Category Archives: law

The Rule Change

The effort for Federal recognition of Native Hawaiians for the purposes of creating a governing entity went through three stages, or attempts: The Akaka Bill, direct recognition by the Department of Interior and the rule change.

Dept. of Interior (DOI) Hearings:

In this latest (and what seems to be the most successful) attempt DOI looked to reestablish government-to-government relationship between Federal government and Native Hawaiian community. On June 18, 2014, the DOI stated,

The Secretary of the Interior (Secretary) is considering whether to propose an administrative rule that would facilitate the reestablishment of a government-to-government relationship with the Native Hawaiian community, to more effectively implement the special political and trust relationship that Congress has established between that community and the United States. The purpose of this advance notice of proposed rulemaking (ANPRM) is tosolicit public comments on whether and how the Department of the Interior should facilitate the reestablishment of a government-to-government relationship with the Native Hawaiian community. In this ANPRM, the Secretary also announces several public meetings in Hawaii and several consultations with federally recognized tribes in the continental United States to consider these issues.

Secretary of the Interior, Sally Jewell stated “The Department is responding to requests from not only the Native Hawaiian community but also state and local leaders and interested parties who recognize that we need to begin a conversation of diverse voices to help determine the best path forward for honoring the trust relationship that Congress has created specifically to benefit Native Hawaiians.” Public hearings throughout Hawaii, from June 23 to August 8, 2014, which I wrote about in the Nation magazine, asked 5 “Questions to be Answered:”

  1. Should the Secretary propose an administrative rule to recreate a government-to-government relationship with the Native Hawaiian community?
  2. Should the Secretary assist the Native Hawaiian community in reorganizing its government?
  3. What process should be established for drafting and ratifying a reorganized Native Hawaiian government’s constitution or other governing document?
  4. Should the Secretary instead rely on reorganization through a process established by the Native Hawaiian community and facilitated by the State of Hawaii, to the extent such a process is consistent with Federal law?
  5. If so, what conditions should the Secretary establish as prerequisites to Federal acknowledgment of a government-to-government relationship with the reorganized Native Hawaiian government?
Chang_Williamson _1

Prof. Williamson Chang

On September 29th, 2015, the DOI released the rule change. UH Law Professor Williamson Chang released the following statement in response:

The Department of Interior issued its long awaited proposed rule as to a Native Hawaiian Governing body. It was not much. The Federal Government is giving very little. If this is the last word on the federal government and Hawaiians, from the point of view of the United States’ the history of Hawaii ends with a “whimper not a bang”
1. It starts by noting that only the written comments counted, not the vehement oral testimony.
2. It is premised on false history: At page 6 of the long document, it states the Republic of Hawaii ceded its lands to the United States and that Congress passed a joint resolution annexing the Hawaiian Islands. Accordingly, all that follows flows from a flawed premise: The United States acquired the Hawaiian Islands and has jurisdiction. Moreover, it claims that the United States has title to the crown and government lands.
3. Even so, it gives very little. It would make a consenting Native Hawaiian government “just like” a tribe, but not a tribe.
4. The law that applies to tribes would not apply to the Hawaiian entity. Congress would have to explicit[ly] write Hawaiians in to Indian programs—just as it is today. No gain.
5. It admits that the purpose of the proposed rule is to protect Hawaiians from constitutional attacks on Hawaiian-only entitlement programs. The Department of the Interior, however, does not control the U.S. Supreme Court. The Court would still be free to strike down Hawaiian only programs if it so desired.
6. The Hawaiian governing entity gets no lands by this proposal
7. The proposal does not affect Federal holdings or title to the Crown and Government lands.
8. There is to be no compensation for past wrongs.
9. The rule limits the Hawaiian government to Hawaiians only.
10. Only one Hawaiian government can establish a relationship with the Federal Government under this proposal.
11. It precludes federal recognition of a restored Kingdom of Hawaii, or Provisional Government that would become a State either as a Kingdom or any other.
12. The Hawaiian Government cannot be in violation of “federal laws” such as the prohibition on ‘titles” in the U.S. Constitution—thus no quasi-Kingdom either.
In summary—and this is from a very brief reading. I may be in error, I may have overlooked various important sections, but in the name of getting this to you as soon as possible. Here is the link to the proposal, its supporting documents and frequently asked questions.

