Constitutional Law Principles

Questions and Answers

How does customary law conflict with modern legal frameworks such as constitutions and human rights?

Customary law is limited in its applicability if it conflicts with constitutional and statutory laws, as well as human rights, particularly women's rights.

What are the key elements defining customary law according to the Digest of Julian and the Code of Constantine?

Key elements include long standing-ness of practice, tacit agreement of the people, unwritten nature, potential conflict with lex, and adherence to reason.

What role did Bartholus attribute to the consent of individuals subject to customary law?

Bartholus emphasized the importance of consent over the length of the law's existence, suggesting that customary law is valid when agreed upon by the community.

Discuss the significance of continuity in the context of English common law regarding customary law.

Continuity is crucial for customary law's enforceability; any interruption may be interpreted as a cessation of the custom. Signup and view all the answers

How does the interruption of possession affect the validity of customary law as per Blackstone's view?

An interruption of possession for a duration of 10 or 20 years does not necessarily destroy the custom, unless such interruption was due to coercion. Signup and view all the answers

In the context of Indigenous rights and self-determination, how can conflicts between customary law and national law be resolved?

Conflicts can be addressed through legal frameworks that recognize the validity of customary law while upholding national law and human rights protections. Signup and view all the answers

What implications do limitations on the applicability of customary law have for legal regimes governing Indigenous peoples?

Limitations can undermine Indigenous practices by prioritizing national law over traditional customs, potentially eroding cultural identity. Signup and view all the answers

How does the principle of 'natural justice' intersect with the recognition of customary law?

Customary law must not contradict principles of natural justice, which safeguard fairness and equity in the legal process. Signup and view all the answers

What role does the state play in relation to indigenous customs according to the content?

The state is obligated to respect and recognize indigenous customs and legal regimes, ensuring the protection of ancestral rights. Signup and view all the answers

What burden does a person asserting a custom contrary to their personal law carry?

A person asserting a custom contrary to their personal law is prima facie bound to prove the existence of that custom. Signup and view all the answers

How does customary law gain recognition as a binding authority in communities?

Customary law gains recognition as a binding authority when it is accepted by the people or community to whom it refers, reflecting their rules, customs, or traditions. Signup and view all the answers

Why might customary law remain largely unexplored despite its significance?

Customary law may remain largely unexplored due to a historical focus on legal formalism and the limited attention from legal scholars compared to anthropologists. Signup and view all the answers

What conditions must a custom meet to be considered valid?

To be considered valid, a custom must not be contrary to justice, equity, and good governance. Signup and view all the answers

How does the recognition of indigenous customs intersect with self-determination?

The recognition of indigenous customs supports self-determination by empowering communities to govern their rights and legal traditions. Signup and view all the answers

How do Greek philosophers differentiate between written law and unwritten laws in the context of natural law?

They distinguish written law as 'nomos eggrahos' and unwritten laws as 'nomos agraphos', the latter representing innate or natural law. Signup and view all the answers

According to Aristotle, why was customary law considered superior to positive law?

Aristotle believed customary law was a manifestation of natural law, which is seen as immutable and inherently just. Signup and view all the answers

What implications arise if a custom is proven within a legal context?

If a custom is proved, it must be applied to the exclusion of the personal law relevant to the case. Signup and view all the answers

What is the primary rule of decision for indigenous communities when a custom exists?

In indigenous communities, the primary rule of decision is to apply customary law in relevant matters before considering enacted laws. Signup and view all the answers

What is the significance of recognizing when a custom acquires the 'full force of law'?

It is crucial for the wider recognition and application of that custom within legal frameworks. Signup and view all the answers

How does the PNG Constitution approach the regulation of customary law?

The PNG Constitution clarifies that constitutional law provisions do not extend to prohibition, allowing for the recognition of customary law. Signup and view all the answers

What challenge do indigenous people face in the recognition of their customary laws?

Indigenous people struggle for acknowledgment of their customary laws as binding legal sources, which often conflicts with state laws. Signup and view all the answers

What does the term 'immemorial' signify in relation to customary law according to common law tradition?

In common law tradition, 'immemorial' signifies that a custom must be time-honored and established for a long duration to be recognized as binding. Signup and view all the answers

In the context of legal regimes, what role do customary laws play for indigenous communities?

Customary laws serve as the sole legal framework for many indigenous communities, guiding their social and legal interactions. Signup and view all the answers

How does the definition of 'custom' differ in the context of PNG law compared to traditional legal definitions?

In PNG law, 'custom' does not require the property of being 'immemorial' for its recognition, unlike traditional definitions. Signup and view all the answers

What is the importance of custom in the legal systems of Papua New Guinea, as discussed by Jessup?

Custom is crucial as it provides a foundational role in the legal system and reflects local values and practices. Signup and view all the answers

How does the philosophy of customary law, as explored by Murphy, challenge traditional notions of legality?

Murphy suggests that customary law embodies deeper cultural values that extend beyond formal legal definitions. Signup and view all the answers

In the context of British colonial law, how is self-determination linked to the recognition of indigenous customs?

