1On February 21, 2011, the Court of First Instance of Nouméa (New Caledonia) ruled on a paternity action brought by a Kanak man over a 4-year-old boy, whom he had acknowledged at birth, but whose mother, who was also Kanak, had subsequently told him that he was not his biological son. [2] Since all parties involved were under customary civil status, the court sat as a “customary jurisdiction,” which meant that “customary associate judges” sat alongside the professional judge. [3] The unmarried couple was now separated, and the child was living with his mother, while regularly seeing the man whom the law named as his father. The latter made a request for genetic tests to be carried out, which was also approved by the mother, who, according to her lawyer, had “doubts” about the identity of the father. Despite this consensus, the court dismissed the request. Judge Pierre Frezet, who drafted the judgment, took care to explain on this occasion the main principles of Kanak kinship adopted by the customary court:
According to custom, two forms of kinship apply to every individual: kinship through the mother, which is a blood bond, recognized as such; and paternity, which is social in nature and derives from customary exchange. Therefore, the person legitimately considered to be the father is the one having performed the gesture to take the child before the mother, her brothers and her clan [4] […] As such, in Kanak society, the notion of paternity is in no way biological; it is socially constructed by means of exchanges and not determined by sexual intercourse, as evidenced by the fact that a maternal clan may always refuse to recognize a man’s paternity on account of his failure to meet customary requirements. [5]
3During the hearing, at the request of the court, the father had indicated that a few months prior to the birth, a solemn exchange of gifts had indeed taken place between the paternal and maternal clans, in order to include the child within the paternal lineage. The court therefore concluded that the claimant’s legal paternity could no longer be called into question, since it had thus been established according to custom:
The customary gesture exchanged between clans A and B determined the paternal filiation of the child, who now belongs to clan A. The court therefore wishes to recollect, in applying the principles set forth above, that the child’s biological identity has no place in the matter, and that the parentage established through customary gestures is all that counts […] For the court “the child is already in the hut,” meaning that the gestures exchanged between the clans have consecrated his parentage, and in the realm of custom, from that moment on, the child is considered to be the son of the person named as the father by the clans, as part of their agreement.
5This judgment marked a significant turning point in case law for New Caledonia. Per the two main proponents of customary justice—judges Pierre Frezet (at the Court of First Instance between 2009 and 2014) and Régis Lafargue (at the Court of Appeals between 2010 and 2015)—the argument it set forth was replicated, word for word, in several subsequent court decisions, dismissing paternity claims by former unmarried couples under customary status. These actions were at times brought by mothers who wanted to secure the legal recognition of their children’s biological fathers (in order to compel them to pay alimony), and at times by progenitors who had not been allowed to acknowledge their children at their time of birth (due to a customary marital status provision applicable to children born out of wedlock, which conditions paternal acknowledgement to securing the mother’s prior approval). [6] The customary courts have systematically dismissed these requests as inadmissible, while only validating a strictly customary form of Kanak paternity (in keeping with the above-mentioned judgment). Since the child had not been included in the lineage of the biological father through an exchange between the clans, to the satisfaction of both parties, the progenitor could not become the legal father. Whenever the issue of biological paternity tests has been explicitly raised by the parties in order to challenge customary legal paternity (Judgment No. 11/156 dated February 21, 2011) or to claim paternal acknowledgment not sanctioned by a customary exchange (Judgment No. 11/1452 dated 28 November 2011), customary judges and advisors have ruled that the argument for genetic tests was inadmissible.
6This judicial formalization of Kanak paternity has benefited from wide coverage, far beyond the legal sphere, through public lectures and publications (Lafargue 2012; Frezet 2012; Sana-Chaillé de Néré 2012). [7] In October 2014, a report by the Economic, Social and Environmental Council of New Caledonia stated that “the bond that unites a child to their paternal clan is ‘social in nature, and not a question of biological parentage.’” [8] For over five years, these case law developments and their popularization in the media have had the effect of tendentiously instituting the customary form of paternity promoted by customary justice as the only legitimate form of Kanak paternity within New Caledonia’s public debate.
7This article sets out to deconstruct what is now becoming increasingly obvious, by examining the tensions raised by the legal and social imposition of this singular definition of fatherhood. In order to do this, I will first review the culturalist assumptions that, in the view of the customary judges, justify the disqualification of any biological conception of paternity, often against Kanak litigants themselves. I will then show that legal proceedings relating to paternal acknowledgement among the Kanak have not ceased to crystallize multiple and varied power relations since the colonial era, whereby the customary courts at present simply serve to legitimize and naturalize the dominant viewpoint—by upholding it as a timeless customary norm. As a whole, this demonstration will contribute to a wider critique of the recent functioning of customary justice, which under the guise of a customary order, reveals itself to be largely blind to both social change and to power relations within the contemporary Kanak world.
The denial of biological paternity by customary justice
8“The father is the one who is named as such by the mother’s clan. OK? So as long as you are not named as the father by the mother’s clan, you do not exist.” [9]no8 The abruptness of these words, uttered by the judge in a customary hearing to a Kanak seeking to acknowledge his biological son, show an extremely unequivocal conception of Kanak paternity: it radically excludes any reference to biological bonds in order to solely take into account the question of customary exchanges and approval by the maternal clan. In light of current debates on the foundations of paternity in common civil law on the one hand, and the ordinary perceptions of Kanak litigants on the other, this singular representation of Kanak fatherhood appears particularly rigid.
