CEU Electronic Theses and Dissertations, 2021
| Author | Haynes-Mannering, Edward Joshua |
|---|---|
| Title | A Common Contractual Conception of Custom?: How the Judiciaries of Post-Colonial Ghana and Papua New Guinea Fetter Indeterminacy through Stare Decisis in Customary Disputes |
| Summary | Customary law persists as a legal paradigm in many parts of the former British Empire alongside ‘received’ English law. Due to the essentialist and communitarian connotations that anthropological and legal thought have bestowed upon the former, legal pluralism is often invoked to analyse customary law. Unfortunately, pluralist frameworks often give the mistaken impression that each group’s customs somehow constitute separate subnational legal systems. While socio-legal pluralist perspectives have their place, within Ghana and Papua New Guinea at least, legal pluralism fails to articulate how customary law doctrines have been translated into common law terminology and integrated within a positivist framework by the hierarchical, ultimately English-style judiciary that administers it. Furthermore, the tendency for legal pluralists to consider custom as law proper is ill-equipped to recognise how Ghana and Papua New Guinea’s judiciaries have developed generalised legal principles (‘customary law’) for the recognition of custom as a question of fact (custom). As these principles and related teleological concerns vary from issue-to-issue, this thesis looks at the doctrines governing the specific issue of the recognition of customary marriage, and analyses relevant constitutional provisions, legislation and precedent through a positivist framework. This analysis reveals that far from being a separate essentialist law with a communitarian character, the judicial doctrines of customary marriage are almost identical to the underlying principles of contract law, and are based on the same individualist principles, although accounting for communitarian standards. However, while precedents regarding the recognition of customary marriage consistently relies on these principles, it usually fails to articulate them explicitly, instead varying the degree of communitarian essentialism (i.e. formalism) to reach the result a contractual conception would have otherwise reached. This caution about expressing these contractual principles ultimately means that the judiciary fails to live up to its constitutional function of providing legal certainty, leaving the door open for excessive discretion and leaving the legislature and the public in the dark. |
| Supervisor | Markus Böckenförde |
| Department | Legal Studies LLM |
| Full text | https://www.etd.ceu.edu/2021/mannering_joshua.pdf |
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