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Women, Justice, and Custom: the Discourse of "Good Custom" and "Bad Custom" in Papua New Guinea and Canada

Northern Arizona University, Department of Criminal Justice, P.O. Box 15005, Flagstaff, Arizona, 86011, USA

Court decisions involving custom, the rights of women, and positivist law in Papua New Guinea and Canada are explored and contrasted. In Papua New Guinea the courts have struck down aspects of custom or customary law as being repugnant to the general principles of humanity and in violation of positivist law. In Canada men have argued for the application of custom as a mitigating factor in sentencing, asserting that it offers justification for conduct against women judged criminal under positivist law. Examining judicial discourse on custom or customary law in the two countries illuminates the tensions between custom and positivist law, revealing how custom comes to be judged "good" or "bad" and is reframed as non-normative in one country but as an appropriate cultural component in sentencing in the other.

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