Conflict of laws (or private international law (PIL)) questions are not new in Nigeria. The plurality of the Nigerian state and its legal system makes it a fertile ground for conflict-related probl...
In Affective Justice: The International Criminal Court and the Pan-Africanist Pushback, Kamari Maxine Clarke makes two major points; both are well taken. The first is that Pan-Africanist responses ...
African Customary law and the South African common law enjoy equal recognition in the South African legal system. However, their equal status results in various conflict situations between them, especially in the South African criminal law. This paper shows that the indigenous belief in witchcraft (including witch-killings), the indigenous belief in the tokoloshe and the use of muti-medicine (including muti-murders), as well as the indigenous custom of ukuthwala, can result in the commission of common law and statutory crimes in South Africa. These are then known as "culturally motivated" crimes. In addition, this paper shows that the indigenous beliefs and custom above can also violate fundamental human rights entrenched in the South African Constitution. In this regard, this paper also outlines the consequences that an accused can face for infringing upon a victim's fundamental human rights through the commission of a culturally motivated crime.
Three decades ago I published “The folly of the ‘social scientific’ concept of legal pluralism” (1993) (hereinafter “Folly”). Reading this essay today brings me a rush of embarrassment. The article is obnoxious in tone, overconfident, and less than fully informed. At the time, I had recently entered academia, and launched an attack against what I thought was the orthodoxy of legal pluralism. Today, if it were possible to re-write the piece and remove its vitriol, I would. Mea culpa. Moreover, my unrestrained critical blast misled many readers to think that I flatly rejected legal pluralism and opposed the very notion of non-state law. But that was not my position. In the conclusion, I stated: “Clearly there is a compelling intuitive impulse to describe as law or law-like certain dispute resolution institutions and norms found in pre-state societies and in post-colonial societies where the power of the state is weak and indigenous institutions are dominant [....]. [T]hese norms and institutions can and should be called law or law-like” (211; emphasis added). In my previous work as an Assistant Attorney General in Yap, Micronesia, I witnessed first-hand a thriving system of customary law that handled a range of legal matters, often more efficaciously than the state legal system (Tamanaha 1989). What “Folly” criticized was the social scientific concept of legal pluralism. This essay elaborates the contrast between scientific legal pluralism and folk legal pluralism. This is a fitting topic to mark the fortieth anniversary of the Journal of Legal Pluralism because it addresses core issues taken up by seminal pieces published in the journal over several decades (Galanter 1981; Griffiths 1986; Woodman 1998; von Benda-Beckmann 2002). The scientific versus folk distinction was drawn by John Griffiths in an 1984 essay that articulated ideas which informed his enormously influential article, “What is legal pluralism?” (1986).
This paper for the anniversary issue of the Journal of Legal Pluralism and Unofficial Law attempts to explain how legal pluralism as a sensitizing concept plays a role as an auxiliary in looking at phenomena where there is a co-existence between various legal systems. The legal pluralism approach carries methodological consequences that require a researcher to use microscopic lenses to observe the relations between law and relevant actors in cross-border spaces. It is also important to examine the interrelations between the concept of personhood with law in a context of legal pluralism. Without a legal pluralism approach linked with a relational approach that looks at the connections between law and relevant actors, research would not be able to generate a significant narrative about how law works. In this paper, the conceptual and methodological reflections on legal pluralism are linked to a research on the diversity of legal references that regulate the issue of Indonesian female migrant workers in the United Arab Emirates (UAE), with all its implications for actual access to justice for women.
it is less often practiced or appreciated. In part, this is understandable, as different disciplines have their own terminology, methods, implicit assumptions, conventions and measures of worth and importance. Despite these hurdles, the study of legal pluralism provides a continuing opportunity for truly interdisciplinary research. Many legally plural circumstances are highly complex, contested and beyond the grasp of existing analytical tools. However, importantly, analytical messiness does not necessarily mean that normative judgements cannot be made in assessing their effectiveness in delivering justice, dignity, redress and personal security. For instance, legal pluralism may allow for checks and balances that are simply not possible within a unitary legal system (Berman 1983). Conversely, legal pluralism may lead to legal dissonance, where different legal orders undermine each other, leading to a low-enforcement-high-crime situation that may be most detrimental to the weakest and most marginalised in society (Larcom and Swanson 2015). While the economic analysis of law has many limitations, it is particularly useful for focusing the essence of the legal circumstance and the consequences. Perhaps legal pluralism scholars could benefit from more interaction with the law and economics, empirical legal studies and institutions literatures, where the focus of enquiry is often centred on the consequences of legal arrangements – and how they can be improved. It is also hoped that authors from these literatures will engage more with the rich legal pluralism literature. There is much to learn from all sides. Finally, it is worth reflecting on the fact that, even if after 40 years, the illusion of legal centralism has been destroyed. For some it certainly has, and there is no doubt that the term has grown in prominence over this period. For instance, according to Google Books Ngram Viewer (2021) that aims to measure the frequency of use of words and phrases, the term “legal pluralism” overtook “socio-legal” in the mid-1980s, “law and society” in the mid-2000s, and “law and economics” in the early-2010s.2 However, despite having grown in prominence, the term means different things to different people, disciplines and generations. I hope that at the heart of its meaning remains the idea that law can derive legitimacy from sources other than the state. For it is this key insight, as destructive as it is and as antically messy as it can make things, that allows us to better see reality as it is, and to therefore make descriptive, analytical and normative advances.
