Multiple Legal Systems Research Articles

The emergence of double entry bookkeeping

AbstractDouble entry account books of medieval Italian merchants and bankers have been extensively used as primary sources by historians of several disciplines interested in business, trade, commodities, markets, sources, prices, interest rates, exchange rates, tariffs, taxes, wages, rents, agents, networks, and many other related topics. The reason for the emergence of such a detailed bookkeeping method is unknown. This paper presents a critical analysis of entries in a ledger of Florentine moneychanger‐bankers from 1211. Comparison with later examples confirms that this ledger portrays a method of bookkeeping embracing double entries that transformed into entity‐wide double entry bookkeeping by the end of the thirteenth century. Following consideration of the socio‐political, economic, legal, and commercial environment of the period and place in which it was used in 1211, the origin of this bookkeeping method is attributed to northern Italian moneychanger‐bankers in the twelfth century. Their bookkeeping method addressed the evidential demands of multiple legal systems relating to use of credit necessitated by a lack of sufficient quality coinage in circulation to support the growing and expanding regional markets of northern Italy.

Overview Pluralism Law: Application Ammatoa Customary Crime Kajang, Bulukumba, South Sulawesi After the New Criminal Code Law

Purpose: The purpose of this study is to examine the implementation of the Ammatoa Kajang customary penal code in Bulukumba, South Sulawesi, and its recognition under Regional Regulation Number 9 of 2015, and to explore the interaction and adjustment between customary law, state criminal law, and religious law within the Ammatoa Kajang Customary Law Community. Method: The research employs empirical legal research methods and qualitative data analysis techniques. Inductive reasoning is utilized to draw conclusions from the gathered data. Result and Conclusion: The study finds that the Ammatoa Kajang Customary Law Community in Bulukumba, South Sulawesi, has criminal law instruments, including criminal articles and customary justice systems. The implementation of customary punishment is dominant within the Kajang customary territory, compared to state crimes and religious law. The coexistence of multiple legal systems leads to intersections and adjustments between them. Implication of the Research: The research highlights the complexity of legal pluralism and the interaction between different legal systems within Indigenous communities like the Ammatoa Kajang Customary Law Community. It underscores the importance of understanding and respecting customary laws alongside state and religious laws. Originality/Value: This study contributes to the literature by providing insights into the implementation of customary penal codes in Indigenous communities, particularly in Bulukumba, South Sulawesi. It sheds light on the dynamics of legal pluralism and the adaptation of legal systems within these communities, offering valuable information for policymakers and legal practitioners.

Legal Pluralism and Indigenous Justice Systems: An Anthropological Analysis


 
 
 Legal pluralism refers to the coexistence of multiple legal systems within a single society, often including both state-based and indigenous or customary justice systems. This article provides an anthropological analysis of legal pluralism and indigenous justice systems, exploring the complexities and implications of their interaction. Drawing on qualitative methods, literature studies, and library research, the paper examines how legal pluralism shapes social norms, power dynamics, and access to justice in diverse cultural contexts. It critically evaluates the challenges and opportunities presented by the recognition and integration of indigenous justice systems into broader legal frameworks, highlighting issues of cultural relativism, human rights, and legal reform. Through an interdisciplinary approach, the article offers insights into the complex dynamics of legal pluralism and indigenous justice, shedding light on the ways in which these systems intersect and influence each other. By examining case studies from various regions and communities, the research underscores the importance of understanding the cultural, historical, and socio- political factors that shape legal pluralism and indigenous justice systems. Ultimately, this analysis contributes to broader discussions on legal diversity, social justice, and the role of anthropology in understanding legal phenomena.
 
 

The demand for extraterritoriality: Religious minorities in nineteenth‐century Egypt

AbstractThe transplantation of European legal systems in the periphery often occurred via semi‐colonial institutions, where Europeans were subject to their own jurisdictions that placed them outside the reach of local courts. In nineteenth‐century Egypt, the option of extraterritoriality was extended to local non‐Muslims. Drawing on Egypt's population censuses in 1848 and 1868, we show that locals did not seek extraterritoriality to place themselves under more efficient jurisdictions. Rather, legal protection mitigated uncertainty about which law would apply to any contractual relationship in an environment where multiple legal systems co‐existed and overlapped.

