Theory Of Legal Pluralism Research Articles

The Unregistered Child Marriage on Lumbang Society Norm Perspective Legal Pluralism

Unregistered child marriage has become a custom in the Lumbang community. Nevertheless, the Lumbang community registered their marriage with the State when they had children. The existence of this phenomenon shows that the Lumbang community adopts more than one norm regarding child marriage. This article will reflect on the legal practices in the Lumbang community regarding child marriage. This article is an empirical legal research with a legal anthropology approach. This article uses John Griffith's theory of legal pluralism as a means of uncovering the facts of legal practice in the Lumbang community. This research shows that legal pluralism occurs strongly in the practice of unregistered child marriage in Lumbang. The practice of strong legal pluralism occurs through the incorporation of religion-adult law, State-adult law, and the distinction of State-adult law. The community conducts unregistered child marriage as a convergence of customary-religious norms as well as divergence of norms due to restrictions on the minimum age of marriage by the State. Then, the State will register the marriage when they have children as a form of convergence of State-adult norms.

Harmonization of State, Custom, and Islamic Law in Aceh: Perspective of Legal Pluralism

Indonesia recognizes several legal systems i.e., state law, customary law, Islamic law, and international law. Islamic sharia in Aceh is part of legal pluralism in Indonesia. This study aims to discuss the application of Islamic sharia from the perspective of legal pluralism. This normative legal study employed a legal pluralism theory analysis. Legal pluralism is a theory that views law not only as positive or written law made by the state but also as a recognition of the legal reality that exists in a pluralistic society. The study collected data by means of a literature review. Findings revealed that Islamic sharia in Aceh as part of the recognition of the concept of legal pluralism has been implemented well in the context of state law, custom, and Islamic law. The state has provided juridical legitimacy through laws in the context of legal substance and judicial institutions or sharia courts. Likewise, revitalization has also occurred in traditional institutions in terms of customary law and customary justice. The argument emphasized in this study is that Islamic sharia in the context of legal pluralism has succeeded in manifesting legal harmonization between the state, custom, and Islamic law

Land Rights and Legislation: Uncovering the Veil of Property Law in Indonesia

This study examines the complex terrain of property rights in Indonesia, revealing gaps, historical trends, legislative impact, and theoretical insights. The method used is qualitative. Legal writings (constitutions, statutes, commentaries), court decisions, policy papers, and historical records relating to property and land rights law in Indonesia were considered as the primary research sources. Data were analysed using triangulation and N-Vivo. The results show that modern property law is the result of historical developments characterised by post-independence changes and colonial legacies. A careful balance is required to address the challenges posed by the encroachment of economic interests on legislative provisions intended to protect people's rights. The results show that modern property law is the result of historical developments characterized by post-independence changes and colonial legacies. A careful balance is required to address the challenges posed by the encroachment of economic interests on legislative provisions intended to protect people's rights. The weaknesses and contradictions found in the legislative framework highlight the need for flexible solutions to meet the changing demands of society. The intersection between Islamic law, state law and customary law is best understood through the lens of legal pluralism theory. The consequences for marginalized groups highlight the urgency to prioritize their rights, which requires community engagement and participatory legal reform. The theoretical implications of legal pluralism support it as an analytical instrument, and the comparative analysis places Indonesia in a global context and offers suggestions for useful policy responses. The study concludes by recommending a flexible legal framework, international cooperation, and further investigation to support a more inclusive and egalitarian understanding of land rights in Indonesia.

Legal Pluralism As an Ideology and a Reality

The concepts of legal pluralism used in jurisprudence, anthropology, and sociology are characterized by internal inconsistency and in their radical version are reasonably criticized by many scientists who solve the dilemma of monism and pluralism in favor of the former. At the same time, they are not simple populism, have a long history and are fully correlated with various facts of socio-legal reality such as the existence of international law, informal (direct-social) law in certain social groups, the complex structure of state law, the variability of law-making, law enforcement, non-governmental implementation of law, etc. This prompts us to reconsider the prevailing ideas about the content and meaning of legal pluralism, to demonstrate the possibilities of creating a consistent theory of it. The work uses various methods of scientific research, in particular, a dialectical approach to society (state) and law, a sociological approach in which legal pluralism is considered in an inextricable relationship with social pluralism. It is shown that legal pluralism is, first of all, a type of legal understanding reflecting the idea of the need to reflect in law the conflicting interests (values, ideas) of various personalities, social groups and society, as well as one of the ways to solve social contradictions enshrined in law. It is proved that legal pluralism can manifest itself both as a plurality of systems (subsystems) of law in society, and as an internal pluralism inherent in a particular system (subsystem) of law. The facts of genuine pluralism and quasi-pluralism are distinguished. The general significance of the theory of legal pluralism is seen in the confirmation of the connection of law with the ideas of freedom, justice, competition, in the possibility of consolidating in law extremely diverse models of balancing the interests of various subjects, in substantiating the fact that legal pluralism plays a positive role when it adequately reflects social pluralism as a condition for the preservation and development of society.

