1 Papua New Guinea, the new nation in which Gordon and Meggitt's book is set, occupies an archipelago in the South Pacific. A colony (of England and Germany, and then of Australia) from 1884 until 1975, Papua New Guinea today remains unevenly developed. The vast majority of Papua New Guinea's three million people (speaking Seven hundred different languages) continue to live in the rural sector. Although many now engage in cash cropping, their major source of subsistence comes from traditional gardening, hunting, and fishing, supplemented and enlivened by reciprocal trade or exchange ceremonials, such as the Te exchange of the Enga. Less than 20% of the population lives in urban areas, where the largest employers are government and foreign companies. See P. Hastings, New Guinea: Problems and Prospects (2d ed. 1973); B. Jinks, P. Biskrup, & H. Nelson, eds., Readings in New Guinea History (1973) (“Jinks et al., Readings”); P. Fitzpatrick, Law and State in Papua New Guinea chs. 5–7 (1980).Google Scholar

2 In the early 1970s, after self-government was introduced in Papua New Guinea, tribal fighting was perceived as increasing, and widespread fears of legal breakdown led to the establishment of a governmental commission which recommended stringent measures. Papa New Guinea, Report of Committee Investigating Tribal Fighting in the Highlands (1973); A. J. Strathern, “When Dispute Procedures Fail,” in A. Epstein, ed., Contention and Dispute: Aspects of Law and Social Control in Melanesia 241 (1974) (“Epstein, Contention and Dispute”). Although some of these measures were adopted, those that relied most directly on customary law remedies were eviscerated by the courts. Bruce Ottley & Jean Zorn, “Criminal Law in Papua New Guinea: Code, Custom and the Courts in Conflict,” 31 Am J. Comb. L 251 (1983). The breakdown in law and security that was predicted as a result of tribal war has not occurred, but warfare continues to be endemic in parts of the Papua New Guinea highlands. M. Mapusia, “Police Policy Toward Tribal Fighting in the Highlands” (“Mapusia, ‘Police Policy’”), in L. Morauta, ed., Law and Order in a Changing Society 57–69 (1987) (“Morauta, Changing Society”); Papua New Guinea, Report of Committee to Review Policy and Administration on Crime, Law and Order (1983) (“PNG, Policy on Crime”); W. Clifford, L. Morauta, & B. Stuart, Law and Order in Papua New Guinea (1984) (“Clifford et al., Law and Order”).Google Scholar

3 Sinclair Dinnen, “Perspectives on Law and Order,” in Morauta, Changing Society 76; Mapusia, “Police Policy” at 57; Richardson, B., Wuillemin, D., &. Moore, D., “Ranking of Crime Seriousness by the People, the Law and the Police in Papua New Guinea,” 15 Melanesian L. J. 49–65 (1987); R. Gordon & S. Kipalau, “Law and Order,” in B. Conrad, D. Lea, & K. Talyaga, eds., Enga: Foundations for Development 310–36 (1982). For a popularized statement of the point of view that tribal war will lead to the breakdown of the social order, see K. Egan, “Law and Order in PGN: Bring Back the Kiaps?”Pacific Islands Monthly, April 1980. at 11.Google Scholar

4 Mapusia, “Police Policy” at 58–60.Google Scholar

5 Since independence, the rate of crime in Papua New Guinea's urban centers (crime against both property and persons) has risen as well. D. Biles, ed., Crime in Papua New Guinea (1976); Clifford, W., Urban Crime in Papua New Guinea 5 (1976). This increase reached such proportions that in 1985 a state of emergency was declared covering Papua New Guinea's capital city. L. Morauta, “Law and Order in Papua New Guinea: A Tenth Anniversary Report,” in Morauta, Changing Society 9 (“Morauta. ‘Tenth Anniversary Report’”). See also PNG, Policy on Crime; Papua New Guinea National Executive Committee, Measures to Combat the Breakdown in Law and Order, NEC 176/84 (1984); Clifford et al., Law and Order; B. Hams, “The Rise of Rascalism: Action and Reaction in the Evolution of Rascal Gangs,” IASER [Papua New Guinea Institute of Applied Social and Economic Research] Discussion Paper no. 54 (1988). Although urban crime such as burglary or rape is not viewed as a direct attempt to usurp state authority, its rise to seemingly epidemic proportions does cause many comentators to question the efficiency or strength of the government. Since most governments predicate their right to rule on their ability to maintain social order, rising crime rates are politically significant. Ottley & Zorn, 31 Am J. Comp. L. 251. However, the increase in urban crime rates is a phenomenon common to many developing countries and can be traced not to an inefficient government, but to rising urban populations, the movement of unskilled and unemployed people to the cities, and the development in the cities of disparities in the distribution of wealth and resources. G. Boehringer & R. Giles, “Criminology and Neocolonialism: The Case of Papua New Guinea,” Crime and Social Justice, Fall-Winter 1977, at 58–62; B. Brunton, “Crime, Politics and Economics,” in Morauta, Changing Society 30–40.Google Scholar

6 Morauta, “Tenth Anniversary Report” at 13; Clifford et al., Law and Order. One anthropologist has suggested that some Papua New Guinea highlanders believed that the coming of independence would mean a return to the precolonial pattern of local self-rule by traditional clan or village groups. Accordingly, as independence neared, these highlanders prepared themselves to resume the wars and alliances of old. Marie Reay, “Changing Conventions of Dispute Sertlement in the Minj Area,” in Epstein, Contention and Dispute 198.Google Scholar

