Legal Pluralism Research Articles

Construing the transformed property paradigm of South Africa’s water law: new opportunities presented by legal pluralism?

ABSTRACT 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.

Religion-based ‘Personal’ Law, Legal Pluralism and Secularity: A Field View of Adjudication under Muslim Personal Law in India

Abstract The phenomenon of ‘legal pluralism’ in India is conditioned and facilitated by the democratic state’s commitment to protect religious freedom and uphold sociocultural diversity. Community-based adjudicating institutions such as the Darul Qaza (also known as Sharia court) function within this constitutional framework but every citizen also has the right to approach a state court as and when they deem necessary. So far, the discourse on Islam, personal law, and the secular state has revolved around parliamentary debates, judicial activism, and legislative changes where the focus has been on the question of Uniform Civil Code (UCC) and gender justice. The discussion on personal law has rarely paid serious academic attention to the complexities of kinship conflicts embedded in affective as well as economic and legal matrix or more importantly how they are resolved. Drawing on an ethnographic study of the jurisprudential practices of Sharia courts in Uttar Pradesh, India, the paper offers a lens to understand how conflict resolution in family matters takes place in a legal plural landscape ensconced between citizenship rights and community practices. We argue that understanding this process also offers important insights on the shifting meaning of secularism1,2 in contemporary India.

Dynamics of Customary Land Rights and Its Impact on the Agronomic Choices for Small Farmers in the South Kivu province, Eastern DR Congo

In Africa, there is still observed a land related legal plurality despite innovations undertaken since colonial times. In DR Congo, while by law land remains the property of the State, it remains difficult to manage rural lands, ignoring customary practices. In fact, alongside the “modern” land administration, the majority of rural lands are covered by customary contracts. Meanwhile, these contracts have evolved due to different socio-political issues in the DRC and particularly in its eastern part. This study aimed at understanding these changes and thus the impact resulted in agricultural activities, especially the small farmers’ technology choice. The study is based on households’ surveys in the Mbinga Sud zone as well as from other stakeholders on land in the Kalehe territory, South Kivu province, eastern DRC. Through this study, it is noted that customary land contracts have sufficiently evolved due to the population growth, innovations taken in land administration in the country, the wars that occurred in the eastern DR Congo, the attractiveness of rural land by elites and rich businessmen leading to land concentration etc. Given this situation, some practices such as purchase and lease of land were thus developed to cope with weak customary land acquisition mechanisms, the land scarcity and / or land depletion and the fear of land grabbing by the strongest. These changes also have an impact on some agricultural practices, including the fertilization of farms, the choice of crops and varieties to grow as well as many other cultivation techniques. 
 
 Received: 3 June 2021 / Accepted: 4 September 2021 / Published: 5 November 2021

State Law, Dispute Processing, and Legal Pluralism: Unspoken Dialogues from Rural India, By Kalindi Kokal, London: Routledge, 2020, 218 pp.

This book review discusses Kokal’s central points in State Law, Dispute Processing, and Legal Pluralism: Unspoken Dialogues from Rural India. Within the review, Kokal’s arguments of legal pluralism are pointed out and linked back to theories related to this field, such as Ehrlich’s theory of living law and Luhmann’s systems theory. The review explores Kokal’s idea of parallel legal systems being interconnected and operating at the same time. The review further sets forward the importance of Kokal’s work as providing an enlightening perspective to the socio-legal discussion of what is law and if we should conceptualise it in terms of state law or adopt a more bottom-up approach to the issue, as Kokal did in her own work.

Localism in perceiving the problem of adat people in forest area: A critical thinking

Law as a branch of science does not escape development. This is in line with developments in other branches of science, especially social science. Developments in legal science include many things such as themes, writing, methods, to methodologies. One of the developments of legal science that has attracted quite a lot of interest from legal philosophy thinkers is the development of historical methodologies. There have been many debates by legal experts regarding historical methodology. In this paper, we will present the development of the legal-historical methodology, we can find three major schools of historical-legal methodology, namely narratives, structuralism, and structures. The legal-historical approach can be functioned through the historical method through several approaches to legal research objects. Thus, this approach tries to restore the role of humans or actors (human agency) in legal changes that will determine the path of human life in the future. Legal pluralism through historical studies before making local legal products will be an illustration of how interesting the role of humans as a legal-historical study is.

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.