Approaching law in superdiverse, global societies: The challenges of and for legal translation in plural legal orders

‘Translation’, understood in a broad sense, has been defined as a basic ingredient of globalisation and, more specifically, of the current globalising processes of law. This article reviews contributions that have explored the interconnection of translation and law in various disciplines. Inspired by the call for interdisciplinarity in Legal Translation Studies and for an “outward turn” in Translation Studies, this article will draw on theories of legal pluralism which have used various conceptualisations of translation to offer critical insights into the challenges of and for legal translation as a discipline and a professional practice in the superdiverse societies of the global era. The ultimate aim of this interdisciplinary round trip is to contribute towards increased self-reflexivity in Legal Translation Studies and towards a re-imagining of dominant legal translation practices in line with the growing commitment to diversity in institutional settings.

Legal Pluralism from History to Theory and Back: Otto von Gierke, Santi Romano, and Francesco Calasso on Medieval Institutions

AbstractThis paper considers the historical contexts in which theories of legal pluralism grew and developed between the final third of the nineteenth century and the first half of the twentieth century. Theories of the state as a pluralistic system, as opposed to the absolute supremacy of state-made law, were the focus of German legal historical scholarship in the late nineteenth century, represented by the towering figure of Otto von Gierke. Gierke's image of a pluralist German Middle Ages largely influenced legal scholarship in Europe, even affecting the Italian scholar Santi Romano, whose book on the “legal order” has been considered a milestone in the construction of pluralist legal theories. Once passed from a legal historian like Gierke to a theorist like Romano, the model of a pluralist legal order returned to legal historiography, inspiring the innovative historical interpretation of medieval law proposed by Francesco Calasso. Gierke was a conservative, right-wing socialist, and Romano was a fascist and counselor of the fascist Italian government. Calasso, on the contrary, was a liberal opponent of the fascist regime. The three versions of legal pluralism, then, decline the same basic vision in three different ways, being influenced by the political contexts in which the three authors operated.

LEGAL PLURALISM IN THE SPECIAL DISTRICT PROVINCE OF YOGYAKARTA, INDONESIA

This study analyses the implementation of legal pluralism theory in a unitary state, such as the Republic of Indonesia, for historical and political purposes. The Special District Province of Yogyakarta, formally known as Ngayogyakarta Hadiningrat Sultanate, is one of the provinces whose territory and government have existed before Indonesia’s independence. When Sultan Hamengku Buwono led this province as the king, it significantly enjoyed many privileges within the Unitary State of the Republic of Indonesia, which apply to date. However, it is still possible to find discriminatory policies, especially in the agrarian sector, aimed explicitly at the Indonesian Chinese community due to the implementation of the Governor Instruction of 1975. As a result of this policy, the Indonesian Chinese are not entitled to land ownership rights in this region. This discriminatory policy serves as a window to explain how the social, cultural, political, and historical structures of Yogyakarta impact the implementation of the legal pluralism concept within the Republic of Indonesia. Historical and legal approaches within the socio-legal framework are used in this research.

Criminal Laws and prostitution: The legal experience challenge for the concept of Legal Culture

This study, taking as its starting point Lawrence Friedman’s and David Nelken’s contribution to the elaboration of the concept of “Legal Culture”, interprets some convergent judgments made by the Constitutional Court of three European countries—Italy, France, and Portugal—from the perspective of “legal culture”. To avoid the tautology of explaining culture by invoking cultural norms, it seems possible either to leave “legal culture” in the background in empirical research or to refer to a more succinct concept, such as “legal experience”. This approach is consistent with the theory of legal pluralism and projects the law into the broader field of cultural problems. From this perspective, the apparent uniformity and rationality of the decisions offered by the structural-functionalist analysis, especially its European version, is called into question. In the cases analyzed, we tried to focus on the legal experience, and we have found that the legal background to those rulings allows the formation in neo prohibitionist and abolitionist Countries, a common internal legal culture, which conveys a public ethic, defending human dignity, that has its roots in a common European civilization.

