The role of third parties in norm enforcement in customary courts among the Enga of Papua New Guinea

Marriage.

In small-scale societies, third parties are deeply concerned with norms governing marriage because successful marriages weave the fabric of social and political support, promote child welfare, and stabilize households. Nonetheless, conflicts are frequent because of sexual attractions, incompatibility, and conflicts over household economics. As modern institutions and technology break down former patterns of communication and cultural conventions, marital problems increase. In Enga, there has been a true sexual revolution (42). Of 106 married couples who registered complaints, 55 (52%) were formally married (as opposed to ca. 95% in the past), 40 (38%) were in de facto relationships, and 11 (10%) were in de facto polygynous unions. Fifty-seven of the 132 complaints (43%) were adultery accusations, with equal numbers of males and females accused. Most adulterous men claimed that they were “just marrying a second wife.” Most women who engaged in adultery were wives who fled because of domestic abuse and sought new partners or women who married rich older men in polygynous marriages for their money or out of parental pressure and then desired younger men. Domestic violence is of epidemic proportions in Enga, as in the rest of PNG, and entered into 73 of 132 (55%) marital complaints. It was initiated by men in 78% of cases and could be excruciatingly brutal. Another 15 (11%) marital complaints involved failure to support the family.

Third-party willingness to give evidence and make suggestions is crucial for norm regulation. Knowing that wrongdoings are hard to conceal in a small community and that honesty is rewarded, for 47 (36%) of the 132 cases (Table 2), the defendant or both parties admitted to the details of the complaint. Witnesses gave evidence in 31 (23%) of cases in public forums. For 25 (19%) of the cases, the event occurred in public or was widely known, and in 8 (6%) of the cases, supporting documents were available. This leaves only 21 (16%) of the cases where witness claims are conflicting or inconclusive, leading to extensive debates and sometimes adjournment for more evidence. Third parties were most willing to contribute evidence in the cases of adultery or domestic violence, with a surprising number of adulterers caught in the act. The public participated willingly knowing that settlements would be restorative and their testimonies unlikely to draw retribution.

Settlements were reached in VC after 1- to 3-h-long hearings that allowed magistrates to hear many voices and structure decisions to satisfy the community. Their explanations often review values held by the community and then discuss individual circumstances. Both the VC magistrates and community members go to great lengths to keep marriages with children intact. For de facto marriages, they sometimes cite ways in which the families have helped each other in order to encourage the payment of bride wealth. Of the 132 complaints, 74 (56%) were resolved with compensation that was gauged to atone for social, emotional, and physical harm done, and 13 (10%) included directives to change behavior. Thirty-six marriage disputes (27%) ended in divorce upon mutual incompatibility, because the woman’s life was in danger, or for fear that domestic violence would spark intergroup conflict. Nine cases (7%) had miscellaneous outcomes. Half of the divorces were for de facto relationships where the public hoped for more promising future unions.

Third parties attending the hearing had input throughout as summarized in Table 3. In the majority of cases, the response of the attending crowd involved quiet listening. In only 25 of 132 (19%) marriage cases did the crowd get rowdy and ridicule, curse, or mock the conflicting parties. Ridicule is generally suppressed since domestic peace is desired; nonetheless, most wrongdoers probably feel guilt or shame for their actions when they are discussed in public. Seventeen of 21 instances of ridicule (81%) occurred during outrageous adultery cases: for example, when a young woman married, or was forced marry, a rich older man and then used his money to entice younger men into sexual liaisons. All three parties were ridiculed. Extreme domestic violence also brought third-party derision.

Members of the crowd sometimes donated cash to the settlement during the hearing by offering compensation assistance on the spot to help solve the problem. One such case concerned a young man who was a drunkard and marijuana smoker to the neglect of his family; his wife sought divorce. A leader in the crowd told the young man that he realized that his father had died early and that he lacked direction in life. He explained that he too had lost his father at an early age and understood the burden but that it is possible to go on and succeed in life. The leader put down 160 Kina in cash to compensate the wife and give the young man a second chance. In a second case, a boy in his early teens watched child porn on a mobile phone and decided to try it out what he had learned on a 6-y-old girl. There was no clear evidence about what had actually happened. He was severely warned; numerous people in the crowd contributed cash to stop the problem there and then.

Property and Land Disputes.

Free riding pushes norms of cooperation to the limits and beyond. In Enga, free riding is largely addressed dyadically: people help the ones who help them, often very generously, and withhold help for those who do not reciprocate, the less costly option (13, 49). Nonetheless, there are complaints that cannot be easily resolved by dyadic action. Of 86 property disputes in the sample, 26 (31%) involved theft, 25 (29%) involved debt or unpaid labor, 33 (38%) involved destruction of property, and 2 (2%) involved miscellaneous. Property destruction was largely due to pigs destroying gardens when lazy gardeners did not fence properly or owners did not tie their pigs, hoping that they would get a free lunch next door. In 41 (48%) of 86 property disputes, one or both parties accepted liability; in 24 (28%), witnesses did not hesitate to step forward to give evidence: for example, to say that they saw the thief in somebody’s garden or a stolen pig being sold at the market (Table 2). Damage was evaluated very carefully by magistrates who sometimes visited the site. Compensation is carefully calculated to be fair and cover losses without adding additional punitive charges for theft or negligence that might lead to accusations of bias. Such decisions also have deep roots in traditional leadership where leaders try to attract and keep as many supporters as possible by mediating but not taking sides. Those who had no direct knowledge of the incident kept quiet; others supported settlements (Table 3). Property disputes were usually mundane complaints that only drew ridicule when they were indeed ridiculous: for example, when marijuana smokers worked up an appetite, stole somebody’s dog, and roasted it.

Assault.

