Chapter 2. The possibilities and limitations of legal pluralism

Table of Contents

The positivist approach
General principles
Positivism in Melanesia
The legal anthropological approach
The legal pluralist approach
General principles
Theoretical issues
The possibilities and limitations of legal pluralism for Melanesia

The existence of normative legal systems operating independently or semi-independently from the State, such as the kastom system in Vanuatu, is an empirical reality in almost every decolonised country in the world.[1] Despite their prevalent nature,[2] however, and the growing official and academic recognition of their existence, there is currently no widely accepted theoretical position for analysing the relationships between such legal systems, or between such systems and the State. This chapter discusses three possible theoretical approaches—legal positivism, legal anthropology and legal pluralism—and the possibilities and limitations of each for answering the questions posed in this study. It argues that although a legal pluralist approach is the most useful in analysing empirical questions about the operation of non-state legal systems, neither it nor the other two approaches is of much assistance in answering the normative questions this study poses about improving the relationship between the kastom and state systems in Vanuatu.[3] The last two chapters take this analysis further by proposing a new methodology to fill the theoretical lacuna identified in this chapter.

There is a terminological issue that needs to be dealt with initially as there is no agreed terminology in this field. There have been numerous suggestions about what to call normative orders existing outside the State, including customary law, non-state justice systems, non-state legal fields, dispute-resolution systems, rule systems, folk law, informal justice, collective justice, popular justice and vigilantism. The difficulty arises from the fact that the terminology employed directly raises some of the central dilemmas in the field: are we just talking about a set of substantive norms or of processes as well? (The use of the terms ‘customary law’ and ‘folk law’, for example, can be taken as referring uniquely to legal norms.) Are these normative orders or fields really ‘law’? Is a legal order broader than the mere resolution of disputes? These questions are discussed further below, but for present purposes the term ‘non-state justice systems’ is used. Although the focus of this study is conflict management in the context of law and order, rather than ‘justice’ as a whole, many of the other authors referred to do not limit their discussion to conflict management. The term non-state justice systems is also the one that is used most widely in the aid and development literature dealing with these issues, and is wide enough to cover non-state institutions as well as substantive norms.

The positivist approach

General principles

Questions of how to deal with a plurality of legal systems first came to the fore during the time of European imperialist expansion and colonialism. The British policy of indigenous sovereignty, often referred to as ‘indirect rule’, required colonisers to consider issues about what law was applicable to govern indigenous peoples, as well as which law would govern the relations between indigenous people and colonisers.[4] At the time these questions arose, the dominant legal theory was legal positivism, or analytical positivism. The central tenet of this theory, as expounded by one of its main nineteenth-century authors, John Austin, was that all law was the command of the sovereign. From this central principle, a number of consequences flowed, the most important of which in the context of non-state justice systems was that lawyers should confine themselves to the study of law and if societies did not have rules laid down by a sovereign or political superior then it followed that they did not have law.

Twentieth-century positivists modified the strict nineteenth-century approach in some respects, making special provision for systems of customary law. For example, Hart posited a dual system of rules: primary rules constituted the normative order in simple societies; secondary rules, characteristic of more advanced societies, specified the manner in which the primary rules could be ascertained, changed and applied. While Hart conceded that a society might exist that had only primary rules, he believed that these alone did not constitute a legal system and would need to be supplemented by secondary rules to take ‘the step from the “pre-legal” into the legal world’.[5]

Positivism in Melanesia

Melanesia is a region where issues relating to non-state justice systems have always been on the agenda—during the colonial period and after independence of the countries of the region—although, significantly, such terminology has not previously been used to describe the issue. Rather, the debate has been couched in terms of the ‘recognition’ and ‘integration’ of ‘customary law’, putting the emphasis on customary norms rather than processes and on the appropriate action of the State towards customary law. Given such a choice of terminology, it is no surprise that the approach that has been adopted in the body of Pacific jurisprudence concerned with the relationship between introduced and customary law has been one of ‘weak’ legal pluralism, where the State recognises customary norms but not customary institutions. As discussed below (under ‘Theoretical issues’), in many ways such an approach belongs in the legal positivism tradition rather than legal pluralism.[6]

The positivist approach taken by the colonial administrators and later by legislators of the independent states is shown clearly in the structures of the legal systems developed during these two periods. During colonisation, customary law was seen as being transient and the pluralist legal system a temporary state of affairs that would eventually be moulded into a universal national legal system. At independence, this goal was often incorporated in the new leaders’ plans for the State.[7] Thus, new constitutions such as that of Vanuatu were drafted on the basis of a single, rather than a plural, system of law, with customary law incorporated to the extent that it did not conflict with other sources of law.[8] Vaai, summarising the situation in the South Pacific, states that ‘[i]ndependence, however, saw the establishment of new constitutional systems that were inevitably in accordance with Western ideologies and law’.[9] In fact, Westermark comments that, since the advent of independence, the external imposition of legal systems has in some ways increased, as ‘the new nations frequently stress legal uniformity as a key to nation-building’.[10]

