Plural Legal Systems Research Articles

Gender-Sensitive Approaches In Women's Involvement In Constitution-Making And Peacebuilding Processes In South Sudan

Constitutions play a pivotal role in shaping the political, economic, and social equality of both women and men. As the supreme law, they establish the state's framework, allocate political authority, delineate governance systems, dictate leadership selection, and safeguard fundamental rights. Constitutional reform presents a unique chance to reshape governance structures by enshrining women's rights, incorporating inclusive language, and establishing institutions that ensure and advance gender equality. In South Sudan, akin to many African nations, a pluralistic legal system merges customary practices, religious laws, common law, and statutory regulations. While customary and religious laws hold recognition, they remain unwritten, flexible, and often linked to ethnic concerns, varying across communities. Rooted in generations of tradition, these laws seek to uphold positive community values and norms. However, they frequently disadvantage women, despite the presence of traditional justice mechanisms that some argue are more accessible, cost-effective, prompt, and culturally apt. These alternative justice systems are deeply entrenched in patriarchal norms, often excluding women from comprehensive rights, including equitable participation in governance and decision-making bodies. Drawing lessons from post-conflict nations, this paper contends that the transformative potential of constitutions materializes when women capitalize on constitution reform opportunities to redefine the constitutional community's ambit, compelling the state to honor, safeguard, and fulfill women's rights

Re-Evaluation of The Judicial System: Competence and Role of Religious Courts in Blasphemy Cases

Cases of blasphemy in Indonesia are a problem that still occurs frequently, such as the interpretation of verses in the holy book for personal and/or political gain. The main challenge in blasphemy legal cases is that the jurisdiction is under the District Court, but this raises questions about the role of the Religious Courts that already exist in Indonesia regarding blasphemy cases. Supposedly, religious courts should have proper knowledge and correct interpretation for cases related to religion, however, due to Indonesia's democratic and plural legal system, blasphemy cases fall under criminal law and are considered criminal cases, not civil cases, which makes them outside the jurisdiction of religious courts in terms of judgments. In comparison, Saudi Arabia has a form of religious court in its implementation, but the existence of the court is due to a national idea based on Sharia Law and not based on plural democracy, thus signifying major differences in national identity and basis, which leads to differences in decision-making bodies and law enforcers.

THE CHALLENGES OF ISLAMIC CRIMINAL LAW IMPLEMENTATION IN ACEH SHARIAH COURT

This paper explores the reconstruction of Islamic criminal law within the Aceh Shariah Court, highlighting its historical, socio-cultural, and legal context. Aceh, recognized for its special autonomy and predominantly Muslim population, has enacted various qanuns (regional Islamic laws) since 2001 to implement Islamic Sharia, encompassing both civil and criminal law. The study employs non doctrinal research to analyze the framework and challenges of implementing Islamic criminal law in Aceh. The legal substance, including Law No. 11 of 2006 and various qanuns, facilitates public participation and supports the integration of Islamic principles into regional governance. The research discusses the pluralistic legal system in Aceh, incorporating state law, customary law, and Islamic law, and examines the role of the Sharia Court in adjudicating cases under Islamic law. The study identifies two main issues: the enforceability of the qanun concerning non-Muslims and human rights, and the proportionality of punishments. Despite criticisms, the qanuns aim to enhance justice and prosperity in Aceh, reflecting the strong religious and cultural identity of the region. The paper concludes by emphasizing the necessity of ongoing adaptation and refinement in the application of Islamic criminal law to address societal needs and uphold human rights.

Why a good law is not always good enough: a global review of restrictions to supportive laws for sexual and reproductive health and rights

Laws and regulations provide the framework for implementing sexual and reproductive health and rights (SRHR)-related policies, programmes and services. They can promote the fulfilment of health and human rights; however,...

