the face of evidence that code and custom are very different. Both codes raise, then, a key question. Which aim is more important– the flexibility and accuracy that come from recognizing and applying custom as it actually exists at the moment it is being applied, or the predictability of outcome that results from turning custom into a code, even if that code turns custom into customary law?


ii. Precedent


Judges write judicial decisions for a living. If there is any source of law that they are sure they understand, it is judicial decisions. So, when circumstances require that they use custom, they are happiest if counsel can reassure them that the customary rule in question has been found and applied in an earlier case. Reliance on earlier cases fits, too, with the common law principle of stare decisis. For common law judges, it is an article of faith that the surest route to an accurate statement of the law is through the holdings of earlier decisions, particularly those of the higher appellate courts. Judges expect, and usually manage, to find somewhere in the cases rules appropriate to every situation. This is said to give common law the virtue of predictability. There is a rule for every transaction, and the parties can know what the rule applicable to their transaction will be before they negotiate the deal.[100]


Nothing could be less like custom than this. Custom is not written down anywhere, least of all by judges. There is no requirement of stare decisis. That is, there is no requirement in custom that, just because a rule was used once, the same rule must be used again, even in a dispute involving similar facts. There are many rules applicable to each dispute, and some of those may conflict. For some disputes, there may be no applicable rules. Or the rules may have changed since the last dispute of a similar nature was aired. Flexibility and change are hallmarks of custom.


Because the common law requires that courts follow precedent, the very use by a common law judge of a customary rule changes that rule. It becomes not only the one rule that the court will use to decide the case before it, but the only rule that will henceforth be called upon in that court, and all the courts inferior to it in the jurisdiction, to settle similar kinds of transactions. It will not be allowed to change as the community’s needs or values change, to abstain gracefully when conditions are not right for its application, to re-appear when they are, to be called upon or ignored, depending upon the circumstances or the relations of the parties, or their disparate interests.


The Solomon Islands case of Maerua v Kahanatarou[101] is an example of the power of precedent, but also of the willingness of one judge, at least, to find a way around it when the occasion warranted. In earlier litigation, one Robert Wari, a member of the Makira people in Solomon Islands, had commenced proceedings in the Local Court, claiming ownership of customary land through his female ancestors. Wari lost in the Local Court to the land’s current possessor, Wilsom Maerua, who claimed ownership through his male ancestors,[102] so Wari appealed to the Solomon Islands High Court, where he lost again. The rule seemed entrenched: two courts had held that succession to Makira customary land is patrilineal (inherited through the male line), not matrilineal (inherited through the female family).[103]


As it happens, succession in Makira was, and probably had always been, matrilineal. The courts were wrong. But the precedent had been declared. A year later, in another case, the dispute over that piece of land was raised again. Wilson Maerua was again sued, this time by one Ellen Kahanatarou, who, though not directly related to Robert Wari, also based her claim to the land on the contention that succession to land in that area is through females, not through males. This time, the High Court reversed the earlier judgment, holding that descent in that village is, indeed, matrilineal.[104] Read broadly, the decision in Maerua v Kahanatarou could stand for the proposition that the state courts in Solomon Islands will not insist on following earlier judgments about the nature of custom if those earlier decisions are shown to have been egregiously wrong. However, it should be noted that there were a number of special factors in this case that made it possible for the High Court to depart from the earlier decisions. In the earlier case, the Local Court had been concerned only with the demeanor of the witnesses and not with finding the right customary rule:[105] The essence of the High Court’s decision in the second case is that the earlier case was not binding precedent, because neither of the two courts hearing that case had given the question of patrilineality versus matrilineality the kind of evidentiary hearing or thought that is necessary to establish that a rule has actually been promulgated and will, henceforth, serve as a precedent.


And if the Local Court had considered the matter, instead of just considering the credibility of the witnesses, but had still decided it wrongly, would the High Court be unable today to overturn the decision? If the High Court in the first case had held its own evidentiary hearings or considered substantial evidence, or if the judge could be said to have been acquainted with custom of his own knowledge, would the judgment stand, even though incorrect? The High Court was lucky in Maerua’s case; it found a way to get itself out of an embarrassing mistake. Fears that they might not be so fortunate next time are precisely what make the courts so nervous about recognizing and using custom.


iii. Res Judicata


The differing perspectives of judges and litigants on common law doctrines like stare decisis and res judicata demonstrate the great extent of the differences between custom and common law. Judges expect cases to end once the round of appeals has been exhausted. Pacific Islanders are of the view that no dispute is ever entirely settled. Any disagreement can – and will – be re-opened whenever either party sees an opportunity to gain an edge, or whenever disagreements over other issues have re-instituted ill feeling between the parties. Moveover, in the Pacific, losers don’t stop; they keep going, bringing their cases to different forums, trying old cases over again in the same forum, in the continuing hope that, eventually, someone will declare them the winner.