The Notice of Proposed Rulemaking read:

The U.S. Department of the Interior is proposing to create an administrative procedure and criteria that the Secretary of the Interior would apply if the Native Hawaiian community forms a unified government that then seeks a formal government-to-government relationship with the United States.  Under the proposal, the Native Hawaiian community — not the Federal government — would decide whether to reorganize a Native Hawaiian government, what form that government would take, and whether it would seek a government-to-government relationship with the United States.

The proposal, which takes the form of a Notice of Proposed Rulemaking (NPRM), builds on more than 150 Federal statutes that Congress has enacted over the last century to recognize and implement the special political and trust relationship between the United States and the Native Hawaiian community.  The NPRM comes on the heels of a robust and transparent public comment period as part of an Advance Notice of Proposed Rulemaking (ANPRM) process that began last year and included public meetings.  More than 5,000 members of the public submitted written comments to the ANPRM, and they overwhelmingly favored creating a pathway for re-establishing a formal government-to-government relationship.

Members of the Hawai’i Congressional delegation predictably responded in favor of the rule change, as did Governor Ige. Rep. Tulsi Gabbard’s statement was perhaps the most substantive:

Many indigenous groups in the U.S. have the right of self-determination, and today’s announcement acknowledges that that right also belongs to the Native Hawaiian people, one of the largest native communities in the country. These rules incorporate over 5,000 public comments submitted to the Department of Interior (DOI), and should they be adopted, the Native Hawaiian community will have the option to re-establish a unified government and self-determine their future relationship with the federal government. I encourage all interested parties to submit their comments to DOI during the 90-day public review period to ensure a collaborative final ruling.

The list of candidates for delegate to the constitutional convention was released by Na’i Aupuni the next day. It can be viewed here, but prominent candidates included John Aeto, Keoni and Louis Aagard, OHA trustee Rowena Akana, former Mayor Dante Carpenter, Prof. Williamson Chang, Jade Danner, Prof. Lilikala Kame’eleihiwa, Senator Brickwood Galleria, Adrian Kamali’i, Sovereignty leader Dennis “Bumpy” Kanahele, Colin Kippen, Prof. Daviana McGregor, former OHA administrator Clyde Namu’o, and Native Hawaiian Legal Corp. director Moses Haia, among many others.

There is a question of whether the rule change gives the kind of legal protection that was the point of Federal recognition, or if it is merely a Federal sanction of a process already happening. The Hawai’i Independent ran a story questioning the validity of the rule change:

“We have to remember that this process started with the State of Hawai‘i, not the Hawaiian people,” [Andre] Perez told The Independent over the phone. “Hawaiians did not initiate or pass Act 195, which created Kana‘iolowalu. The state legislature did, and gave the governor the power to appoint members to the commission. True self-determination does not come with a state-initiated, state-controlled process like this.”

Keanu Sai happened to speak to my class the day after the rule change. As I pondered the question of whether this was a victory for the Fed Rec set, it seemed to have no effect on Sai’s view that it was simply more Federal legislation inapplicable in foreign (Hawaiian) territory.


Filed under academia, Education, Globalization, Hawaiian history, intellect, law

Response to Gerald Smith’s “Host Culture in Hawaiʻi is just a Myth”

Gerald Smith was right and wrong in his Civil Beat article “Host Culture in Hawaiʻi is just a Myth.” Hawaiians may not be the “host” culture, and it’s true as he says, that neither Hawaiians nor other non-indigenous groups are here by choice, nor by invitation. In fact, Kamehameha II gave the first group of foreigners to ask permission, the Congregationalist missionaries in 1820, a probationary period of one year. The deadline for reviewing their stay was neglected and within a generation they were entrenched in government and the economy. I often wonder if the term “host culture” is merely a convenient one for the tourism industry, as it creates the impression – a questionable one – that tourist are welcome guests. Smith is wrong, however, on several counts. His claim that “Many Native Hawaiians would like us all to leave and restore the kingdom that was taken away by the United States,” is unsupported by any evidence. Just as the Hawaiian Kingdom never ejected even its most troublesome residents, the Hawaiian movement has not called for non-Hawaiians “all to leave.”


