Durham, NC: Carolina Academic Press, 2021. xii, 526 pp. (Table.) US$68.00, paper. ISBN 978-1-5310-0550-4.
In the preface to Making Law in Papua New Guinea, the authors express regret that their book could not be completed by the early 1990s, as they originally intended. This excellent work is certainly a reference that I wish had been available to me long before now, and most interested readers will no doubt feel the same. The book is a condensed but thorough legal history of Papua New Guinea’s (PNG) colonial experience that provides valuable contextual background to the emergence of PNG as an independent nation state, and its subsequent struggles with development. It is a book written by lawyers, but intended for a broad spectrum of interested readers. Its three authors spent the early part of their careers teaching law at the University of Papua New Guinea during the 1970s, and were therefore instrumental in shaping the formation of the newly emerging PNG state. They were witness to its formation, and became well-schooled in the historical colonial context of its development.
My one criticism is that the book does suffer from a lack of anthropological engagement. Although the authors do refer to the work of several anthropologists who have specialized in PNG, they still succumb to the occasional sweeping generalization or didactic remark as to what PNG culture, or custom, is and was. For example, precolonial forms of leadership across all of PNG are broadly divided into the Trobriand Islands semi-hereditary chief model, and the highlands “big men” system, both of which are described as “essentially democratic” (361). This is based on the logic that neither big men, nor hereditary chiefs, can maintain their position “without the support of the clan or village” or “the continuing consent of their people” (361). Here lies a lack of awareness that the same logic, accompanied by an equivalent lack of insight, could just as easily be applied to the monarchies of Europe. Yet two pages later we learn of the problem created when a local government council was established too quickly without efforts to educate or consult with villages about how the new system should operate, whereupon the council “broke down into factions with the dominant faction led by a local big man who used his office as yet another means of obtaining power and status, and making other villagers believe themselves beholden to him” (363). Hardly a description of indigenous democracy. Furthermore, very little mention is made of the embrace of Christianity across PNG, and the huge role that this colonial religion has played in the shaping of PNG as an independent state, and in the formation of its laws.
As an anthropologist reading this book, it is interesting to see the workings of a Western legal culture on display, with its need to classify into types, and to reify the subjects of its legal instruments. The book pays much attention to the question of customary law, and the efforts and difficulties of incorporating custom into the legal structure of the nation state. But how to define custom so that it can be written into regulation and statute, especially considering the extraordinary diversity of customary practices that exist across PNG, not to mention the fluid and changeable nature of custom itself? On this point the authors would benefit from the work of Miranda Forsyth and her writings on customary law in Vanuatu, where she identifies the plurality and fluidity of custom as a strength in that indigenous approaches to dispute resolution are themselves based on the need to mediate between different cultural points of view (A Bird That Flies With Two Wings: Kastom and State Justice Systems in Vanuatu, ANU E Press, 2009, 1). The question of customary law was most problematic when it came to the crime of murder. These problems were brought into stark relief by the English law concept of the “ordinary person,” which is based on the culturally constructed notion of the “typical Englishman” (391). A key case in PNG’s colonial legal history was in 1957, when a man who killed another with an axe because of adultery had his murder charge reduced to manslaughter on the basis of provocation, taking into account the “customary relationships and obligations” that could “cause a reasonable villager to lose self-control” (392). That decision brought (non-English) cultural context into the concept of the ordinary person for the first time. The problem was that the court simply constructed an equally false notion of the ordinary Papua New Guinean, as one who was “inherently more excitable, less reasonable, less in control of their emotions” (392).
The book does a superb job of documenting the deeply ingrained racism that accompanied the colonial project in PNG, and makes clear the residual and ongoing impact of these racist beliefs. From the outset Australia’s involvement in PNG was primarily one of self-interest, and was largely driven by the belief that the indigenous population was not cognitively capable of governing itself in accordance with the standards of white, Western civilization. Although the topic of whether or not Australia’s purpose in Papua and New Guinea was primarily to serve the interests of the indigenous population was one of constant debate, and some administrators, such as Colonel J. K. Murray, were determined to “administer the colony in the interests of the Indigenous population” (321). Inevitably the “deeply held opinion of the planters and businessmen that Australia’s main purpose, perhaps its only purpose, was to provide economic opportunities for ‘good Australians’ like themselves” would win out (322). The structural legacy of these attitudes and beliefs is, for me, the strongest lesson of the book. There are clear continuities between the old colonial mindset and the postcolonial activities of multinational resource extraction companies in PNG. As the authors point out at the end of the book, the PNG economy is “dependent upon huge natural resource projects…all of which rely on massive foreign investment and mechanisation … with limited job opportunities for locals, a constant struggle to ensure that the companies fully pay the meager taxes and royalties they agreed to, and environmental problems—sometimes catastrophic ones—harming local communities and regions” (484). Foreign investors, beholden as they are to foreign shareholders and foreign fiduciary duty laws, are even less interested in the development of PNG than the colonial system that preceded them.
Michael Main
The Australian National University, Canberra