Understanding the Complexity of Water Supply System Governance: A Proposal for a Methodological Framework

The question of how the complexity of water governance may be understood beyond a heuristic concept remains unanswered. In this paper, we propose a Water Governance Complexity Framework to address the complexity of water governance. Through a literature review, rapid surveys, and 79 semi-structured interviews, we propose how this framework may be operationalized using different proxies and by applying it to the case of the water supply system for domestic use in Oaxaca, Mexico. In places such as the rural communities of Oaxaca, where the state plays a partially absent role in the water supply, we found legal pluralism and diverse formal and informal stakeholders in a multi-level structure. At the local level, four modes of governance were identified, resulting from seven institutional change trajectories. These trajectories result from linear (alignment) and non-linear (resistance and adaptation) interactions between local, state, and national institutions over different periods. We provide a pragmatic framework to understand complexity through the organization and historical configurations of water governance that may be applied globally, providing a necessary starting point and solid foundation for the creation of new water policies and law reforms or transitions to the polycentric governance model to ensure the human right to water and sanitation.

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.

Law’s Pluralism: Getting to the Heart of the Rule of Law

This essay makes a theoretical argument for reimagining ‘the rule of law’ in light of ‘legal pluralism’. Building on the work of Desmond Manderson and Roderick Macdonald in particular, the essay considers what it means for law’s pluralism—the differences that animate the everyday life of law—to be the very pulse of its rule. In doing so, the essay seeks to open the frame that has been placed around the rule of law in two ways. On one side: to see beyond the law that is made intelligible through institutionalized modes of expression to the law that is made sensible through the richly expressive media of human culture (thus opening the frame around the ‘law’ that is seen to rule). And on the other side: to see beyond law as a mode of governance to law in the everyday lives of subjects (thus opening the frame around how this law is seen to ‘rule’). The result is a reimagination of the rule of law as a broadly socio-cultural phenomenon rather than a narrowly legal-institutional arrangement. The essay proceeds in two steps, beginning with law’s pluralism before turning to law’s rule.

Relational Social Theories and Legal Pluralism

Recent sociological, anthropological, and psychological research points at a shared problem: Are humans separate and autonomous entities, or must they be seen through the lens of extended, permeable, fractured notions of personhood? This paper discusses some crucial implications for the study of law and legal pluralism. Legal orders may differ in the degrees to which personhood is taken as embedded. At the same time, notions of personhood may also be more or less bounded, with particular fields within legal orders also espousing different degrees of personal autonomy. That depends on how political preferences shape specific issues at the time legislation is enacted. All this has implications for conceptualizing and studying legal pluralism. Examples from Indonesia, Thailand, and the Netherlands bring to light some thorny issues that arise when personhood is viewed through the lens of more or less autonomy and social embeddedness. The examples suggest that a relational approach that accounts for varying degrees to which persons are perceived as extended beings deepens the analysis of plural legal orders.

Genesis and evolution of establishment of a law-based state: the anthropological approach

Introduction. At the end of the twentieth century, globalization of the economy took place: mass migration, introduction of innovations in transport and communication technologies, growth of international finance, etc. This led to critical tension in a variety of spheres: social, economic, political. The purpose of the paper is to study the features of the theories of the right state. The theoretical and methodological basis of the study are modern theories, concepts, hypotheses. Comparative and anthropological analysis is used. The methodological and information basis of the work are scientific works, materials of periodicals, information resources. Results. It is proved that it was the globalization of the world economy significantly influenced the change of theoretical approaches to the definition of a rule of law. The development of legal pluralism in the system of Anglo-American law school is analyzed. The world trends in the complexity of realization of legal pluralism are determined: re-nationalization of the noosphere, changing domains of the right registration of migration and global trade. The peculiarities of the introduction of legal documents-donors and recipient states are considered. Globalization processes require a creative search of asymmetric bonds, which lead to the creation of a social phenomenon – the law. The policy of global legal pluralism shows the deep involvement of neo-liberal legal projects of all actors. Conclusion. The epistemological understanding of the analytical concept of legal pluralism is that any form of legal configuration affects or confuses statehood, regardless of whether this manifestation of cooperation, neglect, merger. The perception of global legal pluralism restored the meaning of the state in the present fragmented and dependent form in complex multiple social systems.

