Postcolonial Paradox

Written By Elikem Logan
 

A comparative analysis of ‘custom’ with reference to Papua New Guinea.

This essay asks whether a nation independent from colonial rule ought to reinstate precolonial laws upon attainment of politico-legal self-determination. This is answered through inquiry into ‘custom’–a term used by colonial forces to denote precolonial law–and comparison of the term’s various conceptions to make sense of the challenges involved in reifying the customary law. Analysis of Martin Chanock’s work on customary law produces a dual definition of custom which is characterised by the colonial encounter. We employ these to form an interpretation the process by which custom in the precolonial sense falls out of use in the hands of the colonial regime. Closely guided by Melissa Demian’s work on the Independent State of Papua New Guinea, we critically assess their effort to reinstate precolonial law at the locus of the national legal system, conceiving the theoretical bases for its effective employment. Using our dual conception of custom as a lens from which to interpret Demian’s work, we find moments of direct or implicit reference to custom’s varying forms, and are introduced to another context-specific dimension of term – kastom. We then apply these terms to identify the shortcomings of the underlying law’s design which prevents the achievement of its intended aims. The conception of custom adopted by the legal elites who take up this task of reinstating precolonial law is one which is essentially identical to that of Papua New Guinea’s colonisers. This foreshadows the reification of the colonial treatment of custom, rather than that of precolonial law. Thus, we find from our central case of Papua New Guinea that independence necessitates the recreation of an indigenous law insofar as the incoming system is better suited to the needs of Papua New Guinean society. From this judgement we infer that in general independence does not call for the resurgence of pre-colonial law, as it is near impossible to conceive of a contemporary manifestation of indigenous law which is freely taken up by the populace in place of existing bodies of law, regardless of the political will to implement such a system.

Focusing predominantly on Papua New Guinea, legal anthropologist Melissa Demian has written about the strategies taken up by legislators and state-builders to contend with the legacies of “the imposed law” in that nation. One such category with which Demian is focused is that of customary law or custom. This is a contentious term, invoking myriad definitions and thematic categories. In a book chapter for The Role of Customary Law in Sustainable Development, Martin Chanock makes a fascinating distinction between interpretations of custom. There is customary law as it pertains to the development of centralised substantive state law in European nations, perhaps as far back as the fourth century AD (this custom in this essay will also be referred to as custom E). This is ‘law ‘… which had not been created by enactment but was simply recognized as being the law.” By contrast, Chanock’s alternative conception of custom is necessarily bound up with the colonial project (custom A):

Indigenous law in the colonies lived on the fringes of legal respectability, tolerated under certain strict conditions. Even after the end of formal Empire, and period of legal unification by the successor states, indigenous laws have never quite returned to the legal centre. 

In that text Chanock asserts he is ‘concerned with Imperialism and its continuing aftermath.’ This implies he has opted to take up custom A in his inquiry and analysis. Although it remains generally focused on former African colonies, the chapter actually contends with both definitions of custom, giving an impression of custom A which is largely formed through observation of its shortcomings vis-à-vis custom E. The latter is characterised by the sense that Law must exist in a given society should that society be recognised as civilised; that there exists an unbroken chain of custom embedded within the common cultural values of a civilised society, such that in the English instance, the King’s Courts could seek to find, not make, the common law. By contrast, custom as was used in reference to the colonies is construed as an ‘umbrella term’ describing whatever existed in territories where “Laws’ did not appear to be present...to be recognised.’  The presence and usage of custom A does not foreshadow the development of substantive sophisticated laws as with the custom E, it denotes the coloniser’s perception of the absence of substantive law amongst the colonised. 

Chanock does note this conception of custom A is premised on perceptions of colonised societies as primitive, ‘influenced by the racist ideas about evolution of civilizations.’ That colonial officers saw indigenous custom and customary law as inferior by definition has important consequences for its continuity. Indeed, pseudo-scientific evolutionary thinking spurred the delineation of ‘Law’ as ‘modern’ in the coloniser’s case and custom as a primitive ‘precursor’ to law in their colonies. Thus when faced with the opportunity in dealing with relevant customary law disputes, it follows that there would be little-to-no chance of colonial lawyers and judges recognising custom as law. 

But this issue was not merely of theoretical interest. It was also of high political relevance, because according to legal doctrine, customs and tradition – in contrast to customary or traditional law – could be disregarded at the whim of the administration. Colonial experiences incited lawyers and administrators to consider whether existing normative orders in the colonies could be characterized as law or as mere custom.

