Local Legal Practices Research Articles

Pluralism and local law in extraterritorial spaces

AbstractBased on ethnographic research, this article shows how legal orders are being established in spaces where the state law is absent. The case of refugee camps—often discussed as sites of legal limbo and state of exception—seems to be a space of legal pluralism. However, when observing local legal practices, this pluralism is dissolved into a powerful local camp law. This characteristic type of legal order is produced by social camp-specific mechanisms, camp materiality as well as the remaking of pre-camp structures. Therefore, refugee camps should be viewed as extraterritorial spaces with a high degree of legal autonomy that enables and forces residents to create a local camp law. The findings of this study add to the literature of law and order in camps and to the debates on plural configurations in extraterritorial spaces.

Local Judicial Practices in a Quilombola Territory in Marajó, Pará, Brazil

This article analyzes the socio-judicial organization of a Quilombola community in the state of Pará, Brazil. Using a pluralistic judicial systems approach, we seek to understand how Quilombolas define who has local land rights and to what capacity they can use the territory. The analysis was based on ethnographic field research in the community of Bairro Alto, on Marajó island, in Pará state, Brazil. Methods included: participant observation, interviews and questionnaires. The results showed that order in the territory is maintained through local judicial practices constructed during land occupation processes, and later reorganized on the basis of social relationships involving large-scale farmers, ranchers, neighboring Quilombola communities, and the State. Judicial tenets, intrinsic to the community, guide residents’ current land struggles where they are fighting to restore lands expropriated by ranchers that pertain to their original territory. Local legal practices converge with principles of article 68 of the Federal Constitution, making possible the correction of historical injustices related to land struggles in Quilombola communities.

Pluralismo jurídico y el Estado Plurinacional de Bolivia: la “etnización” de la jurisdicción indígena en el ejemplo de los guaraní

The article analyses the recognition of the “indigenous jurisdiction” (“indigenous justice”) in the Plurinational State of Bolivia. In the context of current Latin American reforms on indigenous rights, Bolivia’s relevance is due to the following reasons: (1) Bolivia is considered the Latin American country with the highest proportion of indigenous population. (2) The Bolivian State has recognised indigenous rights in a particularly broad way. (3) In Bolivia, laws have been passed to make these rights effective. In view of this, however, it is argued that the reforms to recognize the indigenous jurisdiction should be analyzed as a contradictory process of “ ethnicization” of indigenous legal practices. While they define this jurisdiction as an expression of ethnicity and culture, they ignore both its socio-economic foundations and the specific characteristics of politically fragmented societies. I will use empirical material to discuss some of the implications of this ethnicization in the example of the Guarani of Bolivia. As will be seen, the legislation on indigenous jurisdiction, on the one hand, is inserted into government projects to codify and structure “cultural authenticity”. On the other hand, its application changes local legal practices and implies ambivalent processes of adaptation on the way to building autonomy.

Writing Law at the Edge of Empire: Evidence from the Qazis of Bharuch (1799–1864)

When judicial department officials at Bombay began to enforce the British East India Company’s (EIC) authority over the production and authentication of certain types of legal documents in the late 1830s,qāẓīs (Islamic judges) like Sayyid Aḥmad Ḥusain of Bharuch, objected to their loss of authority. In petitions sent to the Governor in Council from the edges of empire, these legal intermediaries objected to the Company’s interference with their livelihoods. Although the qazis’ complaints did not yield the desired results, by demonstrating the utility of their record-keeping abilities, qazis were able to retain discrete rights. The effects of these negotiations demonstrate the ways in which the intersections of expanding Company policies and local legal activity contributed to the growth of imperial power. Attending to the particularities of local legal practice, captured in the writings of these qazis, this article highlights the material mechanisms by which the EIC co-opted existing documentary cultures to extend state surveillance over local populations and challenges prevailing histories of legal translation and codification by focusing on the social ramifications of changing legal definitions at the moment such relations were first articulated in writing.

Law, constitutionalism, and world society: Kjaer, Kratochwil, and global (dis)order

This essay provides a critical review of two recent books by Friedrich Kratochwil and Poul Kjaer respectively regarding the status of law and constitutionalism in world society. The one (Kratochwil) writes from within and against the discipline of international relations “as his prism.” The other (Kjaer) writes from within and against a school of sociology of law spanning from Niklas Luhmann to its reconstruction in the work of Gunther Teubner. Both works grapple with the place and role of law in international relations and social ordering in the context of globalization and economic and social crises today. Their books should be viewed as necessary complements to understanding the prospects and limits of transnational legal ordering through international law and functionally differentiated transnational organizations. Today, transnational legal orders extend beyond the domain of nation-states and the society of nation-states and engage with the transnational functional differentiation of society theorized by Kjaer. They involve, ultimately, the study of praxis, emphasized by Kratochwil, including the interaction between transnational, national, and local legal practice. The work of Kratochwil and his emphasis on praxis and that of Kjaer and his focus on functionally differentiated transnational legal orders provide critical components for such analysis. They complement each other in enhancing our understanding of international and transnational legal ordering today in response to ever-new and ongoing global and transnational problems and crises.