Evidently, common law judges and indigenous Pacific islanders view the role of the formal courts differently. To the judges, the court is the place where a resolution of the dispute will be obtained. The state demonstrates its power by settling citizens’ disputes, and by upholding the rights of the winning party against the loser. Thus, once a judge has decided upon the appropriate rule and applied it to the parties’ dispute, that settles the matter forever, so far as judges are concerned.


Pacific islanders, however, do not view the court’s disposition as final, because, to them, courts are, like any other forum, just another counter in the negotiation game. If the judge, like a chief or village elder, comes up with a solution that does, indeed, satisfy both parties then, perhaps, the court decision will lay the dispute to rest for a while. But if either party goes away unsatisfied – and this is much more likely to happen in a common law court, where there is a winner and a loser, than in a traditional forum, where there is more flexibility -- then few Pacific islanders believe that the court has forever laid the dispute to rest.


Judges are forever reminding litigants that they cannot bring this case or that case, because the issue has already been decided, if not between the current parties, then in a case involving others.[106] And, when people nevertheless insist on bringing the case again, the judges presume that Pacific Islanders just don’t comprehend sophisticated legal concepts, like res judicata. Comprehension is not the problem. Pacific Islanders are attempting to treat the courts as part of the customary system, to turn law into custom, whereas the judges are trying to convince Pacific Islanders to treat the courts as part of the state legal system, to turn custom into law.


iv. Judicial Notice


There are very few examples of judges saying that, as a general matter, custom ought to be found by judicial notice.[107] Even in cases in which judges are themselves doing so, they tend to argue in favour of hearings and evidence.[108] But judges, especially indigenous judges, do it frequently. The benefit to custom is the respect that this accords it. The drawback is the possibility that the judge is wrong. In Waiwo v Waiwo and Banga, [109] for example, the Senior Magistrate found as a matter of judicial notice that adultery is a serious wrong in Vanuatu and that wives can expect a sizeable recompense from women who have had adulterous sex with their husbands. But it is not clear that the Senior Magistrate was correct. If he were, why, as he mentioned in his decision, did the custom chiefs on Tanna give so little to the injured wife?[110]


v. Observations on Treating Custom as Law


When a court wishes to find an applicable common law rule, the use of prior cases is the best and most accurate method to use. In choosing the most appropriate customary norm, however, the use of prior cases may be the least certain method. In most instances, at least for the immediate future, it will not be an available method, because so few cases have to date recognised and applied any of the rules of custom. For some time, each case that uses custom is likely to be a case of first impression.


Moreover, those cases that have recognised and applied rules of custom may not be useful for a number of reasons. The findings of the colonial courts tend to be unreliable because of the contempt in which most colonial judges held custom. However, even judges who respect Pacific cultures will discover that the very act of turning custom into customary law changes the customary rule. Custom, whether it is a customary norm or merely a customary practice, exists in behaviour. Reduced to a written rule of law, it becomes something other than it was. It ceases to be flexible. It ceases to operate as one among many rules, all equally applicable to a situation. It becomes the only rule that judges will henceforth apply. The ultimate irony of customary law is that, although state law must recognise and apply custom in order to make itself a part of the culture, state law cannot use custom without turning it into something else.


c An In-Between Approach


The decision of the Senior Magistrate[111] in Waiwo v Waiwo and Banga, a case from Vanuatu, illustrates an in-between approach, a way of finding custom that treats it both as fact and as law.[112] Although it still results in changing custom into customary law, it forges a customary law that may be truer to custom than are any of the other methods mentioned above. In the course of this case, the Senior Magistrate was called upon to determine the meaning of ‘damages’ in the Matrimonial Causes Act of Vanuatu.[113] He took the opportunity to review the place of custom in the formal system. He embarked upon a careful analysis of Article 95(2) of the Vanuatu Constitution, in the context of the Preamble, which founded Vanuatu society on ‘traditional Melanesian values’.[114] Vanuatu had been in the unenviable position of being a colony simultaneously of both the British and the French, and both had imported their own laws and legal systems into the colony. But colonial law had provided that British law applied only to British subjects and French law only to French subjects. Other foreigners could opt to be governed by one or the other, but ni-Vanuatu, the indigenous inhabitants of the colony, were not permitted the benefit of either legal system. They were governed by a network of native regulations.


The Senior Magistrate interpreted the Vanuatu Constitution to mean that the imported laws of the British and French continued after independence, as they had during the colonial period, to apply only to British and French subjects, and that neither would apply to ni-Vanuatu, as the Constitution of an independent nation would not foist the law of other states on its citizens.[115] Nor would it create the confusing situation in which either or both of two laws could apply to the same person or event, as would be the situation if ni-Vanuatu were to be subject to British and French law both. He concluded that the only relevant law for citizens was that enacted by Vanuatu’s own Parliament or declared by its courts. If no such law existed, he held, then resort must be had to custom:[116] And since there are large areas of life in modern Vanuatu not yet covered by statutes or by home-grown common law, the Senior Magistrate had created a sizeable role for custom in the legal system.


