Reconciling customary law and received law in Melanesia
: the post-independence experience in Solomon Islands and Vanuatu

  • Kenneth Brown

    Student thesis: Doctor of Philosophy (PhD) - CDU


    Solomon Islands attained independence in 1978, Vanuatu in 1980. During the colonial era foreign systems of law, English in Solomon Islands and English and French in Vanuatu, were introduced and widely applied. 

    Naturally enough independence brought with it the feeling and aspiration that customary law should play a vital role in the legal affairs of the new nations and to this end their respective Constitutions incorporated formulae for the general application of customary law. The constitutional documents did not prescribe that customary law was to govern specific situations and circumstances but chose instead to lay down a broad formula for its applicability. 

    These formulae will be examined and the post-independence case law assessed to chart the extent to which customary law has been accorded recognition and applied as a source of law, especially in relation to its standing vis-a-vis received law. This examination will concentrate on family law and succession, realms in which customary law is particularly relevant and plays a prominent role. The thesis will consider whether or not progress has been made with regard to reconciling customary law and received law so that they can operate smoothly in tandem in the legal system. 

    Modem fundamental rights agendas are enshrined in both Constitutions. The demands of these often conflict with custom particularly in the realm of gender equality since customary law as presently established is dominated by an ethos of male control. Existing statutory provisions and recent case law will be scrutinised to pinpoint the areas in which discord between custom and modern rights charters is most acute. This aspect will be explored with emphasis on the issue of whether or not custom is flexible enough to adapt so that it can accommodate the expectations of the rights provisions.
    Date of Award2003
    Original languageEnglish
    SupervisorAughterson Ned (Supervisor)

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