Problematic legal pluralism: causes and some potential ‘cures’

The tools of analytical positivism and economic analysis are applied to the phenomenon of legal pluralism. An analytical framework is developed to ascertain when legal pluralism is problematic in the control of wrongdoing. It is demonstrated that there are three specific cases: rivalrous compliance, sanctions for wrong behaviour that are deemed to be wrongs themselves, and the uncoordinated sanctioning of common wrongs. Then there is a discussion of the consequences and some approaches that can be used to ameliorate each case that has been identified. It is hoped that this framework will be used to guide future practical and theoretical discussions on legal pluralism and its potential problems.This is the accepted manuscript. The final version is available from Taylor & Francis at http://www.tandfonline.com/doi/abs/10.1080/07329113.2014.892335#.VOXJ3S6Qne4

Natural Resource Contests and Precolonial Institutions in Papua New Guinea

This article investigates the role that precolonial institutions play in relation to post-colonial natural resource ownership contests. Papua New Guinea provides a unique case study as it is recorded as having the most decentralized precolonial political institutions of any post colonial state. After an examination of its precolonial institutions, colonial land policy, and three case studies, it is concluded that persistent highly decentralized customary political units coupled with customary notions inalienability of land, and overlaid with a state property rights regime, leads to resource contests. It is concluded that resource ownership contests can have serious adverse consequences for resource management and that they are not easily overcome

Promoting and Reforming Kenya’s Customary Justice Systems in Criminal Cases

Kenya’s indigenous customary justice systems developed over time to administer African justice rooted in local community harmony. British Colonialists imposed a foreign legal system, and Kenya formally retained that system even after gaining independence in 1963. Nevertheless, ordinary Kenyans today continue to resort to customary justice systems for their legal problems, including many crimes. The 2010 Constitution requires the judiciary to promote customary justice systems because they are trustworthy and accessible. Paradoxically, though, the Constitution also forbids these customary justice systems from contravening other constitutional provisions. Therein lies the difficulty. Customary justice systems’ procedures do not always comport with the 2010 Constitution or international human rights standards. For example, the right to remain silent is foreign to and sometimes even antithetical to many customary justice systems. To reconcile this discrepancy, the Kenyan judiciary has developed policies, called the Alternative Justice Systems Policy Framework and Baseline Policy, to accommodate and recognize customary justice systems while simultaneously seeking to reform them. The judiciary’s policies emphasize education and training, hoping for voluntary compliance with the Constitution. These policy challenges are not unique to Kenya. Many former British colonies find themselves in a similar situation, seeking to strengthen and reform their customary law systems to relieve overburdened state systems, provide greater access to justice, and promote human rights

Arcticness

Climate change and globalisation are opening up the Arctic for exploitation by the world – or so we are told. But what about the views, interests and needs of the peoples who live in the region? This volume explores the opportunities and limitations in engaging with the Arctic under change, and the Arctic peoples experiencing the changes, socially and physically. With essays by both academics and Arctic peoples, integrating multiple perspectives and multiple disciplines, the book covers social, legal, political, geographical, scientific and creative questions related to Arcticness, to address the challenges faced by the Arctic as a region and specifically by local communities. As well as academic essays, the contributions to the book include personal reflections, a graphic essay, and poetry, to ensure wide and varied coverage of the Arctic experience – what the contributions all have in common is the fundamental human perspective. Topics covered in the essays include indigenous identity and livelihoods such as reindeer herding, and adapting to modern identities; a graphic essay on the experience of Arctic indigenous peoples in residential schools; the effects of climate change; energy in the Arctic; and extractive industries and their impacts on local communities. The book includes reflections on the future of Arcticness, engaging with communities to ensure meaningful representation and as a counterpoint to the primacy of environmental, national and global issues