A rigid definition of fatherhood
9By classifying Kanak paternity as “not biological” but “social,” Frezet and Lafargue take up and adapt the terms of a frequently discussed opposition in matters of family law in France, albeit one that is open to criticism. [10] In common law, “social paternity” refers to parental bonds established on an ongoing basis through the care of a child by a legal father who is not his or her progenitor. Apart from the case of adoption, the corresponding legal category is that of apparent status, which “is based on meeting a certain number of criteria to substantiate a bond of parentage and kinship” (Article 311-1 of the Civil Code), where these are not subject to biological testing, but to actual social relationships (Martial 2008). However, the “social paternity” promoted by customary courts does not pit the biological manifestation of fatherhood against that of everyday relations, but against that of custom. Here, “social” means fatherhood formally assigned by the maternal clan through a customary gesture, rather than being built over a period of time as a de facto condition.
10The debate in civil law around fatherhood appears overall to be more ambivalent and fluid than its customary counterpart in New Caledonia. In France, given the technical availability of paternity tests, the years 1990–2000 saw the rise of biological representations, up until the judgment of the Court of Cassation dated March 28, 2000, which ruled that “biological testing is legally enforceable with regard to parentage.” More recent legal developments nonetheless show a slight shift from the biological in favor of everyday life experience. As such, the law on Claims to Paternity dated January 16, 2009, considerably reduces the possible deadlines for action in relation to the former, in the case of apparent status (Weber 2013). Family civil law now alternates between these two main representations of paternity, in metropolitan France but also in New Caledonia, where it applies to the majority of the population, including all non-Kanak persons, couples and families of “mixed” civil status, and a minority of Kanaks under common status. [11] On the other hand, under customary law, courts allow only a single definition of paternity, that which is based on customary exchanges. The disparity between these different notions of fatherhood—exclusively and strictly “social-customary” on the one hand, and less clear and oscillating between biological and everyday life experience, on the other—is therefore manifest at the very heart of New Caledonian society.
11Among Kanaks subject to customary civil status, many now automatically view the progenitor as the “real” father, regardless of his relationship to the child from a customary or legal point of view. This is clear from the comments made by Kanak litigants, as transcribed from the above-mentioned cases, for example in the landmark judgment No. 11/156 dated February 21, 2011:
He adds that his action is based on the child’s interest, in that he might come to have doubts if someone were to tell him that he is not his son, which is why he wishes to know if this child is indeed his. He adds that he has informed his clan about the present action.
13We could also quote the ensuing dialogue from the film Une justice entre deux mondes (Beauducel 2013) (Justice between two worlds) between Frezet and a biological father involved in an action to claim paternity:
Judge: I am sorry to put this to you bluntly, Sir, but you have no legitimacy, as of now, as far as this child is concerned. You do not exist.
Claimant: If I take paternity tests, could I not pull through here?
Judge: Ah well, but no, we have already answered this question, Sir. What needs to be understood is that one can’t just keep on shopping around between jurisdictions. That is to say, you can’t embrace the stuff of common law, and hang on to it when it suits you, and then suddenly say “oh yes, I am…” when it suits you next. You see what I mean? You can’t be under two systems at once. I know that what I’m telling you is not pleasant, but I’d rather tell you the truth, because…
Claimant (interrupting him): Ah, but this is violent!
Judge: Ah well… Yes, but that’s the way it is.
Claimant: Sometimes, we try and figure out where violence comes from, but sometimes all of this is what brings it about.
15My own ethnographic observations follow a similar path. As such, in July 2012, I attended four days of customary hearings in Nouméa, where Kanak parents (in disagreement over residence and alimony) repeatedly presented themselves, having moreover legally acknowledged their (biological) children without any customary gesture between clans—an action that Pierre Frezet admonished them for, unable to punish it directly (Trépied 2017, 208–215). Beyond the legal sphere, in the course of the ordinary everyday life that have I shared with Kanak families who have been welcoming me for over fifteen years, I have never heard of the biological father of a child being referred to as anything other than his or her “father,” even if he had not legally acknowledged the child, or no customary exchange had been concluded with the mother’s clan (see below). Similarly, when the child is customarily adopted by another man, the biological father is commonly referred to in French as his “vrai papa” (“real dad”). This was also apparent from the discussions I had with two Kanak friends in April 2014, whom I met separately, on the excerpt from the above-mentioned film. Both in their forties, they had the same reaction: in their eyes, the claimant certainly could not “take the child” without the customary approval of the maternal clan. But at the same time, they each admitted, in most revealing terms, feeling “real pity for the father,” given the symbolic violence that he was suffering (and expressing).
The roots of the discourse on the erasure of the biological father
16Where does this denial by customary jurisdictions of the notion of fatherhood that so many Kanaks seem to nowadays take for granted come from? On what grounds do the drafters of the judgments—specifically judges Frezet and Lafargue—claim that the status of fatherhood arises solely from customary exchanges?
