LW 110 Topic 9 SI-2025 D R P K T I W A R I Challenges for Pacific Legal Systems

Lecture Overview

• Topic 8 Recap

• Topic 9 - Sources of challenges

  • Individual vs group-based values

  • Independence in reality?

  • Powles minimum standards

Recap: Topic 8 Case studies in developing just law

• Look from a variety of perspectives

• Balance out competing interests

• Give more than just your opinion (moral reaction)

• REASONS NEEDED

• Any questions?

Challenges for Pacific legal systems TOPIC 9

Summary Topics 1 - 7

• Topic Content (not fully listed) Challenges

• 2 - 4 Career options Professionalism English language Academic honesty Legal practice different in Pacific – smaller, less developed, less technology, less mentoring Culture poses challenges for practice

• 5 Perspectives on law Adoption as law story More than the lawyers’ view Limit of reach of state, usefulness of state law

• 6 Differences in morality, ethics and law Theories of justice Culture, custom affect perspectives on ethics and view of justice

• 7 Sources of law Who makes law Plural legal sources Parliament often does not function as it maybe should Courts face difficult challenges in weighing up competing interests

• 8 Abortion case study Context affects content of law May not be any clear way to weigh up competing reasoning

Lack of ownership of State legal system?

• Theorists ‘tend to conceptualise law and custom in terms of opposition of normative structures’

  • MD Olson, ‘The Politics and poetics of social transformation in Samoa’ (2000) 45 Journal of Legal Pluralism and Unofficial Law 19, 19

• Why?

  • State law as a colonial legacy?

  • Modern/foreign vs custom/local

Modern/foreign vs custom/local

• ‘the Vanuatu state legal system finds itself in a dichotomous position in relation to “introduced” law and indigenous practices, beliefs and expectations.’

  • Benedicta Rousseau, ‘“This is a Court of Law, Not a Court of Morality”: Kastom and custom in Vanuatu state courts’ (2008) 12(2) Journal of South Pacific Law 15, 15.

• ‘problem is that many ni-Vanuatu see the court system as being a foreign system. The general distrust and lack of ownership of the system are illustrated by the fact that many people refer to the courts as ‘kot blong waetman’ (white man’s court).’

  • Miranda Forsyth, A Bird that Flies with Two Wings: The kastom and state justice systems in Vanuatu (2009), Chapter 5 http://epress.anu.edu.au/kastom/html/frames.php (Accessed 1 February 2011)).

Examples of tensions (1)

• between traditional ideas and Christian teaching, as to what is right and wrong, or fair, or just

• between group-based and individual-oriented societies as to notions of responsibility

• between unwritten customs and written statutes – as to both the way they are expressed and the content of what they say

• between the authority of local chiefs, elders and councils, and that of the courts and agencies of central (and regional) governments, often called upon to deal with the same matter

• between courts dealing once-and-for-all with the particular act or offence in isolation, and traditional processes which address the wider context of disputes, often without attempting to achieve finality

Examples of tensions (2)

• between customary manners and methods of communicating, and formal court procedures

• between local attitudes to statements which are accepted as proof of facts, and strict rules of evidence such as the exclusion of hearsay and the burden and standard of proof

• between the different backgrounds and training of personnel, such as adjudicators and lawyers, within the same jurisdiction

• and between the function of the court as the arbiter of isolated breaches and disputes and its function as an agent of social or government policy – to mention only some.’

Study task 4

• Write an essay explaining why difficulties in Pacific legal systems arise because of differences 'between customary manners and methods of communicating, and formal court procedures.' (Powles' 6th point)

• What sections should your essay contain?

• What other things should you make sure your essay displays? (for example good English)

• How can you generate ideas?

• How should you select ideas?

• Check Feedback 3 when you have completed these questions

• How should you structure your arguments?

Suggested Answers

• Local lawyers more used to customary ways of communicating might not follow/understand court ways

• Challenges for lawyers to separate from their cultural ties

• Language barrier

• Responsibility of community to resolve, rather than individual responsibility of judge in court

• Rural areas, prefer cultural identity to law (might not recognise law as authoritative at all?)

• Customary law not written, difficulties with records et cet. that state law prefers

• Hard to achieve justice when elder/chiefs make decisions as no certain laws/external standards of justice

Steps

• Clearly define subject

• Brainstorm

• Select key ideas

• Put ideas into order

• Write individual paragraphs

• Add an introduction and conclusion

• Edit

Individual vs group based values

Etzioni: different societies

• Etzioni, Amitai, ‘Law in Civil Society, Good Society and the Prescriptive State’ (2000) 75(2) Chicago Kent Law Review 355.

