Podcast
Questions and Answers
How does customary law conflict with modern legal frameworks such as constitutions and human rights?
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?
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?
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.
Discuss the significance of continuity in the context of English common law regarding customary law.
How does the interruption of possession affect the validity of customary law as per Blackstone's view?
How does the interruption of possession affect the validity of customary law as per Blackstone's view?
In the context of Indigenous rights and self-determination, how can conflicts between customary law and national law be resolved?
In the context of Indigenous rights and self-determination, how can conflicts between customary law and national law be resolved?
What implications do limitations on the applicability of customary law have for legal regimes governing Indigenous peoples?
What implications do limitations on the applicability of customary law have for legal regimes governing Indigenous peoples?
How does the principle of 'natural justice' intersect with the recognition of customary law?
How does the principle of 'natural justice' intersect with the recognition of customary law?
What role does the state play in relation to indigenous customs according to the content?
What role does the state play in relation to indigenous customs according to the content?
What burden does a person asserting a custom contrary to their personal law carry?
What burden does a person asserting a custom contrary to their personal law carry?
How does customary law gain recognition as a binding authority in communities?
How does customary law gain recognition as a binding authority in communities?
Why might customary law remain largely unexplored despite its significance?
Why might customary law remain largely unexplored despite its significance?
What conditions must a custom meet to be considered valid?
What conditions must a custom meet to be considered valid?
How does the recognition of indigenous customs intersect with self-determination?
How does the recognition of indigenous customs intersect with self-determination?
How do Greek philosophers differentiate between written law and unwritten laws in the context of natural law?
How do Greek philosophers differentiate between written law and unwritten laws in the context of natural law?
According to Aristotle, why was customary law considered superior to positive law?
According to Aristotle, why was customary law considered superior to positive law?
What implications arise if a custom is proven within a legal context?
What implications arise if a custom is proven within a legal context?
What is the primary rule of decision for indigenous communities when a custom exists?
What is the primary rule of decision for indigenous communities when a custom exists?
What is the significance of recognizing when a custom acquires the 'full force of law'?
What is the significance of recognizing when a custom acquires the 'full force of law'?
How does the PNG Constitution approach the regulation of customary law?
How does the PNG Constitution approach the regulation of customary law?
What challenge do indigenous people face in the recognition of their customary laws?
What challenge do indigenous people face in the recognition of their customary laws?
What does the term 'immemorial' signify in relation to customary law according to common law tradition?
What does the term 'immemorial' signify in relation to customary law according to common law tradition?
In the context of legal regimes, what role do customary laws play for indigenous communities?
In the context of legal regimes, what role do customary laws play for indigenous communities?
How does the definition of 'custom' differ in the context of PNG law compared to traditional legal definitions?
How does the definition of 'custom' differ in the context of PNG law compared to traditional legal definitions?
What is the importance of custom in the legal systems of Papua New Guinea, as discussed by Jessup?
What is the importance of custom in the legal systems of Papua New Guinea, as discussed by Jessup?
How does the philosophy of customary law, as explored by Murphy, challenge traditional notions of legality?
How does the philosophy of customary law, as explored by Murphy, challenge traditional notions of legality?
In the context of British colonial law, how is self-determination linked to the recognition of indigenous customs?
In the context of British colonial law, how is self-determination linked to the recognition of indigenous customs?
What role does international law play in the recognition of indigenous rights and customs?
What role does international law play in the recognition of indigenous rights and customs?
Identify the primary challenge faced by legal regimes in reconciling indigenous customs with statutory law.
Identify the primary challenge faced by legal regimes in reconciling indigenous customs with statutory law.
How do customs factor into the underlying law of Papua New Guinea according to Minei et al.?
How do customs factor into the underlying law of Papua New Guinea according to Minei et al.?
What implications does the study of classic Roman custom law have for contemporary discussions on indigenous rights?
What implications does the study of classic Roman custom law have for contemporary discussions on indigenous rights?
In what way do habit and conventions underpin customary law in societal governance?
In what way do habit and conventions underpin customary law in societal governance?
What is the role of the Supreme Court and the National Court in formulating rules of law when no applicable law exists?
What is the role of the Supreme Court and the National Court in formulating rules of law when no applicable law exists?
How does the Underlying Law Act 2000 relate to the recognition of custom in Papua New Guinea's legal framework?
How does the Underlying Law Act 2000 relate to the recognition of custom in Papua New Guinea's legal framework?
Discuss the significance of NGDPs and Basic Social Obligations in the development of underlying law in Papua New Guinea.
Discuss the significance of NGDPs and Basic Social Obligations in the development of underlying law in Papua New Guinea.
What limitations does Section 3 of the Underlying Law Act impose on the recognition of customs?
What limitations does Section 3 of the Underlying Law Act impose on the recognition of customs?
How does customary international law influence Papua New Guinea's legal system based on the provided content?
How does customary international law influence Papua New Guinea's legal system based on the provided content?
Explain the courts' duty regarding the development of a coherent system of underlying law in Papua New Guinea.
Explain the courts' duty regarding the development of a coherent system of underlying law in Papua New Guinea.
What is the importance of considering 'the circumstances of the country' in judicial decision-making in Papua New Guinea?
What is the importance of considering 'the circumstances of the country' in judicial decision-making in Papua New Guinea?
In the context of the Underlying Law Act, what role does public interest play in the enforcement of customs?
In the context of the Underlying Law Act, what role does public interest play in the enforcement of customs?
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.