Given also the pluralism which is central to the effective administration of a colonial territory; one populated by foreign settlers (who are protected by the law of the metropole), natives (whose disputes are generally in matters of custom A) and local elites (who can opt for either), the imposition of imperial law is likely to occlude the usage of custom in colonised territories:

This is the case, for example, in regard to the decision whether to regard an informal mortgage as an English equitable mortgage or as a pledge under native law and custom, a question which sets off in very sharp relief the unsatisfactoriness of dualism in this area of the law. For a choice between English law and a supposedly static native law of mortgages is presupposed, instead of a creative development of the latter under the inspiration of the former.

The quote above typifies the attitudes taken by ‘middle power’ British officials working with the laws of conquered territories, particularly in Africa (the excerpt refers to an enactment first introduced in Nigerian Supreme Court Ordinance and subsequently seen in Gambian courts), wherever there be a conflict or intersection of legal jurisdiction. On the impact of such attitudes, legal scholar Kwamena Bentsi-Enchill writes: ‘…[they] operated to arrest the systematic judicial elaboration and legislative development of the native law to meet the needs of modern commerce.’ Colonial law thus contributes to the alienation of native custom A from construal as either Law or even custom E insofar as its perception as an unsophisticated, static, inferior precursor to law vis-à-vis the imperial system prompts colonial officials to apply the coloniser’s law over local custom, thereby incrementally crystallising native law’s inferiority in comparison to imperial law and its inadequacy for a developing colony. Anywhere that custom A falls out of use, one expects that such law cannot be spoken of as practised ‘from time immemorial’ and thus cannot be defined as custom in any sense that is conventionally understood to foster development toward a substantive body of law. Considered in terms of our essay question, this creates a near impossible situation for the jurist of a given colony at the turn of its independence tasked with the reconstruction of an ‘indigenous’, ‘native’, or even a ‘traditional’ legal system. On the one hand, what exists to be reified has been prorogued by the colonial project, it is rendered lifeless and consequently lacks relevance to the realities of contemporary life. On the other, the nature of what Law can be said to exist is now fundamentally connected to that of the coloniser. 

It is this question which faced the government of the Independent State of Papua New Guinea after independence. The task at hand in this instance was to envisage how ‘customary law can be a means of transforming legal systems inherited from Australia, the United Kingdom, and Germany into one that is authentically Papua New Guinean in both its origins and its implementation.’ Their solution was to devise the Underlying Law, a framework which creates the legal space to reimplement custom into the centre of the Papua New Guinean legal system. This amounts to a pioneering attempt by the nation to address its colonial heritage and advance beyond it. But how have they fared? Is such a dilemma as earlier described observable in this case, and if so, what was the approach to its circumvention? We return to Demian.

Although the distinction is discernible in her work, our Chanockian two-pronged conception of custom is expanded by its application to interpretation of the term as used in Demian’s papers on the legal system in Papua New Guinea. There is a clear parallel between custom/customary law as used in Papua New Guinea and custom A: ‘custom…was applied first by colonial authorities and later by indigenous elites to anything people were presumed to be doing before their “moment of incorporation” into the colonial Territories of Papua and New Guinea.’ 

The other notion of custom–that as law which exists in society but is not yet written or need not be (custom E)–is hinted at in the Underlying Law Act 2000. We have shown that a consequence of the methods by which colonial officials removed custom A from usage is the diminution of its validity as a force of law, at least by virtue of its diminished relevance to society. One does not struggle to conceive a developmental/evolutionary link chain from custom E to modern laws in Europe. Indeed, Demian has described the English common law as the embodiment of English customs codified over millennia. However, in the case of custom A and the modern law of the former colony, it is the law of the European empires–not custom A–which proves a more influential precursor to present legal circumstances. Interpreted from this perspective the Underlying law act appears ill positioned to push pre-colonial law to the centre of the Papua New Guinean legal system in place of the imposed colonial laws. Should this be the intention, the Act’s recognition of ‘the common law in force in England immediately before the 16th September, 1975’ is surely tantamount to failure, at the very least in the sense that it reinforces a contention that precolonial law does not of itself supply the provisions necessary to operate as a substantive body of law. Instead, the Underlying Law is construed as most effective when positioned to occupy a standing similar to that of custom E in Europe–that of a valid body of law which serves as a precursor to contemporary laws in the lineage of the national legal development–but exclusively for the Independent State of Papua New Guinea. Under this framework the means by which the Underlying law might attain its goal of creating an authentically Papua New Guinean law become clearer. By placing customary law and the common law within the legal vehicle of the Underlying law–whose constituent parts together could arguably be said to have been in force from time immemorial in Papua New Guinea–the agents tasked with bringing custom out of its dormancy are able to drive life and usage back into pre-colonial law without having to address the issues associated with its lack of judicial elaboration. 

