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Some Aspects of Law in Hawaii (Article) [2001] JSPL 14; (2001) 5 Journal of South Pacific Law

Article 1 Volume 5, 2001

SOME ASPECTS OF LAW IN HAWAII

By Damien P. Horigan*

Ewha Graduate School of International Studies

Introduction

Hawaii[1] -- like certain other Pacific Island jurisdictions -- is often described as being a sort of paradise.[2] One definition of paradise could be a place that does not have or need law. Yet, as is true of elsewhere in the Pacific, Hawaii does indeed need law. This need is met by a well-established body of laws.

Although it might not quite be heaven on earth, Hawaii is, in certain respects, a well-known place. People in most parts of the world have heard of Hawaii. Furthermore, each year millions of tourists, mostly from Japan and North America, visit one or more of the Hawaiian Islands. Others come to the islands to conduct business, perform military service, pursue opportunities in higher education, or to receive advanced medical treatment.

While “Hawaii” may be a household word, Hawaii’s laws and legal system are less familiar. However, for lawyers and law students from outside of Hawaii gaining a basic understanding of Hawaii law can be helpful not only for dealing with legal matters that are connected with Hawaii, but also for developing a sense of the wide variety of laws and legal traditions that can be found in Polynesia and in the broader Pacific Basin.

The purpose of this article is to provide a general introduction to the law and legal system of Hawaii from a comparative law perspective. It is not the goal of this article to offer a comprehensive survey of Hawaii law, but rather to discuss certain salient features of law in Hawaii.

By using a comparative law approach, this article is meant primarily for lawyers and law students from jurisdictions other than Hawaii.

General Background

The Hawaiian Islands are comprised of a volcanic archipelago located in the tropical region of the Central Pacific Ocean.[3] The islands are located about 2,400 miles, or roughly 3,840 kilometers, from the West Coast of the continental United States.[4]

The island chain stretches from the island of Hawaii[5] (often called the “Big Island”)[6] in the southeast to tiny Kure Atoll (also known as “Ocean Island”)[7] in the northwest. Of the more than one hundred islands in the Hawaiian chain, there are eight major islands.[8] Seven of these eight islands currently sustain permanent populations.

Although Hawaii may appear as a mere dot on some maps of the world, the Hawaiian Islands are actually larger in terms of both land area and population than many people realize. The total land area of the Hawaiian Islands is more than 6,400 square miles or more than 16,000 square kilometers.[9] To put that figure into proper perspective, the total land area of the Hawaii is significantly larger than the combined land areas of Brunei, Hong Kong, Singapore, the Maldives, and Macau.[10]

The de facto population of the Hawaiian Islands is around 1.3 million people.[11] Hence, there are more people living in Hawaii than in most Pacific Island nations or territories.[12] Even though it is only the third largest of the Hawaiian Islands in terms of land area, Oahu is home to the vast majority of people in Hawaii. Honolulu, Hawaii's state capital, is located on Oahu. Oahu is where one will find Waikiki.

The main Hawaii Islands other than Oahu are normally referred to locally as being the “Neighbor Islands.” However, one sometimes also hears the term “Outer Islands.”

The original inhabitants of Hawaii are believed to have arrived many centuries ago from other Pacific Islands via special voyaging canoes.[13] Their descendants are usually referred to as either “Hawaiian” or “Native Hawaiian.”[14]

Today the population of the islands forms a diverse mix of races and cultures with most people ultimately having roots in East Asia, Polynesia or Europe (mostly via North America). Dating and marriage across ethnic as well as racial lines is very common in Hawaii. Hence, some now people have ancestral ties to all three regions.[15]

Economically, the people of Hawaii enjoy a standard of living that is higher (at least in dollar terms) than what is found in most of the Pacific.[16] Hawaii’s Gross State Product (GSP) is about US$35 billion.[17]

Politically, virtually all of the Hawaiian Islands[18] are under the de facto[19] control of the government of the State of Hawaii. This, in turn, makes Hawaii one of the states of the United States of America.[20] Persons born in Hawaii are thus considered to be U.S. citizens. Since 1959, the people of Hawaii have had the right to participate in U.S. presidential elections. People in Hawaii also elect senators and representatives who are sent to Washington, D.C. to serve in the U.S. Congress.

In addition to the federal layer of government, there is a state government and four county governments.[21] Currently, there are no town or village governing bodies.[22]

A Brief Sketch of Hawaiian Legal History
In the days before European contact[23], Hawaii was an oral culture.[24] In pre-contact Hawaii an important legal concept was the kanawai or edict.[25]

The word kanawai is associated with leaves of the ti plant (Cordyline terminalis). Ti leaves were used in religious ceremonies. The edicts could have either a divine or a royal origin. In other words, certain kanawai were associated with particular gods while other kanawai were associated with particular chiefs. Edicts dealt with everything from water rights to ceremonial protocol.

A related concept that could have legal, religious, and political overtones was the kapu.[26] This is a word found, with slight variation, in various Polynesian languages. It has entered the English language as “taboo.”[27] Essentially, a kapu was a prohibition or special privilege.[28] These could be of a permanent or a temporary nature. Many limited the actions of women and commoners (makaainana). Breaking a kapu was a serious offense. Offenders could be executed.

Nevertheless, there was room for redemption. The traditional Hawaiian legal system featured places of refuge namely, the puuhonua.[29]

A puuhonua was a special type of temple or heiau. If one safely made it to a puuhonua and underwent the proper rituals, then one was both spiritually and legally rehabilitated and could return to society unmolested. Today visitors to the Kona District of the Big Island can view a well-restored place of refuge at Puuhonua o Hanaunau National Historical Park.[30]