COMMISSION ON LEGAL PLURALISM by gcpCOvQ

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									COMMISSION ON LEGAL PLURALISM
Panels for IUAES Conference, Manchester (UK), 5-10 August, 2013
[June 2, 2012)



Panel 1: Traditional Justice Delivery Systems and its Relevance in the Globalizing Era
Organizer: P.P. Balan, Kerala Institute of Local Administration, India (balanpp25@gmail.com)

Traditionally, villagers are experts in settling disputes and in doing so without an apparatus of
central authority, or even much hierarchy, and traditionally without police, prisons,
prosecutors, courts, judges, or lawyers. Village disputing and dispute settling alike remain
mostly oral, although custom and precedent establish something akin to common law. Village
appreciation of common law, or custom, exists mostly in memory, and disputes settlement
practices continue to rely on conversation and public debate. The fundamental morality of
dispute settlement provides considerable flexibility in handling particular cases in so far as
while custom, expectation and precedent might exist, these are not written or codified. People
can bend rules and experience to fit particular cases, reaching whatever outcome seems
expedient or possible. As many have noted, this very flexibility of local systems of justice keep
them current. Villagers have been legally pluralistic at least since the early 1900s and have,
during the last century, operated with a justice system that includes both local moots and
colonial and now independent state courts. Village justice systems do not neatly parallel
modern and delimited legal structures of courts, prosecutors, lawyers, police, and prisons.
There are no winners or losers; everyone shares in the responsibility to give a received so to
repair the social fabric. This disputing, and this dispute resolution, keeps the community
engaged over the long run in so far as the courses and outcomes of particular village conflicts
reflect and guarantee people’s overall conceptions of the just life. In pursuing the imperative of
giving local justice both inclusive and representative, constitutionally mandated institutions will
need to live harmoniously with traditional arrangements. The challenge in the delivery of
justice lies in harmonizing the functions and rights of traditional village institutions with
institutional mechanisms designed for modern development and service delivery. This panel
invites papers that will unravel the customary practices of dispute resolution existing in modern
society and see how they are beneficial to the state and society protecting the human rights in
the era of globalization.
Panel 2: Governance of natural resources under conditions of legal pluralism
Organizers: Maarten Bavinck, University of Amsterdam, The Netherlands (j.m.bavinck@uva.nl)
& Svein Jentoft, University of Tromsø, Norway (svein.jentoft@nfh.uit.no)

Rural populations still depend strongly on natural resources in their immediate environments
for their livelihoods (firewood, land, water, fodder, fish etc.). More and more claims are,
however, being exerted on such resources from different sides and institutional levels (local to
international). The actors involved refer to various legal systems and mechanisms, and
frequently create new hybrid law. The socio-legal field is fragmented, murky, and full of pitfalls
and obstacles. The poor suffer most from this condition. This panel is interested in improving
governance of natural resources under conditions of legal pluralism. It investigates and
compares the qualities of hybridity, and new structures and processes for bridging differences.
These structures and processes are evaluated according to the multiple concerns of
governance, that include environmental health, social justice, livelihoods and employment, and
food security. Opportunities for ‘better governance’ are contrasted with cases of ‘derailed
governance’ and ‘defective bridging’. Papers provide a mix of theoretical, methodological, and
empirical insights from different parts of the world.

Panel 3: Makers, brokers, breakers: children and young people in legally plural worlds
Organizers: Giselle Corradi, Human Rights Centre, Ghent University, Belgium
(Giselle.corradi@ugent.be) & Ellen Desmet, Children’s Rights Knowledge Centre / Institute for
Migration Law and Anthropology of Law, KU Leuven, Belgium (ellen.desmet@keki.be)

This panel focuses on children and young people as (relatively) new actors with norm-
generating capacity. Children and young people are increasingly claiming and exercising rights
in various forms and fora, the working children’s movements being among the best-known
examples. Questions that can be addressed in the papers include: How do children and young
people engage with the plurality of normative orders impacting on their daily life and well-
being? What are rights conceptions of children and young people in different cultural contexts?
How and why do they act as makers, brokers or breakers of certain norms? What is the role and
potential of ‘children’s rights’, understood as the human rights of children, in relation to other
(state and non-state) bodies of law? The panel aims to bring together theoretical and empirical
contributions on under-researched issues in the relationship between children, children’s rights
and legal pluralism.
Panel 4: The emergence and realities of socially and environmentally responsible
corporations

