Power has also written about what constitutes the ‘law-like’ in customary law:
The corporate nature of the land group makes allowance for a constitution to govern the management of the group. This is analogous to the constitution or articles etc of companies and business groups. A very significant weakness in implementation of the LGIA to date has been the failure of the groups to appreciate the importance of their constitution and hence their inability to manage their affairs accordingly. Thus when issues arise that could be dealt with by the group under the leadership of their management committee, the group fails to act. This leads to dissension in the group and moves to split up into smaller groups. Splitting into smaller groups may completely distort the responsibilities and effectiveness of the land controllers and should be avoided at all costs since it is totally contrary to the purposes of the Act (Power 1998: 39).
The intent of the audit of the Kutubu ILGs which I carried out in 1999–2000, and the policy of the CNGL Lands and External Affairs officers, was to make sure that the ILG program preserves the customary landholding units in the oil project area. However, to repeat, the LGIA is based on Western notions of property ownership and collective, corporate decision making that are not Melanesian principles as such. Therefore, the LGIA already works to some extent against traditional custom, by making a concrete ‘thing’ out of land and of the landowning group (Weiner 1998). But ‘customary law is not a statement of practice. It is a normatively clothed set of abstractions from practice …’ (Hamnett 1977: 7). Bohannan says that:
Whereas custom continues to inhere in, and only in, these institutions which it governs (and which in turn govern it), law is specifically recreated, by agents of society, in a narrower and recognizable context — that is, in the context of the institutions that are legal in character and, to some degree at least, discrete from all others … (1967: 45).
Law has the additional characteristic that it must be what Kantorowicz calls ‘justiciable,’ by which he means that the rules must be capable of reinterpretation, and actually must be reinterpreted, by one of the legal institutions of society so that conflicts within nonlegal institutions can be adjusted by an ‘authority’ outside themselves. (Bohannan 1967: 45–6).
I think the issue of justiciability and its relation to the work of ‘interpretation’ more generally is what is critical here — a point to which I return at the end of this chapter.
The Foi landownership system was highly flexible in traditional terms and groups varied dramatically in size, from the large clans of Damayu and Fiwaga which had over 100 adult male members, to Kuidobo clan of Hegeso which in the 1980s had a single adult male. There simply were no guidelines or ideal parameters governing what a local clan ‘should’ consist of. Clans and individuals alienated land frequently and commonly, and gained exclusive ownership over new parcels of land constantly. It must also be repeated that no local clan was in any absolute sense disadvantaged over others in terms of access to all types of land.
In fact, the evidence is that customary land law is human cataloguing of a land redistribution mechanism that has evolved over a very long time in the development of interior New Guinea agricultural systems (Weiner 1988b).
Customary law in the highlands redistributes land involuntarily in response to changing power relationships among groups. Weak groups that are dispossessed of land by their enemies get absorbed by others [voluntarily in nearly all cases] to bring power back into balance. By keeping groups small and constantly re-aligning them, no group gains complete dominance over others (Cooter 1989: 69, emphasis added).
Another important feature of the fragmentation of Foi clans through the ILG mechanism is that adopted lines are singled out, either for second-class status within the clan or for expulsion as outsiders. However, the process can work the other way around — the impetus can come from the descendants of immigrants themselves who use that justification of foreign origin to set up their own ILG. In either case, the territorial dimension of ‘clan’, that is, local group organisation is being eroded by the inextricable link between the ILG mechanism and the distribution of resource benefits. In either case, the full status of descendants of immigrants is subject to erosion of full clan rights. While it is true that foreign origins were never forgotten in the past, there was virtually no distinction in status within the clan because of it. It appears that the Foi are on the way to developing their own model of infra-indigeneity, whereby ‘original’ people are contrasted with ‘immigrants’.
But the fact that PDL land is valuable in a way that traditional land was not means that the system threatens to ‘set in concrete’ a division of the clan into PDL and non-PDL landowners (Weiner 2001), although — as the example of Muiyoke indicates — there are indications that the Foi are indirectly redistributing even PDL land more widely. These points have already been summarised more effectively in the course of Cooter’s earlier observations:
The courts that hear cases in customary law — village courts and land courts — are better placed than parliament to make authoritative findings about customary law … Melanesian legal principles are to be discovered by deciding cases in customary law. The ‘common law process’, which refers to the courts working custom into formal law, involves litigation, not legislation (Cooter 1989: 19).