As briefly discussed earlier, the extent to which the Underlying law reverses the colonial imposition on Papua New Guinea’s legal system is affected by the presence of the common law, as it precludes the erasure of colonial influence over the Papua New Guinean legal system. However, not only does the inclusion of the common law authentically reflect the history of the law in Papua New Guinea, it creates an avenue through which the imposed law (as the intermediary between pre-colonial and postcolonial law) might be subsumed by the Underlying law such that custom returns from its ahistorical status to occupy a more distinct position in place of the imposed laws in the historicised narrative of Papua New Guinea’s legal development. 

We have seen that this conception of custom as non-unitary informed by Chanock’s work is observable with Demian, which has aided our understanding of how, in theory, the underlying law act might circumvent the dilemmas involved in bringing to the fore a body of law pushed to the peripheries by the colonial encounter. We next look to the language of the Act as well as its effectiveness in practice to analyse the extent to which it has achieved its aims. 

The Underlying Law Act is mandated by the Constitution of Papua New Guinea Schedule 2.1:

Recognition, etc., of custom.

(1) Subject to Subsections (2) and (3), custom is adopted, and shall be applied and enforced, as part of the underlying law.

(2) Subsection (1) does not apply in respect of any custom that is, and to the extent that it is, inconsistent with a Constitutional Law or a statute, or repugnant to the general principles of humanity.

(3) An Act of the Parliament may—

(a) provide for the proof and pleading of custom for any purpose; and

(b) regulate the manner in which, or the purposes for which, custom may be recognized, applied or enforced; and

(c) provide for the resolution of conflicts of custom.

The legislation attempts to achieve its aims through recognising both custom A and E and controlling the usage and application of these bodies of law vis-à-vis the existing laws. This is evidenced by the stipulated rules on the Order of Application of bodies of law in Papua New Guinea:

Subject to this Act, in dealing with the subject matter of a proceeding, the court shall apply the laws in the following order:

(a) written law; and

(b) the underlying law; and

(c) the customary law; and

(d) the common law.

By stratifying these laws into a hierarchy of usage whereby the underlying law takes precedence over both the custom and the common law, lawmakers create a category that circumvents some of the theoretical issues faced should one seek to reinstate custom in the legal centre. That the common law is at the bottom of this order adds force to the suspicion that the purpose of its addition to the underlying law is to place the imposed law in service of custom; to counter its systematic erasure at the hands of colonial regimes. Indeed, viewed from the eyes of the underlying law, the common law itself serves as underlying body of written custom to be implemented as a ‘law of last resort’ when custom is inadequate. This arrangement mimics the inverse of what was effectively the order of usage of laws as administered by colonial officials in the colony. Thus, under this framework there might be a reversal of past circumstance whereby the underlying law over time gains influence as a scheme of laws ancillary to the written laws of Papua New Guinea, usurping the imposed law in the process.

In practice, however, the underlying law of Papua New Guinea struggles to achieve its aims of reinstating custom within the legal system. There are several reasons for this, the first being that in Papua New Guinea there exists another dimension of custom named ‘Kastom’. In relation to custom A and custom E, kastom is best described through the lens of Demian’s cartographic metaphors of scale, for the very nature of these terms are conditioned by the scope of ones perspective. The term is inherently local, operating on the person-to-person scale, and active in myriad ‘domains of action’ beyond law. In her work Demian argues that kastom ‘cannot appear in the same picture as custom because custom is the background against which kastom is foregrounded.’ In other words, the use of kastom was borne from the constitutional context of legal recognition of custom, the former emerges as a mode of action in person-to-person dealings in light of the latter’s inclusion in the constitution and underlying law act, precluding custom from use in any domain outside law. The ethnic diversity of Papua New Guinea also further complicates this relationship between custom and kastom, as the embarrassment of indigenous and migrant clans and tribes in the region adhere to their own kastom, each distinct from the other. Reconsidering custom vis-à-vis kastom reveals several problems with the implementation of the underlying law. Schedule 2.1 (3) of the Papua New Guinean constitution clearly mandates the creation of underlying law to settle disputes in custom and to allow for the pleading of custom. However, Demian’s work implies that kastom underlines the activities of daily life so pervasively that that it would better fulfil the constitutional provision for custom which prompted the creation of the underlying law. Thus, in failing to reconcile kastom and custom; or to recognise kastom alongside custom in the law of Papua New Guinea; or to merge these nebulous and plentiful definitions of kastom into one ‘big picture’ legal definition of custom; the inclusion of custom in the underlying law in place of kastom suggests that the underlying law project will not perform in practice. 

