La culture sans essentialisme : l'exemple d'un 'droit coutumier' dans la societe multiculturelle de la Nouvelle-Caledonie (Culture without essentialism: the case of the "customary justice" system in the multicultural society of New-Caledonia)

Abstract

This paper examines the strong debate held in France and in New-Caledonia about the value of bringing into the juridical courts, under a written form, a jurisprudential body of laws resulting from past court cases where considerations of "custom" have been used in addition to the French State law. Opponents express their concern that customary decisions have more than once been unfair to women or to young people, because the gardians of the custom are elderly men; thus making out of these decisions a system of written common law would be detrimental to individual human rights. Those supporting the introduction of customary law say that turning away from custom and staying only with the French State laws dissolves the very idea of "Kanak culture" in the sense that it leaves only individuals in front of the law and wipes off any difference between indigenous autochtonous population (the Kanak) and groups (French and others) that came later in New-Caledonia through the colonial system. The challenge is to recognize a specific Kanak culture while at the same type making it compatible with the requirements of individual human rights and the shared goal of building a "common destiny" for all inhabitants of the "Kanaky-New-Caledonia" country. Show more