CAIRN-INT.INFO : International Edition

1The crux of this special issue addresses the singular nature of justice in Overseas France, by examining the issues that arise from local specificities in Mayotte, French Guiana, New Caledonia, French Polynesia, and Wallis and Futuna [2] for the French state, within the justice system. The choice of these five collectivities directly relates to the fact that they include all of the former colonized peoples defined as “indigènes” (“natives”) or “assimilés indigènes” (“assimilated natives”) (see below), who, having become citizens, remained to this day under French sovereignty following the wave of independence of the 1960s, namely: Mahorans, Amerindians and Bushinengue (Maroons), Kanak, Polynesian islanders from Wallis and Futuna and French Polynesia. For these populations, the problem of a “colonial legacy” (Bayart and Bertrand 2006) arises, in the contemporary context of Overseas France, in terms different to those for Creoles in the Antilles, Réunion, and French Guiana, where debates around the memory of slavery prevail. Rather, it relates to the continuities and ruptures between yesterday’s “indigène status” and today’s “citizen status,” in the context of a continuing relationship with the French state, from the colonial era until the present day.

2Beyond colonial remnants, the differentiation or, on the contrary, the contemporary non-differentiation, of law in these territories also arises from postcolonial political mobilizations. Thus in French Guiana, New Caledonia and, to a lesser extent, in French Polynesia, certain actors are calling for an institutionalization of cultural differences, by calling upon the political and legal category of “indigenous peoples,” as has come to be enshrined in international law (Demmer 2007; Gagné 2015; Trépied 2012; Guyon and Trépied 2013). Meanwhile, other actors reject it, with the purpose of enhancing citizen integration into the Republic—in all three of the above territories, but above all in Mayotte and in Wallis and Futuna. Whether they claim to be indigenous peoples or not, they all nevertheless benefit, to varying degrees, from mechanisms of cultural and social recognition that have been put in place by the French state over the course of the colonial and postcolonial trajectories of these five overseas collectivities. Eight of the eleven articles in this special issue focus on the practical implementation of said provisions within a specific arena, namely the judicial sphere. Based on the local scale, and from the point of view of the ordinary experiences of individuals facing civil justice, they make use of ethnography to describe unique contemporary situations involving confrontation and interaction between agents of the French judicial system and litigant Mahorans, Amerindians, Bushinengues, Kanak, Polynesians, and Wallisians and Futunians. The special issue’s three other articles provide points for comparison regarding how the justice systems unfolds in these overseas collectivities, both in historical terms—on the trajectory of colonial law during the French Empire—and geographical terms—on family law in metropolitan France on the one hand, and on how Chile’s justice system treats indigenous Mapuche litigants on the other.

Colonial law, citizenship, and civility

3Approaching the contemporary justice system in Overseas France from the perspective of a colonial legacy first requires us to consider the imperial processes of legal categorizations that characterized the “politics of difference” implemented by the French state in the nineteenth century (Burbank and Cooper 2011). In fact, this is the topic of the first article in this special issue, the only one written by a legal historian (Yerri Urban), providing us with the outlines of the overall framework within which custom and citizenship interact throughout the history of French overseas dependencies, since the beginning of the second colonial empire. At the heart of these complex historical and legal dynamics is the category of the “indigène” (“native”), gradually constructed during the second half of the nineteenth century in the “Algerian laboratory,” and subsequently extended to the rest of the French Empire (Blévis 2003; Saada 2005). This category covered three broad dimensions. In political matters, natives of the colonies were considered French nationals without benefiting from the rights pertaining to citizenship, foremost among which was the right to vote: given the colonization of their territory, these “French nationals, albeit non-citizen subjects” were subject to French sovereignty without being able to participate in the expression of said sovereignty. In criminal matters, natives were not only subject to the Penal Code, as were citizens, but also to the “indigénat regime.” Derived from the exceptional powers exercised by the army during phases of conquest, this regime legalized and “routinized” repressive measures without parallels in metropolitan France: administrative detention; sequestration of property; lists of “special offenses reserved for natives” (which varied according to time and place); collective punishment; and overlap between executive and judicial powers (Merle 2004). Lastly, in civil matters, the state considered that the loss of sovereignty of the newly conquered colonies did not necessarily entail the submission of their inhabitants to the Civil Code and the disappearance of their “habits and customs,” hence natives were granted “special status” (or “personal” or “local” status), distinct from the Civil Code.

