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Article Review Of The Role Of Custom And Traditional Leaders Under The Yap Constitution

1443 words - 6 pages

In the article, “The role of custom and traditional leaders under the Yap constitution”, Brian Tamaha explains the various traditions as well as the Yap legal system. The constitution of Yap consists of a common legislature—executive and judiciary—with a fourth branch dedicated solely for traditional leaders. Traditions and customs create rules and the methods they are abided by. According to Hart, every legal system has a set of rules directing people on how to live. Amidst foreign pressure Yap’s culture has proved resilient (BRIAN, 1988). This essay will attempt to contrast and compare the Yapese legal structure to Hart’s theory of a legal system; it will answer questions concerning the rule of recognition and how the Yapese survive within extreme inequality and injustice, but rise above it through use of their traditions and culture.
Yap is a traditionally garbed state and has sustained numerous changes of authorities, but still maintains it culture and has accepted the coexistence of tradition and western living (). A dominant feature in Yap culture is the caste system; this system divides the populace into nine sections, four being the lowest and five the highest. The high caste is superior to the low caste, and is owed labor from the latter without compensation (BRIAN, 1988), while living in the most productive sections of the islands. Hence, the caste system of the Yapese promotes inequality, but they are nevertheless content with it as it is a part of their history and sustaining culture.
Additionally, Yap’s constitution is derived from the United States, as it has almost 13 identical sections as the bill of rights. The Yapese constitution addresses the essential rights of the people as well as their structure of government. Their government arranged in a model similar to almost any democratic country, but also includes a council composed of traditional leaders whose main purposes are to enact laws that must be abide with traditions.
Meanwhile, the rule of recognition according to H.L.A Hart is the fundamental rule in which how rules are acknowledged and understood; thus, the rule of recognition establishes validity and thereby allows a society to determine which particular rules should be deemed as laws. Consequently, these rules should ascertain obligations for people to follow, regardless of the consequence of any given act or action. According to Hart, a society’s legal system is preserved on rules. There are primary and secondary rules of obligation—primary rules order how a person should act in society, and can either prevent action and/or generate duties or obligation. On the other hand, secondary rules (Rule of recognition derived from) identify the significance of primary rules, which Hart explains as, “rule of the rules. The rule of recognition in Yap is the domination of tradition; customs and tradition are emphasized several times in the constitution, “recognition shall be given to traditions and customs in a system of...

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