Perspective Of Legal Pluralism Research Articles

Harmonization of State, Custom, and Islamic Law in Aceh: Perspective of Legal Pluralism

Indonesia recognizes several legal systems i.e., state law, customary law, Islamic law, and international law. Islamic sharia in Aceh is part of legal pluralism in Indonesia. This study aims to discuss the application of Islamic sharia from the perspective of legal pluralism. This normative legal study employed a legal pluralism theory analysis. Legal pluralism is a theory that views law not only as positive or written law made by the state but also as a recognition of the legal reality that exists in a pluralistic society. The study collected data by means of a literature review. Findings revealed that Islamic sharia in Aceh as part of the recognition of the concept of legal pluralism has been implemented well in the context of state law, custom, and Islamic law. The state has provided juridical legitimacy through laws in the context of legal substance and judicial institutions or sharia courts. Likewise, revitalization has also occurred in traditional institutions in terms of customary law and customary justice. The argument emphasized in this study is that Islamic sharia in the context of legal pluralism has succeeded in manifesting legal harmonization between the state, custom, and Islamic law

Hijab Discourse in Indonesia: The Battle of Meaning Between Sharia and Culture in Public Space

The phenomenon of wearing hijab is not only a reality in Indonesia but also in the Muslim world and even the world in general such as Europe, America, and Australia. This paper aims to examine the discourse on hijab between Islamic law (sharia) and culture. This is a normative study using legal pluralism as an approach. This paper concludes that Indonesia has the largest Muslim population in the world, and the wearing of hijab has a long history until contemporary times. Currently, the phenomenon of hijra among Muslims is also on the rise, the hijab is then formalized into educational institutions and offices which not a few cause problems that sometimes arise discriminatory actions to those who do not want to use it. Another phenomenon about the use of hijab occurs in the realm of law. A woman dealing with legal issues, when presented at a press conference, some public figures wear hijab. Even in the judicial room, women who usually do not wear headscarves also change their appearance by wearing headscarves. Likewise, in a political campaign, women who usually do not wear headscarves, appear in hijab suits in public. Of these various phenomena, the hijab as a marker symbol has meaning, namely as a form of religious obedience, the identity of a Muslim woman, discipline in public spaces, and camouflage piety. From the perspective of legal pluralism, hijab is an articulation of strictness to the commandments of sharia as well as an inseparable part of the culture that has become a living practice in Indonesian society.

Legal Pluralism Perspective in Prosecuting Perpetrators of Bribery and Gratuities Corruption Crimes

The act of giving and receiving has been a practice since feudal times. Gifts or tributes to kings or officials, among other forms of giving, are part of traditional customs and are considered social etiquette. To address these issues, the authors analyze the theory of criminal liability, lawlessness, legal pluralism, and the legal system. This research uses a normative juridical research methodology. The findings reveal that there are no clear boundaries concerning regulations related to bribery and gratuities, specifically regarding gifts or promises in which civil servants or public officials can or cannot accept. The application of the bribery and gratuity clause was misdirected, resulting in innocent individuals being punished while the guilty were acquitted.

A legal analysis of disjunctions between statutory and customary land tenure regimes in Zambia

In the recent past, Zambia has experienced land governance related issues such as voluntary and involuntary displacements, insecurity of tenure, food insecurity and land disputes. While laudable efforts have been made to uphold and realise land and resource rights of poor rural populations in Zambia, there are several longstanding challenges that remain unresolved. The majority of the rural population still do not enjoy sufficient legal protection of their land rights. This paper shows the inadequate legal recognition of the strength of rights to land and natural resources derived from custom and how to recognise and secure land rights of dwellers in law and practice. The paper also examines the degree to which vested property rights are protected from infringements and analyses land rights in the context of ownership, possession and holder-ship. The relationship between statutory and customary land tenure systems are assessed from the perspective of legal pluralism. Therefore, this paper provides insights into the diversity of land tenure regimes that exist, as well as what constitutes the legal status of land and ways in which they provide for vestment of property rights.