17Régis Lafargue’s book La Coutume face à son destin (Custom faced with its destiny), published in 2010, a few months before the legal turning point of February 21, 2011, offers some answers to the above questions. The book studies the main principles of customary law with regard to family matters, in light of “the abundant ethnological literature on the Kanak notion of personhood” (Lafargue 2010, 250). In this regard, he quotes a public lecture by Patrice Godin in 2008, a book by Michel Naepels published in 1998, Histoires de terres kanakes (Histories of Kanak Lands), and in particular two works by Maurice Leenhardt, Gens de la Grande Terre (People from Grande Terre) (published in 1937 and republished in 1953) and Do Kamo (published in 1947). These two books—the latest, best-known, and most theoretical works by the missionary-ethnologist—enable Lafargue to lay the ethnological foundations of a non-biological representation of fatherhood among the Kanak:
While the members of the “paternal” side give the child status, it is those on the “maternal” side that give life to him or her. They are the ones who (through their sister’s intervention) have given a child to the “paternal” side [a note specifies: Leenhardt 1953 [1937], 138–139; Naepels 1998, 112]: consequently, the maternal uncle who belongs to the same “life lineage” as that of the child, through his sister, has the status of father in relation to his nephew (who is related to him by blood and who, as such, is his son by way of classification) […] Maurice Leenhardt explains that the married man, in contrast to the woman, was not understood to be the progenitor of the unborn child: “The woman becomes pregnant when she crosses certain areas, forests or solitary expanses, known as ‘neo,’ where mythical genes are in abundance and penetrate her without her knowledge. The husband’s task is to place the woman in the right psychic or psychological state to receive the genes graciously sent by the ancestors or totems. The husband is responsible for the child’s good arrival” [a note states: Do Kamo, p. 167] […] The husband relates more to his nephew, his sister’s child, who is his own blood, than to his own children, which are certainly his wife’s blood, but not his own, since he is not deemed to be their real progenitor.
19I find this passage problematic in its description of the maternal uncle as “father”: I have neither seen nor heard anything of this kind while doing fieldwork. But it is above all the uncritical use of Leenhardt’s work that raises questions, since his primitivist ethnology has aroused many misgivings among anthropologists, especially those having worked, as he did, within the Ajië linguistic region (Naepels and Salomon 2007).
20In his book Histoire de terres kanakes, Michel Naepels states that he shares Christine Salomon’s view (published as a book in 2000), which “at odds with Leenhardt, states that there is perfect knowledge of the father’s role in human reproduction, and the shared contributions of the paternal and maternal clans in producing the child” (Naepels 1998, 111). Although he quotes pages 110 and 112 of Naepels’s book, nowhere does Lafargue (2010, 250, 252) mention this critique, which is nonetheless decisive. Indeed, based on an ethnographic immersion over several years in the border zone of the Ajië and Paicî languages, Salomon’s research on Kanak representations of health amply reveals how much Kanaks are aware of the role of the biological father in conceiving the child:
Kanaks acknowledge the different contributions of the agnatic and uterine lines according to a form of sharing that is both flexible and relatively balanced. The notion of blood, and that of procreation associated with it, expresses particularly well the way in which this distribution of paternal and maternal inheritance is accounted for […] Anyone who probes this point indeed realizes that blood and sperm—in both languages—are one and the same thing […] The child is brought into being, according to the general view, from blood, the blood of the mother, as well as the blood of the father.
22This study led Salomon to deconstruct precisely the infamous page 167 of Do Kamo quoted by Lafargue, where Leenhardt supports his thesis of Kanak ignorance in relation to biological paternity. She fails to find any mention of this idea either in nineteenth-century European writings or in current conversations with her Kanak respondents, who instead talk about procreation in clear and precise terms, and refer to representations of the person and of the illness that attest to the link between sex and pregnancy (ibid., 39–43). In support of her evidence, she also quotes a revealing Ajië expression: “‘a single sperm‘ (rha jârâ bu, which literally translates as ‘the same penis juice’). This is how the children of a polygamous man were once referred to, and the legitimate and illegitimate children of the same father are still referred to today” (ibid.). Patrice Godin—also quoted by Lafargue—refers to Kanak understandings that are very close to those described by Salomon, in the case of Hienghène (northeast): “The husband, […] through sexual intercourse during the first four months of the pregnancy, comes to set the ‘blood’ in the mother’s belly and produces the child’s skeleton (duun). For the Hyeehen, his sperm is also blood; a form of blood that does not give life, but roots it” (Godin 1999, 54). All in all, these ethnographic works largely call into question the theory of the erasure of the progenitor. Contrary to what Leenhardt and Lafargue claim, “uncles are not, strictly speaking, the givers of life, because it is the combination of both bloods, of both family groups, that enables it” (Salomon 2000, 45).
23Apart from the scholarly reference to Leenhardt, Lafargue and Frezet also give credence to the idea of a non-biological representation of Kanak paternity based on a common popularizing discourse in New Caledonia, which distinguishes between the maternal clan as “giver of blood and life,” and the paternal clan as “giver of name and rank.” To conclude from this that the Kanak consider paternity as lying outside any reference to biological bonds is a huge leap, which implies taking this overarching expression literally, as part of a radically culturalist perspective at the limits of overinterpretation.
