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and Annotated Bibliography - Graeme Whimp (2016)
Anthropology of Law in the Pacific:
Literature Review & Annotated Bibliography
Graeme Whimp
January 2016
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This literature review and accompanying annotated bibliography
are contributions to a project on the anthropology of law in the
Pacific: ‘Pacific Rules: international law, custom, postcolonial
realities’; this stage of the project was funded by the University
Research Fund of Victoria University of Wellington. They were designed
to support articles to be written by the project investigators:
principal investigator Associate Professor Petra Butler of the School
of Law on dispute resolution; associate investigator Professor Richard
Boast of the School of Law on land tenure; and associate Investigator
Professor Brigitte Bönisch-Brednich of the Cultural Anthropology
Programme of the School of Social and Cultural Studies on custom, law,
and ritual.
The project was predicated on a perceived lacuna in
legal-anthropological research on the Pacific; while this study has
assembled a good deal of literature from across the Pacific, 197 items
in fact, it is certainly true that there is a comparative lack of
material on some topics and on the regions of Micronesia and Polynesia,
geographical categories which, along with Melanesia, are adopted from
common usage rather than any valid characterisation of the areas
concerned and their people. The subject of possible fields for future
research will reappear in the final section of this review. The entries
in the bibliography are of material published in English set out in
order of author and date of publication. References specific to this
review appear at its conclusion; other references appear in the
annotated bibliographies.
The material involves both law, in some form or other, and
anthropology or anthropological perspectives. The area of research,
anthropology of law or legal anthropology, is one frequently regarded,
in the modern sense of the latter term, as having its origin in the
Pacific with Malinowski’s 1926 Crime
and Custom in Savage Society.
While there is some earlier material included mainly for historical
reasons, the great bulk of the material is published after that date.
While the two component categories appear clearly defined at first
glance, examination of the material reveals a good deal of porosity of
borders and shape-shifting in both those categories and in legal
anthropology itself. The parameters of this sub-discipline or
interdisciplinary field are both customarily and disciplinarily
contestable and contested. In the end, some of the decisions about
inclusion in the bibliography have been subjective and sometimes even
spill over the limits initially adopted.
Law, for instance, seems at first to include, for this
purpose, the categories of law in its conventional sense, customary
law, custom, and kastom.
Because of its relationship here with anthropology, however, it is not
the entire discipline or field of law that is under review but a
particular aspect of it, as will become clear in considering the
anthropological element. Similarly, it is not the whole of custom or
even customary law that is under review; custom embraces a much broader
territory than that of law and generally does not distinguish the areas
involved in the usual concept of law from the custom of religion,
reciprocity, ritual, and social organisation in general. On the other
hand, while kastom
and
related concepts have validity in the Melanesian countries speaking Tok
Pisin, Pijin, and Bislama, elsewhere there are particular and much more
unitary concepts such as the fa’aSamoa,
Te Rii ni Banaba,
and the vakavanua
of Fiji. Customary law is itself a much-debated subject, as is clear
from a number of the annotations.
The anthropological element of this survey falls largely within
a space demarcated by ethnography, the ethnologically informed, and
what was once described as ethnohistory. It also includes, however,
some historical material that has become the subject of anthropological
interrogation and a certain amount of judicious, and judicial,
participant observation of an informal but perceptive nature. So the
emphasis is not on the content of the law but on the conduct of the
law, often as observed in fieldwork; in the final analysis, I have
fallen back on the rather questionable notion of the culture of the law
in making a final decision about inclusion.
Brief history of the anthropology of law
This very brief sketch of the history of the anthropology of
law is intended to outline very broadly some of the shifts in thinking
about the subject that will emerge in this review. The origins of the
subject as a sub-discipline or interdisciplinary field have been traced
back as far as the early-nineteenth-century writings of German
historical jurist Friedrich Carl von Savigny but are more usually found
among the great evolutionist and comparativist works of the second half
of that century. While Swiss jurist and ethnologist Johann Jakob
Bachofen is acknowledged for his 1861 Das Mutterrecht and
Scottish lawyer and ethnologist John Ferguson McLennan for his 1865 Primitive Marriage,
it is British jurist and historian Henry Maine’s 1861 Ancient Law and US
ethnologist and lawyer Lewis Henry Morgan’s 1877 Ancient Society
that are more generally recognised as precursors (Conley &
O’Barr
1993, 42-44; Goodale & Merz 2007, 68-69; Riles 1994, 599-601).
While based on unreliable data and a good deal of comparativist
conjecture, those works did locate the study of law within a broad
cultural framework and concepts such as Maine’s progression from social
status to contractual arrangements and Morgan’s through savagery,
barbarism, and civilisation remained influential into the twentieth
century.
Those influences and their evolutionist underpinnings became
increasingly threatened, however, by the emergence of ethnographic
methods and appearance of the results of such initiatives as the
Cambridge Torres Strait Expedition and the development of the Boasian
school of anthropology in the USA. One outcome of the ensuing shift of
particular relevance to the Pacific was the 1926 publication of
Bronislaw Malinowski’s Crime
and Custom in a Savage Society,
widely celebrated as the starting point of legal anthropology in the
modern sense of the latter term. With its foundations in sustained
ethnographic fieldwork and a functionalist approach to questions of
social control, it replaced the search for traces of western-style
institutions with the idea that legal processes, and complex ones at
that, are present in all cultures and do not depend upon the existence
of a state. Indeed, it has prompted the authors of one historical
survey to observe: ‘The breadth of the generalization may offend some,
but we believe that most legal anthropology through about 1980 can be
fairly characterized as the pursuit of Malinowski’s agenda’ (Conley
& O’Barr 1993, 46-47).
The publication in 1941 of anthropologist E Adamson Hoebel’s and lawyer
Karl Llewellyn’s The
Cheyenne Way,
described by Jean G Zorn as ‘the first serious study, since
Malinowski’s Trobriand ethnographies, of the legal processes of a
non-state people’ (1990b), introduced to functionalism the legal
realist method of examination of ‘trouble cases’ in the context of
cultures and societies as a whole. Beginning in the 1950s, contention
developed between anthropologists Max Gluckman and Paul Bohannan, and
among many other legal anthropologists, over the categories to be
employed in discussion of legal systems, Gluckman taking the etic view
that those from western jurisprudence are appropriate and Bohannan the
emic one that only Indigenous categories are valid. In the same period,
Leopold Pospisil (1958a), working in today’s Indonesian province of
Papua, was among those beginning to establish the notion of legal
pluralism, a product of the declining years of a colonialism with which
many legal anthropologists were linked, together with the concept of
customary law.
The 1960s and 1970s saw challenges to positivist approaches
and a shift of focus from the elaboration of rules and examination of
cases to the study of the processes by which disputes are resolved,
accompanied by an increasing concentration on legal pluralism and the
relationship between custom and the state. At the same time, interest
in individual agency emerged from previous assumptions of conformity
with social and cultural norms. Beginning in the 1980s, anthropology in
general underwent what has been called a crisis of representation and
ethnographic practices and their writing up were subjected to
comprehensive critique and review; this crisis of identity is not
particularly evident in the output of Pacific legal anthropology.
Against this background emerged an increasing interest in such issues
as international law, human rights, and, particularly, the rights of
women, and the protection of cultural heritage and traditional
knowledge.
Reviewing changes over the previous decades and into the
1990s, Sally Falk Moore describes legal anthropology as increasingly
‘saturated with political messages’ and sees as its ‘newest concern’ at
the beginning of the twenty-first century as ‘a very much wider vision
of the political milieu in which law is imbricated’ (2001, 109-110). In
the same article, she identifies ‘three scholarly explanations of law’
over the previous 50 years: ‘as culture, as domination, as
problem-solving … frequently mixed together’ (2001, 97). Zorn has taken
a different approach to the development of legal anthropology since the
1920s, setting out four distinct shifts: from the 1920s to the 1940s,
anthropologists adopted and lawyers rejected customary law; from the
1940s to the 1970s, anthropologists and lawyers combined to create
customary law, while from 1960 to 1975 lawyers pursued competing
responses to the concept; and from 1975 onwards, both anthropologists
and lawyers espoused legal pluralism with the former focusing on
‘nonstate sources of law’ and lawyers on ‘the attempts of state law to
maintain hegemony’ (1990b, 275-294, 292).
Literature
This literature review is arranged under geographical headings
and within them in order of date of publication and author. The order
is Pacific; Melanesia; Papua New Guinea in general and under headings
of Port Moresby, Highlands, Sepik, Islands, and Madang; Papua; Timor
Leste; Solomon Islands; Vanuatu; Fiji; Kiribati and Banaba; Polynesia;
Tonga; Samoa; Tokelau; Rotuma; Rarotonga in the Cook Islands; Hawai’i;
and the French Collectivities.
Pacific
While often referring to the Pacific in general, these writings
from the late 1980s almost to the present are almost entirely confined
to the consideration of the countries of the South Pacific. Almost all
are concerned with broad questions of the relationships among,
variously, custom and kastom,
customary law, introduced and colonial law, common law, statutory law,
constitutional law, and, to a lesser degree, international and human
rights law and, hence, with the nature of legal pluralism. Major themes
are lack of progress in developing underlying law, the nature and
formation of the common law, resistance of courts and educational
systems to the recognition of custom and customary law, customary law
as a product of colonisation, the influence of repugnancy, the
persistence of legal formalism, and the pleading and proving of custom
and customary law as law or fact. Of particular interest are Aleck
1991’s argument that custom should be recognised as the legitimate
basis of common law; Findlay 1997 on the modification of legal
formalism by custom; Zorn & Corrin Care 2002a and Corrin 2011
on
legal pluralism and customary law as law or fact; Corrin Care 2002b on
constitutional weaknesses in promoting customary law and the
distinction between custom and customary law; Corrin Care 2006 on the
resilience of customary law and the argument that it is more than just
a colonial creation; and Forsyth 2013 on the need for a pluralistic
approach to protecting traditional knowledge.
Melanesia
While much of this material features comparative studies across
Papua New Guinea, Solomon Islands, and Vanuatu, there is also a concern
with the possibility of development of a Melanesian jurisprudence,
particularly in Narokobi 1989a and 1989b and Forsyth 2015. There is
much discussion of the nature and components of customary law and, in
Zorn & Corrin Care 2002b, a return in a specifically Melanesian
context to their 2002a consideration of the pleading and proving of
custom with their advocacy of the treatment of custom as both fact and
law. Later material moves on to issues of state and customary law in
relation to human, and particularly women’s, rights, conflict across
the region, implications of the changing nature of custom, and new
practices emerging in lower-level courts.
Papua New Guinea
The preponderance of material on Papua New Guinea reflects the
preoccupations of anthropology in general while following those of
legal anthropology in particular. Throughout there is a concentration
on legal pluralism, the nature of customary law, problems in the
development of underlying law, and the practices of courts,
particularly those at the local level, and resistance by a positivist
judiciary to the acceptance of customary law. Across much of the
material there is continuing discussion of the relationship between law
and anthropology. The contexts of colonialism and decolonisation
underlie much of the earliest material, here and in the studies of
particular regions of the country, and a case orientation on disputes,
disputation, and the resolution of disputes remain the principal focus
of analysis through into the 1990s. Scaglion 1983 provides a
particularly useful survey of the nature and status of customary law in
districts across the whole country at the time of writing and Aleck
1992 a literature review of all material on the village-court system.
Goddard 1992 is a short country-wide survey of village courts that is
followed up in a more sustained and detailed way in items in the
section on Port Moresby.
The later period sees much more
intensive and sustained examination of the practices of the courts and
the inter-relationships and interactions of culture, custom, customary
law, and state law, particularly in the substantial bodies of work by
Jean G Zorn and Melissa Demian, and an increasing consideration of the
effects of globalisation, particularly on land issues. Filer 2006 is a
reconceptualisation, somewhat in the spirit of Paul Bohannan’s emic
approach and drawing on Tok Pisin terms, of the ideologies of both law
and custom and particularly of the ideology of land ownership in Papua
New Guinea. Wesch 2007 provides a rare example of self-reflexivity in
this field with its multi-layered account of the author’s experience of
a witch hunt. Legal perspectives on witchcraft and sorcery and
customary defences appear in Forsyth 2015 and Stewart 2015. Demian
2015b distinguishes between kastom
as placed and custom as placeless, and employs a cartographic metaphor
and a mix of kastom,
custom, and law to explore the concept of legal pluralism.
Papua New Guinea: Port Moresby
This is principally the
record of Michael Goddard’s sustained and intensive fieldwork studies
of three village courts in the suburbs and on the outskirts of Port
Moresby preceded by Zorn 1990a which draws on the procedures of similar
courts to support a general argument and supplemented by personal
experience of a mediator in a similar community in Ivoro 2010.
Challenging the binarism of legal pluralism and even the concept of
custom in Goddard 1996, the author goes on to explore the fluidity and
dynamism of the courts in Goddard 1998, their location between
Indigenous procedures and district courts in Goddard 2000, and the
access to justice they offer to women in Goddard 2005, and he draws
together and supplements that material in Goddard 2009. He goes on to
examine the role of such a court in restorative justice in Goddard
2010b and in land tenure and disputes in Goddard 2011.
Papua New Guinea: Highlands
Passing from a concern with
stateless social order and control in Glasse 1959 to a concentration on
disputes and cases in Mount Hagen and their settlement in the context
of Australian colonisation in the 1970s works of the Stratherns and
others, the focus of anthropological attention in the Highlands turns
to processes in both customary forum and court and the role of the
legal system in the ‘breakdown in law and order’ in the 1980s and
1990s. Gordon & Meggitt 1985 and the critique of it in Zorn
1990b
provide a stimulating picture of the respective roles of lawyers and
anthropologists within legal anthropology and the history of their
relationships, drawing on Pacific-related examples to make the
respective cases. Marilyn Strathern 1985 challenges then-accepted
concepts of dispute settlement, emphasising the political nature of
consequent wealth exchanges. Later, in Marilyn Strathern 2004, the
author proposes alternatives to universalism and relativism in
addressing questions of human rights.
Papua New Guinea: Sepik
Social control and disputes are successive concerns of the two
1970s pieces. Luluaki 1990 is particularly interesting for going beyond
the usual discussions of conflicts between customary and introduced law
to consider conflicts between and among different systems of customary
law. Scaglion 1990 is the product of a 10-year study of legal pluralism
in a village court and emphasises the importance of long-term studies
to detect incremental change and local agency. Lipset 2004 investigates
the playful and rhetorical use of a mock-legal framework to suggest
outcomes of legal pluralism beyond that of simple conflict resolution.
Papua New Guinea: Islands
Beyond the Malinowski classic
and the characteristic themes and concentration on cases of disputes of
the 1970s, Counts & Counts 1994 applies that focus to cases
taken
and won by women. Deklin 1995 draws attention to the role of the
failure fully to develop a customary law system and its confinement to
situations of open conflict in the Bougainville crisis; Saovana-Spriggs
2010 brings a personal perspective to successful restorative-justice
processes in that crisis; and Larcom 2015 points to the revival of
customary law and chiefly authority in the absence of state
institutions during that crisis as an indicator of continuing,
underlying primacy of customary law.
Papua New Guinea: Madang
Leach 2011 is a trenchant
critique of the impact of the introduction of extractive industry on
the customary land-tenure system, exposing its foundation in western
property law as a weakness allowing the replacement of customary values
by those of individualistic property ownership.
Papua
Beyond their historical importance and place in
the development of legal anthropology, Pospisil’s pioneering pluralism
and Koch’s studies of conflict and reconciliation remain somewhat
stranded in their time in the absence of continuing work in what is now
a province of Indonesia.
Timor Leste
Fitzpatrick 2008 is an assessment of the
successes and limitations of the mediation model introduced by the UN
in 2000 to deal with conflicts over customary land.
Solomon Islands
Hogbin 1944 and Keesing & Corris
1980 together present a vivid picture of colonial law in action, if
from somewhat different points of view. Issues of legal pluralism and
its implementation underlie all the more recent pieces. Brown 1986 and
1997 examine case-based clashes between customary and outside law in
relation to killing and the welfare principle; Brown 2005 suggests that
success in creating a local jurisprudence will depend on the advocacy
of customary law as a primary source by judges and lawyers and their
balancing of its application with that of imported law where
appropriate. Sharon Tiffany 1983, Goddard 2010a, Evans et al 2011, and
Allen et al 2013 all deal, in a variety of ways, with courts and their
handling of custom and customary law: Tiffany 1983 emphasises their
difficulties in dealing with land disputes; Goddard 2010a (a valuable
literature review) and Evans et al 2010 examine their hybridity at the
lower level; and Allen et al 2013 locates them within the wider
framework of community and kastom
and offers a critique of their effectiveness in relation to customary
systems. Akin 1999 and Arkwright 2010 address the changing nature of
compensation claims in the face of a globalised economy,
monetarisation, governmental insecurity, and questioning of the role of
the state.
Jennifer Corrin’s substantial body of work takes a more
theoretical approach to conflicts within legal pluralism: Corrin Care
2001 locates customary law as subordinate to Solomons constitutional
and legislative provisions but superior to UK-derived common law,
requiring a balancing act on the part of the courts; Corrin Care
&
Zorn 2001 examines the difficulties of legislative provision for the
incorporation of customary law when custom itself is so variable,
contrasts Papua New Guinea and Solomons approaches to the question and,
incidentally, discusses the distinction between custom and customary
law; Corrin 2008b deals with common-law influences on customary
concepts of land tenure in a comparative study of Samoan and Solomon
Islands provisions; and Corrin 2009 delivers a persuasive argument for
a less binary approach to legal pluralism and a more complex and
blended one to the relationship between customary and state law.
Monson 2010 studies the changes to land tenure resulting from
urbanisation and economic changes, and their negative effects on women
landowners, and advocates a strengthening of state legal frameworks to
counter the ways in which the intersection of customary and legislative
systems has enabled domination by a largely male minority. Guo 2011
investigates the ways in which the legal apparatus is incorporated in
people’s lives and, particularly, in land disputes; tracing the
transformation of law from rules to discourse, the author proposes the
term ‘legalscape’ to capture the entanglement of law and culture.
Forrest and Corrin 2013 is a rare example of commercial interests in
conflict with cultural claims and discusses the problematic nature of
legal pluralism in the protection of cultural heritage.
Vanuatu
Again the operation of legal pluralism and the role of courts,
especially local ones, in adopting and adapting it are central concerns
and considerably intertwined. William Rodman’s work, pre-Independence
and across the period of its achievement, looks at the introduction of
local legal figures called assessors and the associated reassignment
and renegotiation of a variety of roles: Rodman 1977 and 1982 outline
the processes involved in securing status for such middlemen in systems
other than the legal one; Rodman 1985 examines the wholesale legal
changes consequent upon Independence, including a complex legal system
developed entirely on local initiative, leading the author to question
why so little work has been done on such innovations in innovative
Melanesian societies and suggesting the cause may be the lack of
long-term fieldwork, particularly on the part of centralist scholars;
Rodman & Rodman 1978 investigates the reasons for resort to
courts
rather than family discussion in domestic disputes and concludes that
the court, in a time of changing social norms, provides a public forum
for the refinement of relationships and the reconciliation of disputes
Weisbrot 1989 surveys the complex legal pluralism resulting
from dual colonisation; assesses the results of reversion to customary
law in land tenure, and concludes that custom and land have become
synonymous and that the internal tensions of the newly independent
country will eventually result in a progressive western legalism
invoking culture as a symbol of national unity and legitimacy. Larcom
1990 explores the production of cultural identity in local courts in
which ‘kastom’
is being
transformed into anthropological ‘culture’. Jolly 1992 is a comparative
study of superficially similar concepts of custom in Vanuatu and Fiji,
the actual differences between the two resulting in differences in the
codification of land tenure in the two countries. Brown 1997 examines
case-based clashes between customary and outside law in relation to the
application of the welfare principle; Brown 2005 suggests that success
in creating a local jurisprudence will depend on the advocacy of
customary law as a primary source by judges and lawyers and their
balancing of its application with that of imported law where
appropriate.
Miranda Forsyth’s three studies address reasons for the lack
of progress in the two-way process of integration of customary and
official law. Forsyth 2004 critiques existing explanations for the lack
of progress, identifies the absence of empirical research as a root
cause, and sets out a proposal for on-the-ground research. Forsyth 2006
focuses on sorcery to examine such issues and concludes that the
solution, rather than a simple two-way transfer of norms, is the
introduction of minor legislative but major mind-set changes in the
state system. Forsyth 2009 is based on the fieldwork project proposed
in Forsyth 2004 and argues that reform depends on taking into account
all legal orders that deal with conflict and recognition, not least in
the interests of the strength of the state system, and that recognition
of the fundamental importance of kastom
to the process, and proposes a new approach to legal pluralism based
thereon.
Benedicta 2008 seeks to destabilise and expand previous
discussions of the relationship between customary and state law and to
propose an alternative to both positivism and legal pluralism; noting
an elision of ‘custom’ and ‘kastom’,
the differences between which are outlined, the author argues that
custom creates frustrations in island courts because of the difficulty
of applying kastom.
Sheehy
& Maogoto 2008 reviews the law in action during the 2001
constitutional crisis, the debate over legal pluralism, and continuing
social changes and tensions to conclude that the dominance of state law
over customary holds ‘certain attractions’. In response to the question
whether a return to customary law would promote the interests of women
or disempower them, Bothmann 2010, while accepting the possibility of
deconstructing custom without undermining it, identifies five levels of
the ‘masculinist rhetoric of nostalgia’ that threaten the autonomy of
women.
On the question of land tenure, Regenvanu 2008 identifies
recognition of customary rights as fundamental to much-needed land
reform, while Farran 2010 surveys changes in the narrativisation
employed in recorded cases of land disputes in local-level courts to
ask whether such changes signal survival or demise for customary land
rights. Rio 2010, exploring the development of sorcery law, identifies
problems involved in the encompassment of customary law by state law
and suggests that both custom and sorcery are transformed thereby so
that policing and sorcery become alternative vehicles for discipline
and violence. Serrano & Stefanova 2011 considers the
possibilities
for international or regional law offering support for both
cultural-heritage preservation and sustainable economic development in
such a country as Vanuatu; the authors express optimism that it can be
achieved in the face of land problems, lack of transparency,
misinformation, and legal pluralism.
In the most recent studies of the operations of village and
island courts, Evans et al 2010 examines the nature of the hybridity of
village courts and its strengths and limitations; and Goddard &
Otto 2013 concludes from a survey of island courts in five areas that
their success will depend on better resourcing and support, more
sensitivity to kastom, and overcoming the dichotomy between the
win-lose nature of court outcomes and the flexibility of customary
approaches.
Fiji
After a comparative flurry of legal-anthropological work in
Fiji in the 1970s it only resumed in the early twenty-first century. In
the 1970s, major interests were dispute resolution and forms of ritual
apology, acceptance, and reconciliation. In the case of the former,
Arno 1974 is interesting for the author’s rejection of a focus on
‘trouble cases’ and a turn to ‘instances of conflict’. Rituals of
apology in the forms of bulubulu, i soro, and matanigasau,
their performance, and their role in conflict management appear in Toro
1973, Arno 1974, Hickson 1975, Arno 1976, and Hickson’s contribution to
Koch et al 1977, and reappear in Cretton 2005 and a section of Merry
2006. The last presents a variety of attitudes to and perspectives on bulubulu
in the context of rape and sensitively conveys the position of women
activists as accepting the tradition but rejecting its replacement of
legal processes and suggests that local communities may have visions of
social justice founded not in rights but in sharing, reconciliation,
and responsibility.
Merry & Brenneis 2003 presents a wide variety of
disciplines and a variety of approaches to the history and anthropology
of Fiji and Hawai’i; of interest here are the chapters by Collier on
transformations in chiefly rule and Kaplan on the influence of colonial
legal entities. Crosetto 2005 distinguishes between colonial tradition
and Indigenous custom to address the entanglement of law and custom in
land-law reform. Similarly, Abramson 2009 addresses the
interconnections of jural and ritual spheres in the codification of
land tenure. Howard 2011 appears here only because of Rotuma’s colonial
relationship with Fiji and is covered in the relevant section.
Kiribati & Banaba
Lundgaarde 1968a and 1974 trace transformations in traditional
law under the influence of British colonisation some time before and on
the eve of Independence, concluding in the former that land disputation
is the result of such transformations and, in the latter curiously
identifying a Gilbertese inability to distinguish between law,
morality, custom, and ideology. Lundsgaarde 1968b advances four
hypotheses as to the sources of personal and property disputes and
litigation. Thomas 2001 investigates traditional, colonial, and
post-Independence systems of marine tenure and suggests a process of
reform. Against the background of Banaban exile to Rabi Island in Fiji,
Sigrah & King 2004 outlines the traditional system of law
governing
land ownership, genealogy, and social roles and argues for its
preservation and implementation within the system of introduced law.
Polynesia
Hogbin 1934 takes a Malinowskian approach to
questions of the foundations of social order in Polynesia, locating the
legal system within a complex of social organisation, belief, and
ceremony and the foundation of social order not in prohibitions but in
cultural forms.
Tonga
Marcus 1977a and 1977b examine the litigation of succession
disputes by members of the Tongan nobility, the effects of three levels
of kin relationship on the conduct of such litigation, and the
consequences for the organisation of chiefly groups. Powles 1979
considers the relationships between the operations of introduced
institutions governing the maintenance of order, dispute settlement,
and land-holding and the traditional authority of the nobility and the
ways in which the institutions have adapted to that authority. Van der
Grijp 1993 investigates a land-inheritance case on the island of Vava’u
to illuminate the socio-economic consequences of the manner in which
modes of production and modes of thinking are combined.
Samoa
Krämer 1995 gives a late-nineteenth-century
account of the role of the family council and fono, the village council
of chiefs, in the maintenance of order and initiates a long line of
accounts and analyses of the ifoga
or ceremony of apology, acceptance, and reconciliation that resumes in
Mead 1969, Shore 1982, Filoiali’i & Knowles 1983, and
MacPherson
& MacPherson 2005. Mead 1969 also refers to the judicial place
of
the fono,
as do Powles 1973
and Tiffany 1980, which locates it between the family and the court;
Corrin 2008a considers its role in relation to that of the court in
conflicts between customary law and human rights. The processes and
procedure of the Land and Titles Court in succession and land issues
are examined in Marsack 1961, Powles 1973, Sharon Tiffany 1974, Corrin
2008a and 2008c, and Sapolu et al 2012, and Walter Tiffany 1975
discusses succession issues in the American Samoa High Court. Corrin
2008b deals with common-law influences on customary concepts of land
tenure in a comparative study of Samoan and Solomon Islands provisions.
Shore 1976 relates incest prohibition and punishment in the context of
Samoan ideology and social organisation and Shankman 2001 traces the
colonial history of attitudes to interethnic unions and their
regulation.
Powles 1979 analyses the relationships between the operations of
introduced institutions governing the maintenance of order, dispute
settlement, and land-holding and traditional chiefly authority and the
ways in which the institutions have adapted to that authority. More
philosophical approaches to Samoan law are presented in Mead 1961,
which considers the possible contribution of anthropology to the study
of natural law, Efi 2009 and the response in Lealofi 2009, and Va’a
2009.
Tokelau
Angelo 1987 contains some discussion of the relationship
between customary and official criminal law, finding then in parallel
rather than in conflict in so far as each recognises a crime but
defines it differently. Angelo, Kirifi, & Toy 1989 records
elders’
perceptions of earlier law-like rules and institutions and the
interface between custom and law.
Rotuma
Howard 2011 reviews historical land-tenure systems in the
context of a rebellion against colonially imposed law, finding that
most land disputes had been resolved satisfactorily by customary
methods.
Rarotonga, Cook Islands
All of this material relates to pre-colonial and colonial land
tenure and the basis and operations of the Land Court. Gilson 1955
critiques the ethnological understanding of pre-European land tenure
upon which New Zealand colonial administrator based his land laws.
Crocombe 1964 attempts a comprehensive reconstruction of the
pre-European land system based on a number of sources, including the
records of the New Zealand-derived Native Land and Titles Court.
Baltaxe 1975 and Campbell 2002, both critical of the rigidity of
Crocombe’s account and findings, retrace the same ground, as does
Pascht 2011 which is more accepting of Crocombe but, contrary to
Crocombe, finds customary land rights continue to play an important
role alongside the provisions introduced from the New Zealand system in
an interplay of flexibility and restriction.
Hawai’i
Both Matsuda 1989 and Merry 2000 trace the
process by which introduced US law supplanted customary law and address
the consequent negative effects on Hawaiian culture, Merry drawing on
district-court records in Hilo on the island of Hawai’i. Merry
&
Brenneis 2003 presents a wide variety of disciplines and a variety of
approaches to the history and anthropology of Fiji and Hawai’i; of
interest here are the chapters by Silva on the effects of the
prohibition of hula performance, Merry on law and identity in colonial
Hawai’i, and Osorio on the deployment of two distinct legal strategies
in the quest for Hawaiian self-government. Weiner 2006 concludes that
customary law is an artefact of colonial and state administration and
adds some observations on the relationship between anthropological and
legal perspectives on culture.
French Collectivities
Deckker & Faberon 2001 is a multi-authored,
multi-disciplinary investigation of the place of Indigenous custom in
the development of law in the now-renamed French Overseas Territories
of New Caledonia, French Polynesia, and Wallis and Futuna.
Prospects for future investigations
In considering the prospects for future investigations in the
anthropology of law in the Pacific it is worth considering the
environment in which it will take place before focusing more closely on
particular areas. While there is now a reasonable picture of what has
already been published, it is possible that there are other projects
being carried out in the countries of the region as well as other
centres. Indeed, a survey of exactly that may be a valuable
contribution to the development of the field. Certainly, in preparing
for future phases of this project, it would be highly desirable at the
earliest possible stages of their formulation to engage with any people
who may be considering similar work in the countries of the Pacific
rather than adding on a component of consultation at a later stage.