Enga are irascible and rapidly resort to violence; assaults draw serious community concern for fear of escalation. Triggers for assault ranged from fights caused by sexual jealousy between women, drunken assaults, insults, suspected thefts, and provocative rumors (SI Appendix, section 4). Of the 35 assault cases in the sample, 17 (49%) were serious enough for the victim to seek medical care: severed appendages, concussion, or bush knife wounds. The majority of assaults took place in public places or under circumstances where the details of the assault were known and one or both parties agreed to pay compensation (Table 2). Payments were geared to the severity of injury. Crowds refrained from inflammatory remarks so as not to renew the conflict (Table 3); occasionally, third parties spontaneously offered cash to settle the matter.

Land.

Land disputes are increasing within extended families or subclans as the population grows; however, they are infrequent between clans. Traditionally, land was passed on from fathers to sons, with surplus land given to relatives in need. Many families are now seeking to reclaim land formerly given or loaned to relatives because of increasing individualism and realization of the potential monetary value of the land. Families who have settled on land for years but are not direct descendants are being asked to vacate parcels of land. Of 58 land disputes, 9 (16%) involved vacating land, and another 14 (24%) involved vacating with payment for improvements made. For 6 cases (10%), the defendant paid to stay; for 10 (17%), preventive orders were issued while waiting for more evidence; and for 19 (33%), one or both parties had to compensate for assault or arson in the dispute before a settlement would be considered. Many land disputes can be still settled by knowledgeable elders (Table 2), but as the older generation passes away, more disputes have been put on hold for the reestablishment of land courts, which were discontinued after the murder of land court magistrates in the 1980s. The only cases of crowd pushback in land disputes occurred when one party was clearly lying or breaking traditional rules by selling land outside the clan (Table 3).

Satisfaction and Third-Party Participation in Implementing Court Decisions.

After a settlement is reached in the VC, the decision is returned to the wrongdoer and the community to implement, unless it was appealed to OMS or the DC (9 cases of 333 [3%]). VCs do not follow up on court orders unless a nonpayment complaint is filed (two cases only). Responses on satisfaction of the complainant and defendant indicated that in approximately a third of the cases, one party was disgruntled (Table 4), with the complainant wanting more and the defendant wanting to pay less. How are court decisions effective if such discontent exists? Here again, third-party community members play an essential role. Since settlements are usually too high for one person to afford or are thought to be two low because of the limits of the VC’s jurisdiction, they are recalibrated following a number of criteria by supporters to mitigate dissatisfaction and promote fairness: history of the relationship, physical or emotional damage inflicted, status of both parties, implications for honor, peace and cooperation in the community, ability of the wrongdoer to pay, record of repeated offenses, and relation between the parties. Intent is usually not considered; harm inflicted, deliberate or not, must be rectified. Emotional harm, particularly disrespect of sorrow likely to generate enduring tensions, may be treated more seriously than physical harm.

To date, we have followed up 42 cases for major contributors. More than the settlement order was paid for 27 (64%) cases, and for another 3 (7%), people decided to settle out of court and pay far more than the VC could order so as to prevent further trouble (Table 5). Amounts that significantly exceeded VC settlements occurred in marriage and assault cases because of the potential disruptive impact of the wrongdoing within or between communities. Of the six cases of domestic violence in the follow-up study, for five compensation paid was greater than ordered.

For 10 cases (24%), less than the court order was paid, and in two cases (5%), the exact amount was paid (Table 5). When less was paid for marriage, it was usually because the community did not want to support divorce or polygamy. Assault risked dangerous escalation and in no case was less paid. If the liable person could not meet the settlement for a minor transgression because of poverty or lack of social support, community members sometimes pressured the complainant to accept the lower amount offered for the sake of peace and praised them as responsible citizens if they did. Thus, through third-party contributions, settlements that restore relations materialize.

Who helps with compensation payments? For most payments, the responsible party receives some financial assistance from others. Community members are often generous with young people so their future prospects will not be damaged. Financial help for compensation has long been entwined in the overarching Enga system of exchanges involving mutual assistance for economic enterprises such as compensation, bride wealth, child growth payments, funerary payments, and war reparations. Table 6 gives the number of major helpers for different categories of complaints. Payments for property and land, issues with fewer stakeholders, drew fewer contributors that did marriage and assault. One exception was a settlement for senseless destruction in an interclan clash to which many contributed to make peace. For serious interclan conflicts involving one or more deaths that were brought to OMS, much higher amounts were paid (SI Appendix, section 5).

It is predictable that close kin would give the greatest support in times of trouble, as they did (Fig. 1). However, Enga networks for assistance are broad such that distant relatives and nonkin made up 39% of helpers (Fig. 1). The primary reasons given for assisting with payments include individual and group-oriented motives (Fig. 2). Beyond helping kin, some contribute because they have history of mutual assistance with the wrongdoer, because leaders build their reputations by problem solving, or to prevent arrest of a community member. Many contribute to put an end to the trouble, knowing that they will benefit from living in a cooperative community. Those who receive help feel gratitude and are aware that if they do not reform, their supporters will dwindle in number.

• Download figure
• Open in new tab
• Download powerpoint

Fig. 1.

Relation of helpers to wrongdoers (n = 116).

• Download figure
• Open in new tab
• Download powerpoint

Fig. 2.

Primary reasons for helping with compensation (n = 116).

Repeated offenders are not usually punished beyond having to assemble compensation for damage done; however, they are offered little help, and their reputations decline. In 3 of our 42 follow-up cases (7%), nobody helped because the liable party was stingy, uncooperative, or was a repeated offender. In two cases only did the liable party alone pay the exact amount ordered, one a man desperate to marry a second wife. Those who are cooperative and generous in community affairs but who are known for substance abuse or hot-headed responses continue to receive ample support.