Legal identity in limbo: humanitarian challenges and responses to civil documentation issued by de facto authorities in Northwest Syria

ABSTRACT Since the conflict began in 2011, access to civil documentation in Syria has been severely curtailed due to the loss, destruction, and confiscation of documents along with the limited or discontinued function of civil registries, particularly in non-government-controlled areas. The rise of de facto authorities and the issuance of their own civil documentation has posed additional challenges, contributing to a pluralistic legal system. The frequency of changes in territorial control in Northwest Syria has meant that an unknown number of actors have issued various forms of documentation – often as a means of asserting their legitimacy and control – leaving Syrians with a myriad of documents with varying levels of acceptance. This humanitarian and policy-orientated piece examines the state of legal identity under the Syrian Salvation Government and Syrian Interim Government in Northwest Syria. Humanitarian organizations face growing challenges in implementing ‘Do No Harm’ responses where the right to civil documentation could be co-opted for political or other objectives. Additionally, the short, medium, and long-term consequences of possessing or obtaining de facto documentation are impossible to predict when the future for Northwest Syria remains unknown. Against this backdrop, this piece highlights the importance of examining this issue from the perspectives of affected civil populations and identifying how humanitarian actors can best provide assistance and guidance in a principled and protection-focused approach.

Troubled waters : reviewing legal pluralism at the interface of caste and the access to water in India

This essay argues that access to water, and the right to water in India is subject to legal pluralism in India: the plurality of state law and the normative order of the caste system in India. While the Constitution of India prohibits discrimination against or exploitation of the Scheduled Castes, society is also subject to a parallel set of social rules set forth by caste hierarchies. The Dalit community has been historically subject to exploitation and limited access to resources, with the use of religious and social sanction, this essay focuses particularly on the right to water, which is an essential part of the constitutional right to the environment is subject to plural legal systems, of state law and caste-based normative orders. Ethnographic social science research, particularly in anthropology and sociology has produced extensive findings on how the caste system limits access to natural resources and particularly water, owing to ideas of purity and impurity associated with water use, and the status of water as a common public good. This essay explores how lawyers must consider legal pluralities when understanding access and management of natural resources. The essay analyses John Griffiths’ idea of legal pluralism which describes a scenario in which not all law is administered by the State or its institutions, and there exists de facto law, beyond the boundaries of the State. This paper expands Griffiths’ model of pluralism to explain how the right to water is subject to both caste order and state law and how the lived reality of Dalits when accessing water is subject to a constant pluralism.

A New Legal Framework for the “Ownership” of a Deceased Person in a Legally Plural Ghana

Any funeral in Ghana is a family business. Families hold elaborate ceremonies to mark the death of their deceased family members. Strict fulfilment of the duty to bury is said to ensure the seamless transition of the deceased from this life to the next. In Ghana, the extended family of the deceased has custody and control over the dead body for the purpose of burial. However, the heterogeneous nature of modern Ghanaian society, the rise of the nuclear family, and modern socio-legal values have increased disputes over the dead body, often between the extended family and the nuclear family. Against the background of Ghana’s pluralistic legal system, we investigate the context in which such disputes take place and how the legal system responds. We draw on field interviews to critically compare the living customary law with Ghanaian common law, judicial customary law, statutory law, and the experience of other jurisdictions. We note that the customary law principle of being owned by one’s extended family is well established, usually overriding other systems of law. Nonetheless, we argue, drawing on the experiences of other African countries, that the nuclear family should be given greater opportunities to participate in decisions relating to the burial of the deceased. We propose a framework that reflects the needs and aspirations of both kinds of families.

When do women win in legally plural systems? Evidence from Ghana and Senegal

AbstractAfrica's plural legal systems are often doubly bad for women: reinforcing patriarchal threads in indigenous practices while layering male-dominated Anglo-European laws atop. While these systems generally work to their detriment, women are sometimes able to take advantage of them. Under what conditions are women able to ‘win’ in Africa's plural legal systems? I examine women's interactions with the plural colonial court systems in the Gold Coast and Senegal. Based on an analysis of original court records in each country, I argue that women are more likely to win in plural legal systems in areas of operational ambiguity where applicable legal principles are contradictory. Leveraging this ambiguity enabled women in the Gold Coast and Senegal to win rights around inheritance and divorce, respectively. These victories were codified post-independence, though women face social pressures against exercising them.

Judicial discretion: problematizing the ascertainment and application of customary law by formal courts and relevant theories (Nigeria and South Africa)

Conceptualizing legal education in Africa according to western legal thought and theories has been a major setback in the manner that indigenous African law has been theorized in legal scholarship. This affects how it has been interpreted and applied by courts in its exercise of judicial discretion which is a field that is yet to be adequately explored with respect to the application of indigenous law by courts in a pluralistic legal system. This paper presents, based on empirical data, a theoretical basis for the utilization of judicial discretion in the ascertainment and application of indigenous law by formal courts in Nigeria and South Africa and offers an analysis using relevant legal doctrines of centralism, realism and pluralism. At the core of the analysis is Hart’s extrapolation of the conception of law and the place of judicial discretion and how indigenous law fits into it despite its exclusion by Hart.