Similarly, it could be beneficial for the project to consider the place
of and possibilities for the anthropology of law in the complex of
disciplines and fields that may be investigating law in the region:
other legal studies, history, sociology, Pacific studies, human
geography, and others.
Looking over the material covered in this review, the overall
pattern is quite clear: Melanesia is, for the most part,
well-researched; Micronesia appears to be virtually untouched for
reasons that would require further research to determine; and, while
there is some material from liminal Fiji and Samoa, it is far from
comprehensive and much of Polynesia is yet to be studied. So Melanesia
is currently well-placed, with very substantial bodies of work in a
variety of topics by Jennifer Corrin at the University of Queensland,
Melissa Demian and Miranda Forsyth at State, Society and Governance in
Melanesia at the Australian National University, Michael Goddard as an
associate at Macquarie University, and Jean Zorn continuing work as
professor emerita at the law school at Florida International
University.
What are missing here are any significant studies in the
anthropology of commercial law and, in particular, the interface
between culture and contract in a courtroom setting. One reason for
that may be the considerable emphasis in the anthropological literature
on social order and, within that, criminality. Another may be the very
nature of ‘traditional’ economic relationships and in the
preoccupations of anthropologists themselves. In short, the massive and
complex systems of reciprocity that still exist to varying degrees in
the Pacific do so in a parallel but very different register from
systems of contract and it may well be that anthropologists have, to
date, been consistently attracted to the former. That does not explain
the absence of attention by legal scholars, though that may be the
result of a seeming lack of legal-anthropological interest in the
higher courts where specifically contractual disputes would be
conducted. On the other hand, there also appears to be a paucity of
reports of such cases; a colleague was able to trace only three
reported cases involving custom and contract in the entire Pacific1.
Despite that, dispute resolution in matters commercial across the
region must be a growing field of study and strongly invites serious
attention and further investigation.
What the Melanesian work does offer is an example that could
be adapted to work in other regions. While institutions such as land
and titles courts in Tonga and Samoa have received some consideration,
there is an almost complete absence in Polynesia of the ethnography of
courts and other customary judicial bodies such as village fono
in Samoa. That such fieldwork is possible and can be successful is
confirmed by projects such as Alessandro Duranti’s sociolinguistic
study of the fono
at Falefa
(1981). In matters of land and land tenure, while there is a certain
amount of historical/ethnological material on pre-European and colonial
systems, there is very little, apart from the related question of title
succession, in the way of contemporary observation of the practices and
processes of land courts, the role of custom in those proceedings, and
the development of customary law in disputes and decisions over land.
One avenue for future work would be a comparative study of land courts
across Polynesia or, more ambitiously, across the whole region.
Certainly, in relation to Polynesia, the history of colonisation would
suggest that there is also room for the legal-anthropological study of
the influence of New Zealand’s Native Land Court and its successors and
the Waitangi Tribunal on the conduct of customary and other land-court
processes.
As already suggested, customary bodies in Polynesia such as the Samoan fono,
councils of village chiefs and elders in Fiji, and the island
commissions in Tokelau offer fertile ground for the study of ritual as,
for that matter, do the various levels of state courts throughout the
region. While more public procedures such as the ifoga and i soro
have, for obvious reasons, attracted the attention of legal
anthropologists, it would seem that the perhaps somewhat more hermetic
nature of the processes of the fono
and like institutions as judicial bodies has inhibited investigation of
their obvious rituals. Conversely, it may be the seeming familiarity of
the variety of state courts has blunted interest in their ritualistic
aspects. In either case, the Melanesian studies of customary fora and
state bodies such as village and island courts offer an example, if not
a model, for such investigation in the future.
Graeme Whimp
4 January 2016
References
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Duranti, Alessandro. 1981. The
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Goodale, Mark and Elizabeth Merz. 2007. Anthropology of Law, in Encyclopedia of Law and Society:
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-----------------------------------------------
Anthropology of Law in the Pacific
Annotated Bibliography
Abramson, Allen. 2009.
The Life of the Land: Suturing the Jural and the Ritual in Fiji,
Western Pacific. In Law
and Anthropology: Current Legal Issues 2008, edited by
Michael Freeman and David Napier, 269-291. Oxford: Oxford University
Press.
Setting the tone of this chapter with a cameo of the role of yaqona
(kava) in the inter-relationship between ritual and officialdom in
social control in Fiji, Abramson explores this ‘partially unobserved,
partly mediated dualism’ (270) by mapping the codification of Native
land tenure in early colonial times, detailing its rich, underlying,
uncodified constitution of ritualised land and house relations, and
identifying the structures that ‘sutured’ these contradictory domains.
He concludes that the interconnections of the jural and ritual spheres
were fashioned from below by an Indigenous framework and warns that the
suturing would be in danger of rupturing, with possibly explosive
consequences for existing harmonious relations, should either
Indigenous or outside interests succeed in superimposing property
relations beyond ‘this historic accommodation’ (290).
Akin, David. 1999.
Compensation and the Melanesian State: Why the Kwaio Keep Claiming. The Contemporary Pacific
11 (1): 35–67.
Akin
argues that, as Melanesian countries enter the new millennium, local
communities are challenging their status with regard to the state and
increasingly framing their relationships with it in the context of
Indigenous cultural models and a presumption of social equivalence and
a broadening of compensation claims. This article traces the history of
ideas about compensation held by Kwaio Malaitans in the Solomon Islands
and, in particular, explores the series of claims made by them since
Independence resulting from crimes committed by a 1927 punitive
expedition in response to the assassination of a district officer and
his party (see Keesing and Corris 1980). Akin employs ethnographic,
historical, and political analysis to investigate the role of kastom
in the Kwaio pursuit of this particular compensation claim on the
Solomon Islands Government. He then draws on this background to explore
claims over more recent incidents, including the 1989 and 1996
demonstrations and looting, and the place of kastom in Kwaio
anti-government ideology.
Aleck, Jonathan. 1991.
Beyond Recognition: Contemporary Jurisprudence in the Pacific Islands
and the Common Law Tradition. QUT
Law Review 7: 137-143, https://lr.law.qut.edu.au/article/view/347,
accessed 8 May 2015.
Aleck’s purpose here is to promote understanding of the
seemingly intractable issues involved in the relationship between law
and custom in the Pacific. He notes that, while most of the countries
in some form legally recognise custom or customary practices, this is
circumscribed by certain qualifications: it must not be contrary to or
inconsistent with the law, must conform to the latter’s rules and
principles, and must not be repugnant to justice, equity, good
conscience, and the principles of humanity. In addition, he observes
that, while it was intended that initial constitutional recognition of
custom would be interim to its integration into the overall system,
such commitment has waned since Independence. He attributes this to
wrong-headed anthropological assumptions which tend to bolster
politicised arguments with organic or ethnological ones based on the
idea that custom and law are inherently incompatible. On the contrary,
except where applying to minorities, Aleck argues that rather than
recognition, what is required is that custom, ‘the fundamental jural
values of the community’, be the legitimate basis of the common law and
that the common law tradition is best regarded as ‘a system of
customary law’ (143).
Aleck, Jonathan. 1992.
The Village Court System of Papua New Guinea. Research in Melanesia
16: 101-128.
This article is a literature review of most of the
material available in 1992 on the Papua New Guinean village-court
system established in 1974 and coming into active operation in early
1975. It includes a variety of approaches including the
anthropological. Aleck notes that the literature contains ‘a myriad of
diverse perspectives … which supplement earlier prognostications with a
wide range of detailed descriptions of actual court performance and
problems of administration’ (101). The material is grouped under five
classificatory headings: general historical materials, historical
materials specifically related to Papua New Guinea, policy-oriented
literature and the evolution of the village courts, salient issues and
recurrent problems, and general comments. In conclusion he observes
that the material surveyed unequivocally confirms ‘that the village
court system in Papua New Guinea is working’ (123).
Aleck, Jonathan. 1993.
Mismeasuring the Law: Some Misconceptions Concerning the Nature of Law
and Custom in Papua New Guinea Today. TaimLine: A Journal of
Contemporary Melanesian Studies 1(1): 93-109.
Picking up some of the themes from his 1992 article,
Aleck sets out a range of views, legal and anthropological, on the
relationship between the two disciplines, and sets out to establish
something more productive than the existing ‘tribal warfare’ between
them (Zorn 1990b, 271), and reconsider the dichotomous relationships
between traditional and modern, law and custom, state and stateless,
and lawyer and social anthropologist. Setting out the elements of those
bifurcations, he surveys the political and organic formulations of the
relationship; the origins and nature of organic misconceptions of the
law, including conventional representations of both Melanesian custom
and ‘Western’ law; and law and custom as possibly anthropomorphic
constructs. Noting the beneficial effects of some recent
reconsiderations by both legal ethnographers and academic lawyers in
response to postmodern critique, as well as those by Papua New Guineans
themselves, he questions the ‘mismeasuring’ and ‘misconception’ that
continue to represent the common law as a ‘monolithic, rule-bound,
Anglo-centric formalism’ (106). He provides examples of the ways in
which the assumptions underlying that representation have been
challenged, including theoretical and practical developments in the
common law tradition. Returning to the variety of anthropological and
legal views of the relationships, Aleck concludes that ‘the dynamic
nature of law and custom’ and a constructive integration of the two can
only be achieved in the light of ‘the complementary insights of
jurisprudential and ethnographic understanding’ (107).
Aleck, Jonathan and
Jackson Rannells (eds). 1995. Custom
at the Crossroads. Port Moresby: University of Papua New
Guinea.
This volume comprises an editorial introduction and individual
papers presented by lawyers, judges, and legal academics at the 1992
Papua New Guinea Annual Law Conference on the development of ‘a
genuinely autochthonous Papua New Guinean jurisprudence’ (4). The 15
papers are grouped under four conference themes covering the role of
customary law in the legal system, custom and the courts, traditional
rights and customary law, and some comparative considerations. While
the contributions concentrate more heavily on the content than the
conduct of the law, some draw to a degree on ethnological sources and
observation of legal processes and applications. One paper appears here
in a separate entry as Deklin 1995.
Allardice, Marion. 1984.
Custom and Law in Malaita,
New Zealand Law Journal, August 1984: 283–84, http://library.victoria.ac.nz/databases/nzlawjournal/Pubs/1984/1984-08Aug-257.pdf
accessed 8 May 2015.
In a slightly playful short piece, including a reference
to ‘dusky’ girls in the context of brideprice, Allardice reports that,
in 1981, ‘Are ‘Are chiefs in Malaita in the Solomon Islands published a
book, Are Are Customary
Law,
containing 112 specific offences against their custom. Briefly
reviewing the place of customary law in the legal system, related
aspects of land law, inheritance, proof of title, brideprice, marriage,
and divorce, the conduct and authority over children, and settlement by
compensation, she concludes that the chiefs’ book will need to be
constantly updated and ‘that custom continues to play its lively role
in the Solomon Islands. So, stranger, beware!’ (284).
Allen, Matthew, Sinclair
Dinnen, Daniel Evans, and Rebecca Monson. 2013. Justice Delivered Locally:
Systems, Challenges, and Innovations in Solomon Islands,
World Bank J4P Research Report, http://www-wds.worldbank.org/external/default/WDSContentServer/WDSP/IB/2013/09/27/000356161_20130927130401/Rendered/PDF/812990WP0DL0Se0Box0379833B00PUBLIC0.pdf,
accessed 7 May 2015.
This 92-page report by four Australian academics with a
variety of qualifications in anthropology, geography, law, and
sociology, all specialists in justice and dispute resolution, draws on
a range of sources, including a number of anthropologists, as well as
the authors’ own extensive fieldwork. Their key findings
comprehensively supported, is that four main types of disputation were
found: social-order problems; development and land-related disputes;
problems arising from NGO, donor, and government projects; and marital
disputes and domestic violence. They also find that, though the kastom
system is fragile in many places, where it exists and functions it is
the most commonly used form of dispute settlement though ineffective in
dealing with substance abuse and land disputes; that its fragility is
largely due to chiefs and leaders’ involvement in power struggles; that
no institutional systems were capable of dealing with logging
disputation; that citizens simultaneously express a preference for
non-state systems and a desire for better responses from the state;
that local-level policing and court services have been undermined by
cost-cutting centralisation; and that contemporary governance
innovations derive in part from the enduring legacy of colonial
experience and institutions.
Angelo, A H. 1987. The
Indigenous People of Tokelau and the Legal System. Law and Anthropology:
Internationales Jahrbuch für Rechtsanthropologie, Vol. 2,
347-358. Vienna: VWGÖ-Verlag.
Mostly
a history and description of the political and legal systems in
Tokelau, the article does briefly discuss the relationship between
customary and official criminal law. Angelo describes the two as not so
much in conflict as in parallel where the two systems know the same
crime but define it differently. There is some comment on the
settlement of land disputes and the lack of legislative recognition of
local methods of dispute resolution.
Angelo, Tony. 2010. Rule
of Law – Role of Law in the South Pacific. Governance and Self-reliance in
Pacific Island Societies: Comparative Studies, Revue Juridique
Polynésienne (Hors série) 10: 63-89.
In this article, Angelo engages in some discussion of
custom and its characteristics in the Pacific, noting, in particular,
that it differs from law in form, structure, and purpose and supports
that argument with a table setting out physical conditions, social
conditions, social regulation, and the law. He suggests that the law in
Pacific Island countries could be strengthened by engaging in its
vernacularising (as in the creation of the law of England) and engaging
with custom while at the same time ‘extending English language
education and inculcating an understanding of the nature of the law and
its processes’ (88).
Angelo, A H, Hosea
Kirifi, and Andie Fong Toy. 1989. Law and Tokelau. Pacific Studies
12(3): 29-52, https://ojs.lib.byu.edu/spc/index.php/PacificStudies/article/view/9563/9212,
accessed 1 June 2015.
The authors seek to place on record elders’ pre-1984
perceptions of ‘lawlike’ rules and institutions and to summarise the
reality of social ordering at that time. Their concern is with ‘the
interface between custom and law at a key period’ (30). They identify
three main forms of custom in the villages of the three atolls: written
rules, unwritten rules, and the response of elders to situations not
covered by either. Summarising material presented at the first law
meeting held in Tokelau under the auspices of the Tokelau Law Project,
they present an overview of the ‘limited but increasing’ role of law
and suggest that custom largely remains outside its purview and
provides ‘a viable system of social order’ at that time (46-47). The
article includes a useful history of colonial, dependency, and New
Zealand law in Tokelau and the interplay of custom and external law in
that history.
Arkwright, Norman. 2010.
Restorative Justice in the Solomon Islands. In A Kind of Mending: Restorative
Justice in the Pacific Islands, edited by Sinclair Dinnen,
Anita Jowitt, and Tess Newton Cain, 177-194. Canberra: Pandanus Books, http://www.jstor.org/stable/pdf/j.ctt24hbc4.21?&acceptTC=true&jpdConfirm=true,
accessed 15 June 2015.
The author, who has been a Catholic parish priest in
various parts of the Solomon Islands, sets out the practices he has
observed relating to brideprice and compensation in the 1960s, recounts
major events from the disturbances and violence that emerged in the
late 1990s and early 21st century between Guadalcanal people and
Malaitans, and discusses the escalation of compensation claims that
emerged after the riots and attacks. Whereas previously compensation,
like brideprice, was paid out in dolphin teeth, shell money, pigs, and
betel nut, Arkwright argues that the scale of damage that occurred, the
introduction of cash and monetary compensation, and the willingness of
the government to meet compensation claims have led to a skyrocketing
of the amounts of money sought in compensation. In the face of the
inadequacy of traditional forms of reconciliation to deal with this
escalation, he proposes a biblical and church-related approach. See
also Akin 1999.
Arno, Andrew. 1974.
Conflict Management in a Fijian Village. Unpublished Harvard University
Anthropology PhD Thesis.
In his early 1970s field research on Moce Island in the Lau
group of Fiji, Arno undertakes an ethnography of communication about
conflict and investigates the ways in which a small and comparatively
isolated community deals with intragroup conflict, initially using the
‘case method’ based on collecting as many ‘trouble cases’ as possible
(4). Finding that approach unsatisfactory in light of experience, he
turns to ‘instances of conflict’ as his units of analysis on the
grounds that ‘instances of conflict are far more numerous than
instances of resort to available processes of dispute settlement’ (6).
Setting out the general ethnographic background of the island, he goes
on to outline the reciprocal categories of its relationship system, the
role of village ‘talk’ in conflict management, and the place and
performance of the i
soro
ritual of reconciliation within the whole process of conflict
management. In his conclusion, Arno provides an explanation of the ways
in which those various elements combine to provide a form of
adjudication of disputes. See also Arno 1976, Hickson 1975, Koch et al
1977, Merry 2006, and Toro 1973.
Arno, Andrew. 1976.
Ritual of Reconciliation and Village Conflict Management in Fiji. Oceania 47(1):
49-65, http://www.jstor.org/stable/pdf/40330266.pdf?acceptTC=true&jpdConfirm=true,
accessed 22 June 2015.
In this paper, Arno asks how the performance of i soro or i bulubulu operates
as a conflict-management system while appearing to be no more than a
formal outcome in disputes. I
soro,
he explains, is a ritual of reconciliation used throughout Fiji in
which a wrongdoer makes a ritualised surrender to an injured party by
presenting the ritual object tabua
(whale tooth) and yagona
(kava); while formally a confession of guilt, a humbling, and request
for forgiveness, it is also a powerful demand for the restoration of
normal relations. By means of detailed studies of the context and
practice of i soro
in two
villages, one in the Tongan-related Southern Lau islands and the other
in the mountains of Vanua Levu, he examines how the ritual can effect
resolution without providing for fact-finding or the visible
application of norms. He concludes that the i soro
is not so much concerned with damage as with the parties’ future
relations and that, though conceived of as a self-contained act, it ‘is
part of a larger system that can be brought into play by any instance
of conflict within the community’ as a response to and escape from the
pressure of social disapproval (65). See also Arno 1974, Hickson 1975,
Koch et al 1977, Merry 2006, and Toro 1973.
Baltaxe, James Bernard.
1975.
The Transformation of the Rangatira: A Case of the European
Reinterpretation of Rarotongan Social Organization. Unpublished
University of Illinois PhD Thesis in Anthropology.
While his principal concern in this ethnohistorical
thesis is to advance the understanding of the processes whereby changes
come about in social organisation, Baltaxe does provide a good deal of
valuable material bearing on pre-European Rarotongan society and land
tenure as well as the establishment and operations of the Rarotonga and
Other Cook Islands Land Court from 1902 to the late 1960s, with
particular attention to the earlier period of the New Zealand colonial
administration of Walter Edward Gudgeon. It is also significant as the
first examination, analysis, and critique of Crocombe 1964, in which
Baltaxe finds the outline of pre-European social organisation
excessively unilineal and hierarchical and of which he says: ‘In
summary, then, Crocombe presents a model of the ideal structure of a
Rarotongan tribe as a segmentary lineage system in spite of the many
exceptions and fundamental qualifications he is thus forced to make
throughout the book’ (153). See also Campbell 2002, Gilson 1955, and
Pascht 2011.
Bothmann, Susan.
2010. Rites, Whites and Might: A Critique of the Effect of the Revival
of Customary Law upon the Autonomy of Indigenous Women. In Passage of Change: Law, Society
and Governance in the Pacific, edited by Anita Jowitt and
Dr Tess Newton Cain, 143-164. Canberra: Pandanus Books, http://www.jstor.org/stable/pdf/j.ctt24h3jd.16?&acceptTC=true&jpdConfirm=true,
accessed 15 June 2015.
Recognising
the development of political projects to renew customary ideas and
practices in a number of areas including Melanesia, Bothmann asks
whether the return to a customary legal system will promote political
autonomy for Indigenous women or simply become a vehicle for their
disempowerment and oppression by Indigenous men. Referencing recent
feminist legal scholarship and postmodern approaches, she critiques the
body of knowledge of custom gathered by white and male anthropologists
and other outsiders and suggests that it is possible to deconstruct the
notion of custom without threatening its usefulness or denying its
importance as a marker of identity. Considering some models of custom,
especially those of Vanuatu, and noting the absence of women’s voices,
she identifies five levels of ‘the masculinist rhetoric of nostalgia’
used to foster men’s power (155). They are the use of anthropological
inputs annihilating women’s business; employment of outsiders’
patriarchal misinterpretations of actual relations between men and
women; denial of any vehicle for the recognition of women’s traditions;
modification of custom by men’s reinventions in pursuit of greater
control over women; and a power paradigm so patriarchal that men become
the sole arbiters of custom. She warns that the reinvigoration of
custom may induce ‘schizophrenia’ in women as their loyalty to a
customary ideology confronts ‘masculinist interpretations that erase
their gender perspective’ 158). There is some discussion of Waiwo v Waiwo and Banga
as an example of the difficulty of reconciling imported and traditional
concepts.
Brown, Bernard. 1971.
Outlook for Law in New Guinea. Oceania
41(4): 244-254, http://www.jstor.org/stable/pdf/40332159.pdf,
accessed 5 June 2015.
In the context of a broader discussion of existing legal
provision in Papua and New Guinea in the 1960s, and possible
developments in the 1970s, Brown records some observations of the
conduct of law at that time in support of his contention that the main
concern should perhaps be ‘the integration of custom with appropriate
rules of Western origin’ (246). On the basis of those observations he
proposes three steps for the ‘legal engineer’: to leave native
conciliation procedures’ alone where they seem to be working; to make
available judicial bodies and procedures more compatible with custom
than the wet kot
(white
court) where conciliation or mediation do not work; and in towns and
other centres to establish courts equipped to deal with the faster pace
of life while sorting out ‘the frightening complexities of custom
conflicts’ (249).
Brown, Kenneth. 1986.
Criminal Law and Custom in Solomon Islands. Queensland Institute of
Technology Law Journal 2: 133-139.
This
article examines the problems and conflicts resulting from the
imposition of an outside, centralised, and uniform criminal legal
system onto a culture such as that of the Solomon Islands and the ways
in which courts have responded. Brown discusses that country’s
constitutional provisions for the application of custom and analyses Loumia v DPP
in the Solomon Islands Court of Appeal in 1985 in considerable detail.
He concludes that, while it is possible to understand judges’
reluctance to accept a customary duty to kill as extenuation, it is
clear that the appellant in that case lived totally according to custom
and that the Constitution appears to require some recognition of that.
Brown, Kenneth. 1997.
Customary Rules and the Welfare Principal: Post-Independence Custody
Cases in Solomon Islands and Vanuatu. Journal of Pacific Studies
21: 83-101, http://www.usp.ac.fj/fileadmin/files/Institutes/jps/Brown.PDF,
accessed 1 June 2015.
In this article, Brown investigates the place of customary law
in the hierarchy of legal sources and the resolution of conflicts
between customary and outside law in cases relating to the custody of
children in the situation where the effect of payment of brideprice is
that, in the case of marriage break-up, the children ‘belong’ to the
father’s line. He examines four post-Independence Solomon Island
decisions involving the welfare principle: Sukutaona v Hounihou,
In Re B, K v T and Ku, and Sasango v Beliga;
and two Vanuatu decisions: M
v P and G
v L.
Brown concludes that it is clear that, in the case of a clash between
customary rules and the welfare principle, the latter has prevailed and
that, in the majority of cases, there is failure to address, confront,
and analyse the relationships among different sources of law in a
legally pluralistic system.
Brown, Kenneth. 1999.
Customary Law in the Pacific: An Endangered Species? Journal of South Pacific Law
Vol. 3, http://www.vanuatu.usp.ac.fj/journal_splaw/articles/Brown1.htm,
accessed 4 May 2015.
Brown observes that the subordination of customary law
under colonialism resulted in powerful claims at Independence for its
integration into the body of law and an aspiration to ‘promote genuine
legal pluralism rather than a stratified dualism with one source
dominant and the other subservient’ with customary law a primary source
(no page numbers). Here he examines the extent to which this has been
achieved and asks if regional jurisdictions can develop a distinctive
Indigenous common law and jurisprudence, if customary law can be
adapted to a technological and globalised world, if it is flexible
enough to meet modern norms of human rights and particularly gender
equity, and whether its survival depends on its isolation if it cannot
adjust to interdependent internationalism. He concludes that isolation
should be rejected as superficial and that fresh approaches are what
are is required; that there is no impediment to synthesising customary
and imported common law; that customary law is actually evolving a more
contemporary ethos, essential if it is not to be ‘a reactionary
conservative code of practice’; and that, over all, the prognosis is
mixed, with acceptance and survival depending on ‘well-funded,
meticulous and qualified research’.
Brown, Kenneth. 2005. Reconciling Customary Law and
Received Law in Melanesia: The Post-Independence Experience in Solomon
Islands and Vanuatu. Darwin: Charles Darwin University
Press.
Though much of this PhD-based monograph by a former
magistrate and public solicitor in the Solomon Islands is devoted to
definitions, history, and individual cases, the author does draw widely
on anthropological materials in his discussions and one section,
‘Custom, customary law and received law’ (77-100) will be of particular
interest to legal anthropologists. There he blends consideration of
legislation and judgments with ethnographic and personal observation to
conclude that the successful creation of local jurisprudence in the two
countries will depend on judges and lawyers promoting the inclusion of
customary law as a primary source while also being aware of
circumstances where the application of imported law may also be
appropriate.
Campbell, Matthew. 2002.
History in Prehistory: The Oral Traditions of the Rarotongan Land Court
Records. Journal of
Pacific History 37(2): 221-238, http://www.tandfonline.com/doi/pdf/10.1080/0022334022000006619,
accessed 5 June 2015.
Campbell draws on the records of the Land Court, which
he describes as an invaluable ethnohistoric source on pre-encounter
land tenure and social and political relations, to contextualise the
archaeological record of Rarotonga by following the fortunes of the
Tinomana and Makea families. Critical of the ‘excessively rigid and
hierarchical model of society’ proposed in Crocombe 1964 (224), he is
concerned to provide an alternative view of fundamentally fluid and
flexible social relations existing before European contact. Against
that background, he traces the gradual growth of ariki
(highest-chiefly) power during the missionary and colonial periods,
during which their hegemony became assured and political unity
cemented. He adds that, while European intervention was a defining
episode, it was only a moment in a long history. See also Baltaxe 1975,
Gilson 1955, and Pascht 2011.
Chowning, Ann. 1974.
Disputing in Two West New Britain Societies: Similarities and
Differences. In Contention
and Dispute: Aspects of Law and Social Control in Melanesia,
edited by A L Epstein, 152-197. Canberra: ANU Press.
Ethnographic studies of communities respectively on the
north and south coasts of West New Britain, the Sengseng, and Kove
respectively, offer, in the context of wider kin and social relations,
comparison and contrast of their forms and conduct of dispute
settlement. Chowning concludes that her research demonstrates ‘that two
societies that resemble each other so closely can still vary so widely
in such important areas indicates again the eternal difficulties of
generalising from one Melanesian society even to its closest
neighbours’ (197).
Corrin Care, Jennifer.
2001. Customary Law in Conflict: The Status of Customary Law in
Post-Colonial Solomon Islands. University
of Queensland Law Journal 21(2): 167-177, http://heinonline.org/HOL/Print?collection=journals&handle=hein.journals/qland21&id=173&print=section§ion=22&ext=.pdf,
accessed 2 June 2015.
Examining uncertainties about the status and application
of customary law in the Solomon Islands, Corrin Care takes into account
the Constitution, recent legislation on proof of customary law, and
judicial attempts to deal with conflict between customary and
introduced law. In relation to constitutional law she outlines the
issues in R v Loumia
and Others and Remisio
Pusi v James Leni and Others
and in other areas makes reference to a variety of significant
decisions. She observes that, while customary law has constitutional
recognition as a general source of law, in the case of conflict it is
mostly subordinate to constitutional provisions and to acts of the
Solomons parliament but superior to acts of the UK parliament that
continued in force and to common law and equity. She concludes that the
existing legal pluralism is experiencing problems unforeseen at
Independence, leaving the courts to perform a balancing act among the
various sources of law.
Corrin Care, Jennifer.
2002a. Cultures in Conflict: The Role of the Common Law in the South
Pacific. Journal of
South Pacific Law 6(2), http://www.paclii.org/journals/fJSPL/vol06/2.shtml,
accessed 15 June 2015.
Noting that though South Pacific law remains based on English,
the two have diverged as a result of constitutional cut-off dates with
consequent culture-conflict, Corrin Care sets out to examine such
conflict through consideration of cases in twelve countries: Cook
Islands, Fiji, Kiribati, Nauru, Niue, Samoa, Solomon Islands, Tokelau,
Tonga, and Vanuatu. In doing so, she considers the sources of common
law, its conditions of application and relationship with other sources,
and judicial consideration thereof, citing a variety of mostly
Melanesian cases. She concludes that failure to adapt common law to the
complexities of regional societies is a threat to the operation and
growth of local cultures and inhibits both the limiting of common law
and the freethinking needed to establish a regional jurisprudence. She
suggests that this will continue until ‘the common law is abandoned or,
at least, restricted to cases where it is inarguably applicable to
local circumstances’ (no page numbers). In addition, she suggests
expanding traditional dispute resolution and introducing undergraduate
and postgraduate study of customary law in regional legal education.
Corrin Care, Jennifer.
2002b. Wisdom and Worthy Customs: Customary Law in the South Pacific. Reform 80: 31-36,
72, http://www.austlii.edu.au/au/journals/ALRCRefJl/2002/7.html,
accessed 10 June 2015.
Corrin Care observes that because constitutional recognition of
customary law did not include specification of its precise relationship
with introduced laws, this absence afforded opportunities for courts to
avoid it. In dealing with the nature of customary law, she
distinguishes between custom as normal group behaviour and customary
law as the rules governing that behaviour. She notes that such
definitions of the latter as do exist are often unsatisfactory, that it
is unclear how widespread it needs to be to warrant recognition, and
raises questions about its applicability in disputes between members of
different customary groups or Indigenous and non-Indigenous people, and
asks whether it is regarded as law at all. She goes on to deal with the
proving and recording of customary law and whether it should be
superior to common law, the establishment of customary courts,
relevance to local circumstances, and traditional recognition. She
draws on R v Loumia and
Others to consider distortions of the objective test of
conduct, intention, and reasonability.
