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

Topic 8 Recap

• Topic 9 focuses on the sources of challenges in Pacific legal systems.
• Key issues include individual vs. group-based values and the reality of independence, considering Powles' minimum standards.

Recap: Topic 8 Case Studies

• Developing just law requires considering various perspectives and balancing competing interests.
• Opinions need to be supported by reasons, moving beyond mere moral reactions.

Challenges for Pacific Legal Systems (Topic 9)

Summary of Topics 1-7 and Challenges

• Topics 2-4: Career options, professionalism, the English language, academic honesty, and the unique aspects of legal practice in the Pacific (smaller scale, less developed, less technology, less mentoring).
• Culture presents specific challenges for legal practice.
• Topic 5: Perspectives on law, adoption as a legal story, the importance of views beyond lawyers, and the limits and usefulness of state law.
• Topic 6: Differences in morality, ethics, and law, theories of justice, and the influence of culture and custom on perspectives on ethics and views of justice.
• Topic 7: Sources of law, law-making authorities, plural legal sources, the often-problematic functioning of parliament, and the challenges courts face in weighing competing interests.
• Topic 8: Abortion case study illustrating how context affects the content of law and the potential difficulty in weighing competing reasoning.

Lack of Ownership of State Legal System

• Theorists often view law and custom as opposing normative structures.
• MD Olson, ‘The Politics and poetics of social transformation in Samoa’ (2000) 45 Journal of Legal Pluralism and Unofficial Law 19, 19 discusses this opposition.
• This is due to state law being seen as a colonial legacy, creating a divide between modern/foreign elements and custom/local traditions.

Modern/Foreign vs. Custom/Local

• The Vanuatu state legal system is in a dichotomous position regarding “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, highlights this.
• The court system is often viewed as a foreign system, leading to distrust and a lack of ownership, with courts referred to 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, further explores this issue.

Examples of Tensions

1. Tensions exist:

   • Between traditional ideas and Christian teachings regarding right and wrong, fairness, and justice.
   • Between group-based and individual-oriented societies concerning notions of responsibility.
   • Between unwritten customs and written statutes in terms of expression and content.
   • Between the authority of local chiefs, elders, and councils, and that of courts and central/regional governments.
   • Between courts dealing with isolated acts/offenses and traditional processes addressing the wider context of disputes.

2. Further tensions arise:

   • Between customary manners of communication and formal court procedures.
   • Between local attitudes toward proof of facts and strict rules of evidence (e.g., exclusion of hearsay, burden and standard of proof).
   • Between the different backgrounds and training of personnel (adjudicators, lawyers) within the same jurisdiction.
   • Between the court’s function as an arbiter of isolated breaches and its function as an agent of social or government policy.

Study Task 4

• Write an essay explaining the difficulties in Pacific legal systems due to differences between customary communication methods and formal court procedures (Powles' 6th point).
• Consider essay sections, displays of good English, idea generation and selection, and argument structure.

Suggested Answers

• Local lawyers accustomed to customary communication may not understand court procedures.
• Lawyers may struggle to separate from cultural ties.
• Language barriers exist.
• Communities may prioritize resolution over individual responsibility in court.
• Rural areas might prioritize cultural identity over law, not recognizing state law authority.
• Customary law, being unwritten, poses difficulties with records preferred by state law.
• Achieving justice is challenging when decisions are made by elders/chiefs without fixed laws or external standards.

Steps for Essay Writing

1. Clearly define the subject.
2. Brainstorm ideas.
3. Select key ideas.
4. Organize ideas.
5. Write individual paragraphs.
6. Add an introduction and conclusion.
7. Edit the essay.

Individual vs. Group-Based Values

Etzioni's Societal Models

• Etzioni, Amitai, ‘Law in Civil Society, Good Society and the Prescriptive State’ (2000) 75(2) Chicago Kent Law Review 355, discusses different societal models:
  • Civil society
  • Good society
  • Prescriptive society

Key Differences in Societies (Etzioni)

• Philosophical Foundations:
  • Civil: Liberal, values are largely a private decision.
  • Good: Communitarian, shared values from public consensus.
  • Prescriptive: Socially conservative, imposed by the State.
• Basic Role of Law:
  • Civil: Minimal, procedural, protection of equality.
  • Good: Minimal, social control more important.
  • Prescriptive: State laws and enforcement are important.
• Place of Citizens:
  • Civil: Active role in public affairs and voting.
  • Good: Membership is more important than citizenship.
  • Prescriptive: Involuntary, obedience and duty-following.

Etzioni's Differences Continued

• Virtues:
  • Civil: Moderation, tolerance, self-control, critical thinking, participation in civil affairs.
  • Good: Being good community members.
  • Prescriptive: Obedience.
• Achieved/Ascribed Relations:
  • Civil: Voluntary.
  • Good: Ascribed.
  • Prescriptive: State-derived.
• Rights, Responsibilities, Duties:
  • Civil: Rights.
  • Good: Responsibilities.
  • Prescriptive: Duties.

# Clashes and Reflections