He then went on to a detailed discussion of the manner in which courts should go about finding custom and turning it into customary law. His discussion went beyond what would have been necessary merely to resolve the case before him. It is evident that the Senior Magistrate wanted to speed the process of developing customary law by laying out ground rules for how courts should go about finding and choosing which customs they should apply. He mentioned the three most common situations in which custom is raised and suggested guidelines for choosing which custom to apply in each of these situations: when both parties are ni-Vanuatu from the same area and share common customs, in which case that custom should apply; when both are ni-Vanuatu but come from areas with different customs, in which case the court should search for a ‘common basis or foundation’ and turn that shared foundation into a rule; and when one of the parties is ni-Vanuatu and the other is not.[117] He was less clear about what the courts should do in the last situation, though he did state that, even here, there should be a place for custom. The court should consider both whatever British or French law might be applicable and the applicable customary law, he said, and should ‘apply the law relevant to the case.’[118] He did not, however, give guidance on how to determine which law would be relevant to which case.


As to how courts should go about proving custom, the Senior Magistrate advocated a method somewhere between using judicial notice and the stringent procedures required for admitting ordinary factual evidence. He stated that the court should not be bound to ’observe strict legal procedure or apply technical rules of evidence’, but should admit and consider all relevant evidence, including hearsay evidence and expressions of opinion, and otherwise inform itself as it saw fit.[119] He appreciated that this was a very liberal approach and that it would make some judges wary, but he attempted to allay judicial fears about the elusiveness of custom with helpful advice. He pointed out that the most common means of ascertaining and proving customary law is by oral testimony of expert witnesses or by testimony from ordinary witnesses for the parties. He emphasised that the difference was that he ordinary witnesses were not qualified to give opinions on what customary laws were, but were limited to testifying as to certain historical events from which a Court might reach its own decision as to what the law ought to be.[120]


The Senior Magistrate (now, Acting Chief Justice) has continued to find and apply custom using the approach he first outlined in the Waiwo case.[121] It is an approach that recognizes the differences between custom and the common law, while understanding that, if custom is to be a part of a common law system, it must change to some extent. It will be interesting to see, as time goes on, the extent to which the Acting Chief Justice allows custom to change. Perhaps, he will deny the precedential value of custom, where that is a barrier to resolution of a dispute. Perhaps he will decide not to use a particular customary norm, because the relations of the parties or some other customary principle makes in inappropriate to do so. Perhaps, in other ways, he will show that he recognizes the customary nature of customary norms.


5 SOME TENTATIVE CONCLUSIONS


Chanock draws from his observations of the changes that custom undergoes when it becomes a part of the common law system, the conclusion that the post-colonial legal system in Africa need not – and perhaps should not – be infused with custom. Because today’s customs are not those that have governed indigenous people from time immemorial, he says, they are no more familiar as guides to behaviour than is the introduced law and morality; nor do they invoke any special feelings of allegiance because of their age and associations. Thus, Chanock concludes, those who argue for a return to custom –as a way of re-asserting nationhood in the face of colonialism, as a means of nation-building, or simply as a way of ensuring that people understand and obey the law – are mistaken. Today’s custom will provide none of those certainties.


In making these arguments, Chanock is not putting himself on the side of the colonizers. It is his experience that, however radical the agenda of those who called for the re-introduction of custom during the colonial period, custom has in Africa, in the post-colonial era, become the hallmark of the conservative. He notes, in particular, that those who do not wish women to have rights equal to those of men appeal to custom. This has happened, he says, because custom was changed during the colonial period. In particular, the change led to the removal from the official descriptions of custom of all those beliefs and actions that favoured commoners, democratic principles the young, the educated, or women.


With due respect to Professor Chanock for his groundbreaking work, we must partially disagree, at least insofar as the law of the Pacific Islands region is concerned. Everything that he says about the changes that custom has undergone, and is still undergoing, in Africa holds true for the Pacific. Colonialism and its aftermath have caused significant alterations to the beliefs, values, habits, norms and mores, of the peoples of the Pacific, especially those who have moved from traditional villages to plantations, mining towns or other urban centres. Moreover, as this Article demonstrates, even those customs that retain their traditional flavour are changed, in significant ways, when a judge uses them in the adjudicatory proceedings of the common law system. Finally, as Chanock notes, those who appeal to custom are all too likely to be doing so in support of the interests and agendas of the old and the powerful.


