Pub Date : 2019-01-02DOI: 10.1080/07329113.2019.1594564
A. Hammond
Abstract There has been minimal compliance with Ghana’s Intestate Succession Act, 1985, (PNDC Law 111) especially by communities in rural areas whose lives are governed almost exclusively by customary law. This is because the state and customary legal systems have failed to reconcile their perceptions of law and legal responsibilities. Drawing on legal pluralism as a practical guiding framework for analyzing the relationship between states and customary legal systems, and focusing on the law of intestate succession, I argue that in order for legal reforms to be embraced, especially by rural dwellers, the state must adopt what may be termed, the mutual concession approach to legal reforms, a structured and principled discretionary approach that seeks to balance the valued interests of both legal systems, and which promises to be more agreeable to rural dwellers in ways that ensure compliance with state law.
加纳1985年颁布的《无遗嘱继承法》(PNDC Law 111)很少得到遵守，特别是在生活几乎完全受习惯法管辖的农村地区。这是因为国家法律制度和习惯法制度未能协调它们对法律和法律责任的看法。将法律多元化作为分析国家与习惯法律体系之间关系的实践指导框架，并将重点放在无遗嘱继承法上，我认为，为了让法律改革得到接受，特别是农村居民的接受，国家必须采取所谓的法律改革的相互让步方法，这是一种寻求平衡两种法律体系的价值利益的结构化和原则性酌情处理方法。它承诺在确保遵守州法律的方式上更符合农村居民的要求。
{"title":"“Reforming the law of intestate succession in a legally plural Ghana”","authors":"A. Hammond","doi":"10.1080/07329113.2019.1594564","DOIUrl":"https://doi.org/10.1080/07329113.2019.1594564","url":null,"abstract":"Abstract There has been minimal compliance with Ghana’s Intestate Succession Act, 1985, (PNDC Law 111) especially by communities in rural areas whose lives are governed almost exclusively by customary law. This is because the state and customary legal systems have failed to reconcile their perceptions of law and legal responsibilities. Drawing on legal pluralism as a practical guiding framework for analyzing the relationship between states and customary legal systems, and focusing on the law of intestate succession, I argue that in order for legal reforms to be embraced, especially by rural dwellers, the state must adopt what may be termed, the mutual concession approach to legal reforms, a structured and principled discretionary approach that seeks to balance the valued interests of both legal systems, and which promises to be more agreeable to rural dwellers in ways that ensure compliance with state law.","PeriodicalId":44432,"journal":{"name":"Journal of Legal Pluralism and Unofficial Law","volume":null,"pages":null},"PeriodicalIF":0.6,"publicationDate":"2019-01-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"90202912","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2019-01-02DOI: 10.1080/07329113.2019.1573489
V. Weitzner
Abstract This article considers the relationship between gold mining, violence(s) and Indigenous peoples through the lens of legal pluralities with a focus on the dimension of time. Drawing on the specific case of the Embera Chamí of the Resguardo Indígena [Indigenous Reserve] of Cañamomo Lomaprieta in Colombia, I ask: What can an analysis through the lens of time unearth around the type of violence(s) that extractives engender for Indigenous peoples and their ancestral lands? I ground my analysis with concepts emerging from the literature around extractives and legal pluralities, such as Stuart Kirsch’s (2014) “politics of time’; Boaventura Santos’ (2002) “instant” and “glacial time”; and the “lethal” and “ancestral time” that emerge from my own work with Indigenous and Afro-Descendant peoples in Colombia. I develop a typology of actors and legalities vying to regulate the Resguardo’s gold, further developing my concept of “raw law” through the dimension of time. And I show what happens when the Resguardo’s authorities appropriate free, prior and informed consent as a tool towards self-government within this context of inter-i-legality. I take up Lemaitre and Sandvik’s (2015) call to theorize differently contexts of violence, reflecting also critically on ethical implications for activism and collaborative research.