Big man, bag or ballot box? Upholding legal pluralism through noken as a traditional system of voting in elections in Papua, Indonesia

Indonesia, a diverse and sprawling archipelago nation, is a place where modernity often intersects with tradition, especially in certain parts of the area broadly known to the outside world as Papua. This article analyzes how the Indonesian Constitutional Court has upheld legal pluralism through noken, a traditional voting model used in elections in remote, mountainous parts of Papua in easternmost Indonesia. Legal pluralism, defined as the coexistence of multiple legal systems or norms within a single society, is a concept deeply embedded in the Indonesian legal landscape. The noken system includes a method where tribal chiefs or community leaders vote on behalf of their entire local area, after consensus is reached in a community meeting, with the votes being placed in a traditional woven bag, called a noken. Although the noken system differs from the universal suffrage model applied by the Indonesian Election Law, its constitutionality is guaranteed under a landmark decision handed down by the Indonesian Constitutional Court in 2009. That decision reinforced the validity of legal pluralism in Indonesia, including in elections. However, the Constitutional Court subsequently limited the constitutionality of implementing the noken system as Papuan society gradually transitions to the national electoral system.

Navigating the Metaverse Business and Legal Challenges: Intellectual Property, Privacy, and Jurisdiction

The metaverse, a virtual space where users can interact, create, and transact with digital assets, represents a new frontier in human interaction and commerce. However, the legal landscape of the metaverse is complex and still developing, and it presents several challenges and considerations for intellectual property, privacy, and jurisdiction. This paper aims to provide an overview of the legal challenges associated with the metaverse and to identify potential solutions for addressing them. Applying legislation for intellectual property in the metaverse is a complex issue, as virtual worlds and online communities can involve collecting and sharing large amounts of personal data. A combination of technical, organizational, and legal measures may be necessary to protect intellectual property. Finally, it is still being determined who has jurisdiction in the metaverse, as virtual worlds and online communities can cross international boundaries and involve multiple legal systems. Jurisdiction in the metaverse can refer to the authority of a government or legal system to regulate and enforce laws in virtual environments. The paper concludes by highlighting the need for interdisciplinary approaches to understanding and addressing the legal challenges of the metaverse and the importance of creating specific laws, regulations, and policies that will balance the competing interests of different stakeholders.

Preserving Trust: Strength of Contracts and Abuses of the Spanish Inquisition

Abstract The impacts of the Spanish Inquisition in Sicily were manifold, affecting politics, business, and society. Those closely associated with the Inquisition could exercise the privilegium fori by having legal issues settled in the tribunal’s court by inquisitorial judges. Waiving this privilege could guarantee to other parties to a contract that their agreement could not be overruled by the tribunal. Waiving the right to the privilegium fori was institutionalized as such a guarantee to individuals contracting business in a society disciplined by different types of justice based on multiple legal systems.

Legal Pluralism: A Case Study on Autonomous Socio-Political and Judicial System in Santal Society

The aim of this study is to determine how legal pluralism exists in Santal society and how their self-governing socio-political and judicial system, eminently known as Manjhi-Pargana or Marehor, exercises power over the society exclusively with the coexistence of the national legal system. Legal pluralism is the coexistence of two or multiple legal systems within a specific area. The Santal, one of the largest indigenous tribes of Eastern India, often mentions themselves as HorHopan meaning children of mankind. The Montage-Chelmsford report of 1918 remarked them as backward areas. Around 1935, Santals are recognized as backward tribes in India and are scheduled as tribes. In post-independent era under the Fifth and Sixth schedule of the Constitution, they have been described as people of ‘scheduled areas.’ The Indian Constitution has tried to build up the bridge between the Indian administrative system and the Santal society and has allowed them to enjoy the legal pluralism system.