Legal Change and Sentencing Norms in the Wake of Booker: The Impact of Time and Place on Drug Trafficking Cases in Federal Court

The federal sentencing guidelines have lost some authoritative force since the U.S. Supreme Court ruled in a series of recent cases that the guidelines are advisory, rather than presumptive, in determining criminal sentences. While these court decisions represent a dramatic legal intervention, sociolegal scholarship suggests that organizational norms are likely to change slowly and less dramatically than the formal law itself. The research reported here looks specifically at the consequences of such legal transformations over time and across locale, using multilevel analysis of U.S. Sentencing Commission sentence outcome data from 1993 to 2009. Our findings suggest that districts vary considerably from each other in sentencing practices over the time period studied, and that there is relative within-district stability of outcomes within districts over time, including in response to the Supreme Court's mandates. We also find that policy change appears to influence the mechanisms by which cases are adjudicated in order to reach normative outcomes. Finally, we find that the relative district-level reliance upon mandatory minimums, which were not directly impacted by the guidelines changes, is an important factor in how drug trafficking cases are adjudicated. We conclude that local legal practices not only diverge in important ways across place, but also become entrenched over time such that top-down legal reform is largely reappropriated and absorbed into locally established practices.

A Theory of Local Common Law

The common law in the United States is conventionally understood as a primarily state-level phenomenon, with slivers of federal common law. Yet local courts — city and county courts as well as lower state courts — articulate common law doctrine and procedural norms that vary at the sub-state level, often markedly. Local courts provide the forum to which most Americans turn to resolve their conflicts, yet scholarship on local courts, and local law, remains remarkably thin. This Article begins to fill this gap, showing for the first time that local courts are actively engaged in constructing “local common law.” This activity, in fact, fits well within the courts’ expertise in creating state common law, which itself demonstrates localist tendencies. The local judicial independence that local common law represents is normatively justifiable on many grounds — it is efficient, respects local norms, and increases flexibility — but it also raises significant concerns. Local common law correlates with disparate treatment of similarly situated individuals on the basis of where they live or their financial means. Local common law also provides inadequate notice, given the thousands of local jurisdictions and the informational burdens of identifying local substantive and procedural common law. And local common law threatens to infringe on state interests. As the burgeoning scholarship on local governance has shown, local autonomy should be heralded — and also should inspire caution. This Article develops a theory of local common law, demonstrating the conditions under which this localist jurisprudence is most likely to develop and highlighting the phenomenon’s normative and practical consequences. This framework not only sheds light on an intriguing and little-studied aspect of local legal practice but also can be extended to a host of other scales at which one might find “common law.”

The Legal Ethos of Late Imperial China: Two Neglected and Rival Legal Specialists

Although Max Weber pointed out the importance of the Literati or Mandarin and their cultural ethos, mainly Confucianism and Taoism, in the maintenance of order of imperial China, his analysis of the carrier strata left some problems to be elaborated. One is the structural differentiation and social mobilization caused by civil service examinations (CSE). The literati who did not pass the CSE to become civil servants, such as the local magistrate, often earned their living as legal and financial advisors of the mandarins. Private secretaries and litigation masters were the most commonly seen occupations, and they became involved in the local legal practice. Along with this trend, the other problem is the cultural ethos, not always shared, within the three roles–local magistrate, private secretary, and litigation master. While they might have a similar experience of Confucianism during their examination life, there existed different professional ethics and religious faiths after their career paths and jobs diverged. As far as these two observations are concerned, this paper attempts to extend Weber's analysis of literati into local legal practice. Using the different texts left respectively by local magistrate, private secretary, and litigation master, I try to compare their different self-images and prejudices against one another. The implication of this paper is double: Weber's insight could be revived again by investigating the structural differentiation within the literati strata, but the ethical analysis indicates a much more complicated ethos than his 'Confucianism and Taoism' theme.

