A green stick or a fresh stick?: Locating customary penalties in the post-colonial era

Corrin, Jennifer Clare (2006) A green stick or a fresh stick?: Locating customary penalties in the post-colonial era. Oxford University Commonwealth Law Journal, 6 1: 27-60.

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Name Description MIMEType Size Downloads
Author Corrin, Jennifer Clare
Title A green stick or a fresh stick?: Locating customary penalties in the post-colonial era
Journal name Oxford University Commonwealth Law Journal
ISSN 1472-9342
1757-8469
Publication date 2006
Sub-type Article (original research)
Volume 6
Issue 1
Start page 27
End page 60
Total pages 34
Editor Nerisha Singh
Place of publication Oxford, United Kingdom
Publisher Hart Publishing
Collection year 2006
Language eng
Abstract Former colonies and dependencies in the South Pacific do not have the luxury of entirely ‘homegrown’ laws. Their legal systems are burdened with a ‘legacy’ of transplanted laws, developed for use in a foreign country, imposed on pre-existing systems of custom and culture. As a result, many small island countries are struggling to balance the demands of law from different sources, designed to operate in fundamentally different circumstances. In addition to the conflict that occurs in areas of substantive law, where customary and introduced law may prescribe a different rule for the same situation, the two systems differ in their approach to procedure, penalties and relief. This paper considers the divide between the theory and practice of introduced law and customary law and examines the way in which conflicts have been dealt with by the courts. In particular, it uses the example of banishment to illustrate the type of problems that arise in a plural system. The paper looks at the balancing exercise which has been necessary when custom, in the form of banishment, comes into conflict with introduced law, in the form of constitutional rights.
Q-Index Code C1
Q-Index Status Provisional Code
Institutional Status UQ

 
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