24It appears more convincing to examine this classic rhetoric regarding the complementarity between the “maternal” and the “paternal” according to the contexts where it is uttered. On the one hand, this kind of discourse was heavily advertised to the outside world during the Kanak cultural and political revival of the 1970s and 1980s, when pro-independence leaders sought to legitimize their struggle in the name of a Kanak culture, whose profile therefore had to be raised, while putting it on show and making it easily understandable for non-Kanaks—even if this meant drawing from Leenhardt’s ethnology for strategic purposes (Mokaddem 2007). On the other hand, within the Kanak world, the rhetorical celebration of the maternal clan as the purveyor of blood and life must first and foremost be understood as part of the political framework of alliance strategies between clans: “In the Ajië and Paicî languages, in order to extol alliances concluded through marriage, it is said that maternal uncles and their nephews share the same blood, but this by no means prevents biological fathers and their children from sharing it too” (Salomon 2000, 36).
25Customary associate judges have probably told the metropolitan judges sitting in customary courts that the maternal clan is the giver of life according to Kanak custom, but that does not however mean that the “notion of paternity is in no way biological,” as Judge Frezet stated in his 2011 judgment. According to contemporary Kanak common sense, as well as statements made by Kanak elders collected by ethnologists, the figures of the mother and the maternal uncle do not in any way erase that of the biological father. It appears all the less likely that customary associate judges should support any other position, in that we even find the same emphasis on the progenitor in a draft “customary code” prepared in 2009–2010 by the customary authorities of the district of Lössi (Lifou Island). Article 5, which is devoted to “filles-mères” (“child-mothers” or “underage mothers”) provided that if a man married a woman after conceiving a child with another woman, this man—identified as “the father”—had to pay alimony until the child’s twentieth birthday. [12]
Issues surrounding legal paternity
26When Frezet and Lafargue claim that Kanak paternity is not biological but social, it is on account of its attribution by the maternal clan. This idea not only derives from a culturalist interpretation of Kanak understandings of personhood, boosted by Leenhardt’s theories, and by a “fundamentalist” assessment of rhetoric around the maternal clan as the purveyor of blood and life. It also follows from a tangible legal provision. Contrary to the Civil Code, Article 35 of Decision No. 424, dated April 3, 1967, of the New Caledonian Territorial Assembly, on the civil status of citizens with special status—which remains in force today—states that “the acknowledgement of the natural child (born out of wedlock) may only be carried out with the consent of his or her already known parents.” [13] In most cases, this already known parent is the mother, who can therefore prevent the biological father from acknowledging the child. Indeed, this situation occurs frequently at the present time.
27The judges mentioned have a peculiar interpretation of the text, which considers that the reference to an already known parent alludes to the maternal clan. From this point on, everything holds together, and the loop (of circular argument) is closed, i.e., the existence of this provision, and the way it is used by the maternal side, gives credence to the idea that the Kanak do not conceive of fatherhood in biological terms, but as a social title awarded by the maternal clan. Article 35 presumably amounts to the legal translation of a founding principle of Kanak custom:
In customary law, the dad, or at any rate the supposed father, may only acknowledge the child with the mother’s consent. This is in line with customary practice, since according to custom, paternity is not biological, and is instead awarded by the maternal clan, which will say: “So you want to be the father, that’s fine, we accept you as the father.” [14]
29This legal-culturalist reasoning does not however stand the test of empirical analysis. When one retraces the origins of Article 35 of the 1967 decision, on the one hand, and the process leading to the maternal strategies that we see at work today regarding the acknowledgement of children born out of wedlock on the other, the essentially historical and contingent nature of both of these factors becomes obvious. They are a reflection of the profound social transformations experienced by the Kanak world in the twentieth century, far more than the translation of a “customary law” with its origins in a timeless Kanak culture.
The origins of the 1967 decision
30There are several clues that demonstrate that the “customary” reading of Article 35 by Frezet and Lafargue is a case of over-interpretation. Firstly, there is no explicit reference to custom in the article, whereas custom is repeatedly mentioned elsewhere in the 1967 decision: adoption (article 37), marriage (section 40), and dissolution of marriage (article 44) are said to be “governed by custom.” If such were also the case for the acknowledgment of natural children, there is no reason why the text would not feature the same type of wording. Moreover, at the hearing of April 3, 1967, elected representatives (both Kanak and non-Kanak) of the Territorial Assembly voted unanimously, and without discussion, on Article 35, as drafted by the administration, while they debated other articles by referring to the specificities of Kanak family organization. [15] A 37-page administrative circular, dated August 25, 1967, and dealing with the April 3 decision, again mentions “customary rules” with reference to adoption, marriage, and dissolution of marriage, but not the acknowledgement of natural children. As regards Article 35, it states: “The consent of the mother who has already acknowledged her child is always required, as well as that of the mother’s family, if the mother is a minor.” [16] To my knowledge, this is the only explicit reference to the mother’s family in the context of this article—associated with the mother’s age, not as a maternal clan engaged in a customary practice.
