Pub Date : 2021-09-02DOI: 10.1080/07329113.2021.2013001
J. van den Berge, J. Vos, R. Boelens, S. Kishimoto, P. Jonker
ABSTRACT In 2012 public service trade unions and water activists started a European Citizens’ Initiative to get the human right to water implemented in European law. It became the start of the “Right2Water” movement that successfully defended drinking water supply in the European Union against European Commission plans for liberalisation, marketisation and the subsequent threat of privatisation. In countries with a good functioning public water system, resistance against privatisation of water was high, especially in Germany, Austria and Belgium, but surprisingly this level of resistance was absent in the Netherlands, which has a similarly good and well-known public water supply system. In this article we interview two persons that have both experience in European as well as in the Netherlands’ water policies and legislation, and in water services provision. We investigate how the right to water is defined, legally decreed and socially interpreted and defended at different levels. We also investigate the apparent paradox with regards to water in the Netherlands, where people seemed very committed to and proud of their public water management, but did not stand up against a privatisation threat, whereas around the globe water privatisation plans are met with great resistance.
{"title":"Interview article: water movements’ defense of the right to water. From the European arena to the Dutch exception","authors":"J. van den Berge, J. Vos, R. Boelens, S. Kishimoto, P. Jonker","doi":"10.1080/07329113.2021.2013001","DOIUrl":"https://doi.org/10.1080/07329113.2021.2013001","url":null,"abstract":"ABSTRACT In 2012 public service trade unions and water activists started a European Citizens’ Initiative to get the human right to water implemented in European law. It became the start of the “Right2Water” movement that successfully defended drinking water supply in the European Union against European Commission plans for liberalisation, marketisation and the subsequent threat of privatisation. In countries with a good functioning public water system, resistance against privatisation of water was high, especially in Germany, Austria and Belgium, but surprisingly this level of resistance was absent in the Netherlands, which has a similarly good and well-known public water supply system. In this article we interview two persons that have both experience in European as well as in the Netherlands’ water policies and legislation, and in water services provision. We investigate how the right to water is defined, legally decreed and socially interpreted and defended at different levels. We also investigate the apparent paradox with regards to water in the Netherlands, where people seemed very committed to and proud of their public water management, but did not stand up against a privatisation threat, whereas around the globe water privatisation plans are met with great resistance.","PeriodicalId":44432,"journal":{"name":"Journal of Legal Pluralism and Unofficial Law","volume":null,"pages":null},"PeriodicalIF":0.6,"publicationDate":"2021-09-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"74238978","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 : 2021-09-02DOI: 10.1080/07329113.2021.1996094
P. Hebinck
ABSTRACT Illegal grazing and the fencing of land by livestock owners, elites and non-elites alike is endemic in Namibia. Fencing violates the Communal Land Reform Act of 2002. Court cases are held to stop the illegal use of land. The institutions that according to the Act have the authority to stop these practices do not perform accordingly and their authorities frequently overlap. The legal battle to remove fences or stop illegal grazing evolves as more than a struggle for justice. The case unfolds as an ontological struggle between actors, their institutions and respective policies and discourses, pivoting on conflicting visions of modernities and interpretations of the meaning of land.
{"title":"Land and grazing disputes and overlapping authorities in Namibia","authors":"P. Hebinck","doi":"10.1080/07329113.2021.1996094","DOIUrl":"https://doi.org/10.1080/07329113.2021.1996094","url":null,"abstract":"ABSTRACT Illegal grazing and the fencing of land by livestock owners, elites and non-elites alike is endemic in Namibia. Fencing violates the Communal Land Reform Act of 2002. Court cases are held to stop the illegal use of land. The institutions that according to the Act have the authority to stop these practices do not perform accordingly and their authorities frequently overlap. The legal battle to remove fences or stop illegal grazing evolves as more than a struggle for justice. The case unfolds as an ontological struggle between actors, their institutions and respective policies and discourses, pivoting on conflicting visions of modernities and interpretations of the meaning of land.","PeriodicalId":44432,"journal":{"name":"Journal of Legal Pluralism and Unofficial Law","volume":null,"pages":null},"PeriodicalIF":0.6,"publicationDate":"2021-09-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"77173307","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 : 2021-09-02DOI: 10.1080/07329113.2021.1996076
Christa Rautenbach
{"title":"The Journal of Legal Pluralism and Unofficial Law: a guiding light through the darkness of pluralities","authors":"Christa Rautenbach","doi":"10.1080/07329113.2021.1996076","DOIUrl":"https://doi.org/10.1080/07329113.2021.1996076","url":null,"abstract":"","PeriodicalId":44432,"journal":{"name":"Journal of Legal Pluralism and Unofficial Law","volume":null,"pages":null},"PeriodicalIF":0.6,"publicationDate":"2021-09-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"82450183","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 : 2021-09-02DOI: 10.1080/07329113.2021.2005353
Jacques Matthee
ABSTRACT African Customary law and the South African common law enjoy equal recognition in the South African legal system. However, their equal status results in various conflict situations between them, especially in the South African criminal law. This paper shows that the indigenous belief in witchcraft (including witch-killings), the indigenous belief in the tokoloshe and the use of muti-medicine (including muti-murders), as well as the indigenous custom of ukuthwala, can result in the commission of common law and statutory crimes in South Africa. These are then known as “culturally motivated” crimes. In addition, this paper shows that the indigenous beliefs and custom above can also violate fundamental human rights entrenched in the South African Constitution. In this regard, this paper also outlines the consequences that an accused can face for infringing upon a victim’s fundamental human rights through the commission of a culturally motivated crime.