7 This phrasing of the issues is that chosen by Gordon and Meggitt; see at 13–14.Google Scholar

8 It should be noted, of course, that there are differences within each profession as well and that legal anthropology has never occupied the mainstream of either profession. Despite the attention paid to law by such leading anthropologists as Max Gluckman and Isaac Schapera, a historical study of British anthropologists concludes chat “law was not a field which attracted great interest in its own right.”Kuper, A., Anthropology and Anthropologists: The Modern British School 140 (1985) (“Kuper, Anthropology”). Lawyers tend also to deprecate the relevance or value of legal anthropology. It is unusual to find anthropological articles in law reviews, which seem to believe that this material is not about law. Although a few law school curricula now include a course or two in customary law or law and development, most law students graduate having been exposed to no legal systems more distance from their own than those of France or England. This may arise from an unwillingness on the part of lawyers to believe that cultures without the external indicia that characterize Western law-courts, written codes, police, and other enforcement agencies-have a legal system. It may also be due to a widely shared belief among legal scholars that scholarship consists only in explicating and critiquing judicial opinions, the artifacts of Anglo-American legal culture-a view that locates the legal scholar inside legal culture.Google Scholar

9 B. Malinowski, Crime and Custom in Savage Society (1926).Google Scholar

10 But see A. R. Radcliffe-Browne, Structure and Function in Primitive Society: Essays and Addresses 216–17 (1952); P. Howell, A Manual of Nuer Law (1954) (which, despite its title, concludes, “the Nuer had no law”) at 225; A. S. Diamond, Primitive Law Past and Present 166–71, 190–97 (1971) (a reworking of A. S. Diamond, Primitive Law (1935)).Google Scholar

11 Radcliffe-Browne, A. R., “Law, Primitive,” in Encyclopedia of the Social Sciences, Vol. 9 (1933).Google Scholar

12 This view was ah held by the 19th-century theorists of evolutionary jurisprudence (including Frederic W. Maitland, Sir Henry Sumner Maine, Karl Marx, Emile Durkheim, and Sir Paul Vinogradoff) who proposed that society has advanced from a primitive state of nonlaw to a sophisticated state of modern law and government. For critiques of these Social Darwinist theories, see L. Pospisil, Anthropology of Law: A Comparative Theory 99–192 (1971); L. Krader, Anthropology and Early Law (1966); M. Harris, The Rise of Anthropological Theory 108–249 (1968). The current anthropological bias against cross-cultural generalization can be seen, in part, as a reaction to the Darwinist ideas of the 19th century.Google Scholar

13 As Lucy Mair has pointed out, the belief that simple societies are without law was often predicated upon “the idea that in societies of simple technology, people are so completely slaves of custom that they have no need of coercive institutions … [S]ome writers had explicitly maintained that in primitive societies all rules of behavior are equally binding, and that ‘savages’ do not distinguish between rules that the writers would call legal and other rules of conduct; and others, long after the publication of Malinowski's Crime and Custom in 1926, have asserted that savages keep the rules of their society entirely because they are afraid of being punished by the spirits in which they believe.”Mair, L., An Introduction to Social Anthropology 128 (1965).Google Scholar

14 “Law is therefore recognizable in form: in formal statements of the rules, and in forms for securing compliance with the rules.” R. Redfield, “Primitive Law,” in P. Bohannan, ed., Law and Warfare 4–5 (1967) (“Redfield, ‘Primitive Law’”).Google Scholar

15 A different version of the dichotomy between culture and law has been offered by Stanley Diamond, who agrees with the view that customary norms arise from the culture, whereas legal norms are imposed on the culture by the state, but puts a new perspective on the consequences of this distinction. Customary norms, Diamond says, represent the culture's shared beliefs and values, whereas legal norms “arise in opposition to the customary order … they represent a new set of social goals pursued by a new and unanticipated power in society.” S. Diamond, “The Rule of Law Versus the Order of Custom,” in D. Black & M. Mileski, eds., The Social Organization of Law 318, 327 (1973). Diamond's paradigm is similar to that of the Marxist anthropologists, who also view law, at least in class societies, as imposed from the outside on the mass of the people. See Mandel, E., “Marxism and the Rule of Law,” 35 UNB L. J. 7 (1986); P. Fitzpatrick, Law and State in Paw New Guinea (1980).Google Scholar

16 Bohannan, P., “The Differing Realms of Law,” in Bohannan, Law and Watfnre 43, 47–48 (“Bohannan, ‘Differing Realms’”).Google Scholar

17 Although some anthropologists were also employed by colonial administrations, most tended not to be. Kuper suggests that, in the British colonies, this choice was made not by the anthropologists, who would have welcomed a position, but by colonial governors, who viewed the anthropologists with disfavor. Some British anthropologists recognized that ties to the colonial administration would compromise their relations with the peoples among whom they did field work. For many, however, because of the financial subsidies and recognition that might flow from governmental support, “readiness to shoulder arms in the colonial cause was widespread, though by no means universal.” Kuper, Anthropology 100 (cited in note 8). According to Kuper, the primary impact of anthropology on colonial policies was indirect; although anthropologists “did not really feel that their subject was concerned with a special type of person, the ‘primitive’ or ‘savage’… this was an easy assumption, a convenient blurring of definition, [and] … the consequence has been to identify anthropology with the mass humiliation of colonialism.”Id. at 119–20. According to Asad, however, many anthropologists did directly support the ideologies and beliefs of colonialism. T. Asad, ed., Anthropology and the Colonial Encounter (1973). On American anthropologists and the distortions to their perceptions caused by the colonial and neocolonial traditions of the United States, see Willis, “Skeletons in the Anthropological Closet,” in D. Hymes, ed., Reinventing Anthropology 121 (1972). In Papua New Guinea, the Australian colonial office recruited prominent anthropologists to teach at its training school and to prepare reports on land tenure, cargo cults, and other issues of governmental interest. The differences between anthropologists and lawyers remain, however. For an anthropologist, work outside the academy is termed “applied anthropology.” For a lawyer, on the other hand, work outside the academy is termed “being a lawyer.” This different focus on the central work of the profession-disinterested study versus engaged service-is crucial to the different viewpoints that anthropologists and lawyers bring to the study of developing societies.Google Scholar

