[...] New-Caledonia: Legal Pluralism, Citizenship and the External/Internal Sovereignty Issue
| Author | Oona Le Meur |
Customary Law and Custom in New-Caledonia: Legal
Pluralism, Citizenship and the External/Internal
Sovereignty Issue
Oona Le Meur*
This Article will focus on the complex relationship between custom and
Customary Law, through the example of New-Caledonia. Indeed, this
French overseas territory has a unique sui generis status with regard to
the French Constitution and its principle of indivisibility. In the
contemporary history of the Island, several layers of law have always
coexisted, forming a complex legal pluralism that has resulted, during
the second half of the 20th Century, in the institutionalisation of a legal
dualism – hence the recognition of a Customary Law that is on an equal
footing with the Common Law. This is one of the accomplishments
claimed by the Kanak ‘independantistes’, who also promoted a cultural
identity quest, which especially acquired a renewed importance attributed
to custom and customary practices. Given the necessary changes and
adaptations that both custom and Customary Law have been going
through for almost forty years, they have never been clearly differentiated.
This Article will argue that these two disciplines do not pertain to the
same register of enunciation (Latour, 2006), and that if both are hybrid
entities, then Customary Law is more law than custom. I will support
this argument by showing that Customary Law extensively uses
Common Law technicalities, principally through the mobilisation of legal
fiction (Thomas, 2011), producing recombinant effects (Strathern, 2005).
I. INTRODUCTION
As New Caledonia is on the verge of deciding, by referendum, if there will be a
definitive separation or an irreversible continuation of its existence as part of
the French Republic, there are many issues that surround both possible
outcomes. While official independence would require an important in-depth
strengthening of the already sketched institutions, retaining New Caledonia
* BA Political Sciences (Sciences-Po Paris, 2013), MSc Law, Anthropology and Society (LSE,
2014), MA Law, Culture and Society (SOAS, 2015)
(2015) Vol. 2, Issue 1 Oona Le Meur 231
SOAS LAW JOURNAL
within the French institutional framework would signify the pursuit of a unique
status of autonomy. No matter what result the referendum holds, the current
level of autonomy cannot be diminished – unless it is through a Constitutional
amendment. This is not the first time that France has had to deal with an
established legal dualism within its otherwise very centralised legal framework.
Indeed, the Noumea Accord (1998) established an institutionalised legal
dualism where French Statutory Law and the Customary Law had to coexist.
The issues at stake here are numerous and varied. One of them is the all too
often neglected complex relationship between Customary Law and custom.
This point will be the focus of this Article, by trying to emphasise the difference
between custom and Customary Law in the light of the recent Caledonian
history. It is important to stress how, contrary to the current designation and
common understanding, they are very different repertoires (or registers).
Custom is indeed ‘something else’,1 an ‘enunciation register’2 probably closer to
politics than to judicial language. Customary Law is clearly inventing itself
through hybridisation processes, dealing with colonial heritage and
contemporary Common Law standards. While the transformation of custom
into (Customary) Law tends to essentialise it and to change its ‘nature’,
custom’s processes usually tend to be those of negotiability – including power
struggles within socio-political hierarchies. Custom, as a concept, belongs to the
anthropological sphere, but Customary Law is of a hybrid nature. I will argue
that it is probably closer to law than to custom. As for custom and politics, the
tension which lies between the individual and the collective (be it society or a
community), is managed through the search for a social balance. Whilst in law
(as in Customary Law), the opposition is drawn between custom and rules, that
is to say tradition and laws.3 Additionally, law is about individuals. Only
individual cases are judged, and one can imagine the legal difficulty in dealing
with collective responsibility for instance. Thus, both Customary Law and
custom are going through a process of re-conceptualisation, or evolution,
through the interaction between processes of decolonisation and the rise of an
autochthonous discourse; this can be phrased in terms of external/internal
sovereignty and identity quest.
1 Colin Filer, ‘Custom, Law and Ideology in Papua New Guinea’ (2006) 7(1) The Asia Pacific
Journal of Anthropology 65.
2 Bruno Latour, ‘Petite Philosophie de l'Éénonciation’ (2002) Institut d’Études Politiques de Paris
2014.
3 Louis Assier-Andrieu, ‘Penser le Temps Culturel du Droit, Le Destin Anthropologique du
Concept de Coutume’ (2001) 160(4) L'Homme 67.
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