Transnational law – a new system of law?

The paper presents the emergence and evolution of the concept of transnational law, from the Philip Jessup’s 1956 novation to the latest approaches, mainly from the western legal scholarship. In the legal writings from Romania or Republic of Moldova, the phenomenon of transnational law remains unexplored or, at best, mentioned incidental as a synonym of a modern “lex mercatoria”. Likewise, in Russian scholarship, research on transnational law bears a strong private imprint and ubiquitous reluctance may be noted. This article aims to discuss, from the perspective of legal pluralism, the loss of the state monopoly in law making, the pluralization of sources of legitimacy for transnational actors, and the reconsideration of the scope of the law, by de-territorializing it. Transnational law is seen thus not just a private regime, but as a system of normative law that transcends international or national law, acts in a distinct social space and addresses specific actors, not only private, but also public or hybrid. In Romanian legal knowledge this approach is missing.

Communities’ Sacred Mountains vs. State-owned Natural Resources – Towards a Rights-based Governance of Cultural and Biological Diversity in China

ABSTRACT In the multi-nation society of China, disputes related to the beliefs and customs of indigenous communities in the process of the state’s natural resources management have been increasing because of sports activities, tourism, extractive industries, hydropower and other infrastructure constructions. From a legal pluralism perspective, with a focus on the Tibetan mountain cult in the Kawagebo (Mt. Meili) mountain area, this research argues the existence of two types of governances based on different worldview, beliefs, normative frameworks and management practices: the community spiritual governance (CSG) and the state resources governance (SRG). By analysing the institutional constraints to, and the potentials of recognising the spiritual significance of, sacred mountains and rights of indigenous communities, this research justifies a pathway of turning SRG towards a ‘rights-based governance’ for coordinating these conflicts.

Indigenous People Between Recognition and Disclaimer of Legal Pluralism Perspective

This article aims to examine the ethical and unethical perspectives behind the recognition and abandonment of indigenous people by the state, the influence of morality and legal awareness on indigenous people of the dichotomy between recognition and neglect in tourism development. Normative research method with a statutory approach. Supported by primary and secondary legal materials as well as legal hermeneutic analysis techniques. The results of the study show that neglect of indigenous people is considered unethical because it can lead to injustice, on the contrary it is ethical if the recognition of indigenous people is accommodated in the substance of the Regional Regulation. Legal morality can fortify everyone to do good, including local governments and indigenous people. Subjective legal awareness has implications for neglect, so it is necessary to build objective legal awareness that provides space for recognition of indigenous people in reorganizing the regulation of Article 26 paragraph (2) of the Bali Provincial Regulation No. 2 of 2012 which is ambiguous by incorporating the substance of the obligations of indigenous people and local governments in managing tourist area with local regulations based on semi-autonomous legal pluralism.

River lives, River movements. Fisher communities mobilizing local and official rules in defense of the Magdalena River

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.

Distribution and Revenue Sharing of Natural Resources in Indonesia: Autonomous Region and Legal Pluralism Perspective

The distribution and revenue sharing of natural resources in Indonesia is considered a very important issue. The exploitation of natural resources of a particular region can be implemented by referring to the concept of regional autonomy. In practice, not all regional governments can take advantage of the natural resources situated in the region. The research aims to review and analyze the arrangement of revenue sharing and natural resources based on the principle of decentralization in the balance of national and regional finances in Indonesia and analyze the autonomous region in Indonesia from a legal pluralism perspective. This study is normative legal research using statutory, conceptual, and analytical approaches. The results suggested that the arrangement of the division of funds for revenue based on decentralization in Indonesia has not fully reflected the principle of proportionality, as it is perceived not providing just and proper share for some regions. In achieving public welfare and social justice at the lowest level of governance, the existence of customary villages in Bali may serve as a solution in addressing the issue of regional management on natural resources along with its potential benefits. Parallel to this concern, the customary village can also play an indirect role in achieving justice, equity, and harmony in the regions. Therefore, the synergy between the national and regional governments, including customary villages undoubtedly reflects legal pluralism.