Providing Legal Services to Rural and Regional Small Business: Gaps and Opportunities

This article examines the findings from a survey of 207 regional small businesses and 68 regional lawyers that explored the small business experience of accessing legal services in rural and regional Victoria. In particular, it considers small business expectations of local legal practices, their degree of satisfaction with existing legal services and identifies current and potential demand and supply gaps. By doing so it seeks to determine potential areas in which regional law firms can improve, expand and refine their services in response to the current and emerging demands on them and the communities they serve.

The Limits of Gender Domination: Women, the Law, and Political Crisis in Quito, 1765–1830

The Limits of Gender Domination: Women, the Law, and Political Crisis in Quito, 1765–1830

População carcerária indígena e o direito à diferença: o caso do município de Dourados, MS

Este artigo tem entre seus objetivos lançar uma análise reflexiva sobre a situação dos detentos indígenas no município de Dourados, estado de Mato Grosso do Sul. Destaca-se que o problema teórico se embasa no fato de que, apesar de existirem inúmeros textos legais, pactos, protocolos, declarações e afins, tanto de caráter nacional quanto internacional, para a proteção dos direitos dos povos indígenas, verificam-se constantes violações a esses direitos que fazem parte da universalidade dos direitos humanos. Portanto, surgem questionamentos: Qual será a lacuna que impede a devida implementação dos direitos dos povos indígenas entre a população carcerária indígena no estado do Mato Grosso do Sul? Para a construção deste texto recorremos aos aportes de várias disciplinas, tais como: direito constitucional, penal, internacional e direitos humanos, por estarem intimamente interconectados com a proteção dos direitos dos povos indígenas. O direito aqui abordado será por meio de uma perspectiva interdisciplinar diante das várias áreas do conhecimento, com o intuito de que se possa avançar na compreensão dessa temática, fazendo uma menção especial à antropologia jurídica. O método adotado foi o descritivo-analítico, aplicando-se a análise documental e bibliográfica ao caso concreto. Além do que nos valemos de estudos de casos, conforme nos propõe a etnografia e a prática jurídica local, quando se trata de estudar culturas diversas.

The Cultural Limits of Formalism and Uniformity in the German Penal Code

Despite the fact that certainty and predictability in the law are essential building blocks of the German legal system, the goal of uniformity in the law has not precluded the development of divergent local legal practices. For example, while prosecutors throughout Germany use the same criminal law and procedure playbooks, there are wide discrepancies in how prosecutors and judges apply the law in the search for truth. In fact, despite the fact that the system’s compass is directed to administer justice uniformly across the state, in the search for truth, place matters. At each truth finding stage, from the initial investigation of a reported crime to a case’s final adjudication, unique combinations of political and cultural factors shape the system’s outcomes. In some cases, variations in local legal practice reflect different customary attitudes towards crime embedded in the traditions of local communities. The confluence of incentives and leadership practices specific to particular organizational entities also shape the implementation of the law on the front lines. These differences in local legal practices have produced large variations in case dismissal rates and sentencing practices throughout Germany. While one would expect to see variations in sentencing norms in a country like the United States, where each state has drafted its own codes of criminal law and procedure, it is surprising to observe this variation in practice in a state with a common code. Although evidence of a variance in decision-making practices would be unsurprising to legal realists, these variations in outcomes call into question the ability of the law on the books standing alone to achieve the system’s normative goals of restricting prosecutorial discretion and guaranteeing citizens that they will be treated equally before the law The reason for this discrepancy between the system’s normative aspirations and actual practice is easy to identify. Although prosecutors and judges throughout Germany use the same playbook to investigate, prosecute, and sanction criminal activity, it is the individual Lander that bear the responsibility for administering justice. Cross-cutting prerogatives at the Land, region, and local levels affect how prosecutors interpret and apply the law within the zones of discretion permitted by the law. Thus, the flexibility inherent within the formal structure of the law permits informal norms and local prerogatives to define the face of justice on the front lines. The face of justice is constituted by local legal cultures. This article’s central premise is that outcomes in the German criminal justice system are the product of a series of relational processes in which individual subjectivity, office practices, and informal group norms shape how facts are analyzed and the law is interpreted. Rather than operating in an autonomous and uniform manner, the Federal Codes of Criminal law and Procedure play a constructive role in identifying the range of behaviors that the system defines as worthy of criminal sanction as well as the procedural rules of the game. The rules function as a mere starting point that prosecutors on the front lines of justice will interpret, reshape, and apply to particular sets of facts while they comply with institutional norms and expectations. To understand these differences in system outcomes, we must understand the role that culture and place play in the etiology of criminal justice. More specifically, we must understand how local attitudes, organizational constraints, and prosecutors’ experiences mirror local cultural norms that impact the interpretation and implementation of the law. By situating prosecutorial decision-making in local organizational environments, in this article I show how dynamic institutional processes and practices produce and reproduce the decision-making norms that drive regional variances in practice.

