On the Repugnance of Customary Law

Abstract

The Constitution of Papua New Guinea (PNG) features a peculiar artifact of colonial-era law known as a repugnancy clause. This type of clause, used elsewhere as a neutral mechanism to identify conflicts between legal provisions, has in PNG become a tool for the moral-aesthetic evaluation of “customary law.” In this article, I follow the history of the PNG repugnancy clause from its colonial origins and through the relevant case law since the country's independence in order to ask both how the clause acquired its non-legal meaning through legal usage, and why it has been retained in its original form in PNG when so many postcolonial legal regimes have discarded it. Comparative material from Indonesia, sub-Saharan Africa, and especially Australia is used to contextualize the durability of the PNG repugnancy clause, and theoretical material on the affect of disgust and shame is brought to bear in order to understand the use of repugnancy in its moral-aesthetic sense. The article concludes with a meditation on the way the repugnancy clause has enabled the judiciary of PNG to distance the law of the country not simply from an uneducated or inadequately Christian general populace, but also from a history in which all Papua New Guineans were regarded as a contaminating threat to the European colonizers whose legal system the country has inherited.

The Compensation Page: News Narratives of Public Kinship in Papua New Guinea Print Journalism

“…As Rena Lederman (1980), Francesca Merlan and Alan Rumsey Marilyn Strathern (1988) argued, symbolic actions become effective when placed in a narrative frame that attributes agency to particular people and groups. For this reason, Alex Golub has argued that when PNG communities engage with the state and capital as landowning corporations, for instance, this should not be taken as their transformation so much as a further instance of people's capacity to switch among a variety of possible self-accounts (2014). It is the polymorphousness of sociality, its amenability to be accounted in many different narrative frames, that people draw on when compelled to be ethnographic citizens.…”

Bridewealth1and the Autonomy of Women in Melanesia

“…It would be better to guess that their value lies within their uses in ceremonial exchange at the time of the marriage, linking the kin of the bride to that of the groom, albeit in different ways than they had recognized by the details of those traditions in past decades. Many people in Oceania follow the common practice of using the English word ‘tradition’ when speaking of the ceremonial exchange of matrimonial wealth, although anthropologists are long familiar with the pitfalls of making a too easy translation between custom as a set of principles or rules of social relations, as it is familiar in the sense of the English word, and have written wisely of more cautious uses of the word custom, or kastam , as it is used in Tok Pisin and Bislama and kastom in Solomon Islands Pijin (see Rollason 2014, and Damian 2014, for overviews of the idea). Kanak people in New Caledonia speak of la coutume (see Paini this volume) when referring to similar elements.…”

Grassroots Law in Papua New Guinea

“…Chanock, 1985;Fitzpatrick, 1989;Lev, 1985;Moore, 1986;Vincent, 1989). As I have argued elsewhere (Demian, 2014a), this process of 'recognising' customary law is simultaneously a project of holding it at bay, in order to control and circumscribe those practices placed under the category of custom that metropolitans do not wish to see becoming part of the law in the modern liberal state they are building.…”