Legal Pluralism Research Articles

Law, justice and decoloniality in Petina Gappah’s works: an Ubuntu perspective

ABSTRACT The emergence of law and literature as a transdiscipline has unravelled fascinating insights into the role of literary imagination in raising pertinent jurisprudential questions and envisioning alternative legal universes. The literary front can expand legal literacy, humanise the law, and offer perspectives that are otherwise overlooked in conventional jurisprudence. This article explores Petina Gappah’s representation of law and justice in The Book of Memory (2015) and Rotten Row (2016), focussing on how she innovatively deploys politico-aesthetic means to expose ambiguities, ambivalences and inadequacies in Zimbabwe’s legal system. It contends that Gappah uses the literary medium to underline how the exclusion of customary law from the country’s common law system undermines the delivery of justice. Considering that the texts are alive to the limitations of both customary and common law systems, the study argues for a legal pluralism that harnesses the progressive aspects of the two legal cultures. By drawing on Zimbabwe’s humanist philosophy of Unhu, the study places studied texts within a growing decolonial narrative that critiques the coloniality of legal frameworks in formerly colonised nations.

Islamic commercial law in action: a look into AAOIFI’s Sharīʿah standard on Waqf

Purpose The purpose of this paper is to analyse the Sharīʿah Basis of AAOIFI’s Sharīʿah Standard No. (60) – “Waqf” and gain an insight into the Islamic jurisprudential schools of thought depended on while drafting/issuing the standard. Design/methodology/approach This research uses a qualitative methodology and AAOIFI’s Sharīʿah Standard No. (60) – “Waqf” as a case study. This is referred to as a single/holistic case study design. Findings The findings of this study reveal that while AAOIFI’s Sharīʿah Standard No. (60) – “Waqf” did depend on the Maliki school of fiqh, it certainly referenced other jurisprudential schools of thought, such as Ḥanafī and Shāfiʿī schools of law. This raised a question of legal pluralism and how contemporary Sharīʿah jurisconsults are able to select rulings within particular Islamic jurisprudential schools to fit current needs and for the overall betterment of society. Research limitations/implications This research does not delve into the technical aspects of AAOIFI’s waqf standard (furūʿ al-fiqh), but rather, is limited to understanding the basis of rulings therein and the jurisprudential schools of thought heavily depended on. Originality/value Given that the (revised) AAOIFI waqf standard is relatively new, limited studies have been conducted particularly focusing on the basis of Sharīʿah rulings therein. This research contributes to knowledge by providing one of the starting points to deliberate on this matter.

The Impact of Brexit on the British Constitutional Law

Brexit as a hybrid phenomenon, that is, both legal and political, is the next stage in the debate on the place and role of the European Union (EU). The analysis of the impact of EU legislation on the shape of British constitutional law requires establishing the admissibility of reversing existing constitutional modifications. The author will argue that the age of globalisation and establishing legal network links, the participation of states in supernational organisations can result in irreversible modifications of the scope and meaning of constitutional law. In a simplified way, individual legal systems in a legal pluralism are “open”. The changes taking place are irreversible because they concern the foundation of competences as well as the system position of individual national authorities.

Legal personhood and care for elderly parents in Indonesia

In one of her last articles, K. von Benda-Beckmann explores the notion of embeddedness of persons in their social world and how this relates to their duty of care (2021). She found that there may be different degrees of embeddedness; that some people are not only bounded to their social relations and environment, but also that their selves extended to include their social world. She suggested a differentiated analysis that could account for these differences and expects this to benefit in understanding care relations and, on a practical front, to offer unexpected strategies in dealing with injuries. This paper continues this framework by looking into legal pluralism and the relinquishing of legal personhood of elderly parents across different levels of social organizations, from the decision-making within families and into the courtrooms. What are the reasons for- and how are individuals being declared as no longer having agency or legal personhood (legal competency)? How does this relate to extending proper care to family members and (or in opposition to) others? And in more abstract terms, how is law translated from cognitive conception to become institutionalized or systematized? Through an analysis of court decisions and interviews, this paper demonstrates the relationship between social security and dependency. It studies the complex ways in which individual and collective human agency relates to social security structures and institutions.

Legal pluralism in the Roman Empire. A case study

AbstractYears ago, John Griffiths introduced the concept of ‘legal pluralism’ in comparative legal research. He underlined the significance of ‘the presence in a social field of more than one legal order’ (1986). In the meantime, the phenomenon of legal pluralism and the pluralism of norms is widely discussed in modern societies. Decades later, Dupret seeks to sum up the development of research and ideas about the plurality of legal and social norms in our time (2007). In this paper I look at sources from the ancient world. I raise the question whether the phenomenon of legal pluralism and the plurality of social norms already existed in the Roman Empire. Traditionally, Roman law is considered as a systematized, and sophisticated system of rules. Approaching the topic from the aspect of everyday practice, one gets a different picture. A closer look at concrete legal disputes and at the reaction of leading lawyers of Rome to problems of citizens who lived in the provinces convince us of the co-existence of different legal conceptions in the Empire.

