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Succession Law in the South Pacific by R. Hughes (Book Review) [2000] JSPL 20; (2000) 4 Journal of South Pacific Law

BOOK REVIEW

by Kenneth Brown

Succession Law in the South Pacific

Robert A Hughes

USP: IJALS, Suva 1999.

ISBN: 982-352-004-6

pp 211

This volume, the latest in the Laws of the South Pacific Series is published under the auspices of USP and the Institute of Justice and Applied Legal Studies. Previous texts have tackled the fields of Criminal Law, Torts and Civil Procedure. This enterprise is perhaps the boldest yet as it ventures into terrain where the prescriptions of custom and state law often contrast so starkly that the dissection and elucidation of all the issues is a formidable task.

Any work dedicated to a round-up of the laws of various jurisdictions is fraught with danger. In the Pacific these dangers are compounded as not only do the countries in the region have differing colonial histories but also vary in their ethnic, linguistic and cultural make-up. Succession is concerned with the personal law of the individual and in the Pacific this personal law is almost exclusively customary. The problems of approach this poses for any writer are immense. Is customary law to be disregarded? If so this diminishes the value of the final product as a true reflection of Pacific jurisprudence. Or should the author enter the quicksand of an examination of customary law? This is to plunge into territory that is largely uncharted and which is beyond the competence of most lawyers. Little is known of customary modes of succession. They may be so fluid as to be impossible to pin down with any accuracy: M P Mvunga ‘Law and Social Change: A Case Study in the Customary Law of Inheritance in Zambia’ (1979) African Social Research 28; G Woodman ‘Studying the Laws: Respecting Customary Law in the Curriculum, (1987) 15 Melanesian LJ 118.

Professor Hughes sets out his stall early. From his foreword the wares he offers are to be limited to an examination of common law systems of succession as adopted by or applicable in Pacific nations. The core rationale for this approach is that an account of customary succession practices would make the book too large as ‘custom varies so considerably within particular jurisdictions as well as between them. (v) As noted isolating custom practices is beyond the scope of lawyers and probably the province of anthropologists. However the restatement of the common justifications for not tackling prickly customary issues; that custom is too variable, diffuse and difficult to ascertain is a shame. This is particularly so as Professor Hughes is a lucid author and as his general introduction and family provision chapters demonstrate is alive to the wider debate on succession in societies with plural regimes. Furthermore in a work designed as a reference textbook it is questionable that common law systems represent the basic law in the arena of personal law. As Woodman in ‘Studying the Laws...’ (1987) 15 Melanesian LJ 118 convincingly advocates, in the study and teaching of personal law subjects it is preferable to regard customary law as the basic law.