The Dichotomy of Land Laws in South Africa: The Challenges Faced by Women in Accessing Land

In sub-Saharan Africa (SSA) and other parts of the world, women rely on farming for the generation of their livelihood. However, their effort is limited by the dichotomy of land laws (statutory and customary land laws). The statutory land law promotes equality between men and women, giving women the right to buy, sell and inherit land. On the other hand, customary land law is grounded in patriarchal notions, where land is only allocated to a male figure as the head of the household. This law is the one that mostly supports men and rejects women. It is against this background that the present study argues that the dichotomy of land laws affects women. As a result, they experience a higher level of poverty than men. The present article used the legal pluralism theory to explain the existence of two different land laws in South Africa. Additionally, the study relied extensively on secondary sources as means of collecting relevant and required data. It employed strict textual analysis of the available literature relevant to the challenges of women in land ownership. The findings of the study show that the existence of customary law affects women who rely heavily on farming for their survival. On the basis of these, the study recommends that even though there are different land rights, the government should develop programmes that will ensure simultaneous operationalisation of these land laws. In addition, as much as there can be two laws that govern South African land, they should not contradict each other. Secondly, the land should be inheritable by both the male and female in a household.

Sustainable Tourism Development Through Improving the Role of Customary Village

This study aims to analyze the potential of the Customary Village in tourism development, its position, and function in Bali Province. This research is a socio-legal study with a legal and case approach, legal analysis techniques in the form of legal hermeneutics and is analyzed through the theory of legal pluralism, and the concept of recognition of the Customary Law Community. This research was conducted in the area of Bali Province based on local wisdom with the concepts of Parahyangan, Pawongan, and Palemahan. The system and implementation of customary law, institutional Sabha Customary Village and Kerta Customary Village, custom advisory institutions, religion, traditions, arts, and culture, as well as local wisdom of indigenous peoples. Pasraman as an educational institution based on Hinduism for the development of identity, moral integrity, and quality of Balinese society, traditional village security institutions, and traditional village economic institutions by the principles and objectives of tourism, namely the welfare of the community. Especially the Krama Customary Village. The results showed that the Balinese Customary Village in tourism development is an autonomous Balinese customary institution, traditional cultural communities, indigenous peoples, and the collective identity of the people in Bali based on customary law to achieve common goals based on the Tri Hita Karana.

Arbitrary Law Making and Unorderable Subjectivities in Legal Theoretical Approaches to Migration

The article considers the changes that have affected European border regimes of migration control as a testcase for discussing arbitrariness. The argument highlights the limited capacity of notions of arbitrariness defined as a departure from the rule of law to capture the ongoing conflict at the borders of Europe and brings, instead, to the foreground the ambivalent meaning of arbitrariness. 
 By comparing Santi Romano’s classical theory of legal pluralism with recent analyses of legal globalization processes, arbitrariness emerges either as an authoritative attempt to impose a different order on society or as a means to contrast acts of resistance to border regimes. In both cases, arbitrariness forcefully blurs the limits between the ordered and unordered, indicating the paradoxical impossibility of excluding the law’s outside from the legal order. 
 On these premises, the article advocates the importance of reframing the demand for open borders as a call for freedom of those who challenge the pragmatic order of migration regimes. Indeed, arbitrariness is necessarily limited when the legal order recognizes, to an extent, the agency and the claims of subjectivities that resist the dichotomy between inclusion and exclusion.
 Keywords: migration, arbitrariness, borders, legal order

Registration of private interests in land in a community lands policy setting: An exploratory study in Meru district, Tanzania

Current Tanzanian land law offers registration of private interests in land in the form of Certificates of Customary Rights of Occupancy (CCROs) within a broader community lands approach. We conducted qualitative research on the issuance of CCROs along a mountain slope transect in Meru district in northeast Tanzania. This area features intensified smallholder agriculture that evolutionary theory suggests is well adapted for registration of private interests in land. It also features strong customary authorities of the sort that legal pluralism theory suggests may lead to property relations that are not singular and evolving but multiple and co-existing. We found that tenure was highly individualized and local demand for CCROs was expressed in a context of both agricultural intensification and nascent urbanisation. Nevertheless, due to high cost and coordination constraints, this demand did not deliver widespread registration. While CCROs were perceived as useful to resolve land conflicts and put up as collateral for loans, they were not essential as a variety of alternative approaches were in place. In this forum shopping, plurality was not in itself a problem and individuals increasingly chose quasi-formal paper authorisations over customary rituals. Based on our findings, we recommend that land administration systems more explicitly build on existing quasi-formal practice, and that community lands approaches include a diversity of national programmes tailored to different local community circumstances.

