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ABSTRACTThe Solomon Islands Public Solicitor’s Office is established by the Constitution. The role of its officers is to provide legal advice and assistance not only in relation to state law, but also in respect of customary laws and institutions. In the course of providing legal aid, numerous dilemmas arise as to the best way in which to negotiate these complex issues, taking into account the prevailing culture. The 40thanniversary of the Journal of Legal Pluralism presents an ideal occasion to consider legal pluralism from the perspective of those whose daily work puts them at the forefront of the interface between the state and customary legal systems.

AbstractThe co-existence of plural legal systems throws up complex practical dilemmas. In the criminal sphere, the interaction between customary and state laws raises issues that are, perhaps, most graphically illustrated in the areas of culpability and sentencing. However, questions also arise as to criminal jurisdiction and procedure. This article examines two such questions concerning the position where an act is punishable both by the state and by a customary authority. Firstly, it considers which system has priority; and, secondly, whether a person may be punished by authorities in both systems, or whether punishment under one system is a bar to punishment under the other. This article considers these questions in the context of Solomon Islands, with some reference to neighbouring small island countries, where similar questions arise. It begins by identifying the relevant constitutional and statutory provisions. The issues to which these provisions give rise when they interact with the customary legal system are then explored in depth, with reference to pertinent case law from Solomon Islands and other comparable jurisdictions.

Since Samoa's independence in 1962, customary law has been formally recognised by the State legal system. However, there are tensions between customary law and State law, which are particularly evident in family matters, where the influence of custom and culture is strong. One area where tensions are increasingly acute is adoption. In Samoa, most adoptions, or ‘vae tama’ as the closest customary equivalent is called, take place within the extended family according to customary law and practice. Overseas adoptions, which, unlike the customary process, take children away from their cultural roots, are a particular cause for concern. In 2005, the death of a child awaiting adoption by overseas adopters focused attention on the formal adoption regime in Samoa and provided an impetus for amendment of adoption law. However, whilst this introduced some level of protection for children, it did not result in reconciliation of the underlying tensions between customary and State laws. This article considers the tensions between the different legal systems in the context of vae tama and adoption, and puts forward some suggestions for reform. It considers the extent to which each system protects the rights of the child and the child's best interests.

At Independence, Papua New Guinea's Constitution gave customary laws a prominent place in the country's legal system. However, for many years Papua New Guinea's courts largely ignored customary laws and fashioned the underlying law almost entirely along the lines of common law. In 2000, the Papua New Guinea Parliament enacted the Underlying Law Act2000, which requires the courts to look first and foremost to customary laws in developing the underlying law. This paper analyses the Act, describing its aims and the methods it employs to ensure that the courts will use customary laws in developing the underlying law. It considers whether Papua New Guinea courts are following the Act's mandates, and, indeed, whether this is possible. The paper considers possible ways forward for Papua New Guinea to create a legal system based firmly on Melanesian values, beliefs and customary laws.

The succession of military coups and constitutional revolutions in recent Fijian history poses numerous problems, both urgent practical ones and complex theoretical ones. One set of theoretical questions concerns the issue of legal continuity and discontinuity within a particular society or legal system. Another set of such questions concerns the relationship between formal legal systems and the customs and social conventions of non-western societies. In their application to Fiji, both sets of questions are interrelated, for the lack of constitutional continuity that Fiji has experienced cannot properly be understood without appreciating the influence of cultural beliefs and practices on the operation of Fiji's constitution and legal system.There are numerous attempts in the literature to address these questions of continuity/discontinuity and of the relationship between formal and customary law. HLA Hart sought to address both sets of questions in a theoretically and descriptively integrated way. Law, for Hart, is a special kind of social rule, distinguished from mere customs and conventions because it forms part of a formal legal system, the identity of which is ascertained by reference to the ‘rule of recognition’. On Hart's account, a fully effective constitutional revolution occurs when there is the substitution of one rule of recognition for another. Hart thus has an account of legal revolution. However, it is an account that depends upon a theoretically laden description of certain discrete social practices.The succession of coups and revolutions in recent Fijian history offers an opportunity to test the applicability of these aspects of Hart's theory to a difficult case example. Like many similar countries of the South Pacific and elsewhere, Fiji has a strong set of traditional customs and mores co-existing in a complex relationship with a formal system of law. In addition, however, Fiji has undergone a series of coups and revolutions which have challenged the formal system of law and demonstrated the continuing force of the traditional sources of power within the country. Can Hart's theory account for the state of the ‘law’ in Fiji? That is the question we address in this article. In particular, we use qualitative empirical evidence from interviews with a representative sample of participants within Fijian society to test whether Hart's assumptions and analysis hold true. We find that in certain important respects they do not. We conclude, in essence, that an interesting paradox exists: that the descriptiveinadequacy of Hart's theory lies in the fact that it incorporates a set of normativevalues about the rule of law that are not generally shared, at least in not quite the same way, by the people of Fiji.