{"title":"Between panic and hope: Indigenous peoples, gold, violence(s) and FPIC in Colombia, through the lens of time","authors":"V. Weitzner","doi":"10.1080/07329113.2019.1573489","DOIUrl":"https://doi.org/10.1080/07329113.2019.1573489","url":null,"abstract":"Abstract This article considers the relationship between gold mining, violence(s) and Indigenous peoples through the lens of legal pluralities with a focus on the dimension of time. Drawing on the specific case of the Embera Chamí of the Resguardo Indígena [Indigenous Reserve] of Cañamomo Lomaprieta in Colombia, I ask: What can an analysis through the lens of time unearth around the type of violence(s) that extractives engender for Indigenous peoples and their ancestral lands? I ground my analysis with concepts emerging from the literature around extractives and legal pluralities, such as Stuart Kirsch’s (2014) “politics of time’; Boaventura Santos’ (2002) “instant” and “glacial time”; and the “lethal” and “ancestral time” that emerge from my own work with Indigenous and Afro-Descendant peoples in Colombia. I develop a typology of actors and legalities vying to regulate the Resguardo’s gold, further developing my concept of “raw law” through the dimension of time. And I show what happens when the Resguardo’s authorities appropriate free, prior and informed consent as a tool towards self-government within this context of inter-i-legality. I take up Lemaitre and Sandvik’s (2015) call to theorize differently contexts of violence, reflecting also critically on ethical implications for activism and collaborative research.","PeriodicalId":44432,"journal":{"name":"Journal of Legal Pluralism and Unofficial Law","volume":null,"pages":null},"PeriodicalIF":0.6,"publicationDate":"2019-01-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"81256897","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2019-01-02DOI: 10.1080/07329113.2019.1596013
F. Osman
Abstract After decades of non-recognition, customary law is today recognised as a valid system of law in South Africa treated as equal to the common law. The article examines how the question of the ascertainment of living customary law has been addressed by the South African Constitutional Court, the highest court in South Africa. It argues that the court has developed the existing guidelines of calling witnesses and consulting with written sources of the law in light of the newly elevated status of customary law. The cases of Shilubana v Nwamitwa (2009) and MM v MN (2013) are critical cases in which the court articulated further guidance on the ascertainment of customary law and demonstrated a commitment to the notion that the court is the final arbiter of the law. The result is that the court has developed, in a relatively short period of time, a rich jurisprudence on the ascertainment of customary law. The article examines the jurisprudence in light of the historical approach to the ascertainment of customary law and the current legal framework.
{"title":"The ascertainment of living customary law: an analysis of the South African Constitutional Court’s jurisprudence","authors":"F. Osman","doi":"10.1080/07329113.2019.1596013","DOIUrl":"https://doi.org/10.1080/07329113.2019.1596013","url":null,"abstract":"Abstract After decades of non-recognition, customary law is today recognised as a valid system of law in South Africa treated as equal to the common law. The article examines how the question of the ascertainment of living customary law has been addressed by the South African Constitutional Court, the highest court in South Africa. It argues that the court has developed the existing guidelines of calling witnesses and consulting with written sources of the law in light of the newly elevated status of customary law. The cases of Shilubana v Nwamitwa (2009) and MM v MN (2013) are critical cases in which the court articulated further guidance on the ascertainment of customary law and demonstrated a commitment to the notion that the court is the final arbiter of the law. The result is that the court has developed, in a relatively short period of time, a rich jurisprudence on the ascertainment of customary law. The article examines the jurisprudence in light of the historical approach to the ascertainment of customary law and the current legal framework.","PeriodicalId":44432,"journal":{"name":"Journal of Legal Pluralism and Unofficial Law","volume":null,"pages":null},"PeriodicalIF":0.6,"publicationDate":"2019-01-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"83466255","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2019-01-02DOI: 10.1080/07329113.2018.1540121
J. Corrin
Abstract The co-existence of plural legal systems throws up complex practical dilemmas. In the criminal sphere, the interaction between customary and state laws raises issues that are, perhaps, most graphically illustrated in the areas of culpability and sentencing. However, questions also arise as to criminal jurisdiction and procedure. This article examines two such questions concerning the position where an act is punishable both by the state and by a customary authority. Firstly, it considers which system has priority; and, secondly, whether a person may be punished by authorities in both systems, or whether punishment under one system is a bar to punishment under the other. This article considers these questions in the context of Solomon Islands, with some reference to neighbouring small island countries, where similar questions arise. It begins by identifying the relevant constitutional and statutory provisions. The issues to which these provisions give rise when they interact with the customary legal system are then explored in depth, with reference to pertinent case law from Solomon Islands and other comparable jurisdictions.