{"title":"Indigenous beliefs and customs, the South African criminal law, and human rights: identifying the issues*","authors":"Jacques Matthee","doi":"10.1080/07329113.2021.2005353","DOIUrl":"https://doi.org/10.1080/07329113.2021.2005353","url":null,"abstract":"ABSTRACT African Customary law and the South African common law enjoy equal recognition in the South African legal system. However, their equal status results in various conflict situations between them, especially in the South African criminal law. This paper shows that the indigenous belief in witchcraft (including witch-killings), the indigenous belief in the tokoloshe and the use of muti-medicine (including muti-murders), as well as the indigenous custom of ukuthwala, can result in the commission of common law and statutory crimes in South Africa. These are then known as “culturally motivated” crimes. In addition, this paper shows that the indigenous beliefs and custom above can also violate fundamental human rights entrenched in the South African Constitution. In this regard, this paper also outlines the consequences that an accused can face for infringing upon a victim’s fundamental human rights through the commission of a culturally motivated crime.","PeriodicalId":44432,"journal":{"name":"Journal of Legal Pluralism and Unofficial Law","volume":null,"pages":null},"PeriodicalIF":0.6,"publicationDate":"2021-09-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"87488083","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 : 2021-09-02DOI: 10.1080/07329113.2021.1996073
A. Griffiths
ABSTRACT This article considers the impact of the book People’s Law and State Law: the Bellagio Papers, edited by Anthony Allott and Gordon Woodman, published in 1985. It sets out why I consider this publication to be a seminal text in establishing and developing the field of legal pluralism, which had a great impact on both the development of the Journal of Legal Pluralism and on my own development as a young legal scholar. In looking beyond the text, I consider the ways in which scholars have engaged with the book’s call for legal and social science to “work from a new map”. In doing so I explore a recent arena of scholarship involving international intervention. The article highlights the important contribution that empirical studies can make to research on legal pluralism, by moving beyond the binaries of state and non-state actors, as well as through pursuing how scholars are adopting a more integrated and relational approach to law, one that may involve breaking down traditional disciplinary boundaries. In particular, I explore how concepts such as space and time contribute to a multi-dimensional, scalar perception of law at odds with a formalist, state-centred view of legal pluralism. This allows new insights to be generated into the operation of plural legal structures and constellations in which people operate allowing for a view of law that involves multiple networks of relations cutting across international, national and local boundaries.
