LGD 2008 (2) - Editorial
Dr. Fauzia Shariff
Joint Director BA Anthropology and Law
London School of Economics
This is an editorial published on 14 December 2008.
Citation: Shariff, F. ‘Editorial’ , 2008 (2) Law, Social Justice & Global Development Journal (LGD). http://www.go.warwick.ac.uk/elj/lgd/2008_2/editorial
This special issue of LDG on ‘Legal Pluralism and the nation state’ aims to demonstrate the wide and varied application of the concept of legal pluralism to current socio-legal debates. The papers in the issue straddle topics as diverse as military law, religious courts in secular states and extraordinary rendition.
The concept of legal pluralism began life in the 1970s and 80s as a critique of the dominant legal centralist approach to legal theory that privileged state law over other empirically identifiable legal orders. The idea that law should be conceptualised beyond the state already had a long history when this term was phrased, most notably in the concept of ‘living law’ framed by Eugen Ehrilch in his book Grundlegung der Soziologie des Rechts 1913 (later translated as Fundament Principles of the Sociology of Law 1936). However, the term legal pluralism was not used until 1970 (Franz von Benda Beckman Rechtspluralismus in Malawi) and substantive papers on the subject appeared predominantly in the 1980s (Allott and Woodman 1985, Griffiths 1986, Merry 1986). Since this time there has been a growing body of theoretical and empirical writings on legal pluralism, most notably associated with the Journal of Legal Pluralism and the Commission on Legal Pluralism.
In its simplest and most cited form legal pluralism is defined as ‘the presence in a social field of more than one legal order’ (Griffiths 1986:1). But the definition of ‘legal order’ has been problematic (Roberts 2008) and the development of the concept of legal pluralism has been stunted by disagreements over where to draw the boundaries of law. Despite the ongoing debate on where to set the definitional boundaries of legal pluralism, the persuasive force of the concept in empirical and indeed theoretic explorations of modern dilemmas in socio-legal studies has meant that the term has endured and prospered. Today the term has been used in analysing an ever wider range of legal spheres.
This issue aims to contribute to this growing body of both theoretical and empirical writings in this important sub-field of law and anthropology. The topics covered in the issue demonstrate the wide relevance of a legal pluralist approach across issues of contemporary importance such as post-conflict reconstruction, enforcement of international human rights law and dilemmas for legal certainty in multicultural society.
In the UK the Archbishop of Canterbury’s speech suggesting the inevitability that some aspects of Sharia law practices would be accommodated into English law led to largely one-sided assertions (in the press) of the importance of a secular legal identity. The issues raised by opponents of legal accommodation were not exclusive to the UK but reflected concerns throughout Europe about how to manage plural normative practices in multicultural societies within a secular state framework. These debates were often framed in terms not of how this could be achieved but whether it ‘should’ be tolerated. This misplaced emphasis is addressed by Hoekema in his paper on interlegality. He starts by framing his analysis as belonging to the question of what ‘as a matter of fact’ judges and legal actors in general do in multicultural conflicts brought before them. Hoekema addresses this question, not in terms of analysing the different categories of accommodative practices used to tackle conflict of laws, but by viewing the process of accommodation through the lens of the concept of interlegality. Interlegality is the conceptualisation of law as a dynamic social phenomena which opens up the debate of legal accommodation to incorporate not just consideration of how ‘state’ law adapts to multiculturalism but how state and non-state law adapt to each other. In re-framing the question in this way he forces us to see that debates on legal accommodation should recognise the dynamic process that inevitably takes place when legal orders, legal actors and systems interact.
In a related article Van Rossum raises the need for more descriptive writing on non-state religious courts and councils within Europe and a better understanding of the factors that affect the use of these courts by minority communities. Van Rossum’s article provides a description of one such forum, the cem ceremony of the Turkish Alevis. He provides detailed examples of how Alevi religious dispute resolution takes place in both the Netherlands and Turkey, demonstrating the strong binding force of community relations and religious mores in the resolution of disputes. But he demonstrates that the strength of these processes does not necessarily negatively affect the community’s adherence to, or use of, state law and its procedures in the Netherlands. He demonstrates that adherence to state law has more to do with trust in, and perceived neutrality of, government institutions, rather than in the relative importance of their own customary, religious laws. He ends by concluding that Dutch accommodation of Alevi law practices (in petty civil matters at least) has led not only to greater trust by the Alevis in Dutch legal institutions but also a greater willingness to integrate in that country. This he concludes may ultimately mean that Alevi institutions such as the cem ceremony will eventually become less prominent in the community as they adapt their living more to Dutch ways of life. He suggests ‘legal pluralism’ is likely to become less prominent there in contrast to Turkey where a separate and thriving Alevi culture seems to persist in response to state oppression. Both this paper and Hoekema’s paper were presented at a workshop on legal accommodation, the full report of which has been included in this issue (Grillo).