{"title":"Plurality and punishment: Competition between state and customary authorities in Solomon Islands","authors":"J. Corrin","doi":"10.1080/07329113.2018.1540121","DOIUrl":"https://doi.org/10.1080/07329113.2018.1540121","url":null,"abstract":"Abstract The co-existence of plural legal systems throws up complex practical dilemmas. In the criminal sphere, the interaction between customary and state laws raises issues that are, perhaps, most graphically illustrated in the areas of culpability and sentencing. However, questions also arise as to criminal jurisdiction and procedure. This article examines two such questions concerning the position where an act is punishable both by the state and by a customary authority. Firstly, it considers which system has priority; and, secondly, whether a person may be punished by authorities in both systems, or whether punishment under one system is a bar to punishment under the other. This article considers these questions in the context of Solomon Islands, with some reference to neighbouring small island countries, where similar questions arise. It begins by identifying the relevant constitutional and statutory provisions. The issues to which these provisions give rise when they interact with the customary legal system are then explored in depth, with reference to pertinent case law from Solomon Islands and other comparable jurisdictions.","PeriodicalId":44432,"journal":{"name":"Journal of Legal Pluralism and Unofficial Law","volume":null,"pages":null},"PeriodicalIF":0.6,"publicationDate":"2019-01-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"72559245","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2019-01-02DOI: 10.1080/07329113.2019.1580492
{"title":"Acknowledgement to our reviewers in 2018","authors":"","doi":"10.1080/07329113.2019.1580492","DOIUrl":"https://doi.org/10.1080/07329113.2019.1580492","url":null,"abstract":"","PeriodicalId":44432,"journal":{"name":"Journal of Legal Pluralism and Unofficial Law","volume":null,"pages":null},"PeriodicalIF":0.6,"publicationDate":"2019-01-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"79636482","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2019-01-02DOI: 10.1080/07329113.2019.1570448
M. Hopman
Abstract When trying to understand why children's rights are being violated, legal pluralism has been used as a theoretical framework for the empirical study of children's rights by relatively few researchers. In most of these cases, it is unclear why a certain social phenomenon is categorized as “law,” and research on smaller legal orders related to children, such as the school and the household, is lacking. My hypothesis is that for children, law is mostly what their parents or their teachers tell them. Therefore, this law, that we find when looking at law through children's eyes, has to be recognized as part of a complete picture of law influencing the protection and/or violation of children's rights. In the current article, I present an alternative legal pluralist theoretical and methodological framework for the research of children's rights. To go beyond mere theory, I will show how I applied the theory to a case study on the child's right to education in the Central African Republic (CAR) and present its results.
{"title":"A new model for the legal pluralist study of children’s rights, illustrated by a case study on the child’s right to education in the Central African Republic","authors":"M. Hopman","doi":"10.1080/07329113.2019.1570448","DOIUrl":"https://doi.org/10.1080/07329113.2019.1570448","url":null,"abstract":"Abstract When trying to understand why children's rights are being violated, legal pluralism has been used as a theoretical framework for the empirical study of children's rights by relatively few researchers. In most of these cases, it is unclear why a certain social phenomenon is categorized as “law,” and research on smaller legal orders related to children, such as the school and the household, is lacking. My hypothesis is that for children, law is mostly what their parents or their teachers tell them. Therefore, this law, that we find when looking at law through children's eyes, has to be recognized as part of a complete picture of law influencing the protection and/or violation of children's rights. In the current article, I present an alternative legal pluralist theoretical and methodological framework for the research of children's rights. To go beyond mere theory, I will show how I applied the theory to a case study on the child's right to education in the Central African Republic (CAR) and present its results.","PeriodicalId":44432,"journal":{"name":"Journal of Legal Pluralism and Unofficial Law","volume":null,"pages":null},"PeriodicalIF":0.6,"publicationDate":"2019-01-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"78722815","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2018-09-02DOI: 10.1080/07329113.2018.1558964
T. Bierschenk
Abstract This commentary explores the assets and liabilities of anthropology for the study of core functions of statehood (such as taxation) that increasingly become a matter of transnational negotiation and norm-making. It takes issue with some anthropologists’ counter-hegemonic self-positioning, calling upon anthropologists to think harder about the conditions and challenges of studying highly formalized expert knowledge and the epistemological reflection this requires.
{"title":"Commentary: ethnography, critique and the state. Some thoughts on “fiscal anthropological insights into the heart of contemporary statehood”1","authors":"T. Bierschenk","doi":"10.1080/07329113.2018.1558964","DOIUrl":"https://doi.org/10.1080/07329113.2018.1558964","url":null,"abstract":"Abstract This commentary explores the assets and liabilities of anthropology for the study of core functions of statehood (such as taxation) that increasingly become a matter of transnational negotiation and norm-making. It takes issue with some anthropologists’ counter-hegemonic self-positioning, calling upon anthropologists to think harder about the conditions and challenges of studying highly formalized expert knowledge and the epistemological reflection this requires.","PeriodicalId":44432,"journal":{"name":"Journal of Legal Pluralism and Unofficial Law","volume":null,"pages":null},"PeriodicalIF":0.6,"publicationDate":"2018-09-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"76651513","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2018-09-02DOI: 10.1080/07329113.2018.1559487
Jonas Bens, Larissa Vetters
Abstract Legal anthropology and legal sociology have much in common. Traditionally, however, these approaches have tried to maintain disciplinary boundaries toward each other. Latest since the 1990s, these boundaries have become more and more porous and the academic practices of boundary-making do seem to convince practitioners of these fields less and less. The recent emergence of a subfield of the anthropology of the state situated at the interface of legal anthropology, legal sociology, ethnographic studies of bureaucracies and organizational sociology attests to this development. In this introduction, we propose to consciously transgress the traditional boundaries between legal anthropology, legal sociology and the anthropology of the state when it comes to the ethnographic investigation of official law. Based on the contributions to this special issue—consisting of empirical articles and commentaries—we map several avenues for boundary transgressions and the theoretical reconceptualizations these may engender. Among them are: looking at legal institutions of the state as practicing both informal formality and formal informality; moving from socio-spatial metaphors to investigating official law-places and -spaces as ethnographic objects; and studying norm-making within official law as a wider field of practice.
