Foreign judges often face a challenge when interpreting a constitution in ways that respond to local context. That challenge can be overcome if due diligence is exercised by paying close attention to how the constitution is inherently intertwined with the customs of the land. Ultimately there is an expectation that precedents established by foreign judges should reflect the values of the Indigenous population in shaping the legal system. In many instances in Micronesia foreign judges did the opposite: they often brought with them assumptions that were contradictory to customary principles, and in the process contributed to the devaluation of customary practices as enshrined in the Constitution. The case of the Federated States of Micronesia illustrates the erosion of customary values as American judges asserted control over the legal system by importing American jurisprudential practices and treating customary law as inferior to black letter law. Today Micronesian judges are working towards striking the balance between black letter and Indigenous customary legal principles in adherence to Micronesia’s Constitution.

In this set of reflections, Sir David Baragwanath, former Justice of the Court of Appeal of New Zealand, part-time President of the Court of Appeal of Samoa and Appellate Judge of the Special Tribunal for Lebanon in The Hague, considers some of the ways in which judges and lawyers situate themselves within the familiar and the foreign. He urges reflection on the challenge of the judicial oath to ‘do right to all manner of people after the laws and usages of this realm without fear, favour, affection or ill-will’, as enriched by the basic judicial precepts of modestie et audace – caution – and mains tremblantes – the need for care, sensitivity and humility – to control personal predilections and learn and comprehend the distinctive values that underlie what, to an outsider, is novel jurisprudence. Judges ought to strive for a ‘periscope’ approach, in order to penetrate the mists of their own education and experience and search for answers congruent with the values of the unfamiliar law or society illuminated by a vision of its highest standards.