Corrin Care, Jennifer.
2006. A Green Stick or a Fresh Stick: Locating Customary Penalties in
the Post-Colonial Era. Oxford
University Commonwealth Law Journal 6(1): 27-60, http://heinonline.org/HOL/Print?collection=journals&handle=hein.journals/oxuclwj6&id=27&print=section§ion=4&ext=.pdf,
accessed 10 June 2015.
Dealing with the legacy of transplanted laws, Corrin Care
emphasises the resilience of customary law and, on that basis, disputes
the claim of some scholars that it is no more than a colonial creation.
In this article she takes the example of punishment by banishment to
illustrate the difficulty ‘of locating customary penalty in the plural
systems existing in the post-colonial era’ (29). In doing so, she
backgrounds legal provision in the South Pacific, considers the divide
between the theory and practice of introduced and customary law, and
outlines the ways in which they have been dealt with by the courts. Her
focus is on the ways in which courts have balanced custom in the form
of banishment, particularly in Samoa, with introduced and
constitutional law, with detailed reference to Ta’amale v Attorney-General
and Leituala v Mauga.
Corrin Care concludes that the cases confirm the cultural specificity
of penalties and the need for sensitivity in their application and
appeals for appreciation of the strength of the diversity of local
systems as a counter-balance to the uniformity imposed by
globalisation.
Corrin, Jennifer. 2008a.
Land, Law and the Faa-Samoa. Lawasia
Journal 46: 46-69, http://heinonline.org/HOL/Print?collection=journals&handle=hein.journals/lawasiaj9&id=52&print=section§ion=7&ext=.pdf,
accessed 5 June 2015.
Identifying serious tensions between commerce and
tradition in land tenure and use in early twenty-first-century Samoa,
Corrin investigates related problems of tenure and dispute resolution
in the context of legal pluralism and contemporary demands. In doing
so, she examines the existing system of land tenure and use and, in
particular, the alienation of customary land. Moving on to the
resolution of customary land disputes, she surveys both statutory and
informal fora, the Land and Titles Court and the village fono
(councils of chiefs), their practices, procedure, and forms of
evidence, and the role of the Land Investigation Commission in
determining the status of land and questions of individual ownership.
In the context of the relationship between culture and customary law,
she highlights breakdowns of tradition, debates over definitions of
custom and its relationship with common law, and the role of fono
and court in dealing with conflicts between customary law and human
rights. While acknowledging that the court’s status as a court of
record has preserved it from some of the pitfalls experienced by other
customary courts, she warns that there will be increasing resort to
formal courts in response to disputes involving governments, foreign
individuals, and companies.
Corrin, Jennifer. 2008b.
Customary Land and the Language of the Common Law. Common Law World Review
37(4): 305-333, http://heinonline.org/HOL/Print?collection=journals&handle=hein.journals/comlwr37&id=313&print=section§ion=25&ext=.pdf,
accessed 5 June 2015.
Against a background of the region and development of
its legal systems, the significance of land, legal pluralism, and the
terminology of customary land tenure, Corrin discusses mainly Samoan
and Solomon Islands provisions of land tenure, both formal and
customary, and the manner of representation of customary concepts in
common-law terms. This discussion covers forms of ownership and types
of ‘landowners’, timber rights, chiefs and titles in Samoa and the
Solomons, primary and secondary interests, trusts, and agency. She
argues that, despite constitutional protections for customary land and
law, the common law has effected significant changes in customary
concepts, with the tension between the two likely to increase in
response to the challenges of changing lifestyles.
Corrin, Jennifer. 2008c.
Resolving Land Disputes in Samoa. In Making Land Work,
Vol 2, 199-220. Canberra: Australian Agency for International
Development, http://dfat.gov.au/about-us/publications/Pages/making-land-work.aspx,
accessed 18 June 2015.
This is a useful summary account of the legal and
land-tenure systems in Samoa and institutions and issues relating to
the resolution of land disputes. It includes descriptions of the roles
and practices of village councils, the Land and Titles Court, the Land
and Titles Appeal Division, the Supreme Court, and the Land
Investigation Commission as well as discussion of settlement by matai
(chiefs) within the family and negotiation, mediation, and arbitration
procedures. Corrin outlines some recent innovations involving resources
and leadership, cultural underpinnings, court systems, and avenues for
the development of customary land, and proposes establishing and
maintaining specialist institutions and recognising customary ones,
recognising challenges to tradition, and providing alternatives for
dispute resolution.
Corrin, Jennifer. 2009.
Moving Beyond the Hierarchical Approach to Legal Pluralism in the South
Pacific. Journal of
Legal Pluralism and Unofficial Law 59: 29-48, http://www.heinonline.org/HOL/Print?collection=fijournals&handle=hein.journals/jlpul59&id=47&print=section§ion=8&ext=.pdf,
accessed 15 June 2015.
Corrin dismisses such binary oppositions as traditional
and modern, customary and traditional or state law, and informal and
formal justice and argues for a more complex interplay between them and
a new category of ‘blending’. Addressing the tensions and uncertainties
resulting from legal pluralism in action, she uses examples drawn from
the Solomon Islands to illustrate the blurring that has occurred
between customary and state law. In the context of incorporating
customary law in statutes, she analyses in some detail Majoria v Jino
and the Solomon Islands National Provident Fund Act as a statutory
amendment introduced to take account of customary laws with the
subsequent case of Tanavulu
and Tanavulu v Tanavulu and SINPF.
In conclusion, Corrin laments the ‘one dimensional, hierarchical
approach to legal pluralism’, the lack of progress since Independence
in the promotion of customary law and a South Pacific jurisprudence, as
well as the absence of an appropriate philosophical basis for such
initiatives (45).
Corrin, Jennifer. 2011.
Accommodating Legal Pluralism in Pacific Courts: Problems of Proof of
Customary Law. International
Journal of Evidence and Proof 15(1): 1-25, http://heinonline.org/HOL/Print?collection=journals&handle=hein.journals/intjevp15&id=3&print=section§ion=4&ext=.pdf,
accessed 2 June 2015.
Here Corrin is dealing, mainly in relation to the
common-law courts of Australia but also to some South Pacific courts,
with issues relating to the proof of customary law and the question of
whether it should be treated as law or fact. She surveys related
Australian and Pacific legislation and civil and criminal proceedings
in a number of Australian cases and also in Allardyce Lumber Company v Laore,
Tafisi v Attorney-General
(both Solomons) and Waiwo
v Waiwo and Banga
(Vanuatu). She proposes that Australia could take a lead from countries
such as Kiribati, Tuvalu, and Papua New Guinea in allowing for
customary law to be treated as a matter of law.
Corrin Care, Jennifer and
Jean G Zorn. 2001. Legislating Pluralism: Statutory ‘Developments’ in
Melanesian Customary Law. Journal
of Legal Pluralism and Unofficial Law 33(1): 49-101, http://www.tandfonline.com/doi/pdf/10.1080/07329113.2001.10756552,
accessed 2 June 2015.
This comparison of two pieces of legislation, Papua New
Guinea’s Underlying Law Act and the Solomon Islands’ Customs
Recognition Act, proceeds from the question of how to incorporate
customary law in the legal system when custom varies even from village
to village and also seeks to discover why two parliaments have taken
such different approaches to similar problems of pluralism. It includes
a very useful discussion of differentiations between custom and
customary law (52-53 footnote 5). Following a survey of law before,
during, and after the colonial period, the authors minutely examine the
respective acts, their goals, construction, and differences, and finds
that, while both statutes were intended to enhance the role of
customary law, the Solomon Islands parliament chose to base itself on
an earlier Papua New Guinea act already discarded by that country in
favour of one proving stronger support for customary law. The principal
difference between the two acts is that the Underlying Law Act provides
for custom as law while the Customs Recognition Act restricts custom to
proof as fact. The authors suggest that the reasons for the disparity
lie in the existence in Papua New Guinea of a Law Reform Commission,
the support of influential figures in that country, and the actual
experience of the weaknesses of the earlier legislation providing the
impetus for stronger provisions.
Counts, D and D. 1974.
The Kaliai Lupunga: Disputing in the Public Forum. In Contention and Dispute: Aspects
of Law and Social Control in Melanesia, edited by A L
Epstein, 113-151. Canberra: ANU Press.
The coastal Kaliai of Northwest New Britain employ some forms of lupunga,
literally ‘gatherings’, for the public settlement of disputes and
grievances between parties of different kin groups. The Counts identify
three possible outcomes of such a lupunga:
agreement reached, dispute escalated, and dispute unsettled, the latter
particularly in the case of disputes of rights in persons. Having
tabulated and discussed the varieties of rights violations, methods and
types of settlements, they draw on two case studies, one concerning a
death and the other coconut inheritance, to reach their conclusions.
They are that a lupunga
may
or may not involve confrontation between adversaries, that
confrontation results in rival claims of violation of rights rather
than assertion and denial of violation, and that, in the case of
conflict between custom and administration law, the latter is
paramount.
Counts, Dorothy Ayers and
David R Counts. 1994. When Women Win: Male-Female Disputing in Kaliai,
West New Britain. Law
and Anthropology, International Yearbook for Legal Anthropology
7: 331-352.
Basing themselves on 11 case studies, summarised in an
appendix, of disputes taken and won by women from the Kaliai area of
West New Britain in Papua New Guinea, the authors examine strategies to
determine which ones were effective, whether women successfully use
strategies different from those of men, and whether disputes between
women differ from those between a woman and a man. They identify the
importance of strong kin and community support, display of
determination, and appearance of willingness to escalate the dispute by
reference to the court or by violent behaviour, even to themselves and
to property, as key strategies. Men, on the other hand, rarely resort
to the court in disputes with men and never with women, urge women to
use traditional methods, and less frequently destroy property or
themselves. For women, suicide or the threat of it is the ultimate cry
for justice and an extreme vehicle for control of life or fate.
Cretton, Viviane. 2005.
Traditional Fijian Apology as a Political Strategy. Oceania 75(4):
403-417, http://www.jstor.org/stable/pdf/40331997.pdf?acceptTC=true&jpdConfirm=truehttp://www.jstor.org/stable/pdf/40331997.pdf?acceptTC=true&jpdConfirm=true,
accessed 5 June 2015.
At the time of release of the parliamentary hostages
after the Fiji coup d’état of 2000, stories circulated that the leader
of the coup had performed a matanigasau
(ceremony seeking forgiveness) with
tabua (whale tooth) and yaqona
(kava) and the deposed prime minister had signified forgiveness by
acceptance; the story was denied by the hostages present, saying they
were just having a kava session among themselves on which the coup
leader dropped in. Cretton uses this dispute about the meaning of
reconciliation to tease out the notion of tradition as an object of
negotiation between both the original parties and between them and
herself as anthropologist. In the light of such performances of apology
as evasions of punishment by the courts, and noting the parallels
between this discursive denial of the law and the institutionalisation
of tradition over custom during colonisation, she concludes that the
2000 coup exacerbated opposition between customary and constitutional
rights and heightened the colonial dichotomy between tradition and
democracy.
Crocombe, R G. 1964. Land Tenure in the Cook Islands.
Melbourne: Oxford University Press.
In this ethnohistorical study of land tenure in the Cook
Islands, Crocombe bases his reconstruction of the pre-European system
of Rarotonga on the physical features of the island, the mass of data
recorded by Rarotongans, evidence of external observers, previous
researches including those in the Land Court records, fieldwork, and
his knowledge of other, related land-tenure systems. In assessing the
impact of European culture on the Cook Islands more generally, he
relies heavily on missionary sources and to a lesser extent on the
observations of seafarers, traders and travellers. For his final
section on the Land Court, he draws on court records and his
fourteen-month field survey to outline and discuss the establishment
and processes of the court, court practice and custom, tenure reform
and productivity, developments since World War II, and some future
possibilities. The rigidity of his model of pre-European society has
been subject to quite sharp criticism, particularly in Baltaxe 1975 and
Pascht 2011.
Crocombe, Ron. 1988. Land
Courts. In Pacific
Courts and Legal Systems, edited by Guy Powles and Mere
Pulea, 112-126. Suva: University of the South Pacific.
This is a broad survey of land tenure systems and
methods of resolution of disputes over customary land across the South
Pacific in the 1980s, including the role of the courts, the
relationship between traditional and introduced mechanisms, and the
timing of phasing out of the former.
Crosetto, John. 2005.
Heart of Fiji’s Land Tenure Conflict: The Law of Tradition and
Vakavanua, The Customary Way of the Land. Pacific Rim Law and Policy
Journal 14(1): 71-102, http://heinonline.org/HOL/PrintRequest?collection=journals&nocover=&handle=hein.journals%2Fpacrimlp14&id=79§ion=9&skipstep=1&fromid=79&toid=110&formatC=PDFsearchable&submitx=Print%2FDownload&submit1=Print%2FDownload,
accessed 5 June 2015.
Focusing on recent land-tenure law reform in Fiji as a
means of easing racial tension and political unrest, Crosetto
distinguishes between tradition as defined by the colonial
administration and custom as the conduct of everyday life and observes
that, despite constitutional paramountcy of Fijian interests, the
practice of customary tenure by farmers diverges from the law as
defined by tradition. He proposes that reform of the land laws,
including leasing arrangements, to recognise the transition from a
subsistence to a market economy would in fact better preserve the
Fijian cultural identity that constitutional paramountcy was intended
to protect.
Deckker, Paul de and
Jean-Yves Faberon (eds). 2001. Custom
and the Law. Canberra: Asia Pacific Press.
In this English translation, a variety of Francophone scholars,
including several anthropologists as well as legal practitioners and
academics, mostly based in French Polynesia and New Caledonia,
investigate ‘the place of indigenous custom in the development of law
in the South Pacific’ (ix) and, in particular, those laws concerning
land rights, mining rights, and legal guarantees. In fact, their
investigations are largely confined to the then French Overseas
Territories and cover two broad fields: the position of Indigenous
custom in the rules of those territories and Indigenous custom and
jurisprudence therein. An introductory discussion of custom and the law
is followed, in the first part, by a chapter on adaptation to local
sociological particularities and individual chapters on customary rules
in New Caledonia, French Polynesia, and Wallis and Futuna. In the
second part, individual chapters include two on aspects of the
magistrature in New Caledonia, a land- and marine-oriented discussion
of customary law and custom in French Polynesian jurisprudence, and a
survey of customary legal processes in Wallis and Futuna. An appendix
contains transcriptions of two short ‘debates’ that appear to have
taken place at a conference at which the chapters were presented as
papers.
Deklin, Tony. 1995. The
Future of Papua New Guinea Customary Law: Rot Wei? In Custom at the Crossroads,
edited by Jonathan Aleck and Jackson Rannells, 34-42. Port Moresby:
University of Papua New Guinea.
Deklin, an Indigenous Papua New Guinea practitioner, laments
the lack of progress in the development of the underlying law 17 years
after Independence despite the constitutional directive for its
introduction. This he ascribes to weaknesses in the training of lawyers
and their own unwillingness to embrace customary law. He identifies
three ideological positions: primacy of adopted law over-riding
customary law in case of conflict; primacy of customary law even in the
case of conflict; and equal primacy in respective areas of strength and
primacy in the case of conflict depending on the merits of the
particular case. He argues strongly for the second position and points
to the Bougainville crisis as a result of failure to organise a
customary law system and its confinement to situations of actual
conflict. Characterising the existing state of underlying law as ‘a
bastardisation, a concoction’ (39), he suggests three steps towards the
primacy of customary law: separating customary law from the underlying
law; giving it relative primacy; and giving primacy to statutory law
only in the case of irreconcilable conflict.
Demian, Melissa. 2003.
Custom in the Courtroom, Law in the Village: Legal Transformations in
Papua New Guinea. Journal
of the Royal Anthropological Institute 9(1): 97-115, http://www.jstor.org/stable/pdf/3134756.pdf?acceptTC=true&jpdConfirm=true,
accessed 7 May 2015.
Demian proposes that customary law in Papua New Guinea is ripe
for reassessment, not least, as she sees it, as an ideal mechanism for
meeting some of the obligations imposed on the country by international
law. Rather than focusing on the usual opposition of exogenous and
Indigenous, she proposes examining their influence on each other since
Independence. Noting anthropological agreement on customary law as a
product of colonial encounter combining, like kastom
itself, Indigenous and introduced, she examines village and national
urban courts in questioning the accuracy of that position. On the basis
of her analysis of two village-court cases, involving an apparent theft
and sorcery respectively, and Luke
Kere and Another v Bessi Timon and Family,
involving brideprice, in the National Court of Justice, Demian suggests
that while village courts take custom for granted and must ‘discover’
law, high courts take law for granted and must ‘discover’ custom. She
concludes that, far from being hybridised as customary law, custom and
law are strategically distinguished to enable them to draw upon each
other as required.
Demian, Melissa. 2008.
Fictions of Intention in the ‘Cultural Defense’. American Anthropologist
110(4): 432-442, http://onlinelibrary.wiley.com/doi/10.1111/j.1548-1433.2008.00076.x/pdf,
accessed 21 May 2015.
Setting out to discover ‘what sort of evidence culture is that
it can be marshalled as a legal argument’ (432), Demian surveys views
on the cultural defence from a wide range of scholars. Examining the
concept in operation in a British case in which the defence fails, R v Sebastian Pinto and Others,
and a US one in which it succeeds, People
v Kimura,
she suggests that the cultural defence provides anthropologists with an
example of culture as an ethnographic object being employed as a tool
for revealing the intentions of a defendant. Turning to Papua New
Guinea, her analysis of a land case, Madaha Resena, Raho Gaigo and
Igo Oala v The Independent State of Papua New Guinea,
leads her to observe that the cultural defence seldom succeeds in that
country ‘because it may be “repugnant” but also because it cannot
reveal the intentions of defendants’ (438). She ascribes this failure
to the operation of custom there as a description of actions, not
intentions, undertaken in the past, the legal fiction residing in ‘its
projection of categorically historical action into the present of the
court, rather than the projection of categorically internal motivations
into the public of the court’ (439). Comparing legal and
anthropological treatments of culture, she concludes that law regards
it instrumentally while anthropology uses it descriptively and
analytically; in each case it serves as a means of making disciplinary
intentions explicit.
Demian, Melissa. 2011.
‘Hybrid Custom’ and Legal Description in Papua New Guinea. In Recasting Anthropological
Knowledge: Inspiration and Social Science, edited by
Jeanette Edwards and Maja Petrović-Šteger, 49-69. Cambridge: Cambridge
University Press.
Reviewing frequent observations of the failure to
develop the underlying law to give customary law precedence over common
law, Demian asks if what is needed may be to replace the
anthropological concept of custom as locally produced relations with a
concept of universal custom analogous to the law as an alternative to
hybridity. Taking account of the problem of a possible excess of
universality in Papua New Guinea, she discusses compensation and
sorcery as offering examples ‘of the pitfalls of requiring universality
as a condition of recognising custom as the analogy to law’ (64). On
the basis that working out the proper relationship between customary
and common law is fundamental to developing the underlying law, she
identifies two obstacles: the incommensurability of the two and the
popular framing of custom as implicit and specific against the law as
explicit and general. Demian concludes that, while universality has its
own hazards, for custom to supplant common law as the source of the
underlying law it must be seen to have the same properties and, most
particularly, universal applicability.
Demian, Melissa. 2014. On
the Repugnance of Customary Law. Comparative
Studies in Society and History 56(2): 508-536, http://search.proquest.com/docview/1513963472/fulltextPDF/42FC465EE66E4C96PQ/10?accountid=14782,
accessed 21 May 2015.
This interrogation of repugnancy in its strict and extended
senses, customary law, and custom engages with Elizabeth Povinelli on
the framing of repugnance as a refusal of recognition and traces the
‘life history’ of the concept through seven Papua New Guinea cases: State v Aubafo Feama, Nama Auri,
and Kafidiri Kududebe Hagima on cannibalism; State v Maraka Jackson
on sorcery-related murder; Re
Kaka Ruk and Application by Non on adultery, compensation,
and bondage; Senan Ess
Olwen v Lucy Tiso on marriage break-up; Robson Ubuk v Rachel Darius
on child custody; and In
re Miriam Willingal
on status of compensation. Invoking a variety of writings on disgust as
physical, moral, and aesthetic, she suggests that it is those aspects
of repugnance that enables the separation and relegation of certain
customary actions from the underlying law. To that end she identifies
three contributing themes: the pre-independence desire of Europeans to
distinguish themselves from Papua New Guineans; fear of and fascination
with contamination; and the almost unique retention of the colonial-era
repugnancy clause. Demian then notes two important aspects of the
appearance of repugnance: a middle-class space-making for modernity and
the endeavour of PNG judges to differentiate themselves from Europeans.
She concludes that the consequence is that repugnancy can be invoked
when a customary-law practice is too shameful.
Demian, Melissa. 2015a.
Introduction: Internationalizing Custom and Localizing Law. Political and Legal Anthropology
Review 38(1): 3-8, http://onlinelibrary.wiley.com/doi/10.1111/plar.12083/pdf,
accessed 3 May 2015.
This is the introduction to a collection of papers
presented at a symposium organised by the author and described by her
as ‘an endeavour to re-evaluate and update what may at first blush
appear to be a thoroughly old-fashioned or folkloristic set of ideas
for anthropologists: the concept of custom’ (3). Acknowledging the
legal-anthropological transition from a quest for law-like practices in
unlawful societies to a post-decolonisation concern with the mutually
constitutive relationship between local customary law and official
forms of law, she nonetheless draws attention to a continuing
disconnect between custom in the formal legal system and in everyday
life. In parallel, she remarks on the turn from customary law as a
colonial imaginary to its integration into official institutions,
thereby providing ‘yet one more space in which to contest the
legitimacy of claims by measuring them against equally contested
domains of authenticity and autochthony’ (4). The balance of the
introduction is an outline of the papers included in the collection in
which Demian observes a common theme of interplay between difference
and distinction between legal and quasi-legal regimes. See also Demian
2015b.
Demian, Melissa. 2015b.
Dislocating Custom. Political
and Legal Anthropology Review 38(1): 91-107, http://onlinelibrary.wiley.com/doi/10.1111/plar.12088/pdf,
accessed 26 May 2015.
Characterising her approach as ‘an experiment with cartographic
metaphors of scale and location’ (91), Demian initially sets aside the
idea of Papua New Guinea’s law as haunted by colonialism to discuss the
relationship between custom and kastom,
noting that the nature of that relationship causes trouble for
anthropologists, jurists, and ordinary Papua New Guineans.
Anthropologists, she argues, have struggled with treating kastom
as a Melanesian version of culture; jurists have sought to establish
which of custom’s manifestations are simultaneously unique and
universal enough to be integrated into the underlying law; and ordinary
people, especially speakers of Tok Pisin and English, fail to
distinguish between the two. She herself distinguishes between kastom
as belonging to a place and custom as placeless, illustrating the
distinction by moments from law-students’ discussions of the concepts,
and claims that the category of custom is increasingly moving away from
that of kastom,
so that the levels of kastom
on the one hand and custom and law on the other have become
incommensurate, the former operating on a small scale and the latter on
a larger scale of experience, with consequences for the concepts of
legal pluralism and customary law. Employing a cartographic metaphor
and the notion of a ‘mix’ of kastom, custom, and law to examine those
levels and the concept of legal pluralism, Demian finds in the mix a
variously stimulating, efficacious, threatening, and pleasurable
interplay in which, from different perspectives, any one of the
elements can play background with the effect of foregrounding another.
Dinnen, Sinclair, Doug
Porter and Caroline Sage. 2010. Conflict
in Melanesia: Themes and Lessons. World Bank World
Development Report 2011 Background Paper, http://www-wds.worldbank.org/external/default/WDSContentServer/WDSP/IB/2011/05/30/000333037_20110530041921/Rendered/PDF/620250WP0Confl0BOX0361475B00PUBLIC0.pdf
, accessed 11 May 2015.
This ethnographically and historically informed case
study of four recent experiences of conflict in Melanesia examines
Bougainville and the Highlands in Papua New Guinea, the Solomon
Islands, and Vanuatu and identifies some common themes despite
diversity, geography, and different experiences of globalisation. Part
I provides a background survey of conflict before and during
colonisation as well as local, national, and transnational aspects of
contemporary conflicts and their management. The analytical Part II
discusses those events under three headings: recognition of conflict as
an inherent part of social change with positive and negative aspects;
the impact of local perceptions on regulation of and responses to
conflict; and the need for regulatory institutions above and below the
level of the state. The authors conclude that such conflicts must be
understood as responses to contemporary transformations of global
order, economies, and the nature of statehood and identity, both
collective and individual.
Eaton, Peter. 1983.
Customary Land Dispute Settlement: Should Lawyers Be Kept Out? Melanesian Law Journal
11: 47-50.
Eaton analyses the nature and causes of land disputes in
Papua New Guinea in order to ascertain the principles to be applied to
land-dispute settlement. Having described the general features of
customary land tenure prevailing at the time over 97 per cent of the
country, he goes on to emphasise that the system is not uniform,
varying particularly in the balance between collective and individual
rights, but in all cases forming the basis of social and economic
organisation. He identifies land disputes between individuals within
the group over inheritance or use-rights or arguments between different
groups over territorial rights and boundaries as short-term factors;
and population increase, expansion of the monetary economy, greater
mobility, and pleasure in fighting as longer-term ones. He also notes
that disputes seeming to be over land may involve a number of other
factors such as status, power, generational differences, and claims to
leadership. The balance of the article deals with the 1973 Commission
of Inquiry into Land Matters, the Land Dispute Settlement Act, and the
relationship of land courts to the judiciary, in the latter with
commentary on two cases between ‘clans’: The State v District Land Court,
Kimbe, ex parte Caspar Nuli and The State v Richard James Giddings.
On the question of legal representation he weighs dangers and benefits,
only noting that it is already a fait
accompli and advising ‘that many disputes stand a better
chance of being solved if they can be kept out of the courts’ (57).
Efi, Tui Atua Tupua
Tamasese
Ta’isi Tupuola Tufuga. 2009. Samoan Jurisprudence and the Samoan Land
and Titles Court: The Perspective of a Litigant. In Su’e Su’e Manogi - In Search of
Fragrance: Tui Atua Tupua Tamasese Ta’isi and the Samoan Indigenous
Reference, edited by T M Suaalii-Sauni et al, 153-172.
Apia: National University of Samoa.
Tui Atua, current head of state of Samoa and holder of one of
its four paramount titles, claims to know little about jurisprudence
and less about philosophy, disclaims any qualification as a judge,
jurist, or lawyer, and proceeds to bring both assertions into doubt in
his discussion of ways in which customary law might inform a
jurisprudence relating to the Land and Titles Court. In his discussion
of tulafono (law) he draws on four Samoan concepts: tua’oi (boundary),
tofa sa’ili
(wisdom or the search for it), faasinomaga
(personal designation), and pae
ma auli (mediation); and three reference points: the
theological for its theory of creation; the historical for an
understanding of tua’oi
and rights; and the practical for solutions to the land-court problems
of resistance to traditional judicial review, delays, and ‘lack of
judicial rigour reflected in its decision-making, i.e. in its
interpretation of Samoan custom in the past and the application of
Samoan custom in the present’ (167). He illustrates the nature of these
problems in four anonymised cases and proposes some ways forward. See
also Lealofi 2009.
Epstein, A L. 1970.
Procedure in the Study of Customary Law. Melanesian Law Journal
1(1): 51-57.
Addressing the best approaches to the study and teaching
of customary law in Papua New Guinea, Epstein emphasises the importance
of studying it in the context of disputes and their settlement. Having
supported this argument with examples from his African field work, he
turns to its possible application to a Papua New Guinea lacking
African-type courts but with the benefit of its own vernacular vehicles
for settlement of disputes, whatever reservations lawyers may have
about them. In summary, he advocates an emphasis on ‘the elucidation of
concepts and their underlying assumptions’ rather than ‘the more usual
form of recording or codification of customary law’ (56).
Epstein, A L. 1971.
Dispute Settlement among the Tolai. Oceania 41(3):
157-170, http://www.jstor.org/stable/pdf/40329935.pdf?acceptTC=true,
accessed 8 June 2015.
Returning to a focus on disputes and their resolution, Epstein
draws on earlier ethnologists to examine traditional settlement
procedures in the form of a varkurai
or village forum and observes that their continued satisfactory
operation at the time of his field work in Matupit village on an island
off Rabaul is demonstrated by the rarity of references to a formal
court. In the absence of broader Tolai terminological categories and
leaving aside land disputes in this case, he surveys disputes and their
resolution involving matrimonial issues, theft, debt, resulting
quarrels between close kin, and a miscellaneous category of breaches of
customary law or rules. Outlining and analysing a matrimonial dispute
to demonstrate the application of the traditional process, he concludes
that its principal aim is the achievement of a full airing of grievance
and reconciliation of the parties to the dispute. See also 1974b.
Epstein, A L (ed). 1974a.
Contention and Dispute:
Aspects of Law and Social Control in Melanesia. Canberra:
ANU Press.
This book assembles nine chapters based on papers presented to
the 1973 Waigani Seminar at the University of Papua New Guinea on Law and Development in Melanesia,
with a comprehensive introduction by the editor including analysis
across the material presented. The research on which the papers were
based covers a variety of processes of dispute settlement in the
D’Entrecasteaux Islands, New Britain, Western Highlands, and East
Sepik. See Chowning 1974, Counts & Counts 1974, Epstein 1974b,
Reay
1974, Sack 1974, Strathern A 1974, Strathern M 1974, Tuzin 1974, and
Young 1974.
