Saturday, April 26, 2014

Contemporary Melanesian Jurisprudence

In his lifetime Bernard Narokobi had challenged Indigenous jurists and scholars to construct a contemporary Melanesian Jurisprudence. We still have to step up to that challenge. Is it possible to identify concepts of law in Melanesian societies that are important to the development of a contemporary Melanesian jurisprudence?

Contemporary Melanesian jurisprudence according to Narokobi “is neither the ‘pure’ classical Melanesian jurisprudence, nor an adoption of an Anglo-Australian jurisprudence. It is a combination of the classical and the contemporary or the new ideas, whatever their sources or origins” (1989: 15). It is a consistent occurrence and observation of rules that are universal in nature among the Melanesians that qualify for recognition.

A lot of research is needed to cover all aspects of customary law in PNG. The importance of customary law is expressed in the Constitution, given statutory recognition in the Underlying Law and Customary Law Acts of Papua New Guinea. The need for research and development of customary law is critical to Papua New Guinea.

Customary Law in Papua New Guinea

In Customary Law in Papua New Guinea: A Melanesian View Richard Scaglion notes that many Papua New Guinea societies share similarities and common perspectives of what law is in Melanesian societies. One of the conclusion derived from that research is that there exists broad similarities in procedure rather than substantive law:  “Although Papua New Guinean customary law does not stress the use of precedents, there are certain expectations about appropriate punishments for particular wrongs and appropriate amounts of compensation for certain actions. People generally ‘know’ how much should be paid. These expectations have been developed through knowledge of similar cases in the past: that is, through case law” (Scaglion 1983: vii).

To make sense of what customary law is in PNG I will look at the following aspects: Land, ownership and property, authority and power, ritual life, sex and prohibited relationships, family law, housing and residence, social obligations and dispute settlement.

Land

Among the Nagum Boikens land is the source of strength and vitality in the lives of those who live on the land. Land ownership remains with each family and clans. Land is own under lineage line: “There is no individual ownership except in the case where a man had cleared away a section of the land for the first time without the help from other relatives. In addition, there are other pieces of land that are jointly owned by the lineages or the community as a whole.” (Kamanabi 1983: 9-3; Scaglion 1976:65). Land use and cultivation is considered highly among family members wishing to sustain their lives and maintain continuity of life support and regeneration of family lines. “Customary laws govern the ownership and use of customary land in the country. The land is communally owned by a clan or a tribe, but individual members of these groups have right of us. After their use the land goes back to the ownership of the group” (Matui 2012: 44).

Ownership and Property

Like the Arapesh, the Nagum Boikens consider “exclusive rights to ownership and use of songs and names” as belonging “to the lineage or clan concerned. Anyone outside the lineage wanting to use a name or sing songs at a special occasion must seek permission beforehand. Names here do not mean the names of individuals, but rather the names of clans—for instance, the wama clan (or pisin), wama meaning the white cockatoo.” (Kamanabi 1983: 10-11).  The Nagum Boikens are also particular with names of individuals, especially in selecting and naming children within the family line. Where disagreements on naming rights occur immediate withdrawal of the name in question is executed. Where a name is given by someone outside of the family line a certain payment for naming is executed at the time of naming. Without observing such a practice the turn of events in the lives of all those concerned can have tragic endings or misfortunes.

Power and Authority

The construction of power and authority in Nagum Boiken societies is as complex and abstract in a lot of sense. In terms of law and its application in the interplay of power and authority the Nagum Boikens observe general trends as in many Melanesian societies. As in Arapesh society “leadership and control seem to be in the hands of influential big men and not all the big men…succession to leadership is one of achievement and it not ascribed. It is worth mentioning that the son of a big man is already an important person in the village, but this should not mean that he is already a big man. Depending on his personality, he may be recognized as a potential leader, but then he has to prove himself as a leader and be accepted as one by the community” (Kamanabi 1983: 12). 

Each of the specific areas in ritual life such as holombo (initiation), piangangi (menstruation), pregnancy (yali le) and childbirth (nien hala), sorcery and witchcraft, death, hunting, and deviance have specific laws that define what to do, what not to do, and directs people to follow a certain path and way of participation. The laws of the Nagum Boikens are lodged within their own cultural institution that even modern ways have a hard time disrupting the continuity of many of the ritual life in the village environments. 

Family Law

Issues of family law in Nagum Boiken societies are determined through the process of observing the culturally accepted rules of conduct and managing family life.  Though in modern times adhering to strict family laws is difficult to enforce, the unwritten laws that holds families together remain the cornerstone of strong family foundations in Nagum Boiken societies.

Sometimes classical Melanesian jurisprudence exist in the primordial past without making sense to the present as such cannot appeal to the business of issuing it as a law. Yet, that same law is conceptualized in new ways, taking on board the new and old, introduced and the practiced jurisprudence, that insists on serving as the basis of a new Melanesian jurisprudence.

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