Publication Type

Journal Article

Version

publishedVersion

Publication Date

1-1997

Abstract

The influence of introduced legality on prevailing culture, and vice versa, are common concerns for analysis when considering the existence and development of customary law. Much of the limited writing on law and custom prefers to speculate on the impact of introduced law on already present modes of regulation. While recognising these structuralist contexts of influence, often oversimplified as they are represented, this paper prefers to explore the adaptation of legal formalism in contexts of resilient and resonant custom.Further, the paper examines instances where despite the fact that custom has modified institutional legality, the latter claims predominance over culture or even denies its existence and legitimacy in certain situations of sanction. The imposition of penalty is a prime context within which this transaction of influence takes place. Less obvious is the paper’s interest in the place of penalty as bridge between profoundly different contexts of sanction. Irrespective of the ‘systems’ or motivations that support penalty, its sensitivity to culture is emphasised by the susceptibility of penalty to adaptation, within otherwise rigid ideologies and institutions. Of additional interest is the manner in which customary penalties, while appearing equally well to adapt to and represent quite different sanction ideologies, in fact endanger these ideologies when called to operate beyond their original cultural context.

Discipline

Criminal Law | Law and Society

Publication

Journal of Pacific Studies

Volume

21

First Page

145

Last Page

160

Publisher

Suva

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