4In contrast, in the post-slavery “old” French colonies of Guadeloupe, Martinique, Réunion and French Guiana, the participation of former slaves—who became citizens in 1848—in universal suffrage, and their representation in the National Assembly, have placed them in a process of legal and civil assimilation to metropolitan France, a process conceived of as intrinsically associated with citizenship. Local elites in the Antilles, Réunion, and French Guiana mobilized relentlessly, especially under the Third Republic, to ensure that full legal and constitutional equality with the mainland was granted to the former colonies, which in 1946 led to the creation of four départements d’outre-mer (DOM, Overseas Departments), as well as the law of legal assimilation advocated by overseas dependency deputies Aimé Césaire, Léopold Bissol, Gaston Monnerville and Raymond Vergès. In the colonial context of the nineteenth century and the beginning of the twentieth century, assimilation thus became a yardstick for measuring the distance of colonized peoples from French civilization; it drew an almost impassable boundary between citizens and indigenous subjects considered “unassimilable” (Hajjat 2012; Mam-Lam-Fouck 2006).

5Deployed on an empire-wide scale, these political and legal rationales of distinction between indigènes and citizens have also been widely adapted and reshaped according to local contexts, as evidenced by the contrasting cases of the five territories that presently concern us. After Mayotte and New Caledonia came under French sovereignty (in 1841 and 1853, respectively), the Mahorans and Kanak were assigned the “classical” category of the “non-citizen native”—lacking political rights, subject to the indigénat regime and to a special civil law. The inhabitants of Wallis and Futuna (a French protectorate from 1887–1888) were de facto given similar status, despite their formal status as “protégés” (“protected people”), rather than “indigènes”. On the other hand, as an exceptional event in the Empire, upon the colonial annexation in 1880 of the former “kingdom” of Chief Pomare (a territory with French protectorate status since 1842 and part of the Établissements français d’Océanie (EFO) [French Establishments in Oceania], which included the Windward Islands—Tahiti and Moorea—as well as the Tuamotu Archipelago and part of the Austral Islands), its inhabitants obtained French citizenship. However, the exercise of their political rights was significantly reduced over the years, while French authorities occasionally referred to them as “indigènes” despite their legal status as citizens (Trémon 2013). In civil matters, they were formally subject to the Civil Code. In contrast, in the “secondary territories” of the EFOs (the Marquesas archipelago, the rest of the Austral Islands, Leeward Islands, and the Gambier archipelago), the inhabitants belonged to the category of “sujets indigènes” (“native subjects”), and, as such, were subject to local law codes (of missionary inspiration). In 1957, the EFOs were renamed French Polynesia. As for the Amerindians and Bushinengue of French Guiana (a French colony since 1676), they have long remained outside any legal codification because of their isolation in the Amazon rainforest, beyond the scope of colonization limited to the coastal fringe. It was only the francization policies of the 1960s and 1970s that gave them formal status as citizens with common civil status. They were therefore, strictly speaking, never legally considered “indigènes.” Yerri Urban’s article in this special issue dwells on this peculiarity of the case of French Guiana.

6At the end of the Second World War, important legal reforms accompanied the transformation of the Empire into the French Union, foremost among which was the accession of indigènes to citizenship status, together with the abolition of the indigénat regime. The links between the mainland and “peoples of her Overseas Territories,” according to the provisions of the Constitution of October 1946, were henceforth based “upon the equality of rights and privileges, without distinction as to race or religion.” Under Article 82, which became Article 75 of the 1958 Constitution, the distinction between common civil law and personal law has nevertheless been retained in most of the former colonies founded during France’s second colonial empire, and renamed the Territoires d’outre-mer (TOM) [Overseas Territories] after the war. Since then, and up until today, the French Republic has officially recognized two categories of French citizens: those of common civil status and those of special civil status. Most peoples falling under the second category, however, relinquished French nationality and embraced the wave of independence of the 1960s. Currently, the last remaining French citizens who are not subject to the Civil Code are therefore the Mahorans, the Kanak, and the Wallisians and Futunians. As an exception, on an empire-wide scale, the inhabitants of “secondary establishments” of the EFO became citizens in 1945, based on the same model as those of the former kingdom of Pomare in 1880, i.e., by becoming subject to the Civil Code, and no longer to their old codes of law. Finally, Amerindians and Bushinengue, as previously mentioned, were directly admitted into French law as ordinary citizens.

Customs and justice in contemporary overseas dependencies

7Nowadays, legal situations therefore vary greatly when it comes to civil matters: formal customary law applies in certain territories (Mayotte, New Caledonia, Wallis and Futuna), but not in others (French Polynesia, French Guiana). Even within these two subgroups, the trajectories of law and justice are closely related to local contexts, unique in each case. Thus, in Mayotte, local civil law was emptied of its substance in favor of departmentalization in 2011 (Blanchy and Moatty 2012), whereas in New Caledonia, “Kanak customary law” was formalized under the Nouméa Accord of 1998 (enshrined in the Constitution) and was promoted and celebrated by Kanak “indigenous” activists as a factor of recognition and “internal sovereignty” (Demmer and Trépied 2017), ahead of the 2018 referendum on self-determination.