18 In most colonies until near or after independence, the jurisdiction of native courts was limited to matters such as family relations, inheritance, or petty criminal infractions, viewed by the colonial administration as not impinging directly on its interests. Courts handling commerce and major crimes tended to be staffed primarily by expatriates, usually judges, lawyers, and colonial officers from the mother country. In Papua New Guinea, for example, even local magistrates' courts were staffed entirely by expatriates until the 1960s, when a training course for indigenous magistrates was established. Bayne, P., “Legal Development in Papua New Guinea: The Place of the Common Law,” 3 Melanesian LJ. 9, 22–24 (1975); T. Barnett, “The Local Court Magistrate and the Settlement of Disputes,” in P. Brown, ed., Fashion of Law in New Guinea 159 (1969). As for Papua New Guinea's highest court, at independence in 1975 all seven justices were expatriates; the first Papua New Guinean judge was not appointed to the bench until 1979.Google Scholar

19 “Bentham, in his ‘Fragment on Government,’ and Austin, in his ‘Province of Jurisprudence Determined,’ resolve every law into a command of the lawgiver.” H. Sumner Maine, Ancient Law 6–7 (originally published 1861; Beacon paperback edition, 1963).Google Scholar

20 The quote is from an anthropologist. Redfield, “Primitive Law,” at 3. Considering that most lawyers studied only their own legal systems and that such comparative studies as existed tended to focus upon the law of Western nations, their belief that law and the state are synonymous is hardly surprising. A study focusing on Western legal systems alone would lead inexorably to the conclusion that rules are of two types: those made by government, which are law, and those made by other institutions, which are not law. It is only when one becomes familiar with societies functioning without a governmental or state institution that the existence of rules for social control, absent specialized agencies to legislate and enforce the rules, becomes apparent.Google Scholar

21 Seagle, W., “Primitive Law and Professor Malinowski,” 39 Am Anthropologist 275 (1937).CrossRefGoogle Scholar

22 Sumner Maine, Ancient Law 163–65. Although “status to contract” is the usual quote, Maine's full thesis is even more telling. He argued that legal history consists of the movement from statelessness to government, from organization by kinship (in which personhood is subsumed by one's status as a member of a household unit) to the full flowing of individualism, from essentially arbitrary rules based on rank to regularized and codified law. See S. Moore, “Legal Systems of the World,” in L. Lipson & S. Wheeler, eds., Law and the Social Sciences 11 (1986). This evolutionary ethnocentrism had been discarded by anthropology, for the most part, by the end of the 19th century. See G. Marcus & M. Fischer, Anthropology as Cultural Critique 17–20 (1986).Google Scholar

23 Up to the 18th century, Anglo-American jurisprudence was dominated by natural law theory, which held that human law is derived from divine law or inherent morality. The Enlightenment added to natural law the conception that the judge or legislator, through the exercise of reason, will apprehend moral justice and, therefore, will correctly find and apply law. W. Blackstone, 1 Commentaries on the Laws of England (1821). In the 19th century, natural law theory gave way to Austinean positivism, which asserts that the source of law is political authority. Positivism was a reaction of 19th-century utilitarians both against the natural law view that laws set forth moral imperatives (a view that was seen as allowing no criticism of state actions) and against the politics of the American and French revolutions, which seemed to justify disobedience to any law conceived as unjust. J. Austin, The Province of Jurisprudence Determined (1873); Hart, H., “Positivism and the Separation of Law and Morals,” 71 Harv. L Rev. 593 (1958). Both natural law and positivism found their jurisprudential method in analytic jurisprudence, or formalism, which sought not to evaluate law, but to classify and interpret it. Judges in the formalist tradition applied law not on the basis of the effect that the application might have, either on the parties or on social policy, but (they believed) solely on the basis of precedent. D. Kennedy, “Toward an Understanding of Legal Consciousness: The Case of Classical Legal Thought in America, 1850–1940,” 3 Research in Law and Sociology 3 (1980). Neither natural law theory nor positivism recognized that the source of law might lie in sociocultural conditions and, thus, that law would differ, both in the content of the laws and in the processes of enforcement, from one cultural context to another.CrossRefGoogle Scholar

24 Bohannan, “Differing Realms,” (cited in note 14).Google Scholar

25 Gordon & Meggitt at 191–92. It was a common mistake among colonial administrators to believe, first, that the people they ruled had no law of their own, and second, that this supposed absence of a legal system marked the colonized as inferior. See Jinks et al., Readings 118–41, 149–50, 188–90 (cited in note 1); Zorn, J., “The Public Service in a Developing Nation,” 3 Melanesian L. J. 40 (1975).Google Scholar

26 Sevareid, P., “The Future of Customary Law,” 14 Africana J. 34, at 36 (1983). There is a large and very technical body of legal articles on the “recognition” of custom (helping colonial courts to turn customary norms into imposed law). For a brief survey of the field (and a critique) see Griffiths, J., “What Is Legal Pluralism 24 J. Legal Pluralism 1, 7–8 (1986).Google Scholar