Epstein, A L. 1974b.
Moots on Matupit. In Contention
and Dispute: Aspects of Law and Social Control in Melanesia,
edited by A L Epstein, 93-112. Canberra: ANU Press.
Based on fieldwork among the Tolai of the village of
Matupit on an island off Rabaul in Papua New Guinea in the 1960s, this
is an evaluation of the workings of the system of varkurai, the
village forum, as a continuing alternative to the official Court of
Native Affairs conducted by a kiap
or local administrative officer. On the evidence of two detailed case
studies of varkurai
proceedings, one of a land dispute, the other of a domestic dispute,
Epstein concludes that, while hearings in that forum are not always
successful, it ‘constitutes the one form of “due process” which the
Matupi acknowledge as their own’ (95). Furthermore, he suggests that
such success is dependent not on modifications of customary law but on
the presence of a skilled mediator and the preparedness of parties to
make concessions in the interests of reconciliation.
Evans, Daniel. 2010.
Historical Tensions at the Gold Ridge Mine, Solomon Islands. Pacific Economic Bulletin
25(3): 121-134, http://peb.anu.edu.au/pdf/PEB25_3_Evans.pdf,
accessed 11 May 2015.
This study uses documentary and interview materials to
investigate the history of tensions in the late 1990s around the Gold
Ridge mine site, its 2000 takeover by local Guadalcanal people, and the
expulsion of Malaitan workers and residents. Exploring the underlying
reasons for the takeover, Evans advances two rationales: the securing
of weapons and other materials to support the conflict as well as
ideological opposition to resource extraction, rather than greed.
Casting doubt on prospects for reconciliation, he suggests that
concerns about resource extraction continue on Guadalcanal because of
failure to address land-ownership issues and development outside
Honiara, the capital, and to introduce forgiveness legislation, as well
as government delay in the holding of a reconciliation ceremony at the
site of the mine resulting in the prospect of payback against the mine
because of selective incarceration of relatives of local people.
Evans, Daniel, Michael
Goddard, and Don Paterson. 2011. The Hybrid Courts of Melanesia: A
Comparative Analysis of Village Courts of Papua New Guinea, Island
Courts of Vanuatu and Local Courts of Solomon Islands. World Bank Justice and
Development Working Paper Series 13, http://siteresources.worldbank.org/INTJUSFORPOOR/Resources/HybridCourts.pdf,
accessed 7 May 2015.
This is a comparative survey of three systems of justice in
Melanesian countries with state legal systems originally introduced by
colonial governments but which, the authors argue, have developed
‘hybrid’ forms to address disputes among small-scale social groups less
or more formally in accordance with customary forms. They describe the
courts as lowest in the judicial hierarchy, filling the void between
official courts and local populations, and identify three common
traits: lay authority and customary application; limited jurisdictions;
and no formal rules of evidence. Following detailed descriptions of the
operations of the respective courts, the authors identify variety of
limitations and strengths in the areas of application of custom, gender
bias and favouritism, acting in excess of jurisdiction, enforcement,
training, co-option and rejection, and duplication of official courts.
Commenting on issues of oversight, resourcing and support, flexible and
simple legislation, and local ownership, they conclude that the hybrid
courts ‘provide a blueprint for accessible, quick, representative, and
community-owned justice in Melanesia’ (35).
Farran, Susan. 1997.
Custom
and Constitutionally Protected Fundamental Rights in the South Pacific
Region: The Approach of the Courts to Potential Conflicts. Journal of Pacific Studies
21: 103-122, http://www.usp.ac.fj/fileadmin/files/Institutes/jps/Farran.PDF,
accessed 1 June 2015.
Noting the attempts by some South Pacific countries to
give custom the force of law in the face of binaries such as tradition
and development, moral and civil, custom and law, Farran sets out to
examine the potential conflict between customary and constitutional
rights and court attempts to resolve it through specific cases.
Exploring the sources of such conflict, she identifies three
possibilities: double institutionalisation of custom as extra-legal and
legal; strengthening, elevating, and changing custom as a result of
codification by an external agency such as a constitution; recognition
in principle undermined by denial in practice as a result of lack of
sanction by an external state force. Locating the courts at the heart
of potential conflict, she proceeds to an examination of specific
cases. In the context of land issues she describes and analyses
decision-making in John
Noel v Obed Toto involving land ownership and usage in
Vanuatu, Chu Ling (John
v Bank of Western Samoa (No. 1) on Indigenous security,
and Fugui and Another v
Solmac Construction Company Ltd and Others
on compensation for wrongful deprivation of property in the Solomons.
In regard to public order and private ordering, she deals with the
Solomons case of R v
Loumia and Others involving a customary duty to kill and
with Italia Taamale and
Taamale Toelau v the Attorney General of Western Samoa
on a Land and Titles Court ordered banishment. Farran concludes ‘that
customary rights that survive as enforceable rights will be modified in
the process’ (120).
Farran, Sue. 2010. Law,
Land, Development and Narrative: A Case-Study from the South Pacific. International Journal of Law in
Context 6(1): 1-21, http://search.proquest.com/docview/209809584/fulltextPDF/6A708E778C894377PQ/1?accountid=14782,
accessed 5 June 2015.
Farran’s focus here is on Vanuatu and her thesis is that
narratives of land, and particularly those in support of land claims,
are significant elements in shaping and understanding the identity of
Indigenous people and relationships to land. First outlining the
historical, legal, and land-tenure background of the country as well as
the role of chiefs in informal resolution, she then examines the
narratives of recorded law cases dealing with land disputes adjudicated
by local, island, and customary courts. She explores evidence as
narrative, including origins and magic and sorcery; narrative as
evidence in cases of boundaries and genealogies, witness credibility, kastom,
and customary law; and narrative as record in converting oral
histories, setting precedents, translating, and ‘legalising’ language
and concepts. Farran asks whether changes in narrative signal survival
or demise for customary land rights and what those consequences might
mean. The reported cases on which she draws are Billy v Ameara, Malas v Thretham Construction Ltd,
Alanson v Malignman,
Sanhabat v Salemunu,
Rory v Rory,
Hiatong v Tavulai
Community, Houlon
v Edward, Manassah
v Koko, Awap
v Lapenmal, Tomoyan
v Shem, Kaising
v Kaites, Selangi
v Donna, Awop
v Lepenmal, and Mata
v Mata.
Farran, Sue. 2011.
Introduction. Pacific
Studies 34(2/3): 92-102, https://ojs.lib.byu.edu/spc/index.php/PacificStudies/article/view/30813/29272,
accessed 25 August 2015.
This short essay introduces a collection of articles based on
contributions to a panel on ‘Land, Laws and People in the Pacific’ at a
European Society for Oceanists conference on ‘Exchanging Knowledge in
Oceania’. It is intended as a contribution to information on land
matters and interdisciplinary perspectives on customary forms of land
tenure and dispute resolution. It includes extended commentaries on
Howard 2011, Pascht 2011, Guo 2011, Goddard 2011, and Leach 2011.
Filer, Colin. 2006.
Custom, Law and Ideology in Papua New Guinea. Asia Pacific Journal of
Anthropology 7(1): 65-84, http://www.tandfonline.com/doi/pdf/10.1080/14442210600554499,
accessed 6 May 2015.
Filer’s complex and sophisticated ‘contribution to
debates about the relationship between legal and anthropological
approaches to the concept of custom or customary law as the property of
native or indigenous peoples’ (66), has two main elements: a
consideration of the non-nationalist ideological flavour of concepts of
law and custom at certain moments in the history of Papua New Guinea;
and the need to take account of an ideology of land ownership in order
to achieve an ethnographic understanding of the relationship between
custom and law. He suggests that that relationship changed at the time
of Independence, with the political replacement of ‘custom’ and ‘law’
by Tok Pisin ‘kastom’
and ‘lo’,
and also by their displacement, as a result of the growth of extractive
industry, by a secondary opposition of land/resource law and customary
land/resource ownership. Furthermore, he argues that the relationship
‘has to be understood through an exploration of the metaphorical use of
the Tok Pisin word rot
(‘road’), which seems to stand for something between a “cult” and
“ideology”, as well as the political transformation resulting from
‘large-scale resource development’ (65).
Filoiali’i, La’auli A and
Lyle Knowles. 1983. The Ifoga: The Samoan Practice of Seeking
Forgiveness for Criminal Behaviour. Oceania 53(4):
384-388, http://www.jstor.org/stable/40330698?seq=1#page_scan_tab_contents,
accessed 18 May 2015.
This description of the performance of ifoga
in Samoa and the United States defines the action as ‘the traditional
practice of seeking forgiveness and rendering a formal apology
resulting from a hostile event involving physical injury and/or the
verbal degrading of a family reputation’ (384). The parties involved in
an ifoga
may be individuals,
families, villages, or even islands and it is performed by the
offending family or village. The authors outline Samoan social
structure and the role of the fono
or village council therein and detail the conduct of ifoga
between an individual/family and a village council, between families,
between two villages, between two islands, and between families in
urban USA. They trace the typical events as follows: the group seeking
forgiveness, led by its matai
(chief) sits outside the house of the offended group with their heads
and bodies covered by fine mats; they remain, sometimes having to
return the following day, until called inside to be heard; discussion
and formal apology ensues, followed by a process of forgiveness; upon
reconciliation, the offending group will usually present gifts of food.
See also Krämer 1995, MacPherson & MacPherson 2005, and Mead
1969.
Findlay, Mark, 1997.
Crime, Community Penalty and Integration with Legal Formalism in the
South Pacific. Journal
of Pacific Studies 21: 145-160, http://www.usp.ac.fj/fileadmin/files/Institutes/jps/findlay.PDF,
accessed 1 June 2015.
Characterised by its author as an exploration of ‘the
adaptation of legal formalism in contexts of resilient and resonant
custom’ (145), this article examines claims by institutional legality
to predominance over culture, even when it has been modified by custom
and particularly in the context of penalty, which he regards as a
bridge between different systems of sanction. In response to the
limitations of existing modes of reconciliation of custom to introduced
law, he attributes the colonising effect of legal formalism to
distinctions between ‘law’ and ‘custom’, identification of ‘customary
law’, designation of what is to be integrated, rejected, or denied by
legal formalism, and he identifies ideological, functional, and
structural elements in the latter. Observing the existence of a number
of ‘paradoxes’ between customary and introduced, Findlay discusses
those of liability in the Solomons Loumia
v DPP, justification and excuse in the Fijian Sosiveta and Others v R,
and extenuation and mitigation also in Fiji in R v WaiseaNaburogo and Others
and R v Vodu Vuli.
Moving to the reconstruction of penalty by custom within legality, he
surveys banishment in Italia
Taamale and Taamale Toelau v Attorney General of Western Samoa
and reconciliation in Fijian R
v Lati, and relates the continuing interaction between
custom and formalism to the resilience of customary penalties.
Fitzpatrick, Daniel.
2008. Mediating Land Conflict in East Timor. In Making Land Work,
Vol 2, 175-198. Canberra: Australian Agency for International
Development, http://dfat.gov.au/about-us/publications/Pages/making-land-work.aspx,
accessed 18 June 2015.
Assessing the effectiveness of the mediation model
introduced to East Timor by the UN in 2000 to deal with conflicts over
customary land, later consolidated in that country’s Land and Property
Directorate, Fitzpatrick judges it as having been successful in a
number of potentially violent disputes, particularly in comparison with
the record of its court system. Outlining the setting and the nature of
the mediation process, he reviews its successes and limitations in four
cases in the city of Maliana and explores the possibilities for its
transfer, with appropriate adaptations, to other Pacific contexts.
Forrest, Craig and
Jennifer Corrin. 2013. Legal Pluralism in the Pacific: Solomon Island’s
[sic] World War II Heritage. International
Journal of Cultural Property 20(1): 1-21, http://journals.cambridge.org/action/displayIssue?decade=2010&jid=JCP&volumeId=20&issueId=01&iid=8901626,
accessed 7 December 2015.
This is an extended examination of an application for judicial
review of a decision by the Solomon Islands Minister of Culture and
Tourism to revoke a licence issued under the Protection of Wrecks and
War Relics Act 1980. The case, Alpine
Concrete Constructions Pty Ltd v Attorney General,
required the High Court to examine the law on the recovery and export
of World War II relics, raising issues about the rights of various
stakeholders and the question of the status of the relics as cultural
heritage and illustrating the difficulties consequent upon unclear
boundaries between different legal systems within a legally pluralistic
framework. The authors discuss that framework in the Solomons,
summarise the dispute, outline the provisions of the act and the
court’s decision, and set out the existing rules governing land
ownership with reference to Kofana
v Aute’e, Allardyce
v Laore, and Combined
Fera Group v The Attorney General.
Continuing to the question of the ownership of relics and the nature of
cultural heritage values, the authors conclude, given the uncertainties
involved and the relationship between customary law and legislation,
that ‘providing a rigorous protective regime for cultural heritage is
problematic …. Especially so when foreign norms are introduced’ (16).
Forsyth, Miranda. 2004.
Beyond Case Law: Kastom and Courts in Vanuatu. Victoria University of
Wellington Law Review 35: 427-446, http://www.upf.pf/IMG/pdf/09_Forsyth.pdf,
accessed 15 May 2015.
This
article addresses the general failure to develop a Melanesian
jurisprudence, considers the limitations of the reasons given for lack
of progress in the integration of customary law and the official legal
system in Vanuatu, drawing on Waiwo
v Waiwo and Banga
and Public Prosecutor v Gideon,
and argues that such integration needs to be a two-way process. As well
as critiquing the limitations of previous research efforts, Forsyth
identifies six categories of reasons given for the lack of integration,
the mixing of ‘oil and water’: the Constitution, lack of homogeneity of
kastom, common-law-tradition training, lack of clarity in application
of kastom rules, fundamental differences in the natures of common law
and kastom, and different views of the respective players.
Acknowledging some validity in them, she identifies two limitations: a
failure to go outside case law and legislation because of the paucity
of empirical research and the lack of investigation of the changes
needed in each system to facilitate integration. She concludes with a
plea for investigation ‘on the ground’ and a proposal for an empirical
research project.
Forsyth, Miranda. 2006.
Sorcery and the Criminal Law in Vanuatu. Lawasia 1: 1-27, http://heinonline.org/HOL/Print?collection=journals&handle=hein.journals/lawasiaj7&id=7&print=section§ion=5&ext=.pdf,
accessed 20 May 2015.
Forsyth here examines the problems involved in
incorporating customary norms into Melanesian criminal law with a focus
on sorcery in Vanuatu. She explores the background to contemporary
beliefs and practices and how behaviour generated by them is dealt with
in the customary legal system and in the state systems of courts and
legislation, with particular reference to Malsoklai v Public Prosecutor,
the Sorcery Act 1971,
and the Penal Code.
In relation to Vanuatu and the wider Melanesian context of acceptance
of mitigation, she reviews Public
Prosecutor v Tupun and Public Prosecutor v Kuvu Noel
and Others in Vanuatu, R v Sisiolo in the
Solomons, State v
Wakilau in Fiji, and Secretary
for Law v Ulao Amantasi
in PNG. She concludes that the issue of the relationship between
customary and state legal systems cannot be resolved by the simple
transfer of norms from one to the other but that it is possible for the
state system to accommodate such social realities as belief in sorcery
with minor legislative but major mind-set changes.
Forsyth, Miranda. 2009. A Bird That Flies With Two
Wings: Kastom and State Justice Systems in Vanuatu.
Canberra: ANU Press, http://press.anu.edu.au?p=49351,
accessed 6 May 2015.
Following on from the approach proposed in Forsyth 2004, this book is
based on five years of fieldwork in both kastom
and state justice systems, following a year spent as a volunteer
prosecutor in the Public Prosecutor’s Office in Vanuatu, and
investigates the problems and possibilities of plural legal orders in
that country. Forsyth’s approach is based on the idea that such a
survey must be based on all legal orders dealing with conflict because
the majority of disputes are dealt with in kastom;
strengthening the state system without taking account of kastom
would undermine the latter and weaken conflict management in general,
and legitimation of the state system would be enhanced by a supportive
relationship between the two systems, an outcome she sees as achievable
given some changes within and adaptations between them. Beginning with
a general orientation to contemporary Vanuatu, Forsyth goes on to
establish her theoretical framework, survey the history of ethnography
in Vanuatu, explore the current workings of both kastom
and state systems, discuss problems in the relationship between the
two, develop a typology of possible relationships, and uses that to
propose a new method of doing legal pluralism.
Forsyth, Miranda. 2013.
Do You Want it Gift Wrapped?: Protecting Traditional Knowledge in the
Pacific Island Countries. In Indigenous
Peoples’ Innovation: Intellectual Properties Pathways to Development,
edited by Peter Drahos and Susy Frankel, 189-214. Canberra: ANU Press, http://press.anu.edu.au/wp-content/uploads/2012/08/ch09.pdf,
accessed 21 May 2015.
Drawing on the traditional knowledge in ‘songs, stories,
oral traditions, visual and performing arts, ritual and cultural
practices, and architectural forms’ rather than biological knowledge
(190), Forsyth argues for a pluralistic approach to its protection
rather than the existing ill-founded, shallow, and commercially
oriented approach common in the Pacific. Identifying a number of
problems likely to result from a continuation of that state-based
approach, she proposes a deeper investigation of an already
sophisticated customary system to address the challenges traditional
knowledge faces from globalisation.
Forsyth, Miranda. 2015. A
Pluralist Response to the Regulation of Sorcery and Witchcraft in
Melanesia. In Talking
it Through: Responses to Sorcery and Witchcraft Beliefs and Practices
in Melanesia, edited by Miranda Forsyth and Richard Eves,
213-239, http://press.anu.edu.au/wp-content/uploads/2015/05/12.-A-Pluralist-Response-to-the-Regulation-of-Sorcery-and-Witchcraft-in-Melanesia.pdf,
accessed 21 May 2015.
Responding to a variety of questions about sorcery and
witchcraft in the criminal justice systems of Melanesia and,
particularly, Papua New Guinea, in the light of historical and
contemporary considerations, Forsyth proposes to move beyond the role
of the state to view them through two broader paradigms: a pluralist
one and a responsive regulatory one involving a number of
non-government bodies as well as government departments. She reviews
the role of the criminal justice system, the operation of the Sorcery Act 1971,
the criminalisation and punishment of sorcery and witchcraft practices
and responses to them, accusations thereof, and sorcery or witchcraft
beliefs as a defence. Stepping back from those issues to consider the
possibility of a new and unique Melanesian jurisprudence, she raises
further questions about the incorporation of custom and human rights,
the role of regulatory systems in relation to effective local
mechanisms, and the appropriateness of western legal rationalism to
Melanesian contexts.
Gilson, R P. 1955. The
Background of New Zealand’s Early Land Policy in Rarotonga. Journal of the Polynesian Society
64(3): 267-280, http://www.jstor.org/stable/pdf/20703499.pdf?acceptTC=true,
accessed 26 May 2015.
An ethnologically based historical account of the social
organisation of Rarotonga in the Cook Islands and an outline of the
early years of New Zealand’s land policy in its new colony around the
turn of the twentieth century. Gilson mounts a sharp and closely argued
critique of the ‘artificial’ ethnological account of Rarotongan custom
conceived by Walter Edward Gudgeon, the first New Zealand administrator
in the Cook Islands, and the land-tenure provisions and land-court
decisions he based on it. See also Baltaxe 1975, Campbell 2002,
Crocombe 1964, and Pascht 2011.
Glasse, Robert M. 1959.
Revenge and Redress among the Huli: A Preliminary Account. Mankind 5(7):
273-289.
Glasse proposes to demonstrate ‘how social control is
achieved in a New Guinea society that has no system of centralized
authority’ by examining the operations of ‘two institutional
complexes’, ‘revenge’ and ‘redress’, among the Huli of the Southern
Highlands (273). His thesis is that, while they form temporary
alliances to exact vengeance, those alliances are unstable because of
hostilities produced by the system of redress. He supports his argument
with a geographic backgrounder, a comparison of three ‘social
personalities’ at different levels of wealth, and a discussion of the
way in which social order emerges from the functional inter-relation of
the two complexes. In concluding, he observes that this form of social
control is self-regulating or self-adjusting, needing no centralised,
systematic system of political authority.
Goddard, Michael. 1992.
Of Handcuffs and Foodbaskets: Theory and Practice in Papua New Guinea’s
Village Courts. Research
in Melanesia 16: 79-94.
Goddard revisits long-standing discussions about the
judicial efficacy and grassroots efficiency of Papua New Guinea’s
village-court system and observes that the original idealism has
largely given way to practical considerations. First setting out an
expansive historical background to the courts he goes on to a lengthy
discussion of the relationship between law and custom in their
operation and adds some recent observations. He suggests that the
courts are not fulfilling their original function because of their
perceived status at the bottom of the judicial hierarchy, because
villagers perceive them as other than customary, and because of the
impossibility of integrating law and custom within a framework of
theoretical, if selective, support for custom but a practical inability
to codify it. He concludes that it is likely that the law and custom
problem will persist and that the effect of the continuing operation of
the village courts will be increasingly to extend introduced law into
the villages.
Goddard, Michael. 1996.
The Snake Bone Case: Law, Custom and Justice in a Papua New Guinea
Village Court. Oceania
67(1): 50-63, http://www.jstor.org/stable/pdf/40331519.pdf?acceptTC=true&jpdConfirm=true,
accessed 21 May 2015.
In relation to village courts, Goddard critiques
academic and journalistic perpetuation of the idea of a binary
relationship, whether antagonistic or articulatory, between law and
custom, an idea he sees as rooted in colonial administrative attitudes
and later sustained by the anti-colonial defence of custom. He
identifies two schools of thought on the subject of the courts: one,
variously described as legal centralism or structural pluralism, sees a
steady drift towards legalism in their operations; the other, described
as interactive pluralism, points to the creative and flexible use of
the courts by local people. In closely examining a case of attempted
sorcery in a Port Moresby village court, he not only extends his
criticism of the binary approach but also calls into question the
validity of the very notion of custom in the context of contemporary
Papua New Guinea justice. While generally endorsing the interactive
model of the village-court system, he casts doubt on the suggestion
that their flexibility either pursues the aims of customary law or will
further its practice.
Goddard, Michael. 1998.
Off
the Record: Village Court Praxis and the Politics of Settlement Life in
Port Moresby, Papua New Guinea. Canberra
Anthropology 21(1): 41-62,
http://www.tandfonline.com/doi/pdf/10.1080/03149099809508373, accessed
19 June 2015.
Returning to the subject matter of the previous article,
Goddard turns to one of the three urban courts in which he has
conducted long-term fieldwork to examine its records and try to
discover the reasons for the absence of references to sorcery within
them in a district known for such practices. Taking account of the
demography and reputation of the area and, in particular, its squatter
settlements, he observes that, while the village court is viewed
favourably by local people, awareness of its links to other
institutions makes them vulnerable to public exposure, hence the
avoidance of mention of sorcery in the records, not ‘a methodically
planned subversion … but a tacit, historically conditioned awareness of
the possibility of disruptive intrusion by agents of urban authority’
(57). He concludes by making the ‘old-fashioned anthropological point’
that the court system is a dynamic institution with a complex
articulation of introduced law and ‘fluid, changing “customs”’,
informed by much more than those two elements, and embedded in the
social life of communities (57-58).
Goddard, Michael. 2000.
Three Urban Village Courts in Papua New Guinea: Some Comparative
Observations. In Reflections
on Violence in Melanesia, edited by Sinclair Dinnen and
Allison Ley, 241-253. Canberra: Hawkins Press and Asia Pacific Press.
Reviewing the complex of influences on the nature and
operations of the village courts in dispute settlement since
Independence in Papua New Guinea, Goddard suggests that they have
neither replaced nor absorbed autochthonous procedures or the fora in
which they take place, coming to occupy a place between them and the
local and district courts. Comparing the history and operations of the
three village courts in which he has conducted long-term fieldwork, he
acknowledges their differences but concludes that they are neither
customary nor neo-customary and, given their placement within the legal
system, not strictly mediators between customary mechanisms and legal
courts. He concludes that, while they have a strong future, official
demands on them mean they will become embedded at the foot of the state
legal system.
Goddard, Michael. 2005.
Research and Rhetoric on Women in Papua New Guinea’s Village Courts. Oceania 75(3):
247-267, http://www.jstor.org/stable/pdf/40332083.pdf?acceptTC=true&jpdConfirm=true,
accessed 5 June 2015.
Interrogating recent and popular claims that women are
discriminated against in the name of ‘custom’ in male-dominated village
courts by way of review of the literature and his own research in three
village courts in Port Moresby, Goddard argues not only that the
rhetoric is unsupported by evidence but that it ignores the access to
justice they offer to grassroots women and denies their agency by
‘portraying them as passive victims, rather than ‘confident and
reasonably successful disputants’ (262). Finding the condemnatory
literature hard to classify in terms of legal centralism, legal
pluralism, or conservative legalism, he suggests that it is driven by
an a priori
position unsupported by evidence and is in danger of vilifying a
community resource women find increasingly useful.
Goddard, Michael. 2009. Substantial Justice: An
Anthropology of Village Courts in Papua New Guinea. New
York: Berghahn Books.
This expansion and extension of Goddard’s earlier
approaches to village courts includes some material from Goddard 1992,
1996, and 2005. The fieldwork for this book was conducted from 1994
onwards at three urban village courts in Port Moresby, the capital of
Papua New Guinea, two of them in suburban settlements and the other in
a village on the edge of the town. Following a history of colonial law
in the country, he examines the introduction and administration of
village courts and the continuing influence of colonialism; the
on-the-ground problems encountered by court officers in the context of
the courts’ problematic positioning with regard to state law and
custom; the distinctive characteristics of the three fieldwork courts;
the politics of being a village-court official; each of the three
individual courts in action using transcripts of cases; and the tension
between dominant group dynamics of dispute settlement and the formal
requirement to treat disputing parties as individuals with rights.
Goddard, Michael. 2010a. Justice Delivered Locally:
Solomon Islands, World Bank J4P Literature Review.
Washington: World Bank.
This literature review of material on the delivery of justice
and dispute resolution at the community level in the Solomon Islands
examines historical mechanisms and their effectiveness, contemporary
mechanisms for dealing with civil, criminal, and customary-land issues,
and the historical roles of church and NGO services. The review is
divided into three sections, each with a useful concluding summary:
first-contact to the Pacific war covering early documentation,
anthropological research, local-level reforms, and the effects of
Christianity; post-war period to Independence covering local political
movements, chiefs and kastom, local governance and kastom,
and the influence of Christianity; and Independence to the present
covering pre-RAMSI literature on local courts and custom, local courts
and land issues, Christianity, kastom,
and conflict, women’s groups and NGOs, the post-colonial Westminster
system, post-RAMSI literature, the rule of law and negotiation of kastom,
non-state agency, and local courts and land. Characteristically
rejecting a dichotomous attitude to custom and state law, Goddard
concludes that a ‘hybrid court system at the local level, supported by
existing (and clearly workable) church resources and the newly emergent
local women’s organizations, presents itself as a potentially valuable
alternative to previous attempts to maintain legal and customary forums
as alternative justice-delivery resources’ (29).
Goddard, Michael. 2010b.
The Age of Steam: Constructed Identity and Recalcitrant Youth in a
Papua New Guinea Village. In A
Kind of Mending: Restorative Justice in the Pacific Islands,
edited by Sinclair Dinnen, Anita Jowitt, and Tess Newton Cain, 45-72.
Canberra: Pandanus Books, http://www.jstor.org/stable/pdf/j.ctt24hbc4.9?acceptTC=true&jpdConfirm=true,
accessed 15 June 2015.
Warning of the need for caution in approaching matters of
tradition and cultural meaning because of their equivocal natures, and
all the more so in the case of the ‘invention’ of tradition, Goddard
turns to one of the peri-urban villages in which he has done long-term
field work to ‘contextualise a judicial process which might be glossed
as restorative in issues of communal identity, the interpretation of
tradition and the negotiation of modern sociality’ (45). In particular,
he argues that restorative justice must be seen in its social context
where it is subject to cultural contestation and refashioning,
illustrating the argument by analysis of attempts by the village court
to control illicit-alcohol offences within a period characterised by
contradictions between the village’s self-perception as
tradition-oriented and its proximity to the city of Port Moresby.
Goddard, Michael. 2011.
Bramell’s Rules: Custom and Law in Contemporary Land Disputes among the
Motu-Koita of Papua New Guinea. Pacific
Studies 34(2/3): 323-349, https://ojs.lib.byu.edu/spc/index.php/PacificStudies/article/view/30823/29282,
accessed 15 June 2015.
Goddard observes that the introduction of official
‘land-tenure’ systems based on colonial understandings of ‘Native Land
Custom’ has resulted in the appearance of two sets of ‘custom’ in the
settlement of land disputes by peri-urban villagers: informal
procedures not involving the land court and the official traditional
land custom it has adopted. Returning to the general area of his
fieldwork and one of its villages, he discusses in this paper ‘the
effects on postcolonial intragroup land disputes and conceptions of
descent principles when Motu-Koita have recourse through the courts to
a colonial-era representation of their customary attitudes to land
rights’ (323). Using the example of one particular ownership dispute
between two village lineages, he demonstrates the ways in which
paradoxes arise from the rigidity of the application of official
‘custom’ in court proceedings.
Goddard, Michael and
Leisande Otto. 2013. Hybrid
Justice in Vanuatu: The Island Courts, World Bank Justice
and Development Working Paper Series 22, http://www-wds.worldbank.org/external/default/WDSContentServer/WDSP/IB/2013/08/12/000333037_20130812150614/Rendered/PDF/801920NWP0J0D00Box0379802B00PUBLIC0.pdf,
accessed 11 May 2015.
