Endemic revolution: HLA Hart, custom and the constitution of the Fiji Islands

Abstract

The succession of military coups and constitutional revolutions in recent Fijian history poses numerous problems, both urgent practical ones and complex theoretical ones. One set of theoretical questions concerns the issue of legal continuity and discontinuity within a particular society or legal system. Another set of such questions concerns the relationship between formal legal systems and the customs and social conventions of non-western societies. In their application to Fiji, both sets of questions are interrelated, for the lack of constitutional continuity that Fiji has experienced cannot properly be understood without appreciating the influence of cultural beliefs and practices on the operation of Fiji's constitution and legal system.There are numerous attempts in the literature to address these questions of continuity/discontinuity and of the relationship between formal and customary law. HLA Hart sought to address both sets of questions in a theoretically and descriptively integrated way. Law, for Hart, is a special kind of social rule, distinguished from mere customs and conventions because it forms part of a formal legal system, the identity of which is ascertained by reference to the ‘rule of recognition’. On Hart's account, a fully effective constitutional revolution occurs when there is the substitution of one rule of recognition for another. Hart thus has an account of legal revolution. However, it is an account that depends upon a theoretically laden description of certain discrete social practices.The succession of coups and revolutions in recent Fijian history offers an opportunity to test the applicability of these aspects of Hart's theory to a difficult case example. Like many similar countries of the South Pacific and elsewhere, Fiji has a strong set of traditional customs and mores co-existing in a complex relationship with a formal system of law. In addition, however, Fiji has undergone a series of coups and revolutions which have challenged the formal system of law and demonstrated the continuing force of the traditional sources of power within the country. Can Hart's theory account for the state of the ‘law’ in Fiji? That is the question we address in this article. In particular, we use qualitative empirical evidence from interviews with a representative sample of participants within Fijian society to test whether Hart's assumptions and analysis hold true. We find that in certain important respects they do not. We conclude, in essence, that an interesting paradox exists: that the descriptive inadequacy of Hart's theory lies in the fact that it incorporates a set of normative values about the rule of law that are not generally shared, at least in not quite the same way, by the people of Fiji.