The concept of legal dualism and its overcoming in contemporary studies of the Russian Empire

The productive interdisciplinary exchange with legal anthropology and the “law and society” paradigm has significantly contributed to the formation of the “legal turn” in historical studies of empires. This “turn” has intensified the study of legal pluralism, the competition and mutual influence among various types of imperial jurisdictions (state, corporate, confessional, ethnic, estate-based, regional, communal, etc.), and the significance of law and judicial institutions in managing diversity and integrating imperial spaces. Additionally, it explores the role of judicial and legal institutions in reinforcing the status and identity of imperial communities and in shaping their interactions with the state. This article, in light of the new interdisciplinary synthesis, discusses one of the oldest and most enduring concepts in the legal-historical sphere of the Russian Empire — the model of “legal dualism”. Formed in the 19th century, this concept remains influential in historiography. It posits the coexistence and sharp distinction between two legal realms: on one hand, a unified realm of modern statutory law and corresponding institutions that regulate the lives of the empire's elite; and on the other hand, an ethnically and locally variable realm of particularistic “customary law” and associated conflict resolution practices prevalent among the heterogeneous population of the imperial center and periphery. According to this concept, the establishment of new courts modeled on European systems during the post-reform period exacerbated the legal and behavioral divide, disrupting pre-existing elements of pre-reform particularistic inclusion of ethnic and class communities. However, recent research has critiqued and revised the “legal dualism” concept in both the pre-reform and post-reform periods. Analyzing this historiographical dynamic has enabled the identification of the most promising avenues for further research on the legal-historical aspects of Russia from the 18th to the early 20th centuries, developing a more realistic depiction of the interaction between the state and various local, regional, class-based, ethnic, and confessional communities within the empire.

Law and Public Policy in the Development of Tourism Villages in Bali (Between Legal Politics and Legal Pluralism)

The legal policy on tourism in Bali is fundamentally planned from a legal aspect as cultural tourism. The underlying thought is that Bali's legal politics of tourism is built on the values of Hindu religion, customs, local wisdom, and upholding the philosophy of Tri Hita Karana. Bali is culturally, religiously, naturally, and humanly unique, with the foundation of its social-religious organization being the customary village (desa adat). Based on this central idea, the legal issues explored are: (1) How is the construction of legal politics in public policy for tourism development (especially in Tourism Villages) in Bali? (2) What are the legal implications for the tourism villages developed in relation to community welfare? The socio-legal research method is interdisciplinary and "hybrid," which will explain the relationship between law and society in shaping public policy related to tourism villages. The research findings indicate that the legal construction in public policy for the development of tourism villages in Bali is built on a concept of law that is culturally meaningful. On one hand, it is constructed based on state law, and on the other hand, it can be managed by Bali's customary law, such as awig-awig, pararem, and customary village regulations (Peraturan Desa adat). The legal implications for customary villages managing tourism villages in Bali are ambiguous in legal choices, particularly in implementation within customary village areas. However, regardless of the legal choice by the customary villages in Bali, the legal goals of utility, certainty, and justice can serve as benchmarks for forming a law that brings happiness.

Jurisdictional imaginaries as contested geographies: A metaphor analysis of reference cases about Canada's Impact Assessment Act

Jurisdictional imaginaries, defined as constitutive and productive fictions with real world effects, serve a distinct purpose in the context of debates over Canadian environmental impact assessment. Metaphors are one way in which jurisdictional imaginaries are maintained and contested. In creating associations between entities, metaphors mark storytelling about jurisdiction with the imprints of history and place, and shape thinking about arrangements of authority within contested geographies. In Canadian reference cases (questions posed by governments to courts to seek advice on legislation), the judiciary settle conflicts over jurisdiction through case-by-case assessments based on interpretations of the Canadian constitution in which debates about federalism loom large. Our analysis of two reference cases on Canada's Impact Assessment Act (IAA) evidenced disagreements in court decisions about the scope and significance of provincial and federal authority, which hinged on metaphors of separation and conflict, and drew on two competing imaginaries: a classical imaginary which envisions dualist, hierarchical, and exclusionary orders of authority between provincial and federal governments; and a modern imaginary which emphasizes jurisdictional overlap and flexibility in constitutional interpretation. Reading these divergent imaginaries against a backdrop of legal pluralism and ongoing settler colonialism, we argue that both imaginaries normalize, rather than unsettle, colonial political logics predicated on the replacement of Indigenous sovereignty by European legal orders. The IAA reference cases, far from mere technical assessments of the constitutionality of legislation, highlight political questions about what kind of society Canada is and could become.