Taking all these qualifications into account, we still find that the state legal systems of the Pacific are faced with the continuing need to infuse themselves with custom. No matter how much custom has changed – no matter how much its immersion into the state legal system will further change it – it is still an emanation of Pacific Island cultures in a way that the common law of England, Australia or the United States is not. If that imported common law system is to have any relevance to the island states, then it must take on a Pacific patina, in the same way that Melanesian pidgin languages, which were once purely colonial impositions, have become mixed, but still viable parts of Pacific culture.[122]


That having been said, Chanock’s hesitations about the continuing use of custom remind us that, if custom is play a positive role in the state legal system, customary rules cannot be taken for granted. Due care must be taken to ensure that the courts understand the multiplicity of customary norms and the functions that customary rules play in informal dispute settlement. Even more importantly, judges should be alert to the underlying tensions between conflicting rules, ready to look at which rules are supporting which segments of society, so that the judges can use customary rules in a way that supports the policies the courts are trying to implement. These sorts of enquiries are not unusual for mediators in customary dispute-resolution forums, nor are they entirely alien to lawyers and judges trained in legal realism, but they will require of positivist judges an imaginative leap surpassed only by the distance that Pacific Islanders themselves have had to travel in their journey from pre-colonialism to the present.


[*] Barava tru’ is a phrase from the oath given to pidgin-speaking witnesses in the state courts of Solomon Islands. It means “really true” or “very true”. The entire oath is roughly as follows: ‘Stori bibi mi go ahed fo talim, hemi tru, barava tru, hemi no bulsit,’ which means, approximately, “The story I am about to tell is true, really true, and not a lie’.
[**] Parts of this Article were taken from our monograph, Proving Customary Law in the Common Law Courts of the South Pacific, Occasional Paper Number Two (London: The British Institute of International and Comparative Law, 2002). The authors would like to thank their colleagues and students on both sides of the Pacific for prompting us to consider many of the themes and ideas that thread their way through this Article. Thanks, especially, to Christine Stewart, David Hudson and Ken Brown, for linguistic and other necessary information, to Bruce Ottley, for the continuing supply of documents, and to Martin Chanock, for the inspiration.

[***] Jean G. Zorn is a Professor of Law and Director of the Legal Skills and Values Program at the Florida International University College of Law. Until this year, she was a Professor of Law at the City University of New York School of Law, and would like to express her thanks to the Dean of that law school, Kristin Booth Glen, for giving her the time to complete this Article, to the City University of New York Research Foundation for its financial assistance, and to her husband Steve Zorn for dinner and other sustenance. Professor Zorn has also taught at the University of Papua New Guinea Law Faculty and at the University of the South Pacific Law School. She has been doing research on customary law in the Pacific for more than 20 years and has published numerous articles and monographs.

[****] Jennifer Corrin Care is Senior Lecturer at the TC Beirne School of Law, University of Queensland. She was formerly Associate Professor at the University of the South Pacific Law School. She has practised as a barrister and solicitor in Solomon Islands since 1986 and has published extensively on customary law in the Pacific.