Legal Pluralism as a Theory for the Challenges on Environmental Health

This paper intends to justify the theory of legal pluralism for studying environmen-tal health issues. The positive law approach has made some headway, although some areas of environmental health seem to be incipient. Hard law has encoun-tered difficulties to succeed in enforcing industrial pollution or water contamina-tion. Furthermore, national jurisdictions are prone to support particular economic interests. This conundrum of legal positivism encourages challenging it with the theory of pluralism. It is found that the latter might allow deliberation and active participation of non-state actors within environmental health. It is also discussed that the plurality of law allows certain flexibility due to its little hierarchization, the lack of theoretical rules and the relaxation of state sovereignty.

Human rights encounters in small places: the contestation of human rights responsibilities in three Dutch municipalities

This article investigates engagements of local authorities with human rights in the field of irregular migration in a small town, medium-sized city and a rural municipality in the Netherlands. Although scholarship on human rights cities constitutes an important point of departure for this study, this article challenges the urban bias in this emerging body of research on the role of local authorities in processes of human rights localization. Drawing from theories of legal pluralism, scholarship on human rights practice and encounters and finally geographical insights, the article examines spatial dimensions of human rights practices of municipal actors in these three municipalities. More specifically, it investigates how in these municipalities the presence of and encounters with irregular migrants in local institutional spaces contribute to a local contestation of human rights responsibilities and examines how this process of contesting human rights responsibilities differs between these municipalities. The article draws on and develops scholarship on human rights encounters, by extending the scope beyond encounters at high seas and by explicating how power dynamics, temporalities and the sites of encounters can give rise to perceptions of duties that set these encounters apart from everyday sociabilities or encounters with difference. On the basis of a qualitative content analysis of municipal council documents and proceedings this study moreover found considerable differences with regard to how human rights responsibilities are contested locally by municipal actors. This study observed both differences among municipalities and differences among municipal actors within a single municipality in relation to these local understandings of human rights and perceptions of human rights responsibilities.

Pada Gelahang Marriage: A Legal Pluralism Perspective

Presently, pada gelahang marriages are still controversial within Balinese society in terms of their implementation and the implications. A certain percentage of Balinese approve of pada gelahang marriages, while a certain percentage of people disagree for various reasons. These pros and cons are not tolerated. In fact, the phenomenon of pada gelahang marriages is often confounding to the Hindu community in Bali. Hence, solutions are required. While pada gelahang marriages can be found in many districts and regions in Bali, however, many doubts and problems still arise in their philosophical and juridical foundations. Therefore, research on pada gelahang marriages from the perspective of legal pluralism needs to be done. This research is a qualitative research with a legal sociology approach. Primary data is derived from field data from observations and from the results of interviews of related parties, while secondary data is obtained from literature books using the theory of legal pluralism as a guiding theory in the discussion of research. The results of the study indicate that the pada gelahang marriage has a philosophical foundation, juridical foundation and sociological basis for the creation of values of justice, legal certainty and the benefit of law in the framework of legal pluralism that provides a way to meet Hindu religious law, traditional village customary law and state law to set pada gelahang marriages

The Effectiveness of Awig-Awig as A Strategy to Protect DMCA Gili Sulat and Gili Lawang

This study was carried out in the District Marine Conservation Area (DMCA) of Gili Sulat and Gili Lawang, East Lombok. DMCA of Gili Sulat and Gili Lawang have established by Co-Fish Project of Marine Affairs and Fisheries Ministry of Indonesia in 2004 as part of participative management sustainability to coastal resources. The aim of establishing DMCA is to decrease destructive fishing activities such as bombing and poisoning that has been practices for long time. In this study, data were collected through semi structure questionnaires, personal interview, participant observation, document reviews, and life history. Discussions were held with the fishermen in Sugian Village, fisheries management committee of DMCA, local communities who living in Sugian Village and government in village, local and regional level. In order to analyze the findings, an analyzing of legal and institutional arrangements is used combining with the theories of legal pluralism and property rights. The study revealed that there are two laws coexist in DMCA as state laws and customary laws called awig-awig. State laws are covered legal status of DMCA as property of state where local government has authority to manage it. Meanwhile, customary laws are more to control people behaviors towards DMCA. Moreover, a fisheries management committee (KPPL) has formed by government to enforce day-to-day awig-awig practices towards DMCA and has its authority to invoke sanctions for rule breaking. Because of this, several problems arose in Sugian Village concerning to DMCA. This required better management of coastal resources where planning should be come from and involve grass root level. Finally, the study revealed that management of DMCA should be reinforced to all parties particularly on communities’ level, so that the problem foci can be clear for all.