8The whole point of this special issue is to offer a comparison of these various cases by focusing specifically on civil justice, rather than on criminal justice, where common law applies across the board. Within civil justice itself, most of the articles that make up this special issue focus more specifically on family matters, where the issue of taking customary specificities into account is particularly acute. The issue is therefore structured according to the historical dynamics and the degree of institutionalization of the given custom in these territories. Following a historical overview (Yerri Urban), it goes on to examine contemporary situations in Mayotte (Myriam Hachimi Allaoui and Élise Lemercier, Sophie Blanchy), New Caledonia (Benoît Trépied, Christine Salomon) and Wallis and Futuna (Françoise Douaire-Marsaudon)—the three collectivities where civil justice is supposed to settle disputes in accordance with an officially recognized customary law. The remainder of the issue raises the question of what place is given in practice—i.e., in ordinary civil judicial proceedings—to local and cultural specificities when these are not acknowledged in law, in the cases of French Polynesia (Natacha Gagné) and French Guiana (Stéphanie Guyon, Catherine Benoît), but also in metropolitan France (Bessière et al.). It ends with a comparative shift in focus, courtesy of Fabien Le Bonniec’s article on the issues and tensions surrounding the recognition of indigenous rights in judicial matters in an entirely different context, that of Chile and the Mapuche indigenous communities.

9The case of Mayotte highlights the difficulties that arise in the French context when it comes to any suggestion of political assimilation conceived of outside of undifferentiated law. It is indeed precisely around reforms to personal status and civil registration that the ambiguities of departmentalization in Mayotte remain tangible to this day. Having stayed in the French fold in 1976, when the other islands of the Comoros archipelago gained independence, Mayotte experienced a period of statutory indeterminacy for over thirty years before finally becoming France’s fifth overseas department. In her article, Sophie Blanchy reviews the civil justice reforms that accompanied the departmentalization process. This statutory change has in this case been associated by the legislator with the need to reform personal civil status under local law—of Muslim and customary inspiration—in order to make it “compatible” with how law and justice is organized for a French department. Set in motion in the early 2000s, the recasting of civil status ended the traditional naming system in force on the island, and the civil justice reform also deprived the cadis—Muslim magistrates that had been officially recognized by the French state since the colonial era—of most of their prerogative in matters relating to marriage, separation, and inheritance. However, these questions have never been put forward as such in the local public sphere, with the Mahoran political elite instead choosing to postpone this debate so as not to jeopardize the departmentalization process. Sophie Blanchy highlights the effects of these changes on definitions of kinship (marriage, filiation) and paternity, and hence on conjugal and parental relationships, as well as gender relations. Myriam Hachimi Alaoui and Élise Lemercier will however show that the cadis, who have lacked a clearly defined role since the 2000s, now seem to be in the process of being reinstated. Indeed, since 2015, in a context of insecurity on the local scene, and in the wake of terrorist attacks in mainland France, we are witnessing a reconfiguration process of the cadi institution in Mayotte. As promoters of the values of the Republic, the cadis would now commit themselves to “social mediation” as part of the “fight against radicalization,” even if the outlines of this new role in service of the Republic remain largely undefined.

10In contrast to the case of Mayotte, the political process of decolonization and rebalancing in favor of the Kanak in New Caledonia, implemented under the Matignon (1988) and Nouméa (1998) accords has, among other elements, institutionalized a specific type of customary justice. Linked to the official recognition of “customary authorities” at different levels (clans, chiefdoms, customary areas, Customary Senate), customary law now applies to Kanak under customary status at the courts, covering all aspects of civil law (customary lands, family affairs, childhood, guardianship, etc.). In the absence of any written provisions, civil courts are set up as “customary jurisdictions” through the appointment of Kanak “customary assessors” in even numbers sitting with the judge. These customary advisors each have a vote in the proceedings, and their role is to state “what is customary” and to rule accordingly. While this peculiar device, which is unique in contemporary courts in overseas dependencies, appears at first sight to offer all the guarantees for the respect of Kanak culture in the courts, the articles contributed by Benoît Trépied and Christine Salomon nevertheless highlight the strong tensions that it creates in practice for certain Kanak litigants, in particular for women and young people pitted against a culturalist judicial discourse that tends to naturalize and legalize contemporary power relations within the Kanak world, under the guise of respect for customs.

11As for the situation with regard to customary law in Wallis and Futuna, in institutional terms, it comes under the status quo inherited from the colonial era, since no tangible administrative innovation has so far been implemented to bring about state customary justice on a local level, along the same lines as the customary jurisdictions of New Caledonia or the cadi justice in Mayotte. Centered on a case well-known locally of financial and political corruption involving the customary authorities of Wallis (the K. case), Françoise Douaire-Marsaudon’s article underlines to what extent the ever greater clash between what the inhabitants call “customary justice” and “republican justice” has raised issues of primary importance for the archipelago for some years now, not just from a judicial, but also from a political and social point of view.

