The paper comments on the tension between custom and introduced legality. An important framework for this tension is participation in justice resolutions, by the community [2].

In many cultures where custom-based processes of participatory justice are governed by constitutional legality the two systems adapt to each other and adopt common characteristics and processes. This may be the result of fairly fundamental contests for community trust and legitimacy. Where, as in the South Pacific, custom prevails over introduced laws and institutions, this process of blending is far more dynamic than may be witnessed in many other post-colonial situations where the state is strong and pervasive.

As with the recent emergence of restorative justice in modernised societies [3], community involvement in, and ownership of criminal justice resolutions is back on the policy agenda. However, similar for the existence and operation of the jury, the actuality of community participation and representation are at issue. [4] The crucial significance of community participation within criminal justice becomes clear when custom-based processes of resolution are examined for their credibility, inclusion and success. This becomes all the more apparent when custom is contrasted with coexistent systems of justice where formalism challenges or denies participation.

Even for integrated systems of criminal justice [5], the place of participation is problematic. Difficulties will arise over the ownership of resolution processes where custom operates within a framework of constitutional legality. This will be explored further through the case-studies presented in this paper.

Despite the instances where custom has modified institutional legality, in post-colonial states the latter claims predominance over culture, even rejecting its existence and legitimacy in certain justice contexts.

Contemporary legislative development in South Pacific jurisdictions evidences significant difficulty in distinguishing “customary law” from the perspective of what introduced law (and its jurisprudential framework) recognises and allows. For example, the “individualised rights and responsibilities” focus of both common and civil law traditions does not translate well into the communal social organisation that features in many Pacific cultures. Western Samoa presents just this issue :

The uneasy presence of particular constitutional rights in Pacific Island Countries, such as the right to freedom of movement [9], not only demonstrates a divergence in notions of humanity which require protection, but also questions institutional legality where written constitutions are declared to predominate over customary politics.

The difficulties associated with identifying custom and “customary law” from the context of introduced law have been exacerbated by the inextricable link in recent Pacific history between legal formalism and colonisation. Introduced law and legal institutions have been in the vanguard of political and commercial policies designed to annex and overrule indigenous cultures. Once established, introduced laws and institutions have :

All of these approaches towards the “rehabilitation” of custom fail to move beyond the structural context of the introduced legal system and its formal legality. The best evidence for this is the recognition of “custom” couched within the statutory definitions of the new legality, and in particular the applicability of custom as dependent on consistency with constitutions, legislation, and introduced notions of public interest, justice and “principles of humanity” [13].

The conceptualisation of “customary law” brings with it some additional claims to the pre-eminence of legal formalism over custom. By the reference to “customary law”, custom is circumscribed within the frameworks and expectations for foreign notions of law. Thereby custom becomes distorted into an alien context even through the use of the word “law.” But advocates of custom also employ “law”, not wishing to see custom diminished below the authority generated by “law” terminology in a competing setting.

In addition, custom as a legitimate instrument of social regulation seems to be distinguished only from the time of the introduction of foreign legal forms and institutions. The “colonising” impact of introduced legal formalism is clear from;

Such a forced intersection between custom and legality is exposed at the following levels of socialisation, from the perspective of both indigenous and introduced cultures :

The dynamics of custom in its many Pacific variations makes it distinctly incompatible with rigid legal formalism. Custom exists beyond singular identification, written description, and unaccountable institutionalisation. Its potential impact is insidious when compared with the expectations of legal formalism. This might go to explain its recent and developing influence in contexts where the sanction processes of introduced law appear ineffectual or out of touch within the context of custom.

An initial “grab” for power by colonial administrations in the Pacific was through control of the justice and sanctioning processes. This was effected at several levels of colonial influence. For example, Christian missionaries, by introducing a Judeo-Christian moral ethic to dominate indigenous “moralities”, created a compatible climate for the construction and enforcement of individualised justice, largely monopolised as it would be by state judicial mechanisms.

This is not to suggest that traditional contexts of justice and sanction were entirely ignored or superseded. Bearing in mind that in many Pacific Island Countries either weak or transitional state structures struggled for varying degrees of ascendancy, it was not likely that resilient customary models would quickly disappear. It appears as a feature of the colonial period in the South Pacific that while constitutional legality and parliamentary government were promoted as the preferred and paramount framework of governance, the actual impact of introduced law over the socialisation of custom was, and is, problematic [16].