Rechtspluralismus als Fortschritt? Zur Auseinandersetzung über Recht und Legitimität jenseits des Souveränitätsparadigmas

This article reviews recent literature on legal pluralism and its problems in domestic, international and transnational contexts. It first considers new general theories of legal pluralism and their analysis of the challenges it entails for the concept of law and for questions of legitimacy. The second part focuses on publications on different legal and political strategies of dealing with competing legal sources and claims to legal autonomy. The final section discusses approaches to human rights and the rule of law, which attempt to solve some of the normative difficulties legal pluralism raises.

HUKUM TIDAK TUNGGAL: POTRET PLURALISME HUKUM DALAM PENGATURAN KAWASAN TEMPAT SUCI PURA ULUWATU DI BALI

Penelitian ini berjudul ‘Hukum tidak tunggal: potret kemajemukan hukum dalam seting tempat suci dari Pura Uluwatu di Bali. Politik pluralisme hukum adalah pendekatan kebijakan sebagai jalan tengah atau persimpangan dalam menyelesaikan masalah perbedaan konstruksi tempat suci Pura Uluwatu di Bali, baik dari hukum negara dalam bentuk peraturan daerah tentang rencana tata ruang dan wilayah Provinsi Bali dan hukum adat desa adat Pecatu. Pluralisme hukum politik berusaha menjadi cara alternatif untuk menyatukan unsur-unsur hukum negara, etika / moral / agama, dan masyarakat dalam rangka mencapai rasa keadilan Masyarakat Adat Pecatu yang memiliki tanah yang terpapar dengan radius tempat suci dari Pura Uluwatu. Pluralisme hukum politik adalah tawaran kebijakan hukum berdasarkan nilai-nilai filsafat Pancasila. Teori yang digunakan sebagai pisau analisis adalah teori hukum hukum, serta teori pluralisme hukum. Penelitian ini merupakan jenis penelitian kualitatif, dengan pendekatan penelitian sosio-legal dengan paradigma konstruktivisme hukum dan menggunakan metode pendekatan pluralisme hukum. Sumber data yaitu data primer dan sekunder dikumpulkan dengan melakukan penjabaran studi lapangan dan studi pustaka yang di narasikan dengan pengolahan data deskriptif interpretatif.

The application of the principles of the convention on women in awig-awig pakraman village

This research aims to study the task of the village in Bali related pakraman by the ratification of the women's Convention into law Number 7 in 1984 about the passage of the Convention on the Elimination of all forms of discrimination against women. The community's customary law in Pakraman Village Bali is called based on the applicable local Bali province number: 3 years Pakraman Village of 2003. One of the tasks of the village Pakraman is making the rule of law (awig-awig). The enactment of related laws, the legal issues that arise: what are the principles of the Convention established the woman had already formulated in the awig – awig village pakraman? The legal issues observe by using the normative legal method by relying on legal materials and material non-law. Also, problems also assessed by the theory of legal pluralism of Sally Falk Moore, i.e., Semi-autonomous social field theory.Based on search results and study materials of the law, in this case, some awig-awig Pakraman village, results or findings indicate that women's Convention established the principles namely equality and justice between men and women has not yet been applied awig-awig in the pakraman village. So, based on the theory of legal pluralism is examined from Sally Falk Moore, where local laws (awig-awig) turned out to be stronger regarding State law are dealt face. The things which can know from the provisions of article (pawos) from some awig-awig who examined it turns out women's Convention principles, namely equality and justice between men and women has not yet applied in the awig – awig pakraman village. That means that the discriminative customary law was still so strong so the benchmark in the Association life pakraman. So, in conclusion, the principles of the Convention on women has not been applied in the awig – awig pakraman village, so that still reflect discriminatory against women.This research needs to be continued with empirical legal research to find out why the principles of the Convention on women has not applied to the awig – awig pakraman village

Legal pluralism? Indigenous rights as legal constructs

This article sets out a sociological critique of the theories of legal pluralism that underpin contemporary constructions of Indigenous rights. It argues that pluralistic theories of Indigenous rights, which see Indigenous rights as challenging the legal orders of nation-states, are based in simplified analyses of the construction of such rights, and they fail to account for the subjects that lay claim to indigeneity and the relation between such subjects and national legal systems. To explain this, the article reconstructs primary patterns of Indigenous rights law in global international law, regional international law, and municipal law in Latin America and Africa. Against standard pluralistic approaches, this article argues that we need to adopt a sociological model based in world citizenship, which depends on relatively autonomous legal functions, to understand the growth of Indigenous rights. Central to this model is the claim that the imputation of Indigenous rights extends the reach of domestic legal systems and that it is closely linked to a process in which the national legal system, supported by global legal norms, penetrates more deeply and more inclusively into national society.