27 K.N. Llewellyn & E. A. Hoebel, The Cheyenne Way: Conflict and Case Law in Primitive Jurisprudence (1941). See also E. A. Hoebel, The Law of Primitive Man (1954); and K. N. Llewellyn, The Bramble Bush: Lectures on Law and Its Study (1930). Llewellyn supervised Hoebel's doctoral thesis on Comanche law. In their collaborative work, Hoebel did almost all the field work. “Llewellyn's contribution, and it was a major one, was to devise the ‘theory of investigation’ and … the general theoretical and jurisprudential matrix within which the fieldwork was placed.” A. Hunt, The Sociological Movement in Law 49 (1978h see also Twining, W., “Two Works of Karl Llewellyn,” 30 Modern L Rev. 514 (1967), and 31 Modern L Rev. 165 (1968).CrossRefGoogle Scholar

28 Hoebel, The Law of Primitive Man at 28.Google Scholar

29 “Law focuses around conflicts of interests. … Law breeds and grows on trouble or prospect of troubles. It exists in order to channel behavior so that conflicts of interest do not come to overt clash. It moves into action to clear up the social muddle when interests do clash. Indeed, as a canon of realistic law it may be said that unless a dispute arises to test the principles of law in the crucible of litigation, there can be no certainty as to whether the presumptive principle will actually prevail.”Id. at 36–37. See also Llewellyn, , “What Price Contract? An Essay in Perspective,” 40 Yale L. J. 704 (1931).CrossRefGoogle Scholar

30 See, for example, Roscoe Pound's description of the legal process in Pound, “The Limits of Effective Legal Action,” 27 Int'l J. Ethics 150 (1917), which is very similar to the description given by Hoebel. See also M. Cohen, Law and the Social Order: Essays in Legal Philosophy (orig. pub. 1933; 1967); Hunt, The Sociological Movement in Law, 11–59; P. Selznick, The Sociology of Law, in R. Merton, L. Broom, & L. Cottrell, eds., Sociology Today 115–16(1959).CrossRefGoogle Scholar

31 In England, functionalism (there called structuralism) was, from its creation by A. R. Radcliffe-Brown, in the mainstream of anthropological methodology. Kuper, Anthropology and Anthropologists at 3698 (cited in note 8). The functionalist approach assumes that society is a system and that norms, customs, and institutions serve the needs of the social system and each other. Each custom or institution functions to maintain the social system in equilibrium. This description of society slides easily into prescription, supporting society's status quo and denigrating social change. In legal anthropology, this aspect of functionalism was somewhat mitigated by its marriage to legal realism, which begins in the perception that changing experience changes the law. A rule applied in one situation will have different consequences, and therefore be a different law, from the same rule applied in a different situation. It was this insight which led realist scholars into legal history and the documentation of legal change. See, for example, Pound, R., “Liberty of Contract,” Yule L. J. 454 (1932); Holmes, O.W., “The Path of the Law,” 10 Haw. L Rev. 457 (1897).Google Scholar

32 There has never been an adjective that is satisfactory in all respects to describe or label the law of nonstate societies (just as there is yet to be suggested a term satisfactory for the societies themselves). “Primitive” was used for a long while, even by those who do not believe that tribal societies are primitive; see, e.g., Hoebel, The Law of Primitive Man (cited in note 27). It was used, as well, by many who did mean it when they said it. For example, E. S. Hartland, Primitive Law 1–4 (1924). In this continuing use of the term, “primitive,”“I would venture to doubt… whether there are any expressions used by social anthropologists more inconsistently or with vaguer meaning than ‘tribe’ or ‘tribal,’ and to think that if the term ‘primitive’ is now under a cloud, the same cloud has extended itself to those expressions.” Diamond, Primitive Law Pact and Present at viii (cited in note 10). “Customary law” is probably subject to similar objections, but I shall use it for want of a better alternative.Google Scholar

33 Hoebel, The Law of Primitive Man at 275.Google Scholar

34 P. Gulliver, social Control in an African Society (1963); P. Gulliver, Disputes and Negotiations: A Cross-cultural Perspective (1979). Although dispute settlement studies, as such, begin with Hoebel and Gulliver, the roots of the model lie further back-in Radcliffe-Browne, who posited that the integration and continuity of social systems arises in part from that very opposition among roles and institutions which seem to be leading society into conflict. Radcliffe-Browne, Structure and Function (cited in note 14). Evans-Pritchard, too, had described the way in which, among the Nuer, the seemingly imminent possibility of feud and violence, of physical conflict, in fact contributed to the maintenance of social harmony. E. E. Evans-Pritchard, The Nuer (1940). And Gluckman, in describing African political systems, noted that societies are composed of conflicting groups, and that social equilibrium depended upon the “inherent tendency” of groups “to segment and then to become bound together by cross-cutting alliances.” E. Colson & M. Gluckman, eds., Seven Tribes of British Central Africa (1951); see also M. Gluckman, Judicial Process Among the Barotse (1955); M. Gluckman, Order and Rebellion in Tribal Africa (1963). According to the functionalist thesis, when the parts of the social system are integrated and in balance, conflict produces not social change, but cohesion and continuity. For criticism of this premise, see Abel, R., “A Comparative Theory of Dispute Settlement Institutions in Society,” 8 Law & Soc'y Rev. 217 (1984); Starr & Collier, “Introduction: Dialogues in Legal Anthropology,” m J. Starr & J. Collier, eds., Histmy and Power in the Study of Law, 1 (1989) (“Starr & Collier, History and Power”).CrossRefGoogle Scholar

