New Caledonia, from custom to law

The great geographical and symbolic distance with which a work on New Caledonia can be associated should not mislead the reader. This collective volume, edited by C. Demmer and B. Trépied, does not speak of a distant and unknown world. On the contrary, it nourishes a current and close questioning that goes beyond the political context of the archipelago: how to ratify belonging to the political community and manage the dividing lines within it?

Here are brought together investigations relating to the anthropology of the contemporary and the political, whose trademarks are recognizable. First, the construction of objects of study anchored in the contemporary and caught in power relations, starting from a meticulous ethnographic observation. Then, the development of explanations including a diachronic perspective and allowing an articulation of the different scales of analysis. This common perspective is put to the service of fundamental questions on practical relationships to the norm, disputes concerning the legitimate definition of oneself, emancipation, understood as a question of cultural recognition or of more advanced social and political transformation. Finally, taken as a whole, these works address, in filigree, questions linked to contemporary modes of political representation.

Custom and independence

The starting point of this collective volume on recent changes in the relationship between “custom” and “State” in New Caledonia is found in the third chapter, co-written by C. Demmer and C. Salomon. Like a leaflet opening in the middle, the other chapters spread out upstream and downstream to expose a complex and detailed landscape, allowing us to discover the multiple facets of “the problem of cultural specificities and the link to the State in contemporary postcolonial spaces” (p. 19).

At the heart of this chapter – and of the book – is an institution that, due to its singularity outside the Oceanian context, may seem difficult to grasp: the Customary Senate created by the Noumea Agreement in 1998. This body established by the State is understood here from the angle of its genesis, its modes of operation and the political issues that it poses today. In these aspects, custom appears as the keystone around which the New Caledonian political field will be reconfigured from the 1970s. This is first structured around two poles: that of the Kanak nationalists (with all the variety of positions that this term can include, even if they are generally on the left) and the political pole of the right, opposed to independence and demanding recognition of custom by the State. Over the next decade, the creation of the Customary Consultative Council, created by the Matignon Accords in 1988, marked the appropriation by the State of the rhetoric that advocated the recognition of custom. A final change would take place in the 1990s and 2000s, when the members of the Council, which had become the Customary Senate, began to invest in the political and institutional field in a more direct manner, seeking to acquire greater autonomy and go beyond the role of a simple consultative body assigned to the Senate. This aspiration would lead to the Charter of the Kanak People, promulgated in 2014.

This political project is also grafted onto the rhetoric of the rights of indigenous peoples as it is mobilized in theUNthus revealing a singular double polarization. On the one hand, the independence activists would oppose the defenders of custom, now upholding indigenous rights. On the other hand, these “customary people” would also oppose the Kanak elected officials, devoid of legitimacy when it comes to embodying “tradition”.

Universalism, differentialism

From this chapter, the book develops in two parts. The first is historical. M. Naepels looks back at the history of the legal recognition by the French state of the “council of elders”, an instance of the Kanak government today perceived as a pre-colonial heritage. He shows that this institution, sometimes “untraceable” (p. 29) or, at least, elusive, took shape as an organ of Kanak representation at the very moment when the colonial and post-colonial state was trying to integrate it into its legal norm, and by following the same process. C. Salomon, for his part, tackles the period following the end of the indigénat (1946–1956), when an intense debate took place between two political projects. The first project, “universalist”, was defended by the Caledonian Communist Party and aimed for equality (notably electoral) between blacks and whites. The missionaries and the religious associations they created reacted by proposing a second “differentialist” project, which provided for specific political treatment of the Kanak population. The disputes of this period are then understood as “the matrix of a certain contemporary discourse on ‘customs and traditions'” (p. 52), today reformulated and invested by the Customary Senate.

Everyday custom

The second part, made up of 5 contributions, is contemporary and ethnographic. It specifies the contemporary issues of Kanak custom, strongly determined by the Customary Senate and the differentialist logic on which the codification of custom and the production of indigenous law is based. The chapters by JL Halpérin, M-Capo and B. Trépied allow us to observe, from 3 angles, the social relationships to the norm, and more specifically to custom. By putting ethnography in the spotlight and focusing on an almost intimate scale, their analyses present a broad panorama of the translation, on a daily basis and as close as possible to social actors, of this social and political project that is the establishment of Kanak customary law within the Republic. With JL. Halpérin, we follow the notaries and customary public officers who are, in a way, on the border between common law and customary law. Mr. Capo describes the debates, tensions and contradictions within a commission charged with drafting and codifying custom in the Paicî-Camûkî area, one of the customary areas of the archipelago. Finally, the deliberative work of Kanak assessors in customary courts responsible for civil matters – particularly child custody – is finely analyzed by B. Trépied.

Despite the differentialist will that presides over the Customary Senate project, the authors note a great porosity between two entities that, seen on this scale, appear only as ideals, utopias: French common law and customary law. Thus, J.-L. Halpérin speaks of a “mixed law”. M. Capo notes that, more than the codification of customary law, the result of this effort is rather an inevitable synthesis between common law and customary law. Finally, B. Trépied concludes that there is an intermediate space between the two laws where individuals negotiate their margin of action with regard to clans and custom, and where the existential question of what it means to be a socially legitimate Kanak subject is more fundamentally posed.

Drawing the line between state and custom

In these three case studies, custom is confronted with its own limits: the practices of people who, as Jean Bazin summed up, “go about their business”, without necessarily worrying about “being fully in the custom”, as one of the people observed by B. Trépied admits (p. 227). The oppressive dimension of the norm is then revealed, except that today the force of the law does not reside in the negation of difference, but rather in its idealization. From this point of view, customary courts appear as important devices of othering which, by separating one right from the other, contribute centrally to fixing the boundary between them. However, the interweaving of common law and customary law demonstrated by these articles could allow us to question the State more explicitly, a question that only appears implicitly in these chapters. Indeed, these spaces of production of a customary norm also produce situations where the limits of the State and the law it institutes are also reconfigured. To what extent, then, does this transformation of local political discourses relating to custom enlighten us, not only on Kanak political arguments, but also on the concrete forms that the State adopts today to establish itself socially?

Also questioning the legitimate definition of contemporary Kanak identity, T. LeFevre’s contribution focuses on a struggle for public space between a collective of young urbanites called “the tribe in the city” and the Customary Senate, allied for the occasion with the Noumea city hall. Although it relies only on the statements of two informants, this article seeks to show how young Kanaks who grew up in the city find themselves excluded from the political project supported by the Customary Senate. M. Salaün’s chapter moves away from ethnography to offer a critical commentary on the work of magistrate Régis Lafargue, thus constituting as an object of study the representation made therein of the political project of the Customary Senate and the law that it seeks to codify.

From custom to democracy

For specialists in indigenous issues in other contexts, particularly in Latin America, the study of this customary Senate and its motto to codify customary law offers essential insight into what is involved, in concrete terms, in the institutional recognition of procedures, norms and customs identified as indigenous. Many indigenous movements (and anthropologists) have an idealized vision of the legal and practical recognition of customs and practices, conceived as a solution to the marginalization and exclusion suffered by populations identified as indigenous. Perhaps more interestingly, these utopias also present themselves as an alternative to established political systems, particularly electoral democracy, for so-called “multi-ethnic” and other states. One can then ask, in line with the effort undertaken here to avoid the pitfalls of exoticism, to what extent this experience of the customary Senate could also inform us about contemporary changes in electoral democracy and the party system. This question seems all the more legitimate as it applies to most democracies, including that of New Caledonia.