The historical development of law is self evidently interconnected with people and societies. Any examination of law, therefore, would appear to require an investigation of those whom law affects. Historical approaches to legal theory have not, however, involved such an analysis. Rather, the study of law has conventionally involved separating it from the society it regulates.2 The detrimental effect of this is most apparent in post-colonial societies, where traditional laws, which were closely linked with morality and culture,3 have been supplanted with western legal systems in which law acts as ‘no more than an instrument of state power’.4 The idea of law being imposed in a ‘top-down’ manner, has dominated contemporary western legal thinking. Central to this positivist perspective is the belief in the superiority of a unified, state-based and institutionalised approach to law.5 In theory, such a centralised legal regime would appear to be preferable – it is simple and provides certainty and uniformity – but it neglects non-western legal systems which are relegated to recognition through specific constitutional and statutory provision or common law acceptance.6 This positivist perspective of law was the orthodox view during the eighteenth and nineteenth century and to a great extent prevails today. Therefore, during the period of colonisation of the Pacific, and elsewhere, this was the legal approach taken in settling new territories. The laws of the indigenous people, referred to here as customary law, were subordinated to the introduced legal system; although on occasions legal validity was conceded to other bodies of law not repugnant to or inconsistent with the written law.7 In the early part of the twentieth century, legal realism emerged as a more multidisciplinary and empirically based approach to law.8 Legal realists began looking at ‘how law actually works’,9 believing that the law can only be determined by practical investigation, experience and analysis.10 At the same time, sociologists such as Eugen Ehrlich began analysing ‘living law’11 in the context of society:12 ‘as an aspect of social life not a separate compartment of it’.13 This necessarily involved looking beyond the dominant, state-based legal system.