12While, unlike in Mayotte, New Caledonia, and Wallis and Futuna, no legal device distinct from the Civil Code is formally provided for in French Guiana and French Polynesia, certain specificities remain in French Polynesia in practice, largely when it comes to matters of land. As such, while “no one is supposed to fall under undivided ownership” according to the Civil Code, divergent Polynesian conceptions of law continue to be practiced, since 80 percent of lands outside urban areas remain undivided, i.e., under shared ownership (Bambridge and Ghasarian 2002, 168–169). In addition, recent demands have advocated for a formal restoration of the to’ohitu (customary courts and judges): some have already been unofficially in operation for several years (Saura 1996; 2010). On the island of Rapa, where land is collectively owned, at odds with the Civil Code, a to’ohitu whose members represent the different clans (kapu) was reinstated by the municipal council at the beginning of the 1980s, under the form of a municipal commission acting as a conciliation board with powers in matters of land (Bambridge 2009; Ghasarian 2016). Other to’ohitu would also be restored in Rurutu (1999) and Raivavae (2007) in similar forms. On the other hand, there is no such thing in French Guiana, where the law does not know of—nor does it recognize, for all the more reason—any of the “habits and customs” of the Amerindian and Bushinengue communities.

13Overall, as part of the continuity of the imperial divide distinguishing between a model of assimilation in the “old colonies” and a indigénat model in the “new colonies,” the Constitutions of the Fourth and Fifth Republics thus maintained a structural opposition between the model of legal, political, and administrative integration to metropolitan France, in the case of the overseas departments, and retaining special legislative arrangements and legal pluralism under the framework of the statutes of political autonomy granted to the overseas territories (a category that has been replaced by that of “overseas collectivities” since 2003). Since (French) Republican universalism tends to intrinsically bind cultural and political assimilation (uniqueness of the French people, universality of rights and non-differentiation of the law), respect for cultural diversities may only be envisaged within a framework of political autonomy (Dimier 2004; 2005). In this regard, this special issue is as much concerned with examining the most ideal-typical situations of this Republican paradigm (at one end of the spectrum, the department of French Guiana that has assimilated to the French mainland regime, and at the other end, the “sui generis collectivity” of New Caledonia, in the process of emancipation, with Wallis and Futuna at a sort of halfway point), as with studying borderline cases that jostle this binary pattern, as is the case in Mayotte (where departmentalization calls into question the existence of local civil law) and in French Polynesia (where the Civil Code applies despite political autonomy).

Towards an ethnography of the judicial encounter

14Employing ethnographic methods to study justice “in action” in these “indigenous overseas dependencies” amounts to an original research approach in relation to existing—and copious—scientific literature on “legal pluralism” (Llewellyn and Hoebel, 1992 [1941]; Rouland, 1994; Le Roy 2004; Assier-Andrieu 1996; Eberhard and Vernicos 2006), especially with regard to French overseas collectivities (Martes and Larrieu 1993; De Deckker and Faberon 2001; Orfila 1998; Droit et cultures 1999; Bambridge 2009; Cornut 2010; Lafargue 2010; Filoche 2011; Leca 2016). Rather than considering this question from the point of view of an articulation between two systems of justice and law (state and local), conceived of as coherent cultural assemblages that are clearly defined and not problematized, the use of ethnography makes it possible to examine the multiple issues, tensions, and principles that arise in actual judicial situations (hearings, trials, investigations, etc.), in as close as possible terms to practice. Regarding the contemporary overseas terrains that concern us, it encourages us to pay attention to the postcolonial contexts within which these judicial practices are situated, to the power relations that underpin them—while being fully aware of the so-called “force of law” (Bourdieu, 1987)—and the agency of actors involved in the judicial arena.

15In this issue, we therefore set out to examine as precisely as possible the modalities of confluence between the judiciary apparatus, justice personnel, and litigants in overseas dependencies, thanks to a fine-grained ethnography of these situations of confrontation between the institution and individuals, which pays close attention to uncertainties, fluctuations, tensions, and negotiations on both sides of the judicial interaction—both on the side of litigants and on the side of actors who are part of the judicial system (magistrates, attorneys, court clerks, interpreters, etc.). In this regard, we present this collection of articles as a continuation of recent research carried out in France on the relation to justice “in action” (Israël 2009; Besnier 2017; Le Collectif Onze 2013), but we extend this perspective to the realities of overseas dependencies. As is also emphasized by several works focusing on the discourses, interactions and power relations that structure the judicial scene (Merry 1990; Mertz 1994; Wagner and Cheng 2011), in particular conducted in various “indigenous” contexts in America and Oceania (Richland 2008; Goddard 2009; Barker 2011; Grammond, Lantagne and Gagné 2012), the judicial hearing amounts to a critical moment of confrontation and exchange, where the different actors (literally) “speak” to defend their positions and challenge their points of view. To this effect, the ethnography of hearings, employed in several articles of this issue, allows one to have a direct handle on the multiple interactions (verbal as well as corporal and symbolic) that produce—and are simultaneously the product of—daily judicial practice.