The right to have access to sufficient water is enshrined in section 27(1)(b) of the Constitution of the Republic of South Africa 1996. This right resulted in the adoption of the National Water Act 36 of 1998 (NWA) which fundamentally changed the foundations of the country's water law system. The preamble to the NWA states that water is "a scarce natural resource that belongs to all people". The Act broke new ground by introducing the concept of public trusteeship into the South African water law. Section 3 of the NWA stipulates that water falls under the centralised control of the public trustee to, inter alia, improve the allocation, management, use, conservation and equality of access to this scarce resource. The concept of public trusteeship provides for water allowances granted at the discretion of the public trustee. This new system is a fundamental step away from the previous regulatory regime that provided for private and exclusive rights to water use. We are therefore witnesses to a transformation in which property rights in the water sector were redefined, often to the dismay of landowners. In the quest to demystify the concept of public trusteeship in South Africa's water law, this article sets out to provide and evaluate a diverse set of property rights paradigms against which the public trusteeship-based property regime in water resources law can be measured. A better understanding of the property rights paradigm within which water as a natural resource is presently regulated may contribute to clarity regarding the nature, duration and possible limitations of individual rights to water acquired in terms of the NWA. Through the mobilisation of legal pluralism, the article provides new opportunities for construing the property rights paradigm of the NWA.
Abstract The Magdalena River, Colombia’s main river backbone, features multiple tensions and socio-environmental conflicts. They manifest themselves in the river’s ecological degradation and negatively impact the riparian communities and artisanal fishermen, whose productive activities and rights of access to water are restricted. For these communities, the river is a means of passing down and exchanging knowledge between generations. However, their knowledge and practices are not recognized in the dominant governance processes over the Magdalena River. In an interview with Juan Carlos Gutiérrez-Camargo, environmental activist, researcher and companion of artisanal fishermen, we illustrate the universe of epistemologies and worldviews of these communities. We discuss, from a legal-pluralism perspective, the contradictions between state norms and authorities, parastatal powers, and the customary rights of fishing communities. We analyze how the simultaneous presence of various authorities and the complex, unequal arena of legal, extra-legal and illegal forces, hinders enforcement of fishermen’s customary socio-legal repertoires and also of the Colombian Constitution to protect riverside communities’ human rights. The interview reflects on the great complexity of exercising community leadership, environmental protection and defense of artisanal fishing in the midst of a socio-normative political arena permeated by state abandonment and paramilitary violence. For this reason, the interview stresses the importance of recognizing artisanal fisher collectives as political subjects in river co-governance. It also highlights the ambivalent implications of granting rights to nature and rivers: their meaning, functions and impact depend on their political trajectory and mobilization by grassrooted collectives. Finally, Gutiérrez proposes strengthening knowledge networks to bolster river co-governance where the political-cultural and socio-normative frameworks of riverside communities play a preponderant role.
In 2012 public service trade unions and water activists started a European Citizens' Initiative to get the human right to water implemented in European law. It became the start of the "Right2Water" movement that successfully defended drinking water supply in the European Union against European Commission plans for liberalisation, marketisation and the subsequent threat of privatisation. In countries with a good functioning public water system, resistance against privatisation of water was high, especially in Germany, Austria and Belgium, but surprisingly this level of resistance was absent in the Netherlands, which has a similarly good and well-known public water supply system. In this article we interview two persons that have both experience in European as well as in the Netherlands' water policies and legislation, and in water services provision. We investigate how the right to water is defined, legally decreed and socially interpreted and defended at different levels. We also investigate the apparent paradox with regards to water in the Netherlands, where people seemed very committed to and proud of their public water management, but did not stand up against a privatisation threat, whereas around the globe water privatisation plans are met with great resistance.
