Legal Foundations for the Recognition of Customary Law in the Post-Colonial South Pacific

This chapter examines the theoretical bases that may be used to support the formal recognition of customary law, and to illustrate why it should be acknowledged as an important source of law in the legally pluralist post-colonial societies of the South Pacific. It shows that the recognition of customary law in the postcolonial societies of the South Pacific finds theoretical support in the concept of legal pluralism, principles of human and indigenous rights, and also environmental justice. However, there is little doubt that customary law has been eroded by colonization, and faces a modern challenge in globalization and its renewed interest in uniformity and homogenization. Conversely, the globalization of law, and more importantly, local responses to it, can offer an opportunity to access a broader landscape of laws leading to adaptation, transformation, and new forms of governance. Older forms of law and regulation can be resurrected, reinvigorated, and reinvented in order to achieve contemporary goals and address current issues. This transformative process can be started from above but must also be locally driven from below.