Saturday, April 26, 2014

Custom Law is a Living Law

In the research on indigenous jurisprudence I was challenged to think about what this utterance means: “Customary Law is a living law. It has a direct connection to people.” It evoked the deep interest I have in indigenous knowledge systems. In kindred spirit with Dr. Mange Matui I found his lectures on Jurisprudence last semester at UPNG enriching to this end.

I learnt that customary law is a living law. It has a direct connection to people. Without customary law our society would not have survived more than 50,000 years. Customary law has enabled our multicultural environment to structure, organize, and maintain itself through the test of time. Customary law has been the source of strength, power, vitality, and inspiration to the people of Papua New Guinea before the arrival of Europeans on its shores.

The Underlying Law Act (2000) defines customary law as “the customs and usages of the 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 from time immemorial.”

Papua New Guinean Ways

In the Preamble of The Constitution it is clear that Papua New Guinea ways are privileged. In his publication: Foundations for Nationhood (1975; 2010) Bernard Mullu Narokobi elucidates the basic principle behind this goal is that Papua New Guineans are a people, a race, and a nation with worthwhile pursuits in the cultural ways that define them:  “An emphasis on Papua New Guinean ways seeks to give encouragement to the discovering genius of our people” (35).

Custom is recognized as one of the laws of country under The Constitution of Papua New Guinea: “Therefore, custom is the state law” which means “customary laws and the state laws both apply at the same time and control behaviours of a person in the society” (Matui 2012:1).

The Constitution encourages us to develop ourselves through the use of the Papua New Guinean forms of social, political, and economic organization. What it appeals to is that in whatever way we do things and engages ourselves with we must first look at what we already have and possess as our innate characteristics or abilities as a people with long and deep ancestral foundation in this land. 

In our endeavors, we must keep in mind the following goals and principles: “The cultural, communal and ethnic diversity of our people is recognized as positive strength. There should be fostered a respect and appreciation for traditional ways of life and culture-including language-in all their richness and variety and a willingness to apply these ways dynamically and creatively for the tasks of development” (cited in Narokobi 1975; 2010: 33).


In 1983 the Law Reform Commission of Papua New Guinea published Customary Law in Papua New Guinea: A Melanesian View, edited by Richard Scaglion. This publication was based on the research data assembled on customary law practices in Papua New Guinea. “The papers in this collection,” writes Scaglion (1983) “represents summaries of principles of customary law written by University of Papua New Guinea student researchers who worked in their home areas over their long vacation either in 1979-80 or 1980-81. They are meant to describe the emic or ‘insiders” view of customary law as seen through the eyes of members of their respective societies” (1983: i).

Custom and Law in Melanesia

The more pronounced discussion on law and custom is in Narokobi’s Lo Bilong Yumi Yet: Law and Custom in Melanesia (1989). A starting point in his discussion is the general consideration of law in most Melanesian communities. Narokobi writes: “In discussing law in classical Melanesian, we are concerned about the ways of the people in their total environment, both physical and meta-physical, tangible and intangible, concrete and abstract. If law is used to indicate an expected result or outcome which would usually occur, but may not occur in a particular situation in a community or omitting an act, then we would be prepared to accept the use of the term: law in Classical Melanesian societies” (1989: 14). 

The discussion that Narokobi is making here arrests the notions we hold about law and its application in the conventional sense of the term. Narokobi cautions us from taking such a path in placing law in classical Melanesian societies: “But if the law is used to refer to ‘specific social technique which consists of the bringing about of the desired social conduct of man through the threat of a measure of coercion which is to be applied in case of contrary conduct,” Narokobi argues, “then, we would prefer not to use the term ‘law’ and instead use the English approximations of fashion or the way of doing certain things to represent the law. We will adopt the former use of the word law,” (1989: 14).  The foundation of the Melanesian jurisprudence must be a set of carefully described rules and key starting points for the proper conduct and way of doing things in society.

 “Law in modern states is seen as coercive power. It suggests punishment with a corollary of a promise of a reward. Good is rewarded with a place in heaven which evil is punished with damnation in hell” (Narokobi 1998: 14). It not a conscious decision to obey, but in Melanesia people obey the laws or taboos from a conditional impulses to obey and not because of conscious decision to obey.

Law is understood here in the sense of doing and living life in a good way and within the bounds of what constitutes good rather than that which would lead to bad, negative, or any such characteristics.

In typical Melanesian societies existence of law means that behavior, attitude, and manner is curtailed within the limits that define such qualities as acceptable, ethical, and above all, respect of others. Out traditional societies are kept together once all these are observed.

Next week I will continue my discussion with the second part of this topic.

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