{"title":"Thirty-six years on: revisiting People’s Law and State Law: The Bellagio Papers","authors":"A. Griffiths","doi":"10.1080/07329113.2021.1996073","DOIUrl":"https://doi.org/10.1080/07329113.2021.1996073","url":null,"abstract":"ABSTRACT This article considers the impact of the book People’s Law and State Law: the Bellagio Papers, edited by Anthony Allott and Gordon Woodman, published in 1985. It sets out why I consider this publication to be a seminal text in establishing and developing the field of legal pluralism, which had a great impact on both the development of the Journal of Legal Pluralism and on my own development as a young legal scholar. In looking beyond the text, I consider the ways in which scholars have engaged with the book’s call for legal and social science to “work from a new map”. In doing so I explore a recent arena of scholarship involving international intervention. The article highlights the important contribution that empirical studies can make to research on legal pluralism, by moving beyond the binaries of state and non-state actors, as well as through pursuing how scholars are adopting a more integrated and relational approach to law, one that may involve breaking down traditional disciplinary boundaries. In particular, I explore how concepts such as space and time contribute to a multi-dimensional, scalar perception of law at odds with a formalist, state-centred view of legal pluralism. This allows new insights to be generated into the operation of plural legal structures and constellations in which people operate allowing for a view of law that involves multiple networks of relations cutting across international, national and local boundaries.","PeriodicalId":44432,"journal":{"name":"Journal of Legal Pluralism and Unofficial Law","volume":null,"pages":null},"PeriodicalIF":0.6,"publicationDate":"2021-09-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"84253983","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 : 2021-09-02DOI: 10.1080/07329113.2021.2017641
D. Roth, Sandra Moniaga
In this conversation with Sandrayati Moniaga I aim to get a better picture of the ways in which knowledge of the scientific concept and debates about legal pluralism are given a place in more practically and policy-oriented forms of engagement in Indonesia. Throughout her career, Sandrayati Moniaga (Jakarta, 1961) has combined these two dimensions—command of the concept of legal pluralism and more practical engagement with the political and policy worlds in which legal pluralism plays a role. She has an academic background in law, having studied Law in Bandung (West Java). During this period, she also had the opportunity, as an extra-curricular activity, to visit various minority groups in Indonesia. During such field visits she became keenly aware of the often marginalized position of indigenous groups and the important and problematic role of legal pluralism in their relationships with the Indonesian state. After graduating, Sandra became active in various Indonesian NGOs, such as WALHI (Indonesian Forum for the Environment), ELSAM (The Institute for Policy Research and Advocacy), Lembaga Bela Banua Talino (LBBT, a Kalimantan-based indigenous peoples’ legal resources development facilitator) and HuMa (Association for Community and Ecology-Based Law Reform). In her career she built an extensive working experience in leading positions and as an advisor of various NGOs. Currently she is a Commissioner for Assessment and Research of the Indonesian National Human Rights Commission (KOMNAS HAM). She has published scientific articles on, among others, the emergence of the indigenous peoples’ movement in the 1990s and on issues of ethnic identity and legal pluralism in relation to land and forest tenure and conflicts. Indonesia, an archipelago of more than 17,000 islands with a current total population of around 270 million, is a country of great ethnic, cultural, and religious diversity. It has a turbulent history of ruthless exploitation under Dutch colonial rule, a long independence struggle (1945–1949) against the Dutch, and a post-colonial era marked by extended periods of social conflict, political struggle and mass violence. Indonesia’s ethnic minority groups, in particular, have suffered from growing exploitation and related social, cultural, economic and political marginalization from colonial times onwards. Exploitation of land, forest and other resources caused