From an academic perspective, there has been a significant body of work generated by what Narokobi terms ‘the search for a Melanesian Jurisprudence’.[11] The irony of the fact that since independence the legal systems of the region continue to follow the path laid down by the imperialist government has understandably generated a lot of questioning and thought on the part of lawyers, and occasionally anthropologists, working within the legal system. The majority of the legal academic literature on this issue has, however, been concerned with describing the legislative framework for the incorporation of customary law in countries in the South Pacific region and then analysing the various reasons why in fact there has been so little incorporation of customary law into the state system.[12] Stewart states:

[T]he task of contemporary legal scholars is seen as interpreting the customary law which evolved in the colonial state courts in the light of contemporary legislation and supreme court practice. It is not concerned with understanding the contemporary social context despite the fact that the people’s customs and practices are constantly evolving outside the framework of court decisions and interpretations.[13]

In other words, the approach adopted is essentially positivist, because it seeks to find ways for the state system to ‘recognise’ or ‘integrate’ customary law. Such an approach proceeds from the standpoint that it is only once the state legal system has accepted customary law that it can be considered ‘law’. This is demonstrated by Zorn and Corrin Care’s comment that ‘[t]he ultimate irony of customary law is that although state law must recognise and apply custom in order to make itself a part of the culture, state law cannot use custom without turning it into something else’.[14] As a result, there has been little consideration of institutions that are not officially constituted or recognised by state law.[15]

Even those such as Aleck who advocate ‘new’ approaches in fact still remain inside a state-centralist conception of law. Aleck argues that there are any number of factors to explain the current failure of Pacific courts and legislatures ‘to bring about the development of “a new, culturally sensitive…jurisprudence which blend[s] customary law and institutions with modern Western law and institutions in an appropriate mix”’.[16] He suggests that the answer is for judges, lawyers and legal educators to recognise and act on the fact that ‘the common law tradition itself is best understood, employed and developed when it is regarded fundamentally as a system of customary law’.[17] Such an analysis again belabours the idea that it is up to the state institutions to incorporate customary law and that this can be done through the State’s own processes—an essentially positivist approach.

The adoption of this approach in Melanesia has had a number of consequences. First, it cannot really be said that the issue of non-state justice systems has in fact been addressed, because in order to address such issues there first needs to be some recognition that non-state justice systems exist, and such recognition as we have seen is not possible within a positivist paradigm. For example, at the beginning of this study not a single legal work referred in more than a passing way to the operation of the kastom system in Vanuatu. Second, the focus of most legal scholars dealing with customary law in the South Pacific has been on customary norms because, as Sack points out, ‘positive law has no difficulty in dealing with even the most exotic forms of substantive foreign law’, whereas ‘foreign legal institutions, methods, processes and values are a different matter’.[18] The main focus of law reform in this area has therefore been to develop ‘choice of law’ rules to assist the courts to determine whether customary or ‘formal’ law should be recognised and applied in a given case.[19]

[1] Franz von Benda-Beckman observes that such normative orders generally owe their existence and normative validity to the pre-colonial political and legal system, irrespective of what the official legal system says about them. It is important to distinguish them from hybrid institutions that are officially recognised or fully constituted by colonial/national law but based on pre-existing indigenous institutions. von Benda-Beckmann, Franz 1985, ‘Some comparative generalizations about the differential use of state and folk institutions of dispute settlement’, in Anthony Allott and Gordon R. Woodman (eds), People’s Law and State Law: The Bellagio papers, p. 188. Moore observes in the African context that, on gaining independence, each African country had to ask itself the same questions: to what extent should there be a unitary system and to what extent should a multiplicity of local legal systems continue to operate? Can national centralisation of control and some degree of local autonomy in these matters be reconciled? Moore, Sally Falk 1992, ‘Treating law and knowledge: telling colonial officers what to say to Africans about running “their own” native courts’, Law and Society Review, vol. 26, p. 26.

[2] In fact, it is increasingly being recognised that legal pluralism exists even in Western societies and this state of affairs is contributed to by the growth of transnational laws and the presence of large groups of migrants who bring their own systems and observances of law with them to their adopted countries. See, for example, Shah (Legal Pluralism in Conflict), who discusses legal pluralism in the United Kingdom. Tamanaha says simply, ‘Legal Pluralism is everywhere.’ Tamanaha, Brian 2007, Understanding legal pluralism: past to present, local to global, St John’s University School of Law Legal Studies Research Paper Series, no. 07-0080, p. 1.

