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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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