35 See, for example, L. Nader & M. Todd, eds., The Disputing Process (1978); S. Roberts, Order and Dispute (1979); Epstein, ed., Contention and Dispute (cited in note 2); P. Bohannan, Justice and Judgment Among the Tiv (1968).Google Scholar

36 The way in which rules are manipulated in the interest of settling a dispute has led some observers to believe that traditional societies have no law or, at best, fail to observe it. In fact, the treatment of rules in nonstate societies—the initial insistence by each party of the primacy of that party's rule interpretation, the incremental change in rules as they are applied to different fact situations—is not unlike the treatment accorded rules by appellate courts in the United States. Compare Bohannan, “Differing Realms,” at 53 (cited in note 16) with S. Moore, “Descent and Legal Position,” in L. Nader, ed., Law in Culture and Society 376 (1969), and Roberts, S., “Where Two Worlds Meet: A Time for Reassessment in the Anthropology of Law,” 79 Mich. L. Rev. 737 (1981).CrossRefGoogle Scholar

37 Evans-Pritchard has postulated that threats by powerful men of violent redress for wrongs done them actually decreased violence by deterring others from committing these wrongs or convincing weaker parties to settle disputes. Evans-Pritchard, The Nuer. See also L. Mair, Primitive Government 17 (1962); R. Barton, “Procedure Among the Ifugao,” in Law and Warfare at 161. But Gordon & Meggitt note that among the Enga, conflicts may seem to be resolved, only to flare up again. “… What is seen to be a lasting settlement in law is often only a conditional truce” (at 198).Google Scholar

38 The relationship between clans or villages has been likened to that between nation-states, in that legal process can be invoked only if both parties agree. If nation-states resort to violence, it is usually viewed not as unlawful force, but as the further reaches of diplomacy. For a comparison of nation-state relations with those of traditional clans or villages, see H. Hart, The Concept of Law 3–4 (1961).Google Scholar

39 Gordon & Meggitt argue that the model of customary law presented by the dispute settlement theorists is so inaccurate, so hopelessly “romantic,” as to be all but useless. At p.6. They are objecting, however, not only to the dispute resolution model itself, but to the use in anthropology of any model. “TO treat homegrown law as a system is to engage in abstraction,” they say, at 199. To the ethnographer, the life of the people studied is the only reality. To the extent that the model or theory departs from any detail of that reality, the model is seen as flawed. This position, as Kuper has noted, leads to particularism: “The more one stresses the inner character of a culture, the more difficult it is to move on to comparison and generalization.” Kuper, Anthropology at 194 (cited in note 8).Google Scholar

40 M. Galanter, “The Modernization of Law,” in M. Weiner, ed., Modernization 153 (1966); Trubek, D. & Galanter, M., “Scholars in Self-estrangement: Some Reflections on the Crisis in Law and Development Studies in the United States,” 1974 Wis. L Rev. 1079 (1974).Google Scholar

41 The economic underpinnings for modernization theory were provided by W. Rostow, The Process of Economic Growth (1962) and Politics und the Stages of Growth (1971). See also Dell, S., “Basic Needs or Comprehensive Development: Should the UNDP Have a Development Strategy 7 World Development 291 (1979); and, for an early critique of modernization theory, see C. Leys, “The Politics of Redistribution with Growth,” IDS Bulletin, Vol. 7, No. 2, p. 4 (Aug. 1975).CrossRefGoogle Scholar

42 For discussion and criticism of law and development theories, see D. Trubek & M. Galanter, 1974 Wis. L Rev.; Snyder, F., “Law and Development in the Light of Dependency Theory,” 14 Law & Soc. Rev. 728–35 (1980); Merryman, J., “Comparative Law and Social Changes: On the Origins, Style, Decline and Revival of the Law and Development Movement,” 25 Am. J. Comp. L. 457 (1977); Seidman, J., “Law and Development: A General Model,” 6 Law & Soc'y Rev. 311 (1972); Friedman, L., “On Legal Development,” 24 Rutgers L Rev. (1969).CrossRefGoogle Scholar

43 Merryman, , 25 Am J. Comp. L at 458–60.Google Scholar

44 Trubek, & Galanter, , 1945 Wis. L. Rev. at 1072–76; Merryman, 25 Am J. Comp. L. at 461–66.Google Scholar

45 Galanter, , “The Modernization of Law,” in Modernization; Trubek & Galanter, 1974 Wis L. Rev. at 1063; Merryman, 25 Am. J. Comp. L. at 473.Google Scholar

46 The law and development movement foundered when the inability of its methods to create social and economic betterment in the third world became apparent. See Trubek & Galanter, 1974 Wis. L Rev. at 1084–85. Law and development theorists, such as Trubek and Galanter, came to recognize not only that the modernization model was ineffective in the third world, but also that it had never worked in the United States (at 1066, ION), and that “non-legal” methods might work better than state imposed legislation (at 1076). Even in defeat, however, they could not accept all the reasons for the failure of their model. They refer to dependency theory as “virulent” (at 1095).Google Scholar

47 Led by political economist Andre Gunder Frank, dependency theorists postulate that the relative backwardness of third world economies is not the result of their norms or institutions, but of the mercantilist policies of colonial and neocolonial powers. By requiring their colonies to act as suppliers of raw materials and as markets for finished products, the industrialized nations stifle the development of industry in the third world and contribute heavily to its debt and foreign exchange problems. Thus, in contradiction to the modernization theorists, who preached the adoption by the colonies of Western values, laws, political and economic systems, dependency theorists advocate that third world nations sever economic ties to the West and look to indigenous institutions, values, and economic systems as sources of economic development. J. Cockcroft, A. Gunder Frank, & D. Johnson, Dependence and Underdevelopment: Latin America's Political Economy (1972); S. Amin, Accumulation on a World Scale (1974).Google Scholar

