- A Bird that Flies with Two Wings: Kastom and State Justice Systems in Vanuatu
It is a familiar idea in Pacific studies that two normative orders can exist side by side or one on top of the other. In land tenure, for example, one piece of land may be governed by custom and another by introduced land [End Page 534] legislation—or the same piece may even be governed by both, simultaneously. Customary rights may persist under the introduced title, and people may continue to use the land in customary ways in spite of what the law says. These dualistic and ambiguous situations are sometimes discomfiting for lawyers, who are accustomed to the idea that statute overrides other rules. People may not know which to turn to—law or custom—when disputes arise. Tension between the two orders is particularly strong in some Pacific Islands where legal systems were not very effectively imposed by colonial powers, and where resistance to them has become part of a nationalist struggle, as is the case in Vanuatu. Yet beneath the political conflict there may be coexistence and interdependence between the systems, and people may move easily between them.
In this excellent book, Miranda Forsyth’s focus is on the criminal justice system, rather than land tenure because, she argues, criminal justice is where most people in Vanuatu come into contact with the introduced legal system. This is not an intense anthropological investigation of a particular place and people. Forsyth’s research is national in scale, global in its implications, and more broadly social scientific in its approach. It is also deliberately practical, reflecting the author’s experience as a volunteer in Vanuatu’s Public Prosecutor’s office, and, in the final chapter, speaking to policymakers who want to manage the relationship between the two systems (“doing legal pluralism”).
Chapter 1 introduces Vanuatu, while chapter 2 offers a comprehensive disentangling of ideas about “legal pluralism.” Forsyth identifies three strands: legal positivism, legal anthropology, and legal pluralism. Roughly, legal positivism takes the primacy of introduced law as given, while looking for ways that customary norms may be recognized or integrated at its margins. This was the colonial approach carried forward with little success by the postcolonial legal professions in the region. The second strand developed within academic anthropology. It began in an evolutionary way and was interested in processes as well as norms. It described the many systems of dispute resolution that existed outside the law. But, Forsyth argues, it tended to avoid prescription and comparison. Her preferred approach, legal pluralism, grew out of legal anthropology, particularly where it noticed continuing pluralism within European and American societies, not just along their colonial frontiers. This approach set itself against the claim that there is, or should be, one system of law in which the state dominates. Within legal pluralism Forsyth distinguishes three themes: the limits of state law, a focus on process rather than norms, and the heterogeneity of normative domains.
Forsyth then goes on in chapter 3 to review the ethnography of conflict management and leadership structures in Vanuatu, particularly the predominance of the public meeting as a method of resolving disputes, while chapter 4 is based on her own field-work, interviews, and documentary research into the customary system of dispute resolution as it works today. She identifies a number of problems: disputes over chiefly titles are causing the system to break down in some [End Page 535] places; respect for chiefs is decreasing; people are not turning up to meetings; some chiefs are acting unfairly, and there is no way to redress complaints about them; women and youth are often excluded from the process; and many chiefs are wondering if they can continue in the face of challenges to their authority. But she also finds widespread popular support for the continuation of the system, as well...