Organizers: Julia Eckert, University of Bern, Switserland (julia.eckert@anthro.unibe.ch) & Ellen
Hertz, University of Neuchâtel, Switserland (ellen.hertz@unine.ch)

The last thirty years has seen the rise of a complex of discourse and practices revolving around
the notion of corporate ‘SER’ (social and environmental responsibility). This complex comes in
many variants, and involves an equally diverse set of relations with law, both national and
international. This panel seeks papers that explore this evolution using the analytical tools of
legal pluralism, with a focus on intersections between law and other normative or analytical
knowledge regimes (accounting, management, ethics, economics). Of interest are issues such
as: on-going attempts to make corporations subject of international law (for example,
mobilization around the UN ‘Protect, Respect and Remedy Framework for Business and Human
Rights’); emerging conceptualisations of causality and accountability in transnational supply
chains; the mechanics of audits and monitoring as substitutes for law; or the use of economics
and accounting to create shared bases for the calculus of social and environmental
externalities.

Panel 5: Reimagining the Local: Legal Pluralism in a Transnational World
Organizer: Anne Griffiths, School of Law, Edinburgh University,                         Scotland
(Anne.Griffiths@ed.ac.uk)

In recent decades attention has focused on transnational relations and transnational laws in an
attempt to comprehend social, political and economic activities stretching across the globe and
the plural legal repercussion that they embody. These worlds engage with a complex
constellation of factors that construct notions of identity and belonging, of ‘self’ and ‘other’
that extend beyond the frontiers of the nation-state. Even those who are not particularly
mobile, who remain within a fixed geographic location, experience the effects of such processes
as they manifest themselves in local contexts. Under these conditions what is ‘local’ and what is
‘global’ becomes open to question as the state becomes re-positioned as an element but not
necessarily the reference point from which to examine social and legal relations.
This panel seeks to explore how transnational forces and their impact are shaped by local actors
in particular contexts in order to promote an understanding of how these ‘external’
interventions become endowed with diverse and localized sets of meaning and practices. In
doing so, it moves beyond a conception of the local as physically or territorially grounded to
one that examines how it is constituted. This not only takes account of a specific site in which
social relations are bounded and locally constituted but also incorporates how perceptions of
what is local are discursively and historically constructed. It is one that engages with the
experiences and representational map constructed of a specific place by its occupants in
relation to themselves and to a wider world. In this more spatial approach to depicting the
local, law cannot be ignored, for it serves to produce space yet in turn is shaped by a socio-
spatial context. By re-imagining the local this panel seeks to reframe the ways in which the local
and transnational or global relationships are conceived, including the role of legal pluralism. It
aims to promote a better understanding of what gives rise to the uneven and diverse effects of
globalisation, along with the processes of ‘internalisation’ and ‘relocalisation’ of global
conditions that may allow for the emergence of new identities, alliances and struggles for space
and power within specific populations.

Panel 6: State Strategies for Navigating Plural Legal Orders
Organizer: Emma Hayward, University of Pennsylvania, USA (ehayward@sas.upenn.edu)

This proposed panel brings together some of the most recent work in the field of legal pluralism
on the ways in which states navigate the plural legal orders found within their borders. Each of
the panelists, through their work, endeavors to develop a theory to explain how states choose
to develop policy on the non-state legal systems that coexist with state law and the normative
intersections that result from this overlap. Historically, states have adopted a wide range of
policies concerning legal pluralism including refusal to acknowledge its presence, incorporation
of minority group law into the jurisdiction of state courts, and full recognition of parallel legal
systems. Combining theoretical reasoning and empirical evidence, the works presented offer
explanations for this diversity of approaches. They include fieldwork from Oceania (Forsyth),
the United Kingdom (Malik), India, Israel, and Egypt (Sezgin), and the Arab world and East Africa
(Hayward).



