Parallel Legal Systems Research Articles

Traditional Authorities, Norm Collisions, and Communal Conflict

I examine the effect of the policing capacity of traditional authorities (TAs) on communal conflict. TAs of ethnic groups use distinct customary laws and dispute-resolution mechanisms. Their coexistence with national norms and those of other TAs results in parallel legal systems. I argue that this generates uncertainties about norms and vertical and horizontal jurisdictional conflict, which increases the risk of communal conflict. However, this effect can be dampened by state-level rules on norm collisions, which lead to a system of co-production and less violence. To investigate these claims, I use global georeferenced expert survey data on customary policing of TAs and data measuring their constitutional regulation. I show that customary policing can have an adverse effect on communal peace. More subgroups of the larger ethnic group with policing institutions increase the risk of conflict. State-level regulation moderates these relationships. Additional evidence suggests that policing increases communal conflict through vertical jurisdictional conflict but otherwise achieves its intended purpose of providing security.

La mediación dentro de la justicia indígena

In accordance with the Constitution in the Republic of Ecuador, indigenous communities, peoples and nationalities are empowered to exercise jurisdictional functions in their territorial scope, in accordance with their ancestral traditions and their own law. Currently, the authorities of these communities can resolve the various internal controversies in accordance with their own laws and policies, as long as they do not violate the Constitution or internationally recognized human rights. The State must ensure that all public agencies and institutions adhere to the rulings of the indigenous jurisdiction; with the exception of criminal matters, which have a differentiated treatment in ordinary justice. With this approach, we recognize that the State is not the only source of justice, being applicable a parallel legal system that respects the norms of the native communities. Thus, conflict resolution alternatives such as mediation emerge as a viable method to resolve disputes. Due to his success in protecting the cultural norms and traditions of indigenous communities, this figure serves as an illustrative model of legal diversity. This paper delves into the value of mediation as a means to achieve legal pluralism that respects indigenous uses and customs.

ОПЕРАТИВНО-РОЗЫСКНОЕ ОБЕСПЕЧЕНИЕ ПРОТИВОДЕЙСТВИЯ ОРГАНИЗОВАННОЙ ПРЕСТУПНОСТИ

The article reveals the issue of operational and investigative support of countering organized crime by law enforcement agencies. The analysis of statistics of crimes committed by organized criminal groups and criminal communities is carried out. Organized crime is the most dangerous form of crime that infringes on all spheres of modern society, including political, economic, social and legal. The problem of organized crime is gradually turning into one of the largest global problems of our time, which is rooted in the desire of criminal structures to legalize their own activities or build a parallel legal system of public administration, thus turning the state as a whole into its own corporate structure. The concept of organized crime goes beyond the purely criminal law science and reaches such planes of social relations as public administration, economic activity, and the like. It is in this that the greatest risks and threats are seen, since under such conditions, organized crime turns into an integral element of everyday legal reality, which makes it impossible to fight it. The main features and characteristics of organized crime are considered. The objects of interest of criminal groups, allowing to legalize the proceeds of crime, are determined, the types of operational-search counteraction are considered. The directions for improving the work efficiency in the activities of law enforcement agencies in countering organized crime have been identified.