Legal Assurance of Investor Dispute Settlement with Indigenous Law Communities in Legal Pluralism Perspective

With the enactment of Law Number 11 of 2020 concerning Job Creation, it has become a positive turning point in the Government's efforts to increase the number and value of investment in Indonesia while at the same time responding to challenges according to current developments with the method of resolving investment disputes by prioritizing deliberation and consensus up to the court mechanism. The purpose of this legal research is to analyze the legal certainty regarding the settlement of disputes between investors and indigenous peoples and to analyze the policies taken by the Government and Regional Governments in the context of resolving disputes in the perspective of legal pluralism. The research method used in this research is the normative legal method. According to the author, this is needed in order to provide guarantees for the basis of legal certainty, namely legal certainty and strengthening as well as the presence of the State in providing policy directions, commitments and joint responsibilities of the Government, Regional Governments in supporting and carrying out the process of forming laws and regulations that are in harmony and balance so that ensure the existence of public law and order in providing legal certainty in investing for investors, the community and the Government as well as the Regional Government in the context of improving regional economic development and community welfare in a fair and equitable manner.

Organizational Practices in the Constitution of the Right to Culture and to the City: Understanding the Struggle for the Rights of a Cultural Organization in Goiás City, Brazil

The objective of this paper is to discuss how the organizational practices in the field of culture constitute the development, promotion and access to rights to culture and to the city in Goiás city, Goiás, Brazil. We bring the theories of the field of Studies Based on Practices (SBP) closer to the Law in order to understand the non-institutionalized legal phenomena of the organizational processes. From a multi-sited ethnography carried out in the Historic Center of the city of Goiás, Goiás, a place classified as a World Heritage Site by UNESCO between August 2014 and December 2015, we highlight the processes by which organizational practices, as producers of spaces in cities, constitute Rights when recognizing or neglecting the occupation of the urban space by certain social groups. We emphasize how the analysis of organizational processes can contribute to a debate on Rights from a perspective of legal pluralism from the daily life of cities and highlighting the relevance of understanding the occupations of urban spaces as a way of reconfiguring relations between the State and civil society.

Discurso de ódio nas normativas transnacionais de empresas de mídias sociais: Uma abordagem acerca das possibilidades da autorregulação regulada

A sociedade global e as novas tecnologias modificaram a produção, a disseminação e as regulações sobre discursos de ódio, principalmente aqueles expressados on-line. De um lado, as empresas transnacionais de mídias sociais possuem políticas de publicidade com diretrizes para remover conteúdos considerados como discurso de ódio ou expressões semelhantes. De outro, o direito internacional dos direitos humanos, que fornece diretrizes interpretativas para a problemática à luz do direito à liberdade de expressão, emite preocupações sobre como essas normatizações de empresas de mídias sociais são geridas e operacionalizadas. Nesse sentido, o objetivo deste estudo é analisar o panorama das diferentes regulações normativas que recaem sobre o fenômeno do discurso de ódio à luz da perspectiva do pluralismo jurídico. Além disso, a pesquisa investiga se a autorregulação regulada pode ser considerada uma ferramenta estratégica para auxiliar na proteção da liberdade de expressão, e lidar com a complexibilidade das dinâmicas da sociedade global em relação aos discursos de ódio on-line. A metodologia utilizada é de natureza hipotético-dedutiva, com levantamento bibliográfico e documental a respeito dos temas relacionados. Os resultados indicam que a autorregulação regulada pode ser considerada uma ferramenta estratégica para conciliar a dinâmica específica das plataformas digitais de mídias sociais com as regulações do sistema jurídico oficial sobre os temas.
 