Kūkaniloko march opposing Stryker brigade, 2006. Thatʻs me looking in the wrong direction as usual. Photo by Michael Puleloa

What is problematic is Smith’s assertion that everyone in Hawaiʻi is equal in the eyes of the law. Putting aside the quite valid claims of independence advocates for the moment, the State of Hawaiʻi recognized Hawaiians as the Indigenous people of Hawaiʻi in 2011. Over one hundred pieces of Federal legislation, beginning with the 1921 Hawaiian Homes Commission Act do the same. To simply brush aside these forms of recognition that Hawaiians are unique in the eyes of the law, is troublingly close to what has been called “white indigeneity.” What can be said of narratives of white indigeneity is that they are widespread. Such claims are seen in New Zealand, Australia, the US and elsewhere. What cannot be said is that they are taken seriously. I happened to observe the phenomenon in the New Zealand parliament: one conservative member cited the respected historian Michael King to support his contention that pakeha (Caucasians) were Indigenous. To this another member asked if the “honorable member” was familiar with the UN definition of Indigenous.

Smith establishes his kamaʻāina credentials by stating that he observed the attack on Pearl Harbor. If this is the case, he certainly did not take Hawaiian history in school, even if he went to school here, as it wasnʻt required until the 1970s. So one is left to wonder where his understanding of Hawaiian history comes from. Likely its from Gavan Daws’s Shoal of Time, still the most read general history of Hawaiʻi. The book’s chapter on Statehood is entitled “Now we are all Haoles.”

Smith’s contention that “the people who live here voted to become a state, so some will never accept their fate.” was roundly and very publically critiqued on its 50th anniversary in 2009, with very little in the way of counter- arguments.  The link in his article that ostensibly supports this “fact” takes the reader to – as Hawaiian history is not well-known in Hawaiʻi, citing an external source does not inspire confidence in the reader. This was taken into consideration by the UN; in 1996 the Star bulletin headline read “UN may find statehood illegal.” It was even tacitly recognized by the local majority. There are fireworks in Waikiki every Friday, but none on the 50th anniversary of statehood. Apparently Friday is a more important event.


Filed under Environment, Hawaiian history, law

Locke and Property

This post, along with the one on Rousseau, Plato and many to follow, are part of an upcoming project – stay tuned.

The United States incorporated a Lockean notion of relation of individual to state, a notion that was “dominant at the time when the [US] Constitution was adopted.” In common parlance, the term property is used as a noun. One is said to own “property,” i.e., a piece of property, an object. Locke’s time used property as a right, as in “I have a property in that land.” This shift occurred sometime in the seventeenth century [see Appleby] in Europe, and was present at the founding of the US, but in Hawaiʻi, it was more visible, occurring in the time period in question, the 1840s and 1850s. So in addressing the question of the transition from property as a right to property as an object, some of the associated trauma can be attributed to the fact that the shift was both later and more rapid in Hawaiʻi than in Europe.

John Locke

Locke expounded his notion of property in his Two Treatises of Government, Second Treatise (1690):

… every Man has a Property in his own Person. This no Body had any Right to but himself. The Labour of his Body, and the Work of his Hands, we may say, are properly his. Whatsoever then he removes out of the State that Nature hath provided, and left it in, he hath mixed his Labour with, and joyned to it something that is his own, and thereby makes it his Property. It being by him removed from the common state Nature placed it in, it hath by this labour something annexed to it, that excludes the common right of other Men. For this Labour being the unquestionable Property of the Labourer, no Man but he can have a right to what that is once joyned to, at least where there is enough, and as good left in common for others.

Sec. 43. . . . . ‘Tis Labour then which puts the greatest part of Value upon Land, without which it would scarcely be worth any thing . . . . For ’tis not barely the Plough-man’s Pains, the Reaper’s and Thresher’s Toil, and the Bakers [sic.] Sweat, is to be counted into the Bread we eat …

Sec. 45. Thus Labour, in the Beginning, gave a Right of Property, where-ever any one was pleased to imploy it, upon what was common, which remained, a long while, the far greater part, and is yet more than Mankind makes use of.

The application of Lockean ideals in Hawaiʻi was premised on a particular psychology subcribed to by missionaries:

In some ways the missionaries … were equipped with a full-fledged theory of the human mind and society … Their psychology started with the empiricist idea od the mind as filled with custom, hence subject to outside influence and change. The follies and whims of the human mind, perpetuated by custom, as Locke and the enlightenment thinkers would say, are a result of insufficient use of the reason due to social circumstances (Mykkänen, 2003, 80).