Doing business under the framework of disorder: illiberal legalism in Indonesia

The rule of law has been widely perceived as an important prerequisite for economic development. However, many cases in postcolonial countries have shown that the two may not always be strongly related. Drawing from the case of Indonesia, we found that economic development can also be accompanied by a distinctly illiberal legal framework. Instead of being obstacles, legal uncertainty and lawlessness are in some ways instrumental in facilitating particular experiences of economic development, constituting the failure of legal reform. This means that illiberal legalism is not an exclusive characteristic of transitional states nor necessarily the result of a cultural feature of developing societies where multiple legal systems coexist. Rather, illiberal legalism is an outcome of a particular development of capitalism in some countries in the Global South where legal institutions work as an instrument of rule. While there is no single model of illiberal legalism, the Indonesian case represents an example where an illiberal politico-legal system coexists with a predominantly rent-seeking economy. The Indonesian case was analysed based on fieldwork conducted in Jakarta from December 2019 to January 2020 and secondary data collected until the time of writing.

Legal complexity and state obligations to the right to food: Towards an analytical shift of progressive realisation

Abstract The article aims to analyse what it means to study state obligations to progressive realization of the right to food from the perspective of legal complexity. This perspective studies law not in isolation, rather in the existence of multiple legal systems at socio-political space of states. The article highlights that employing legal complexity, particularly with its understanding on interlegality and space, may enable one to gain alternative insights in the ways that states measure their commitment to carry their obligations to respect, protect and fulfill the right to food.

Implications of legal pluralism for socio-technical transition studies – scrutinizing the ascendancy of the ring seine fishery in India

This paper considers the contribution of legal pluralism scholarship to the field of socio-technical transition studies. Making use of a case study on the changeover to ring seine fishing in India, it pays particular attention to the implications of legal pluralism – or the co-existence of multiple legal systems in a societal field – for the stability of such transitions. Ring seine fishing developed in particular niches in the 1970s to spread swiftly throughout the subcontinent, dividing the fisher population into fervent protagonists and antagonists. Arguing that socio-technical innovations are often contested and that rival parties make use of alternative legal systems to advance their rights, the paper suggests that so-called regimes function as arenas for deliberating and battling alternative futures in fishing. Rather than creating stability for a particular socio-technical transition, such regimes may actually mask deep socio-legal divides.

The platform workers

In the case determined on 28 November 2018, the French Court of Cassation characterises as a work contract the relationship in place between the Take Eat Easy digital platform and its workers. Entering into a heated argument that assails multiple legal systems, the French judge attributes the status of subordinate workers to platform workers and, consequently, enables them to access a series of rights such as holidays, protections in the matter of social security and guarantees in the event of accidents and unemployment. While on the one hand this legal classification of platform workers may prevent forms of exploitation and under-protection also from the point of view of earnings, nevertheless it should not be overlooked that labour and employment relationship law is sometimes feared by the worker for the loss of autonomy it entails.In this context, however, the compatibility of labour law with the freedom of the employee to choose ways of work performance and time remains to be demonstrated. The application of labour law to platform workers gives this topic the opportunity to demonstrate that it can limit the power of some, entrepreneurs, without reducing the freedom of others, workers.

Epistemic Marginality, Higher and Environmental Education in Colombia

Due to their ecological and cultural wealth and diversity many Latin American countries suffer from the exploitation of natural resources and environmental conflicts. These are furthered by many interconnected factors: divergent world views on land and territory and the competitive interests that stem from them (land and nature as livelihood with symbolic meaning vs. land and its resources as commodity), multiple legal systems (legal pluralism), different social relations and equally divergent strategies and technologies to transform nature. In Colombia among other countries, these factors are largely responsible for the emergence and intensification of the unsustainable resource use and the exploitation of natural resources, for example through an increase of extractive activities such as mining and agricultural practices in the style of the green revolution. Both are privileged in the current conventional and neoliberal model of development, with serious destructive consequences for the natural and cultural environment (symbolic, social, economic, political and technological). Strategies to solve the mentioned problems need a critical reflection on the epistemic foundations that represent diverse perspectives on ecology, development and the environment. We assume that higher and environmental education are important aspects, political agents and protagonists for the enforcement of ideologies and interests, and should therefore be diversified to increase political participation and decrease social inequalities.