[3] Morse and Woodman note that ‘little work has been done to date to build a comparative theory for state policies towards customary laws’. Morse, Bradford and Woodman, Gordon (eds) 1988, Indigenous Law and the State, p. 5.

[4] Woodman argues that indirect rule is ‘an institutional device, involving a form of legal pluralism’. Woodman, Gordon 1996, ‘Legal pluralism and the search for justice’, Journal of African Law, vol. 40, p. 152. He later expands on this in Woodman, Gordon 2007, ‘The possibilities of co-existence of religious laws with other laws’, in Erik Sand et al. (eds), Religion and Law in Multicultural Societies, p. 9. See also Tamanaha, Understanding legal pluralism, p. 13.

[5] Hart, H. L. A. 1961, The Concept of Law, 2nd edn, p. 170.

[6] Hughes supports this, arguing that ‘[t]he body of Pacific jurisprudence concerned with the relationship between introduced customary law fits largely within the tradition of classical legal positivism’. Hughes, Robert 2003, ‘Legal pluralism and the problem of identity’, in Anita Jowitt and Tess Newton Cain (eds), Passage of Change, p. 332.

[7] MacLachlan, Campbell 1988, ‘The recognition of Aboriginal customary law: pluralism beyond the colonial paradigm—a review article’, International and Comparative Law Quarterly, vol. 37, no. 2, p. 382.

[8] See Chapter 5 under ‘The relationship between the courts and the kastom system’ for a description of the place of customary law in Vanuatu’s state legal framework.

[9] Vaai, The rule of law and the Faamatai, p. 31.

[10] Westermark, George 1981, Legal pluralism and village courts in Agarabi, PhD thesis, The University of Washington, p. 4.

[11] Narokobi, Bernard 1986, ‘In search of a Melanesian jurisprudence’, in Peter Sack and E. Minchin (eds), Legal Pluralism: Proceedings of the Canberra Law Workshop VII, p. 215.

[12] See, for example, Scaglion, R. 1983, Customary Law in Papua New Guinea: A Melanesian view, Law Reform Commission of Papua New Guinea; Powles, Guy 1997, ‘The common law at bay? The scope and status of customary law regimes in the Pacific’, Journal of Pacific Studies, vol. 21, p. 61; Ottley, Brian and Zorn, Jean 1983, ‘Criminal law in Papua New Guinea: code, custom and courts in conflict’, American Journal of Comparative Law, p. 251; Findlay, Mark 1997, ‘Crime, community penalty and integration with legal formalism in the South Pacific’, The Journal of Pacific Studies, vol. 21, p. 145; Ntumy, M. 1995, ‘The dream of a Melanesian jurisprudence: the purpose and limits of law reform’, in Jonathan Aleck and Jackson Rannells (eds), Custom at the Crossroads, p. 7; Corrin Care, Jennifer 2001, ‘Customary law in conflict: the status of customary law and introduced law in post-colonial Solomon Islands’, University of Queensland Law Journal, vol. 21, no. 2, p. 167; Brown, Ken 1986, ‘Criminal law and custom in Solomon Islands’, Queensland Institute of Technology Law Journal, vol. 2, p. 135; Corrin Care, Jennifer and Zorn, Jean 2001, ‘Legislating pluralism: statutory “developments” in Melanesian customary law’, Journal of Legal Pluralism, vol. 46, p. 49.

[13] Stewart, A. 2000, ‘The contribution of feminist legal scholarship’, in A. Stewart (ed.), Gender Law and Social Justice, p. 11, cited in Griffiths, Anne 2004, Customary law in a transnational world: legal pluralism revisited, Paper presented at the Customary Law in Polynesia Conference, Auckland, 12 October 2004, p. 18.

[14] Zorn, Jean and Corrin Care, Jennifer 2002, ‘“Barava tru”: judicial approaches to the pleading and proof of custom in the South Pacific’, The International and Comparative Law Quarterly, vol. 51, no. 3, p. 635.

[15] The approach taken by legal scholars in regard to Vanuatu is discussed in further detail in Chapter 5 under ‘The relationship between the courts and the kastom system’.

[16] Aleck, Jonathan 1997, ‘Beyond recognition: contemporary jurisprudence in the Pacific islands and the common law tradition’, Queensland University of Technology Law Journal, vol. 7, p. 139.

[17] Ibid., p. 143.

[18] Sack, Peter and Minchin, Elizabeth (eds) 1986, Legal Pluralism: Proceedings of the Canberra Law Workshop VII, p. 6.

[19] See, for example, the Underlying Law Act 2000 of Papua New Guinea and the Customs Recognition Act 2000 (no. 7) of Solomon Islands. For an extensive commentary and comparison of these two pieces of legislation, see Corrin Care, Jennifer and Zorn, Jean 2001, ‘Legislating pluralism: statutory “developments” in Melanesian customary law’, Journal of Legal Pluralism, vol. 46, p. 49.