31Article 35 in fact reproduces virtually word for word the beginning of Article 20 of Decree No. 631, dated June 21, 1934, which for the first time established a “native civil status” in New Caledonia:
The acknowledgement of a natural child under eighteen years of age may only take place with the consent of one of their two known parents, and if neither parent is known, then only with the consent of the person having raised the child. If the child is over eighteen years old, their consent will be required. The civil registry officer must refuse to record any acknowledgment that he considers to be fraudulent, and immediately report it to the Head of the Department of Native Affairs. [17]
33Following the extension of citizenship to Kanaks in 1946, Decree No. 1195, dated August 28, 1954, brought some changes to that of 1934, including the removal of “sentences 2 and 3 of Article 20.” [18] Overall, from 1934 to 1967, none of the administrative documents concerning civil status that I was able to consult made reference to any customary issue on which procedures for the acknowledgement of natural children should be based. [19] Although he devotes a chapter to the 1934 decree, judge Éric Rau says nothing about this in his book, Institutions et coutumes canaques (Kanak institutions and customs), written in 1936–1937, published in 1944 and republished in 2005, under the direction of Lafargue (Rau 2005 [1944], 161–162). Nevertheless, the decrees of 1934 and 1954 did not ignore custom, since they also specified that adoption, marriage, its dissolution, and its annulment were governed by custom (articles 22 and 24).
34All things considered, these clues lead us to the conclusion that the provision regarding the consent of the “already known parent” was neither created (in 1934) nor extended (in 1954 and 1967) as part of the customary perspective championed by Lafargue and Frezet. If anything, one could infer an “automatic” administrative replication of the 1934 wording in 1954, and again in 1967. The reasons that pushed the government to provide New Caledonia with a legal provision that existed neither in metropolitan France, nor in the empire’s other colonies, [20] are yet to be understood. In the endless debate between Paris and Nouméa on “native status” that ran from the 1910s to the 1930s, a procedure for acknowledging natural children was considered in 1913, then taken up identically in 1922: it did not include the notorious sentence on consent. [21] It was therefore written at some point between 1922 and 1934, during a period that is poorly covered by existing archives. [22]
35Historiography allows us to put forward some hypotheses to fill these gaps in the archive. [23] The reference to “fraudulent acknowledgements” in the last sentence of Article 20 speaks of the recurring concern of imperial authorities that French citizens would falsely claim to be the fathers of individuals born to native mothers, so that the children would be categorized as citizens, rather than as natives (Saada 2007, 137–163). In 1936–1937, Rau emphasized administrative scrutiny under Articles 20 and 22 (regarding adoption) by referring to the “consents that the State officer responsible must demand” (Rau 2005 [1944], 162). These elements perhaps speak of the fear of the administration in New Caledonia in relation to citizens who may have tried to circumvent the prohibition of fraudulent acknowledgements, by having them recorded under the native civil status, rather than the European civil status, hence the need for an additional precaution, namely that of the native mother’s approval. In more general terms, the State’s interest regarding the acknowledgement of natural births in the colonies primarily concerned the uncertain legal status of children born to parents belonging to different statuses, since this presented a head-on challenge to colonial categories, and hence to the legal foundations of imperial domination. In all likelihood, it was under these optics that Article 20 of the 1934 decree was drafted. It would then have called into question the legal provision of access to citizenship by descent for any child acknowledged by a citizen parent and a native parent (Urban 2010, 329). From then on, if the native parent was the first to acknowledge the child, he or she could oppose acknowledgement by the citizen parent and keep the child under native status. In colonial New Caledonia, this provision would in particular hinder acknowledgement by Japanese fathers of their children born to Kanak mothers, in a context of administrative suspicion towards the Japanese presence (Trépied 2010, 219–221). It may also have addressed another concern of the authorities, namely that of offering native “grand chiefs” who had fathered children with French citizen mothers the possibility of keeping them under native status, with a view to passing their chiefdom onto them (Muckle 2012, 325). These few hypotheses deserve further research, but one thing is certain at this point: the provision regarding the consent of the already known parent had nothing to do with Kanak representations of paternity.
Changes in paternal acknowledgement procedures
36Some nineteenth century travel accounts refer to Kanak forms of paternal acknowledgement without any mention of the maternal family. “When a man becomes a father, his son is brought to him, and taking him in his arms, he raises him up to his head to show that he acknowledges him, as did the ancient Romans,” wrote Victor de Rochas (1862, 264; author’s italics). Eugène Vieillard and Émile Deplanche (1863, 77), as well as Jules Garnier (1871, 183–184), described the same phenomenon, without specifying the child’s sex. These three references are quoted by Rau (2005 [1944], 150), but not by Lafargue in his writings on Kanak paternity (despite overseeing the new edition of Rau’s book). As for Leenhardt (1930, 79–80), he mentioned a special ceremony between the paternal and maternal clans at the time of birth, but always in a context prior to marriage: he took for granted the social identification of the father on account of the alliance concluded between the two spouses and their respective clans. [24] Far from concerning clan affiliation, this ceremony presenting the newborn amounted to the paternal clan’s request for the child’s protection, addressed to the maternal uncles (and to them alone) in the name of maternal blood, which flowed through his veins, along with paternal blood (Salomon 2000, 45). [25]
37At least until the 1940s, alliances were often concluded by clans well before the wedding, sometimes at the time of birth of the future spouses, through exchanges, which allowed them to, according to the local French idiom, “réserver la femme” (“reserve the woman”). Before evangelization, youth sexuality and births out of wedlock were admitted in this context: for true marriage exchanges to take place, the young woman that had been “reserved” needed to first prove her fertility by giving birth to a child (Salomon 2003, 4). Missionaries (including Leenhardt) have not ceased to fight against these “immoral” practices, by recommending the confinement of girls in boarding schools, premarital virginity, the early marriage of young Christians, and the prohibition of abortion practices (which regulated youth sexuality). They had little success until the late colonial period, when Kanak notables who had been trained in mission schools (pastors, deacons, catechists, seminarians) took over (ibid., 9–11).
