Accommodating legal pluralism in Pacific Courts: Problems of proof

Corrin, Jennifer (2011) Accommodating legal pluralism in Pacific Courts: Problems of proof. International Journal of Evidence and Proof, 15 1: 1-25. doi:10.1350/ijep.2011.15.1.366

Attached Files (Some files may be inaccessible until you login with your UQ eSpace credentials)
Name Description MIMEType Size Downloads

Author Corrin, Jennifer
Title Accommodating legal pluralism in Pacific Courts: Problems of proof
Journal name International Journal of Evidence and Proof   Check publisher's open access policy
ISSN 1365-7127
Publication date 2011-01
Sub-type Article (original research)
DOI 10.1350/ijep.2011.15.1.366
Open Access Status
Volume 15
Issue 1
Start page 1
End page 25
Total pages 25
Place of publication United Kingdom
Publisher Vathek Publishing
Collection year 2012
Language eng
Abstract The interface between state legal systems and customary law is the site of a number of complex problems. A particular difficulty lies in accommodating customary law in formal common law court processes, which are typically driven by the adversarial system. An important but much neglected issue within this area is how best to approach the proof of customary law in courts. A threshold question that arises is whether it should be treated as law or fact. Few countries give any legislative guidance on this issue, nor has it been the subject of extensive consideration by the courts themselves. This article examines the issue of proof of customary law and a number of associated questions, focusing on the common law courts in Australia. Comparison is drawn with the position in neighbouring South Pacific Island States, which are also grappling with this issue. The article commences with a discussion of proof of customary law within the broader context of legal pluralism. It then moves on to a survey of the legislation that impacts on proof of customary law in civil and criminal proceedings in Australian courts. Some illustrative case law is then explored. The article assesses the adequacy of the current regime and considers some of the options for reform.
Keyword Legal pluralism
Customary law
Australian courts
South Pacific
Q-Index Code C1
Q-Index Status Confirmed Code
Institutional Status UQ

Document type: Journal Article
Sub-type: Article (original research)
Collections: Official 2012 Collection
TC Beirne School of Law Publications
Version Filter Type
Citation counts: Google Scholar Search Google Scholar
Created: Tue, 22 Mar 2011, 17:10:08 EST by Ms Barbara Thorsen on behalf of T.C. Beirne School of Law