Another problem lies in the colonial conception of custom which legislators took up in their design of the underlying law. 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…’ 

Once explained as above, one struggles to locate differences between the aforementioned customary law and custom A as defined within this essay, as both make nebulous reference to whatever native traditions and customs are invoked in relation to a case. Indeed, Demian’s parallel to custom A notably enumerates both colonial authorities and indigenous elites as those responsible for the recognition of this ‘blanket term’ conception of custom. Although in theory the adoption of custom A in the underlying law–itself an effort to create something akin to substantive custom E–is feasible, the existence and ubiquity of kastom renders the exercise irrelevant, as the legitimacy which arises from the usage of custom by the citizenry in the case of Papua New Guinea is ascribed more to kastom.

Although the failure to recognise kastom clearly contributes to the ineffectiveness of the underlying law, one could argue that elite legislators and legal theorists responsible for drafting the underlying law act had little choice but to acknowledge customary law in the same sense as their colonisers. It would be reasonable to assume that it is beyond the means of the state government to finance the effort to craft some legal articulation of kastom which allows it to sustain its prevalence amongst the citizenry and gain legal enforceability. At least it is conceivable that this is beyond the means of an elected government with a finite term in office and constricted political will. This must be true even for Papua New Guinea whose government has gone remarkably far in seeking to ‘decolonise’ its legal system. In contrast to kastom, custom enjoys a long history in the law, hence as a concept it need not be laid down for the purpose of its recognition. Viewed from the eyes of the underlying law–a project premised on giving legal actionability to customs/practices/traditions already prevalent in society–custom appears far better positioned as an intermediary between law and ordinary life, as it is readily present in both. 

Yet, this reliance on the customary law’s legal and social life harms the effectiveness of the underlying law even further, as ‘the legal life of custom in Papua New Guinea has taken it so far away from any relationship to place as to have become, in essence, placeless.’ This suggests the presence of a legal-social dichotomy to do with custom which elite legislators have not fully grasped in their creation of the underlying law. Demian corroborates this with her assertion that custom is rendered placeless in social life, stating that a process of its alienation from society ‘is absolutely necessary in order for custom to function as the counterpart to law, as it is required to do by its inclusion in the constitution.’ The recognition of custom as customary law necessarily excludes the extra-legal conceptions of the term. Thus, the social existence of custom (or indeed, kastom, should it be recognised) beyond law is rendered invisible to the eyes of the Constitution. This offers a compelling explanation for the situation in Papua New Guinea, where custom operates near-exclusively in the legal realm, and kastom is prevalent in the domains of action beyond law.

Although this alienation of custom from society through its legal recognition is in one sense a side-effect of an effort to reverse the legacy of colonialism on attitudes toward custom, the resultant treatment of custom vis-à-vis the written law within the Papua New Guinean legal system remains remarkably similar to its management in the bygone colonial era. One account given by Damian in her paper Disclocating custom illustrates this further. Speaking to a compulsory customary law class at the University of Papua New Guinea, Demain clearly demonstrates the social stagnation of custom in Papua New Guinea: 

‘…students who volunteer information supply normative accounts of custom in their own places of origin––whether or not they have ever lived in these places... It is perfectly acceptable to speak of custom in the abstract, or to produce a normative version of the custom of one’s own place, but actual instances of something called custom being practiced are not forthcoming.’ 