Book Review: Mukaddam F Muslim Women between Community and Individual Rights: Legal Pluralism and Marriage in South Africa (Springer Nature Switzerland 2024)

This review examines the book by Fatima Mudakkam titled Muslim Women between Community and Individual Rights: Legal pluralism and Marriage Rights in South Africa (2024). The book explores the pluralistic nature of South Africa’s national legal system, focusing on the experiences of Muslim women governed by Muslim Personal Law. It provides a critical analysis of how this legal pluralism affects Muslim marriages and the civil rights of women within these marriages. The book is an essential contribution to the ongoing discourse on gender justice and legal pluralism in South Africa.

Religious Blasphemy, Jungle Justice, and Legal Pluralism in Northern Nigeria: A Comparative Analysis of the Nigerian 1999 Constitution and Sharia Law

Religious Blasphemy, Jungle Justice, and Legal Pluralism in Northern Nigeria: A Comparative Analysis of the Nigerian 1999 Constitution and Sharia Law

Building a Law-Abiding Culture in Indonesia: Challenges and Implementation Strategies in the Reform Era

This article explores the challenges and implementation strategies involved in building a law-abiding culture in Indonesia, particularly in the context of the Reform Era. The study utilizes qualitative methods, including an extensive literature review and library research, to examine the complexities of establishing a strong legal culture in a country that has undergone significant political and social transformations. The research identifies key challenges such as the historical legacy of legal pluralism, corruption within legal institutions, and varying levels of legal awareness among the population. Additionally, the article discusses the strategies employed by the Indonesian government to promote legal compliance, including legal education, reforms in law enforcement, and public awareness campaigns. The findings highlight the importance of a multifaceted approach that includes both top-down reforms and bottom-up initiatives to foster a culture of lawfulness. The article concludes by emphasizing the need for continued efforts to address systemic issues within the legal framework and to ensure the effective implementation of laws that reflect the principles of justice and equality. The study provides valuable insights for policymakers, legal scholars, and practitioners who are engaged in the ongoing process of legal reform in Indonesia.

Beyond the Preamble: Legislating the right to self-determination in a NSW Human Rights Act

This article examines the inclusion of the right to self-determination in existing models of state and territory human rights legislation and proposes its inclusion in a future human rights act in New South Wales (NSW), to advance the rights of First Peoples in the criminal justice system. I explore how this would provide a mechanism for state restraint and a legal framework for prioritising self-determined First Nations critique, research and service delivery in carceral systems. The role of courts in holding the state to account and developing legal pluralism in rights jurisprudence is also discussed.

Failure to care despite legal personhood for the environment

This paper explores two concepts of recent interest to Keebet von Benda-Beckmann, including notions of personhood as expressed in the law and diverse felt obligations of care. As with Keebet, we are interested in how both interrelate with legal pluralism. Both concepts enabled us to build on relational themes that have been gaining traction in social theories, and to ask about the extent to which legal orders differ in their approach to embedded legal personhood. In this relational context, the perception of care as a natural course of action (2021, 3) might or might not be extended to non-human entities and beings. We extend Keebet’s exploration of care and legal personhood by comparing two cases where international efforts have been directed towards better environmental care, the argan forests of Morocco and the open ocean as part of the “Blue Economy”.

Inheriting the royals: royal chartered bodies in Ireland after 1922

The establishment of the Irish Free State (Saorstát Éireann) in 1922 did not occur on a blank canvas. A slew of administrative bodies and agencies with pre-1922 origins now found themselves under a new jurisdiction, still familiar in some respects but alien in others. The Irish State Administration Database indicates that the functions performed by these pre-1922 bodies included the delivery of public services and regulatory oversight. The resilience of pre-1922 bodies arguably ensured a greater degree of day-to-day administrative continuity and stability after 1922 than may otherwise have been the case.This article focuses on a particular subset of these pre-1922 entities – royal chartered bodies – carried into Saorstát Éireann and beyond. Of special interest are the peculiar legal mechanisms through which these bodies were sustained in an altered constitutional landscape. The discontinuation of a pre-1922 royal prerogative to grant and amend royal charters presented legal conundrums for royal chartered bodies and the state. This was mitigated through a mixture of tailored public and private legislation of the Oireachtas. These dynamics are interrogated through the lenses of temporality and legal pluralism.

Реформирование гражданского процесса в Израиле: между общим правом и собственными подходами

The article examines the reasons why Anglo-American law has had an impact on Israeli legislation. Although Israel’s legislature abandoned English law as a source of law in 1980, the influence of Anglo-American procedural law continues to be noticeable, particularly in the new Rules of Civil Procedure of 2018. Additionally, there are certain changes that are unique to the Israeli legal system, such as legal pluralism that is evident in the operation of parallel jurisdictions. The article also discusses the abandonment of certain procedures in Israel’s legal system.