 
 Abstract: The global society and new technologies have changed the production, dissemination, and regulation of hate speech, especially those expressed online. On one hand, the advertising policies for transnational social media companies include guidelines for removing hate speech content or similar expressions. From another, the international human rights law has concerns about how these social media company policies are managed and operationalized in relation to the right to freedom of expression. In this sense, the objective of this study is to analyze the panorama of the different normative regulations on hate speech in the light of perspective of legal pluralism. In addition, the study investigates if the regulated self-regulation can be considered a strategic tool to help protect freedom of expression in the complexity of global society dynamics about hate speech online. The methodology used is based on the hypothetical-deductive method, with bibliographic and documentary revision. The results indicate that regulated self-regulation can be considered a strategic tool to conciliate the specific dynamics of social medias platforms and the regulations of the official legal system.
 Keywords: Hate speech; Legal pluralism; Transnational regulations; Social medias; Regulated self-regulation.
 
 
 Recebido em: outubro/2019.
 Aprovado em: agosto/2020.

The Living Law’s Relationship With State Law In The Judge’s Decision: Indonesian Legal Pluralism

The plurality that Indonesia has creates legal pluralism where there are more than one law in force, state law as a legislative and living law product as a law that lives and develops in the community for generations. In the judicial process both laws can be used as a legal source for judges in deciding cases. This research includes legal socio-research which aims to analyze the living law as a legal source of judges and the relationship between state law and the living law in judges’ decisions with a perspective of legal pluralism. Judges can use the living law as a source of law by making legal discoveries. The relation between state law and the living law in a judge’s decision is a synergic, interactive relationship as an effort to overcome the legal gap between law in the books and law in actions with the main goal of realizing a substantive justice decision.

Studies on the Legal Translation from the Perspective of Legal Pluralism

Legal pluralism has made certain theoretical development in the field of law, which has certain enlightenment on the concept and opinion of legal norms, legal system or order to the intercultural communication of legal culture. In addition to linguistics and translation field, the study of legal English should also make use of relevant legal theories to achieve beneficial interdisciplinary research. This paper focuses on the legal pluralism in the field of legal English and how to make innovative use of the theory. Facing the problems of "vacancy" and "dislocation" in Chinese legal translation, how to explore the nature of legal norms or the definition boundaries, and try to seek the enlightenment of the social system theory on legal translation.

Pada Gelahang Marriage: A Legal Pluralism Perspective

Presently, pada gelahang marriages are still controversial within Balinese society in terms of their implementation and the implications. A certain percentage of Balinese approve of pada gelahang marriages, while a certain percentage of people disagree for various reasons. These pros and cons are not tolerated. In fact, the phenomenon of pada gelahang marriages is often confounding to the Hindu community in Bali. Hence, solutions are required. While pada gelahang marriages can be found in many districts and regions in Bali, however, many doubts and problems still arise in their philosophical and juridical foundations. Therefore, research on pada gelahang marriages from the perspective of legal pluralism needs to be done. This research is a qualitative research with a legal sociology approach. Primary data is derived from field data from observations and from the results of interviews of related parties, while secondary data is obtained from literature books using the theory of legal pluralism as a guiding theory in the discussion of research. The results of the study indicate that the pada gelahang marriage has a philosophical foundation, juridical foundation and sociological basis for the creation of values of justice, legal certainty and the benefit of law in the framework of legal pluralism that provides a way to meet Hindu religious law, traditional village customary law and state law to set pada gelahang marriages

Competing claims over access to land in Rwanda: Legal pluralism, power and subjectivities

In sub-Saharan Africa claims over access to land are often studied from the perspective of legal pluralism. This approach allows us to comprehend how, in pluralistic and post-colonial contexts, access to land is governed by interacting and competing normative frameworks, and by power relations legitimising some of those frameworks over others. But which power relations are we referring to? Through the analysis of a case of marshland grabbing in Rwanda, this paper first introduces different concepts from legal anthropology (arena, forum shopping and shopping forums, semi-autonomous social fields, practical norms and institutional bricolage) to analyse claims around land with a legal pluralism approach. Then, the paper points to the limitations of an actor-oriented approach to power relations proposed by the legal pluralism literature in terms of claims over access to land. Finally, we explore how a subjectivist approach to power, focussing on the ways people’s desires are influenced without them being fully aware of it, can enrich our understanding of claims over land access.