Responding to Hobbes’ more radical notion that “everyman” has a right to everything, Locke held that it was a “ridiculous trifling to call that power a Right, which should we attempt to exercise, all other Men have an equal Right to obstruct or prevent us” (Tully, 1980, 74). This separation of rights represented a building of consensus over rights in property that the state was being encouraged to protect.

The foundation of the debate rested on the notion of natural rights, on the existence of which there was considerable agreement. The debate centered, instead, on the manifestation of natural rights in the actual world of property ownership. The interpretation of these rights rested, in turn, on the idea of the social contract. Pufendorf held, in response to Hobbes, that “rights of property have no higher sanction than the laws which men consent to in entering political society” (Tully, 1980, 75).

            Ivison, Patton and Sanders summarize the larger picture of interaction between “Western” political thought and Indigenous societies, values and systems of property:

Western political thought has often embodied a series of culturally specific assumptions and judgments about the relative worth of other cultures, ways of life, value systems, social and political institutions, and ways of organizing property. As a result, egalitarian political theory has often ended up justifying inegalitarian institutions and practices” (Ivison, Patton and Sanders, 2).

They contend that “finding appropriate political expression for a just relationship with colonised indigenous peoples is one of the most important issues confronting political theory today” (Ivison, Patton and Sanders, 2).

Defining “rights” as that “securing or protecting fundamental human interests, for example, those to do with property or bodily integrity,” they note that recognition of Indigenous rights will entail a fundamental alteration of those rights. Further, the note the failure of western political theory to enter into dialog with Indigenous peoples over the issue of rights in general, and, I would add, property rights in particular.

Ivison, Patton and Sanders also address the issue of indigenous title, and hold that it is “more about the continual definition and redefinition of relationships rather than the simple vindication of a property right.” This notion suggests the primacy of communal title and further its contrast with individual title. In fact, New Zealand’s Maori Land Court had as its primary task the “individualisation” of Maori title – a practice viewed as facilitating alienation of Maori lands.

Tully (99) notes that, for Locke, “it is never the case that … property is independent of a social function.” He distinguishes between property as a natural right and “political property,” which succeeds it and is only then private property. Locke opposes Filmer, Grotius and Pufendorf on this point. He holds that the natural property rights in the state of nature precede “the systems of property that arise later with the introduction of money and the creation of government.”

This, of course, is subject to critique, as the notion of a state of nature prior to government was what facilitated the doctrine of terra nullius. Thus the notion of a state of nature itself is contingent on one’s ability to see a government – which settlers in Australia claimed not to be able to do. Locke had a similar blind spot when it came to the “new world.” Locke worked as an aide to the Lord Proprietor for the Carolina colonies. His work justified slavery in the Carolinas and he was a shareholder in the Royal African Company, which was involved in the African slave trade. Locke clearly believed in property, but his belief in liberty was more constrained. Farr (2008), however, holds that Locke forwarded a just-war model justifying slavery, but one that did not apply in the Americas, but only in Stuart England.

Between Locke’s Eurocentric notions of property and government and inconsistent position on slavery, the implementation of a Lockean private property regime in Hawai’i was indeed problematic.

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Man is born free and he is everywhere in chains

-Jean-Jacques Rousseau

Rousseau biographer Leo Damrosch (2005, 1) wrote that the philosopher Jean-Jacques Rousseau “developed a theory that deeply influenced the American founding fathers and the French revolutionaries, helped invent modern anthropology, and advanced a concept of education that remains challenging and inspiring to this day.”

Jean Starobinski (in Damrosch, 2005, 2) said “it took Kant to think Rousseau’s thoughts and Freud to think Rousseau’s feelings.” This only begins to hint at how important Rousseau’s ideas were in Western thought.

Jean-Jacques Rousseau

Rousseau was born in Geneva in 1712 at a site that is now a department store. His family immigrated to France to escape Protestant persecution. They were quite comfortable until falling on financial difficulty, which seemed to plague Rousseau for most of his life. His meeting and relationship with Mme. De Warrens was so consequential that a marker lies at the spot of their first meeting.