16This issue also explores another methodological input to ethnographize justice, that of problematizing issues around making use or not of the judicial system. This approach has already been used on some of the overseas dependencies examined here. Without seeking to be exhaustive, one can observe the existence of several studies on New Caledonia, which take as their starting point the strategies of Kanak in relation to the law, and assess the social conditions for mobilization or avoiding state justice (Bensa and Salomon 2007), in particular with regard to land conflicts (Naepels 1998), domestic violence (Salomon 2000; 2002), marital breakdown, and child custody (Trépied 2016; 2017). As another example, in the context of the significant social change affecting Amerindians and Bushinengue in French Guiana, studies have examined the ability of certain litigants to use the law to mitigate unequal social relations. Some Bushinengue women can therefore call upon justice in family matters, in order to liberate themselves from the father of their children, while others “accommodate traditional law and French law” by coming to terms with the polygamy of their spouses (Jolivet and Vernon 2007).

17Furthering these lines of thought, a number of contributions to this issue are concerned with how the judicial system takes into account—or conversely euphemizes, or even denies—power relations (in particular social relations related to gender and age) that internally structure these local societies. Benoît Trépied thus highlights the way in which customary courts in New Caledonia have for some years imposed a system of legitimate Kanak kinship—namely extended kinship in relation to the clan and a “customary” paternity entirely detached from the ideology of biological bonds—which, in practice, is far removed from the ordinary practices and representations of young Kanak litigants. In practice, the latter now tend to favor the model of the nuclear family and biological representations of paternity. Through the example of the “judicial-customary” treatment of violence against women, Christine Salomon also examines how the judicial arena in New Caledonia reassigns Kanak women to their subjugated position and reaffirms a strongly neo-customary social order that is unequal and androcentric. As for Natacha Gagné, she examines the multiple asymmetries (particularly in terms of ethnic and socio-economic relations, educational capital, literary skills, and age) that characterize the relationship between actors present at hearings in French Polynesia, particularly in the outer islands. In doing so, she lays bare the challenges in communication that these asymmetries produce, as well as the profound inequalities that exist between litigants in Tahiti and those in more remote archipelagos, in terms of access to justice and equal treatment in the face of justice.

18Other articles in this issue focus on the reverse process of appropriation of judicial institutions by users. For example, Catherine Benoît examines the tensions surrounding notions of French nationality among traditional and elected Aluku leaders (one of the Bushinengue groups) in French Guiana. Elected leaders defend the legal principle of jus soli, according to which being born on French territory grants access to nationality. On the other hand, for traditional Aluku leaders, national affiliation is based on the clan origin, which is historically associated with territories: from their perspective, the Ndjuka Bushinengue, whose ancestral lands and cemeteries are in Suriname, should not become French, even if they were born and have always lived on French territory. Staying in French Guiana, Stéphanie Guyon focuses on the social and administrative rationales for calling upon state justice among Amerindian and Bushinengue communities, with reference to family matters. She highlights the role of the many intermediaries involved in mediation work between state institutions and inhabitants (social workers, traditional chiefs, community leaders) given a growing enrollment in social assistance. However, she shows that in the absence of administrative need, access to justice is not so obvious for many families who have alternative methods for settling family disputes, particularly intra-family mediation or mediation by the traditional chief. The question of the role of intermediaries is also addressed by Natacha Gagné through the case of interpreters. According to French Polynesia’s Code of Civil Procedure, their presence is mandatory during mobile court hearings—which must allow the judge to travel throughout the territory of this vast overseas collectivity (with a surface area equal to that of the European continent). As for Françoise Douaire-Marsaudon, she examines several complaints filed in the French courts against high-ranking persons (aliki) and customary chiefs in Wallis and Futuna. In a move to avoid legal prosecution, these local dignitaries have adopted strategies to mobilize the category of customs against that of Republican justice. In recent years, this situation has given rise to particularly acute tensions that have contributed to an unprecedented political and social crisis in the archipelago.

19The last two articles in this special issue finally allow for putting into perspective the judicial practices at work in contemporary overseas dependencies in light of two different judicial settings, firstly in the context of metropolitan France, and secondly in that of Chile. The article by Céline Bessière, Émilie Biland, Abigail Bourguignon, Sibylle Gollac, Muriel Mille and Hélène Steinmetz focuses on the issue of racialization in the context of family justice in metropolitan France. The authors examine how judges in mainland France also make use of racializing categorizations that place the litigants on a hierarchy, and mobilize culturalist prejudices at work in court proceedings. Let us also note that ethnographies of different institutions (schools, hospitals, etc.) in overseas dependencies have highlighted processes that involve the labeling of patients and students from migrant groups or local minority groups, as well as the discriminatory effects of these ethnic categorizations on the professional practices of state agents (Benoît 2015; Carde 2010; Mulot 2014; Musso et al. 2012), an issue that has so far hardly been addressed in the context of judicial bodies.