[1] Chanock, M ‘Neither Customary nor Legal: African Customary Law in an Era of Family Law Reform,’ 3 International Journal of Law and the Family 72-88, p80 (1989)
[2] Like all generalizations, this one is subject to many exceptions. There were (and still are) in both Africa and the Pacific, many societies that differed from the norm described here. In the Pacific, for example, Polynesian societies like Samoa and Tonga were characterized by marked division between kings and nobility on the one hand and commoners on the other. In Africa, there were large nations, governed by royal families and extending their sway over vast territories. There are numerous ethnographies, histories and memoirs reconstructing the stories of pre-colonial societies. Examples can be found in the references cited in Chanock, M, Law, Custom and Social Order: The Colonial Experience in Malawi and Zambia, 1985, Cambridge: Cambridge University Press, and Zorn, J and Corrin Care, J, Proving Customary Law in the Common Law Courts of the South Pacific, Occasional Paper Number Two, 2002, London: The British Institute of International and Comparative Law.
[3] Hoebel, EA, The Law of Primitive Man, 1968, New York: Scribner; Gulliver, PH, Disputes and Negotiations : A Cross-Cultural Perspective (Studies on Law and Social Control) 1979, New York: Academic Press. See also the ethnographies collected in A.L. Epstein, AL (ed.) Contention and Dispute: Aspects of Law and Social Control in Melanesia, 1974: Canberra: Australia National University Press, and in Bohannan, P (ed.) Law and Warfare, 1967, New York: Doubldeday.
[4] Chanock, supra notes 1 and 2.
[5] Bayne, P ‘Legal Development in Papua New Guinea: The Place of the Common Law,’ 3 Melanesian L.J. 9 (1975).
[6] Chanock, supra note 1, pp77-78.
[7] Strathern, AM ‘Official and Unofficial Courts: Legal Assumptions and Expectations in a Highlands Community,’ New Guinea Research Bulletin No. 47 (1972)
[8] Chanock, supra note 1, pp81-83; Chanock, supra note 2, pp172-191; Zorn, J ‘Family Law – Marriage and Divorce,’ in Zorn, J, Custom and Customary Law, Course Book One 1994, Suva: University of the South Pacific, University Extension, pp84-102; McRae, H, “Reform of Family Law in Papua New Guinea,” in Weisbrot D., Paliwala A., and Sawyerr A (eds.) Law and Social Change in Papua New Guinea 1982, Sidney: Butterworths, 1982, p132.
[9] Chanock, supra, notes 1 and 2; see also Chanock, M ‘Law, State and Culture: Thinking about Customary Law after Apartheid,’ Acta Juridica 1991, pp52-70. Writers who have also argued that the colonial experience in general, and courts in particular, convert custom into customary law, include Woodman G ‘Some Realism about Customary Law: The West African Experience’ (1969) Wisconsin L. R. 128; Gordon, R ‘Vernacular Law and the Future of Human Rights in Namibia,’ Acta Juridica 1991, pp86-103; and, Snyder, F ‘Customary Law and the Economy,’ 28 J. African Law 34 (1984). For a similar argument about what happened to custom during the colonial period in the Pacific, see Fitzpatrick, P ‘Traditionalism and Traditional Law,’ 28 J. African Law 20 (1984).
[10] Chanock, supra note 2, pp113-121.
[11] Id., p177
[12] Id., p188
[13] Id. P177
[14] Moore, SF, Law as Process: An Anthropological Approach 1978: London: Routledge, Kegan & Paul, pp55-58.
[15] Actually, most colonial societies consisted not just of two cultures (that of the colonizers and that of the colonized) but of many cultures, since, in both Africa and the Pacific, indigenous cultures differed from one tribe or clan to another, from one region to another, even from one village to another. Moore, SF, Social Facts and Fabrications 1986: Cambridge: Cambridge University Press (on Africa); Gordon R, and Meggitt, M, Law and Order in the New Guinea Highlands: Encounters with Enga 1985, Hanover, N.H.: University Press of New England, 1985 (on the Pacific).
[16] See, for example, Loumia v DPP [1985-6] SILR 158 (Solomon Islands) (court did not accept in defendants’ excuse that customary payback norms required that they kill the victim); Ottley, B, and Zorn, J, ‘Criminal Law in Papua New Guinea: Code, Custom and the Courts in Conflict,’ 31 American J. Comparative L. 251 (1983).
[17] Weber, M, Law in Economy and Society (New York: Simon & Schuster; 1967 [originally published 1925])
[18] Another way to phrase this might be to say that custom and state law disagree about what makes situations similar or different. Customary processes are based on the belief that every situation is unique, and demands a special mixture of norms in order to be resolved. To the extent that custom recognizes similarities, it would be only if every fact – especially the facts of relationship, power and status – were the same. State law essentially believes that there are many situations similar enough so that the same rule, or a carefully worded exception to that rule, can apply. The similarities do not concern status or relationship – except where those figure as elements of the rule – as in statutory rape, incest, intestate succession, or other rules based directly upon kinship.