Self-determination is achieved through the acknowledgment of indigenous customs, allowing communities to govern themselves according to their traditions. Signup and view all the answers

What role does international law play in the recognition of indigenous rights and customs?

International law serves as a framework that supports the protection of indigenous rights and the recognition of their customs. Signup and view all the answers

Identify the primary challenge faced by legal regimes in reconciling indigenous customs with statutory law.

The main challenge is finding a balance between respecting traditional customs and enforcing statutory laws that may conflict with these customs. Signup and view all the answers

How do customs factor into the underlying law of Papua New Guinea according to Minei et al.?

Customs are integral to the underlying law as they influence social norms and practices related to informed consent and health care. Signup and view all the answers

What implications does the study of classic Roman custom law have for contemporary discussions on indigenous rights?

The study implies that historical contexts of custom can inform current legal understandings and implementations of indigenous rights. Signup and view all the answers

In what way do habit and conventions underpin customary law in societal governance?

Habit and conventions create a stable framework for customary law, ensuring that legal practices are rooted in societal behavior and expectations. Signup and view all the answers

What is the role of the Supreme Court and the National Court in formulating rules of law when no applicable law exists?

They have a duty to formulate an appropriate rule as part of the underlying law, considering NGDPs, Basic Social Obligations, and relevant customs. Signup and view all the answers

How does the Underlying Law Act 2000 relate to the recognition of custom in Papua New Guinea's legal framework?

The Underlying Law Act states that custom shall be recognized and enforced by courts, unless it results in injustice or is not in the public interest. Signup and view all the answers

Discuss the significance of NGDPs and Basic Social Obligations in the development of underlying law in Papua New Guinea.

They guide the courts in formulating rules that align with social justice principles and reflect the country's unique circumstances. Signup and view all the answers

What limitations does Section 3 of the Underlying Law Act impose on the recognition of customs?

Customs may not be recognized if their enforcement results in injustice or is not in the public interest. Signup and view all the answers

How does customary international law influence Papua New Guinea's legal system based on the provided content?

The courts may draw analogies from relevant statutes, legislation, and case law from countries with similar legal systems. Signup and view all the answers

Explain the courts' duty regarding the development of a coherent system of underlying law in Papua New Guinea.

The courts must ensure consistency in the development of underlying law as appropriate to the circumstances of the country. Signup and view all the answers

What is the importance of considering 'the circumstances of the country' in judicial decision-making in Papua New Guinea?

It ensures that the law evolves in a manner that reflects the specific social, cultural, and economic context of the country. Signup and view all the answers

In the context of the Underlying Law Act, what role does public interest play in the enforcement of customs?

Public interest serves as a guiding principle that may override the recognition of customs when they could lead to adverse outcomes. Signup and view all the answers

Study Notes

Underlying Law in Papua New Guinea

Courts, particularly the Supreme Court and National Court, must formulate rules of law when none are applicable to a country's circumstances.
Consideration must be given to National Goals and Development Plans (NGDPs), Basic Social Obligations, Basic Rights in the Constitution, relevant statutes, custom, and case law from similar legal systems.
A coherent system of underlying law should develop consistent with the country's circumstances over time, aligning with principles of justice.

Underlying Law Act 2000

Recognizes the co-existence of custom law with the Constitution and other forms of legislation.
Customary law is recognized and enforceable in all courts, except where it creates injustice or public interest concerns.
Criminal cases limit the application of customary law when it conflicts with constitutional mandates, national law, human rights, or public morals.

Historical Perspective on Customary Law

Customary law gained significant importance during the Middle Ages in Europe, necessitating theories for identification.
Key elements of European customary law from Roman texts include: long-standing practice, tacit agreement of the populace, unwritten laws, potential to conflict with statutory law, and alignment with reason.
English common law emphasizes continuity for enforceability; interruptions can nullify customs, but certain conditions, like coercion, may not void them.

Comparative Study of Legal Systems

Recognition of customs has historical roots and present-day implications in contemporary legal systems.
The working principle in indigenous communities states that custom prevails where applicable, while statutory law applies when no customary rules exist.
Laws must uphold justice, equity, and good governance, ensuring customs don’t contradict these principles.

Customary Law Recognition

Customary law binds communities and is acknowledged in national laws, with ongoing need for legal recognition by state authorities.
Custom must be proven to apply in conflicts against personal law, with evidential rules guiding the ascertainment of customs.
The PNG Constitution does not require customs to be "immemorial" for recognition, thus facilitating indigenous people's struggles for acknowledgment.

Philosophical Context

Greek philosophy marks a distinction between written law (nomos eggrahos) and unwritten law (nomos agraphos), with Aristotle viewing customary law as superior to positive law.
The determination of when a custom acquires legal force is vital for its acceptance and broader application within the legal framework.

Conclusion

The evolving recognition of customary law in PNG is critical for addressing the rights and traditional practices of indigenous peoples, which continued to shape the legal landscape.

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Description

This quiz explores the application of underlying law in the context of constitutional principles. Participants will delve into the role of courts, particularly the Supreme Court and National Court, in formulating appropriate rules when no applicable law exists. Key concepts such as NGDPs and Basic Social Obligations from the Constitution will also be examined.