在这次与Sandrayati monaga的对话中，我的目标是更好地了解科学概念的知识和关于法律多元化的辩论是如何在印度尼西亚更实际和以政策为导向的参与形式中占有一席之地的。在她的整个职业生涯中，Sandrayati monaga(雅加达，1961)将这两个维度结合在一起——掌握法律多元主义的概念，以及更实际地参与法律多元主义发挥作用的政治和政策领域。她具有法律学术背景，曾在万隆(西爪哇)学习法律。在此期间，作为一项课外活动，她也有机会访问了印度尼西亚的各个少数民族。在这些实地访问中，她敏锐地意识到土著群体往往处于边缘地位，以及法律多元化在土著群体与印度尼西亚国家的关系中所起的重要而有问题的作用。毕业后，桑德拉活跃于印尼多个非政府组织，如印尼环境论坛(WALHI)、政策研究与倡导研究所(ELSAM)、kalimantan原住民法律资源开发促进会Lembaga Bela Banua Talino，以及社区与生态法律改革协会(HuMa)。在她的职业生涯中，她在领导岗位上积累了丰富的工作经验，并担任过各种非政府组织的顾问。目前，她是印度尼西亚国家人权委员会(KOMNAS HAM)评估和研究专员。她发表的科学文章除其他外，涉及1990年代土著人民运动的出现以及与土地和森林权属及冲突有关的族裔特性和法律多元化问题。印度尼西亚是一个由17,000多个岛屿组成的群岛，目前总人口约为2.7亿，是一个民族，文化和宗教多样性极大的国家。在荷兰殖民统治下，它经历了残酷的剥削，经历了长期的独立斗争(1945-1949)，以及以长期的社会冲突、政治斗争和大规模暴力为特征的后殖民时代。特别是印度尼西亚的少数民族群体，从殖民时代开始就遭受日益严重的剥削和相关的社会、文化、经济和政治边缘化。开发利用土地、森林等资源造成的
{"title":"Interview with Sandrayati Moniaga: Legal pluralism and the struggle for recognition of customary rights in Indonesia","authors":"D. Roth, Sandra Moniaga","doi":"10.1080/07329113.2021.2017641","DOIUrl":"https://doi.org/10.1080/07329113.2021.2017641","url":null,"abstract":"In this conversation with Sandrayati Moniaga I aim to get a better picture of the ways in which knowledge of the scientific concept and debates about legal pluralism are given a place in more practically and policy-oriented forms of engagement in Indonesia. Throughout her career, Sandrayati Moniaga (Jakarta, 1961) has combined these two dimensions—command of the concept of legal pluralism and more practical engagement with the political and policy worlds in which legal pluralism plays a role. She has an academic background in law, having studied Law in Bandung (West Java). During this period, she also had the opportunity, as an extra-curricular activity, to visit various minority groups in Indonesia. During such field visits she became keenly aware of the often marginalized position of indigenous groups and the important and problematic role of legal pluralism in their relationships with the Indonesian state. After graduating, Sandra became active in various Indonesian NGOs, such as WALHI (Indonesian Forum for the Environment), ELSAM (The Institute for Policy Research and Advocacy), Lembaga Bela Banua Talino (LBBT, a Kalimantan-based indigenous peoples’ legal resources development facilitator) and HuMa (Association for Community and Ecology-Based Law Reform). In her career she built an extensive working experience in leading positions and as an advisor of various NGOs. Currently she is a Commissioner for Assessment and Research of the Indonesian National Human Rights Commission (KOMNAS HAM). She has published scientific articles on, among others, the emergence of the indigenous peoples’ movement in the 1990s and on issues of ethnic identity and legal pluralism in relation to land and forest tenure and conflicts. Indonesia, an archipelago of more than 17,000 islands with a current total population of around 270 million, is a country of great ethnic, cultural, and religious diversity. It has a turbulent history of ruthless exploitation under Dutch colonial rule, a long independence struggle (1945–1949) against the Dutch, and a post-colonial era marked by extended periods of social conflict, political struggle and mass violence. Indonesia’s ethnic minority groups, in particular, have suffered from growing exploitation and related social, cultural, economic and political marginalization from colonial times onwards. Exploitation of land, forest and other resources caused","PeriodicalId":44432,"journal":{"name":"Journal of Legal Pluralism and Unofficial Law","volume":null,"pages":null},"PeriodicalIF":0.6,"publicationDate":"2021-09-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"91379950","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}
ABSTRACT This paper for the anniversary issue of the Journal of Legal Pluralism and Unofficial Law attempts to explain how legal pluralism as a sensitizing concept plays a role as an auxiliary in looking at phenomena where there is a co-existence between various legal systems. The legal pluralism approach carries methodological consequences that require a researcher to use microscopic lenses to observe the relations between law and relevant actors in cross-border spaces. It is also important to examine the interrelations between the concept of personhood with law in a context of legal pluralism. Without a legal pluralism approach linked with a relational approach that looks at the connections between law and relevant actors, research would not be able to generate a significant narrative about how law works. In this paper, the conceptual and methodological reflections on legal pluralism are linked to a research on the diversity of legal references that regulate the issue of Indonesian female migrant workers in the United Arab Emirates (UAE), with all its implications for actual access to justice for women.