[19] Chanock, supra note 2, pp183-184
[20] For the primary mention of the custom in the Old Testament, see Ruth, ch. 4, verses 9-17.
[21] Chanock, supra note 2, pp183-84.
[22] Zorn, J, ‘Lawyers, Anthropologists, and the Study of Law: Encounters in the New Guinea Highlands,’ 15 Law & Social Inquiry 271-304 (1990)
[23] Redfield, R, The Little Community (Chicago: University of Chicago Press, 1973).
[24] Llewellyn KN, and. Hoebel, EA, The Cheyenne Way: Conflict and Case Law in Primitive Jurisprudence 1983 [originally published 1941] Norman: Univ. of Oklahoma Press
[25] Fitzpatrick, P, Law and State in Papua New Guinea, 1980; Mair, L, Australia in New Guinea, 1970, Melbourne: Melbourne Univ. Press; Wolfers, E, Race Relations and Colonial Rule in Papua New Guinea 1975, Sydney: Australia and New Zealand Press
[26] Narakobi, B, ‘We the People, We the Constitution,’ in Zorn, J & Bayne, B (eds.) Lo Bilong Ol Manmeri, 1975, Port Moresby: University of Papua New Guinea, p19; Somare, Sir M, ‘Law and the Needs of Papua New Guinea’s People,’ in id., p14. For the argument that this hortatory use of custom also changes it (or, at least, misstates it), see Keesing, RM, ‘Creating the Past: Custom and Identity in the Contemporary Pacific’, 1(1) Contemporary Pacific (1989)
[27] Chanock argues that it is not necessary to view custom as “law” in order to believe that it is the equal of state law. The legal pluralists offered a slightly different solution to the dispute. They posited that, in every society, there are many laws, one for each ‘semi-autonomous social field’ (each family, work or school group, club, church, or other organization) to which each actors belongs, and that many of these non-state sources of law have more immediacy and more power over individuals than does the state. Griffiths, J, ‘What is Legal Pluralism?’ 24 J. Legal Pluralism 1 (1986); Moore, supra at note 14.
[28] Zorn and Corrin Care, supra note 2.
[29] Chanock, supra note 2, pp183-184.
[30] See for example, paragraph (a) of the declaration in the Preamble to the Constitution of Solomon Islands, scheduled to the Solomon Islands Independence Order 1978, SI 1978/783 (UK).
[31] See eg, section 76 and schedule 3, Constitution of Solomon Islands 1978.
[32] Corrin Care, J, et al, Introduction to South Pacific Law, 1999, London: Cavendish, 37-38; Zorn, J, Custom and Customary Law, Course Book Two, 1994, Suva: University of the South Pacific, 38-45.
[33] The rules of evidence in most common law courts also require that foreign law be proved, which means that, in those jurisdictions which require that custom be treated as fact, custom, is treated as if it were imported, whereas the introduced common law is treated as if it were home grown.
[34] Allen, CK, Law in the Making, 1964, 7th ed, 132.
[35] Id, at 129.
[36] Id, at 130.
[37] Zorn and Corrin Care, supra note 2, pp4-19.
[38] Allen, supra note 34, p129.
[39] See eg Constitution of Solomon Islands 1978, sch 3, para 3.
[40]. For further discussion of the nature and limitations of the adversarial system, see Ipp, DA, ‘Reforms to the Adversarial Process in Civil Litigation’, (1995) 69 ALJ 705; Eggleston, LR, ‘What is Wrong with the Adversary System?’ (1975) 49 ALJ 428; Twining, W (ed), Legal Theory and the Common Law (1986) London: Blackwell.
[41] Epstein, AL (ed), Contention and Dispute: Aspects of Law and Social Control in Melanesia, 1974, Canberra: Australian National University Press
[42] Allen, supra note 34, at pp96-97.
[43] Zorn and Corrin Care, , supra, note 2, at pp4-25
[44] Constitution of Fiji Islands 1997, s 186(1); Constitution of Marshall Islands 1978, Art X, s 2; Papua New Guinea Constitution 1975, Schedule 2.1, para (3); Constitution of Solomon Islands 1978, Schedule 3, para 3(2); Constitution of Vanuatu 1980, Art 51.
[45] Underlying Law Act 2000 (PNG); Laws of Tuvalu Act 1987; Laws of Kiribati Act 1989; Customs Recognition Act 2000 (SI) (not yet in force).
[46] Niue Act 1966(NZ); Custom and Adopted laws Act 1971 (Nauru).
[47] Evidence Act Cap 15, s 5 (Tonga); Evidence Act Cap 1, 28 MIRC, s 56 (Marshall Islands).
[48] The Island Courts Act, Cap 122, s 22 (Vanuatu); Land Act Cap 132 s 144 (Tonga).
[49] For example, the Wills Probate and Administration Act Cap 33 (Solomon Islands).
[50] Zorn and Corrin Care, supra note 2, at pp4-13.
[51] Laws of Kiribati Act 1989; Laws of Tuvalu Act 1987; Underlying Law Act 2000 (PNG).
[52]. To'ofilu v Oimai, unreported, High Court, Solomon Islands, Civ App. 5/96, 19 June 1997 (held that an evidentiary hearing was required before the Local Court’s findings about custom could be overturned); Banga v Waiwo, unreported, Supreme Court, Vanuatu, Civ App. 1/96, 17 June 1996 (held that custom can be used only as a last resort, when no other law, local or imported seems applicable, and, if custom were to be used, a hearing would be necessary; this holding would probably be overruled today); Remengesau v Sato, unreported, Supreme Court, Palau, Civ App 5/93, 6 March 1994.