Forging connections, pursuing social justice: a tribute to Maarten Bavinck\u2019s conceptual and institution-building contributions to maritime studies

This paper is written in recognition of the contributions that Maarten Bavinck has made to the field of maritime studies and for the inspiration that he has been for many. It is hard to separate Maarten’s academic and institution-building contributions from his personal qualities, particularly his interest in human relationships. Maarten’s aptitude for building bridges between people, ideas, and institutions has allowed him to connect people in larger knowledge generation and action projects and forge new conceptual bridges. In addition to reflecting shortly on Maarten's key role in establishing the Centre for Maritime Research (MARE) as a institutional anchor in maritime studies, this paper reviews on some of his important and original contributions to four academic domains: legal pluralism, interactive governance, the study of fisheries conflicts, and the environment-development interface. Common threads across these domains include his long-term commitment to meticulous fieldwork in South Asia that grounds his work so firmly, his focus on achieving a more socially just use of marine and coastal resources, and his pragmatic approach that has led to original connections across distinct conceptual and institutional fields.

HARMONISASI HUKUM PENGANGKATAN ANAK DALAM DESA ADAT DI BALI (SUATU KAJIAN PLURALISME HUKUM)

<p><em>Offspring is expected in marriage, in Hinduism the purpose of marriage, namely in the book of Manawa Dharmasastra, mentioned that praja (giving birth to offspring). But in reality in marriage not all the wishes that are expected will be achieved. In Bali marriages that do not have children generally perform the rapture of children. According to Balinese customary law the removal of children is generally a child who is raised from the purusha line (from the male lineage), the purpose of the child's rapture is to continue the offspring, responsibility in the form of rights and obligations. The appointment of children for a Hindu married couple who are Balinese,</em> <em>Then the implementation of the child appointment process should follow the provisions of Hindu law, then Balinese customary law (awig-awig and pararem) that applies in each customary village in addition to also still referring to the process of child adoption procedures that have been regulated in the applicable legislation in Indonesia. Based on this background, the issues discussed can be formulated as follows: 1. How to regulate the shahnya rapture of children according to customary law, Hinduism and National Law. 2. How the process of carrying out the appointment of children in indigenous villages in Bali is studied from legal pluralism. concepts: harmonization of law, adoption of children, pluralism of law, theory using legal pluralism (John Griffiths) and living law theory (Eugene Ehrlich), type of empirical legal research, descriptive nature of research, type of data qualitative and sourced from primary data and secondary data, using methods of data collection, obsenvation, interview, and literature. Determination of informants using non probability sampling, the instrument used by mobile phones, management and qualitative and systematic descriptive analysis. The results of research 1) The regulation of the shahnya child appointment can be seen from 3 legal bases, namely national law, customary law, and religious law. 2) In the process of carrying out the adoption of children in indigenous villages in Bali on the point of view of legal pluralism, namely the combination of three basic legal rules, including national law, customary law (awig-awig and pararem), and religious law (Hindu law), where the three legal bases run simultaneously in the implementation of child adoption in harmony, and balance, so as to create a harmony of law in the implementation of child appointment in indigenous villages in Bali</em></p><p><strong>Keywords</strong>: <em>Harmonization of the Law, Adoption of the Child, Pluralism of Law</em></p><p> </p>

Principles of Asian Contract Law at the Crossroads of Standardization and Legal Pluralism

AbstractThe Principles of Asian Contract Law (PACL) are the most recent addition to the series of uniform laws regarding transnational commercial contracts. This time, the harmonization initiative must address the problem of a great variety of legal traditions, all of which are quite difficult to reconcile. The author focuses on the object and objectives of the PACL by reconsidering the notion of “Asian law” and the alleged cultural neutrality of contract law as a legal discipline. The paper argues that the PACL project lacks clarity. Its ambitious objectives, while apparently intelligible, fail to produce the desired results in their entirety: the Asian regional harmonization of contract law turns out to resemble its occidental forerunners. The study goes beyond the traditional comparative law. It explores the model law (in the making) in a broader context of legal policy, parallel regional private-law-making efforts in the field of contract law as well as in the context of legal globalization.

Legal Literacy for Muslim Converts in Malaysia

Many Muslim converts in Malaysia are not well-informed of their rights and the legal implications of conversion to Islam. Implementing legal pluralism, particularly the different sets of personal laws that apply to Muslims and non-Muslims, sends the converts, their non-Muslim families, and the religious authorities into bitter legal battles whenever an individual converts to Islam. Furthermore, as religious institutions currently offer no legal literacy program, some Muslim converts are unclear regarding the course of action they should take whenever legal issues are involved, especially from the aspects of identity change; civil marriage dissolution; matrimonial properties distribution; child custody and guardianship; determination of child’s and the deceased’s religion; and inheritance and derivative pension distribution. Therefore, this research explores Muslim converts’ perspectives on the need for and development of legal literacy regarding rights and legal implications of conversion to Islam. This study employed in-depth semi-structured interviews with 9 participants who were all Muslim converts. Each interview was transcribed verbatim, and the data were analysed with NVIVO software based on a thematic approach. The research found that all participants unanimously agreed to empower Muslim converts with legal literacy, considering many are not well-informed of the legal implications of conversion to Islam, despite it directly affecting their personal lives, family dynamic, and the multicultural society in Malaysia.

