Customs in New Caledonian law

The Law and Economics Research Laboratory (LARJE) at the Université de la Nouvelle-Calédonie (UNC) will hold a colloquium entitled ‘La Coutume dans le Droit Calédonien’ (customs in New Caledonian law) on 27 and 28 April in the grand amphitheatre on the university campus. A dozen contributors combining academic knowledge and practical experience in the field will, over one and a half days, contribute their insights and expertise to an appraisal of 30 years of customary law and question its place, its reception and its perspectives.

This colloquium, which is open to all, is dedicated to the research project ‘L’intégration de la coutume dans le corpus normatif contemporain de la Nouvelle-Calédonie’ (the integration of customs in New Caledonia’s contemporary body of norms), directed by Étienne Cornut, maître de conferences and HDR in private law at the UNC, and Pascale Deumier, professor of private law at the Université Jean Moulin Lyon 3.

Summary

The aim of the research is not to claim to understand the sociological reality of the Kanak customs but to determine how it is received by the legal system. In order to propose a better reception of this customary law within New Caledonia’s body of norms, the research set itself two objectives. The first consists in taking stock of the situation (which is unprecedented) regarding customary law. The second involves exploiting the analysis of this review to reflect on better ways of receiving Kanak customs. The research therefore aims to better understand Kanak customary law in order to be in a more informed position to offer solutions for improving its reception by combining academic knowledge and practical experience in the field. To achieve these objectives, the research fully immerses itself in the New Caledonian institutional and legal environment, working in close collaboration with all the local actors in the customary network. At the end of the research, the results will be twofold.

On the one hand, it will produce a corpus of customary law, unprecedented to date, which will be available in the form of a website entitled ‘Droit Coutumier en Nouvelle-Calédonie’ (customary law in New Caledonia) (http://coutumier.univ-nc.nc). This will bring together institutional texts, articles and studies written specifically on the subject plus more than 600 decisions delivered in customary litigation at the time the reports were published between 1985 and 2016. In addition, it will offer a glossary of customary terms, which will be constructed on the basis of the definitions found in these various documents. In order to ensure this mass of data on customary law is workable, thematic studies of the jurisprudence delivered in application of the customs have been carried out on the subjects producing the toughest litigation (change of status, family, lands, civil interests). Finally, a synthesis will analyse the relationships between the judges and the customs such as they were observed at the time the decisions were being studied.

On the other hand, this appraisal has fed a broader reflection on the place, reception and perspectives of this customary law. To this end, studies have been conducted on the areas of law still relatively untouched by customs (employment law, criminal law) and on the possibility of citing them in those areas. Other studies have situated customary law in its anthropological and economic context. Finally, a special analysis has been carried out of the different vehicles able to support the integration of customary law. These vehicles are often institutional since the role of the jurisdictions, authorities, acts and organisations have been studied by academics and by the actors in these institutions. They are also intellectual, and a special study has been conducted on the internal conflict models of norms that can be used to adjust the place of customs.

The general report incorporates all these different elements to formulate various proposals on the possibilities of directly and indirectly integrating customs into the body of norms.

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