Madame De Warrens

Rousseau was apprenticed to the engraver Ducommum, but abandoned this apprenticeship and became a private tutor in Lyon, France. He came to know Denis Diderot, editor of the first encyclopedia and the Scottish philosopher David Hume. In 1762, two of his most famous works appeared: his seminal work The Social Contract  and Emile, a book that had effects on fields as disparate as education and public health.

In 1767, under threat of impiety, he took on an assumed name. Rousseau died of cerebral bleeding outside Paris in 1778. In addition to his famous quote, “Man is born free and he is everywhere in chains,” Rousseau also noted that “the strongest man is never strong enough to be master all the time, unless he transforms force into right and obedience into duty.”

The Social Contract

The importance of his ideas to the development of both the American and French revolutions is well-known, and is seen in The Social Contract, which most clearly elucidated the idea the consent of the governed:

As soon as [a people] can shake off the yoke, and shakes it off, it does better; for since it regains its freedom by the same right as that which removed it, a people is either justified in taking back its freedom, or there is no justifying those who took it away.

What does this have to do with Hawaiian history, you ask? Kamehameha III was reading guys like this (and Montesquieu, who’s next up) while constructing the modern Hawaiian nation-state – in this age when the very meaning of democracy seems to be being forgotten, we would do well to do the same.

This post is part of a new website Iʻll be launching in a few months – stay tuned.

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Occupation redux

In the (proposed) 1899 Hague Regulations, the basic premise of the law of occupation was stated:

The country invaded submits to the law of the invader; that is a fact; that is might; but we should not legalize the exercise of this power in advance, and admit that might makes right (Beernaert in Benvenisti, 2012, 90).

In the fourth Geneva Convention (GCIV) (which was crafted to with the “aim of imposing on occupants ʻa heavy burden”) (Benvenisti, 2012, 97), the norm was codified that the occupant (occupier) must take three considerations into account: “itʻs own security interests, the interests of the ousted government, and those of the local population, which may be different from the interest of their legitimate government” (Benvenisti, 2012, 69).

First Geneva Convention, 1864

The norms of GCIV were formed in the context of the Franco-Prussian war of 1870-71, which created an expectation that during occupation the occupying military and the civilian population could be kept at a distance from each other and even co-exist relatively harmoniously (Benvenisti, 2012, 70). As for changes to law, they were to be kept at an absolute minimum, but were allowable for the purpose of making occupation practicable and functional on the ground. Benvenisti (2012, 90) notes that the rule that changes to law are only when “absolutely necessary … has no meaning” because the occupant is never absolutely prevented from complying to local law.

Article 43 of the GCIV was a mandate to “restore and ensure public order and civil life” – this came to be seen as an “incomplete instruction to the occupant” because of the conflicts of interest between occupant and the ousted government (Benvenisti, 2012, 71).

Changes to the law of occupation also continued as human rights became more of a concern to the international community. As this occurred, actual occupants began to seek to avoid the responsibilities of occupation by “purport[ing] to annex or establish[ing] puppet states or governments, rely[ing] on ʻinvitations’ from indigenous governments [the Soviet/Russian formula]” and other means (Benvenisti, 2012, 72).

But as is often pointed out, these means are not legitimate as GCIV states “the benefits [or applicability] of the [Geneva] Convention shall not be affected … by any annexation … of the whole or part of the occupied territory.” In short, the occupant retained the duty to fulfill its obligations under the law of occupation (GCIV in Benvenisti, 2012, 73).

As with all legal documents and doctrines, however, it is “impossible to read the drafting history of the GCIV without paying close attention to the diverse concerns of the different state representatives” (Benvenisti, 2012, 98). That is to say, it is contingent on the conditions of the time and context in which it was crafted.


As it developed in the twentieth century, the human rights regime came to decenter the law of occupation’s emphasis on the agency of states as the only actors. People came to play a role in international law, under which previously only states were subjects. In the occupation of Iraq, for example, Amnesty International pushed for changes in Iraqi law – normally in contravention of the law of occupation – for the purpose of the protection of human rights. Occupation was in this case seen as an opportunity to improve conditions for the citizens of the occupied state (a rare, but quite possible scenario). Sharia law was in this case seen as “incompatible” with GCIV rights (Benvenisti, 2012, 103).