In Kirke’s paper a rich descriptive, and analytical, text draws us into another world of overlapping normative orders. This time the subject of discussion is the much coveted social field of the British army. The author shows that the highly regulated way of life in the army includes a complex subset of rules of behaviour falling into four categories (formal, informal, functional and loyalty/identity), which soldiers switch between throughout their period of duty. With carefully constructed examples centred around an evidence-based hypothetical case study (‘Private Bodkin’s Black Eye’) he demonstrates how these different rule structures are played out, broken, adjusted and prioritised in moments of conflict. Using conceptual tools of legitimate and illegitimate primary and secondary adjustments he assesses the boundaries of rule breaking and switching. The article helps to demonstrate that even in highly structured and rule-based organisations characterised by discipline and top-down command, formal rules are interpreted and adjusted through cultural norms, often themselves flexible and unarticulated.
In contrast to this examination of legal pluralism in the highly regulated sphere of the army, another paper, McAuliffe, considers the challenge of reconstructing the rule of law in the legal (state law) vacuum of a post-conflict state. The paper considers the attempts at combining a newly framed state law Serious Crimes Process, aimed at administering criminal justice, with an adapted version of local justice in the form of the Community Reconciliation Process. The author compares the failings of the newly introduced state law process, widely seen as foreign and illegitimate, with the successes of modified local justice processes, which enjoyed widespread public acceptance and use, while critically assessing their combined impact on reconstruction. Backlogs and malfunctions in the state processes led to impunity, with profound implications for rebuilding of community relations on the ground. The international community’s strong bias against use of local justice processes for addressing serious crimes (despite their developing human rights sensitivities) meant that the full potential of local justice processes was not realised. The author argues that despite concerns about leaving prosecution of rape and murder to local justice, increased support for local sanctions would have been preferable to the ad hoc impunity that resulted from administrative failure of the state justice process. He shows that missed opportunities to invest in local justice processes have ultimately damaged the rule-of-law in this state.
The co-existence of local customary justice and state law is considered, from a more philosophical perspective, by William and Oke. These authors discuss debates led by African legal theorists in the mid-eighties on the application of jurisprudential concepts to the African experience of legal pluralism. In particular they consider the merits and demerits of legal positivist approaches to conceptualising law in Africa and the relevance of separating law and morality in theorising law for the continent. Their discussion investigates, amongst others, the meaning and impact of postmodern theory, the meaning of the nation-state and the accuracy of ethnographic studies of African customary law systems.
Dale and Samara take the discussion of legal pluralism beyond the confines of state or continent in their paper, which investigates the new legal space created by a transnational network of bodies to sustain the practice of extraordinary rendition. Their timely article investigates the network of corporations, government executives, agencies, attorneys, academics and others that has been secretly constructed to maintain and defend these practices in the course of the US President Bush administration’s war on terror. This network - which they term a transnational network of governance – has allowed the Bush administration to complicate attempts by human rights activist, lawyers and judges to hold the administration accountable. Their conceptualisation of this network challenges presumptions of a dichotomy of state–non-state actors: they see the state as capable of disassembling at the national level and reassembling transnationally to form certain governance functions. Their paper will be important reading for scholars and activists working in the field of human rights in understanding the failures of international and national law in light of these practices.
Allott, A. and Woodman, G. (1985) ‘People’s Law and State Law: The Bellagio Papers’ Dordrecht: Foris Publications
Griffiths, J. (1986) ‘What is Legal Pluralism’ 24 Journal of Legal Pluralism 1
Merry, S. E. (1988) ‘Legal Pluralism’ 22 Law and Society Review 869
Roberts, S. (2008) ‘Legal Pluralism’ in Cane, P. and Conaghan, J. eds ‘The New Oxford Companion to Law’ Oxford University Press