38Overlapped by Leenhardt in 1930—at a time of intense missionary repression of youth sexuality—issues of marriage and kinship were treated separately after 1946. For Kanaks who became citizens, the end of the native regime, the restoration of freedom of movement, and the new job opportunities in Nouméa profoundly shook the social order that had been stabilized since the turn of the twentieth century within “native reservations.” [26] The administration, the Christian missions, and their native agents attempted to stop this movement in its tracks by drafting proposals for a reform of the “native status” (Trépied 2010, 56–63), many of which had to do with the family. As such, ahead of preparations for the “Assembly of Notables” held on May 15, 1950, the Department of Native Affairs asked constables (gendarmes) to collect the opinions of their Kanak counterparts on various topics, including “legal questions,” worded as follows: “Organization of a native civil justice. Repression of adultery and of abandonment of the family. Seeking paternity.” [27] Among the responses received, that of the constable at Gomen (northwest) listed the following in particular: “Prosecute the native who refuses to acknowledge their child. Prosecute those who cause the breakdown of households. Suppress vagrancy outside the district.” [28]
39These lists of questions and answers not only indicate that European officials and Kanak notables of the post-war period held an automatically biological representation of paternity. They also sketch the outlines of a phenomenon that was experiencing rapid growth at the time—births out of wedlock and “filles-mères” (underage mothers)—against which the missionary-inspired Kanak associations deployed a family-oriented line of defense in support of the institution of marriage (Salomon 2017, 78–89). During this period of unprecedented liberalization, when collective constraints within tribes and clans were called into question, many customary marriages disintegrated because of the migration of men—and women—to the city in search of paid jobs and new social horizons. For customary notables and their European supervisory authorities, “seeking paternity” then became the counterweight to “family abandonment”: the challenge was to compel husbands to return to their tribal homes, and to force biological fathers to acknowledge their children—which was only conceivable through their marriage to the mother. The “customary norm” that prevailed at the time was therefore to match biological paternity to official paternity through marriage. Otherwise, the child would bear the maternal surname by default and suffer the stigma of being labeled a bastard (as captured by the local pejorative expression “enfant de la route” [“child of the road”]).
40Beyond family and tribal pressures exerted on “deviant” individuals, the criticisms expressed by Kanak notables, who had been trained by missionaries in the new sexual and conjugal habits of the post-war period, were not reflected in binding institutional arrangements. On the contrary, Kanaks have distanced themselves ever further from these religious precepts over time, as a result of the social transformations associated with the “nickel boom” of the late 1960s, and subsequently the “rebalancing” policies promoted by the Matignon-Oudinot (1988) and Nouméa (1998) accords in favor of Kanaks (urbanization, salary benefits, schooling, etc.). Births out of wedlock have been steadily increasing since the 1950s, and common-law unions are now widespread: many Kanak couples have children but push the prospect of marriage back into the distant future (in a sense, echoing the old Kanak sexual and conjugal practices that the missionaries had fought), or do not even consider it at all.
41At present, therefore, several types of paternal acknowledgement coexist, which are discussed and explained especially during customary hearings (Trépied 2017, 198–209). For couples married according to custom, the husband automatically acquires paternity over the children through marriage and the alliance between clans. In the case of Kanak marriages not associated with clans (for instance, among Jehovah’s Witnesses), the husband is presumed to be the father merely on the basis of his marital status (as in common law). Some couples living together also choose not to engage in any customary activities involving the clans: at the time of birth, the father simply declares his child to hold customary civil status (theoretically, with the mother’s consent). Finally, in the case of unmarried parents who wish to associate their clan—which is the most common situation nowadays—there are two possible alternatives. If they plan to marry in due course (socially-speaking, the most favored arrangement), the father, along with his clan, presents three customary gestures to the maternal clan: the first is to “demander pardon” (“ask for forgiveness,” according to the local French idiom) for having had sexual relations outside of any alliance legitimized by the clans, the second is to ask to “prendre l’enfant” (“take the child”) and the third is to “réserver la femme” (“reserve the woman”). If the father does not intend to marry the mother, the paternal clan presents only the first two gestures (to “ask for forgiveness” and “take the child”) to the maternal clan.