In this working paper, the authors survey the island
courts of Vanuatu in Efate, Santo, Malekula, Epi, and Tanna, with a
quantitative and qualitative study of pluralism, kastom,
and chieftancy; community strategies for addressing disputes; the
history, jurisdiction, procedures, caseloads, and operations of the
courts, supported by a tabular appendix of the cases heard in each
court. They conclude that the courts are not performing as well as they
might but have an important role to play given better resources,
support, and sensitivity to kastom.
They suggest that the current dichotomy between win/lose court outcomes
and the flexibility of village-based approaches will need to be
overcome for the courts to become more amenable and ‘not seen as a
cut-down version of magistrate’s courts’ (37).
Goodale, Mark Ryan. 1998.
Leopold Pospisil: A Critical Reappraisal. Journal of Legal Pluralism and
Unofficial Law 30(40): 123-149, http://www.tandfonline.com/doi/pdf/10.1080/07329113.1998.10756500,
accessed 6 May 2015.
Identifying a current reduction of attention to the output of
major legal anthropologist Leopold Pospisil to his work on the theory
of legal levels, Goodale sets out to explore this reduction in the
light of recent socio-legal studies. Noting that aspects of Pospisil’s
work ‘miss the mark’ and that his style of presentation is ‘troubling’,
he emphasises that his analysis of an article two major books,
including 1958a, is not intended as a tribute or a case for a
renaissance but an attempt ‘to draw out some of the true complexity in
the work of a major figure in socio-legal studies in the second half of
this century’ (125). Despite his own criticisms, particularly of
structuralism and empiricism or ‘scientism’, and support for other
critics, Goodale concludes that there are six facets of the work that
remain current: insistence on wider relevance; legal levels; the
relativity of law; the importance of empirical research; legal language
as social code; and analysis of socially constituted legal meanings.
Pospisil’s response is in Pospisil 2001.
Gordon, Robert J and
Mervyn J Meggitt. 1985. Law
and Order in the New Guinea Highlands. Hanover: University
Press of New England.
A comprehensive and closely argued ethnographic analysis of the
then-much-publicised 1980s ‘breakdown of law and order’ in Enga
Province in the Highlands of Papua New Guinea together with a strong
critique of ‘lawyerly’ approaches to the question. The authors seek to
address three inter-related paradoxes that appear in representations of
the conflicts: that Enga dislike war because of its deleterious effects
but war occurs; that only a few administration officials maintain law
and order in colonial days while, post-independence, a much greater
number cannot; and that Enga agree that the cause of the resurgence of
violence is a ‘soft’ government when it has actually increased the size
of the police force and the severity of penalties. Successive chapters
examine official and Enga perspectives of law and order; the decline of
kiap (field
officer) justice;
the rise of specialist magistrates and ‘legal formalists’ (15);
increasing Enga participation in elective political processes; a
reinterpretation of conventional academic wisdom on rural violence; the
‘customary law’ approach to dealing with law and order and its lack of
viable solutions; and the growth and decline of village courts. The
authors argue that the latter then-neglected and disparaged option has
the greatest potential for dealing with law and order. See Zorn 1990b.
Grijp, Paul van der.
1993. After the Vanilla Harvest: Stains in the Tongan Land Tenure
System. Journal of the
Polynesian Society 102(3): 233-254, http://www.jstor.org/stable/pdf/20706516.pdf?acceptTC=true&jpdConfirm=true,
accessed 25 May 2015.
Lamenting the normative character of most existing work on land
law and land use in Tonga, van der Grijp presents a detailed case study
of land inheritance within a kin group on the island of Vava’u. He
chooses this study as indicative of the Tonga-wide transition from
slash-and-burn to intensive agriculture, from self-sufficiency and gift
exchange to monetised commercial production, and from an individual
place in society to wage labour. The study comprises a description of
the village in question, discussion of property and land-tenure
legislation, a specific example of genealogical inheritance with a
demonstration of the recent phenomenon of land shortage, and
consideration of the impact of the introduction of money. Van der Grijp
concludes that the socio-economic situation ‘is incomprehensible and
inexplicable unless explicit attention is paid to the way in which
modes of production and modes of thinking are combined’ (248).
Guo, Pei-yi. 2011. Law as
Discourse: Land Disputes and the Changing Imagination of Relations
Among the Langalanga, Solomon Islands. Pacific Studies
34(2/3): 223-249, https://ojs.lib.byu.edu/spc/index.php/PacificStudies/article/view/30819/29278,
accessed 5 June 2015.
This paper investigates the ways in which the people of
the Langalanga Lagoon on Malaita in the Solomon Islands incorporate
legal ideas, language, and framework in their land disputes and
everyday lives. Guo analyses changes in the ways in which the imagining
of social relations has been changed by the post-Independence
legalisation of land, even in the ways in which genealogy is recited
and represented, and the movement towards stronger preference for
unilineal rules of inheritance. Drawing on fieldwork at Seagrass
Island, he traces the transformation of law from a set of rules to a
genre of discourse in the course of land disputes and proposes the
study of ‘legalscape’ as a ‘potential way to understand the
entanglement of law and culture in contemporary Oceania’ (245).
Hatakana, Sachiko. 1973.
Conflict of Laws in a New Guinea Highlands Society. Man (New Series) 8:
59-73, http://www.jstor.org/stable/pdf/2800610.pdf?acceptTC=true&jpdConfirm=true,
accessed 22 June 2015.
Examining the conflict between introduced and customary law
among the Sinasina of Chimbu in the Highlands of Papua New Guinea in
the 1960s, Hatakana characterises the community as lacking the concepts
and terminology of law as usually understood but recognising the
functional concept in a set of binding obligations involving rights and
duties. Acknowledging customary law, informal court hearings, and
compensation negotiations as avenues of dispute settlement, he sets out
the changing roles therein of customary arbitrators, introduced village
officials, informal courts, and local courts, the work they perform in
a changing society, and their patterns of variation by area within the
district. Observing limitations in the effectiveness of the imposed
judicial system and according considerable importance and potential to
the unofficial courts, he sees the establishment of local courts and
magistrates as assisting the transition to a more stable society and
the adoption of a unified legal system.
Hickson, Letitia. 1975.
The I Soro:
Ritual Apology and the Avoidance of Punishment in Fijian Dispute
Settlement. Unpublished Harvard University Anthropology PhD Thesis.
Hickson’s investigation of the role and operation of the reconciliation
ritual of i soro
was conducted in one village on Viti Levu and another on Vanua Levu in
Fiji. Describing the village environment and the structure of its
interpersonal relationships, she goes on to examine the kinds of
sanctions to which i
soro is
a frequent alternative, the way in which its confessional nature
enables an offender to escape punishment, and Fijian and theoretical
material on individual confession. Taking as her hypothesis that such
customs are embodied in a hierarchical authority structure, she
concludes that her examination of i soro indicates a ‘very close
relationship between dispute settlement and the dominant social and
psychological patterns in a society’ (202). Within the text and in an
appendix, Hickson provides detailed descriptions of 18 cases of resort
to i soro. See also Arno 1974 and 1976, Koch et al 1977, Merry 2006,
and Toro 1973.
Hogbin, H I (ed). 1934. Law and Order in Polynesia: A
Study of Primitive Legal Institutions. London:
Christophers.
Cataloguing successive contributions to the
centuries-old question of the foundations of social order, and settling
on Malinowski’s concept of reciprocal social relationships, Hogbin
identifies the influences to be studied in determining those
foundations: education, mutual dependence and reciprocity, sanctions
for conformity to custom, and the force of tradition. Locating the
legal system and punishment within the whole complex of social
organisation, belief, and ceremony in Ontong Java and in Tonga,
Hawai’i, and Samoa, he concludes that, rather than depending on a
single foundation, the body of binding social obligations within those
societies is much wider than the prohibitions of criminal law and
includes reciprocity, educational influence, respect for authority,
social approval and disapproval, and religious beliefs and
performances.
Hogbin, H I. 1944. Native
Councils and Native Courts in Solomon Islands. Oceania 14 (4):
257–83, http://www.jstor.org/stable/40328032?seq=1#page_scan_tab_contents,
accessed 15 June 2015.
Returning to the site of his 1930s fieldwork in North
Malaita in the Solomon Islands, Hogbin surveys recent administrative
changes and reactions to them against a background of law and order in
pre-colonial times, from 1910 to 1940, and at the time of his return,
including observations of the operations of government-introduced
councils, courts, and headmen. Identifying indifference on the part of
‘heathens’ and resentment on the part of Christians at the attempt at
recognition of customary leaders but general acceptance of the Native
Court, except by missionaries, he recommends improvement in the
abilities and resourcing of headmen and removal of mission influence on
courts and schools as fundamental to the success of the reforms.
Howard, Alan. 2011. Land
Issues on Rotuma. Pacific
Studies 34(2/3): 157-174, https://ojs.lib.byu.edu/spc/index.php/PacificStudies/article/view/30816/29275,
accessed 15 June 2015.
Looking back on his fieldwork in Rotuma at the time of
rebellion against the Fijian colonial government’s replacement of a
bilineal land-transmission system by the Fijian model of male-line
inheritance, Howard reviews historical land-tenure systems in relation
to the kinship model, sets out the seven concepts basic to land rights,
and identifies the origins of the new provisions in a long-standing
concern about boundary disputes. Reporting to the government on land
issues on the basis of his research at the time, he highlights the
effectiveness of the bilineal system in redistributing land when
necessary, particularly in the face of increasing mobility and finds
that most land disputes were in fact satisfactorily settled in
customary ways. He observes that, while the new legislation remains on
the books to the time of writing, it was never enforced, land remains
unsurveyed, and custom continues to obtain. In terms of recent change
to the value of land, Howard identifies the causes as changes in the
nature of housing, tourism prospects, and dramatic changes to the
island’s isolation resulting in an increasing tension between adherence
to the bilineal system and the heightened investment of current
landowners.
Ivoro, John. 2010.
Conflict Resolution in a Multi-Cultural Urban Setting in Papua New
Guinea. In A Kind of
Mending: Restorative Justice in the Pacific Islands,
edited by Sinclair Dinnen, Anita Jowitt, and Tess Newton Cain, 109-113.
Canberra: Pandanus Books, http://www.jstor.org/stable/pdf/j.ctt24hbc4.14?&acceptTC=true&jpdConfirm=true,
accessed 15 June 2015.
Ivoro, a Papua New Guinean trainer in a
conflict-resolution programme, recounts the introduction of resolution
techniques to deal with uncertainty and insecurity resulting from crime
and violence in the multi-ethnic Saraga Settlement in Port Moresby, the
conduct and consequences of mediation sessions, and relationships with
local firms, police, and churches. He concludes with a short case study
of the mediation of a dispute over a brideprice arrangement.
Jolly, Margaret. 1992.
Custom and the Way of the Land: Past and Present in Vanuatu and Fiji. Oceania 62(4):
330-354, http://www.jstor.org/stable/pdf/40332509.pdf?acceptTC=true,
accessed 5 June 2015.
Comparing Vanuatu’s kastom
(custom or tradition) with Fiji’s superficially similar vakavanua
(way of the land), Jolly argues that they are, in fact, marked by
different articulations of past and present, the first predicated on
rupture and revival and the second on continuity of past and present.
Identifying the different attitudes to tradition underlying the
divergence in the terms, she explores in considerable detail the ways
in which those differences contributed to colonial land policies, the
extent to which customary land tenure was acknowledged and codified in
Vanuatu and Fiji, and the impact of the two colonial histories, in
particular of the respective courts, on present meanings of kastom and vakavanua.
In some final thoughts, she considers linguistic aspects of the
divergence and possible effects of the two different processes of
decolonisation.
Keesing, Roger and Peter
Corris. 1980. Lightning
Meets the West Wind: The Malaita Massacre. Oxford:
Melbourne University Press.
Keesing and Corris’s ethnohistorical account of the 1927
‘Malaita massacre’ is bookended by three introductory chapters on the
culture and society of the Kwaio of Malaita in the Solomon Islands up
to the 1920s and a ‘Colonial Justice’ chapter. The latter, based on
interviews with descendants and one survivor, archives, and
journalistic sources, recounts the events of the pre-trial
investigation and trial, described by the authors as ‘in some ways
charades’ (185), and the continuing post-trial detentions from both
Kwaio and administration points of view.
Koch, Klaus Friedrich.
1967.
Conflict and Its Management among the Jalé People of West New Guinea. 2
vols. Unpublished University of California at Berkeley PhD Thesis.
In this thesis, Koch sets out the fieldwork results and
consequent provisional conclusions upon which Koch 1974 is based and
from which it is extended. His description and analysis of Indigenous
conflict management in a horticultural society not yet affected by
foreign-government control seeks to remedy the absence in
anthropological literature ‘of studies dealing with processes of
dispute settlement in societies without formal legal institutions like
courts and offices whose incumbants [sic] have a delegated juridical
authority’ (1: 20). The first part is an ethnography of Jalé society,
economy, and the primary institutions of marriage and initiation. The
second part identifies four action patterns in conflict, oral dispute,
fighting, warfare, and avoidance, and discusses them in relation to
kinship and territorial levels. From these observations, he
hypothesises that the ‘absence of third-party institutions and the
correlated presence of procedures of forceful self-help tend to be
found in societies in which (1) cross-cutting group affiliations are
non-existent, (2) territorial factions form independent political units
and (3) these are represented by fraternal power groups’ (1: 311).
Going on to examine theoretical aspects of those propositions and their
predictive value for ‘Eskimo’ societies, Koch goes on to conclude that
'a male individual’s identification with his adult role as a member of
a solidary group having joint liability appears to be enhanced by the
structural arrangements which produce a strict separation of the sexes
in the economic, political and ritual systems of the society’ (1: 318).
Koch, Klaus-Friedrich.
1974. War and Peace in
Jalémó: The Management of Conflict in Highland New Guinea.
Cambridge, MA: Harvard University Press.
The focus of this West Papuan ethnography is on ‘the
political prerequisites for the transformation of a dyadic conflict
into a triadic relationship between the opponents and a third party who
can resolve their dispute’ (26). The model underlying Koch’s approach
involves six processes of conflict management: adjudication,
arbitration, mediation, negotiation, coercion, and avoidance. Against
this background, he identifies five Jalé conceptions of antagonistic
interaction: altercation, scuffle, sorcery, avoidance, and warfare.
There follow 14 detailed case studies divided among conflicts between
relatives, between neighbours, and between strangers and involving
disputes over such issues as resources, adultery, marriage, abduction,
gardening and crops, inheritance, and, especially, pigs. Koch concludes
that the absence of political integration and judicial authorities in
Jalé society results in the institutionalisation of coercive self-help
as a means of conflict management.
Koch, Klaus-Friedrich,
Soraya
Altorki, Andrew Arno, and Letitia Hickson. 1977. Ritual Reconciliation
and the Obviation of Grievances: A Comparative Study in the Ethnography
of Law. Ethnology
16(3): 269-283, http://www.jstor.org/stable/pdf/3773312.pdf?acceptTC=true,
accessed 15 June 2015.
Identifying a lack of analysis and understanding of the
obviation of grievances by initial avoidance followed by ritual
reconciliation as a method of conflict resolution, the authors set
about remedying the situation to some extent by examining the
organisational and ideological contexts with which such rituals occur
among the Jalé of what is now West Papua, women city dwellers of Jeddah
in Saudi Arabia, and Fijians. There follow extensive descriptions of
the nature and conduct of each of the rituals, including the Fijian i soro,
the effects of which they summarise as a reconstitution of an agnatic
lineage in the case of the Jalé, avoidance of rupture of vital
interpersonal networks in the case of the women of Jeddah, and
preservation of a communal order rigidly defined by ascribed status
differences in the case of the Fijians. In general, they suggest,
maintenance of close kin relationships is too important to be put at
risk by resort to litigation when customary rules are broken. See also
Arno 1974 and 1976, Hickson 1975, Merry 2006, and Toro 1973.
Krämer, Augustin. 1995
[1901]. The Samoa
Islands: An Outline of a Monograph with Particular Consideration of
German Samoa, Vol. 2, Material Culture, translated by
Theodore Verhaaren. Auckland: Polynesian Press.
Within his massive ethnography of Samoa in the late nineteenth
century, Krämer devotes a few pages (2: 103-108) to the administration
of justice, which he found by no means wanting but existing ‘only at
the low level expected only at the low level of isolated primitive
peoples’ (103). He finds that such processes mainly involve settlement
between the two parties concerned with involvement of third parties
only in the case of such serious offences as adultery, murder, and
theft in taro plantations. He traces the root of the system to that
need to protect plantations and produce and itemises forms of
punishment by priests, taboos, ordeal, personal arbitrary actions,
family council, and, in extremis, the fono or community assembly. The
bulk of the material deals with theft, its prevention, detection, and
punishment, the ifoga
or formal performance of apology and forgiveness, some extreme
punishments, and the availability of places of refuge.
Larcom, Jean. 1990.
Custom by Decree: Legitimation Crisis in Vanuatu. In Cultural Identity and Ethnicity
in the Pacific, edited by Jocelyn Linnekin and Lin Poyer,
175-190. Honolulu: University of Hawai’i Press.
In the context of what she sees as something similar to
a Habermasian ‘legitimation crisis’ in 1980s Vanuatu, Larcom identifies
the corresponding difficulties in ‘the production of meaning’ in
relating to the meaning of kastom
(175). In the course of the chapter, she explores the production of
cultural identity in local-level courts and, on the basis of her
fieldwork among the 550 Mewun of South West Bay on the island of
Malakula, argues that their pre-Independence idea of kastom is being
transformed into anthropological ‘culture’, a transition observable in
those courts. In doing so, she examines models of the person as
displayed in 1973-1974 local-court cases and in emerging Vanuatu
nationalism and addresses the problem of negotiating identity within a
changing legal system.
Larcom, Shaun. 2015.
Empirical Study of the Sanction of Wrongs in the New Guinea Islands. In
Legal Dissonance: The
Interaction of Criminal Law and Customary Law in Papua New Guinea,
75-111. New York: Berghahn.
Commencing this chapter with an outline of his research method,
which is based on questionnaires and interviews, and a description of
the New Guinea island provinces of East and West New Britain and the
Autonomous Region of Bougainville, Larcom traces the history of law
enforcement in the regions since before colonisation. Focusing on
current controls and sanctions and taking into account the substantial
continuing role of customary law, he surveys the relationship between
it and state law in the town centres and their surrounds and in the
remote villages. Identifying a number of problems with the existing
arrangements, mainly involving police corruption and brutality, he
outlines the particular situation in Bougainville where customary law
and chiefly authority have been most significant since the absences of
the state and police at the time of the Bougainville Crisis. Larcom
concludes that ‘below the surface the state legal order plays a
secondary role to customary law’ (94). Tables of descriptive statistics
from the survey are appended.
Lawrence, Peter. 1969.
The State Versus Stateless Societies in Papua and New Guinea. In Fashion of Law in New Guinea:
Being an Account of the Past, Present and Developing System of Law in
Papua New Guinea, edited by B J Brown, 15-37. Sydney:
Butterworths.
Characterising the problem of decolonisation as a
failure to recognise that two diametrically opposed systems are
involved, Lawrence sets out to demonstrate that this opposition is at
the heart of Australia’s problem of the decolonisation of New Guinea.
Suggesting that New Guineans exploit rather than assimilate Australian
law, he proceeds to describe and analyse in some detail the systems of
social control in the Australian ‘state’ and in ‘stateless’ Papua and
New Guinea. Thus identifying the opposing fundamental principles of
social control underlying the two systems, he discusses the force of
socialisation, public opinion, and reciprocity in the New Guinea system
and thereby draws the distinction between the two: a difference in aims
in settling disputes, with western law aiming to protect individual and
equal rights and the New Guinean the resolution of quarrel and
restoration of social order, the one abstract and impartial, the other
concerned with relationships. Lawrence offers no easy solution but
concludes that ‘we may be able to do little more than establish our
basic legal principles, and leave the people to develop them in ways
they see best and we are now quite unable to foreshadow’ (37).
Lawrence, Peter. 1970.
Law and Anthropology: The Need for Collaboration. Melanesian Law Journal
1(1): 40-50.
Proposing far-greater collaboration or partnership
between Law and Anthropology in order to deal with the problems of
decolonisation, Lawrence argues that ‘both the lawyer and social
anthropologist have a direct interest and much to contribute’ to an
outcome dependent on partnership or partial amalgamation (41). In
support, he examines and critiques the approaches of both lawyer and
anthropologist and ascribes to the lawyer the clarification of initial
practical problems and to the anthropologist location of problems in
their total setting and provision of skills for exploring them. His
concluding recommendations are for scholars trained in both disciplines
and the introduction of lectureships in ‘Ethnojurisprudence’.
Leach, James. 2011.
‘Twenty
Toea Has No Power Now’: Property, Customary Tenure, and Pressure on
Land Near the Ramu Nickel Project Area, Madang, Papua New Guinea. Pacific Studies
34(2/3): 295-322, https://ojs.lib.byu.edu/spc/index.php/PacificStudies/article/view/30822/29281,
accessed 25 August 2015.
Suspecting that the acknowledgment of customary land
tenure in Papua New Guinea may, under pressure from large-scale
extractive industry, have resulted in no more than a narrow right of
disposal for minimal gain, Leach examines the reality of the impact of
a nickel-mine project on landowners in Madang on the north coast of
Papua New Guinea. He investigates the failure, in the face of subtle
pressures resulting from the introduction of the project, of customary
tenure to protect the long-standing relationship to the land of
constitutive interdependence rather than property rights, particularly
in the context of produce-market development and its ‘nexus between
kinship, land and gender’. Exploring the local people’s related ‘nexus
of person, place, vitality and cultural expression’ as a counter to
individualistic property ownership (310), he concludes that customary
tenure’s foundation in western property law has resulted in replacement
of that nexus by an autonomous power to alienate, exploit, and
appropriate.
Lealofi, E. 2009. Samoan
Jurisprudence: A Commentary. In Su’e
Su’e Manogi - In Search of Fragrance: Tui Atua Tupua Tamasese Ta’isi
and the Samoan Indigenous Reference, edited by T M
Suaalii-Sauni et al, 340-346. Apia: National University of Samoa.
In this response to and commentary on Efi 2009, Lealofi first
sets out his initial reservations about Tui Atua’s project for a
Pacific jurisprudence on the grounds that it is an attempt ‘to express
a fluid oral tradition in terms of a well organized and established
system’ and because of his doubts about the existence of uniformity in
Pacific legal systems (341). Rethinking that reaction in response to
the written chapter, however, he praises the author’s acuity and grasp
of Samoan society and proposes some possibilities for the future on the
basis of Tui Atua’s argument. They are that certain basic norms may be
set up, certain laws may be established, a legal system based on Samoan
values may be put in place, peaceful traditional arbitration may be set
up, and training of local judges may be advanced.
Lipset, David. 2004. The
Trial: A Parody of the Law Amid the Mockery of Men in Postcolonial
Papua New Guinea. Journal
of the Royal Anthropological Institute New Series 10:
63-89.
Noting a preoccupation with conflict resolution in
legal-pluralism studies, Lipset employs a Sepik episode in which a
mock-trial developed out of a horseplay session among a group of
village men to demonstrate that law may be used rhetorically as well as
politically, especially in colonial and post-colonial settings, in
expressing ambivalence and identity. In other words, he sets out to
‘consider a relationship between forms of indigenous satire, irony and
parody and the law as dialogical’ (64). Against a background of
theories of play, the history of legal pluralism in Papua New Guinea,
and law and order in the Sepik village, he lays out an extensive
description, including transcripts, of events as they unfolded in the
impromptu ‘people’s court’. Drawing on Northrop Frye’s typology of
European fiction, he develops and tabulates ‘an heuristic device to
help in clarifying representations of the law in colonial and
post-colonial political settings’ (80), and concludes that it would be
to the benefit of legal pluralism to become less literal.
Luluaki,
John Yavavu Yakienjo. 1990. Customary Family Law in Yangoru:
Implications of Legal Pluralism in a Papua New Guinea Society.
Unpublished University of Cambridge PhD Thesis.
In this study of the Yangoru people of the East Sepik
in Papua New Guinea, Luluaki undertakes a survey of the implications of
legal pluralism for customary law and also of the legal regulation of
customary family law and its sources, including the Constitution and
legislation, courts and their jurisdictions, and the legal validity and
proof of customary marriage. Luluaki explores the formation of
marriage, brideprice, marriage breakdown and consequences, and
parenthood along with custody, adoption and fosterage, and
step-parenting. In considering the implications of legal plurality for
the field of the family, he goes beyond conflicts between customary and
introduced law to consider conflicts that arise when different
customary-law systems come into contact with each other.
Lundsgaarde, Henry P.
1968a. Some Transformations in Gilbertese Law: 1892-1966. Journal of Pacific History
3: 117-130, http://www.jstor.org/stable/pdf/25167940.pdf?acceptTC=true&jpdConfirm=true,
accessed 26 May 2015.
A decade before Kiribati Independence, Lundsgaarde draws
attention to the dramatic procedural and substantive transformations of
traditional Gilbertese law consequent on British colonisation and
suggests that the present syncretic product will suffice for the
immediate future, that statutory codification and a constitution will
be ineffective given the subsistence-level economy, and that attempts
at political education on the part of the withdrawing British ‘will
only reinforce existing religious, racial, and political factionalism’
(118). He concludes that land questions in particular are the product
of successive transformations of pre-colonial law rather than the
imposition of introduced law.
Lundsgaarde, Henry P.
1968b. The Strategy and Etiology of Gilbertese Property Disputes. American Anthropologist
70(1): 86-93, http://onlinelibrary.wiley.com/doi/10.1525/aa.1968.70.1.02a00100/pdf,
accessed 5 June 2015.
Observing a Gilbertese preoccupation with litigation over
property and personal disputes, Lundsgaarde finds its source in three
variables: geography, demography, and land use. Basing himself on an
intensive quantitative analysis of cases on 12 of the 16 islands of the
future Kiribati, he advances four hypotheses concerning the etiology of
court disputes: that land disputes stem from scarcity and multiple
ownership; that criminal cases stem from inequalities in the political
and economic systems; that the frequency of disputes is the result of
overcrowding and joint exploitation rights; and that the intensity of
cases for each island relates to its economic, political, and
geographical features. He concludes that those hypotheses suggest the
causes of litigation are largely the product of independent conditions
beyond the control of the residents.
Lundsgaarde, Henry P.
1974. Transactions in Gilbertese Law and Justice. Journal of the Polynesian
Society 83(2): 192-222, http://www.jstor.org/stable/pdf/20704991.pdf?acceptTC=true,
accessed 26 May 2015.
Published on the eve of Kiribati Independence, this
article embarks on an ethnographic description and analysis of the
structure and operation of British-derived courts based on
Lundsgaarde’s earlier fieldwork in 1963-1964. In particular, he
concentrates on the combination of western-court setting and Gilbertese
concepts of fairness and justice in describing 18 cases before the
Native Lands Court and Native Island Court on Nanouti and Tamana
Islands involving assault and battery, land boundary location and
trespass, ownership of a sewing machine, a bequest, theft, adultery,
and incest. He suggests that the paradox of cultural complexity and
simplicity in principle and outcome in those cases results from
Gilbertese failure to distinguish between law, morality, custom, and
general ideology. He concludes that the colonial legal system is of
recent origin and may eventually ‘establish for the Gilbertese
distinctive contrasts parallel to our own Roman-derived tripartite: the
law of persons, the law of obligations, and the law of property.
MacPherson, Cluny and
La’avasa MacPherson. 2005. The Ifoga: The Exchange Value of Social
Honour in Samoa. Journal
of the Polynesian Society 114(2): 109-134, http://www.jstor.org/stable/pdf/20707272.pdf?acceptTC=true,
accessed 25 May 2015.
The authors define the ifoga
as ‘a public act of self-humiliation—accompanied by the gift of ‘ie toga
or fine mats, speeches of contrition and food—made as a form of apology
by one group for the conduct of one of its members to another offended
group’ (109). They summarise a number of historical accounts of its
performance, describe its place and performance in contemporary Samoa,
and summarise four recent examples involving a shooting, trespass,
elopement, and the beating of a student. Locating at the heart of the ifoga
a calculation by both sides of the value of the social honour foregone
by the offended party, they identify four indicators of the seriousness
of an offence: the composition of the party, the number and quality of ‘ie toga,
the length of time before acceptance, the tone of the speeches of
apology, and that of the speeches of the aggrieved, their number, and
length. Moving on to the effects of a changing social environment on
the ifoga,
the MacPhersons
discuss its economic significance, probable future, and relationship to
police and court actions. They conclude that new forms of social honour
and the availability of other forms of dispute resolution, particularly
resort to the courts, threaten its viability. See also Filoiali’i
&
Knowles 1983, Krämer 1995, and Mead 1969.
McLachlan, C A. 1988.
State Recognition of Customary Law in the South Pacific.
Unpublished
University of London PhD Thesis.
In this comprehensive comparative study of state recognition of
Indigenous customary law in 14 Commonwealth South Pacific
jurisdictions, McLachlan draws on material from Australia, Cook
Islands, Fiji, Kiribati, Nauru, Niue, New Zealand, Papua New Guinea,
Solomon Islands, Tokelau, Tonga, Tuvalu, Vanuatu, and then-Western
Samoa. He approaches his work on the basis of four ‘propositions’: the
persistent fact of pluralism; a legacy of colonial misconceptions; the
implications of a reassertion of autochthonous values; and justice and
group identity. In successive chapters he explores legal pluralism and
legal theory, the colonial experience and the idea of customary law,
custom as a source of underlying law, human rights and cultural
relativism, custom as process in disputes, and custom as title in land
issues. In conclusion, McLachlan contrasts on the one hand custom’s
changing ideological role with the realities of recognition and on the
other recognition by incorporation into state law with recognition by
adjustments to state law in acknowledgment of the separate sphere of
custom. He ends with a plea for a co-operative pluralism.
Malinowski, Bronislaw.
1926. Crime and Custom
in Savage Society. London: Kegan Paul, Trench, Trubner.