20At the end of this special issue, the final article focuses on the situation in Chile, where, as in New Caledonia, the state has recognized and institutionalized a form of customary state justice. From this perspective, Fabien Le Bonniec focuses his attention on criminal mediation mechanisms and reparation agreements implemented by Chilean magistrates in cases of intra-family violence within Mapuche communities, even though Chilean law excludes mediation in such matters—except precisely when litigants are identified as indigenous people. At times based on anthropological expertise, these judges thus institutionalize a means of resolving internal conflicts within Mapuche communities. As is the case in New Caledonia, these decisions are also strongly disputed, particularly by women’s rights associations. In studying these controversies and the arguments put forward in such cases, Fabien Le Bonniec shows that the recognition of an indigenous legality by Chilean judges under common law very often falls within essentializing representations of the Mapuche culture, which bring to mind stereotypes of backwardness.

21This detour via the Chilean experience ultimately uncovers a major tension structuring judicial configurations in the “indigenous” context, such as may be found today in many overseas dependencies, and which this special issue sets out to explore. What produces this tension is that agents of state justice either deliberately ignore the specificities of local socio-cultural fabrics in the name of Republican universalism (albeit reproducing a form of blindness vis-à-vis local issues involved in the definition of disputes), or apply differential judicial procedures and processing in the name of an essentialized “culture” under the discursive category of “authenticity” (Wittersheim 1999). Such approaches neither take social change into account, nor the shifting power relations that underpin social relations (even if this means reproducing another form of blindness, i.e., a dominant, often androcentric, neo-customary discourse). Because they methodically spell out this double-bind and all of the blind spots, misunderstandings, and other imbalances of the judicial encounter, by calling upon a fine-grained ethnography of particular judicial situations, the articles in this special issue ultimately provide the means to think about forms of justice in contemporary overseas dependencies from a dynamic and nuanced perspective, while at the same time avoiding the pitfalls of essentialist assumptions and claims against “invented traditions.”


  • [1]
    Translator’s note: Unless otherwise stated, all translations of cited foreign language material in this article are our own.
  • [2]
    This project has benefited from the support of the Agence nationale de la recherche (French National Research Agency), project No. ANR-13-JSH1-0003-01 “AUTOCHTOM: Legs colonial et outre-mer autochtones.”