Designing Aviation Taxes Within the EU

This Article focuses on environmental taxes, specifically aviation taxes, and the challenges and limitations EU law imposes on individual EU Member States when they attempt to enforce both national and international environmental policy goals. Both the former Irish and the recently implemented Swedish aviation tax are used as comparative examples when chartering and discussing what (legal) obstacles are posed by EU law and, subsequently, the options available to individual Member States when attempting to design and implement environmental taxes. Further, common political obstacles are addressed in the Swedish and Irish case studies to further enhance the understanding of why and how aviation taxes are designed the way they generally are. A holistic approach, resulting in the inclusion of not only tax law and environmental law elements but also EU free movement law and EU state aid law in parallel legal systems (at domestic level and EU level) is applied to provide a more coherent and transparent outlineof the studied matter. The Article affords, through a tax technical study combined with environmental and economic theories, a conceptual framework on how an aviation tax may be designed to fulfil environmental goals and generate tax revenues while still complying with EU law. The Article comprises differing methods in calculating CO2 emission offsetting. Calculating factual taxation of individual flightsoffers the reader further understanding of the polluter-pays principle and present (in)efficiency of aviation taxes at Member State level. Despite the Article only covering aviation taxes applied within the EU, these discussions are of great relevance to scholars outside of the EU considering the increasing interest in climate law and the potential of environmental taxes when pursuing climate goals at both national and international levels. Additionally, policy discussions will only become more relevant over time due to ongoing environmental discussions and the implementation and enforcement of the UN’s sustainability goals.

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.

The Case of Piruani: Contested Justice, Legal Pluralism, and Indigeneity in Highland Bolivia

AbstractThe 2009 Bolivian constitution included provisions that establish a radical form of de jure legal pluralism by creating a parallel legal system that gives full recognition to the nonstate legal orders and forms of conflict resolution of Indigenous communities. This article examines how a land dispute within a Bolivian highland Indigenous community resulted in a disagreement between different local forms of political and judicial authority. This turned on the question of which authorities had the right to judge the case, the nature of justice and indigeneity, and the legal pluralism enshrined in the constitution. Analysis of this situation illustrates not only the internal tensions and paradoxical effects of this juridical project but also the potential limitations of any attempt to formally recognize legal plurality. [legal pluralism, Indigenous justice, usos y costumbres, plurinational state, Movimiento al Socialismo]

Designing Aviation Taxes Within the EU – Chartering Ongoing Challenges and Proposing Future Solutions

This paper was presented at the Levin College of Law´s Tax Colloquium in April 2020. It focuses on environmental taxes, specifically aviation taxes, and the challenges and limitations EU law imposes on individual EU Member States when they attempt to enforce both national and international environmental policy goals. Both the former Irish- and the recently implemented Swedish aviation tax are used as comparative examples when chartering and discussing what (legal) obstacles are posed by EU law and, subsequently, the options available to individual Member States when attempting to design and implement environmental taxes. Further, common political obstacles are addressed in the Swedish and Irish case studies to further enhance the understanding of why and how aviation taxes are designed the way they generally are. A holistic approach, resulting in the inclusion of not only tax law and environmental law elements but also EU free movement law and EU state aid law in parallel legal systems (at domestic level and EU level) is applied in order to provide a more coherent and transparent outline of the studied matter. The article affords, through a tax technical study combined with environmental and economic theories, a conceptual framework on how an aviation tax may be designed to fulfil environmental goals and generate tax revenues while still complying with EU law. The paper comprises differing methods in calculating CO2 emission offsetting, based upon not only a selection of aviation taxes but also the distance travelled combined with the Swedish carbon tax alternatively the EU emission trading scheme. Calculating factual taxation of individual flights offers the reader further understanding of the polluter pays principle and present (in)efficiency of aviation taxes at Member State level. Despite the paper only covering aviation taxes applied within the EU, these discussions are of great relevance to scholars outside of the EU as well, as all airlines and passengers will be subject to them when travelling within the EU. Additionally, policy discussions such as these will only become more relevant over time due to ongoing environmental discussions and the implementation and enforcement of the UNs sustainability goals.

Shari‘a in Sydney and New York: A Perspective from Professionals and Leaders Dealing with Islamic Law

ABSTRACT This article explores how Shari‘a is conceptualized and experienced by 50 Muslim legal professionals and leaders in Sydney and New York. It analyses qualitative data on issues concerning the experience of Muslims with Shari‘a, on how this can be improved in both countries and on how compatible Shari‘a is with their respective legal systems. While the Muslim community should not be homogenized in either of these two global cities, the analysis discovers strong similarities with regard to dealing with a parallel legal system and implementing a more formal process. The New York sample expresses stronger support for a more community-based approach, while the focus on Shari‘a compliant business is stronger among the Australian participants. With regard to gender issues, the large majority of the respondents offer a strong reflective approach to dealing with these issues.