48 For the relation of dependency theory to legal research, see Snyder, 14 Law & Soc'y Rev. at 723. Lawyers whose work on Papua New Guinea was influenced by dependency theory include: Boehringer, G., “Imperialism, Development and the Underdevelopment of Criminology,” 4 Melanesian L. J. 211 (1976); Fitzpatrick, Law and State in Papua New Guinea (1980); P. Fitzpatrick, “The Political Economy of Dispute Settlement in Papua New Guinea.” in C. Sumner, ed., Crime, Justice and Underdevelopment (1982); A. Paliwala, J. Zorn, & P. Bayne, “Economic Development and the Changing Legal System of Papua New Guinea,” 16 African Studies 3 (1978); D. Weisbrot et al., eds., Law and Social Change in Pam New Guinea (1982).Google Scholar

49 Strathern, A. M., “Official and Unofficial Courts: Legal Assumptions and Expectations in a Highlands Community” (New Guineu Research Bulletin, No. 47, 1972).Google Scholar

50 See, for example, the speech by Sir Michael Somare, first prime minister of Papua New Guinea, “Law and the Needs of Papua New Guinea's People,” in Bayne, P. and Zorn, J., eds., Lo Bilong Ol Manmeri 14 (1975). See also Nkrumah, K., Consciencism: Philosophy and Ideology of Decolonization (1970); Nwabueze, B., Constitutionalism in the Emergent States (1973); J. Nyerere, Freedom and Socialism: Uhscru na Ujamaa (1968); J. Nyerere, Ujamaa—Essays on Socialism (1968).Google Scholar

51 R. Crocombe, ed., Land Tenure in the Pacific (1971); I. Hogbin and P. Lawrence, Studies in New Guinea Land Tenure (1967); A. L. Epstein, Matupit: Land, Politics and Change Among the Total of New Britain (1969); Zorn, J., “The Land Titles Commission and Customary Land Law: Settling Disputes Between Papua New Guineans,” 2 Melanesian L. J. (1974).Google Scholar

52 Eisenberg, B., “Private Ordering Through Negotiation: Dispute Settlement and Rule Making,” 89 Harv. L Rev. 637 (1976); A. Alloct & G. Woodman, eds., People's Law and State Law (1985); R. Abel, “Western Courts in Non-Western Settings: Patterns of Court Use in Colonial and Neo-Colonial Africa,” in Burman, S. & Harrell-Bond, B., The Imposition of Law 167(1979).CrossRefGoogle Scholar

53 Gordon and Meggitt take issue with the idea that customary and Western legal processes differ. “It has been suggested that for ideological reasons the differences between Melanesian and Western dispute management have been exaggerated…. Most accounts of indigenous law refer to litigation in village situations, which are then compared with processes in superior courts in Western societies while ignoring comparable grass-roots phenomena in these societies. … In industrial states many disputes, perhaps most, are in fact settled out of court and are handled by customary procedures, in which plea bargaining, negotiation and mediation are crucial elements” (at 197–98). They are correct in noting that customary dispute settlement processes occur often in Western societies, and that this may be the preferred mode and forum for persons who hope that, once the dispute is settled, their relationship will continue. They miss the point of the model, however, which is that, no matter how given Western society may be co compromise, that is neither the method nor the aim chosen for the procedures of its major legal institutions. The absence of negotiation and compromise in the higher courts, the emphasis on rights, when contrasted with the processes and goals of non-Western legal institutions, signifies that the purpose of Western law is not to promote the social relations of the parties before the court but to reify the laws and thus to impose social order, protect property and create the order and predictability that the market prefers.Google Scholar

54 See Mair, Primitive Government (cited in note 37); M. Gluckman, Politics, Law and Ritual in Tribal Society (1965); Gulliver, Disputes and Negotiations (cited in note 34). For a discussion of differing legal processes in societies of graduated levels of socioeconomic complexity and division, see K. Newman, Law and Economic Organization: A Comparative Study of Pre-Industrial Societies (1983).Google Scholar

55 This is why this model of law is found both in isolated pre-colonial societies and within groups or subcultures that are part of larger societies. See L. Nader, “The Crown, the Colonists and the Course of Zapotec Village Law,” in Starr & Collier, History and Power at 320–44 (cite in note 34) (“Nader, ‘The Crown’”).Google Scholar

56 See Weber, M., Law in Economy and Society (1925); A. S. Diamond, “The Rule of Law versus the Order of Custom,” in The Social Organization of Law 318 (cited in note 19).Google Scholar

57 As Papua New Guinea neared independence in 1975, the shape that the new government and its legal system would take was a focus of attention. In numerous articles, lawyers and others called for a return to the principles and processes of customary law. See, for example, B. Narakobi, “We, the People, We the Constitution,” in J. Zorn & P. Bayne, eds., Lo Bilong Ol Manmeri 19 (1975); J. Gawi, “Customs in Criminal Law and Punishment,” in id. at 69 (1975); [Prime Minister Sir Michael] Somare, “Law and the Needs of Papua New Guinea's People,”in id. at 14 (1974). Support for customary law crystallized in 1975 with the adoption of the Papua New Guinea constitution, which provided chat custom would henceforth be part of the “underlying law” to which the courts should look in formulating a common law of Papua New Guinea. See “Constitutional Planning Committee of Papua New Guinea,” Report (August 1975). Despite the groundswell of nationalism that gave custom at least nominal constitutional recognition, customary law has not in Papua New Guinea replaced English and Australian statutes and precedents as a source either of legislation or of judicial rulemaking. See Ottley & Zorn, 31 Am J. Comp. L. 251 (cited in note 2). Nor do many lawyers and commentators in Papua New Guinea continue to advocate the adoption into the formal legal system of customary principles and processes. Compare, for example, Law Reform Commission of Papua New Guinea, The Role of Customary Law in the Legal System, Report No. 7 (Nov. 1977) (advocating the adoption of customary law) with Law Reform Commission of Papua New Guinea, Annual Report (1983) (stating that it is impossible to meld customary law into the formal legal system).Google Scholar