Even so, and perhaps because of the indifferent consequences of western colonisation, the paradoxes between custom and introduced legal formalism remain apparent. For example, the ideology of common law criminal justice relies on features such as individual liability, rational choice justifying penalty, the state’s obligation to prosecute and punish on behalf of the community, the limited availability of justification or excuse, and the consideration of extenuation only in mitigation. It is not a form of justice that well manages collective behaviour or communal interests. The potential for paradox where such a notion of justice comes up against customary resolution processes with very keen communal and collective investment, is clear. For instance, with traditional community shaming the whole village is coopted into the process and the offender’s family may take collective responsibility not only for the harm but also for his rehabilitation. Common law liability, on the other hand, tends to isolate the offender from the community at all stages of the penalty process, while requiring the individual to restore the social balance through his guilt and shame.

Another important dimension for paradox which grows out of the contest between individual and collective responsibility, is the necessity for participation in justice. The emergent states and their bureaucracies claimed a monopoly over criminal justice. Prosecution of an offence was to be the province of the state as the representative of the community. Punishment was a sole-state right and no longer belonged to the community. What this ideology failed to appreciate was the customary place of the community around the crime relationship. The perpetrator implicated his family and the community. The harm caused to the victim was at the same time a community harm. Therefore, the liability for the crime and the need to compensate and reconcile with the victim were located within the community. There could be no disposition of these responsibilities, and no institution could represent the obligations which crime and victimization created. Added to this was the fact that a weak state could not in fact claim its monopoly over punishment, it’s central role in reconciliation or its sponsorship of policing and prosecution.

When the state intervenes in the context of pay-back, the identity of the victim and the offender becomes individualised and the essentially collective nature of responsibility is denied. Also, the crucial identifiers of constitutional legality are employed to profoundly reinterpret the roles and realities of the communities involved. For example, in the Solomon Island case of Loumia v DPP [17], the conflict between customary obligation and individual responsibility, as determined from the perspective of state-centred criminal justice was further complicated by the need to recognise constitutional rights, determined through the mechanism of legality [18].

While it was expected that introduced notions of criminal liability should, following colonisation, apply both to the native and European populations of the Solomons :

In Loumia’s case there had been trouble between two groups of Kwoio and Agai clansmen over a land dispute which the Kwoio had won in the courts. Following the hearing of the Customary Land Appeal Court two of the Agai had been sent to prison as a consequence of a knife attack on Loumia’s brother. Later, during a battle between the two groups involved in the ongoing land dispute, Loumia’s brother was killed, and his half brother received severe facial injuries. This occurred in the presence of Loumia and the other accused, on the village football pitch. Further along a nearby beach the corpses of three of the Agais were later found. All the thirteen Kwoio involved in the fight were charged with the murder of the three Agais. Loumia, who never denied killing the three was the only one of the accused convicted of murder. On appeal he sought to have the conviction reduced to manslaughter an the grounds that :

Loumia further argued that the words “legal duty” include a legal duty in custom. Evidence was adduced for the accused from a local chief that if a close relative is killed Kwoio custom dictates the killing in turn of the person responsible, even if the person under the duty exposes himself to death.

The trial judge’s rejection of provocation, and the impact of customary duty, due to the inconsistency with the constitutional protection of human life [21], was upheld by the appeal court. “The learned judges approached the question of the inconsistency of the alleged customary ‘legal’duty with the Constitution, and the Penal Code on a policy footing rather than looking at what the Constitution was seeking to achieve” [22]. The fact that the court saw the customary duty for “payback” as a defence, rather than either an issue of extenuation, or a modification of how liability should be conceptualised, made it easier for them to reject. In addition, by denying the status of customary duty here as a legal duty the court prevented its consideration within the formal structures of the law as an issue of extenuation. If it wasn’t “legal” then it could not claim the invitation offered in the schedule to the Penal Code to inclusion within the law. Further, by denying it’s status as “law”, the court refused to recognise the legal significance of customary duty which underpins the custom/law connection.

Introduced legality here denied the collective nature of the resolution through pay-back, and even minimised the status of the accused as a representative of that collective interest. The custom resolution was not considered to be participatory nor was liability collective. The competing version of justice, which is state-centred, imposed its sanction on the individual and de-legitimated the collective or participatory claims of the custom resolution. As with the land court appeal that precipitated this conflict, state-centred criminal justice was less effective in resolving community division than would have been the customary outcome.