Panel 7: Rights, Institutions and Governance: Perspectives on legal Pluralism from Asia
Organizers: Pampa Mukherjee, Punjab University, India (pmkh17@gmail.com), and Amalendu
Jyotishi, Amrita University, India (amalendu.jyotishi@gmail.com)

The Asian region in the last few decades has been undergoing major economic, political and
social transitions that have had bearing on its institutions and governance structures. The
processes of democratization and internationalization have resulted in a redefinition of various
legal aspects particularly those that are in conflict with the existing practices. Essentially, being
a plural society, many Asian nations in contemporary times are also dealing with additional
tensions some of which arise due to their contestations with existing statutory laws. Prevalence
of these kinds of conflicts, protests and negotiations can be particularly observed in institutions
governing human rights, gender and natural resources, both at the macro and micro level. In
this context legal pluralism as a perspective assumes significance as it not only provides an
interesting framework to understand and analyze complex issues associated with
institutions/governance at different levels but also provides meaningful alternatives to address
such concerns. Such engagements are in fact necessary for need-based and effective policy
formulation in respective countries in the region. Given this broad context, we invite abstracts
and research papers that deal with issues on human rights, gender rights and rights to natural
resources in the Asian context. The idea is to explore, understand and analyze various
institutions and governance mechanisms within the legal pluralist framework.



Panel 8: Legal Pluralism and Criteria of Justice
Organizer: Sten Schaumburg-Müller, Department of Law, Aarhus University, Denmark
(ssm@jura.au.dk)

As has been shown by numerous researches over the years, there is an abundance of legal
and/or normative systems or entities or semi autonomous social fields in the world, within
states, trans-states etc., in short: legal pluralism. The idea of the panel is to focus on criteria of
justice. Does each entity have its own criteria (or even criterion)? Are they different from or
even incompatible with the criteria of other relevant entities such as neighboring societies or
even overlapping ones? As an illustration: When Bolivia is engaging in legal pluralism at the
constitutional level, do the various entities involved have different conception of justice and do
they apply different criteria of justice? Or are the criteria of justice basically the same, the
distinction being more of an ethnic or historical character, a kind of much needed affirmative
action? In answering these questions, we need to be aware that explicit standards and implicit
conceptions may be different, i.e. it is not sufficient to take the official or self perceived version
of justice into account. The explicit version may serve as a justification or legitimization of a
reality looking much different – interesting in itself, but by no means necessarily congruent with
prevalent, implicit criteria. The approach taken when coming up with answers to the question
whether different entities have different criteria of justice may be of a more descriptive kind –
how does this particular entity engage with criteria of justice? – or it may be more normative:
Are the criteria involved – be they explicit or implicit – in fact just? The normative approach
pinpoints the question of criteria: If a system or part of a system is deemed unjust, which are
the criteria involved for such an evaluation? Are the criteria internal or external or a mix? And
how are they justified? The panel welcomes a plurality of approaches: More theoretical ones,
dealing with the complicated issues involved and more empirically based contributions taking
one or a few field studies as a point of departure. The focus could be either on mainly internal
criteria, the implicit and explicit criteria within a reasonably well defined entity, and it could be
external: How does legal pluralist entity A conceive the criteria of entity B? and vice versa.

Panel 9: Comparative Religious and Legal Pluralisms in the Global North and South
Panel Organizers: Gopika Solanki, Carleton University, UK (gopika_solanki@carleton.ca) &
Prakash Shah, University of London, UK (prakash.shah@qmul.ac.uk)

How does the recognition of distinct religio-cultural beliefs and practices of minorities (and
majorities) impact normative commitments of liberal multicultural states to ensure religious
neutrality, religious freedom and self-determination, and gender justice? The papers in this
panel evaluate the dilemma through the lens of state-society interactions at the interface of
family laws. Drawing upon insights from the global North and South, papers in this panel
discuss and compare the variation in responses of legal institutions, and highlight the
possibilities, paradoxes, and limitations of official and unofficial legal pluralist arrangements to
respond to this question. The papers may straddle urban and rural geographies and may be
anchored in different methodologies including normative debates on group rights, analyses of
legal judgments, ethnographies of adjudication in legal forums, and comparative country-
specific case-studies.



Panel 10: Self-regulation, customary law, protest movements: historical and modern
experience
Organizer: Iuliia Sushkova International and European Law Department, Mordovian State
University, Russia (yulenkam@mail.ru)

Ethnos as essential source of power is a primary norm-generator. It means that law itself is a
product of ethnic mentality and particular legal culture, which is generated by different forms
of anthropological (ethnic) activities. Customary law develops a system of methods for
preservation and protection of ethnos as a phenomenon. Often this system is not identical to
the system, organized by the state. Ethnos is empowered to overrule any state order and create
a new one. In historical retrospective every country faced situation in which the society,
ethnoses have made magnificent political, socio-economic, cultural and legal changes. For years
customary methods of protest have been officially neglected and perceived as illegal forms.
Within the panel there will be focused on historical and modern experience of protest
movements motivated and organized according to customary law. Panel speakers will discuss
issues of self-regulation, customary law and protest movements on the example of Russian
revolutionary movements and Canadian douhkobors.
Panel 12: Contesting Universality and Particularity in Legal and Cultural Pluralism: An
interdisciplinary approach
Organizer: Masami Mori Tachibana, Kyoto Bunkyo University, Japan (masamimi@po.kbu.ac.jp)