Enforcement of EU Values as a Political Endeavour: Constitutional Pluralism and Value Homogeneity in Times of Persistent Challenges to the Rule of Law

The EU’s foundational values democracy, human rights and rule of law are shared by the Member States and rooted in their constitutional traditions. Constitutional pluralism recognises the legitimacy of parallel legal systems. Pluralism however cannot provide answers when it comes to the design and enforcement of foundational values, which require homogeneous acceptance throughout the Union. Deficiencies affect the entire Union legal order. The argument of national identity in Art. 4(2) TEU must not be construed as a means to undermine the application of the law, but is an EU-law internal counterbalancing instrument. This is of relevance because, when addressing systemic deficiencies, the enforcement under Art. 7 TEU may interfere with effectively internal matters of Member States. In order to protect common values the EU has to avail itself of safeguarding competences under Union law, even in areas outside of application of EU law stricto sensu (the acquis). Using the example of the rule of law, it can be demonstrated that value protection is a predominantly political task that calls for political solutions together with effective rule of law dialogues, and needs EU institutions to act as facilitators and guardians of the treaties by making use of the enforcement instruments under Art. 7 TEU and Art. 258 TFEU. In parallel, a culture of values could be fostered by an evidence-based monitoring within a new instrument of “CVM for all” (Cooperation and Verification Mechanism).

Шариатские суды в Великобритании: параллельная правовая система или религиозный арбитраж?

The article deals with the question of the status of Sharia courts in the United Kingdom, acting as a religious arbitration. In total, 85 Sharia courts (councils) with jurisdiction to handle family conflicts and divorces (divorces account for approximately 90%) are currently officially functioning in this country. These courts (councils) are not part of the British legal system and are not subject to judicial review. Some Sharia councils, contrary to English law, discriminate on the basis of sex. The lack of real protection on the part of state structures puts women who are victims of domestic violence at particular disadvantage. Unlike women of other confessions in the UK, a significant part of Muslim women who are in a religious marriage can be divorced only by religious ceremony. Concluding a Sharia marriage in the UK, a Muslim woman receives an Islamic marriage certificate that includes many conditions, but does not contain an item on the right to divorce. Unlike Britain in Muslim countries, such as, for example, Tunisia, Sharia courts for divorce are no longer used, and spouses have equal rights in divorce. The absence of legal provisions of the rights of women participating in the proceedings by agreement of the parties, and numerous instances of discrimination have led to investigations at the level of the British government and the parliament. It was concluded that in the country formed a parallel legal system that violates human rights.

From Undang-undang Melaka to federal constitution: the dynamics of multicultural Malaysia.

BackgroundMalaysia is a multicultural state comprising three main races: Malays, Chinese and Indians. The three main religions are Islam, Buddhism and Hinduism. Other religions such as Sikhism and Christianity are also practised. Muslims are the majority comprising 67 % of the population.MethodsThis paper is qualitative in nature. It applies historical comparative method in presenting its data. The Undang-undang Melaka (Malacca Laws) was obtained from the monograph available at National Library of Malaysia under the name of Hukum Kanun Melaka. Analysis was done on selected examples from this document.ResultThis paper highlights that had there been no introduction to a common law system, Malaysia would have remained with its traditional laws influenced by Islam and its local customs as evident from Undang-undang Melaka (Malacca laws). The Undang-undang Melaka was practised from 1422 to 1444 and the law of the country was developed to accommodate the introduction of civil law during the colonial period.DiscussionOne of the unique aspects of multicultural Malaysia is the fact that it has a parallel legal system: sharia and civil law. This paper examines histo-cultural development of the Islamic law as practised in pre-independent Malaysia, as well as the coexistence between these two laws after the independence of Malaya in 1957.ConclusionsThis paper concludes that Islamic law in Malaysia is confined to Muslim family matters, while civil law covers all other matters.