The significance of customary obligation as a justification or excuse for what would otherwise be criminal in the eyes of the state was further considered in the Fiji case of Sosiveta and Others v R [23]. Here twenty-nine appellants appealed against sentences ranging from 18 to 30 months for arson, following their burning of the house of a fellow villager. The Supreme Court of Fiji heard evidence that the appellants - all men of good character - acted following the orders of another villager who was not only a customary leader (Ratu) but was also regarded as being “possessed of a special divine authority.” As a result it was claimed that the appellants “would have been willing to do, quite literally anything he commands them to do.”

It was not argued that the appellants’ acts were lawful or perhaps even justified in the circumstances. However, the Supreme Court was invited to review the original prison sentences bearing in mind the excuse that the appellants, particularly the younger ones, felt obliged to carry out the orders of the Ratu. In law the justification or excuse of customary obligation, if it could be treated in the same manner as the defences of duress, coercion or superior orders, should provide an answer to the charges. However, the court here merely recognised the obligation in the context of mitigation and reduced the sentences to fines and bonds.

Again, the collective and participatory nature of the custom justice resolution was reduced to considerations of obligation as excuse. Formal legality could not contemplate either the community’s right to punish or the participatory form of execution.

The courts in the Pacific jurisdictions have, in recent years, demonstrated recognition of customary sanction when imposing penalties provided for under criminal codes. The customary sanctioning process and the penalties that result may not be endorsed by statute, or exercised by the courts. However, the courts have deemed them to be worthy of notice as part of setting formal legal penalties. This becomes all the more interesting when the forms some such customary penalties assume may themselves constitute elements of a criminal offence as defined by state laws.

In the Fiji case of R v Waisea Naburogo and others [24], the respondents were convicted on their own pleas of shop-breaking, entering and larceny. Having broken into a cooperative store the accused stole 2 tins of corned beef, 21 tubs of ice cream, and $20 in cash, to the total value of $25. On review the court accepted that these were first offenders, that the sum of $25 had been repaid to the cooperative store by the third respondent’s father, and that the respondents had each received six strokes of corporal punishment from the village elders for the same incident. The original court sentences of imprisonment and care orders were subsequently reduced to bonds. This was justified by the argument that if the initial magistrate had been apprised of the facts on restitution and customary penalty then less harsh sentences would have been handed down.

Another review of sentence in consideration of customary sanction occurred in R v Vodu Vuli [25]. Here the respondent, a school-teacher, was initially sentenced to several significant terms of imprisonment over convictions for acts of gross indecency with four school boys. The facts involved the respondent forcing the young boys through fear to indulge with him in gross acts of indecency. The trial court described the crimes as “revolting and repugnant, and constituted a grave breach of trust by the respondent in regard to the welfare of the boys concerned.” Such offences, it was said were serious and called for deterrent sentences.

On review the court felt that the quantum of sentence should be determined “in the light of whatever mitigating features that may be present.” Among other more traditional matters in mitigation, such as the age and previous good conduct of the accused, the trial court had apparently not been aware that; the respondent had apologised to the boy’s parents and made his peace with them in the traditional Fijian way by presenting a whale’s tooth to them, and as far as the respondent knew the matter ended there. The Chief justice halved the original sentences and made them run concurrently.

These cases take on another level of interest when one considers the sentencing principles which motivate the state courts in their use of penalty, when contrasted with the motivation behind custom resolutions. In Vuli in particular, the eventual sentences could only be explained in conventional terms as having removed the retributive component of the lower court sentences. In the custom setting retribution was not an important concern. There, the victim’s family, and the victim’s community actively participated in the ceremony of contrition, compensation and restitution. The state-sponsored penalty was only concerned with retribution and segregation of the offenders. The custom-based resolution was reintegrative, and the state’s sanction response relied on declaring the offender as different

Experience in transitional cultures, such as those in the South Pacific [26] suggests caution when considering the grafting of a more formal institutionalised mechanism of justice onto pre-existing, and customary restorative practices. [27] Harry Blagg, challenges “orientalist” appropriations of culturally specific reintegration endeavours. [28] Blagg argues that the colonisation of customary ceremonies and resolutions may be more about the securing of the hegemony of introduced systems of justice, rather than the reassertion and recognition of custom-based alternatives. Scholarly support for a synthesis of custom and introduced systems may, as Blagg criticises, endorse and confirm Eurocentric “devices of destructuring the totality and context” of customary resolutions. Recent attempts to “splice” justice forms in certain South Pacific jurisdictions reveal the danger of cultural abstraction, and the potential to compromise the essential contextual elements of criminal justice resolution mechanisms.