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.

Legal Pluralism in Infrastructural Designs: Alternative Supply Chains in the Moroccan Argan Oil Export

This article explores an emergent assemblage in which material semiotics interacts with legal plurality. It is argued that infrastructural designs constitute specific configurations of such assemblages. While research on infrastructure is proliferating in anthropology and STS, law as a constitutive component in all its forms and manifestations has not yet been sufficiently examined from this perspective. Infrastructures enact the ordering of their constitutive components and develop their own specific legal configurations. They combine components from various legal registers with routinized social practices and the normativity of technologies and materiality. Law in infrastructure is thus in itself inherently plural. The article exemplifies what plural law does to infrastructures and how social and legal relations take on infrastructural properties. These plural technolegal entanglements are examined using a case study of one specific strand within the infrastructure of the multilayered supply chain that brings Moroccan argan oil to the global market. This strand emerged in response to the breakdown of a supply infrastructure that was set up as a model development cooperation project.

MUSLIM PERSONAL LAW IN SOUTH AFRICA: “UNTIL TWO LEGAL SYSTEMS DO US PART OR MEET?”

South Africa is one of the most prominent examples of pluralism providing recognition to traditional customary and religious law. South Africa’s commitment to legal pluralism is an important development because it reflects not only constitutional dedication tomulticulturalism but also a political and functional need for incorporating traditional and religious legal systems. The legal recognition of Muslim Personal Law in South Africa provides an ideal case study on legal pluralism supported by a multicultural constitutional process. Over 15 years of democracy have passed and the draft Muslim Marriages Act has not yet been introduced into legislation. The issue of legal recognition of Muslim Personal Law in South Africa has highlighted the difficulties that arise when balancing the commitment to individual human rights and religious rights. This paper explores the question: What is the future of Muslim Personal Law in South Africa? Since the draft Muslim Marriages Act has not yet been enacted into legislation, it presents an opportunity to re-examine and rethink how to implement religious law effectively in a secular state. This is discussed in the paper by presentingvarious multicultural and pluralistic jurisdictional family law models, which look at the key relationship between civil and religious authorities.

Mobile people in global migration and the working of law: a reflection on the role of legal pluralism

ABSTRACT 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.

Redressing legal pluralism in South Africa’s water law

ABSTRACT During apartheid, South Africa formalized legal pluralism as territorial and institutional segregation that legitimized the white minority’s grab of most land, water and mineral resources. In the homelands on the remaining 13% of the country, allied tribal chiefs controlled second-class customary land and water rights. Under the democratic dispensation, the new Constitution (1996) and National Water Act (1998) aim at redressing this racial discrimination. However, these goals have not been achieved. Building on literature, field research and ongoing policy and legal debates, this paper traces causes for this failure and examines whether and how a different interpretation of statutory law can decolonize past legal pluralism. A main cause of this failure is the continued power by white large-scale water users and their consultants and lawyers. Monopolizing technical and legal knowledge, they fiercely defend apartheid era’s Existing Lawful Uses by 1998 and relatively easily obtain administrative licences for post-1998 water uptake, while claiming excessive monetary values of entitlements to water resources that the state, with tax payers, as custodian holds. In contrast, black water users’ pre-1998 Existing Lawful Uses have not been defined as yet and burdensome licences processes for new water uptake are inaccessible to the many smaller-scale black water users. The paper concludes that, in former homelands, the legal status of living customary water tenure should be elevated and protected. Inclusive facilitated processes can further clarify the “sharing in” of water resources flowing over or under the communities’ territories inside the boundaries of former homelands, also to enable gradual alignment with constitutional rights. However, in “sharing out” these water resources with powerful third parties, including foreign investors, customary water tenure should be fully protected. As a core minimum of highest priority water resource rights across the country, the current Basic Human Needs Reserve should include all water-related constitutional rights, so also water for sufficient food, and be implemented.