Managed Informality: Regulating Street Vendors in Bangkok

The article focuses on the relationship between street vendors and local authorities in Bangkok. We examine the goals, the means, and the effects of everyday regulation of street vending. We document how the district administration produces and maintains informality by creating a parallel set of rules where street vendors enjoy negligible rents and little competition. We provide detailed empirical evidence on earnings, rents, fines, and rules regarding commercial real estate. The district administration's policy of “managed informality” results in a situation where more established informal vendors control less established ones. We hypothesize in the conclusion that the district administration's parallel legal system adjusts to the population's expectations in a political system where the law has little popular support.

Gypsy law – the non-state normative orders of Roma: scholarly debates and the Scandinavian knowledge chasm

The Rom legal culture and applied normative orders vary between different Rom communities, and are often divided into two main practices, i.e. tribunals and private solutions. The main form of tribunals is the so-called Kris, while the foremost private solution is the feud. In practice, Gypsy law can be seen as pragmatic, where any means suitable is used to resolve a conflict or to address an unwanted incident. The aims of this paper are to give an updated overview of the research on Gypsy law, to outline the main debates in the area, and to identify some important gaps in order to deepen the knowledge on Gypsy law and the relations between Rom communities and mainstream societies. The overview identifies and elaborates on three main trends in the research on Gypsy law: (1) anthropology of Rom life and culture; (2) Gypsy law legal studies; and (3) contemporary issues in Gypsy law studies. Furthermore, the paper discusses what we know and can know about Scandinavian Gypsy law. The literature on Gypsy law in Scandinavia is almost non-existent. Legal pluralism researchers have not paid much attention neither to Gypsy law in general nor in relation to the vast amount of research on non-state law in post-colonial situations and in countries of the South. The non-state parallel legal system of Gypsy law, existing in the midst of the Western world, is getting scarce attention. It is hence of importance to direct attention to, and provide an overview of knowledge about, this non-state legal system.

Clash of Shari’ā with National Law

This paper undertakes a praxiological study (practice based approach) of Muslim “religious tribunals”, Shari’ā Councils and Muslim Arbitration Tribunals (MATs) not part of the UK law. Some Western scholars maintain that traditional shari’ā law is discriminatory on issues of gender equality, in particular, with reference to Muslim family law. It is important to examine the shift from the “true narratives” of the Qur’ānic Model (QM) to the “living practice”; co-construction of “true narratives” with the QM.This paper argues that discrimination can be eliminated through the QM by adopting the interpretive/hermeneutical approach. Praxiological/practice based approach (PBA) in this study has identified that discrimination does exist in the “living practice” of traditional shari’ā law.This study treats the Qur’ān-Sunnā as complementary sources to each other because this has important implications with reference to “wife beating” verse in the Qur’ān (Q.4:34). PBA enabled to identify the specifics of discrimination that occur. Thesecular-religious debate has been politically influenced, for example, inequality issue for women seeking advice from RTs. BaronessCox has introduced the Arbitration and Mediation (Equality) Services Bill (HL) 2014-15 that went through its first reading on 11 June 2014. The Bill addresses gender discrimination within Muslim religious tribunals and the parallel legal system.

As Easy as Stealing Sweets from a Child? Investigating Land Grabbing from Orphans in Pallisa, Rural Eastern Uganda

The purpose of this study was to increase the understanding of land grabbing from orphans by investigating the institutions governing orphans’ land rights. The questions that guided the research dealt with the formal and informal institutions governing orphans’ land rights, the major factors affecting orphans’ land rights, and what constitutes a legitimate claim on land for orphans. The field work took place in the District of Pallisa in rural Eastern Uganda from October through December 2009. The empirical material was collected through multiple methods. Qualitative interviews were the main method and were supplemented with focus group discussions, observations, and relevant documents. The major findings of the study were that due to a parallel legal system, in which the customary rule is dominant, orphans’ land rights are negotiable and arbitrary. The parallel legal systems provide the local elite with immense power in land management, a power that is often used abusively to grab land from orphans. Without a natural authority protecting orphans’ land rights traditional power relations shape the negotiations over land, leaving especially the young, uneducated, and female orphan without land. Instead those already in power connive with each other to access land on behalf of orphans.