A blatant example of the colonising potential of “spliced” justice (customary and introduced) forms is demonstrated through reconciliation in the criminal courts of Fiji. This also provides a local level of analysis for restoration as a justice paradigm.

While having regard to the court’s role as a “facilitator” in the reconciliation process, this section operates on the understanding that the sanction is in the hands of the accused. To that extent, the Court disposes itself of “ownership” of the penalty beyond its role in promoting settlements of this form.

The state constrains the use of such penalty, or at least limits the situations in which reconciliation may be recognised by the court by designating the offences to which it may relate. This is important in terms of a purpose for reconciliation; that being the staying or terminating of other penalty options.

Reconciliation has long existed as a feature of the restitution and compensation dimensions of customary punishments in the Pacific. In a custom setting it was a resolution required and endorsed by the community as much as the victim. Even so, its punitive potential is recognised in § 163, through the reference to “payment of compensation or any other terms approved by the court.” Further, by providing for an avoidance of any further State-based penalty by achieving reconciliation, the institutions of legal formalism have incorporated this penalty within their own sentencing options.

The operation of reconciliation under the sponsorship of the State courts differs from “self help”, customary resolutions. The consequences of modern reconciliation as a penalty option within the formal courts are interesting. In its custom-based context, reconciliation is governed by three factors : (1) the public nature of the settlement; (2) the collective nature of its terms; and (3) the relative expectations of parties involved.

In its contemporary context within the formal legal framework of the Fijian courts it would appear that reconciliation has been removed from an open, accountable, and relative penalty where the community has an investment, into a far more private and localised settlement. In Fiji today it is common, when domestic violence comes before the court, to see reconciliation promoted as an appropriate penalty. However, recognition should be given between the unequal power positions of persons negotiating domestic reconciliations, the private nature of their terms, and the application of expectations which may go well beyond an immediate issue of the assault or future threats of violence. Reconciliation may become more of an avoidance of penalty rather than a penalty. For instance, where a complainant withdraws her allegation of assault as a result of reconciliation, this may be the consequence of threats from the husband to throw the wife out into the street if she does not “reconcile” rather than any genuine rapprochement. The court would not become aware of this by simply seeking an assurance on reconciliation from the accused, and the complainant may not be examined by the court in this regard. The community, the traditional witness and enforcer of reconciliation also has no voice in the court hearing.

A key problem with the “re-culturising” of such resolutions or penalties is the realisation that the state is not the community and vice versa. While the state may need to take responsibility (and hence sponsor criminal justice initiatives) for those crimes which the community should not own, there exists a significant array of crime situations and crime choices where community ownership and involvement is appropriate. However, these situations may not regularly overlap. Therefore, legal formalism as a feature of the state may not be supportive of customary penalty. Those features of customary penalty which seem appealing when compared with the formalised justice structures of introduced law, (such as openness and accountability) are often compromised or corrupted within statecentred environments. Further, the essential sanction impact of customary penalties may be lost, as they are required to address new aspirations from within the formal justice process.

By identifying the difficulties facing the integration of formalised and custombased resolution, it should not be assumed that attempts at such integration are either fruitless or flawed. In fact, some of the problems associated with the intersection of formal and informal justice mechanisms may have been overcome with the assistance of a more detailed and considered analysis of the consequences of such integration.

Banishment might also be extrapolated from a uniquely local and relative cultural context into an application where the level of analysis is potentially global.

In Western Samoa, where today structures of custom-based social order remain intact, banishment is a powerful penalty available to village communities. Beyond this both the formalised’state-sponsored processes of dispute resolution, and introduced law have borrowed and endorsed banishment.

The history of banishment as penalty in Western Samoa was interestingly reviewed in the recent decision of Italia Taamale and Taamale Toelau v Attorney General of Western Samoa [30]. This was an appeal from a decision of the Land and Titles Court, a court in the state judicial hierarchy, ordering the appellants and their children to leave their village by a nominated date. The appellants argued on appeal that they could not be in contempt of the original court order through non-compliance because the penalty itself contravened Article 13 (1)(d) and (4), the freedom of movement and association provisions of the Constitution. They further argued that it was clear from earlier decisions of the Supreme Court, that the penalty of banishment was not to be recognised by the courts of Western Samoa [31].