Reference list

  • Assier-Andrieu, Louis. 1996. Le Droit dans les sociétés humaines. Paris: Nathan.
  • Bambridge, Tamatoa. 2009. La Terre dans l’archipel des îles Australes. Étude du pluralisme juridique et culturel en matière foncière. Pape’ete: Institut de Recherche pour le Développement, Aux Vents des îles.
  • Bambridge, Tamatoa, and Christian Ghasarian. 2002. “Juridictions françaises et droit coutumier à Rapa. Les enjeux d’une traduction.” Droit et Cultures 44: 153-182.
  • OnlineBarker, Joanne. 2011. Native Acts: Law, Recognition, and Cultural Authenticity. Durham: Duke University Press.
  • OnlineBayart, Jean-François, and Romain Bertrand. 2006. “De quels ‘legs colonial’ parle-t-on?” Esprit, December: 134-160.
  • Benoît, Catherine. 2015. Au cæur des ténèbres de la Friendly Island. Migration, culture et sida à Saint-Martin. Québec: Presses de l’Université Laval.
  • OnlineBensa, Alban, and Christine Salomon. 2007. “Instrumentalisation et malentendus. Les Kanak face à l’appareil judiciaire de Nouvelle-Calédonie.” Archives de politique criminelle 29: 171-182.
  • OnlineBesnier, Christiane. 2017. La vérité côté cour. Une ethnologue aux assises. Paris: La Découverte.
  • OnlineBlanchy, Sophie, and Yves Moatty. 2012. “Le droit local à Mayotte: une imposture?” Droit et Société 80: 117-139.
  • OnlineBlévis, Laure. 2003. “La citoyenneté française au miroir de la colonisation: étude des demandes de naturalisation des ‘sujets français’ en Algérie coloniale.” Genèses 53: 25-47.
  • OnlineBourdieu, Pierre. 1987. “The Force of Law: Toward a Sociology of the Juridical Field.” Hastings L. J. 38: 814-853.
  • Burbank, Jane, and Frederick Cooper. 2011. Empires in World History. Politics and the Power of Difference. Princeton, N.J./Woodstock: Princeton University Press.
  • OnlineCarde, Estelle. 2010. “Quand le dominant vient d’ailleurs et l’étranger d’ici: l’accès aux soins en Guyane au prisme de la double altérité.” Autrepart 3, no. 55: 89-105.
  • OnlineCornut, Étienne. 2010. “La juridicité de la coutume kanak.” Droit et cultures 60: 151-175.
  • Deckker, Paul de, and Jean-Yves Faberon (eds.). 2001. Custom and the Law. Canberra: Asia Pacific Press.
  • OnlineDemmer, Christine. 2007. “Autochtonie, nickel et environnement: une nouvelle stratégie kanake.” Vacarme 39: 43-48.
  • Demmer, Christine, and Benoît Trépied (eds.). 2017. La Coutume kanak dans l’État. Perspectives coloniales et postcoloniales sur la Nouvelle-Calédonie. Paris: L’Harmattan, Cahiers du Pacifique Sud Contemporain, Hors-série 3.
  • OnlineDimier, Véronique. 2004. “For a Republic ‘Diverse and Indivisible?’ Experience from the Colonial Past.” Journal of contemporary European History 13: 145-66.
  • OnlineDimier, Véronique. 2005. “De la France coloniale à l’Outre-mer.” Pouvoirs 2, no. 113: 37-57.
  • Droit et cultures. 1999. [Special report]. Les Autochtones de l’outre-mer français 37.
  • Eberhard, Christoph, and Geneviève Vernicos (eds.). 2006. La Quête anthropologique du droit. Autour de la démarche d’Étienne Le Roy. Paris: Karthala.
  • OnlineFiloche, Geoffroy. 2011. “Les Amérindiens de Guyane française, de reconnaissances disparates en bricolages juridiques. L’exemple des Kali’na d’Awala-Yalimapo.” Journal de la Société des Américanistes 2, no. 97: 343-367.
  • OnlineGagné, Natacha. 2015. “Brave New Words: The Complexities and Possibilities of an ‘Indigenous’ Identity in French Polynesia and New Caledonia.” The Contemporary Pacific 2, no. 27: 371-402.
  • OnlineGhasarian, Christian. 2016. “Protection of Natural Resources through a Sacred Prohibition: The rahui on Rapa Iti.” In The Rahui: Legal Pluralism in Polynesian Traditional Management of Resources and Territories, edited by Tamatoa Bambridge, 139-153. Canberra: ANU Press.
  • Goddard, Michael. 2009. Substantial Justice. An Anthropology of Village Courts in Papua New Guinea. New York/Oxford: Berghahn Books.
  • OnlineGrammond, Sébastien, Isabelle Lantagne, and Natacha Gagné. 2012. “Aux marges de la classification officielle: les groupes autochtones sans statut devant les tribunaux canadiens.” Droit et société 81: 321-342.
  • Guyon, Stéphanie, and Benoît Trépied. 2013. “Les autochtones de la République. Amérindiens, Tahitiens et Kanak face au legs colonial français.” In Peuples autochtones dans le monde. Les enjeux de la reconnaissance, edited by Irène Bellier, 93-112. Paris: L’Harmattan, SOGIP-Horizons autochtones.
  • Israël, Liora. 2009. L’Arme du droit. Paris: Presses de Sciences Po.
  • OnlineJolivet, Marie-José, and Diane Vernon. 2007. “Droits, polygamie et rapports de genre en Guyane.” Cahiers d’études africaines 47, no. 187-188: 733-752.
  • Le Collectif Onze. 2013. Au tribunal des couples. Enquête sur des affaires familiales Paris: Odile Jacob.
  • OnlineHajjat, Abdellali. 2012. Les Frontières de l’identité nationale. L’injonction à l’assimilation en France métropolitaine et colonial. Paris: La Découverte.
  • Lafargue, Régis. 2010. La Coutume face à son destin. Réflexions sur la coutume judiciaire en Nouvelle-Calédonie et la résilience des ordres juridiques infra-étatiques. Paris: LGDJ, Droit et Société, Recherches et Travaux, 22.