This feeds into a notion of custom which stretches well beyond the law school into the legal profession; that of custom as undesirable to work with and ‘too complicated’, yet so commonplace that all are free to appropriate or invoke it for any means. Amongst lawyers, the customary law is seen as more of a costly inconvenience than the embodiment of the nation’s pre-colonial legal heritage. Where colonial lawyers once excluded custom on the basis of its unsophistication, both present and future lawyers of a now independent Papua New Guinea view custom as too complex. Such an unpopular body of law is not likely to see an uptake in the ‘proof and pleading of custom…’ Thus, Demian’s account of the Papua New Guinean legal system suggests that contemporaneous attitudes towards custom–as Bentsi-Enchill writes with reference to the colonial regimes–also have the effect of arresting custom’s ‘systematic judicial elaboration and legislative development…’

A striking example of the replication of colonial treatment of custom lies in a commonplace legal provisions known as the repugnancy clause. In the Papua New Guinean constitution this clause can be found under Schedule 2.1 subsection 2:

‘…[custom’s adoption and enforcement in the law] does not apply in respect of any custom that is, and to the extent that it is, inconsistent with a Constitutional Law or a statute, or repugnant to the general principles of humanity.’

The vague condition that a custom must conform to the general principles of humanity in order to be recognised seems harmless enough, but one must remember that every time this repugnancy clause is invoked by a judge, the custom in question is likely never to be recognised. Not only does such a decision occlude custom from use in this instance, but it sets a judicial precedent for similar cases in the future. Repugnance would understandably constitute the deadliest weapon in the hands of colonial officers predisposed to viewing custom as the law of savages, or those who would see custom completed replaced by the imposed law. But given all its effort toward forming the common law into an indigenous law, one would hope the repugnancy clause would be seldom cited in Papua New Guinea post independence.

But to the best of my knowledge, there is no other phrase from the Constitution that has been so faithfully and consistently reproduced by the judiciary since PNG’s independence in 1975. It is also worth noting that the members of the judiciary who invoke this phrase are as likely to be Papua New Guineans as expatriates; if anything it has been even more popular with Papua New Guinean judges than it was with their foreign predecessors.

Demian’s work on repugnancy reiterates the inadequacy of custom vis-à-vis ‘the imposed law’ in Papua New Guinea. I dare not here question the proficiency of the judiciary, nor their will to create an indigenous legal system. Yet, in their repeated employment of the repugnance clause, the failure to consolidate the customs of Papua New Guinea’s ethnic groups into one nationwide custom, the subsequent creation of the underlying law which relies on a definition of customary law that is indistinct from that of the colonial era, as well as the general contempt for custom amongst present and future Papua New Guinean lawyers and judges, the legislators of this country have (at least inadvertently) replicated the conditions which made manifest the connotations of inferiority associated with custom during colonial rule. 

That Papua New Guinea’s legal agents view the imposed law as ‘the excess of the colonial inheritance that must be “cleared away,’’ and yet still struggle to uproot the legacies of colonial rule in their legal system has significant implications for this essay. It demonstrates that the assertion of independence and the will of the citizenry to reimplement custom is not enough to execute its reification if the resultant legal landscape is less effective than the imposed law. This revelation is premised on the idea that purported independence calls for the recreation of an indigenous law insofar as the incoming system is better suited to the needs of Papua New Guinean society than the imposed law. It makes sense to assume that an indigenously drafted body of law once promulgated is more readily taken up by the populace than the imposed law, as one presumes the spirit of that law would more closely align with the spirit of the society than a body of law which is foreign in origin. Yet this has not been the case for the underlying law. Indeed, Papua New Guinea’s legal system cannot conceivably benefit from the declaration of its indigeneity whilst retaining practices which root the imposed law further in the centre of the legal landscape. This can only serve to deepen the reliance on laws inherited from the colonial era, whilst worsening the self-awareness of the state of the legal system. This serves to explain the present circumstance of the underlying law in Papua New Guinea, where especially amongst those resident in urban settlements in Papua New Guinea, Demian has shown that the ‘law of choice’ is the common law: ‘‘the imposed law’––that is, the common law introduced in the colonial era––had more legitimacy in the eyes of many people.’ Thus it follows that the assertion of independence cannot necessitate the reification precolonial law if a scheme such the underlying law is the framework for its reimplementation. I do not mean to say that it is a poor attempt at bringing custom to the legal centre of postcolonial life. Indeed, that any attempt has been made at reintroducing a law of indigenous origin to the legal centre reflects the dedication of the Papua New Guinean state to the ideal of independence which has to the best of my knowledge no equal. We have not herein argued that independence ought or ought not to mandate the reification of precolonial law, for such a question is so general as to attract an answer that can only be mere conjecture. However, what we have shown is that in a self-proclaimed independent state, where the populace and judiciary are given the option of taking up customary law in the framework of the underlying law, or to stay with the imposed law, people have in general stayed with the ‘neutral’ imposed law, suggesting that individuals are unwilling to forgo the effectiveness of law to attain its indigeneity of origin or use.