Adjudication of Islamic banking and finance cases in the civil courts of Malaysia

The adjudication of Islamic banking and finance (IBF) laws in Malaysia is unique given the Malaysian parallel legal systems. Although IBF is a branch of Islamic law, the civil court has the appropriate jurisdiction to decide the cases. This is due to the fact that banking falls under the items 7 and 8 of the Federal List of the Federal Constitution. The trails of decided cases showed that there are problems in resolving IBF cases in the civil courts. This paper aims to discuss the adjudication of Islamic Banking in the civil courts. The authors employed the method of legal documents analysis in analyzing the IBF cases. The analysis highlighted four obstacles in adjudicating IBF in civil courts, namely; inadequacy of existing legal framework, complications of legal documentation, competency of civil court judges and expert evidence. It also analysed the four approaches adopted by the civil courts in deciding IBF cases; the ‘parties to be bound by their agreement’, the ‘strict adherence to civil law’, the ‘justice and equitable’ and the ‘looking into the substance’.

The Terror of Natural Right: Republicanism, the Cult of Nature, and the French Revolution (review)

Reviewed by: The Terror of Natural Right: Republicanism, the Cult of Nature, and the French Revolution Cory Browning Dan Edelstein. The Terror of Natural Right: Republicanism, the Cult of Nature, and the French Revolution. Chicago and London: Chicago University Press, 2009. Pp. xi + 337. $40. Dan Edelstein’s The Terror of Natural Right is both a rigorous archival account of the Terror and a study of our times. I would call it a Foucauldian genealogy of the present, but Edelstein himself aligns his methodology with Keith Baker, J. G. A. Pocock, and Hannah Arendt. Calling on literature, political theory, legal history, mythology, and close readings of original sources, he provides a major reinterpretation of the Terror that challenges fundamental tenets of revisionist history and recent Marxist “bottom-up” studies of revolutionary violence. Furthermore, in drawing parallels between the Terror and the War on Terror, he sheds light on current international affairs, challenges recent theories of the state of exception, and demonstrates that the Revolution, far from over, can still captivate and enlighten us as never before. To begin, Edelstein traces the category of the enemy of the human race through theology, colonialism, piracy, and the law of nations to the king’s trial. Keenly following the development of this category and its relation to natural right, Edelstein advances his central thesis that “[i]t was under the aegis of natural right, not the general will, that the Montagnards brought ‘terror’ into the Republic” (259). Although he supports this thesis mainly through discourse analysis, Edelstein does offer some methodological innovations: reading political theories as narrative and analyzing myth in political thought. Combining these innovations, part one establishes the history of “natural republicanism,” defined as the attempt to govern by natural laws alone and thus curtail or eschew constitutional law. “Imaginary republics” and the fictional “possible worlds” of Fénelon, Montesquieu, and Rousseau combine with the myth of the golden age in orientalist studies, voyages of discovery, and Physiocracy to forge a “cultural and legal imagination” that sets the stage for the Revolution. With the stage set, part two delivers the bulk of the argumentative strength and creativity. Here the “ready made models, arguments and justifications” of natural republicanism take action in the trials, constitutional projects, festivals, and institutions of the Revolution. Drawing largely on Saint-Just, Edelstein argues that the Jacobins combined political opportunism with sincere political ideology in a struggle to found “the Republic of Nature.” Rather than a “dérapage” of revolutionary ideals, he insists that natural right continued to play the key role leading up to and during the Terror, particularly in expanding the hors-la-loi category. Postulating a Jacobin “Republic-to-Come,” he reads the Cult of Supreme Being as a “metaphysical panopticon” meant to enforce the laws of nature in the conscience, and the Law of 22 Prairial as a shift away from Terror toward a sustainable judicial system consistent with Jacobin ideology. In conclusion, the Terror does not emerge as a state of exception, as one might view it following Schmitt or Agamben. More dangerous, it, like the War on Terror, establishes a parallel legal system that threatens to erode civil liberty through a fastidious legality. Certainly not all will welcome this mingling of history, theory, and imagination, but all interested in the Revolution, rights discourse, and contemporary international politics should take stock of it. [End Page 144] Cory Browning Cornell University Copyright © 2010 L’Esprit Créateur

