Law and sorcery in Papua New Guinea : a reconsideration of the relationship between law and custom

Abstract

Belief in the power of sorcery, and in the real existence of sorcerers who are capable of causing illness, injury, death or other personal misfortune, are common amongst people from all walks of life in Papua New Guinea today. In response to such harm as is honestly believed to have been brought about by the malevolent actions of sorcerers, or apprehending that such harm is likely to occur, it is not unusual for those who regard themselves or their kindred as actual or intended victims of sorcery to respond, or to react pre-emptively, in the traditional manner, that is to say by killing the suspected sorcerer. Although the practice of harmful sorcery is a statutory offence in Papua New Guinea, accused sorcerers are rarely prosecuted, and no such prosecutions would appear to have been heard or decided by a superior court. At the same time, however, many persons who have dispatched a suspected sorcerer have been charged with, tried for, and convicted of conventional homicide offences. The legal system in Papua New Guinea is based on English common law, and the processes of judicial ratiocination in the superior courts tend to rely on the precedents and the reasoning articulated in the judgements of English and Australian courts. Thus, when confronted with a matter in which sorcery-related beliefs are determinatively involved, the courts in Papua New Guinea must address, in a very real and practical context, a range of issues centrally implicated in two ongoing and otherwise unrelated debates: viz., the socio-philosophical debate about the contours and content of 'rational', as opposed to 'irrational' beliefs, and the nature of the relationship between custom and law in societies, like Papua New Guinea, in which indigenous values, attitudes and beliefs, and the behaviours they engender, are assumed to be inconsistent with many of the fundamental premises upon which the rules and principles of the adopted common law are based. Using the idioms of sorcery and law-the existence of both of which constitute undeniable social facts of life in Papua New Guinea today-this thesis critically examines the intellectual and ideological foundations of the dichotomisation of law and custom and the contraposition of rational and irrational beliefs. The analysis of these issues leads to some tentative conclusions suggesting that (a) for the purposes of both a practical and theoretical jurisprudence, the legal traditions instantiated in Melanesian custom and the common law are not nearly so inconsistent as most anthropologists and sociolegal scholars would have us assume; (b) in reality, the effective operations of the common law system are not nearly so dependent upon conventional Western understandings of 'rational' thought and action as many social theorists and legal philosophers would have us believe; (c) in iterations natural to the cultures and societies in which they occur, a range of beliefs arguably no less 'irrational' than Melanesian sorcery beliefs can, and quite properly do, enter into the sound and sensible decision-making of Western common law courts; and (d) to the extent that the law is properly concerned with the behavioural and ideational parameters of a real world of social experience, there is no good reason, in law or in logic, why the social reality of sorcery-related beliefs should not be regarded by the courts of Papua New Guinea in much the same way they readily regard any other socially real and relevant facts. No ultimate recommendation is proffered as to the particular determinations to which such a modified conception of law and sorcery should necessarily lead, as these are matters more properly decided by the courts-and the people-of Papua New Guinea. Show more