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Finding Balance Between Change and Preservation: Gaining Insight into the Legal Reasoning of Customary Courts in New Caledonia

par Le Meur, Oona
Référence Political and legal anthropology review, 48, 1
Publication Publié, 2025-04-13

Article révisé par les pairs

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Résumé :

The Kanak people of New Caledonia are governed by a separate legal system called “customary law” within the civil law framework. This article discusses a case involving a person’s request to be recognized as a different gender in the customary civil register. It explains the reasoning behind the court’s decision to grant this request. The court grants the gender change to the register, not from politically liberal motivation but from a conservative inclination to avoid bringing “custom” into disrepute. This is based on the assumption that customary authorities would oppose the change to the register, so the court bypasses the need to gain their consent by arguing that it is a matter of human rights, which overrides custom in the French hierarchy of norms. This prevents the Kanak people from engaging in a meaningful dialogue about how customary law can or should change to accommodate social change, such as gender reassignment.