Malinowski, often referred to as the founder of legal
anthropology in the modern, ethnographic sense, here displaces the
great comparativist schemes of the nineteenth-century evolutionists,
epitomised by Sir Henry Maine and Lewis Henry Morgan, with the
application of sustained fieldwork; replaces their pursuit of legal
institutions in ‘primitive’ societies with his functionalist
investigation of the mechanisms of social control; and, where they
found slavish obedience to static custom, reveals a context of complex
cultural relationships. Rejecting both compulsion and communism as the
wellsprings of Melanesian social order, he locates its source in
reciprocity and its networks of obligations and rightful claims and
defines the civil law of the Trobriand Islanders in this manner: ‘a
body of binding obligations, regarded as a right by one party and
acknowledged as a duty by the other, kept in force by a specific
mechanism of reciprocity and publicity inherent in the structure of
their society’ (58).
Marcus, George E. 1977a.
Succession Disputes and the Position of the Nobility in Modern Tonga. Oceania 47(3):
220-241, http://www.jstor.org/stable/pdf/40330294.pdf?acceptTC=true,
accessed 5 June 2015.
In
this first of two parts of his article on the Tongan nobility, Marcus
sets out to give a detailed account of succession disputes and what
they indicate about the position of the nobility in modern Tonga. First
surveying the history of changes in Tongan society since unification
under a constitutional monarchy and of the manner of succession to
hereditary titles and estates, he goes on to discuss succession
disputes in general and the Vakalā case in particular and at some
length as the last such dispute to be fully litigated.
Marcus, George E. 1977b.
Succession Disputes and the Position of the Nobility in Modern Tonga
(Continued). Oceania
47(4): 284-299, http://www.jstor.org/stable/pdf/40332193.pdf?acceptTC=true&jpdConfirm=true,
accessed 15 June 2015.
Resuming his examination of
the modern nobility, Marcus identifies three main categories of
important issues: the relationship of the monarch to law and legal
process; relationships within noble kin groups; and the nobility’s
overall status. In the case of the first, he observes an increasing and
successful reliance by monarch’s on informal methods of achieving
dynastic aims. In the second, he considers the effects of three
different levels of kin relationship on the conduct of litigation and
ascribes the appearance of such disputes to internal reorganisation of
chiefly groups. In the third, he concludes, on the basis of the
succession disputes he has surveyed, that the nobility ‘has been ringed
on all sides and thoroughly infiltrated by the socially levelling and
individualizing’ that have been generated by monarchic reforms.
Marsack, C C. 1961. Notes
on the Practice of the Court and the Principles Adopted in the Hearing
of Cases Affecting (1) Samoan Matai Titles; and (2) Land Held According
to Customs and Usages of Western Samoa. Apia: Land and
Titles Court.
This account of the principles underlying the processes
and decision of the Land and Titles Court is informed by a great deal
of intensive experience and observation by a former president of the
court who was also an observer and collector of wider Samoan
epistemology and practices. Topics covered, combining both community
and court practices, include succession to and splitting of titles,
holding of titles by women, desirable qualifications, removal and
relinquishment of titles as well as their creation, the forms of
titles, provisions applying to title-holders’ houses (including the
prescribed heights of foundations), and title-related aspects of land
tenure.
Matsuda, Mari J. 1989.
Native Custom and Official Law
in Hawaii. Law and Anthropology: Internationales Jahrbuch für
Rechtsanthropologie, Vol. 4, 135-146. Vienna: VWGÖ-Verlag.
Addressing
the extent to which a once-thriving body of custom in Hawai’i has been
supplanted by state law, Matsuda traces the history of the codification
of introduced law and observes that custom is not only uncodified but
has no recognised repository or designated institution and exists in
only a few scattered places. Where it is recognised to a limited
degree, in land tenure and use, it has no tie to ethnicity and is
available to all. Observing that the relationship between custom and
law ‘is one of conflict, accommodation, hegemony, and counter-hegemony
over time’ (142), she suggests that the dominance of state law reflects
the loss of culture, language, and identity for Native Hawaiians.
Concluding that ‘the demise of folk law hastens the demise of culture’,
she nonetheless expresses some hope that ‘if law can destroy culture it
can also preserve it’ and points to the scholars and activists who
might achieve that (143). In the course of her survey of land issues,
Matsuda discusses Kalipi
v Hawaiian Trust, Estate
of Cunha, re
Ashford, County
of Hawaii v Sotomura, and Robinson v Ariyoshi.
Mead, Margaret. 1961.
Some Anthropological Considerations Concerning Natural Law. Natural Law Forum
Paper 59: 51-64, http://scholarship.law.nd.edu/nd_naturallaw_forum/59,
accessed 21 May 2015.
In this article, Mead takes up the question of the
contribution anthropology can make to the study of natural law and, in
particular, the universality of the recognitions peculiar to natural
law, case studies of first contact with western law, and how a
distillation of the essence of that law can aid the process of
diffusion of historical systems of law. Surveying constancies relating
to murder, incest, and property rights, she defines natural law ‘as
those rules of behaviour which had developed from a species-specific
capacity to ethicalize’ (54). Summarising case studies from her
fieldwork in New Guinea, Indonesia, and American Samoa, she concludes
that there are as many possible developments when custom and law meet
each other as there are such contacts. Finally, she wonders whether the
basis of law can be seen as a set of universal science-like principles
or as an accumulation of comparative legal systems, ‘each seen as part
of a particular culture and one link in a long historical chain of
legal inventions’ (64).
Mead, Margaret. 1969
[1930]. Social
Organization of Manu’a. Honolulu: Bishop Museum Press.
Mead includes some slight commentary on law, justice,
and penalties in her ethnographic study of Manu’a in American Samoa on
pages 17, 43, 169-170. These section include discussion of the village
fono, chiefly forum, as judiciary as well as legislature, a detailed
description of the conduct of the ifoga (including a misconceptions
about a supposed difference between eastern and western Samoa), a
listing of village crimes and offences, and a description of the manner
of trials and punishments. See also Filoiali’i & Knowles 1983,
Krämer 1995, and MacPherson & MacPherson 2005.
Merry, Sally Engle. 2000.
Colonizing Hawai’i: The
Cultural Power of Law. Princeton: Princeton University
Press.
In this ethnography of the colonising project in
Hawai’i, Merry calls on archival sources and 10 years of fieldwork,
mainly in Hilo on the island of Hawai’i, to background and explore 60
years of district court minute books from the 1850s to the first decade
of the twentieth century. In Part One she examines how Hawai’i came to
adopt Anglo-American law and how that changed Hawaiian law and follows
the process of transformation in religious and secular law. In Part Two
she outlines the social organisation and plantation hierarchy of the
town of Hilo, drawing on the court records to study judges and
caseloads, protest and law in the sugar plantations, and sexuality,
marriage, and the management of the body. In drawing her conclusions,
Merry proposes a rethink of the relationships between culture and
history, law and social change, and law and resistance. An appendix
includes the minutes of 30 cases involving a variety of offences.
Merry, Sally Engle. 2006.
Human Rights and Gender
Violence: Translating International Law into Local Justice.
Chicago: University of Chicago Press.
Material on the Fijian practice of bulubulu,
a form of i soro,
the ritual of reconciliation, frequently employed in cases of rape, is
included in Chapter One (4-5) and Chapter Four (113-133). Prompted by a
considerable degree of mutual misunderstanding between the committee
and the Fijian delegation at the 2002 hearings of the Committee on the
Elimination of Discrimination against Women (CEDAW) in New York, Merry
sets out to understand how the discussion could have gone so wrong,
surveying the existing anthropological literature and interviewing
anti-rape activists, magistrates, police, and religious leaders.
Observing the importance of social context to the function of bulubulu
and identifying as the real issue not its use in general but its use to
drop charges and mitigate sentences in rape cases, she examines bulubulu
in village and city over time and in relation to the law and to
cultural nationalism. Returning to the CEDAW hearings, Merry notes the
fundamental tension between equality and universal rights and the
maintenance of cultural diversity and urges understanding of ‘the
possibility that there are embedded in local communities alternative
visions of social justice that are not founded on conceptions of rights
but on ideas such as sharing, reconciliation, or mutual responsibility’
(133). See also Arno 1974 and 1976, Hickson 1975, Koch et al 1977, and
Toro 1973.
Merry, Sally Engle and
Donald Brenneis. 2003. Law
and Empire in the Pacific: Fiji and Hawai’i. Santa Fe:
School of American Research Press.
This collection of papers, largely from a 2001 advanced
seminar of scholars working of Fiji and Hawai’i, is intended by its
editors ‘to be a contribution to Pacific anthropology, as well as a
Pacific location for an analysis of the intersections between law and
culture over time’ and also an endeavour ‘to address basic questions in
anthropology about methods of comparison, the importance of colonial
knowledge production, and the nature and consequences of
anthropological knowledge production’ (9). Its chapters, heavily
historical in character, include a comprehensive editorial
introduction; Jane F Collier on commonalities in the two countries
experience of the law in transforming chief’s rule over people to rule
over land; John D Kelly on Arthur Gordon’s legal strategies in the
colonisation of Fiji; Noenoe K Silva on the ways in which prohibition
of hula performance and Hawaiian-language literacy combined to produce
new forms for maintaining legally and socially consequential stories;
Merry on law and identity in colonial Hawai’i; Martha Kaplan on the
ways in which legally defined entities in Fiji’s colonial history have
shaped contemporary events; Annelise Riles’s response to the question
of the appeal or use of law as object in Fiji at that particular
anthropological moment; Jonathan Kamakawiwo’ole Osorio’s discussion of
the deployment of two distinct legal strategies in Hawaiians’ quest for
self-government; Hirokazu Miyazaki’s focus on 100 years of
anti-confiscation petitions by a Fijian village to suggest that
‘indeterminacy is not always a given condition and that indeterminacy,
as well as determinacy, may be a product of carefully orchestrated
strategies’ (240); and Brij V Lal’s reflections on Fiji in transition.
Monson, Rebecca. 2010.
Women, State Law and Land in Peri-Urban Settlements on Guadalcanal,
Solomon Islands. World
Bank J4P Briefing Note, http://www-wds.worldbank.org/external/default/WDSContentServer/WDSP/IB/2010/05/07/000020953_20100507115121/Rendered/PDF/544240Briefing1Guadalcanal1SolIslds.pdf,
accessed 11 May 2015.
Following an overview of the existing intersection of
state and customary land laws in peri-urban settlements around Honiara
in the Solomon Islands, Monson investigates the effects of
urbanisation, the growth of those settlements on customary land, and
the distribution of royalties from logging licences and water sources
on landowners. She concludes that the intersection of legal systems has
allowed a small number of people, mainly men, to solidify their control
over customary land by converting a customary ‘right to speak’ into
effective ownership to the detriment, especially of women landowners
who may lack formal education or customary authority to speak in public
forums. To overcome this, she recommends a focus on state legal
frameworks and proposes further, properly funded research into those
frameworks and dissemination of the findings, notices to all landowners
of pending royalty payments, separate consultations with men and women,
and the introduction of programmes in legal literacy.
Narokobi, Bernard. 1989a.
Law and Custom in Melanesia. Pacific
Perspectives 14(1): 17-26.
Signalling some of the issues he would take up and expand in
Narakobi 1989b, the author canvasses the idea of a Melanesian
jurisprudence and surveys colonial and contemporary legal principles
and practice. He identifies and discusses 10 characteristics of
Melanesian social order upon which a Melanesian jurisprudence would
need to be based: community of people, living in a defined locality,
having social relations among themselves, recognising themselves as a
social unit, common origin, acknowledged leadership, shared common
values, common language, recognition as different, and diplomatic
links. He goes on to list 12 basic characteristics throughout Melanesia
relevant to the context of Melanesian law, defines the task before
Melanesia as linking Melanesian perspectives with universal law, and
describes the challenge in that as infusing appropriate degrees of
Melanesian thought and practice in those systems already introduced,
while being sensitive to pressures coming from the Far East.
Narokobi, Bernard. 1989b.
Lo Blong Yumi Yet: Law
and Custom in Melanesia.
Suva: Institute of Pacific Studies, University of the South Pacific;
Goroka: Melanesian Institute for Pastoral and Socio-Economic Service.
Lawyer, jurist, politician, and diplomat, Narokobi
draws on anthropological materials as well as a good deal of his own
informal but perceptive participant observation to discuss the state of
law in Melanesia, more particularly in Papua New Guinea and with an
ethnographic emphasis upon the Arapesh. Considering the jurisprudence
of ‘classical’ Melanesia (2), he observes that custom remains effective
in criminal law and in village conflicts over land, brideprice, and
exchange. More particularly, and in the Arapesh context, he discusses a
wide variety of concepts and categories including the human person,
power, balance and harmony, sympathy, sharing, affinity and honour,
tradition, trusteeship, consent, and restraint, control, and
discipline. He goes on to survey the principles of western, and
particularly Anglo-Australian, legal principles and to compare them
with the current Melanesian practice. In this he covers, among other
topics, the state and sovereignty, separation of powers, the
relationship between law and justice, the primacy of written law, the
dichotomy between criminal and civil law, and human rights.
Ottley, Bruce L and Jean
G Zorn. 1983. Criminal Law in Papua New Guinea: Code, Custom and the
Courts in Conflict. American
Journal of Comparative Law 31(2): 251-300, http://heinonline.org/HOL/Print?collection=journals&handle=hein.journals/amcomp31&id=261&print=section§ion=17&ext=.pdf,
accessed 1 June 2015.
Noting the failure since Independence in Papua New
Guinea to integrate custom into the legal system despite the claims of
leaders at that time, the authors identify the major reason for that
failure in ‘the belief, endemic to state institutions, including the
courts, that a customary legal system, created to serve the interests
of small, homogeneous, stateless societies, constitutes a threat to the
state and to the system of codes and common law cases, created by the
agencies of government in order to reinforce the authority and
legitimacy of the state’ (254). Pursuing this conception through the
criminal law, they survey its origins in customary law and process and
in the colonial period, they intensify their examination in the context
of colonial-period Supreme Court reactions to defences of provocation
and a variety of defences to charges of murder of a sorcerer. With
regard to provocation they cite R
v Hamo Tine, R
v Yande Piaua, R
v Rumints-Gorok, R
v Manga Kitai, R
v Moses Robert, and Secretary
for Law v Witrasep Binengim. In the sorcerer cases they
cite R v Manga-Kitai,
R v Womeni-Nanagawo,
R v Ferapo Meata,
and R v K J.
Continuing on to consider the period since Independence, the authors
observe that custom has still not achieved a major place in the legal
system and that, rather than giving a greater role to custom, the court
seems intent on lessening its impact, supporting this observation by
reference to The State
v Aubado Feama and Others, R v Noboi-Bosai, Secretary for Law v Ulao Amantasi,
Acting Public Prosecutor
v Tumu Waria of Yagos, Acting Public Prosecutor v Unama
Aumane, State
v Luku Wapulae, Secretary
for Law v Witrasep Binengim, and Sangumu Wauta v The State.
Reviewing developments over that period, they summarise the position of
the courts as applying criminal laws ‘without reference either to the
intent of the legislature or to the conditions of the populace’ (297).
They conclude that customary law is seen by governments as a direct
attack on the legitimacy of the state while ‘common law and the
continuing effects of colonialism seem to have denied to the courts the
creativity required’ to synthesise the two systems (300).
Pascht, Arno. 2011. Land
Rights in Rarotonga (Cook Islands): Traditions
and Transformations, Pacific
Studies 34(2/3): 175-194,
https://ojs.lib.byu.edu/spc/index.php/PacificStudies/issue/view/2411,
accessed 15 June 2015.
Tracing the influence of European ideas about land rights and ownership
in Rarotonga in the Cook Islands through the colonial-era, New
Zealand-derived, Native Land and Titles Court and in the period since,
Pascht surveys pre-European land tenure (mainly relying, uncritically,
on Crocombe 1964) and the history of the existing land-tenure system.
He closely examines the later stages of and background to a land
dispute, the Te Puna case, that had lasted over a hundred years. He
concludes that both ancestral bestowal and length of occupation are
influential in determining ownership. He then goes on to explore
contemporary allocation of ‘Native freehold land’ (as opposed to
‘customary land’), once again providing history and background, looking
particularly at those influences. He concludes that ideas about land
rights at the time of writing comprise intermingled pre-European,
European-derived, and locally and more recently developed elements.
Finally, and contrary to Crocombe’s findings in this area, he concludes
that precolonial ideas about land rights continue to play an important
role alongside notions from the New Zealand legal system in an
interplay of flexibility and restriction in land transactions. See also
Baltaxe 1975, Campbell 2002, Gilson 1955, and Pascht 2011.
Pospisil, Leopold. 1958a.
Kapauku Papuans and
Their Law. New Haven:
Yale University Press.
A major contribution to the anthropology of law, Pospisil’s study of
the Kapauku Papuans of then-Netherlands New Guinea, today two provinces
of Indonesia, is notable for its pioneering pluralistic framework in
which consideration of law ‘is properly related to the legally relevant
aspects of religion, politics, economy, and customs in general both of
the society as a whole and of its subgroups’ (3). Pospisil’s approach
is based on the proposition that ‘law is manifested by decisions of
legal authority rather than by abstract rules or by the behavior of the
litigants. However, for analytical purposes, it is important to
investigate all three categories’ (249). The first three parts of the
book, then, deal with the individual in the Kapauku world, the society
and its subgroups, and rules and disputes. The fourth deals with the
form and attributes, rather than a single characteristic, of Kapauku
law. Those attributes are authority, intention of universal
application, obligation, and sanction, including corporal, economic,
psychological, supernatural, and self-redress sanctions and he adds
cases without sanctions. Pospisil continues that part with analysis of
legal levels and dynamics and the phenomenon of justice and concludes
‘that law and custom are relative concepts which are relative to the
level of investigation’ (289).
Pospisil, Leopold. 1958b.
Social Change and Primitive Law: Consequences
of a Papuan Legal Case. American
Anthropologist, New Series 60(5):
832-837,
http://onlinelibrary.wiley.com/doi/10.1525/aa.1958.60.5.02a00040/pdf,
accessed 5 June 2015.
A rather whimsical account of ‘one of those exceptional volitional
inventions by means of which a member of an unpacified primitive Papuan
society radically changed the social structure of his village and
political confederacy’ (832), a case involving a pulchritude-loving
headman, incestuous marriage, elopement, and a change to exogamy and
incest rules. Pospisil identifies a number of theoretical implications
relating to ‘primitives’: the importance of an individual in structural
transformation; the unexceptional nature of volitional invention;
politics as a determinant of social structure; the possibility of the
abolition of exogamy having the same effects as those more usually
sought in its implementation.
Pospisil, Leopold. 1969.
Structural Change and Primitive Law:
Consequences of a Papuan Legal Case. In Law in Culture and Society,
edited by Laura Nader, 208-229. Chicago: Aldine.
Responding to what he sees as the banishment of the role of the
individual from anthropology under the influence of sociology and to an
attempted refutation of Pospisil 1958b, the author returns to the
subject of that article to record the passage of events among the
Kapauku Papuans since the time of its writing in order to add to the
literature on volitional innovations. Drawing on his own restudies in
1959 and 1962, he retraces the nature and history of the change to
incest rules, and recounts the sociological consequences and social
acceptance thereof. Arguing that his fieldwork over nine years
reinforces the importance of the role of the individual in legal and
structural change, he reaffirms his original conclusion that volitional
invention may not be as exceptional as assumed.
Pospisil, Leopold. 1981.
Modern and Traditional Administration of
Justice in New Guinea. Journal
of Legal Pluralism and Unofficial Law
19: 93-116,
http://heinonline.org/HOL/Print?collection=journals&handle=hein.journals/jlpul19&id=109&print=section§ion=9&ext=.pdf,
accessed 3 June 2015.
Returning again to his studies of the Kapauku in 1975 and 1979, here
Pospisil draws on his long-term fieldwork to set out a record of the
resulting ‘dynamic picture of a Stone Age society, its rather abrupt
transition to civilization, and the concomitant changes in its legal
structure’ (93). The areas he surveys are changes in political and
legal authority, including the decline of the headman, social control,
and recent Indonesian influence; transition in the principles of
jurisdiction and the introduction of a new territorial unit, the
village; changes in the laws of procedure, including Dutch and
Indonesian influences; changes in legal sanctions from payment of
damages to physical punishment; a surprising transition from contract
to status in economic and socio-political life; and a shift from double
to single standards of morality and legality. He concludes with a
catalogue of changes resulting from the imposition of Dutch and
Indonesian colonial and state legal systems.
Pospisil, Leopold. 2001.
Corrections of a Reappraisal of Leopold
Pospisil. Journal of
Pluralism and Unofficial Law 46: 115-120,
http://www.tandfonline.com/doi/pdf/10.1080/07329113.2001.10756554,
accessed 17 May 2015.
This response to and rebuttal of Goodale 1998 on a number of grounds is
notable for Pospisil’s defence of the necessity of knowing the language
and culture of those studied in the face of criticism by ‘those who
failed to learn the native tongue’ and of eschewing study of one’s own
culture in the absence of such linguistic ability in order to avoid
ethnocentrism (118). Pouring scorn on the ‘-isms’ of Marxists,
‘interpretists, postmodernists, evolutionists, and all the other
disciples and followers’ of ‘academic ancestors’, he stresses the need
for independent thinking and emphasises ‘that true science is not
democratic’ (118).
Powles, Guy. 1973. The
Status of Customary Law in Samoa. Unpublished
Victoria University of Wellington LLM Thesis.
Powles’s thesis covers traditional institutions, including matai and
‘aiga,
chiefs and families, principles of land tenure, matai authority,
and fono,
village councils; sources of non-customary law, including
early administrations, New Zealand legislation, subordinate
legislature, English law, directions to apply custom and usages, and
the Constitution and pre-independence law; the Constitution, its
elements, and the place of imported concepts; the jurisdiction, status,
and procedures of the Land and Titles Court; custom, law, and customary
law; and overall assessments of Constitution and legislation and the
perspective of the courts. In conclusion, he observes a transition from
arrogance to ignorance at the heart of mutual misunderstandings,
suggests attention to both openness and the language of the law to
improve the situation, and proposes a number of steps towards the
protection of customary law and, thereby, of the law of Western Samoa
in general.
Powles, Charles Guy.
1979. The Persistence of Chiefly Power and its
Implications for Law and Political Organization in Western Polynesia.
Unpublished Australian National University PhD Thesis.
In this thesis, Powles studies the manner of the transformation of
chiefly power in then-Western Samoa and Tonga from origins to its
function as a constituent element of the political and legal frameworks
of the respective post-Independence states, including the interaction
of Indigenous and introduced politics and law. Beginning with a
reconstruction of the two societies before western engagement and a
historical account of the impact of western ideas and the response of
the chiefly systems, he examines the constitutional and legislative
ways in which chiefly power has been recognised since 1840 in each of
the countries and its consequent nature and power. He goes on to
consider challenges to the matai
system and the monarchy and nobility
from introduced institutions, including those for the maintenance of
order, dispute settlement, and the regulation of land-holding, and the
adaptation of such institutions to chiefly authority.
Powles, Guy. 1997. Common
Law at Bay?: The Scope and Status of
Customary Law Regimes in the Pacific. Journal of Pacific Studies
21:
61-82, http://www.usp.ac.fj/fileadmin/files/Institutes/jps/Powles.PDF,
accessed 1 June 2015.
Powles characterises his article as an attempt to demonstrate the
diversity and extent of the recognition and use of customary law in the
context of the introduction of common law. He identifies lack of
guidance in its application, the operation of repugnancy, and
uncertainty as to proving as factors in the current status of customary
law. Using examples from countries and societies across the Pacific, he
surveys contemporary perceptions of its place; its dimensions,
including spheres of operation, form, time, place, and diversity of
types and extent of use; its recognition, limits, and proof; the forms,
operations, and supervision and review of courts and other
institutions; the approach to traditional punishments; and progress, or
the lack of it, in developing a new jurisprudence. Powles supports the
latter with a tabular record of the types and uses of recognised custom
in 24 countries and territories covering population, date of
independence, relationship with power, and type of custom. Summarising
that material, he offers two perspectives on customary law in relation
to introduced common law: one that its spheres and support appear not
to have been diminished; the other that, while there might be a
‘stand-off’ there is not a ‘stalemate’. He concludes that, in the
1990s, the ‘Western juggernaut has been stopped in its tracks, but its
engine has not stalled’ (78).
Reay, Marie. 1974.
Changing Conventions of Dispute Settlement in the
Minj Area. In Contention
and Dispute: Aspects of Law and Social Control
in Melanesia, edited by A L Epstein, 198-239. Canberra:
ANU Press.
The 10 cases examined here by Reay are the result of fieldwork among
the Minj in the Western Highlands of Papua New Guinea and involve
disputes in the sense of ‘a quarrel that has come to public notice and
is conducted at least in part in the public arena’ (199). Noting the
existence of a concept of kab’g’ among the Minj ‘embracing but more
flexible than our notion of justice’ (198), she questions the existing
anthropological emphasis on dispute settlement as restoration of
harmony rather than such a sense of justice. On the evidence of the
cases, however, she argues that conventions have been altered by
administration and kiap
law in such a way as to remove previous
safeguards against unjust decisions and increasingly to subordinate
group welfare to personal advantage. Furthermore, she suggests that
those changes demonstrate that the pressures of ‘modernisation’ to
separate the legal universe from the political demonstrate that the
expansion of the former may result in reduction of the moral universe.
Regenvanu, Ralph. 2008.
Issues with Land Reform in Vanuatu. Journal of
South Pacific Law 12(1): 63-67,
http://www.paclii.org/journals/fJSPL/vol12no1/pdf/regenvanu.pdf,
accessed 15 May 2015.
Setting out to determine the reasons that land reform is needed in
Vanuatu and some pressing legal issues associated with it, Regenvanu
recognises as the main problem with the existing regime the
government’s failure to discharge its constitutional duties to
customary and Indigenous owners, communities, and the nation. Setting
out that constitutional context and legal developments since
Independence, he identifies key issues to be addressed in land reform
as government fulfilment of its mandate to operate in the best interest
of landowners and the country, perhaps through establishment of a land
court; advancement of and legislation for the constitutional provision
that land use should be determined by customary landowners in
accordance with customary rules; and legislation to determine the
manner in which leases come to an end.
Rio, Knut. 2010. Handling
Sorcery in a State System of Law: Magic,
Violence and Kastom in Vanuatu. Oceania
80(2): 182-197,
http://search.proquest.com/docview/613405674/fulltextPDF/C3D7760B07E1489APQ/6?accountid=14782,
accessed 15 May 2015.
In order to explore sorcery in Vanuatu in its modern ‘democratised’
form, Rio focuses on a particular, recent attempt to control it within
a system of law influenced by at least some constitutional recognition
of traditional culture and customary authority. To do so, he finds it
necessary to eschew stereotypes of the irrational and see sorcery as
occupying ‘a social sphere with its own type of social ontology that
posits an alternative kind of social space’ (184). Reviewing various
aspects of the history and development of sorcery law in Melanesia in
general and Vanuatu in particular, he takes the position that ‘it is
problematic for state law to encompass customary law in such a way as
to assume that sorcery can be treated as a unitary phenomenon codified
in the abstract decontextualized principles of law’ and suggests that
‘perhaps custom and sorcery are being transformed through this process,
creating forms of inter-legality and punishment regimes’ (186).
Illustrating his thesis that a side effect of the opposition of law and
kastom ‘is that policing and sorcery can become alternative modes of
discipline and violence’ (187) with an extended discussion of a sorcery
case in North Malekula, he concludes that the likely outcome of
contemporary, state-law methods of dealing with sorcery is a new system
of terror resulting from inequality, individualism, and anger.
Rodman, William L. 1977.
Big Men and Middlemen: The Politics of Law in
Longana. American
Ethnologist 4(3): 525-537,
http://onlinelibrary.wiley.com/doi/10.1525/ae.1977.4.3.02a00080/pdf,
accessed 3 June 2015.
In this article based on fieldwork between 1969 and 1971 in the village
of Longana on the island of Aoba or Ambae in the north of the New
Hebrides, now Vanuatu, Rodman investigates the potential for conflict,
and its resolution, between traditional leaders, ‘big men’, and
government appointed ‘assessors’. Surveying the history of the village
and transitions in its political leadership and the process of
appointment of its assessors, he outlines the political context of
resulting legal change, relationships within the new system of social
control and dispute settlement, and the integration of assessors into
customary rankings by entrepreneurial big men seeking scarce political
resources. Rodman concludes that assessors, by becoming men of rank,
are able to assume the customary decision-making role of Indigenous
leaders, thereby becoming effective middlemen.
Rodman, William L. 1982.
Gaps, Bridges and Levels of Law: Middlemen as
Mediators in a Vanuatu Society. In Middlemen
and Brokers in Oceania,
edited by William L Rodman and Dorothy Ayers Counts, ASAO Monograph No
9, 69-95. Ann Arbor: University of Michigan Press.
Returning to the subject of the government-appointed assessors in
Longana on the island of Aoba or Ambae in what is now Vanuatu, Rodman
revisits their role as middlemen and the operation there of the three
levels of law within a single hierarchy: informal mediation by
traditional leaders at the level of the hamlet, unofficial assessor
hearing at the level of the district, and native court at the national
level. Illustrating the inter-relationships among the courts with a
study of a case that proceeded through all three levels, he then
discusses the varieties of cases dealt with at each of the levels and
the role of the middlemen therein. He concludes that the Longana
assessors succeeded as middlemen by both building bridges and
maintaining communication gaps between the local people and the
colonial administration, the gaps complementing the bridges that they
built.
Rodman, William L. 1985.
‘A Law unto Themselves’: Legal Innovation in
Ambae, Vanuatu. American
Ethnologist 12(4): 603-624,
http://onlinelibrary.wiley.com/doi/10.1525/ae.1985.12.4.02a00010/pdf,
accessed 2 June 2015.
