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On the Repugnance of Customary Law

Demian, Melissa (2014) On the Repugnance of Customary Law. Comparative Studies in Society and History, 56 (2). pp. 508-536. ISSN 0010-4175. (doi:10.1017/S0010417514000127) (KAR id:82429)

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https://doi.org/10.1017/S0010417514000127

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.

Item Type: Article
DOI/Identification number: 10.1017/S0010417514000127
Divisions: Divisions > Division of Human and Social Sciences > School of Anthropology and Conservation
Depositing User: Alexandra Leduc-Pagel
Date Deposited: 12 Aug 2020 09:21 UTC
Last Modified: 16 Feb 2021 14:14 UTC
Resource URI: https://kar.kent.ac.uk/id/eprint/82429 (The current URI for this page, for reference purposes)
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