Customary law, the Crown and the common law : ancient legal islands in the post-colonial stream

This thesis is a cross-disciplinary study of legal history and customary law. Respect for, and accommodation of local customary law has been a constant and integral feature of law in Britain since Anglo-Saxon times. It guided the emergence of the common law, and continues as a rule of law to the present day. Such respect and accommodation was an essential principle that permitted the peaceful consolidation of the British realms from its constituent parts. Continuity of law is a legal presumption whether territories have been added by conquest, cession or annexation. The principle respect for local legal custom was one of two schools of thought carried to Britain's overseas colonies; the other was a theory that local customary law could be extinguished by non-recognition on the part of the British sovereign or his/her delegates. Nevertheless, customary laws and institutions were explicitly and implicitly recognized in the colonial period. The doctrine has modern application with respect to the customary law ways of indigenous peoples wherever the common law has been extended overseas. Rights under customary law are distinguished from Aboriginal rights, though there is some overlap between the two. Customary law can only be extinguished by an express statute, or by clearly unavoidable implication. Legal customs are not invalid merely for being contrary to the common law. Common law defers to valid customary law as a matter of constitutional common law. But the common law provides tests by which courts can identify valid legal custom. Where a valid, unextinguished legal custom is found, courts are bound by the common law to apply it. Where customary law can be identified, it binds the servants and agents of the Crown, except when it is inconsistent with Crown sovereignty itself.Law, Peter A. Allard School ofGraduat