Politics of cultural diversity has been in long discussion how to conceptualize and realize the
rights of the different peoples in search of peaceful co-existence. In the process, the definitions
and roles of cultures have been debated both in local and global contexts. The processes of
globalization have brought universal concepts and values such as human rights and equality of
gender into the local contexts. These concepts and values are redefined according to the local
situations and local normative orders. However, many societies are still facing the difficult
problems. In this panel, both theoretical and empirical papers from philosophical, historical,
sociological and anthropological perspectives contribute to deepen the understanding of status
quos and issues on contesting universalities and particularities in cultural and legal pluralism for
the realization of politics of cultural diversity.

Panel 13: Legal Pluralism and Transnational Politics of Securitization
Organizer: Bert Turner, Max Planck Institute, Germany (turner@eth.mpg.de)

The governance of human security at transnational scale has attracted increasing interest these
days. Security requirements find expression in the production of normative templates that
address a variety of issues ranging from protection against threats to public safety, to any given
domain relevant to livelihood security. Commonly, such processes are communicated in the
language of neoliberal achievements. Politics of securitization are mainly dominated by the
global governance institutions, such as the United Nations with its numerous sub-organizations,
the IMF, the World Bank. They are setting up legal frameworks of security for various areas of
human livelihood thus re-defining the conditions of people’s legal agency. As one of the major
fields appears the governance of conflict and violence (crime prevention, gated communities,
urban security, anti-terrorism legislation, law on torture, on war, on war crimes, mass
atrocities) and normative scripts for all kinds of post conflict scenarios. In this context, control
over the flow of information and informational politics also play a decisive role. In addition,
health, food and resource security, economy and finance are domains in which transnational
normative securitization becomes increasingly effective. Proceeding from the assumption that
there is a coherent logic behind this wide range of normative operations, the panel will
investigate what the means and ends of such politics of securitization are and how they affect
complex plural legal configurations at various scales. How are such transnational templates of
security law translated into local settings? Who claims the setup of a transnational legal
architecture of security and who are the actors, the beneficiaries? Whose security is secured
and who profits from politics of securitization? What kind of normative processes have been
launched and in what ways do they interact with plural legal orders, affect the nomosphere and
impact on livelihood conditions of ordinary people? For instance, to what extent appear such
processes somehow run either counter to, or, integrated in rights-based approaches and
politics of human rights?

Panel 14: Legal pluralism in the practice of development agencies: towards an empirical
understanding of current approaches
Organizer: Markus Weilenmann, University of Zurich, Switserland (drmweilenmann@smile.ch),
and Giselle Corradi, Ghent University, Belgium.

International development aid always influences the existing legal relationships and changes
the conditions under which people might make use of their rights. This is particularly true for
those projects or programmes which explicitly aim at the promotion of the rule of law, good
governance and justice or are subject to conditionality. International development agencies
become thus increasingly aware of the critical impact of legal pluralism on the success of their
conventional project approaches and try framing new and more inclusive programme designs
by referring to customary, non-state or informal justice providers. This trend is particularly
accentuated in the African context, where development actors also grapple with the lack of
capacity of many African states to provide the population with basic justice services. These
interventions are varied in scope and nature. They include legal and institutional reforms,
capacity building for justice users and providers and a range of strategies to improve
compliance with human rights within dispute management at local level. While a growing body
of normative literature provides guidelines on how international agencies can take account of
legal pluralism, this panel aims at examining international development agencies’ approaches
to legal pluralism in Africa from a legal anthropological and empirical point of view.
Contributions which critically examine actual practices on the ground and go beyond simple and
standardized lessons learnt that are just shifted from one spot to the other, are warmly
welcomed.