  • Leca, Antoine. 2016. Introduction au droit civil coutumier kanak. Aix-en-Provence: Presses universitaires d’Aix-Marseille, Second edition, revised and augmented.
  • Le Roy, Étienne. 2004. Les Africains et l’institution de la justice. Entre mimétismes et métissages. Paris: Dalloz.
  • Llewellyn, Karl N., and E. Adamson Hoebel. 1992 [1941]. The Cheyenne Way. Conflict and Case Law in Primitive Jurisprudence. New York: Legal Classics.
  • Mam-Lam-Fouck, Serge. 2006. Histoire de l’assimilation. Des vieilles colonies françaises aux départements d’Outre-mer: la culture politique de l’assimilation en Guyane et aux Antilles françaises (xix e et xx e siècle). Matoury (Guyana): Ibis rouge.
  • Martes, Jean-Pascal, and Jacques Larrieu. 1993. Coutumes et droit en Guyane, Paris: Economica.
  • OnlineMerle, Isabelle. 2004. “De la ‘légalisation’ de la violence en contexte colonial. Le régime de l’indigénat en question.” Politix 66: 137-162.
  • Merry, Sally E. 1990. Getting Justice and Getting Even: Legal Consciousness among Working-Class Americans. Chicago: University of Chicago Press.
  • OnlineMertz, Elizabeth. 1994. “Legal Language: Pragmatics, Poetics, and Social Power.” Annual Review of Anthropology 24: 435-455.
  • OnlineMulot, Stéphanie. 2014. “Relations de soin, cultures et inégalités de santé. Les soignants de Guadeloupe face aux migrants haïtiens séropositifs.” Terrains & travaux, 24: 39-61.
  • OnlineMusso, Sandrine, Juliette Sakoyan, and Stéphanie Mulot. 2012. “Migrations et circulations thérapeutiques: Odyssées et espaces.” Anthropologie & Santé [Online] 5. Published online on November 26, 2012.; DOI: 10.4000/anthropologiesante.1040. Accessed October 11, 2018.
  • Naepels, Michel. 1998. Histoires de terres kanakes. Conflits fonciers et rapports sociaux dans la région de Houaïlou (Nouvelle-Calédonie). Paris: Belin.
  • Orfila, Gérard. 1998. La Nouvelle-Calédonie et le droit. Paris: L’Harmattan.
  • OnlineRichland, Justin B. 2008. Arguing with Tradition: The Language of Law in Hopi Tribal Court. Chicago: University of Chicago Press.
  • Rouland, Norbert. 1994. Legal Anthropology. Translated by Philippe G. Planel. London: The Athlone Press.
  • Saada, Emmanuelle. 2005. “Une nationalité par degré. Civilité et citoyenneté en situation coloniale.” In L’Esclavage, la colonisation, et après… France, États-Unis, Grande-Bretagne, edited by Patrick Weil and Stéphane Dufoix, 193-228. Paris: Presses universitaires de France.
  • OnlineSalomon, Christine. 2000. “Les femmes face aux violences sexuelles et domestiques: le tournant judiciaire des années 1990.” Journal des anthropologues 82: 287-307.
  • OnlineSalomon, Christine. 2002. “‘Mettre au tribunal.’ ‘claquer un procès’: les nouvelles ripostes des femmes kanakes en Nouvelle-Calédonie.” Archives de politique criminelle 24: 161-176.
  • Saura, Bruno. 1996. “Les codes missionnaires et la juridiction coutumière des Toohitu aux îles de la Société et des Australes (Polynésie orientale). 1819-1945.” Revue de la recherche juridique 2: 599-634.
  • Saura, Bruno. 2010. “Le mouvement royaliste et coutumier contemporain en Polynésie française: de l’étranger-roi à l’autochtone souverain?” In Visages de la souveraineté dans le Pacifique, edited by Natacha Gagné and Marie Salaün, 159-183. Paris: L’Harmattan, “Cahiers du Pacifique Sud Contemporain” Collection 6.
  • OnlineTrémon, Anne-Christine. 2013. “Citoyens indigènes et sujets électeurs. Statut, race et politique dans les Établissements français de l’Océanie (1880-1945).” Genèses 91: 28-48.
  • Trépied, Benoît. 2012. “Une nouvelle question indigène outre-mer?” La Vie des idées [Online]. Published online on May 15, 2012. (accessed October 11, 2018).
  • OnlineTrépied, Benoît. 2016. “Urban Kanak Parents on Customary Trial: An Ethnography of the Customary Family Court of Nouméa, New Caledonia.” City and Society 28: 99-122.
  • Trépied, Benoît. 2017. “‘Vous avez oublié que vous êtes Kanak!” La justice coutumière face aux nouvelles formes des relations familiales kanak.” In La Coutume kanak dans l’État. Perspectives coloniales et postcoloniales sur la Nouvelle-Calédonie, edited by Christine Demmer and Benoît Trépied, 189-234. Paris: L’Harmattan, Cahiers du Pacifique Sud contemporain, hors-série 3.
  • Wagner, Anne, and Le Cheng (eds). 2011. Exploring Courtroom Discourse: The Language of Power and Control. Surrey: Ashgate.
  • OnlineWittersheim, Éric. 1999. “Les chemins de l’authenticité. Les anthropologues et la Renaissance mélanésienne.” L’Homme 39, no. 151: 181-205.
Natacha Gagné
Université Laval, Québec
Stéphanie Guyon
University of Picardie Jules Verne
Benoît Trépied
CNRS-IRIS (National Center for Scientific Research—Interdisciplinary Institute of Social Issues)
This is the latest publication of the author on cairn.
Latest publication on cairn or another partner portal
Uploaded on on 23/04/2019
Distribution électronique pour P.U.F. © P.U.F.. Tous droits réservés pour tous pays. Il est interdit, sauf accord préalable et écrit de l’éditeur, de reproduire (notamment par photocopie) partiellement ou totalement le présent article, de le stocker dans une banque de données ou de le communiquer au public sous quelque forme et de quelque manière que ce soit.
Loading... Please wait