42Nevertheless, in the third case, the maternal grandparents nowadays often refuse acknowledgement of the child by the biological father, precisely because he does not commit to “take” the woman at the same time as the child—even though this requires the paternal clan to make a much larger donation (Salomon and Hamelin 2008, 138). Reversals are not ruled out either: the mother’s parents may accept a gesture by the father to “reserve the child” prior to birth, and finally, following its birth, condition their approval to a promise of marriage. More broadly, mothers sometimes reject the father’s customary advances because he may be viewed in a bad light, or due to a desire to keep the child within the maternal clan—especially in the case of a boy, which may ultimately lead to formal adoption by the mother’s father or brother (ibid., 134–135). In other words, what was perceived after the war as a problem by missionary authorities and their privileged Kanak counterparts—i.e., the prevalence of children bearing the maternal name by default—has now become a strategic asset in the hands of the maternal side.
43In all of these situations involving disagreement, the maternal side has a clear advantage, since Article 35 of the 1967 decision enables them to urge the mother not to agree to the father’s legal acknowledgement. This amounts to a striking misappropriation of a legal provision, initially designed for other reasons, but now exploited in the context of power relations between the clans for which the child is at stake. In light of social change, clan positions have evolved: after being apparently unprepared for the phenomenon of “out-of-custom” births in the 1940s, the maternal side is nowadays in a position of strength in relation to the paternal side. They can now claim a monopoly over the definition of paternity, especially since this political strategy has now become naturalized by customary judges as a timeless legal-customary norm.
44The legitimacy of customary jurisdictions to impose their definition of paternity on Kanak litigants is the same as that of any court. It derives from the law, which everyone is expected to observe. In this case, a “customary law” would apply to all Kanaks of customary status, of which customary judges and advisors would have the task of reminding litigants who attempted to evade it. If lawyers and judges committed to the promotion of customary law are so insistent on the “legality of Kanak custom” (Cornut 2010), it is because therein lies the foundation of the power of customary courts. Yet this understanding of Kanak custom as the primary source of law gives rise to significant theoretical and methodological criticisms with regard to the history of law (Halpérin 2017, 135) and the social sciences, insofar as the historical genesis of the “customary rules” currently invoked is being called into question:
Are these quasi-laws, once known to all—an abstract law with explicit and undisputed principles? Or are these rules simply the conflation of what was once the most frequent behavior, typical of a statistical normality, of a dominant state of affairs in social relations, without there being any legal corpus to set a legal precedent? It would appear that there is no way of settling this question. What we are able to learn today about the past state of affairs is the product of the viewpoint of present-day interests and exposes us to the risk of a fictitious reconstruction.
46In my view, by failing to take into account these basic observations of methodological caution, customary judges find themselves in the very midst of a fictitious reconstruction of Kanak paternity. However, unlike other actors in the public debate, their culturalist assumptions have the power of law. When they state that “in Kanak society, paternity is in no way biological,” they are not just stating an opinion—whose mismatch with reality I have attempted to show here. They also settle the “nitty-gritty” of real conflicts that affect the intimate lives of litigants, in keeping with a rigid neo-customary ideology that radically excludes any other understanding of paternity that may emerge from everyday Kanak experience, within a contemporary New Caledonian society where change is also in full swing.
47Nonetheless, according to our evidence, even what Lafargue and Frezet see as “the” ultimate customary norm, namely that of maternal monopoly over paternal acknowledgement, appears to amount to a recent phenomenon associated with new Kanak marital and family practices in the second half of the twentieth century, in particular, common-law unions and births outside the scope of any customary negotiation. To claim that, according to custom, the attribution of paternity is by definition the exclusive prerogative of the maternal clan, amounts to legitimizing power relations between clans that are far from natural or obvious, and setting them in stone legally. Since these are fundamentally political, and the product of particular historical dynamics, they remain subject to change based on new Kanak representations of the couple, kinship, and the family—so long as the legal system does not set out to oppose social change as a matter of principle, under the guise of respecting customary order.
Notes
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[1]
Unless otherwise stated, all translations of cited foreign language material in this article are our own.
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[2]
The title of this article is a nod to the book by Florence Weber, Le sang, le nom, le quotidien. Une sociologie de la parenté pratique (Blood, a name, and daily life. A sociology of practical kinship), published in 2005, republished in Weber 2013. I wish to thank Jean-Louis Halpérin, Adrian Muckle, Emmanuelle Saada, Christine Salomon and Yerri Urban, as well as Christophe Dervieux and Ismet Kurtovitch from the Archives de la Nouvelle-Calédonie. This research was supported by the Agence nationale de la recherche (French National Research Agency), project No. ANR-13-JSH1-0003-01 “AUTOCHTOM: Legs colonial et outre-mer autochtones.”
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[3]
The civil status of natives in the colonial period, which was distinct from the Civil Code, was maintained as a “special civil status” following the extension of citizenship to Kanaks in 1946, and subsequently renamed “customary status” in 1998. Since the 1990s, civil disputes brought before the courts between Kanaks who hold customary status are settled by professional judges (almost all of whom are from metropolitan France), and Kanak “customary associate judges” (appointed by the Court of Appeals at the suggestion of “customary authorities” recognized by the State), whose task is to clarify what is established according to “custom,” and to rule accordingly. If the statuses of the parties differ, the Civil Code applies, without a customary associate judge. Regarding the social profiles of customary associate judges, please refer to Trépied 2017.
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[4]
Derived from local French language usage, public authorities currently understand the term “clan” to mean a lineage group that includes all individuals with the same surname within a “tribe” (a Kanak village). A “customary gesture” is a gift offered in order to make a request. “Taking the child” means registering him or her as part of one’s family group and to provide him or her with one’s surname.
