Articulating Customs: the politics and poetics of social transformations in Samoa

Abstract

Social theorists and political philosophers tend to conceptualize law and custom in terms of an opposition of normative structures, and they tend to place the locus of these structures’ respective production at opposite ends of a dimension of discursive practice. In a Weberian conception, the differences refer to the tensions between rationalism and traditionalism. More generally, they refer to conceptions of law as stated rules about social mores emanating from the state, and to conceptions of custom as norms of behavior generally not stated and not reflected upon in everyday life. Consistent with more pluralist perspectives of law, I argue here that the construction of both law and custom is discursive and subject to similar and often the same political processes determined by the nature of statelocal relations. This perspective derives from an attempt to understand the politics of law and custom in the islands of the Pacific. It corresponds to realist perspectives in legal philosophy, in the sense that it takes law to be what lawyers and judges say it is, but it does so without privileging those imbued with the authority of the state as the final or sole arbiters of law or of custom. And it is consistent with a conception of human agency emphasizing people's ability to modify and manipulate the rules and relations structuring society and their capacity to penetrate and deflect the more hegemonic aspects of law and custom, as shown in current debates in social theory. But it does not assume that these abilities are equal, and it is concerned less with theoretical debates than with understanding how law and custom are leveraged in social conflicts about meaning and the authority to control both people and political resources.2 Pacific island states were created principally through the actions of colonial authorities who were generally dependent upon modifying custom in giving local effect to central governance. This dependence was more general to states created under principles of ‘indirect rule’ - commonly meaning central governance through local elites or ‘chiefs’ and referring to an approach to central administration replicated widely throughout the colonized world during the latter quarter of the nineteenth century. It was manifest in the respective states’ attempts to appropriate the authority vested in the pre-existing and created administrative structures which colonial authorities encountered or devised (Olson n.d.a). But more significantly it was manifest in their attempts to control the construction of customary political authority. To govern effectively the colonial state needed to control who would hold the socially legitimated positions of such authority, just as it needed to control the general authority attached to customary political titles. This dependence has not diminished today in the islands of the Pacific. And the tensions it creates, particularly within customary law, is the subject I wish to explore with respect to Samoa.