Defining the formless: Customary law in the Pacific
An anthropologist and a lawyer walk into a bar. The bartender thanks them for their custom, thoroughly confusing everyone. While this joke shows why legal anthropology has never taken off as a source of comedy, it also illustrates the difficulties in applying custom in a legal setting. Lawyers, needing a term to describe the way colonised societies regulated their affairs through custom and practice, rather than through state law,1 used ‘customary law’. As a term, this has been called ‘imprecise’2 and ‘self-contradictory.’3 Some argue that:
[f]ormulated as an explicit rule [customary law] is structurally, behaviourally and logically opposed to what in social science terms emerges as an unarticulated but observable pattern of behaviour, albeit eventually manifest by cumulative social assessments of approval or disapproval.4
This article describes how ‘customary law’ or ‘custom’ has been defined in Pacific legislation, and how those definitions have been applied by the courts. Of course, this is a far cry from analysing how custom actually works. To many people living lives governed by custom, the way legislation written in far away capital cities defines the concept is as relevant as the font the legislators decided to use.