A Battle between Law and Society in Micronesia: An Example of Originalism Gone Awry

Abstract

Two conceptions of the relationship between law and society appear to compete: the idea that law mirrors society and the notion that a gap exists between law and society. Both ideas have some truth — law is an imperfect mirror of society. For various reasons, law and society can fall out of sync or even come into conflict. The 1975 Constitutional Convention, which led to the formation of the Federated States of Micronesia (“FSM”), marked the beginning of a battle between that society and its legal institutions. The Constitution’s framers strove to preserve traditional Micronesian culture by ensuring it a respected place alongside modern legal doctrine. Competing influences, however, conflicted with traditional norms. Despite the reluctance of the framers, the laws of the United States supplied the language for key provisions of the Constitution, and U.S. legal precedents strongly influenced judicial interpretations of the Micronesian Bill of Rights and other constitutional provisions. This put the legal system in tension with Micronesian norms, and the ensuing battle between law and society continues to this day. Yet law need not battle society, even when the social and legal systems, with inconsistent norms and competing systems of power, are poised to clash. Whether or not they battle depends largely upon the attitudes toward each system taken by the actors involved.

Keywords: law and society, legal institutions, norms, Micronesia