Adat Court in Indonesia’s Judiciary System: A Socio-Legal Inquiry

This article addresses the question of how the constitution drafters considered the existence of a plural legal system in Indonesia, especially the adat judicial system. There are several sociological arguments for constitutional pluralism, empirical and normative claims, and the necessity of formalizing adat court. Constitutional pluralism identifies the phenomenon of a plurality of constitutional sources and claims of final authority which create a context for potential constitutional conflicts that are not hierarchically regulated. Hence, this article argues that ‘constitutionalizing’ does not mean ‘formalization’, or even ‘structuring the adat court under the state formal judicial system’. This should be critically assessed not merely on recognition, but also on protection, especially to exercise fundamental values of social significance. It considers the concepts of ‘self-recognition based adat court’ and ‘regional recognition based adat court’ as important in defending universal values to respect and protect the rights of the people, including their traditional systems. By doing so, this article aims to contribute to the studies on the importance of the plural legal system in plural societies like Indonesia.

Contesting Juridical Authority: Sharia, Marriage, and Morality in Habsburg Bosnia and Herzegovina

AbstractFollowing the Habsburg occupation of Bosnia, the newly built administration integrated much of the existing plural Ottoman legal system into its own. The ensuing transformation of Sharia courts saw them given “special jurisdiction” in the areas of Muslim marriage and divorce, which, in turn, fueled several legal challenges, such as how (if at all) they could prosecute “runaway” wives und unlawful marriages. This article analyzes how such legal challenges were endemic to the “translation” and transposing of Ottoman concepts of law, marriage, and morality within the new administrative setting on the basis of Sharia court records. In examining these debates, contested on the one side by Bosnian qadis and on the other by Habsburg officials, it becomes clear that Islamic and Ottoman legal understandings were reinterpreted strategically to support different views as to how an Islamic judiciary could be best integrated into the (predominantly Christian) Habsburg monarchy.

O‘ZBEKISTON RESPUBLIKASIDA XALQARO XUSUSIY HUQUQNI ISLOH QILIS

In 2019, the Republic of Uzbekistan adopted the Concept for Improving Civil Legislation, in accordance with which the country began the process of modernizing the current Civil Code. As part of this process, the reform of Uzbek private international law is also being carried out. Uzbek specialists have developed the Draft Section VI of the Civil Code “Application of the norms of private international law (conflict of laws) to private law relations”, which provides for a radical revision of the rules for choosing the law applicable to private relations related to foreign legal order. In the article, using comparative-legal, dialectical and formal-logical methods, the most significant changes that are planned to be made to Chapter 62 «General Provisions» are analyzed. Among the most important novels, one can note: 1) establishing the priority of a unified substantive (direct) method of regulating relations in the sphere of PIL; 2) the formulation of an independent norm «Basic Principles of Private International Law»; 3) positioning the autonomy of the will of the parties as an independent principle of PIL; 4) expanding the possibility of extraterritorial application of foreign law in Uzbekistan or in its individual territories; 5) correction of the public policy clause; 6) development of a subsidiary reference model for the application of the law of a country with a plurality of legal systems. All the changes proposed in the Project fundamentally change the current Uzbek regulation. If these changes are adopted, Uzbekistan will receive a legally qualified, doctrinally sound and up-to-date PIL legislation. At the same time, there are a number of issues that have not been reflected in the Draft or have not undergone the necessary innovations. In particular, it seems necessary: 1) to clarify the concept of “foreign element”; 2) to develop and legally consolidate a glossary of basic concepts and terms; 3) to update the regulation of such institutions as “legal qualification”, “establishment of the content of foreign law”, “backward reference”; 4) to develop independent normative regulation of adaptation problems, mobile conflict, preliminary and secondary conflict issues. The article concludes that, in general, the conflict regulation model proposed by Uzbek specialists takes into account the main modern trends in the development of PIL and contains quite flexible, but at the same time quite definite and predictable rules for choosing the applicable law, corresponding to the legitimate expectations of the parties.