58 Abel, , 8 Law & Soc'y Rev. 217 (cited in note 34); Felstiner, “Influences of Social Organization of Dispute Processing,” 9 Law & Soc'y Rev. 63 (1974). The recent growth of neighborhood justice centers-semiformal agencies in which mediation is used as an alternative to the criminal law process-has sparked a flurry of studies, both supportive and critical. See, for example, R. Hofrichter, “Neighborhood Justice and the Social Control Problem of American Capitalism” (Ph.D. thesis, Univ. of Michigan microfilms, 1983); R. Tomasic & M. Feeley, eds., Neighborhood Justice: Assessment of an Emerging Idea (1982); B. Culp, “A Neighborhood Justice Center: Mediation and the Mediators” (thesis, Univ. of Michigan microfilms, 1984). For a critique of the neighborhood justice movement, see R. Abel, “The Contradictions of Informal Justice,” in R. Abel, ed., The Politics of Informal Justice 267 (1982). For a critique of nonadjudicatory dispute settlement generally, see O. Fiss, “Against Settlement,” 93 Yale L. J. 1073 (1984).CrossRefGoogle Scholar

59 Most of the studies of anthropologists of development seem written from the point of view that industrialization and the inclusion of tribal groups into the larger society has made these groups, in Bodley's phrase, “victims of progress”—a point of view which, in most colonies and new nations, is at present, partly accurate. J. Bodley, Victims of Progress (1982); C. Kottak, Asault on Paradice: Social Change in a Brazilian Village (1983); L. Spindler, Culture Change and Modernization: Mini-Models and Care Studies (1977). Few anthropologists have suggested ways in which the development process might be influenced to improve the prognosis for tribal peoples, although some have expressed the view that it is the duty of anthropologists to become “more relevant and activist.” See Kaplan & R. Manners, Culture Theory 190 (1972). See also J. Cole, “Toward a New Anthropology,” in J. Cole, ed., Anthropology for the Eighties 449 (1982). For the most part, though, because no alternative plans for development are suggested, the message of anthropological writing on development is that it should not happen at all.Google Scholar

60 Anthropologists tend to the view that aggressiveness is not a universal human instinct but is culturally influenced. See, for example, C. Burke, Aggrerion in Man (1975); M. Marshall, Weekend Warriors: Alcohol in a Micronesian Culture (1979); A. Alland, The Human Imperative (1972); R. L. Munroe & R. H. Munroe, Cross-cultural Human Development (1975); A Montague, Learning Non-Aggression: The Experience of Non-literate Societies (1978). In the field of anthropology, aggression studies are the purview primarily of ethnopsychologists and students of culture and personality, whose work draws upon the field of social psychology for its methods and inspirations. Aggression became a prominent object of inquiry for psychologists in the 19709. See, for example, R. Green & E. O'eal, eds., Perspectives on Aggression (1976); P. Brain & D. Benton, eds., Multidisciplinary Approaches to Aggression Research (1981).Google Scholar

61 The redefinition of Culture is most evident in symbolic studies. See, for example, C. Geertz, The Interpretation of Cultures (1979); M. Rosaldo, Knowledge and Passion: Ilongot Notions of Self and Social Life (1980); M. Taussig, The Devil and Commodity Fetishism in South America (1983). The legal pluralists differentiate themselves from those doing symbolic studies, but the two groups have a common interest in promoting the culture group in opposition to imposed norms (whether those be the norms of anthropology or the norms of the legal system).Google Scholar

62 S. Moore, Law as Process: An Anthropological Approach at 55–58 (1978); S. Moore, “History and the Redefinition of Custom on Kilimanjaro,” in Starr & Collier, History and Power at 277–301 (cited in note 34); S. Moore, Social Facts and Fabrications (1986); J. Griffiths, 24 J. Legal Pluralism at 29–32 (cited in note 26); S. Merry, “Legal Pluralism,” 22 Law & Soc'y Rev. 869 (1988).Google Scholar

63 S. Moore, Law as Process at 55–58 (1978).CrossRefGoogle Scholar

64 Griffiths, , 24 J. Legal Pluralism 1 at 5–12. Despite Griffiths's assertion that legal pluralism permits the study of change (at 22), many legal pluralists write as if the conflict between state law and folk law is static and unchanging. See!, for example, B. Santos, “The Law of the Oppressed: The Construction and Reproduction of Legality in Pasagarda.” 12 Law & Soc'y Rev. 5 (1977); Nader, “The Crown,” at 320–44 (cited in note 55). Other legal pluralists, however, say that legal and social change results from the competition among legal fields. See especially works by Moore cited in note 62; Collier, J., “Political Leadership and Legal Change in Zinacantan,” 11 Law & Soc'y Rev. 131 (1976)Google Scholar

65 Griffiths, , J. Legal Pluralism at 5–6; M. Hooker, Legal Pluralism: An Induction to Colonial and Neo-colonial Laws (1975); Holleman, J., “Law and Anthropology: A Necessary Partnership for the Study of Legal Change in Plural Systems,” 23 J. African Law 117 (1979); Nader, “The Crown” at 320–44.Google Scholar