Panel 15: Gender, Religion and Legal Pluralism: Issues of Governance in South and South East
Asia
Organizer: Shyama Prasad Rout, Sambalpur University, India (shyama2u@rediffmail.com)

There is no simple fit between legal pluralism and religious pluralism, and this could help in
thinking of the boundaries between law and religion historically, contextually and contingently.
The problem of gender discrimination in the given laws in all communities has to be settled.
How to go about it? A common civil code is no solution. The solution can be found in legal
pluralism. If we accept this way of looking things it will be easier to remove gender
discrimination. But legal pluralism does not mean we retain traditional or religious laws as they
are. Suitable changes and enactment of reforms to remove gender discrimination embedded in
these laws must be initiated. The Indian state follows a system of legal pluralism in the area of
family law with religious groups governed by distinct codes. Nineteenth century statutes
govern Christians and Parsis, while Hindus, Sikhs, and Jains are largely governed under the
Hindu Code enacted in the 1950s. Muslims are to be governed by the law of the Shariat; the
exception being the Dissolution of Muslim Marriages Act, 1939 which gave Muslim women
limited grounds. This system, a colonial continuity, is an essential feature of Indian
multiculturalism and attempts to accommodate cultural groups. Personal laws are said to be
protected under the Constitution which gives communities “the right to practice, preach and
propagate their religion.” However, these laws conflict with the right to equality as individuals’
rights under family law differ according to their religion. It also represents a failure to meet the
constitutional commitment to enact a uniform civil code (UCC) for all its citizens. While Muslim
women were viewed as being the most disadvantaged under their family law regimes, Hindu
and Christian family laws also discriminated between men and women. The absolute and binary
opposition between state and community on the question of personal law is false; it needs to
be dismantled and reconstructed as an argument for the rights of all women. For that matter,
the opposition between community and nation on the question of personal law is equally
misleading. The panel suggests papers from South and South East Asian nations on gender
constructions, normative gender orders and their religious legitimizations, as well as current
gender policies in Islamic Southeast Asia, which besides the Islamic core countries of Malaysia
and Indonesia also comprises southern Thailand and Mindanao. The impact of gender on
religion and issues of legal pluralism shall be addressed.

Panel 16: Law and Public Morality: Pluralism beyond Law
Organizer: Trevor R. Stack, University of Aberdeen, Scotland (t.stack@abdn.ac.uk)

Beyond legal pluralism itself, anthropologists have long paid attention to the normative orders
that lie beyond law and sometimes sit in tension with it. Legal systems vary across the world
and the borders between legal systems are often blurred and sometimes contentious but so are
the borders between law and the enforcing of moral norms. This panel will bring an
anthropological perspective to bear on the many debates, old and new, on the relationship
between law and public morality. Is it always possible to identify a sphere of public morality?
What if anything allows us to distinguish public morality from law? Do the subjectivities of
claimants and adjudicators differ across public morality and law? How is authority configured
differently? Is public morality always less institutionalised than law? Is the public of law itself
different from the public of morality? Does public morality itself get defined by law? Does law
have its own morality, or is it just influenced by the morality of broader society? Finally, is it
possible to distinguish between ethics and public morality, and if so, how does ethics relate to
law? All such questions will be addressed both theoretically and in the light of ethnographic
data from across the world, past and present.



Panel 17: Instruments of global regulation: The emergence of a pluralist global law?
Organizer: David Restrepo Amariles Université Libre de Bruxelles, Belgium (darestre@ulb.ac.be)

This panel aims to analyze the emergence and functioning of new instruments of regulation in
the context of globalization and their relation to classic forms of law. As globalization continues
to transform economic, political and social relations into complex transnational phenomena
classic law is increasingly unveiled as limited in scope and efficacy. On the one hand, national
state law is not only limited by its territorial nature, but also increasingly put under pressure to
deregulate or to conform to global standards of regulation. On the other hand, international
public and private law are also at pains to regulate transnational interaction associated with
globalization. International law strong roots on voluntarism, increasing fragmentation and
limited capacity to bind all actors in the international plane shows that it’s poorly equipped to
deal with globalization. As a consequence, a whole set of instruments and mechanisms of
regulation have emerged to fill the vacuum but also to challenge state law. Instruments such as
codes of conducts, standards and indicators take a central role in global regulation together
with mechanisms such as “auditing”, “benchmarking”, “reporting” and “monitoring”. This panel
will explore whether these and other mechanisms could be seen as part of the making of a
pluralist global law, understood not as a new legal order, but as new way in which old and new
instruments of regulation are deployed vis-à-vis transnational phenomena.

								
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