The Untapped Potential of Transsystemic Thinking

This paper looks to the past, present and future of the unique pedagogical program that defines McGill’s Faculty of Law. Dubbed the Transsystemic Program, this method of teaching and thinking about law is characterized by an integrated approach to law, where courses blend the teaching of multiple legal traditions and systems, and introduce a hybridity of legal orders into the classroom. The retreat from the focus on the law of a given jurisdiction has had multiple repercussions which are examined in this paper. The thesis proposed in the paper is that this method of thinking about law is increasingly important for three major reasons: 1) the ability it inculcates in jurists to help them deal with novel problems, with which traditional methods of legal development, such as caselaw, are currently wrestling; 2) the agility and creativity it develops in jurists, which can help them implement the novel ways they are currently being called upon to solve legal problems (namely through collaborative solutions crafted by the parties as opposed to adjudicative solutions imposed by the court system); and 3) its increased relevance given the development of a novel trend inviting the cross-fertilization of ideas in contemporary judicial methodology.

Navigating customary law and state fishing legislation to create effective fisheries governance in India

When customary legal systems exist alongside state regulations, individuals can choose between these different frameworks to support their claims to resources. Research suggests that such framework switching to maximize self-interest weakens and challenges resource management. Multiple legal systems are at work in India's fisheries and this study examines how they work to govern conflict over purse-seine fishing in the Sindhudurg district of Maharashtra State. Through participant observations, interviews and state fishing law reviews, this study finds evidence of strong customary legal systems, operating through local cultural practices, to protect common property rights, equitable access, ethical and ecological concerns. In contrast, state legislation appears weak because it addresses issues of local concern, such as equitable access, at a slow pace and over such a large scale as to be absent. Consequently, multiple legal systems in these fisheries do not create a management challenge that follows a predictable path towards resource degradation. Instead informal, customary rules applied alongside formal state legislation interact in complex ways that create opportunities for effective co-management.

Transnational migrant families: navigating marriage, generation and gender in multiple spheres

This special issue seeks to enrich readers’ understandings of the transnational family practices and relations of selected migrant groups of a predominantly Muslim background in a number of Western contexts. It presents theoretically and empirically grounded studies that investigate how these family practices and ties are transnationally shaped, navigated and experienced by different family members. It focuses on two aspects of family life: marriage and the second generation’s aspirations and transnational experiences. Under the first theme, this special issue examines how marriage, migration and kinship interplay in transnationally shaped social fields where multiple legal and normative systems intersect in the lives of migrants. With regards to the second theme, the issue investigates how the children of migrants navigate and experience transnational family norms, ties and practices. Throughout the issue, individual articles shed light on the gendered dimensions of the different family practices and experiences.

National Legal Traditions at Work in the Jurisprudence of the Court of Justice of the European Union†

Numerous scholars have commented on the judicial style of the Court of Justice of the European Union and its non-Herculean judges, generally disapproving of its minimalist reasoning, lack of transparency, and failure to draw openly on comparative legal sources to avoid inconsistencies and weaknesses in its legal reasoning. In a debate where both historians and sociologists have provided new avenues of research, the paucity of comparative lawyers is surprising because European law is a quintessential example of a transnational legal order. Since its inception, European judges, advocates general, and lawyers in Luxembourg have drawn inspiration from the different national legal traditions of the member states through a comparative exegesis of legal rules. In departing from a comparative exegesis or a legal origins approach, this Article shows how the Court’s decisions often manifest influence from multiple legal systems, suggesting that judges, advocates general, and lawyers are influenced by—and have reconciled the contradictions among—national legal traditions and judicial styles that acquire different meanings in the European context. Resorting to national traditions might be a valuable legal strategy for judges and advocates general seeking to advance new legal concepts, incorporate new procedures, or reject changes to EU law. Even though there are inconsistencies and weaknesses in the Court’s jurisprudence, by comparing national legal traditions “at work,” they can be explained as the residue of different legal styles that have come into conflict or tension over time.

