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This article considers the relationship between customary law (kastom) and the official legal system in Vanuatu. It looks at the limitations of the reasons propounded for the lack of integration of customary law and the official legal system and argues that the integration should be a two-way process. The author asserts that a new methodological approach is required to assess the issue regarding the current extent of integration, desirability of integration and capacity for integration of the two systems. Rather than merely analysing case law or legislation, the author argues that the reality behind this picture needs to be investigated and empirical research undertaken.
The development of a Melanesian jurisprudence has been the Holy Grail for many academics, politicians and judges in Melanesia since the independence of the States in the region. Although views differ on the exact form such jurisprudence might take, it is broadly agreed that it would blend the best elements of both the indigenous (customary) and common law legal systems, creating a culturally relevant, fair and just system. In Vanuatu, the subject of this paper, this ideal has singularly failed to materialise in the twenty years since independence. Rather, the current reality is two legal systems running in parallel: an official (Western) system of courts established by the Constitution, and an unofficial (customary) system administered by communities and chiefs.
Many reasons have been propounded for the lack of integration of customary law and the official legal system. Some commentators have gone so far as to suggest that attempting to integrate the two systems is like trying to mix “oil and water” because of the dichotomies between the two.1 Even those who would not go so far stress the extreme difficulties which are entailed in fusing the two systems into a coherent whole.2 Thus, the question of the development of an autochthonous legal system in Vanuatu has reached a point and stalled. There is consensus amongst academics that such a development is desirable, even necessary; but the question of which elements of the unofficial system should be integrated and how they could be integrated, given the diverse nature of the two systems, has not yet been investigated.
This paper argues that, in order to advance the matter further, a new methodological approach is required. Rather than approaching the question, as has been done previously, solely by analysing case law and legislation, there needs to be a much broader investigation of the entire justice system, both before and after court, and including both the official and unofficial processes. Only then can a true picture emerge of the current extent of integration, the desirability of integration, and the capacity for integration of the two systems.