[53] For an exception, see eg Toofilu v Oimai, unreported, Supreme Court, Solomon Islands, Civ App 5/96, 19 June 1997. See also Gelua v Kakamo, unreported, High Court, Solomon Islands, Land App. 6/91, 4 February 1994
[54] For example, in Akubor v Nauru Lands Committee and Jones, unreported, Supreme Court, Nauru, Land App. 5/91, December 1997, Dillon J invited the parties to offer expert testimony on the relevant custom, and, when the parties failed to supply such testimony, used the custom in deciding the case anyway. The Supreme Court of the Republic of the Marshall Islands encourages judges to take judicial notice of those customs that are widespread and well-known: Jacklick v.v Jejo, unreported, High Court, Marshall Islands, Civ App 42/83. This follows the previous practice of the Trial Division and the Appellate Division of the High Court of the Trust Territories, applying the Trust Territory Code, s 21, see eg, Mutong v Mutong (1964) 2 TTR 588; Basilius v Rengiil (1963) 2 TTR 430; Kenyul v Tamangia (1964) 2 TTR 648; Lanjutok v Kabua (1968) 3 TTR 630. The rule in the Supreme Court of the Federated States of Micronesia is less clear; see, Alaphonso v FSM, 1 FSM Intrm. R. 209 (App. 1981); Semens v Continental Airlines, Inc., 2 FSM Intrm. R. 131, 140-141 (Pon. 1985). Tonga has avoided the question by asserting that custom is written into its statutes: Powles G, ‘Tonga’ in Ntumy M (gen. ed.) South Pacific Islands Legal Systems, 1993, Honolulu: University of Hawaii Press, 315-341, 318-319. An exception is Palau, where the courts do require custom to be pleaded and proved: Ngirmekur v Municipality of Airai, 7 T.T.R. 477 (1986); Udio and Irorow v Dirrechetet, 1 ROP Intrm. R. (App. Div 1984).
[55] Judges often discuss customary rules as if they were facts, not rules. See, for example, Manie & Kaltabang v Kilman (1980-88) 1 VLR 343, at 343.
[56] (1980-88) 1 VLR 236.
[57] Id, at pp. 252-253. See also Akubor v Nauru Lands Committee and Jones, unreported, Supreme Court, Nauru , Land App. 5/91, December 1997.
[58] For two different responses by the same judge to anthropological evidence, compare the decisions of Thompson, J, then Chief Justice of Nauru, in Dogirouwa [1969-1982] Nauru LR 9, Part B: Land Appeals, 7 May 1969, and Grundler v Namaduk & ors. [1969-1982] Nauru L R 92, Part B: Land Appeals, 8 May 1973. .
[59] Nanda, S & Warms, R, Cultural Anthropology, 6th ed., 1997, NY: Wadsworth. See also Malinowski, B, Crime and Custom in Savage Society, 1926, reprinted 1984, New York: Greenwood.
[60] Marcus, G and Fischer, M, Anthropology as Cultural Critique: An Experimental Moment in the Human Sciences, 1999, Chicago: University of Chicago Press.
[61] Herdt, GH, Ritualized Homosexuality in Melanesia, 1993, Berkeley: University of California Press; Mukhopadhyay, C and Higgin, P, ‘Anthropological Studies of Women’s Status Revisited,’ 1988 Annual Review of Anthropology 17: 161-195; Weiner, A, Women of Value, Men of Renown, 1983, Austin: University of Texas Press.
[62] Or, in the Malas Family case, the forebears of the people now before the court.
[63] Knauft, B, From Primitive to Postcolonial in Melanesia and Anthropology, 1999, Ann Arbor: University of Michigan Press; Carrier, JG (ed) History and Tradition in Melanesian Anthropology, 1992, Berkeley: University of California Press.
[64] Murphy, P, Evidence, 6th ed, 1997, London: Blackstone Press Ltd, 538. See also Tomalana v Drug House of PNG [1991] PNGLR 65 at 69, for an explanation of the use of reference works and treatises on matters warranting judicial notice.
[65] Read v Lincoln (Bishop) [1892] UKLawRpAC 40; [1892] AC 644.
[66] Birrell v Dryer (1884) 9 App Cas 345.
[67] White v Bywater [1887] UKLawRpKQB 86; 19 QBD 582.
[68] It is not clear whether dictionaries are admissible as evidence per se or only to refresh the judge’s memory on a matter judicially noticed: Howard, MN, Crane, P and Hochberg, D (eds), Phipson on Evidence, 14th ed, 1990, London: Sweet & Maxwell, 797.
[69] Howard, MN, Crane, P and Hochberg, D (eds), Phipson on Evidence, 14th ed, 1990, London: Sweet & Maxwell, 781.
[70] Western Samoan Trust Estates Corp. v Tuionoula, Saipa’ia & ors. [1980-1993] WSLR 181.
[71] With the accession to the bench of more indigenous judges, this may be changing. See eg, Dae v Pitia, unreported, High Court, Solomon Islands, Land App 1/1992, 8 June 1995, at 1.
[72] Grundler v Namaduk & ors. [1969-1982] NLR 92, Part B: Land App, 8 May 1973. But compare Gelua v Kakamo, unreported, High Court, Solomon Islands, Land App 6/1991, 4 February 1994.
[73] Allott, AN, ‘Customary Law in British Africa’ (1957) 20 MLR 244 at 250.
[74] For an explanation of the role of assessors in an African context see King Emperor v Tirumal Reddi (1901) ILR 24 Mad 523, cited in Allott, Id., at 249.
[75] (1980-88) 1 VLR 284.
