Beyond Recognition: Contemporary Jurisprudence in the Pacific Islands and the Common Law Tradition

Abstract

In the metropolitan centres of the common law world today, questions concerning the legal recognition of custom are of slight importance and little practical consequence. Where custom is acknowledged at all, it is almost exclusively as an ancient source of law — an archaic vestige, the continuing impress of which has become so attenuated that, as a practical matter, it tends to be disregarded altogether. Except for a few small pockets of technical and specialised application, the role of custom in the operative dynamics of modern common law jurisprudence is generally regarded as a matter of arcane historical interest and only the most occasional theoretical significance. In a very real sense, however, it is perfectly proper to think of custom, not so much as a source of law exclusively, but also — and, perhaps, rather — as a distinctive type of law. At the same time, it is equally correct to regard the system of common law itself, even in its most sophisticated manifestations, as essentially a customary system.