Philosophy of law. Yap Constitution. Literature & Language Essay (Essay Sample)
In ‘The Role of Custom and Traditional Leaders Under the Yap Constitution’ University of Hawaii Law Review, vol. 10 (1988), pp. 81-104 (available on Moodle), Brian Tamanaha describes the interesting mix of customs and American rules in Yap, a federated state of Micronesia. Using Hart’s theory of the existence of a legal system, (a) what do you think is the rule of recognition in practice in Yap? (b) Will Yap’s rule of recognition be able to carry out the functions that a rule of recognition must serve? (c) Why might it be plausible to answer either ‘yes’ or ‘no’ to question (b)? Be sure to answer all questions. Your essay must express clearly your understanding of the relevant parts of Hart’s theory of law.
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Tamanaha outlines a vivid description of the Yap constitution in which he explains Yap’s rule of recognition. Notably, customs and traditions of the community played a major role in the rule of recognition. Yap, as a society pursued a set of principles even before they attained independence in 1986 (Tamanaha 82). Micronesia coexisted according to their cultural tenets. The community did not have the written forms of law that they acquired after independence. The traditions are primarily responsible for harmonious coexistence in this society.
Culture is an essential element for the rule of recognition due to the vital role it plays in the state’s governance. Belief system is a crucial tool in identifying issues with Yap laws and plays an influential role in the legislative process of the country (Tamanaha 83). Tamanaha indicates that the community’s values have been discriminated for extended periods and the people were determined to heal the wounds of discrimination in this state. According to Tamanaha’s signs, the government prioritizes Yapese ethos in its governance and law-making processes as an element of enhancing loyalty to the administration.
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