Academic journal article Journal of the Royal Anthropological Institute

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

Academic journal article Journal of the Royal Anthropological Institute

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

Article excerpt

It is by now a truism that in Papua New Guinea (PNG) the 'problem' of legal pluralism is an especially vexing one for lawyers and anthropologists alike (Aleck 1993; Donne 1987; Goddard 2000; Westermark 1986). The country's internal diversity is notable both for its magnitude and its indigenous rather than colonial derivation, with over 700 linguistic and cultural groups and a negligible settler population. In this environment, old legal forms are perennially pressed into the service of new demands, causing them to change shape and, more particularly, to take on the appearance of something unprecedented. Most recently, this has occurred with the concepts of intellectual and cultural property and claims made in their name. In addition to being rapidly expanding presences on the horizon of anthropology (M. Brown 1998; Brush 1993; Posey & Dutfield 1996), these apparently novel grounds for claim-staking are of some urgency to legislators and legal scholars in PNG, which has in recent years become a party to intern ational treaties, such as the World Intellectual Property Organisation and the Agreement on Trade--Related Aspects of Intellectual Property Rights (Kalinoe n.d.). As such, it often presents an image, both to itself and to outsiders, of a nation struggling to meet the demands of participation in a networked world (Foster 1995; Imbun 2000; Kaputin 1975; Kirsch 2001a; Toft 1997). My concern in this article is with the ways in which relations between the PNG state and the world at large are replicated via legality on the scale of the local (Wastell 2001). If the hybrid and hybridizing nature of a network implies a transcendence of the local (Strathern 1996), in what ways do nominally 'isolated' groups of people participate in the current politico-economic dispensation? One solution enjoying some popularity in PNG and elsewhere in the Pacific is for the legislation increasingly required by membership in international trade bodies to be drafted so as to take into consideration indigenous concepts of property and it s movement. In the past, such considerations were placed under the rubric of 'customary law', which has now become canonical in discussions of PNG's legislative goals. The economic innovations of Papua New Guineans have undoubtedly 'made their name' in the anthropological imagination. This article, however, represents an attempt to track the movement of custom and customary law through different spheres of the PNG judiciary system, and to ask whether it is always what it appears to be. This, too, is not a new question; the historical transformations of customary law have been extensively documented in many ex-colonial societies, most notably in Africa (e.g. Gluckman 1969; Moore 1989). But because of the renewed demands which may be placed on customary law in the near future, this is a timely moment at which to address these issues in the context of PNG's contemporary legal climate.

Of customary law in PNG, this much is certain: it is a composite. My aim here is to ask what it is actually composed of, and how it comes to be so composed. The PNG Constitution offers three tiers or concentric domains of law: constitutional law, other statutes, and custom. The Constitution defines custom as 'the customs and usages of indigenous inhabitants of the country existing in relation to the matter in question at the time when and the place in relation to which the matter arises, regardless of whether or not the custom or usage has existed since time immemorial' (Independent State of Papua New Guinea Schedule 1.2).

This is, for a legal definition, a reasonably generous one, although it has been pointed out that this is in fact a definition borrowed from British colonial legislation from pre-Independence Ghana and the Solomon Islands (Gordon & Meggitt 1985: 194) and that it fails to spell out what a specifically PNG customary law might look like, thus making it hard to imagine how such legislation could actually be drafted and enforced. …

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