Court in Between: The Spaces of Relational Justice in Papua New Guinea

Abstract.

This article considers local-level disputing in Papua New Guinea by bringing two theories into play: spatial justice, borrowed from the ‘geographical’ turn in legal theory, and relational justice, from the anthropology of law. Disputes negotiated by means of the country’s village courts system are sometimes characterised by metropolitans as institutions that dispense peace instead of justice. I argue, through a comparison of contemporary and historical examples from local disputing processes, that village courts do exercise a form of justice, but it is not a justice of closure or peace. Rather, it is the justice of opening the space of relations between disputing parties, as a technique of recognising the ongoing potential of such relations.

Notes

1 Nader Laura Harmony Ideology: Justice and Control in a Zapotec Mountain Village Stanford University Press Stanford 1990.

2 Goddard Michael Substantial Justice: An Anthropology of Village Courts in Papua New Guinea Berghahn Books New York 2009.

3 Robbins Joel ‘Recognition, Reciprocity, and Justice: Melanesian Reflections on the Rights of Relationships' in Clarke Kamari Maxine and Goodale Mark (eds) Mirrors of Justice: Law and Power in the Post-Cold War Era Cambridge University Press Cambridge 2009 p 171.

4 Philippopoulos-Mihalopoulos Andreas ‘Spatial Justice: Law and the Geography of Withdrawal’ (2010) 6(3) International Journal of Law in Context 201 at 209.

5 Young Iris Marion Justice and the Politics of Difference Princeton University Press Princeton 1990.

6 As above at 227.

7 Caldeira Teresa P R City of Walls: Crime, Segregation, and Citizenship in São Paulo University of California Press Berkeley 2001; Demian Melissa ‘Making Women in the City: Notes from a Port Moresby Boarding House’ 42 Signs: Journal of Women in Culture and Society (forthcoming).

8 See, for example, Dikeç Mustafa ‘Justice and the Spatial Imagination’ (2001) 33 Environment and Planning A 1785; Soja Edward W Seeking Spatial Justice University of Minnesota Press Minneapolis 2010; Bengtsen Peter ‘Just Gardens? On the Struggle for Space and Spatial Justice’ (2013) 39(2) Australian Feminist Law Journal 79.

9 Lawrence Peter ‘Law and Anthropology: The Need for Collaboration’ (1970) 1(1) Melanesian Law Journal 40; Fitzpatrick Peter Law and State in Papua New Guinea Academic Press London 1980; Demian Melissa ‘Custom in the Courtroom, Law in the Village: Legal Transformations in Papua New Guinea’ (2003) 9(1) Journal of the Royal Anthropological Institute 97; Strathern Marilyn Kinship, Law and the Unexpected: Relatives Are Always a Surprise Cambridge University Press Cambridge 2005.

10 Robbins above note 3 at 173.

11 As above at 174.

12 Goddard above note 2 at 85 and 255.

13 See Demian Melissa ‘On the Repugnance of Customary Law’ (2014) 56(2) Comparative Studies in Society and History 508 at 522 for a discussion of an iconic case in the National Court of Papua New Guinea in which the humanity of a woman, and what this meant and didn’t mean in terms of how her kin could regard her as a clan resource, was precisely the issue at hand. The same case, In re Miriam Willingal [1997] PGNC 7, is discussed in Strathern above note 9 at 111.

14 See, for example, Cohen Amy J and Gershon Ilana ‘When the State Tries to See Like a Family: Cultural Pluralism and the Family Group Conference in New Zealand’ (2015) 38(1) PoLAR: Political and Legal Anthropology Review 9.

15 This is on the mainland of Milne Bay Province at the southeastern extremity of the country. The local language is Suau, the dominant church denomination Protestant and the inheritance system, unusually for much of PNG but in common with the rest of this province, is matrilineal. Land claims are nonetheless largely the purview of men who stake claims on behalf of their wives or sisters. See Demian Melissa ‘“Land Doesn’t Come from Your Mother, She Didn’t Make it with Her Hands”: Challenging Matriliny in Papua New Guinea’ in Lim Hilary and Bottomley Anne (eds) Feminist Perspectives on Land Law Routledge-Cavendish New York 2007 p 155.

