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Customas Law

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Chapter Summary

This chapter considers the status of custom as law. It begins with references to PNG legislation that empowers the courts to settle land disputes and the recognition of land owning groups through reference to local custom. The chapter point outs an implicit assumption that custom entails rule governed behaviour in which the rules are accessed through reference to an oral rather than a written tradition. It discusses H.L.A. Hart?s contention that custom lacks the secondary rules that characterize a complete legal system. The chapter reviews the skepticism with which Hart?s theory has met. It examines that rule guided customary systems, which approximate formal legal systems, can be efficacious in settling property and land disputes. This is important because formal legal systems allow for property rights to gain independence from local political and informal arrangements.

Keywords: custom as law; customary property rights; Hart?s theory; land disputes; legal property rights

10.1163/ej.9789004166943.i-296.44
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