Paper short abstract:

This paper examines how custom is simultaneously discovered and invented in the course of high court cases in Papua New Guinea.

Paper long abstract:

The title of this paper is an inversion of the formula once uttered by a Papua New Guinean judge, that 'While law is made, custom is discovered.' Although it is enshrined in the Constitution as part of Papua New Guinea's 'underlying law', custom must be pleaded as evidence to be admissible in court. To do so successfully, those offering customary evidence must make the custom of their ethnic or linguistic group appear far more stable and consensual - and indeed more spoken-about - than it ever is in actuality. So the process of turning custom into evidence is premised on the illusion that custom ever existed in a form that could be imported into a legal context. I aim for a critique of the notion that custom can be entextualised, as a means of reframing traditional debates in the study of legal pluralism to do with how law encompasses custom, particularly in postcolonial settings. Certainly this model has been written into the Papua New Guinea Constitution. But asking how custom becomes an argument allows for an escape from the cliché of encompassment, which is not, I argue, the process at stake in Papua New Guinea case law. Using entextualisation rather than encompassment enables a different set of questions about how custom is simultaneously invented and translated, and how these moments of invention and translation can be observed.