Keanu Sai has used the “doctrine of necessity” as a justification for forming the Acting Government of the Hawaiian Kingdom; the necessity of an “organ” to speak on behalf of the occupied state, in other words, necessitated the creation of a “government” whose legitimacy would otherwise be highly questionable. Benvenisti notes this doctrine as a “recognized justification for legislation by the occupant,” but noted that it does not apply to the civil and criminal laws of the occupied state: “the penal laws of the occupied territory shall remain in force,” (Benvenisti, 2012, 96) ostensibly to prevent draconian trials and execution of resisters against the occupation. However, it is also recognized that the occupant would be “prevented from respecting the laws in force” in the rare case that they “conflicted with its obligations under international law, especially [the GCIV] (brackets original)” (Benvenisti, 2012, 102).


Sai also notes that Debellatio, or conquest, while seen as a legitimate form for the transfer of sovereignty, was essentially outlawed in the Americas – by the United States and some of the recognized sovereigns in South America – because they feared their former colonial overlords would re-conquer them. This, in his view, was the purpose of the 1823 Monroe Doctrine. As Jay Sexton notes in his book  The Monroe Doctrine, “American statesmen exploited fears of foreign intervention in order to mobilize political support” (Sexton, 2011, 12). Sexton also notes how the Tyler Doctrine (actually proclaimed in 1842 by secretary of state Daniel Webster) “effectively extended the 1823 message  [the Monroe Doctrine] to Hawaiʻi” (Sexton, 2011, 112). As a result, the United States does not recognize debellatio – conquest – as a legitimate form of transferring sovereignty. This quells any argument that even though there was no conquest of the Hawaiian Kingdom, “there would be.”


The occupant is allowed to collect taxes, “as far as is possible, in accordance with the rules of assessment and incidence in force … to defray the expenses of the administration of the occupied territory” (Benvenisti, 2012, 81). In other words, the occupant should not, as was seen in the film The Last Emperor, make the occupied “pay for its own occupation” as the Japanese ambassador says to the Emperor of Manchuria (Manchukuo). The occupant is also bound by the general rules regarding property of usufruct – the use of land without destroying it (Benvenisti, 2012, 77). This is relevant to the U.S. presence in Hawaiʻi as evidenced by the more than one hundred Superfund sites at Pearl Harbor alone.


My own understanding of the law of occupation is that it strictly prohibits the “overwhelming” of the nationals of the occupied state with settlers from the occupying state, as was done by Russia to Estonia and other Baltic states. Benvenisti treads very lightly here, noting only that settlement need only avoid “impinging on the rights” of the citizens of the occupied state. It is possible (though I donʻt mean to hastily accuse him) that his status as an Israeli influences this light treatment of settlers, and he does mention Israel, the West Bank and Gaza in the very short section on this topic (Benvenisti, 2012, 106-107).


Filed under Globalization, Hawaiian history, intellect, law, Uncategorized

Legal Pluralism

When I was a boarder at Lahainaluna, one thing that was very clear to me, even at age 14, was that there were multiple layers of rules, depending on who was present. If the Principal was there, no one could wear shoes in the dorm. If only the Dorm Counselors were there, then upperclassmen could wear their shoes. But if it was only boarders, another set of rules applied that was not entirely different from The Lord of the Flies. But these were indeed rules, not anarchy, and they demanded, and were concerned with, respect and obedience.

Scholars in critical legal studies have described the legal systems of some locales as “plural,” i.e., more than one system exists simultaneously in a single area. Sally Engle Merry, a major scholar in this area, notes “different systems of law intersect within fields of power relationships linked to conceptions of race [and] nationalism” (Merry, 2000, 18).  Often these rule systems consist of tribal laws that are superimposed by colonial or national laws.

Hawaiʻi has a legally plural system, but not in the way that other places do. Here, the laws of the Kingdom remain largely intact, while “overwritten” by those of the State of Hawaiʻi. But the State considers Kingdom law to be its common law, and any law that is not expressly changed by the legislature remains in place.

But law in Hawaiʻi is plural in yet another way: many laws that are quite “liberal” toward Hawaiians (my work focuses on native tenant, or kuleana, rights) remain on the books, but are not followed. So there is the written law and that law that is understood to be the “real” (though not official) law of Hawaiʻi. This pluralism may in fact sometimes be merely a failure to follow law; a disregard of law in favor of power. At other times, it is a contest over which [form of] law will be followed.


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