  • Civil society

  • Good society

  • Prescriptive society

Etzioni: differences in societies

• Philosophical foundations

• Basic role of law

• Place of citizens

• Virtues

• Achieved/ascribed relations (voluntariness of relations)

• Rights, responsibilities, duties

Etzioni: differences in societies

• Philosophical foundations

  • Civil: liberal; values largely a private decision

  • Good: communitarian; shared values from public consensus

  • Prescriptive: socially conservative; imposed by State

• Basic role of law

  • C: minimal role; procedural; protection of equality

  • G: minimal role; social control more important

  • P: State laws and enforcement important

• Place of citizens

  • C: active role in following public affairs, voting

  • G: membership more important than citizenship

  • P: involuntary, to obey/follow duties

Etzioni: differences in societies

• Virtues

  • C: moderation, tolerance, self control, critical thinking, participation in civil affairs

  • G: good community members

  • P: Obeys

• Achieved/ascribed relations (voluntariness of relations)

  • C: voluntary

  • G: ascribed

  • P: state derived

• Rights, responsibilities, duties

  • C: rights

  • G: responsibilities

  • P: duties

Clashes?

• Which type of society does your “traditional society” most reflect?

  • Probably good society

• Which type of society does your contemporary society most reflect?

  • Probably combination of good and civil?

• Which type of society does your legal/political system most reflect?

  • Constitutions reflect civil society, with laws containing some prescriptive elements

• Differences in underlying values reduce familiarity, and may reduce acceptance/perception of legitimacy

Independence in reality?

Plenty of inappropriate/unworkable laws

• Do not fit cultural context

• Being passed by bodies that are not respected

• No realistic means of enforcement

• Misguided belief that if there is a problem passing a law will fix it

• Things looks good on paper – and maybe get donor/NGO/media approval – but are, in practice, useless

Independence in practice?

• Independence is ‘a matter of international law, rather than empirical reality. Post-colonial international relationships… [are determined by] the enduring realities of smallness, remoteness, limited resources and the longstanding interests of larger countries.’

  • Barrie MacDonald ‘Decolonisation and beyond’ (1986) 21(3) Journal of Pacific History 115, 115.

External influences

• Aid donors

• Multi-lateral lending agencies

• UN agencies

• Pacific Forum……

Powles' minimum standards

• A TOOL FOR STRUCTURED BRAINSTORMING HELPS TO LOOK AT ISSUES HOLISTICALLY

Powles minimum standards

• THE LEGAL SYSTEM, AND INDIVIDUAL LAWS WITHIN IT, SHOULD BE:

  • Responsive

  • Understood

  • Fair

  • Effective

  • Appropriate

  • Available

• Standards overlap/interrelate

IMPORTANT

• Powles links standards to particular aspects of legal system

  • law should be responsive and understood;

  • dispute resolution should be fair and effective; and

  • legal services should be appropriate and available.

• When using the standards as a framework for analysing weaknesses in the law YOU DO NOT HAVE TO link standards to particular aspects

  • ALL aspects of the legal system and laws within it must be responsive, understood, fair, effective, appropriate and available.

Activity: bribery during national elections

• THE ISSUE: In custom giving of gifts or exchange of items is expected. This is often used as a justification for paying voters during election time.

• A brainstorming exercise

  • After brainstorming then develop ideas with research

• Minimum standards

  • give you structure for brainstorming

  • Help you look broadly at issues

  • Make sure that you do not just focus on one particular aspect

Activity continued

• Standard Problems with getting people to follow bribery law Possible solutions to address problems

• Responsive

• Understood

• Fair

• Effective

• Available

• Appropriate

Activity continued (answers from LW 110 2015)

• Standard Problems with getting people to follow bribery law Possible solutions to address problems

• Responsive

  • It is customary for pacific countries to give – conflict between law and custom

• Understood

  • Depends on society context and circumstances Most of population rural – do not understand language or concept Rural has expectation of being given donations

• Fair

  • Societal context might think bribery is fair Elections are not a place where gift giving should be fair Not fair – gift changing is respect, but some people take improperly and spoil custom

• Effective

  • Not being enforced Only being enforced during elections – bribery happens other times Depends on strength of enforcing agency

• Available

  • No legal enforcers/police Enforcers susceptible to being bribed

• Appropriate

  • Is law is appropriate in concept? Allows people who don’t have the wealth to donate to participate

Topic 10: Legal Pluralism

• We will look at:

  • The nature and historical development of customary law, both in England and in the South Pacific;

  • The importance, status and role of customary law in this region;

  • How customary law interacts with other sources of law in the South Pacific; and

  • Explain the problematic relationship between customary law and common law, both being parts of pluralist legal systems.

• Next week

End of lecture

• Thank you and…

• Week 9

• 01/05/2025

• Dr PK Tiwari

• See you next week!l