???Hybrid custom??? and legal description in Papua New Guinea

On the Repugnance of Customary Law

“…In a manner resonant with Motha's argument for the effects of Mabo, I have elsewhere argued that the recognition of customary law in PNG first creates custom as a social form analogous to law in order thereby to differentiate it from "received" or "imposed" law (Demian 2011). Having achieved analogic sameness between the two sources of law, lawmakers in PNG must then, in accordance with the directives of the Constitution and the Underlying Law Act, rediscover difference.…”

“…Custom is enshrined in the Constitution as part of the "underlying law" of the country; this status was reaffirmed and, in theory, revalorized in the Underlying Law Act 2000 (Independent State of PNG 2000). As multiple observers of PNG law have already observed (Corrin Care and Zorn 2001;Ottley 2002;Weiner 2006;Demian 2011), there are two interesting aspects to this Act. One is that it directs courts to apply themselves more assiduously to the task of determining which aspects of custom will form part of the "underlying law" of the country, and to do so by deliberately privileging an item of custom over an analogous item of the common law unless it is in conflict with a written law, or "its application and enforcement would be contrary to the National Goals and Directive Principles and the Basic Social Obligations established by the Constitution" (Underlying Law Act 2000: s 4).…”

“…Although anthropologists long argued that these are precisely the defining set of characteristics that delineate "customary law" (e.g., Malinowski 1926;Llewellyn and Hoebel 1941;Gluckman 1956), I would like to suggest that instead of turning upon the authentication of indigeneity, which is not an issue in PNG, customary law has taken on both differentiated and undifferentiated forms in the view of the courts and individual legal practitioners: differentiated in that each place is assumed to have its own particular custom, undifferentiated in that all places are assumed to have their custom, and that the custom of each place is imagined to be analogous to law, such that it can be regularly deployed by magistrates in a Village Court or pleaded as evidence in a District Court or National Court. This is why custom could be enshrined in the Constitution as a trait characteristic of PNG as a nation, and why it is now supposed to be more vigorously developed as a component of the underlying law (Filer 2006;Weiner 2006;Demian 2011).…”

“…This case, popularized in the PNG press as "Compo Girl," was properly titled In re Miriam Willingal, and took place over the course of 1996 and 1997. Compo is slang for compensation, a by now universal mechanism in PNG through which an injured party can extract an equivalent value for harm done from the putative wrongdoers, and one whose swiftly transforming nature has inspired much discussion amongst both policymakers and anthropologists (e.g., Filer 1997;Banks 1998;Strathern 1999;Demian 2011). In this case, a particular form of compensation was actually outlawed.…”

Dislocating Custom

“…Rather, I am interested in hierarchy as an expression of scale, or “how the weight of one order translates into the effects of another order” (Corsín Jiménez :158). I have argued elsewhere (Demian ) that in Papua New Guinea, as in many other former colonies, custom is called into being through being made an analogue to law. In that previous work, I explored the effects of this analogue on the custom concept.…”