Returning to the same island in northern Vanuatu, variously Aoba or
Ambae, between 1978 and 1982, Rodman here investigates what he
describes as ‘an instance of wholesale legal reform and innovation ….
in the last days of colonial rule in the New Hebrides’, as Vanuatu was
called at the time (604). There he finds a new, complex, multi-layered,
and codified legal system developed, installed, and accepted entirely
on the initiative of the local people. Discussing the need for and
conditions of the changes, he analyses the detail of the changes and
suggests that they demonstrate the possibility of ‘spontaneous legal
decentralization’ (604). Locating his particular findings within a
broader cross-cultural context, Rodman questions why so little
anthropological attention has been paid to legal innovation in such
otherwise innovative Melanesian societies and concludes that an
explanation may be the reluctance of centralist legal scholars to
conduct the long-term fieldwork required for observation of such
innovation.
Rodman, William and
Margaret Rodman. 1978. Courts and Courtship in a
New Hebridean Society. Oceania
49(1): 35-45,
http://www.jstor.org/stable/pdf/40330392.pdf?acceptTC=true&jpdConfirm=true,
accessed 5 June 2015.
Drawing on fieldwork in Longana on the island of Aoba or Ambae in
pre-Independence New Hebrides, now Vanuatu, the Rodmans take up the
question of why parents and offspring in conflict as to the choice of a
mate resort readily, contrary to the findings of Koch et al 1977, to
the unofficial court rather than resolving the disagreement within the
household. Setting out the previous processes of arranged marriage,
they go on to discuss how and why young people precipitate dispute by
open displays of inappropriate sexual conduct and why parents choose
the unofficial court in which to respond. They conclude that, at a time
when arranged marriage is gradually giving way to freedom of choice,
the court provides the public procedure by means of which roles and
relationships can be redefined and courtship disputes reconciled when
the parties are prepared to consider renegotiation of the distribution
of authority.
Rousseau, Benedicta.
2008. “This is a Court of Law, not a Court of
Morality”: Kastom
and Custom in Vanuatu State Courts. Journal of South
Pacific Law 12(2): 15-27,
http://www.paclii.org/journals/fJSPL/vol12no2/pdf/rousseau.pdf,
accessed 15 May 2015.
In reference to ‘the exercises in division which take place in the
state courts’ (15), Rousseau aims to destabilise and expand the terms
of reference of previous discussions of the relationships between
customary and state law in Vanuatu. In particular, she sees an elision
having taken place between English ‘custom’ and Bislama ‘kastom’,
obscuring ‘an important problematic in assessing ways to find a better
‘fit’ between ni-Vanuatu expectations of justice and their experience
of state courts’ (15). First discussing the nature of kastom and the
incorporation of custom into the state legal system, she outlines the
distinction between the two terms using both fieldwork observations and
recorded judgments: Public
Prosecutor v Gideon, Public
Prosecutor v
Wayane, Public
Prosecutor v Tariodo, and Waiwo v Waiwo and Banga.
Finally, she considers ways in which ‘custom’ creates frustrations in
the island courts because of the difficulty of actually applying
kastom. Arguing that her approach offers an alternative to both
positivism and legal pluralism, she concludes that the elision referred
to ‘perpetuates a separation between ni-Vanuatu and their court system
that may not allow recognition of how courts can be used and
experienced’ (27).
Sack, Peter G. 1974. The
Range of Traditional Tolai Remedies. In
Contention and Dispute:
Aspects of Law and Social Control in Melanesia,
edited by A L Epstein, 67-92. Canberra: ANU Press.
In examining a range of existing ethnographies and finding in each a
different exception, Sack questions the then-prevailing understanding
that the Tolai of East New Britain had no option other than physical
retaliation in redress of a wrong. Closely examining their cases and
examples, he derives a rich variety of alternatives and argues that the
root of the misconception had been a determination to discover a
western-style structure, with courts, lawyers, police, prisons, and
objective justice in Tolai society. He concludes that the crux of the
problem ‘is not that traditional Tolai law is different from Western
law but that it cannot be reduced to any neat two-dimensional system’
(91).
Saovana-Spriggs, Ruth.
2010. Bougainville Women’s Role in Conflict
Resolution in the Bougainville Peace Process. In A Kind of Mending:
Restorative Justice in the Pacific Islands, edited by
Sinclair Dinnen,
Anita Jowitt, and Tess Newton Cain, 195-213. Canberra: Pandanus Books,
http://www.jstor.org/stable/pdf/j.ctt24hbc4.22?&acceptTC=true&jpdConfirm=true,
accessed 15 June 2015.
In this chapter, Saovana-Spriggs, herself Bougainvillean and a
participant in the peace process, discusses perception and belief in
the process of restorative justice and difficulties encountered by
traditional procedures in accommodating changes in contemporary
Bougainville. Using specific examples from her own involvement, she
examines the background to the 2000 situation, difficulties and
conflicts in the traditional system, and women’s role and efforts in
conflict resolution and restorative justice, and offers detailed
suggestions as to why the peace process worked in Bougainville.
Sapolu, Patu Falefatu et
al. 2012. Law and Custom. In Samoa’s
Journey
1962-2012: Aspects of History, edited by Leasiolagi Malama
Meleisea,
Penelope Schoeffel Meleisea, and Ellie Meleisea, 18-43. Wellington:
Victoria University Press.
Tracing the development of laws and practices in the 50 years since
Independence, the authors, including the present chief justice, argue
that Samoa has been successful in combining the ideal of democracy with
a unique cultural heritage in building its legal system. They survey
that relationship, its constitutional basis, law and justice services
after Independence, judicial independence, Samoanisation of the
judiciary, mobile and youth courts, Land and Titles Court issues, law
and custom in elections, custom and human rights, including the
changing status of women, and population growth and the diaspora.
Scaglion, Richard. 1979.
Formal and Informal Operations of a Village
Court in Maprik. Melanesian
Law Journal 7(1): 116-129.
Responding to criticisms of the village courts in Papua New Guinea in
the 1970s, Scaglion undertakes a study of such a court in the Maprik
district in East Sepik to assess its operations within the framework of
conflict management. First backgrounding the village, he goes on to
discuss the local government council, police, welfare officers,
magistrates, and kiaps
(administration district officers), and analyses
the court records as to location, judgments, the substance of disputes,
and caseload. In relation to the operation of the court, he concludes
that it is functioning quite successfully, if not in the way in which
it was intended, constituting more a primary-jurisdiction court of
introduced law than a forum for settlement of traditional matters under
customary law.
Scaglion, Richard (ed).
1983. Customary Law in
Papua New Guinea: A
Melanesian View. Port Moresby: University of PNG Press.
This volume is the product of a research project into the principles of
customary law carried out by University of Papua New Guinea students in
their home areas under the guidance of US anthropologist Richard
Scaglion. Initially proposed as a survey of village-court records,
their scantiness and unreliability resulted in a very productive resort
to field work in those courts and questioning of individual
magistrates. A particular strength of the project is that each
researcher was both free and assisted to design a format appropriate to
the particular home area so as not to force customary law into
unnatural categories, particularly those of western jurisprudence. The
outcome was this collection of summaries of the customary laws from 24
districts of Papua New Guinea in the mainland, islands, Highlands, and
Papua.
Scaglion, Richard. 1990.
Legal Adaptation in a Papua New Guinea Village
Court. Ethnology
29(1): 17-33,
http://www.jstor.org/stable/pdf/3773479.pdf?acceptTC=true&jpdConfirm=true,
accessed 15 May 2015.
Returning to the Maprik village court in the East Sepik to examine the
operations of legal pluralism by means of a ten-year retrospective
analysis, Scaglion first outlines the history of the village courts
since their inauguration in 1975. Using the results of fieldwork and
records collected in 1979 and 1988, he examines locations of hearings,
relationships among litigants, judgments, the substance of disputes,
and gender of complainants. Identifying significant changes in the
operation of the court over 15 years, he points particularly to
innovations in dispute settlement, greater involvement of women, and an
effective synthesis of traditional and introduced law. Finally, in
response to the paucity of material on legal innovation in Melanesia,
Scaglion emphasises the importance of long-term studies such as his if
processes of incremental change are to be observed, along with the
agency of local people.
Serrano, Katherina and
Milena Stefanova. 2011. Between International
Law, Kastom and Sustainable Development: Cultural Heritage in Vanuatu.
In Island Futures:
Conservation and Development Across the Asia-Pacific
Region, edited by Godfrey Baldecchino and Daniel Niles,
19-36. Osaka:
Springer Japan.
In this chapter, the authors focus on the possibilities for
international or regional law in offering support for both
cultural-heritage preservation and sustainable economic development
within the poorly resourced pluralistic legal systems of the Pacific.
First defining the concept of cultural heritage and its application in
the case of the Chief Roi Mata’s Domain World Heritage site in
Northwest Efate, Vanuatu, they go on to survey possible utilisation of
the available international framework to support that project.
Identifying its particular challenges, they observe that difficulties
arise in heritage protection and sustainable-development management
from land issues, low institutional transparency, misinformation, and
legal pluralism but that existing international and regional agreements
are capable of filling Vanuatu’s legislative gaps. They conclude with
the hope that Pacific governments may realise that in time.
Shankman, Paul. 2001.
Interethnic Unions and the Regulation of Sex in
Colonial Samoa, 1830-1945. Journal
of the Polynesian Society 110(2):
119-148, http://www.jstor.org/stable/pdf/20706988.pdf?acceptTC=true,
accessed 26 May 2015.
Making the case that a full discussion of the subject would require a
much more substantial piece of work than a journal article, Shankman
embarks on a broad study, based on ethnographic and historical texts,
of interethnic relationships in Samoa from early encounters and mission
arrivals, through the German and New Zealand colonial periods, to the
end of World War Two with its influx of US troops. He argues that the
nineteenth century was characterised by acceptance and approval, the
early twentieth by increasingly systematic regulation, intensifying
under New Zealand rule, and the war period by fraternisation and
promiscuity, with some consequent harm to Samoan culture.
Sheehy, Benedict and
Jackson Nyamuya Maogoto. 2008. Constituting
Vanuatu: Societal, Legal and Local Perspectives. Asia Pacific Law
Review 16(2): 133-155,
http://heinonline.org/HOL/Index?index=journals/asiaplwre&collection=journals,
accessed 15 May 2015.
Considering the nature and status of law and governance in Vanuatu in
the early 2000s, the authors ask: ‘how is a society like Vanuatu
constituted and is law, as the social ordering of Western liberal
democracy, sufficient to create a functioning liberal democratic
society?’ (137). They survey societal and legal perspectives, and
particularly the European system and its developments, law,
constitution, and Independence, and the nature, functions,
organisation, and privileges of the National Council of Chiefs. Going
on to examine the law in action in the 2001 constitutional crisis, the
debate over western and Indigenous law and governance, and ongoing
societal issues, they conclude that legal dominance holds certain
attractions over a return to pre-western systems and that ‘Vanuatu’s
multiculturalism and pluralistic legal traditions will require some
form of system that allows accommodation of its various traditions’
(154).
Shore, Bradd. 1976.
Incest Prohibitions and the Logic of Power in
Samoa. Journal of the
Polynesian Society 85(2): 275-298,
http://www.jstor.org/stable/pdf/20705167.pdf?acceptTC=true,
accessed 25
May 2015.
This account of Samoan incest prohibitions within a comprehensive
cultural system comprises an ethnographic survey followed by an
analytical study, based on that material, relating prohibitions to
those aspects of Samoan ideology and social organisation concerning
brother-sister relationships. The first part covers attitudes to
incest, the extent of the prohibition, the definition of the offence,
and sanctions. In the second part, Shore outlines the characteristics
of the relationship between brother and sister, feaga’iga, as a
manifestation of the ‘powerful and pervasive ideological dichotomy
underlying many of the major Samoan social institutions’ (284). In
particular, he analyses the relationship in terms of formal power,
deriving from position, and instrumental power, deriving from
authority, as expressed in the covenant between the two siblings.
Returning to the question of incest, he introduces the concepts of
respect, aggression, and sexuality, the symbolic nature of blood, and
its place in the quest for control, and concludes that incest
prohibition and exogamy rule share a common idiom of power relations,
differentiated by the two forms of power.
Shore, Bradd. 1982. Sala’ilua: A Samoan Mystery.
New York: Columbia
University Press.
Shore’s brilliant ‘interpretive ethnography of Samoa cast as a mystery
story’ (xiv), based on involvement in Western Samoa over ten years,
including seven as an anthropologist, traces a history of conflict
between two senior matai,
chiefs, in the village of Sala’ilua and
reports on the murder of one of them. With that event as his starting
point, he systematically extends outwards in an examination of the
structures within which the event took place, including the village,
its chiefly system and political order, titles, and methods of social
control and the meanings inherent in the manner in which people and
institutions responded to what had occurred. While the entire book
provides a deeply perceptive background to the processes of Samoan law,
pages 107 to 120 and 150 to 167 deal specifically with formal legal
aspects, the latter including material from interviews about attitudes
to social control and pages 284 to 291 set out the judicial
consequences of the events.
Sigrah, Ken Raobeia and
Stacey King. 2004. Essentially Being Banaban in
Today’s World: The Role of Banaban Law ‘Te Rii ni Banaba’ (Backbone of
Banaba) in a Changing World. Changing
Islands – Changing Worlds,
Islands of the World VIII International Conference, 1-7 November 2004,
http://www.banaban.info/ISISA2004Paper-Ken.pdf,
accessed 18 October
2015.
This study focuses on the Banaban traditional system of law known as Te
Rii ni Banaba which governs settlement of disputes over
land ownership,
genealogy, and roles within society. Identifying the problems facing
Banabans as a result of the fragmentation resulting from colonial rule,
World War II, and exile to Rabi Island in Fiji after devastation of
their original island in phosphate mining, the authors argue that the
preservation of the traditional law and its implementation within
introduced law are vital to social, political, and economic
development. Outlining the history of Banaba and its people and
strongly criticising the contributions of colonial administrators to
their understanding, they set out their own history of the introduction
of the village system and individual land holding, the foundation of
the Island Court, the fragmentation of cultural law under the influence
of Europeans, war, and resettlement on Rabi, and the effects of living
under two other nations, Fiji and Kiribati. The authors conclude with
recommendations for the cultural strengthening of the legal framework
of the island government.
Stewart, Christine. 2008.
Men Behaving Badly: Sodomy Cases in the
Colonial Courts of Papua New Guinea. Journal of
Pacific History
43(1):
77-93, http://www.tandfonline.com/doi/pdf/10.1080/00223340802054693,
accessed 21 May 2015.
Stewart brings an anthropologist’s eye to a number of cases of
male-to-male sex tried shortly before Independence, examining in some
detail how the incidents were treated by the colonial courts in order
to determine the appropriateness of the law and its application. The
cases in question are R
v Mama Kamzo, R
v Clemence Mandoma Kausigor, R
v Siune Wel, and R
v C E C Leech and Peter Yaku. Stewart finds striking
in the cases the lack of acknowledgment of custom, despite
pre-Independence rhetoric, and an attitude to sodomy so rigid that it
could not countenance any reform of the law against it. In her ensuing
discussion, Stewart considers the extent to which the court was
required to take account of custom and its demonstrated abhorrence of
sodomy, particularly in the case of a white man, Leech, and concludes:
‘In 1972, it appeared that sodomy was indeed an offence designed for
the enforcement of officially received opinions on sexual morality. The
question remains, however: whose opinions and received by whom?’ (93).
Stewart, Christine. 2015.
The Courts, the Churches, the Witches and
their Killers. In Talking
it Through: Responses to Sorcery and
Witchcraft Beliefs and Practices in Melanesia, edited by
Miranda
Forsyth and Richard Eves, 183-195,
http://press.anu.edu.au/wp-content/uploads/2015/05/10.-The-Courts-the-Churches-the-Witches-and-their-Killers.pdf,
accessed 21 May 2015.
Setting out a brief background history of legal approaches to
witch-killing in Europe from the fourth to the eighteenth century, she
then takes up the colonial and contemporary approaches to witch-killing
and sorcery in Papua New Guinea through legislation and passing
references to a number of reported cases. In the context of custom and
witch-killing post-Independence, Stewart outlines a pattern of defences
in which it has been argued that the killers were acting in defence of
the community and she identifies as a philosophical problem beyond the
scope of the common-law system the question of whether protecting the
individual or protecting the community is more important. Noting an
increasing reluctance on the part of the judiciary to accept mitigation
arguments based on a blend of custom and Christianity, she concludes
that there are still unresolved underlying questions about who the
criminals really are.
Strathern, Andrew. 1972.
The Supreme Court: A Matter of Power and
Prestige. Melanesian
Law Journal 1(3): 23-28.
In considering the role of the Supreme Court in Papua New Guinea,
Strathern identifies a tension between law and social factors stemming
from a lack of congruence between the Indigenous normative order and
the imposed rule of law. Illustrating his point with a case history of
a multi-faceted dispute between two communities and sets of individuals
in the Mount Hagen area of the Western Highlands, he observes a gap
between the views of the local people and the court as a result of the
Mount Hageners’ emphasis on inter-group relations and that of the court
on guilt and responsibility. In conclusion, he suggests that awareness
of the need to bridge that gap could add prestige and influence to the
court’s existing legal power.
Strathern, Andrew. 1974.
When Dispute Procedures Fail. In Contention
and Dispute: Aspects of Law and Social Control in Melanesia,
edited by
A L Epstein, 240-270. Canberra: ANU Press.
In his fieldwork in Mount Hagen in the Western Highlands of Papua New
Guinea, Strathern investigates what he describes as a crisis in dispute
settlement that had developed there since the mid-1960s and the reasons
that confrontations, and consequent fearfulness, have increased.
Examining two local cases involving traffic accidents, he identifies
the causes as the contemporary economic background, including increased
roading, cash cropping, land shortages, and population growth. He
concludes that previously effective settlement procedures, particularly
between large-scale groups created by innovations such as electoral
boundaries, fail when the level of hostility is such that it can only
be expressed in physical violence or mutual ostracism. Consequently, he
suggests that earlier systems of dispute settlement by compensation
payment have come to require legal underpinning and more formal
processes of mediation.
Strathern, Andrew. 1975.
Compensation Payments in the Highlands. In Lo
Bilong Ol Manmeri, edited by Jean Zorn and Peter Bayne,
184-192.
Boroko: University of Papua New Guinea.
Drawing on a case history of a dispute between two tribes in the Mount
Hagen area of the Western Highlands of Papua New Guinea, Strathern
seeks to answer the question of ‘when compensation is feasible and
effective as a means of restoring inter-group relations and when it is
not’ (184). Identifying a range of requirements and difficulties in
negotiating compensation, he concludes that a settlement imposed by
force from outside will never have the effectiveness of one negotiated
by the groups themselves, with outside assistance if necessary in the
case of deadlock. Moving on to a consideration of compensation against
a background of ceremonial exchange, he notes the benefits of
involvement in the latter in the resolution of more disputatious
relationships and emphasises the importance of land in
dispute-settlement in the Highlands.
Strathern, Andrew. 1994.
Crime and Compensation: Two Disputed Themes in
Papua New Guinea’s Recent History. Political
and Legal Anthropology
Review 17(1): 55-66,
http://onlinelibrary.wiley.com/doi/10.1525/pol.1994.17.1.55/pdf,
accessed 3 May 2015.
This article comprises a series of case studies of crime and
compensation in the context of the disjunction of law and custom, the
conflation of law and government, gangs and guns, electoral violence,
and the clan versus the state, including the attribution of clan-like
identity to a section of the government. Observing a resurgence of
custom against law and the transformation of colonially derived problem
of ‘law and order’ into competition for resources, he warns that an
‘intertwining of contemporary politics with revivified and reshaped
tribal categories produces a continuing set of dynamic probabilities of
chronic conflict’ (64).
Strathern, Marilyn. 1971.
Legality or Legitimacy: Hageners’ Perception
of the Judicial System. Melanesian
Law Journal 1(2):5-27.
In this brief but comprehensive ethnography of dispute-settlement
procedures in Mount Hagen in the Western Highlands of Papua New Guinea,
Strathern is concerned with ‘the extent to which the imposition of “law
and order” has been accepted by one Highlands community’ (5). Setting
out the processes at different levels of formality, she discusses the
roles of traditional settlement, official courts, out-of-court
settlements, kiaps (local administration officers), and councillors and
komitis, she identifies a gap between the Hageners’ model of the
present legal system and that of the administration. Itemising in some
detail the repercussions of the former’s point of view and the local
usage of the term ‘lo’, from law, with its cluster of meanings, she
concludes that, while Hageners have only a partial constitutional
understanding of the total judiciary, they do understand the need to
maintain ‘law and order’; the ‘crux’, as Strathern sees it, ‘is what
weight is going to be put on the legality or illegality of Hageners’
own attempts to respond positively to the new law?’ (26).
Strathern, Marilyn. 1972.
Official and Unofficial
Courts: Legal
Assumptions and Expectations in a Highlands Community, New
Guinea
Research Bulletin 47. Canberra: Australian National University.
This ethnography is the result of intensive fieldwork in the Mount
Hagen region of Papua New Guinea in the Western Highlands. Hagen was
particularly suitable for the project as Strathern was already familiar
with the region, because it was regarded as a law and order problem
area, and because of continuing local resort for the settlement of
disputes to ‘quasi-traditional processes’ (1), including courts,
unofficial but locally regarded as part of the official judicial
system. Her often minutely recorded observations are organised into
chapters on traditional dispute settlement, the official judicial
structure, out-of-court channels, perceptions of the judicial system,
and the workings of that system.
Strathern, Marilyn. 1974.
Managing Information: The Problems of a
Dispute Settler (Mount Hagen). In Contention
and Dispute: Aspects of
Law and Social Control in Melanesia, edited by A L
Epstein, 271-316.
Canberra: ANU Press.
Strathern commences with an observation that the people of Mount Hagen
in the Western Highlands of Papua New Guinea greatly value bringing
grievances between those in frequent direct contact into the open for
‘talking out’ in kot,
regarded locally as part of the official
hierarchy but by the administration as ‘out-of-court arenas’ (273). She
sets out to examine kot
‘from the inside’, setting out comprehensive
descriptions of four cases involving domestic violence, a pig attack
and garden damage, divorce, and slander and examining the roles of
komiti,
local council members, as dispute-settlers and the tactics
employed by them.
Strathern, Marilyn. 1975.
Sanctions and the Problem of Corruption in
Village Courts. In Lo
Bilong Ol Manmeri, edited by Jean Zorn and Peter
Bayne, 48-58. Boroko: University of Papua New Guinea.
Contrasting on the one hand Australian administration concerns that
provision of enforcement procedures to village courts may lead to
corruption by putting power into the hands of local big men with, on
the other, the lack of concern about corruption on the part of the
local people in Mount Hagen in the Western Highlands of Papua New
Guinea, Strathern here examines the question of power and its transfer
in the context of unofficial and village courts. Examining the exercise
of power and the deployment of sanctions in each of those systems, she
argues for the accommodation of the traditional dispute-settlement
procedures of the unofficial courts within the village court system
and, in particular, the retention of compensation in satisfaction of
grievances without imposed limits on the amount of such settlements.
Strathern, Marilyn. 1985.
Discovering ‘Social Control’. Journal
of Law
and Society 12(2): 111-134,
http://www.jstor.org/stable/1409963?seq=1#page_scan_tab_contents,
accessed 20 May 2015.
Challenging both anthropological and western legal emphasis on social
order and control and their association with processes of disputing,
Strathern suggests that the case of Papua New Guinea throws a different
light on dispute settlement. Reviewing current academic views on the
imposition of law, she turns to discussion of Papua New Guinea dispute
settlement, referencing Chowning 1974, Epstein 1974a, Koch 1974, and
Lawrence 1970, and argues that, contrary to received opinion, ‘the more
disputes are “settled” then the more they will erupt’ (123). In
surveying associated wealth exchanges, she advances three points: that
they, like fighting, enable conversion of emotional states into
political acts; that political groups are related not through
dependency but through ‘negotiated reciprocity and strenuously
sustained independence’ (126); and that ‘group appropriation of
emotional states makes them, as it were, lethal instruments of
self-aggrandisement’ (126). Strathern concludes that wealth exchanges
cannot just be seen as alternatives to violent solutions but that such
mediations, effecting the mutability of values, are specifically
political interactions.
Strathern, Marilyn. 2004.
Losing (Out On) Intellectual Property, In
Law, Anthropology, and
the Constitution of the Social: Making Persons
and Things, edited by Alain Pottage and Martha Mundy,
201-233.
Cambridge: Cambridge University Press.
Prefacing her discussion with an outline and analysis of a case in
Mount Hagen in the Western Highlands of Papua New Guinea in which a
young woman was offered as part of the compensation for a death,
Strathern sets out to ‘extricate kinship and the question of
obligations from the antithesis between Tradition and Modernity’ (209).
Surveying concepts of body ownership, whole persons as things and their
ownership, and part persons, body parts, as agents, she critiques the
de-contextualisation of cases such as she has set out, suggesting that
there are alternatives to supra-local universalism and total relativism
in addressing human rights. In conclusion, she proposes a role for
anthropology in re-contextualisation as both an activist and a
scholarly intervention.
Techera, Erika J. 2009.
Legal Foundations for the Recognition of
Customary Law in the Post-Colonial South Pacific, In Law and
Anthropology: Current Legal Issues 2008, edited by Michael
Freeman and
David Napier, 218-246. Oxford: Oxford University Press.
Tracing responses to introduced law through the stages of legal
realism, sociological studies, Critical Legal Studies, and legal
anthropology and legal pluralism, Techera notes the continued existence
of customary law in the South Pacific, often in tension with the
dominant legal system, and proposes ‘to examine the theoretical bases
that may be used to support the formal recognition of customary law and
to illustrate why it should be acknowledged as an important source of
law’ (220). In doing so, she examines the relationships between law and
custom, arguments for and against formal recognition of customary law,
legal pluralism and the recognition of customary law, international
human-rights law and Indigenous peoples, environmental justice, ways in
which customary law may be recognised, and customary law and
environmental management. Recognising that customary law has been
eroded by colonisation and globalisation, she nonetheless argues that
legal pluralism provides theoretical justification for its formal
recognition and reinvigoration and a springboard for the process of law
reform.
Thomas, Frank R. 2001.
Remodelling Marine Tenure on the Atolls: A Case
Study from Western Kiribati, Micronesia. Human Ecology
29(4): 399-423,
http://www.jstor.org/stable/pdf/4603409?acceptTC=true,
accessed 25
August 2015.
Identifying the less-visible demarcation of sea tenures compared with
those on land as a source of colonial and global impacts on Pacific
seascapes and a conflict between advocacy and developmental
anthropological approaches, Thomas examines an eroding but still
existing system of Customary Marine Tenure in the Tungaru Archipelago
of Kiribati. Setting out the types of traditional resource areas, the
impacts of social change upon their exploitation, and the conflict
between short-term gains and conservation, for solution of consequent
problems he looks to cooperative ventures and the application of
Traditional Ecological Knowledge as an instrument for resource
management. In the light of inadequate government enforcement
capability, he proposes that ‘a polycentric system to common-pool
resources monitoring could be created, whereby local users would retain
authority to formulate at least some of the regulations by virtue of
their local knowledge and the redundancy and rapidity of a
trial-by-error learning process’ (417).
Tiffany, Sharon W. 1974.
The Land and Titles Court and the Regulation
of Customary Title Successions and Removals in Western Samoa. Journal
of the Polynesian Society 83(1): 35-57,
http://www.jstor.org/stable/pdf/20704970.pdf?acceptTC=true,
accessed 25
May 2015.
Tiffany commences her study of title conflicts and the influence of the
Western Samoan Land and Titles Court on customary procedures with a
short but very helpful outline of the nature and role of the ‘aiga,
family, the largest of the ‘kin groups based on non-unilineal
principles of descent reckoning’ (35), and of the history, composition,
and procedures of the court. In dealing with the process of title
succession she returns to the ‘aiga
in its form of the ‘aiga
potopoto,
the assemblage of family members that determines its affairs and its
criteria in evaluating the candidates for a matai, a title:
consanguinity, service, and personal qualities. Turning to the court’s
parallel criteria, she observes that, while it recognises those
customary principles, it has not established any fixed hierarchy of
them, acknowledging consanguinity as important but also recognising
other criteria. Drawing on a number of cases to investigate the
splitting of titles and removal from office, she identifies three
contexts in which the court adjudicates: those in which the family
cannot reach consensus, those with questions over family participation,
and those subject to challenge by those affected. Tiffany concludes
that the court is an increasingly important institution for dispute
resolution as a neutral alternative to traditional procedures.
Tiffany, Sharon W. 1980.
Politics of Land Disputes in Western Samoa.
Oceania 50(3):
176-208,
http://www.jstor.org/stable/pdf/40330473.pdf?acceptTC=true,
accessed 8
June 2015.
Using case studies from the Western Samoan Land and Titles Court,
Tiffany examines ‘land controversies as part of a continuous political
process of defining and negotiating interpersonal and intergroup
relations’ (176) within three distinct legal systems, those of ‘aiga,
families, fono,
village councils, and the court. Setting out the
history of land and judicial institutions through aboriginal tenure,
involvement by Britain, Germany, and the US, the 1889 Berlin Act, a
succession of German and New Zealand acts and institutions, as well as
Independence and constitutional provisions, she goes on to describe the
nature and role of the other two systems of ‘aiga and fono, their
involvement in land tenure, and court processes in land disputes.
Illustrating the structural patterns of land-dispute generation,
development from village to court, and the kinds of conflicts that
reach the courts in eight cases heard before 1969, she concludes that
petitioning the court has become part of negotiating strategy in
disputes while, despite an increase in litigation, many continue to be
managed by ‘aiga
and fono.
Tiffany, Sharon W. 1983.