The tenure of the earlier courts’ argument against banishment as ‘law’ was that ‘ownership’ of the penalty remained within customary tribunals, directed against traditional relationships and for the purpose of enforcing customary obligations. None of these therefore should be legitimised at the level of the state through its legal formalism or constitutional legality.

The appeal court in Taamale rejected such submissions. Banishment was historically rooted, as the court saw it “there is no doubt that banishment from the village has long been an established custom in Western Samoa.” Further, the court went on to review the place of banishment within the law of the colony, and following on from independence. In 1822 the German Administration of Western Samoa passed an Ordinance to Control Certain Samoan Customs. The Ordinance prevented Samoans of any station from ‘expelling any person from his village or district, under penalty of imprisonment….’ The penalty of banishment was then reserved to the Administrator.

With the introduction of independent constitutional legality in Western Samoa, the status of banishment as a penalty became ambiguous in terms of ownership and objective. The appeal court drew from earlier decisions of the Supreme Court the view that : “undoubtedly the customs and usages of Samoa in the past acknowledged the rights of village councils and the court to make banishment orders, but that custom ceased on 28 October 1960 when the Constitution was adopted.” Several judgments of the Supreme Court in the 1970’s and 1980’s endorsed appeal points that such banishment orders were in violation of the Constitutional rights of freedom of movement and residence.

In Taamale the appeal court acknowledged that currently, for many village councils in Western Samoa, banishment was the ‘most important sanction vested by custom in the village council’. Banishment is usually employed when other forms of customary penalty such as fines and ostracism from village affairs had failed.

A further argument in favour of the continued significance of banishment was that, as an effective general deterrent at a village level, it was rarely necessary to employ state-centred crime control resources such as the police to back up the enforcement of customary orders.

The appeal decision recognised the Land and Titles Court as the only judicial ‘site’ from where banishment as a penalty may emerge : “While upholding the jurisdiction of the Land and Titles Court to order banishment we do so on the express basis that the jurisdiction can only lawfully be exercised in accordance with the principles and safeguards identified in the present judgement.”

The purpose of the penalty was said to be ‘limited to the interests of public order - meaning to prevent disturbances, violence or the commission of offences against the law’. The Land and Titles Court has taken from the village council the responsibility for the banishment penalty, making it a formal court order. The councils are left with their ultimate penalty of ostracising a person within the village.

The appeal court in Taamale endorsed the Court’s assumption of banishment, and the monopoly over this sanction as within its jurisdiction. A justification as to why banishment moved from the ‘ownership’ of the village council, to that of a Court is :

The process of ‘ownership’ is ‘that a village council minded towards banishment from the village would be well advised to petition that (the Land and Titles) Court for an order rather than take an extreme course on their own responsibility’. Further, because serious offences [32] such as murder and rape are grounds for banishment ‘it is necessary to say that the punishment of (such) offences is a matter for the criminal courts. Serious crime is properly dealt with in the Supreme Court’. This appears to be both a further constraint on the object and purpose of banishment and a limitation over its ownership.

The court concluded : “Banishment from a village is, at the present time, a reasonable restriction imposed by existing law, in the interests of public order, on the exercise of the rights of freedom of movement and residence affirmed (in the Constitution).” Interestingly the court recognised the dynamic and culture-bound nature of this penalty : “as Western Samoan society continues to develop the time may come when banishment will no longer be justifiable.”

With banishment we have a pre-existing and prevailing custom-based resolution which is “indigenised by the state and it’s bureaucratized justice system. In New Zealand, on the other hand, with family group conferencing, we are witnessing the state claiming cultural sensitivity by adopting the structures and discourse of Maori justice practice and philosophies.” As Tauri suggests :

This is not integrated criminal justice. Nor is it the victory of one form over another. It is a process of colonisation, where bureaucratised justice claims legitimacy through assimilation. Does this mean that integrated criminal justice is not possible ?

Within modernised communities these difficulties necessitate either artificial or imposed integration in place of a natural and evolutionary integrative context for control. Perhaps, from a state perspective one of the simplest issues which is passed over in the integration strategy is the concept of participation. At least from a community perspective the integration of justice participants and decision outcomes is so fundamental that one would assume integration was grounded on this understanding. The fact that it is not suggests that both participation and integration are being progressively marginalised in state-sponsored justice scenarios.