AbstractThroughout the world many former colonies are struggling with an inheritance of legal pluralism that gives recognition to both customary law and formal, written law. The interaction of such laws, which are very different in nature, often raises complex questions, especially because in practice the boundaries between them are often blurred. Each has had to adapt to accommodate the other, and in some cases hybrids have emerged. Questions of jurisdiction also arise, since recognition of a discrete legal system requires definition of the community to which it applies. This article explores the question of how, when state law gives recognition to custom, boundaries between different communities are determined within the State legal system for the purposes of legal jurisdiction. The geographical context of this examination is the South Pacific, and in particular Solomon Islands.In many countries of the South Pacific, including Solomon Islands, the Constitution establishes a hierarchy of laws. In this customary law is placed below the Constitution and statute, but sometimes above common law and equity. However, in practice choice of law issues arise and are debated, as it is not accepted that customary law necessarily applies to every branch of substantive law or to everyone present in the country. Whilst most South Pacific countries give special treatment to customary land, in other areas the choice of law rules are unclear and cases are determined on an ad hocbasis. Frequently reference is made to the notion of a ‘personal law’, determined according to whether a party is an ‘islander’. The interpretation of the term ‘islander’, as used in various places and with various meanings in the statute law of Solomon Islands, is shown to raise complex problems. This is the case, whether or not choice of law rules are provided by statute or have to be developed by judicial action. It is argued that it is imperative to have clear definitions, or at least a clear process for identification, if a plural system is to flourish. It appears that in cases of uncertainty the rules underpinning the State system will be adopted by default. If South Pacific jurisprudence is to develop then more appropriate solutions must be found, but this will be best done through exploration of the boundaries of legal identity together with the communities themselves.

AbstractIn countries of the South Pacific, societies are often discussed in terms of the dichotomy between ‘traditional’ and ‘modern’. Similarly, legal systems are often described by reference to the dichotomy between ‘customary’ or ‘traditional’ law and ‘state law’, and between ‘informal’ and ‘formal’ justice. In fact, these divisions are becoming a thing of the past, gradually blurred by changes in the pattern of society and by the interaction between different systems of law. Further, the approach taken to the accommodation of customary law, which has been to formally ‘recognise’ it in constitutions, has, at least in theory, put an end to its independent operation. In the search for a more effective approach to legal pluralism, the existing dichotomy may often obscure a more complex interplay between the interwoven spheres of ‘traditional law’ and ‘state law’ and a new sphere of ‘blended’ law. In each of these spheres there are uncertainties, including questions of definition and scope, which constitute a potentially destabilising factor and have significant rule of law implications.Commencing with an overview of the different sources and types of law within the ‘customary’ and ‘state’ law spheres in the South Pacific region, this paper discusses some of the uncertainties and tensions that arise from pluralism in practice. Examples drawn mainly from Solomon Islands are used to illustrate the various ways in which the lines between customary law and state law have been blurred. These include attempts to incorporate customary law in statutes. Two examples of statutes which provide for this are considered, and the case-law arising from them is discussed.Commencing with an overview of the different sources and types of law within the ߢcustomaryߣ and ߢstateߣ law spheres in the South Pacific region, this paper discusses some of the uncertainties and tensions that arise from pluralism in practice. Examples drawn mainly from Solomon Islands are used to illustrate the various ways in which the lines between customary law and state law have been blurred. These include attempts to incorporate customary law in statutes. Two examples of statutes which provide for this are considered, and the case-law arising from them is discussed