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[5]
Judgment No. 11/156 dated February 21, 2011.
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[6]
In the case of actions brought by mothers, see Judgments No. 11/149 dated February 21, 2011, No. 11/1308 dated November 21, 2011 and No. 11/1452 dated November 28, 2011 (upheld on appeal by Judgment No. 12/59 dated September 9, 2013); and by biological fathers, see Judgments No. 13/9 dated December 12, 2013, and No. 12/519 dated March 20, 2014. I will return later to this specific provision of customary civil status on paternal acknowledgement.
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[7]
These last two publications are themselves quoted in the judgments of the customary chamber of the Nouméa Court of Appeals mentioned above, of which Lafargue was the rapporteur.
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[8]
CESE-NC, self-referral relative to the governance of New Caledonian women, 3rd progress report: L’exercice du pouvoir décisionnel des femmes du point de vue de la famille, October 2014, p. 22. The internal citation refers to the lecture by Lafargue (2012).
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[9]
Pierre Frezet, Nouméa Court of First Instance, September 20, 2012, transcript of filmed statements, in Beauducel 2013.
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[10]
This alternative tends to mask the fact that kinship is by definition a social system of representations, whether based on the idea of biological reproduction or otherwise (Weber 2013, 5).
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[11]
For a variety of reasons, a small minority among the Kanak (which is hard to quantify) has historically renounced special or customary status, to which the Constitution entitles them. In 2015, there were 134,022 persons registered under customary status (Halpérin 2017, 150). In 2014, the population census recorded 268,767 inhabitants in New Caledonia, of which 104,958 self-identified as Kanak, 21,926 as Wallisians and Futunians (themselves subject to a personal status), and 23,007 as belonging to various other communities. New Caledonia is the only French territory authorized to produce statistics on ethnic origin.
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[12]
Document in the possession of Christine Salomon. I thank her for having shared it with me.
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[13]
Journal Officiel de la Nouvelle-Calédonie (JONC) (Official Journal of New Caledonia), April 27, 1967, p. 363. The Civil Code never conditioned acknowledgement of a natural child to the prior approval of the known parent.
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[14]
Pierre Frezet, customary hearing of July 27, 2012, Court of Nouméa, verbatim transcript. See also Lafargue 2010, 253.
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[15]
About census records (Articles 3 and 6), family name (Articles 8 and 9), registration of a birth (Article 31), adoption (Article 37), and registration of a death (Article 50). Territorial Assembly, Minutes of Debates, Monday, April 3, 1967 (morning), Archives de la Nouvelle-Calédonie (ANC).
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[16]
Circular No. 2815 dated August 25, 1967, 30, https://drhfpnc.gouv.nc/sites/default/files/atoms/files/concours_dofficier_ public_coutumier.pdf (accessed on April 18, 2019).
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[17]
JONC, July 15, 1934, p. 300.
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[18]
JONC, September 13, 1954, p. 454.
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[19]
See, for example, the administrative correspondence dated September 7, 1960 (ANC 39W63), and November 4, 1963 (ANC 39W66), and a document entitled “Projet de nouvel arrêté relatif à l’état civil des citoyens de statut particulier” (Draft new decree on the civil status of citizens under special status)—undated with numerous handwritten corrections, ANC 39W63).
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[20]
Emmanuelle Saada and Yerri Urban, personal communications.
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[21]
Adrian Muckle, personal communication. The texts dealing with native status between 1913 and 1922 may be consulted at the Archives Nationales d’Outre-mer (ANOM), Aff. Pol. 741.
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[22]
We know that the Decree of 1934 was the result of a project sent in 1932 by the local administration to the Colonial Office, which subsequently amended it (Conseil privé, June 18, 1934, ANC 44W67), but I was unable to locate this correspondence.
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[23]
The following hypotheses were suggested to me by Yerri Urban, to whom I am grateful.
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[24]
This is not unlike the Civil Code, where the husband is presumed to be the father of children born in wedlock, without having to express his acknowledgement. According to a patrilineal norm that is still relevant today, during “customary marriages,” the wife leaves her clan to join her husband’s clan, to which their children also belong.
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[25]
This “customary gesture” is still widely practiced by Kanaks today, regardless of whether the child’s parents are married or not. Maternal uncles hardly ever refuse this request for a “blessing,” even if the mother’s clan—and in this case, the mother’s parents rather than her brothers—are simultaneously against the child’s biological father becoming his or her legal father. Therefore, when Frezet and Lafargue point out the importance of the customary gesture (without any further details) as part of the social attribution of paternity by the maternal clan, they cloak the different meanings of this term, at the risk of misinterpreting the customary gesture in question.
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[26]
Areas of confinement on the outskirts of colonial society, which the Kanak were not allowed to leave without administrative authorization until 1946.
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[27]
Quoted in Conseil général, Minutes of Debates, Friday May 19, 1950 (morning), p. 2, ANC 37W557.
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[28]
Gomen, January 16, 1950, ANC 37W557. I wish to thank Christine Salomon for pointing me in the direction of this archival material, and Christophe Dervieux for examining it and bringing this document to my attention.