The forces favouring integration will encounter resistance from localised control regimes, where sophisticated bureaucracies monopolise the institutions and processes of crime control. As much as crime is differentiated from other behaviours and situations needing regulation, crime control in these localised contexts is institutionally separate from the broader themes of socialisation.

Despite certain representations of globalised crime which suggest a return to the modes of denunciation common in simpler societies, the preference for adapting and advancing modernised and dehumanised crime control strategies is a feature of global politics. This paradox cannot be explained in terms of a common language of criminal liability, local to global. Globalised crime offends morality, polity and perpetuity rather than the interests of individuals. Victimisation is collectivised. Harm is global. Threats are common. As such, the context of globalised crime seems to be communal, and control arguably should be integrated in order to address a collectivised problem.

To test this suggestion, the transportation of a custom-based control technique into a globalised context may indicate the applicability of integrated control for regulating global crime. Banishment is a control strategy with roots deep in customary socialisation. It depends on consensus, approbation, comprehensive ascription, and total enforcement. Banishment is reliant on community and not state sanction. It grows out of stages of tolerance, and failed situations of re-integration.

A global crime context where banishment would be relevant is corporate crime. For the individual, bankruptcy is banishment from the marketplace. For the corporation “winding up” proceedings may have some regulatory impact but this is limited to where the company against which these are directed is simply an expendable part of a wider corporate entity.

Commentators on corporate regulation favour control initiatives that recognise the significance of compliance [34]. But what happens when compliance evaporates or breaks down ?

Banishment means exclusion from the community. Essential for its punitive and regulatory significance is separation from those features of community life valued by the banished. The community is more than a referent in that it must maintain the boundaries of exclusion. For instance, international trade sanctions imposed by one nation on another will not have the same impact without multinational endorsement. Some might see banishment as anything but an integrated control strategy. It appears to depend on segregation and difference. What makes banishment integrative, however, is the manner in which it involves the whole community and a range of socialisation beyond crime control. In addition, banishment is a transitional state, usually imposed for a determinate period, with the expectation that it will create a radical context for reintegration when its time has run.

Banishment’s influence within a corporate commercial community would depend on the authority which prescribes this penalty. Once the banishment order was determined, the community would be required to achieve the banishment from a series of nominated and valued relationships. These might involve market position, consumer confidence, capital access, and share trading. A schedule for reintegration might be set as part of the banishment strategy. This mechanism will be far better suited to the corporate entity than individualised penalties such as the fine, or imprisonment. Banishment requires and incorporates responsibilities advocated by the corporate community in its arguments for self-regulation. It has a reintegrative goal, while adopting clearly retributive and deterrent measures in its early stages.

However, it is simplistic to expect, despite similar aspirations for justice resolutions in both custom and introduced law, that by sharing or reproducing the form or structure of these resolutions, the outcomes will be, or even should be the same. This is particularly so when the participatory context so crucial to the custom-based resolution is ignored or denied, when transformed into legality. As reconciliation demonstrates, the partial removal of penalty from its cultural and customary context may transform its impact as well as undermining its viability in the original form.

The examples discussed in this paper emphasise the crucial significance of community participation as a guarantee of successful and credible justice outcomes. From this it is obvious that the transposition of individual elements of form, function and structure from the context of custom to introduced legality will not be sufficient to guarantee such outcomes. Participation appears to be a crucial variable.

The different ideologies of justice prevailing in legal formalism, and custom, may bring about very different consequences for the object and purpose of resolutions or penalty. For instance, on the one hand the object might be the offender/victim relationship and the purpose may be deterrence or retribution. On the other the object is the community and the purpose, restitution and social cohesion.

The obligations created through justice resolutions, within the context of custom or legal formalism also require consideration if the outcome of any reconstructed resolution is to be assumed [35]. These obligations endorse the integration of penalty within custom, whereas it stands at the end (or even outside) state-centred sanctions in formalised criminal justice. And the reason for this dichotomy is the failure of participation – meaningful participation.

The integration between justice resolutions and customary participation has been misunderstood, or ignored in efforts to incorporate customary resolution processes within introduced legal formalism. This misunderstanding demonstrates as much about the tendency to isolate through formalised criminal sanctioning, as it does about the essential re-integrative spirit of custom-based justice in a community context such as that prevailing in South Pacific tradition.