The Rule of Law in Kosovo: Concepts, Challenges and Realities

In Kosovo, more than anywhere else in Europe, the Rule of Law is in the making. As one of the world’s youngest democracies, a Kosovo-specific concept of the Rule of Law is still at the beginning to take shape. Similar to other post-conflict settings, a gap remains between the Rule of Law de jure and the Rule of Law in praxi.The formalistic idea of the Rule of Law on paper is not yet what it is in reality.Since declaring independence in February 2008, Kosovo has been growing as a state. However, currently only recognized by 71 states (November 2010), the country lingers in a legal and political limbo. Recently in July 2010, the International Court of Justice ruled on the legality of Kosovo's secession. Stabilized by a NATO-led international peacekeeping force (KFOR) and an international EU law mission (EULEX), the republic is struggling with common matters of governance in transition: difficulties to access justice, corruption, parallel legal systems, and a slow judiciary.This paper captures the evolution of the Rule of Law in Kosovo and defines its current status. Moreover, the objective is to contribute to a better understanding of the “Rule of Law” in general, particularly in regard to specific normative implications in various legal systems; here, the focus is on the Balkans.

The Law of the Dubai International Financial Centre: Common Law Oasis or Mirage Within the UAE?

AbstractDespite the increasing trends towards a reassertion of Shari'a within the Arab world, the Emirate of Dubai has recently created a world-class financial hub, the Dubai International Financial Centre (DIFC). DIFC is under an independent, common law-based, parallel legal system (outside the Dubai and the UAE federal legal systems) which is backed by an independent judicial system. However, there are still certain hindrances, such as the financial dependence of the DIFC courts and the harmful requirement (controlled by the Dubai judge) of "appropriate for enforcement" of DIFC decisions seeking outside enforcement.Furthermore, although DIFC legislation allows the application of a Shari'a-based national legislation (except for any provision contrary to any mandatory rule of a law in force in the DIFC), problems arise regarding the application of a-national Shari'a principles, mainly in Islamic Finance. Will common law oriented DIFC courts refer to recent British cases? In any case, it must be stated that even in the very unlikely situation of a challenge against DIFC laws on grounds of unconstitutionality (for being contrary to Art. 7), the pro-commercial approach of the Constitutional Chamber of the UAE Supreme Court, leads to conclude that no DIFC law would be strike down.

Cultural Studies Encounters Legal Pluralism: Certain Objects of Order, Law and Culture

AbstractCultural studies provides an interesting conceptual perspective on legal pluralism for a number of reasons. Rather than asking ontological questions about parallel legal systems, cultural studies frameworks encourage questions about the meanings which might be generated for “law” at the plural sites of intersection of regulatory phenomena: legal meanings must defer to questions about how a subject is positioned, subjected. Narratives of culture, broadly conceived, also allow us to notice the diverse, fluid and often contradictory patterns of regulation and discipline created when there are politically powerful beliefs in the singularity of order and certainty. The efforts in Anglophone cultures to create an “English” heritage safe from various threatening others is echoed in jurisprudential specifications of the criteria of legality.