02 февраля 2016г.
Annotation
In the article the authors researched the peculiarities of marriage law regulation of matrimonial relations in the states of Oceania during the colonial and post-colonial periods. The authors drew a conclusion about the difficulties of coexistence of customary law and the introduced western legal systems in the modern states of Oceania.
Keywords: marriage law regulation, Oceania, legal pluralism, Maori.
Oceania is one of those unique regions of the world, where for a long time many local Micronesian, Melanesian and Polynesian peoples have existed not in contact with others anyhow. At a certain stage of development it allowed the peoples to establish their own separate, stable traditions, which are interesting to explore and significant to form a certain system of views and opinions of various aspects of the society life. This category also includes the aboriginal peoples of Australia, where for a long time there has been forming their own unique culture. Thus, for many centuries, in their everyday life all the representatives of these peoples have been enjoying the customs and traditions that were formed and passed from generation to generation. [5. P. 96]. But with the appearance in the 16th century of European colonizers the life of the above mentioned peoples began to change. The Europeans set to Christianization and eradication of the customs of the Pacific Islanders. The representatives of France, the British Empire, and later of the USA and Germany introduced their written law, but shortly before such attempts were undertaken by the Spaniards, the Dutch and the Portuguese. At the same time one cannot forget that the part of the peoples of Oceania came into open confrontation with the colonizers resisting their influence and trying to preserve its unique origins of law.
But the colonizers could not put up with many traditions of the natives, especially with those which regulated marital relations. At that, the special attention should be paid to the fact that families in Oceania cannot be considered separately, in isolation from the community, as like many other nations which were at that stage of development, they were dependent on their compatriots. They faced the problems which were unsolvable by the efforts of one family. And the very concept of the family for the peoples of Oceania differed from the Europeans’one who considered a family as a social group consisting of parents and children.
Conversely, the peoples of Oceania took a family basically wider, a family for them is a community, and it is not necessary for the members of one family to live under one roof, or even in the same settlement [6].
Like the other ancient peoples standing at the initial stage of their development, the aborigines of Oceania had rather brutal, bloody and savage customs which were not taken by the colonialists then, and are very weird and unaccepted nowadays. So many peoples of Oceania adhered to polygeny, others considered murder and cannibalism towards traitors to be normal. The marriages of many nations were of the pre arranged nature. Thus, one of the numerous examples of such marriages according to the customs of the Australian aborigines was a marriage of a young man whose future wife was chosen by his elder male relatives [1. P. 55- 56]. During the colonization some of those practices were abolished, but most of them still continued to be applied in the legal regulation. Some of them absorbed the Christian elements and Western traditions, changing and acquiring qualitatively new forms afterwards.
In the 60-ies of the twentieth century there began the decolonization in Oceania. Samoa became the first independent nation in Oceania then followed by the other areas. The rest of this process can be observed at present. But the decolonization brought some new challenges faced by the government of the young states. One of them was the striving to return the traditional way with getting and preserving independence, but there were also a large number of Western values, not to mention Christianity, which quickly took root in the region. A burning issue for the independent states was the question of the method of reforming the legal system of the state so that in it there worked perfectly both "native", anciently existing legal practices and "new" laws, which had been brought by the Western colonizers, many of which are in effect nowadays. A striking example of such countries is Fiji, Kiribati, Solomon Islands, which have the identical legislation worked out by the specialists of the UK. Controlled by the French and British before its independence the government of Vanuatu followed suit and hired lawyers of Britain and its former colonies as judges. [3. PP. 11,40].
Many researchers note that the family regulation in the laws of the nations of Oceania occupies its considerable part. Thus, according to P.I. Dzhalal, the states of Oceania immediately set the customary rules as an important part of their legal systems, only just gaining their independence. Many states made it having legally recognized customary law in their constitutions and statutes. However, what was meant by customary law, whether it was oral traditions inherent in the states at the time of their independence, or a complex combination of ancient customs and borrowed religious norms is unknown. [3.P. 46]. Thus, we can see a frequent in the history phenomenon of the transition to legal pluralism, which implies the interaction of several legal systems within a single one. This also made a direct impact on the regulation of marital relations, which helped to keep the originality of the peoples of Oceania. This idea was also fairly expressed by K. Brown, who noted that customary law had the most significant impact in particular on family law. [2.P.14].
But even after numerous attempts to eradicate the old customs, the general situation in the area of matrimonial relations is still a controversial subject. Thus, in most countries in Oceania men are more privileged than women. In the states of Tonga and Tuvalu women are restricted in their rights to adopt children. Yet the constitutions of the overwhelming number of countries in Oceania prohibit many socially negative customs that are the imprint of the order formed over the centuries in a traditional society. Even in a developed democratic country like New Zealand, there is still the problem of domestic violence. For example, according to statistics, among Maori about 43 percent of all women have been subjected to domestic violence at least once in their lives. [4] The above statistics shock because in New Zealand an overall level of crime is very low and Domestic Violence Act of 1995 and the Guardianship Act of 1968 are in force, which are aimed primarily at eliminating domestic violence. This once again shows how strong and deep are the traditions of the peoples of Oceania, which existed before the colonization.
All of the above proves how difficult customary law and the introduced western legal systems coexist. We often have the opportunity to observe their open confrontation, which again shows the power of tradition, passed from generation to generation. But it is worth noting that thanks to this co-existence and interaction we gradually manage to find a solution to many problems, particularly in the field of matrimonial relations. After all, the main purpose of this symbiosis is the preservation of the original traditions of the peoples of Oceania, their social and legal culture which are co-directional with a common vector of the modern world - respect for the rights and freedoms of man and citizen.
List of references
1. Artemova O. Yu. Personality and social norms in the early primitive community. - M .: Nauka, 1987.
2. Brown K. Reconciling Customary Law and Received Law in Melanesia: The Post-Independence Experience in Solomon Islands and Vanuatu. – Darwin NT: Charles Darwin University Press, 2005.
3. Jalal P.I. Law for Pacific Women: A legal rights handbook. – Suva, Fiji: Fiji Women's Rights Movement, 1998.
4. Recent Family Violence Statistics– [Электронный ресурс] – Режим доступа – http://www.areyouok.org.nz/files/statistics/ItsnotOK_recent_family_violence_stats.pdf, свободный
5. Zorn J.G. Custom the changing then and now: Melanesian family in A. Jowitt., Tess Newton Cain Passage of Change: Law, Society and Governance in the Pacific. – Canberra: ANU E Press, 2011.
6. Grattan F.J. H. An Introduction to Samoan Custom. – Papakura, New Zealand: R. McMillan – Publisher, 1948. [Электронный ресурс] – Режим доступа – http://nzetc.victoria.ac.nz/tm/scholarly/tei-GraIntr-c2.html, свободный