[76] The nature of the objection is not specified in the judgment, but is presumed to have been the assessors’ relationship to the respondents.
[77] (1980-88) 1 VLR 284.
[78] One of the Chiefs was indisposed, the court associate had to travel to the Chief’s village to record his answers in writing and bring them back: Regenvanu Family v Ross (1980-88) 1 VLR 284 at 286. We are not told whether this was the reason that the judge’s interaction with his assessors was limited to written questions, or whether the judge would have prepared written queries regardless.
[79] In fact, it is stated in the judgment that there was no head chief for Uripiv and the people of Uripiv were directed to elect one. In Solomon Islands it has been made clear that customary land representatives are not akin to trustees: See eg, Lilo and Another v Ghomo [1980/81] SILR 229; Kasa & Kasa v Biku and the Commissioner of Lands, unreported, High Court, Solomon Islands, civ cas 126/1999, 14 January 2000.
[80] In Manie and Kenneth Kaltabang v Sato Kilman,81 the assessors appear to have played a slightly more active role.
[82] Harvey, CP, The Advocate’s Devil, 1958, at p 79.
[83] Recent cases in which the courts have done this include Dae v Pitia, unreported, High Court, Solomon Islands, Land App. Case 1/1992, 8 June 1995; Manie & Kaltabang v Kilman (1980-88) 1 VLR 343; Malas Family v Songoriki Family (1980-88) 1 VLR 235 (decided 1990).
[84] (1980-1988) 1 VLR 235.
[85] Id, at 253-254.
[86] Conversations with Mr. Hudson, October 1999.
[87] See text supra under heading ‘Books, Treatises and Other Documents’.
[88] [1957] 1 WLR 1223 at 1226-1227.
[89] Id, 235-236. The test suggested by the Judicial Committee was also used in S. Pafua v Motu’apuaka [1908-59] Tonga LR 83.
[90] Allott, AN, ‘supra note 73.
[91] However, it may also lead courts to the opinion that customary law must be enshrined in a statute before it can be enforced. See, eg, Fiji Constitution Review Commission, Towards a United Future, 1996, Parliamentary Paper no 34/96 at para 17.103.
[92] E.g., the Natal Code of Native law discussed in Allott, supra, note 73.
[93] Id.
[94] Customary Law Commission Act 1989 (Marshall Islands), discussed in Zorn and Corrin Care, supra, note 2.
[95] E.g., the statutes listed in s 185 of the Constitution of the Republic of Fiji Islands 1997.
[96] Administration Order No 3 of 1938, Regulations made under Section 4 of Native Administration Ordinance No 17 of 1922, Nauru; Native Land Act Cap. 133, Fiji
[97] Crocombe, R (ed), Land Tenure in the Pacific, 3rd ed, 1987, Suva: University of the South Pacific; Lundsgaarde, HP (ed), Land Tenure in Oceania, 1974, Honolulu: University of Hawaii Press.
[98] Fitzpatrick, P ‘The Knowledge and Politics of Land Law,’ 11 MLJ 17 (1983).
[99] Cap 133.
[100] Simpson, B, ‘The Common Law and Legal Theory,’ in Twining, W (ed), Legal Theory and Common Law, 1986, London: Blackwell, 8-25.
[101] [1983] SILR 95.
[102] Id, at 96.
[103] Id, at 96-97, quoting the earlier judgment.
[104] Id, at 98.
[105] Id. at 99
[106] Zorn and Corrin Care, supra note 2, pp61-65.
[107] For an explanation of the doctrine of judicial notice and how it operates in the Pacific, see Tomalana v Drug House of PNG [1991] PNGLR 65.
[108] For example, the Senior Magistrate in Waiwo v Waiwo & Banga unreported, Senior Magistrates Court, Vanuatu, Civ Cas 324/1995, 12 February 1996.
[109] Id.
[110] The Senior Magistrate awarded 10,000 vatu (about Aus $80) to plaintiff; the Tanna chiefs had awarded her only 500 vatu.
[111] The then Senior Magistrate is now Acting Chief Justice of the Vanuatu Supreme Court.
[112]. Unreported, Senior Magistrates Court, Vanuatu, Civ Cas 324/1995, 12 February 1996. The decision was overruled by the Vanuatu Supreme Court. Banga v Waiwo, unreported, Supreme Court, Vanuatu, Civ App 1/1996, 17 June 1996.
[113] Cap 192.
[114] Article 95(2) reads as follows: Until otherwise provided by Parliament, the British and French laws in force or applied in Vanuatu immediately before the Day of Independence shall on and after that day continue to apply to the extent that they are not expressly revoked or incompatible with the independent status of Vanuatu and wherever possible taking due account of custom.
[115] During the colonial period ni-Vanuatu were governed by Joint Regulations, issued by the British and French authorities acting in concert.
[116]. Waiwo v Waiwo and Banga, unreported, Senior Magistrates Court, Vanuatu, Civ Cas 324/1995, 12 February 1996, p7.
[117] Id.
[118] Id,
[119] Id, p10.
[120] Id.
[121] See, for example, Molu v Molu No. 2, unreported, Supreme Court, Vanuatu, Civ Cas 30/1996; Mat Cas 130/1996, 15 May 1998 [decision by Vincent Lunabek, Acting Chief Justice]
[122] Making it impossible to translate pidgin phrases into English word for word, as the less than literal translation in footnote * of the Solomon Islands pidgin Oath to the Court, used in the title of this Article, demonstrates.


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