The 1915-1917 debate between Ehrlich and Kelsen is a fundamental debate in legal theory, between normative jurisprudence and sociology of law. Although both professors see themselves as being on opposite sides of the legal theoretical spectrum, this article offers the possibility that perhaps both theories could be combined to arrive at a comprehensive understanding of law and the legal order. Instead of being opposite approaches to the study of law, sociology of law and normative jurisprudence could also be understood as complementary theories which, if taken together, cover a larger part of the legal spectrum of any society.
Collective forests have long played an important economic, cultural and social role in the remote mountainous areas of China, especially before the Open and Reform Period. However, the centrist legal framework for managing and utilizing the collective forests was not sufficiently well developed to meet the demands of all community members, which led to largely unfettered overuse and illegal logging. This "tragedy of the commons" meant that the traditional human-forest connections that were so important in these areas gradually collapsed, to be replaced by self-interest. This situation informed a period of property rights reform in which steps were taken to introduce a form of legal pluralism that could improve both security of tenure and forest management. Using a study of Hongtian Village in Southern China, where forest tenure reform started, we argue that pluralist collective action is essential in order to identify grass-root solutions to the management of the forest commons. This involves the use rights for collective forests being separated from those of ownership, with the former distributed to households, according to their own, local, rules. While this new pluralist approach to forest tenure fostered renewed confidence in the potential for collective forestry to underpin community prosperity, the paper goes on to show how renewed top-down intervention, this time to promote a more ecological approach to forest management, has once again undermined the significance of people-forest relationships. We conclude by arguing that forests are very much at the frontier of property rights reform in China, because their effective governance depends utterly upon ensuring a plural approach to regulation that central authorities are currently unwilling to legitimate.
This paper explores how legal and value pluralism creates or constrains space for second wives to express ambivalences towards negative aspects of their unregistered polygamous marriages. It analyses two types of ambivalence toward dominant Muslim family law norms: first, ambivalence toward dominant norms pertaining to the second wives' status and roles within a polygamous marriage; and, second, ambivalence toward state regulation of Muslim marriage as exhibited within the Indonesian Islamic courts and Offices of Religious Affairs. The three case studies will show how second wives express ambivalence towards their inequal social position to the first wife, lack of support by their husband, social stigma, and lacking marital status. In expressing these ambivalences, they do not engage in oppositional discourses, or "hidden transcripts", yet show their discontent towards certain aspects of their polygamous marriage while referring to alternative norms. This paper links this ambivalence toward social practice of polygamy to ambivalence on the state level, as exhibited through lenience, accommodation, and facilitation of unregistered polygamous marriage. We believe that an investigation of ambivalence from these two different perspectives is an apt way to uncover the loci where the clash of norm in the context of unregistered polygamy are the most profound.
Experiences in Andean countries reveal that constitutional recognition of plural rights systems is not enough to reduce the detrimental impacts of hydropower on Indigenous communities. In this article, critical legal pluralism serves as an entry point from which to raise questions about the formal recognition of Indigenous legal orders in Chile. Drawing from an hydroelectic project that would dam the Neltume lake, this study examines how to take diverse local water rights systems seriously, without wiping them out by equilizing their divergences with logically ordered, hierarchically differentiated, official law. Accordingly, it shows how a series of legal networks overlap, intersect, and mutually shape each other, as it relates to struggles over water control in Mapuche-Williche territories. Through an ongoing engagement with critical anthropological thought, the article ends by addressing how it can be challenging to translate Indigenous epistemologies and political identities into the most official of all state documents, namely, the Constitution. Considering the present-day constitution-making process in Chile, the research combines several techniques for gathering qualitative data, including in-depth interviews with respondents involved in the conflict, videography, document analysis, and secondary historical sources.