In conclusion, the assertion of independence from colonial rule necessitates reifying pre-colonial law to the extent that that contemporaneous manifestation of precolonial law is more compatible with indigenous domains of action than the inherited colonial laws. We have reached this determination through comparative study of the terminology of custom, and analysis of the modes of application of custom in seeking to reinstate precolonial laws, with particular reference to Papua New Guinea and the Underlying Law Act 2000. Our deconstruction of custom along three lines–custom A, custom E, and kastom–has supplied the necessary conceptual distinctions of custom to form an understanding of the means by which the underlying law might fulfil its goal of reinstating precolonial law, and allows us to form a judgement on the effectiveness of the project. What emerges as an acute shortcoming of the underlying law relative to kastom’s lack of recognition is the adoption of a conception of custom which today continues to invoke colonial connotations and usages. Further, the malleability of custom renders it disagreeable to the judiciary, lawyers and laypeople, as it is easily manipulated and invented, fostering distrust between disputing parties with differing custom. In Papua New Guinea the choice to vest legitimacy in the common law over custom and attitudes toward custom stand as evidence of this. This has led us to the contention that a given former colony need not seek the expunction of the legacy and legal residue of its colonial past in creating an authentic and independent legal system. Indeed, the fact of the citizenry’s assimilation to dispute settlement within the legal domain of action using the imposed law demonstrates that whatever law authentically reflects the history of justice and legal lineage of  Papua New Guinea cannot do so unless it also holds the imposed law. It is important to remember that the Independent State of Papua New Guinea has never had a ‘national custom,’ and that due to the colonial imposition, there is no indigenous precolonial legal/customary lexicon which binds all the ethnicities of Papua New Guinea together, as would have probably occurred with the consolidation of power by one or several prominent ethnic groups in the region. Indeed, that job of legal unification–hence the national legal system–is itself a legacy of the colonial project.  Thus, insofar as authenticity comprises the central motivation for the creation of an indigenous body of law, the reification of precolonial law in place of the imposed law is not desirable even in light of the assertion of independence, let alone necessary. Should the key motive in reifying custom rest simply in attaining indigeneity for the legal system (i.e., erasing the colonial legacy from ones legal system,) what is immediately called into question is the extent to which the resultant legal system might be defined as ‘independent’, for it is in essence still dependent on the imposed law to define the indigenous law. Those responsible for the underlying law were no doubt aware of this, hence they sort not to codify a national custom in fear that it might simply be another ‘imposed law’; reflecting the customs of some elite group of society and inflicted upon others. Yet due to this refusal to define a contemporaneous custom and the acceptance of the pre-existing conception of custom, these agents do little to answer the question of what form a national indigenous custom might take; the underlying law merely defers the query and perpetuates the problems of custom. 

In Papua New Guinea, as with countless other former colonies, the multiplicity of the national legal system–with kastom operating outside law, custom (when recognised) operating within law, a consortium of statute and the English common laws before 1975 operating as the bodies of written law–ought to be tantamount to the attainment of an independent legal system, for the uses and applications of bodies of law will be unique to the given former colony, regardless of the origin of those bodies of law. One of the countless tragic legacies of the colonial project is that we will never know the alternative formations of law which these former colonies may have pioneered without the imposition of a foreign law. Yet still, the task of ideating contemporaneous manifestations of precolonial law is best left to legal theory and academic inquiry. Indeed, the Papua New Guinean fixation on legal independence appears to have more to do with eliminating traces of Europe from the national identity than developing a more robust Papua New Guinean legal system. This is an unnecessary, if not futile endeavour. Once independence is attained, and blood shed to secure legal and political stability, once constitutions are drafted and courts formed, legal systems and their sources of law should be upheld as sacrosanct, with alterations occurring on the basis of effectiveness, as opposed to any political or nationalistic agendas.

BIBLIOGRAPHY
Online Primary Sources
Secondary Sources
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  • Demian, Melissa, “Dislocating Custom”, Political and Legal Anthropology Review, 38:1 (May 2015), pp. 91-107.
  • Demian, Melissa, “On the Repugnance of Customary Law”, Comparative Studies in Society and History, 56:2 (2014), pp. 508-536.
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Online + Other Sources
  • Demian, Melissa, “Constitutionalist Thinking and Legal Anthropology,” (Seminar, [virtual] 3rd February 2021).
 
 
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