66 Lawyers have done studies of the impact of imposed laws upon colonized peoples. A premise of impact studies is that custom is not passive, but can resist change, or even operate to alter legislation. See S. Burman & B. Harrell-Bond, eds., The Imposition of law (1979). Anthropologists have also done impact studies, discussing the tenacity of custom in the face of attempts by the legal system to change institutionalized behavior patterns. J. Starr, Dispute and Settlement in Rural Turkey: An Ethnography of Law (1978).Google Scholar

67 Griffiths, , 24 J. Legal Pluralism 1 at 24–26.Google Scholar

68 Id. at 27.Google Scholar

69 Id. at 4.Google Scholar

70 Id. at 3. A term coined by Griffiths.Google Scholar

71 Snyder, F., “Customary Law and the Economy,” 28 J African Law 34 (1984); Fitzpatrick, P., “Traditionalism and Traditional Law,” 28 J. African Law 20 (1984).CrossRefGoogle Scholar

72 Starr & Collier, eds., History and Power (cited in note 34).Google Scholar

73 Gordon and Meggitt have spent extended periods in fieldwork among the Enga and have written extensively about them. See, for example, Gordon, “Some Notes Toward Understanding the Dynamics of Blood Money,” in R. Scaglion, ed., Homicide Compensation in Paw New Guinea 88–102 (1981); M. Meggitt, Blood Is Their Argument (1977). The Enga live in a great valley high in Papua New Guinea's central mountain range. Until the arrival of the colonial administrators in the 1930s, they were warriors and horticulturalists. Enga society was united only by kinship and exchange, and by the fragile and shifting alliances of interclan warfare. Clans and clan segments within the society were led by Big Men, whose status and power continued only so long as they could maintain the loyalty of their followers, which they accomplished through a combination of oratorical skills, manipulation of the clan's exchange network, and political sophistication. In precolonial times, war was a continuing part of Enga life. Clans were either readying to attack, expecting to be attacked, or at war. Wars were fought not so much to gain territory or political domination, but to avenge perceived wrongs. A clan war was both a personal feud and a legal sanction. Enga warriors lived together in men's houses, consorting only occasionally with their wives, to whom they left the great bulk of the day-to-day labor of the subsistence economy. Id.Google Scholar

74 Gordon & Meggitt at 10. Despite the focus in Gordon & Meggitt on “the quality and style of interactions between the Enga and the state” as a major cause of tribal war, the authors do note that this is only one among the multiple causes of tribal warfare. They say that legal interactions would not necessarily result in tribal war, were it not for the underlying ecological or material conditions of the Enga. The authors, following Durkheim, distinguish between necessary and sufficient conditions. “Necessary conditions for the occurrence of Enga tribal fighting … refer to land. Nor only is encroachment on land the ostensible reason for the majority of fights-fights over land also tend to be the most violent and enduring of all, and the most resistant to solution by third-party judicial or state action.”Id. at 10. Meggitt has elsewhere written of the role that land scarcity and resultant population pressures play in stimulating Enga tribal warfare, and has recommended mass migration as one means to give the Enga more land and to decrease tribal fighting. M. Meggitt, Blood Is Their Argument at 178. Thus, the authors label land pressures as the condition necessary and legal interaction merely as a sufficient condition. The precise nature of the relationship that the authors mean to establish between the two sources of tribal warfare is unclear, however. Were legal interactions to change, while land pressure remained, would fighting cease? Were land to become abundant, but the quality and style of legal interactions remained consistent, would tribal fighting continue? For a recent study suggesting that there is little, if any, relationship between legal complexity and population density, agricultural methods or access to land, see A. Podolefsky, “Population Density, Land Tenure and Law in the New Guinea Highlands: Reflections of Legal Evolution.” 89 Am Anthropologist. 581 (1987).Google Scholar

75 Gordon & Meggitt at 41–54. See also E. Wolfers, Race Relations ad Colonial Rule in Papua New Guinea (1975) (“Wolfers, Race Relations”); Paliwala et al., 16 African Law Studies 3 (cited in note 48); L. Mair, Australia in New Guinea (1970); B. Connolly & R. Anderson, First Contact (1987).Google Scholar

76 A. Amarshi, R. Good & R. Mortimer, eds., Development and Dependency: The Political Economy of Papua New Guinea (1979); H. Brookfield, ed., Colonialism, Development and Independence: The Case of the Melanesian Islands in the South Pacific (1972); Wolfers, Race Relations; J. Zorn & P. Bayne, eds., Foreign Investment, International Law and National Development (1975).Google Scholar

77 Ottley, & Zorn, , Am. J. Comp. L. 251 (cited in note 2).Google Scholar

78 Gordon & Meggitt note (at 152) that social change and the partial integration of the Enga into the national community have raised the status of those young educated men who are adept at new forms of government or business, and reduced the status and auchority that had traditionally belonged to older men.Google Scholar

79 Village Courts Act (no. 12 of 1974, amended 1989).Google Scholar

80 Mapusia, “Police Policy” (cited in note 2).Google Scholar

81 F. Fanon, Black Skin, White Masks (1952); F. Fanon, The Wretched of the Earth (1963); J. McCulloch, Black Soul, White Artifacts: Fanon's Clinical Psychology and Social Theory (1983); H. Bulthan. Frantz Fanon and the Psychology of Oppression (1985).Google Scholar

82 The Enga themselves are organizing to obtain a more equitable share of the profits from the Porgera gold-mining operations, See Times of Papua New Guinea, March 23–29, 1989, at 9.Google Scholar