{"title":"Ethnographic legal studies: reconnecting anthropological and sociological traditions","authors":"Jonas Bens, Larissa Vetters","doi":"10.1080/07329113.2018.1559487","DOIUrl":"https://doi.org/10.1080/07329113.2018.1559487","url":null,"abstract":"Abstract Legal anthropology and legal sociology have much in common. Traditionally, however, these approaches have tried to maintain disciplinary boundaries toward each other. Latest since the 1990s, these boundaries have become more and more porous and the academic practices of boundary-making do seem to convince practitioners of these fields less and less. The recent emergence of a subfield of the anthropology of the state situated at the interface of legal anthropology, legal sociology, ethnographic studies of bureaucracies and organizational sociology attests to this development. In this introduction, we propose to consciously transgress the traditional boundaries between legal anthropology, legal sociology and the anthropology of the state when it comes to the ethnographic investigation of official law. Based on the contributions to this special issue—consisting of empirical articles and commentaries—we map several avenues for boundary transgressions and the theoretical reconceptualizations these may engender. Among them are: looking at legal institutions of the state as practicing both informal formality and formal informality; moving from socio-spatial metaphors to investigating official law-places and -spaces as ethnographic objects; and studying norm-making within official law as a wider field of practice.","PeriodicalId":44432,"journal":{"name":"Journal of Legal Pluralism and Unofficial Law","volume":null,"pages":null},"PeriodicalIF":0.6,"publicationDate":"2018-09-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"83212060","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2018-09-02DOI: 10.1080/07329113.2018.1556441
Heike Drotbohm, Eva Riedke
Abstract This commentary contextualizes Jacobs’ study as a contribution to a body of anthropological research concerned with theorizing the state, and more importantly concerned with closing the analytical gap between the study of state images (representations) on the one hand, and practices (everyday experiences of the state) on the other. The commentary sketches three further analytical dimensions that stand in relation thereto: an investigation of historical trajectories of state images and practices; the significant but methodologically difficult move of studying affective registers as constitutive of the political; and an analytical perspective which goes beyond centers of state power and turns to the appearance of state effects in sites not readily seen as belonging to the political.
{"title":"Expecting justice: struggling with the indeterminate between ideals and practices","authors":"Heike Drotbohm, Eva Riedke","doi":"10.1080/07329113.2018.1556441","DOIUrl":"https://doi.org/10.1080/07329113.2018.1556441","url":null,"abstract":"Abstract This commentary contextualizes Jacobs’ study as a contribution to a body of anthropological research concerned with theorizing the state, and more importantly concerned with closing the analytical gap between the study of state images (representations) on the one hand, and practices (everyday experiences of the state) on the other. The commentary sketches three further analytical dimensions that stand in relation thereto: an investigation of historical trajectories of state images and practices; the significant but methodologically difficult move of studying affective registers as constitutive of the political; and an analytical perspective which goes beyond centers of state power and turns to the appearance of state effects in sites not readily seen as belonging to the political.","PeriodicalId":44432,"journal":{"name":"Journal of Legal Pluralism and Unofficial Law","volume":null,"pages":null},"PeriodicalIF":0.6,"publicationDate":"2018-09-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"80286784","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2018-09-02DOI: 10.1080/07329113.2018.1557381
Deniz Yonucu
Abstract This commentary proposes to bring an analysis of affect in the courtroom into the growing literature on performativity and the law. In analysing the judicialization of politics it is important to also draw from psychoanalytical approaches and to focus on not only what is present in courtrooms but also what is absent.
{"title":"Affect in the courtroom: beyond language and performance","authors":"Deniz Yonucu","doi":"10.1080/07329113.2018.1557381","DOIUrl":"https://doi.org/10.1080/07329113.2018.1557381","url":null,"abstract":"Abstract This commentary proposes to bring an analysis of affect in the courtroom into the growing literature on performativity and the law. In analysing the judicialization of politics it is important to also draw from psychoanalytical approaches and to focus on not only what is present in courtrooms but also what is absent.","PeriodicalId":44432,"journal":{"name":"Journal of Legal Pluralism and Unofficial Law","volume":null,"pages":null},"PeriodicalIF":0.6,"publicationDate":"2018-09-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"84452088","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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