THE PRACTICE OF WALIMAT AL-‘URS: Competing Sharia and Tradition in Aceh

<p><strong>Abstract:</strong> One of the most heated debate in a diverse and plural legal system in such as Indonesia, is the issue of harmonization of sharia and tradition. This paper is an attempt to study the extent to which the harmonization of Islamic law and tradition in Aceh. Using a qualitative approach, this paper focuses on walimat al-‘urs tradition. The author argues that differences between tradition and shari’a may become an avenue for new configuration that would be preserved as a uniting factor in the foreseeable future Indonesia. The data was obtained from in-depth interviews with important local figures. The research shows that sharia through ‘urf theoretical framework could not accepts the richness of indigenous entities.</p><p><strong>Keywords:</strong> <em>walimat al-‘urs</em>, <em>‘urf</em>, sharia, Aceh</p>

Reform of Private International Law in the Republic Uzbekistan

In 2019, the Concept of Improving Civil Legislation was adopted in the Republic of Uzbekistan, according to which the process of modernization of the current Civil Code has begun. As part of this process, the reform of Private International Law is also being carried out. Developed a draft of Section VI of the Civil Code of the Republic of Uzbekistan “Application of the norms of Private International Law (conflict of laws norms) to private law relations”, which provides for a radical revision of the rules for choosing the law applicable to private relations related to foreign legal order. The article analyzes the most significant changes that are planned to be made to Chapter 62 “General Provisions” using comparative legal, dialectical and formal-logical methods. Among the most important novelties are: 1) establishing the priority of a unified substantive (direct) method of regulating relations in the sphere of Private International Law; 2) formulation of an independent norm “The basic principles of Private International Law”; 3) positioning the autonomy of will of the parties as an independent principle of Private International Law; 4) expansion of the possibility of extraterritorial application of foreign law in Uzbekistan or in its separate territories; 5) correction of the public policy clause; 6) development of a model of subsidiary reference for the application of the law of a country with a plurality of legal systems. All the changes proposed in the Draft radically transform the current regulation. If these changes are adopted, Uzbekistan will receive legally qualified, doctrinally sound and relevant legislation on Private International Law. At the same time, there are a number of issues that have not been reflected in the Draft or have not undergone the necessary innovations. In particular, it seems necessary: 1) to clarify the concept of “foreign element”; 2) to develop and legally consolidate a glossary of basic concepts and terms; 3) to update the regulation of such institutions as “legal qualification”, “establishment of the content of foreign law”, “renvoi”; 4) to elaborate independent normative regulation of adaptation problems, mobile conflict, preliminary and secondary conflict issues. The article concludes that, in general, the model of conflict of laws regulation proposed takes into account the main current trends in the development of Private International Law and contains quite flexible, but at the same time quite definite and predictable rules for choosing the applicable law that correspond to the legitimate expectations of the parties.

Typological models of legal regulation of matrimonial relations through the prism of comparative approach in private law

This article outlines a number of typological models of legal regulation of matrimonial relations using the method of comparative-legal analysis. Leaning on the formal-legal approach, analysis is conducted on certain typological models. First and foremost, the author explores the model that is based on inclusion of the norms of family law in the Civil Code. It features two basic modifications that take roots in the reference European codifications of civil law: French (institutional) and German (pandect). Another typological model under review relies on coexistence of the two separate codes within the national legal system: civil and family. The typological distinctness characterizes the model that is based on inclusion of the norms of special statutes dedicated to family law in the Single Civil Code (for example, PRC). The development of family law may take the path of adoption of separate legislative acts (UK, USA). In some instances, federative nature of the country may also affect the development of the system of sources of family law. The countries with pluralistic legal system, either have exclusive jurisdiction over matters of family law (for example, Israel), or stimulate the processes of its modernization through adoption of a special law (for example, India). The author believes that the formal-legal criterion of typology should be correlated with the substantive aspect of the matter. From this perspective, the author highlight the two trends in regulation of matrimonial relations: the first is associated with strengthening of public law principles, while the second is associated with private law principles. The typological model depends on the dynamics of their ratio.