Fiqh Kankilo and the Purification System of the Butonese People: A Socio-Legal Historical Perspective of Islamic Law and Legal Pluralism

Fiqh Kankilo and the Purification System of the Butonese People: A Socio-Legal Historical Perspective of Islamic Law and Legal Pluralism

Forum-shopping in criminal law: power and pragmatism in gayo, Aceh, Indonesia

In one of her earliest publications Keebet von Benda-Beckmann examined how villagers in West Sumatra engaged strategically in forum shopping and with shopping forums under conditions of legal pluralism. The insights in her article how this influenced the power constellation in the village have inspired many researchers to look at the interplay between justice seekers and forums for dispute resolution in a plural legal landscape, and how in this process authority is produced. Our article builds on Keebet’s work, looking at forum shopping in cases of sexual offences in Gayo (Aceh). We discuss how the post-conflict reform of criminal law in Aceh has led to a state-sanctioned condition of legal pluralism consisting of national law, customary (adat) law and Aceh jinayat (Acehnese Islamic criminal law). Village officials, human rights activists, police and prosecutors channel crimes into the legal system that best suits their goals – sometimes in conformity with, sometimes in violation of the formal rules of jurisdiction. The result is a new balance of power between these actors, in which – surprisingly – adat officials and police have gained most from the introduction of Aceh jinayat. However, the introduction of state legal pluralism has not produced competition between the constitutent legal systems, but rather expanded the potential for more differentiated responses to sexual offences in a society characterized by profoundly conservative values.

Legal Pluralism in South Africa: The Implications of Co-Existing Customary and Civil Marriages

In South Africa marriage was a key site of colonial legal pluralism. Family formation and marriage were central to upholding boundaries between colonial and local normative orders. Under the umbrella of a single set of fundamental constitutional rights, post-apartheid law nevertheless retains separate statutes, precedents and legal rules for different cultural and religious marriages. This can lead to legal gaps and uncertainty when people enter into simultaneous or coexisting marriages, especially when the same couple concludes a customary marriage together with a civil marriage. This article examines the current configuration and implications of legal pluralism in South Africa by analsysing the interaction between coexisting customary and civil marriages between the same spouses. It identifies three themes in the relationship between these marriages: a hierarchy which continues to privilege civil law over other legal and normative systems; second, failure on the part of the legislature to clarify confusing aspects of the interaction between these forms of marriage and, finally, gaps which neither applicable legal system addresses satisfactorily. It also illustrates the political failure of the legislature, almost thirty years after the advent of democracy, decisively to address the socio-economic problems created by pluralism and the inadequate regulation of customary marriages.

FENOMENA PEMBERIAN MAHAR UNIK PADA MASYARAKAT MUSLIM SASAK DI TINJAU DARI PLURALISME HUKUM

This research is motivated by the unique phenomenon of giving dowry to the Sasak Muslim community, namely in the form of dowry giving grilled chicken, sandels, shrouds, google endsense. Looking at the phenomenon that occurs, it is necessary to look at the concept of giving dowry in Islamic law, and customary law, and then how the legitimacy of giving a unique dowry in Islamic law and customary law is justified. This research is a type of library research (literature study) which is qualitative in nature with a normative-empirical approach. The arguments presented in this study use legal pluralism analysis. Legal pluralism, according to MB Hooker, is a situation characterized by the coexistence of two or more legal systems that interact with each other in the process of legal modernization in a country. Legal pluralism is neutral in nature, meaning that in its interaction there are no forces that dominate each other or are superior to the other. In the case of giving unique dowry, it can be seen that there are no laws that dominate each other, but what is a factor in the legitimacy of the unique dowry is the willingness of women to receive the dowry in accordance with Islamic law or customary law that applies to the Sasak tribal community.

Inheritance legal pluralism and gender justice: a court room study in Indonesia

One of the topics in the legendary legacy of legal pluralism from Keebet Benda-Beckmann was the issue of inheritance law. The study of inheritance is a window into the workings of legal pluralism, where contestation, negotiation among diverse laws takes place, which then gives birth to the new laws. This research reflects Keebet’s theoretical legacy, although her research was on matrilineal societies in West Sumatra, mine on bilateral societies in West Java. This study examines the position of women in inheritance cases through the eyes of judges as seen in court verdicts and empirical data. It illustrates how judges can think progressively and innovate the law through their decisions, but on the other hand they can’t because they are too limited by the black letter of the law. It also demonstrates that legal pluralism involves more than just selecting between Islamic or state inheritance laws and encompasses various methods of conflict resolution. Nevertheless, disputes regarding inheritance justice for women are greatly influenced by economic, social, cultural, and political factors that range from the familial and communal levels to the State