The Birth of a Custom: Nomads, Sharīa Courts and Established Practices in the Tashkent Province, ca. 1868-1919

AbstractIn colonial Central Asia qādīs played a key role in establishing customary legal practices. In adjudicating claims of horse theft, qādīs operating in the Tashkent province under Russian rule had recourse to customary rules of evidence known in the local Kazakh communities. If a qādī ascertained that an animal was not stolen, but had been acquired from a third party by a bone fide purchaser, he routinely used a probative procedure unknown of in the Central Asian judicial manuals of the 19th and early 20th centuries. Based on an examination of sharī'a court registers from the Tashkent province, Bukharan shurūt works and unpublished archival material, I argue that the establishment of Russian rule in the region and the introduction of triennial elections for choosing judges made it necessary for each qādī to meet the demands of the community that had elected him, thereby encouraging him to confer shar'ī legitimacy on local legal practices.

Recursive cosmopolitization: Argentina and the global Human Rights Regime

This paper illustrates how varieties of cosmopolitanism are shaped through a mutually constitutive set of cultural dispositions and institutional practices that emerge at the interstices of global human right norms and local legal practices. Converging pressures of 'cosmopolitan imperatives' and the multiplicity of particularized manifestations are co-evolving in the context of intercrossings during which distinctive cosmopolitanisms are established. This complex relationship of global normative expectations and their local appropriations is elucidated through the dynamic of recursive cosmopolitization. Suggesting that, local problems are resolved with recourse to global prescriptions while local solutions are inscribed in international institutions consolidating the global Human Rights Regime. The Argentinean case carries conceptual and empirical weight as it underscores the recursivity of cosmopolitization by calibrating the tensions of universalism and particularism at the intersection of global, national and regional scales. Argentina is a paradigmatic instantiation for how cosmopolitanism can emanate in the periphery as local problems are globalized. This, in turn, has resulted in the institutionalization of a global Human Rights Regime which exercises normative and political-legal pressures on how states legitimately deal with human rights abuses. It is this cosmopolitan balance, rather than presuppositions of universalistic exogenous pressures or particularistic national exceptions, which is shaping the cultural and political relevance of human rights norms.

Envisioning A Global Legal Culture

This paper envisions a global legal culture. This global legal culture will interact with the national legal cultures and will fundamentally change legal practice, even ostensibly local legal practice. Thus, there is a practical imperative in contemplating this evolving legal culture for all lawyers and legal scholars. US lawyers and US legal scholars face a special urgency because we are so far behind others in recognizing the practical importance of understanding the world's legal cultures. This paper hopes to initiate reflections on the blending of legal cultures in the world arena. The paper suggests two plausible vehicles for the creation of this legal culture: The World Trade Organization's Dispute Settlement Bodies, globalizing commercial legal cultures, and the United Nations' International Court of Justice, globalizing rights. These two tribunals not only suggest plausible global adjudicative systems, if not the final versions, but already provide some real world experience. The paper relies more directly on the experience of two more developed centralizing court systems, the US federal judiciary and the European system comprising the European Union's European Court of Justice (ECJ) and European Court of Human Rights. The European tribunals offer a recent and particularly valuable experience in the merging of national laws into a larger legal culture. In addition, the ECJ demonstrates the progression of open market adjudication into adjudication of nearly all of society's issues. The paper posits a blending of civil law thinking with common law thinking in evolving a global legal culture. This approach is more than transatlantic chauvism: these two legal models have migrated around the world, for good and bad reasons, so that they cover about 70% of the world's population. Because the paper anticipates a large portion of common law readers, it begins the analysis with a treatment of foundational aspects of civil law thinking and how that thinking might translate in the design of the global legal culture. Then the paper focuses on envisioning a global legal culture bringing together common law thinking, particularly the US version, and that of the civil law. The paper attempts to identify the tensions and to suggest possible resolution of these tensions. It notes the additional complication of merging the judicial philosophies of parliamentary and presidential governmental types. Again and with emphasis, the attention to the civil law and common law models support only a potential first generation of a global legal culture. Other legal cultures surely will have impact and the creative capacity of future generations will eventually be crucial. In the end, the paper merely hopes to offer a first stage framework, seeking to lay the groundwork for and encourage thinking about the dimensions of an emerging global legal culture.