Gender and access to justice in Burundi: conflicting norms, gaps in the law and the role of judges

Like many other African countries, Burundi has a pluralistic legal system, where on the one hand written laws coexist with uncodified customary laws and on the other hand informal justice institutions are still used in the day-to-day conflict resolution by many Burundians despite a provision in the Constitution that makes the mission of rendering justice the monopoly of the state courts. Both before the state courts and out-of-court forums for adjudicating disputes and justice mechanisms, women face challenges that limit their access to justice, compared to men. This paper argues three main points. First, that while there is a relationship between women’s limited access to justice and the pluralistic nature of Burundi’s legal system, the challenges faced by women in accessing justice should not be excessively associated with legal pluralism, thus hiding the impact of extra-legal factors. Second, that while Burundi’s constitutional framework is progressive with respect to gender equality and most laws are gender neutral, some shortcomings still exist in the overall legal framework, thus limiting the potential of the constitutional legal framework with respect to gender equality. Third, that by increasing gender diversity in the judiciary, and with much more positive activism and training, Burundian judges could ensure equal access to justice for women by using the potential of existing national and international legal frameworks.

Position of Adopted Children in Leaving Appointment Parent's Assets According To Islamic Law, Civil Law & Custom Law

In Islam, adoption is known as tabann, Wahbah al-Zuhaily gives the understanding that adoption (tabann) is the taking of a child by someone to a child whose lineage is clear and then the child is assigned to him. One of the supporting factors for the realization of a household in accordance with this Islamic concept is property which is Zinatu al-Hayat, both movable and immovable property, even including securities and intellectual rights Inheritance rights that apply to adopted children to property adoptive parents in Islamic law, civil law, and customary law. Method This approach uses a secondary approach that is normative law or literature writing with a statutory approach. Indonesia adheres to a plural legal system, which means that Indonesia adheres to more than one legal system. This also makes inheritance law divided into three legal systems, namely Western Law, Islamic Law, and Customary Law. In general, the notion of inheritance law is a legal rule that regulates the transfer of property rights, which is the overall rights and obligations of the person who inherits to his heirs and determines who is entitled to receive it. Indonesia adheres to several systems of inheritance law including the civil law system, Islamic law and customary law. In civil law, adopted children still get inheritance rights from their adoptive parents. Then in customary law, the inheritance system used is dependent on the custom where the adopted child lives.

Protecting Land Rights of Indigenous Peoples in Africa: The Land Rights of Abuja Peoples of Nigeria and Ogiek Peoples of Kenya in Comparative Perspective

Abstract This paper examines the treatment of customary land rights of indigenous peoples by State law in Nigeria and Kenya. Nigeria is chosen as a case study and Kenya has on-going legal reforms in relation to customary land rights. Both Kenya and Nigeria have plural legal systems. The objective is to demonstrate how Kenya has responded to the challenges of protecting customary land rights and how other African States, like Nigeria, should respond to similar challenges.

Between Tradition and Modernity: Customary Structures as Agents in Local Governance in Ghana

Local governance in many developing countries attracts several stakeholders who maintain a lot of significance in improving well-being, service delivery, accountability, and responsibility. The plural legal system where government structures exist side by side with customary structures in many countries south of the Sahara provides an opportunity to explore relationships, partnerships, and interactions among them. With ethnographic evidence from Kpandai District in Northern Ghana, this article explores customary structures not only as cultural and religious leaders with authority embedded in tradition but also as major stakeholders in local governance. The article argues that historical factors, coupled with limited government presence at the local levels, have positioned customary structures as an accessible channel to the people in the district. Customary structures have forged informal relationships and partnerships with government structures to bring the government closer to the people and to access basic services.

Dynamics of Reasonableness and Fairness in a Pluralistic Legal System: Perspectives from Adat, Islamic and Civil Inheritance Law

Reasonableness and fairness are keystones of law. They are implemented broadly and important doctrine for civil law. However, the open nature of reasonableness and fairness allow various interpretations, influenced by the legal system, legal tradition, jurisprudence or measured on a case per case basis. Indonesia recognizes more than one kind of a legal system, making it a legal pluralist State. This article aims to describe the dynamics of the reasonableness and fairness principle within a pluralistic legal system. Indonesian inheritance laws use three different legal systems: Adat, Islam, and civil law, each provides distinctive perspectives of reasonableness and fairness. These differences may lead to a clash of interpretation or it may leave a wide room of discretion for the judges. Court judgments are analyzed to examine the implementation of such dynamics in practice. Finally, the outcome of the paper concludes whether the differences shall be embraced or whether there is a need to agree upon what is ‘reasonable’ and ‘fair’.