A legal pluralism perspective on coastal fisheries governance in two Pacific Island countries

In most coastal communities throughout the South Pacific customary rights to regulate access to vital and scarce resources evolved a long time ago. In many places, these systems have formed the basis of community-based marine management efforts. At the same time, national (fisheries and environmental) legislation regulates various aspects regarding the marine realm. The result is a legal pluralist situation – a circumstance that can affect the governability of coastal fisheries. This study draws on data from Fiji and Solomon Islands to examine how the national marine governance frameworks and customary/community-based marine resource management interact. Fiji has a centralized government and customary governance structures are fairly well defined. Various mechanisms exist that link the national and customary systems. In Solomon Islands customary systems and national governance authority are more dispersed and the latter is partly delegated to provincial governments. Here, partner organizations that engage in local marine management can play a vital role in bridging local and (sub-) national levels. The analysis of the two countries reveals that legal pluralist patterns can play out and be addressed differently. A deeper understanding of the interactions between national and customary marine governance systems can help to design procedures or legal mechanisms which optimize relations across levels and systems, and thus contribute to improving governance outcomes.

The Concept of Living Customary Law: A Critique

The concept of living customary law has been embraced by scholars and judges, especially in Southern Africa. However, its acceptance has not benefitted from a detailed legal theoretical explanation. Indeed, the mainstream conceptualisation of living customary law may be accused of alarming ambiguity, which is evident in scholars’ failure to properly account for its flexibility and emergence. This article critiques this conceptualisation, arguing that a meaningful theoretical engagement with living customary law in postcolonial societies should involve two inter-connected approaches. The first is an interdisciplinary approach to law; the second is the perspective of legal pluralism, which plays a key role in the emergence of living customary law. The article proposes that living customary law is best perceived as a product of people’s adaptation of customs to socioeconomic changes and suggests that this approach is the stepping stone to a comprehensive theory of African law.

The concept of living customary law: a critique

ABSTRACTThe concept of living customary law has been embraced by scholars and judges, especially in southern Africa. However, its acceptance has not benefitted from a detailed legal theoretical explanation. Indeed, the mainstream conceptualisation of living customary law may be accused of alarming ambiguity, which is evident in scholars’ failure to properly account for its flexibility and emergence. This article critiques this conceptualisation, arguing that a meaningful theoretical engagement with living customary law in postcolonial societies should involve two inter-connected approaches. The first is an interdisciplinary approach to law; the second is the perspective of legal pluralism, which plays a key role in the emergence of living customary law. The article proposes that living customary law is best perceived as a product of people's adaptation of customs to socio-economic changes and suggests that this approach is the stepping stone to a comprehensive theory of African law.

The multilevel protection of the right of property in Europe

Within the European legal area, the safeguard of the right to property takes place at the interface between international law, EU law and each national legal system. Each of these laws has its own scope of application and level of protection, which partially differs from those of the others, as well as its own supreme jurisdiction which seeks for itself the final word in the field of human rights law. This complex background raises questions concerning the law applicable to interferences in the relevant rights, as well as the terms of the interaction among legal orders and their respective supreme courts, in a context of dialogue and potential conflict that requires consistent articulation in a system in the interest of legal certainty of the right’s holders. This paper provides an overview of the current constitutional system of protection of the right to property in Europe against interferences caused in its sphere by public authorities, both national (and subnational) or European. To that end, this article considers both the legal pluralism perspective along with the need for a systematic scheme of relations between legal orders.