16 Domestic violence was recently criminalised in PNG under the Family Protection Act 2013 (Papua New Guinea). There have been public awareness campaigns to communicate the contents of the Act, and most village court magistrates I have spoken to are aware of it. However, wife-beating is still regarded as entirely appropriate by many Papua New Guineans, especially among both men and women of the senior generation.

17 These murders have been highlighted by some journalists and academics as particularly grievous instances of ‘gender-based violence’; see, for example, George Nicole ‘Beyond “Cultural Constraint”: Gender, Security and Participation in the Pacific Islands' in Davies Sara E Nwokora Zim Stamnes Eli and Teitt Sarah (eds) Responsibility to Protect and Women, Peace and Security: Aligning the Protection Agendas Martinus Nijhoff Leiden 2013 p 155; Clark Helen ‘Sorcery and Sexism in Papua New Guinea’ The Diplomat 2 June 2015 <http://thediplomat.com/2015/06/sorcery-and-sexism-in-papua-new-guinea/> Accessed 2 June 2016. Such narratives erase the fact that both the ethnographic record and the case law document how sorcery accusations and murders resulting from them target men as frequently as women. See Jorgensen Dan ‘Preying on Those Close to Home: Witchcraft Violence in a Papua New Guinea Village’ (2014) 25(3) The Australian Journal of Anthropology 267; State v Toropo (No. 2) [2015] PGNC 119; State v Mathias [2011] PGNC 228; State v Latuve [2013] PGNC 207; State v Martin [2008] PGNC 29. One could conceivably make the argument that ‘sorcerer’ is a gender in itself, as sorcerers are commonly understood to be either incompletely human or entirely non-human, marked as a distinct category of person from fully human men and women. But this is not the argument being made in claims that sorcery-related murders are a form of gender-based violence, coded as violence against women.

18 Houghton Eve Whose Case Is It Anyway? Paper presented at the State of the Pacific Conference, The Australian National University, Canberra, 7–9 September 2015.

19 Munn Nancy ‘Constructing Regional Worlds in Experience: Kula Exchange, Witchcraft and Gawan Local Events' (1990) 25(1) Man 1.

20 Philippopoulos-Mihalopoulos Andreas ‘Law's Spatial Turn: Geography, Justice and a Certain Fear of Space’ (2010) 7(2) Law, Culture and the Humanities 187.

21 Young Iris Marion ‘Asymmentrical Reciprocity: On Moral Respect, Wonder, and Enlarged Thought’ (1997) 3(3) Constellations 341.

22 Dinnen Sinclair and Braithwaite John ‘Reinventing Policing through the Prism of the Colonial Kiap’ (2009) 19(2) Policing and Society 1 at 4.

23 Goddard above note 2 at 43–45.

24 Hasluck Paul A Time for Building: Australian Administration in Papua and New Guinea 1951–1963 Melbourne University Press Melbourne 1976 p 176.

25 Philippopoulos-Mihalopoulos Andreas ‘Atmospheres of Law: Senses, Affects, Lawscapes' (2013) 7 Emotion, Space and Society 35.

26 Gordon Robert ‘The Decline of the Kiapdom and the Resurgence of “Tribal Fighting” in Enga’ (1983) 53(3) Oceania 205.

27 As above at 216.

28 Maclean Neil ‘Mimesis and Pacification: The Colonial Legacy in Papua New Guinea’ (1998) 11(1) History and Anthropology 75.

29 Strathern Marilyn ‘Discovering “Social Control”’ (1985) 12(2) Journal of Law and Society 111.

30 Iteanu André ‘Levels and Convertibility’ in Barnes R H de Coppet Daniel and Parkin R J (eds) Contexts and Levels: Anthropological Essays on Hierarchy JASO Occasional Papers 4 Oxford 1985 p 91.

31 Demian Melissa ‘Fictions of Intention in the “Cultural Defense”’ (2008) 110(4) American Anthropologist 432.

32 Young above note 21 at 360.

33 Philippopoulos-Mihalopoulos above note 4 at 213, emphasis in original.

34 Errington Frederick and Gewertz Deborah ‘Reconfiguring Amity at Ramu Sugar Limited’ in Barker John (ed) The Anthropology of Morality in Melanesia and Beyond Ashgate Aldershot 2007 p 93 at 93.