W5 - Legal Pluralism

Question 1

Define legal pluralism

Answer 1

A situation where at least two legal orders assert jurisdiction over the
same geographical space and persons within that space

Question 2

What is the Legal positivist framework?

Answer 2

Separates what law is from what law should be based on morals - not everything illegal is immoral and vice versa

Question 3

Draw the diagrams of legally wrong, neutral and good behaviour AND sanctions and harms in a legal monistic society

Answer 3

okay

Question 4

Draw the graph of wrongs and sanctions under legal pluralism

Answer 4

okay

Question 5

What are the 3 consequences of legal dissonance?

Answer 5

1) Rivalrous compliance - Rules of systems conflict
2) Sanctions that are wrongs - One system sanctions, other system says the sanction is a wrong
3) Uncoordinated sanctions - both systems sanction which is excessive

Question 6

Give an overview of the Papa New Guinea case study in terms of the 3 consequences of legal dissonance

Answer 6

One of the most decentralised political units globally
- Operates both state (Queensland) and customary law

Rivalrous compliance
- Conflict between state officials obligations and their wantokism (favour family/clan)

Customary sanctions that are wrongs
- Customs allow payback killings enforced by the victims. Community considered legitimate if immediate payback, state considered it as punishable by death

Uncoordinated sanctions
- Very high compensation payments

Question 7

Draw the legal dissonance model showing how aggregate enforcement efforts

Answer 7

Okay

Question 8

Give an overview of the Mattau case and how the judge considered customary law

Answer 8

Mattau killed someone. Compensated family and organised peace ceremony. Judge took the reparations seriously, said the Bougainville constitution avoided violence to resolve disputes, and imprisonment is violence. Resulted in suspended sentence and advocated for prison to be last resort.

Question 9

Give an overview of bargaining in the shadow of the law, and state law.

Answer 9

Most legal disputes settled out of court, but terms agreed affected by the probable outcome at trial.

In legal pluralistic environment
Same logic but settled in customary schools, state law acts as a magnet effect so terms agreed are affected.

Question 10

Define polycentric governnance

Answer 10

Many different, independent centres of decision making that can cooperate, such as policing in the US. Ostrom found that it could be more effective than a single large department.