Customary Land Disputes, Courts, and African
Models in the Solomon Islands.
Oceania 53(3): 277-290,
http://www.jstor.org/stable/pdf/40330681.pdf?&acceptTC=true&jpdConfirm=true,
accessed 8 June 2015.
Outlining the relationship between the 65 Solomons local courts and the
High Court through a variety of cases involving appeals from the former
to the latter, Tiffany observes that Solomon Islanders resort to court
action for their own ends ‘based on their understanding of white men’s
custom and expectation’ (279)and that the western presumption of a
unified corpus of principles requires Indigenous court members to draw
on their own knowledge of both introduced and customary law and
litigants to persuade them of the validity of their own versions of
custom. Challenging the western assumption that courts can definitively
resolve land disputes and the validity of imposing models derived from
African anthropological research on Melanesian societies, she concludes
that land claims are not easily settled by courts and that the evidence
suggests that rehearing of local-court decisions has been incorporated
into customary dispute processes.
Tiffany, Walter W. 1975.
High Court Adjudication of Chiefly Title
Succession Disputes in American Samoa. Journal of the Polynesian
Society 84(1): 67-92,
http://www.jstor.org/stable/pdf/20705045.pdf?acceptTC=true&jpdConfirm=true,
accessed 10 June 2015.
Discussing the influence of the introduced court system on the
traditional procedures and criteria of title succession in American
Samoa, Tiffany outlines the evolution of the High Court in that
territory, the emergence of its decision criteria, and current
selection criteria including character and value, hereditary right, and
the wishes of the majority of ‘clans’. In a case study of a
title-succession contest between 1964 and 1970 in Fitiuta village in
the district of Manu’a, he describes the pre-trial negotiations, the
public trial, and the court’s decision and award of the matai (chiefly)
title. Comparing this case with an earlier one in which the court’s
decision was pre-empted by the village fono (chiefly
council), he
observes that even the most conservative villages have, by the late
1960s, resorted to the High Court in title disputes. Following a
discussion of title splitting and removals of matai, he concludes
that,
despite the administration’s stated intentions to preserve Samoan
custom, judicial institutions have in fact influenced traditional
processes and criteria in title succession.
Toro, M. 1973. Disputes
in a Fijian Village Setting. Unpublished
University of the South Pacific MA Thesis.
This brief account of dispute situations and procedures for their
resolution was mainly carried out in Mouta village on Vanua Levu in
Fiji. Toro’s areas of interest include procedures for dispute
situations involving women, the social context of those procedures, and
available choices for dispute settlement. Having set out a general
ethnography of Mouta supplemented by observations in two neighbouring
villages, Toro turns specifically to conflict situations, itemising a
variety of expressions and surveying methods of social control
including internal and external sanctions and procedures involving
chiefs and families. Summarising two examples of internal sanctions in
cases of produce theft and adultery and more fully describing three
cases of external sanctions in cases of elopement, a love affair, and
adultery, he turns to bulubulu,
a variety or example of i soro, a major
means of conflict resolution involving apology and presentation of
cultural goods by the offending party and acceptance and forgiveness by
that offended against. See also Arno 1974 and 1976, Hickson 1975, Koch
et al 1977, and Merry 2006.
Tuzin, Donald. 1974.
Social Control and the Tambaran in the Sepik. In
Contention and Dispute:
Aspects of Law and Social Control in Melanesia,
edited by A L Epstein, 317-344. Canberra: ANU Press.
Tuzin’s report of his fieldwork among the Ilahita Arapesh of the East
Sepik in Papua New Guinea examines a form of public disturbance which,
he claims, the elders of the community uncharacteristically ‘manage
with remarkable skill and success’ (320). The cause of the disturbances
is death, nearly always ascribed to sorcery, which in more than half of
recorded cases is attributed to Nggwal, ‘the paramount figure in the
men’s secret tambaran
cult’ (320). Describing and analysing six such
cases in detail, he concludes that the religiously oriented processes
of social control employed in dealing with these cases results, through
the agency of Nggwal, in authority being exercised not by youthful
troublemakers but by ‘prudent old men who recognise that their personal
and group self-interest coincides completely with the welfare of the
village’ (344).
Va’a, Unasa I F. 2009.
Samoan Custom and Human Rights: An Indigenous
View. Victoria
University of Wellington Law Review 40(1): 237-247,
http://www.victoria.ac.nz/law/research/publications/vuwlr/prev-issues/vol-40-1,
accessed 15 May 2015.
Focusing on human rights from the perspective of Samoan life and
custom, Va’a argues that, despite different origins, the western in
metaphysics, the Samoan in humanity and in the state of being an heir,
the overall understanding of human rights is the same. Summarising the
Samoan concepts of tagata,
human personhood, the rights of a suli,
heir, feagaiga,
relationships, particularly those between a brother and
sister, and core values and beliefs, he concludes that Samoans ‘were
aware of universal human rights and women’s rights, long before they
were popular in the West’ (245). Surveying the current state of human
rights in Samoa, he declares that traditional Samoan and modern western
human rights are compatible, despite some challenges in the spheres of
economic and political rights.
Vaai, Asiata. 1997. The
Idea of Law: A Pacific Perspective. Journal of
Pacific Studies 21: 225-245,
http://www.usp.ac.fj/fileadmin/files/Institutes/jps/Vaai.PDF,
accessed
1 June 2015.
In a broad historical survey of concepts and approaches underlying the
theory of law in general and the anthropology of law and its
application to Africa and the Pacific, Samoan MP and barrister Vaai
pays particular attention, in the Pacific context, to the work of
Malinowski, Hogbin, and Pospisil, shifts in response to nationalism and
decolonisation in the 1960s, increasing interest in customary law, and
the emergence of legal pluralism. Reviewing the development of
constitutions in Papua New Guinea, Fiji, Solomon Islands, Tuvalu,
Vanuatu, and (Western) Samoa, he concludes that the imposed law and new
constitutions resulting from colonisation have ‘effectively and
permanently marginalised customary laws’ (242).
Weiner, James F. 2006.
Eliciting Customary Law. Asia Pacific Journal of
Anthropology 7(1): 15-25, http://www.tandfonline.com/toc/rtap20/7/1,
accessed 8 June 2015.
Referring mostly to an Australian context in this article,
Weiner, in
critiquing Noel Pearson’s concept of a ‘Recognition Space’ between
Australian law and Aboriginal law, tests it in a number of different
societies and periods, including Hawai’i and Papua New Guinea, and
concludes that customary law is ‘an artefact of colonial and state
regimes of administration of the indigenous’ (15). He appends some
observations on the relationship between existing anthropological and
legal perspectives on culture.
Weiner, James F. 2011.
Foreword. Pacific
Studies 34(2/3): 87-91,
https://ojs.lib.byu.edu/spc/index.php/PacificStudies/issue/view/2411,
accessed 8 June 2015.
In his foreword to this historical and anthropological special issue on
land and law in Australia and the Pacific, Weiner introduces and
surveys the contributions and refers particularly to Farran 2011,
Goddard 2011, Guo 2011, Howard 2011, and Pascht 2011.
Weiner, James F and Katie
Glaskin. 2006. Introduction: The
(Re-)Invention of Indigenous Laws and Customs. Asia Pacific Journal of
Anthropology 7(1): 1-13,
http://www.tandfonline.com/doi/pdf/10.1080/14442210600551826,
accessed
8 June 2015.
This introduction to a collection of articles from a workshop on
Indigeneity and Indigenous laws and customs sketches the history of
structural-functionalism in the anthropology of law and opens up the
issue of ‘invention of tradition’. Diverging from discussions of the
creation of customary law, the authors suggest that there is now
sufficient ‘ethnographic and case material to indicate how the progress
of ‘tradition’ and ‘customary law’ is being re-analysed and re-assessed
both by anthropologists and by the courts in a number of countries. The
article includes reference to and commentary on Filer 2006 and Weiner
2006.
Weisbrot, David. 1989.
Law and Native Custom in Vanuatu. Law
and
Anthropology: Internationales Jahrbuch für Rechtsanthropologie,
Vol. 4,
103-134. Vienna: VWGÖ-Verlag.
Characterising Vanuatu as a ‘manifestation of quadruple personalities’
combining French civil law, British common law, joint law, and
customary law (103), Weisbrot outlines that country’s colonial
background, including early contacts, the Condominium, and moves
towards Independence, and the Independence Constitution. Examining
pluralism in practice, he assesses the work of the formal courts, the
application of French jurisprudence, the island courts, and the
National Council of Chiefs. He assesses the results and implications of
reversion to customary law in land tenure, arguing that ‘custom’ and
‘land’ have come to be synonymous and concludes that it is not, as
elsewhere, inertia that has impeded progress in integrating legal
systems but the conflicting demands of kastom and
Christianity, social
democracy and tradition, Melanesian socialism and international
capitalism, and unity and diversity. He predicts that the outcome will
be ‘a form of progressive western legalism, with custom, culture and
traditional values invoked in the general sense as powerful symbols of
national unity and legitimacy’ (123).
Wesch, Michael. 2007. A
Witch Hunt in New Guinea: Anthropology on
Trial. Anthropology and
Humanism 32(1): 4-17,
http://onlinelibrary.wiley.com/doi/10.1525/ahu.2007.32.1.4/pdf,
accessed 21 May 2015.
In this complex and thoughtful examination of some of the ethical
dilemmas of fieldwork, Wesch employs a layered telling and retelling of
the story of a witch hunt he experienced in an anonymous community in
Papua New Guinea to ‘trace the roots of these ethical dilemmas to the
ways holism, cultural relativism, and participant-observation have been
reshaped to serve new theoretical interests but have not yet been
reformulated into a consistent ethical stance for fieldwork practice’
(4). In his first telling of the witch-hunt story he recounts it in the
form he would deliver to students as a ‘Being there’ story. In
the
retelling, he provides details of the government resettlement campaign
that gave rise to the witch hunts and his own deeply troubling
participation in the events as well as his eventual sense of
powerlessness and fragmentation, a state he offers, by way of solace
for the lack of a happy ending, as a productive position to be in.
Westermark, George D.
1986. Court is an Arrow: Legal Pluralism in Papua
New Guinea. Ethnology
25(2): 131-149,
http://www.jstor.org/discover/10.2307/3773665?uid=3738776&uid=2129&uid=2&uid=70&uid=4&sid=21106720840883,
accessed 11 May 2015.
Responding to what he sees as a failure to give sufficient weight to
Indigenous factors, Westermark proposes that an interactional approach
will be most profitable in understanding the complex relationship
between state and Indigenous law. Reviewing other theoretical
contributions to developing the interactional approach, he sets out to
demonstrate its effectiveness in a study of village courts in the
Agarabi area of the Eastern Highlands of Papua New Guinea. In doing so,
he takes account of precolonial Agarabi society, social change, court
officials, supervision, and procedures of the courts, and their uses,
the latter supported by statistical tables of cases and decisions. By
this process of drawing on a combination of cultural and historical
elements, he concludes that the courts have generated their own rules
and procedures, have received general acceptance as a result of a blend
of positive factors, and have proved themselves successful. Westermark
adds that the benefit of the interactional approach ‘is that it acts a
sensitizing concept which calls attention to neglected aspects of
social life’ (147).
Westermark, George D.
1987. The Agarabi Moot: Customary Law and Legal
Development in Papua New Guinea, edited by Richard Scaglion. Journal of
Anthropology 6(1): 77-94.
Returning to the Agarabi people of the Eastern Highlands of Papua New
Guinea, Westermark focuses upon the operation of the village moot, one
of a number of fora for the settlement of disputes, and one ‘where
disputes are aired through a relatively unconstrained negotiation
between the parties and their supporters’ (77). Surveying pre-colonial
Agarabi society and subsequent social and economic change, he outlines
the goals and procedures of the village moot, its linkages with the
village court, and the uses to which the moot it is put. He concludes
that the separate but complementary identities of the village moot and
the village court have become conceptually conjoined to provide
mediation and adjudication in ways culturally appropriate to the
particular circumstances of a dispute.
Westermark, George D.
1991a. Controlling Custom: Ideology and Pluralism
in the Papua New Guinea Village Courts. Legal Studies Forum
15(2):
89-102,
http://heinonline.org/HOL/Print?collection=journals&handle=hein.journals/lstf15&id=99&print=section§ion=19&ext=.pdf,
accessed 10 June 2015.
Looking again at dispute resolution in Papua New Guinea’s village
courts, Westermark acknowledges the usefulness of models of social
control and of social resistance but adopts two ideological
perspectives, national and local, for the purpose of analysis. He
discusses them in relation to five primary dimensions: custom,
government, procedure, allowances, and crime. As a result, he observes,
the national ideology privileges custom in the conduct of the courts
while local ideology focuses on custom but places it on an equal
footing with state law, the two perspectives developing in dialogue
with each other.
Westermark, George D.
1991b. Village Courts in Papua New Guinea: A
Comparative Perspective. Law
and Anthropology: Internationales Jahrbuch
für Rechtsanthropologie, Vol. 6, 67-79. Vienna:
VWGÖ-Verlag.
Within a review of theoretical orientations in the field of legal
pluralism, Westermark emphasises Benda-Beckman’s suggestion ‘that the
jurisdictions of neo-traditional forums should be compared with
indigenous socio-political structures to understand the effectiveness
of their operations’ (67). Drawing on his own research in the Agarabi
area of the Eastern Highlands of Papua New Guinea and that of others in
two other districts, he backgrounds the establishment and development
of the village courts in general and presents case studies of their
procedures in Agarabi, Chuave in the Eastern Highlands, and Abelam in
the Sepik River area on the north coast. He finds in the results of
case studies ample support for Benda-Beckman’s approach, with each set
of courts operating in accordance with a variety of pre-existing
customary, geographical, and leadership considerations. Most important
for Westermark in this regard is ‘the fact that the courts’
jurisdictions are limited enough so that there are continuous lines of
communication and personnel between the village moots and the full
courts’ (76).
Westermark, George D.
1997. Clan Claims: Land, Law and Violence in the
Papua New Guinea Eastern Highlands. Oceania 67(3):
218-233,
http://www.jstor.org/stable/pdf/40331558.pdf?&acceptTC=true&jpdConfirm=true,
accessed 8 June 2015.
Returning to his field site in the Agarabi area of the Eastern
Highlands of Papua New Guinea, Westermark investigates recent
confrontations over land resulting from new economic opportunities, an
accompanying elaboration of clan histories in pursuit of claims, and,
in particular, ‘the interconnection of threats and acts of violence,
legal institutions, and the cultural elaborations associated with clan
stories’ (218). Tracing patterns of identity and conflict through
pre-colonial, colonial, and Independence periods and surveying legal
discourse and practice around land, law, and economy, he presents four
case studies in which land claims have been pursued with strategies of
both law and violence: one relating to town land and others to distant
land, shared land, and old land. Detecting both cultural continuity and
transformation in the cases outlined, and acknowledging that the
narrative elaboration is not recent but reflects the local normative
order of earlier periods, Westermark predicts that land disputes will
continue to feature a mixture of physical confrontation and formalised
claims.
Wormsley, William. 1987.
Courts, Custom, and Tribal Warfare in Enga:
Customary Law and Legal Development in Papua New Guinea, edited by
Richard Scaglion. Journal
of Anthropology 6(2): 55-107.
Wormsley sets out ‘to review the role of custom in the courts where
inter-tribal violence has characterized the general context of
conflict’ (55), basing his study on fieldwork with the Enga of the
Northern Highlands of Papua New Guinea and focusing particularly on the
impact of legal decisions in developing the customary elements of the
underlying law. Describing the Enga people and the nature and forms of
tribal warfare among them, he surveys government responses, including
pacification, intervention, and legislation, and illustrates their
effect with three cases involving murder, accidental death, and deaths
resulting from negligence. Going on to consider conflicts between
custom and law outside the context of warfare, he presents some
speculations on custom as law and concludes that the courts’
minimisation of the influence of custom, which he describes as
‘idiosyncratic and situational’ (101), may be best for the equal
protection of Papua New Guineans.
Young, Michael W. 1974.
Private Sanctions and Public Ideology: Some
Aspects of Self-Help in Kalauna, Goodenough Island. In Contention and
Dispute: Aspects of Law and Social Control in Melanesia, edited by A L
Epstein, 40-66. Canberra: ANU Press.
This ethnography of the settlement of disputes in the village of
Kalauna on Goodenough Island in the D’Entrecasteaux Islands of Papua
New Guinea focuses on the sanction of food-giving-to-shame or coercive
food-giving, and its most institutionalised form of abutu, in disputes
over food, pigs, or women, and identifies the legal principles
underlying the process. From two case studies, one simply conducted
within the village meeting, the other involving something of a judicial
procedure, Young concludes that these procedures provide a forum for
self-help and that one consequence is that the ideology of such a
system of social control must be flexible enough to allow for disputes
only to appear to be settled.
Zorn, Jean G. 1990a.
Customary Law in the Papua New Guinea Village
Courts. The
Contemporary Pacific 2(2): 279-311.
Responding to criticisms of the effectiveness and formalism of Papua
New Guinea’s village courts in their earlier stages, Zorn observes in
them a continuing combination of customary and court procedures,
challenges the assumption that custom is not appropriate to the large
heterogeneous societies that have emerged, and argues that custom and
court environment will each be transformed by interaction. In support
of her argument, she outlines the structure and functions of the
village courts and their supposed ‘westernisation’, a criticism based
on adherence to two separate models of dispute settlement, court and
compromise, and an assumption that the village courts have strayed from
the latter to the former. Seeing both models operating in existing
studies, she examines the operation of customary law and formalism in
the courts of two villages located near the capital, Port Moresby, and
concludes that they ‘contain many elements of the court model, but
these are manipulated by the magistrates and blended with elements of
the compromise model in such a way as to permit the village courts to
achieve the results of the compromise model’ (305).
Zorn, Jean G. 1990b.
Lawyers, Anthropologists, and the Study of Law:
Encounters in the New Guinea Highlands. Law and Social Inquiry
15(2):
271-304,
http://heinonline.org/HOL/Print?collection=journals&handle=hein.journals/lsociq15&id=279&print=section§ion=20&ext=.pdf,
accessed 8 June 2015.
Responding to Gordon and Meggitt 1985 and, in particular, their
‘attacks’ on lawyers and legal scholarship, Zorn outlines the history
of the evolution of legal anthropology in five episodes she
characterises as follows: anthropologists - toward customary law from
1920 to the 1940s; lawyers - the rejection of customary law from 1920
to the 1940s; lawyers and anthropologists – the creation of customary
law from the 1940s to the 1970s; lawyers – competing responses to
customary law from 1960 to 1975; and anthropologists and lawyers –
legal pluralism and its antitheses from 1975 to the time of writing.
Returning to Gordon and Meggitt, she responds in some detail to their
arguments about the perceptions and practices of the Enga, the subjects
of their study, and finds their account of the reasons for the
resurgence of tribal warfare ‘ultimately unsatisfying’ (295). She
acknowledges that they provide a corrective to studies based on the
imposition of state law but suggests that their analysis would benefit
from the inclusion of lawyerly perspectives. Distinguishing the
approaches of anthropologists as beginning inside a culture in
ethnographic study from those of lawyers beginning outside a culture
from the vantage point of state law, Zorn compares the strengths and
weaknesses of the two approaches and concludes that they ‘must operate
collectively to understand the special needs and goals that the Enga
reveal through their re-creation of tribal fighting, to respond to
those needs, and to help the Enga achieve those goals’ (303).
Zorn, Jean G. 1991.
Making Law in Papua New Guinea: The Influence of
Customary Law on Common Law. Pacific
Studies (14(4): 1-34,
https://ojs.lib.byu.edu/spc/index.php/PacificStudies/issue/view/2402,
accessed 8 June 2015.
Zorn recounts ‘the story of a court case in Papua New Guinea’ (1), png
Ready Mixed v The State, to examine the positions of and
inter-relationships among the company, the government, and the
villagers concerned with their attempted ejection, as well as the ways
in which customary law is entering and altering introduced common law
and the findings of the National Court. Observing that, while the court
set out its opinion in such a way as to suggest that it merely found
and applied pre-existing rules, it, in fact, made some radical changes
to land law, she discusses in some detail the manner in which that came
about. Remarking that the Papua New Guinea courts are ‘resolutely
positivist’ while the Constitution is not, she argues that, while the
court’s opinion in this case ‘demonstrates the dominance in Papua New
Guinea of positivist ideology, it also demonstrates the inability of
that paradigm to encompass everything that judges, even positivist
judges, routinely do’ (20). She concludes that the common law will
eventually become an amalgam of elements of both the law of England and
the customary law of Papua New Guinea, being and becoming, in that
process, itself.
Zorn, Jean G. 1992a. Graun Bilong Mipela:
Local Land Courts and the
Changing Customary Law of Papua New Guinea. Pacific Studies 15(2):
1-38,
https://ojs.lib.byu.edu/spc/index.php/PacificStudies/issue/view/804,
accessed 8 June 2015.
Taking into account increasing pressure on land ownership and use in
Papua New Guinea as a result of the introduction of a market economy
and consequent pressures to shift custom towards individual ownership,
Zorn suggests that the inherent flexibility of customary law will allow
it adapt to respond to conflicts between both disputing claimants to
land and different views on land tenure, and to influence legal values
and processes. Setting out the parameters of customary land law, she
identifies three factors in the post-Independence decision to create
land courts: interest in replacing introduced law with customary law, a
perception that tribal fighting was increasing, and recognition that
existing governmental mechanisms were incapable of resolving land
disputes. Zorn then traces the history of the development of land law,
and the role of the National Court therein, through Kaigo v Kurondo,
State v Giddings,
Application of Nango
Pinzi, Application
of Ambra Nii,
and State v District
Land Court, ex parte Caspar Nuli. In the context
of custom, common law, and economic development, she argues that
customary law offers an escape from commodification and the rule of the
market through its economic origins in egalitarianism, smaller scale,
and reciprocity. She concludes that: ‘By permitting contradictory rules
to exist simultaneously, by eschewing finality, by focusing on
interests in and needs for land rather than on ownership and other
rights, customary law permits land cases to be reopened whenever the
need arises’ (33).
Zorn, Jean G. 1992b.
Common Law Jurisprudence and
Customary Law. In Legal
Issues in a Developing Society, edited by R W
James and I Fraser, 103-127. Port Moresby: Faculty of Law, University
of Papua New Guinea.
On the growing reflection of its society in the underlying law of Papua
New Guinea, Zorn observes that in this very departure from introduced
English law it actually resembles its adaptable progenitor. While the
Constitution provides for the underlying law to combine customary law
and common law, she detects significant obstacles to the integration of
customary law in the positivism of the judiciary and the reluctance of
parliament to legislate for it. Discussing the possibilities for
finding existing rules of customary and common law, with reference to
png Ready Mixed v The
State, and the formulation of new rules of the
underlying law, she goes on to compare positivism and legal realism as
influences on the underlying law, briefly traces the histories of the
two philosophical approaches, and itemises problems she sees as
inherent in the positivist mode of judicial decision-making and
possible benefits of legal realism. She concludes that, ‘if the judges
are legal realists, if they recognize both the inevitability of legal
change and the special role that the judiciary can play in directing
that change, then they will create an underlying law that keeps pace
with the needs and circumstances of Papua New Guinea’s dynamic social
order, an underlying law truly suited to Papua New Guinea’ (127).
Zorn, Jean G. 1996.
Custom and/or Law in Papua New Guinea. Political
and Legal Anthropology Review 19(2),
http://onlinelibrary.wiley.com/doi/10.1525/pol.1996.19.2.15/pdf,
accessed 3 May 2015.
Zorn returns to the subject of the interplay between courts, with their
state power, and custom, with its sanctity of tradition, this time in a
case involving the application of law and custom to a dispute about the
existence or otherwise of a customary marriage, Application of Thesia
Maip and In the Matter of the Constitution S. 42(5).
Outlining the
facts of the case, she pauses to background the historical development
of the Papua New Guinea legal system before returning to the
conflicting opinions and decisions of a village-court magistrate and a
Supreme-Court judge. She concludes that, in the face of the social
conservatism of the magistrate, the judge, going out of his way to
acknowledge and apply custom, in fact changed custom, turning it into
customary law. Zorn adds that the case makes clear that existing custom
would not be recognised by a Papua New Guinean of a century ago and
that the roles of women, their norms of conduct, and the institution of
marriage are changing, however slowly.
Zorn, Jean G. 2010a.
Custom Then and Now: The Changing Melanesian
Family. In Passage of
Change: Law, Society and Governance in the
Pacific, edited by Anita Jowitt and Dr Tess Newton Cain,
95-123.
Canberra: Pandanus Books,
http://www.jstor.org/stable/pdf/j.ctt24h3jd.14?&acceptTC=true&jpdConfirm=true,
accessed 15 June 2015.
Zorn opens this chapter with a series of questions she describes as
‘important for courts, clients and counsel’ (96): What is custom? What
has caused custom to change, and what kinds of changes have occurred
since the pre-colonial era? If custom is constantly changing, how do
courts assure themselves that what they are applying is custom? With
reference to the last, she outlines custom then, customs changing, and
custom now analyses three cases from three Melanesian countries. Of
Application of Thesia
Maip from Papua New Guinea, she observes a court
refusing to use new practice in a case involving customary marriage
because it is insufficiently widely used; of To’ofilu v Oimaae
from the
Solomon Islands, a court accepting new practices in a matter of
brideprice but as if they were common law; and of Molu v Molu No 2 of
Vanuatu, a court applying new and old in a customary manner to a
question of custody of children. Zorn concludes that the important
issue from these varying combinations of custom and common law ‘is the
relationship that the people should have to their law, and that the law
should have to the people’, the vital thing for a society being that
‘law and customs must be close to one another’ (112).
Zorn, Jean G. 2010b.
Issues in Contemporary Customary Law: Women and
the Law. In Passage of
Change: Law, Society and Governance in the
Pacific, edited by Anita Jowitt and Dr Tess Newton Cain,
125-142.
Canberra: Pandanus Books,
http://www.jstor.org/stable/pdf/j.ctt24h3jd.15?&acceptTC=true&jpdConfirm=true,
accessed 15 June 2015.
Zorn’s thesis in this chapter is that critics of the discriminatory
practices of Indigenous cultures have been wrong in assuming that state
courts will provide a corrective; where such discrimination exists, she
suggests, state agencies have done little or nothing. Focusing
particularly on three forms of indirect discrimination, she provides
examples from three Melanesian countries of the effects of
‘gender-neutral’ legislation, the influence of social and cultural
attitudes on interpretation and procedures, and failure to correct
discrimination. The first case, Public
Prosecutor v Kota, appears to
address the issue of women and the powers of chiefs in Vanuatu; the
second, Talusui v
Tone-ewane, women and the vote in the Solomon
Islands; and the third, The
State v Joseph Kule, women and compensation
in Papua New Guinea. While the cases appear to be about customary
treatment of women, she argues, they were in fact about powers of
chiefs in a dual political system, religion, and the welfare of
children and that the blindness of the courts to indirect
discrimination supported the direct discrimination of customary law.
Zorn concludes by asking how respect for the integrity of Indigenous
cultures and for the integrity and dignity of all people can both be
accomplished.
Zorn, Jean G and Jennifer
Corrin Care. 2002a. Proving
Customary Law in
the Common Law Courts of the South Pacific. London:
British Institute
of International and Comparative Law.
The central issues addressed by the authors are the inherent
difficulties for courts more accustomed to common and statutory law in
‘finding’ custom, and the consequent problem that many judges and
lawyers take the view that customary law must be pleaded and proved as
if it is not law but fact. Following a survey of constitutional and
legislative provisions on the pleading and proof of custom in general
and in Fiji, the Marshall Islands, Vanuatu, the Solomon Islands, Papua
New Guinea, Tuvalu, Kiribati, Niue, and Tonga, the main body of this
small book deals with a variety of judicial approaches to finding
custom as fact in general and as law in Nauru, Fiji, and the Solomon
Islands. In the case of finding as fact, they consider such sources as
anthropologists; books treatises and other documents; elders, chiefs,
and assessors; and the demeanour of witnesses. While acknowledging some
recent shifts in anthropologists’ orientations, they suggest that the
best use of their testimony is in confirmation of the evidence of
others such as elders and the more credible parties.
Zorn, Jean G and Jennifer
Corrin Care. 2002b. ‘Barava Tru’: Judicial
Approaches to the Pleading and Proof of Custom in the South Pacific.
International and
Comparative Law Quarterly 51(3): 611-639,
http://www.jstor.org/stable/pdf/3663070.pdf,
accessed 5 June 2015.
Covering some of the same territory as Zorn and Corrin Care 2002a,
drawing heavily on Martin Chanock’s work on relationships among custom,
customary law, and common law in Africa, and contrasting the positivism
of colonisers with the realism of social anthropologists and the
colonised, the authors set out to examine the ways in which custom
changes in response to court demands that it be pleaded and proved.
Summarising key aspects of Pacific legal systems, constitutions, and
statutes, they extensively cover judicial approaches to proving custom,
including finding custom as fact, from a variety of sources,
referencing Malas
Family v Songariki Family and Regenvanu Family v Ross
& Abel in Vanuatu, and identifying as a serious
problem the
ability
of methods used consistently so to do. In discussing finding custom as
law, they consider legislation, precedent, with a focus on Maerua v
Kahanatarou in the Solomon Islands, res judicata, and
judicial notice
referencing Waiwo v
Waiwo and Banga, and distinguishing between the
effectiveness of the use of prior cases in common law and its
uncertainty in the case of custom. They propose an alternative,
in-between approach based on treating custom as both fact and law, one
they suggest would still change custom into customary law but would
forge ‘a customary law that may be truer to custom than are any of the
other methods mentioned above’ (635).
Graeme Whimp
4 January 2016
[1] I am grateful to
Sophia Edwards, PhD candidate in the Cultural Anthropology Programme at
Victoria University of Wellington, for this information and notes of
the cases.
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