The Italian Constitutional Court’s Judgment 238 of 2014 Is Not AnotherKadiCase

This article provides a critical view of Judgment No. 238 of 2014 handed down by the Italian Constitutional Court. By and large the comments presented below pertain to the single issue of the relationship between different legal orders — between the legal orders of two states, or between the legal order of one state and the legal order of international law. The following comments are based on a postulate that law is pluralist in its structure. Law is about officially enforced normativity between human beings. As there are multiple sources of law and multiple enforcers, there are also multiple legal systems. These legal systems may choose to yield to each other, they may seek to coordinate between themselves, but they may also conflict and collide. As a matter of principle, a legal order can proclaim the primacy of another legal order in respect of its own norms, including within the proclaiming legal order itself. However, a legal order cannot proclaim the primacy of its own norms within another legal order. This is why Judgment No. 238 represents what this author terms a ‘category error’ when the ruling seeks to determine the content of international law through a methodology that leans heavily upon the primacy of the Constitution of Italy.

Ruth Bader Ginsburg and the Interaction of Legal Systems

The idea of legal pluralism is that law must always negotiate situations when multiple communities and legal authorities seek to regulate the same act or actor. These overlapping jurisdictional assertions may occur because of federalism, or because disputes often cross territorial borders, or because of complicated inter-jurisdictional arrangements, as with Indian tribes in the United States. In all of these situations, judges must develop strategies for determining how best to balance the competing claims of multiple communities: does the law of one community triumph, does the law of the other community triumph, or is there some hybrid solution available?This Essay surveys some of Justice Ruth Bader Ginsburg’s key writings on the interaction of legal systems, both in law journals and in judicial opinions. This analysis reveals a consistent theme in Ginsburg’s jurisprudence. Across a variety of substantive legal areas, Ginsburg often chooses a path that provides maximum play among the legal systems at issue. Beginning with her earliest scholarly writings, she has tended to oppose doctrines allowing one legal system to block another from adjudicating a dispute, and throughout her later career Ginsburg likewise tends to reject bright-line rules that choose one legal system over another. Instead, she often seems to prefer procedural arrangements that seek accommodation and flexibility in order to ensure that multiple legal systems and a variety of norms and processes are respected. These principles also carry over to Ginsburg’s views about international and transnational law. A committed internationalist, Ginsburg advocates the importance of seeking wisdom from others. This non-dogmatic, deferential approach to plural legal systems characterizes much of her jurisprudence on inter-systemic conflicts, though interestingly such deference does not always apply with as much force in Ginsburg’s opinions concerning tribal communities.By taking stock of Ginsburg’s navigation of legal pluralism in a set of representative writings, we can better theorize her contribution to a jurisprudential approach that seeks ongoing negotiation in an interlocking world of multiple jurisdictions and multiple legal norms. Just as important, this discussion provides an initial case study for thinking more broadly about possible judicial responses to the reality of legal pluralism.

Learning from the Indian Judiciary

Nigeria and India are both former British colonies. They are the largest democracies in Africa and Asia respectively. They practise multiple legal systems. Both are third world countries and they also lean strongly to patriarchy and socio-religious mythology. Their women, constituting nearly half of their population, suffer indignity, frequent invasion of sexual independence as well as humiliations, arising typically from patriarchal mindsets, ancient customary practices, castes, as well as beliefs in certain socio-religious mythologies which diminish the self-worth and dignity of women. On the basis of some of these abuses, both countries are ingloriously perceived as dangerous places for women to live in. Further, Nigeria is often ridiculed for being “notorious for violating international agreements”! This paper highlights certain abuses of the right to dignity of women in Nigeria and India (as a mirror of most African and Asian women) and examines the advances in the legal protection to women’s dignity, especially the inherent constitutional, judicial and legislative advances in India which hopefully may serve as useful lessons for Nigeria and other developing countries. Wherever necessary, reforms have also been suggested for India. It is sincerely hoped that this assessment will influence a shift to a new order in the protection of the right to dignity of women, especially in Nigeria.