For almost one and a half year, the world has been in the grip of the COVID pandemic, confronting people worldwide with a wide variety of unexpected health, social, economic, legal, political and other impacts on their daily lives and lifeworlds. COVID took the world by surprise and totally unprepared; the rich parts of the world more interested in business-as-usual and economic growth than in disaster-preparedness, despite earlier wake-up calls like ebola, SARS, Q-fever and many others. Those who read David Quammen’s Spillover, published in 2013, could have known. Sociologically COVID can be seen as a life-changing “event,” a rupture that creates a “before” and an “after.” However, it does so differently for various people in different parts of the world and positioned differently socially, economically and otherwise. The outbreak and spread of the COVID pandemic does not only reveal the human vulnerability to and unpreparedness for pandemics, but also lays bare the deeper social, political and other fault lines, sensitivities and conflicts that tend to remain hidden under “normal” conditions. While in most countries COVID was acknowledged to be a serious threat, in some it was disregarded for political-ideological reasons (e.g. the United States during the Trump administration; Bolsonaro’s Brazil) or it was even forbidden to mention it (Tanzania under John Magufuli). Governing the COVID crisis is a matter of trial and error. While it took time to find out what works in combatting the pandemic, the three cases mentioned above have clearly shown what does not work, what bad governance of the pandemic looks like, and what the consequences of denial and disregard are in terms of human suffering. Many COVID-related measures have raised important constitutional, legal and justice issues. COVID has become the legitimizing argument for forms of securitization, centralization of powers and the creation of “states of exception,” expressed through emergency laws, policies and interventions. In Hongkong, for instance, COVID created a window of opportunity for those in power to forbid demonstrations against Beijing’s growing influence and thus to eliminate political opposition. In a world preoccupied with combatting the pandemic, authoritarian regimes more generally seem to have benefited from fear of contamination, reduced social interaction, and the ban on mass meetings and demonstrations. But the pandemic has raised many other political, legal and justice issues. Globally, the huge inequalities in access to pharmaceutical production infrastructure and the markets for vaccines dominated by rich countries have created unacceptable distributional inequalities and massive vulnerabilities. While rich countries bought up the lions’ share of global vaccine production, many poor countries, especially in Africa, stand by and remain dependent on gifts by other countries. Moreover, COVID
I overcame myself, the sufferer; I carried my own ashes to the mountains; I invented a brighter flame for myself.F. NietzscheI first met Andre on Saturday, September 1st, 2001. I visited him and hi...
This paper is a product of my doctoral ethnographic study among the Kipsigis of Kenya. The research was conducted in Bomet, Kericho and Narok counties. The paper explores the underlying principles and contestations on the best interests principle and how scholars have recently located the best interests principle within legal pluralism. The paper then explores the foundation of Kipsigis customary law and the nature of childhood under the Kipsigis customary system. It also examines the pillars of the best interests principle under Kipsigis customary law such as; the promotion of a harmonious co-existence between the child and the family; guaranteeing the long term interest of the child; adhering to customary obligations of by the parents and a contextual understanding of what is in the child's best interests. Using the underlying themes identified by scholars and reflected in various human rights instruments, the paper attempts to highlight the (in) consistency between statutory and customary conceptions of best interests and the role that customary law plays in protecting and anchoring the well-being of children.
Against legal scepticism which constructs litigations as negative or useless 'lawfare', this article argues for the need to recognise that taking government to court is part of a wider strategy of social mobilisation and campaigns for social justice, as others have also claimed. Legal mobilisation during a public sector strike in Botswana in 2011 was, the paper argues, only one strategic part of a more comprehensive campaign to call on government to pay its workers a living wage. The paper calls for anthropology to re-examine some of its assumptions about the role of the law in postcolonial nations. Despite the possibility that judges may be biased or vulnerable to political influence, and despite the courts' restricted ability to implement their judgements - it is nevertheless the case that ethics, morality and the law, when mobilised alongside concerted political and civic activism, may play a critical role in advancing the cause of citizens' rights against an apparently all-powerful government.
Like many other African countries, Burundi has a pluralistic legal system, where on the one hand written laws coexist with uncodified customary laws and on the other hand informal justice institutions are still used in the day-to-day conflict resolution by many Burundians despite a provision in the Constitution that makes the mission of rendering justice the monopoly of the state courts. Both before the state courts and out-of-court forums for adjudicating disputes and justice mechanisms, women face challenges that limit their access to justice, compared to men. This paper argues three main points. First, that while there is a relationship between women's limited access to justice and the pluralistic nature of Burundi's legal system, the challenges faced by women in accessing justice should not be excessively associated with legal pluralism, thus hiding the impact of extra-legal factors. Second, that while Burundi's constitutional framework is progressive with respect to gender equality and most laws are gender neutral, some shortcomings still exist in the overall legal framework, thus limiting the potential of the constitutional legal framework with respect to gender equality. Third, that by increasing gender diversity in the judiciary, and with much more positive activism and training, Burundian judges could ensure equal access to justice for women by using the potential of existing national and international legal frameworks.