{"title":"Mobile people in global migration and the working of law: a reflection on the role of legal pluralism","authors":"Sulistyowati Irianto, Titiek Kartika Hendrastiti, Tirtawening Tirtawening","doi":"10.1080/07329113.2021.2004782","DOIUrl":"https://doi.org/10.1080/07329113.2021.2004782","url":null,"abstract":"ABSTRACT This paper for the anniversary issue of the Journal of Legal Pluralism and Unofficial Law attempts to explain how legal pluralism as a sensitizing concept plays a role as an auxiliary in looking at phenomena where there is a co-existence between various legal systems. The legal pluralism approach carries methodological consequences that require a researcher to use microscopic lenses to observe the relations between law and relevant actors in cross-border spaces. It is also important to examine the interrelations between the concept of personhood with law in a context of legal pluralism. Without a legal pluralism approach linked with a relational approach that looks at the connections between law and relevant actors, research would not be able to generate a significant narrative about how law works. In this paper, the conceptual and methodological reflections on legal pluralism are linked to a research on the diversity of legal references that regulate the issue of Indonesian female migrant workers in the United Arab Emirates (UAE), with all its implications for actual access to justice for women.","PeriodicalId":44432,"journal":{"name":"Journal of Legal Pluralism and Unofficial Law","volume":null,"pages":null},"PeriodicalIF":0.6,"publicationDate":"2021-09-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"90232336","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 : 2021-09-02DOI: 10.1080/07329113.2021.2004829
M. Manaka, J. Corrin
ABSTRACT The Solomon Islands Public Solicitor’s Office is established by the Constitution. The role of its officers is to provide legal advice and assistance not only in relation to state law, but also in respect of customary laws and institutions. In the course of providing legal aid, numerous dilemmas arise as to the best way in which to negotiate these complex issues, taking into account the prevailing culture. The 40th anniversary of the Journal of Legal Pluralism presents an ideal occasion to consider legal pluralism from the perspective of those whose daily work puts them at the forefront of the interface between the state and customary legal systems.
{"title":"Legal pluralism and the Public Solicitor’s Office of Solomon Islands","authors":"M. Manaka, J. Corrin","doi":"10.1080/07329113.2021.2004829","DOIUrl":"https://doi.org/10.1080/07329113.2021.2004829","url":null,"abstract":"ABSTRACT The Solomon Islands Public Solicitor’s Office is established by the Constitution. The role of its officers is to provide legal advice and assistance not only in relation to state law, but also in respect of customary laws and institutions. In the course of providing legal aid, numerous dilemmas arise as to the best way in which to negotiate these complex issues, taking into account the prevailing culture. The 40th anniversary of the Journal of Legal Pluralism presents an ideal occasion to consider legal pluralism from the perspective of those whose daily work puts them at the forefront of the interface between the state and customary legal systems.","PeriodicalId":44432,"journal":{"name":"Journal of Legal Pluralism and Unofficial Law","volume":null,"pages":null},"PeriodicalIF":0.6,"publicationDate":"2021-09-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"75844365","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 : 2021-09-02DOI: 10.1080/07329113.2021.1982170
David Otieno Ngira
ABSTRACT This paper is a product of my doctoral ethnographic study among the Kipsigis of Kenya. The research was conducted in Bomet, Kericho and Narok counties. The paper explores the underlying principles and contestations on the best interests principle and how scholars have recently located the best interests principle within legal pluralism. The paper then explores the foundation of Kipsigis customary law and the nature of childhood under the Kipsigis customary system. It also examines the pillars of the best interests principle under Kipsigis customary law such as; the promotion of a harmonious co-existence between the child and the family; guaranteeing the long term interest of the child; adhering to customary obligations of by the parents and a contextual understanding of what is in the child’s best interests. Using the underlying themes identified by scholars and reflected in various human rights instruments, the paper attempts to highlight the (in) consistency between statutory and customary conceptions of best interests and the role that customary law plays in protecting and anchoring the well-being of children.
{"title":"Understanding children’s rights from a pluralistic legal context: multi-legalities and the protection of the best interests of the child in rural Kenya","authors":"David Otieno Ngira","doi":"10.1080/07329113.2021.1982170","DOIUrl":"https://doi.org/10.1080/07329113.2021.1982170","url":null,"abstract":"ABSTRACT This paper is a product of my doctoral ethnographic study among the Kipsigis of Kenya. The research was conducted in Bomet, Kericho and Narok counties. The paper explores the underlying principles and contestations on the best interests principle and how scholars have recently located the best interests principle within legal pluralism. The paper then explores the foundation of Kipsigis customary law and the nature of childhood under the Kipsigis customary system. It also examines the pillars of the best interests principle under Kipsigis customary law such as; the promotion of a harmonious co-existence between the child and the family; guaranteeing the long term interest of the child; adhering to customary obligations of by the parents and a contextual understanding of what is in the child’s best interests. Using the underlying themes identified by scholars and reflected in various human rights instruments, the paper attempts to highlight the (in) consistency between statutory and customary conceptions of best interests and the role that customary law plays in protecting and anchoring the well-being of children.","PeriodicalId":44432,"journal":{"name":"Journal of Legal Pluralism and Unofficial Law","volume":null,"pages":null},"PeriodicalIF":0.6,"publicationDate":"2021-09-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"90269994","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 : 2021-09-02DOI: 10.1080/07329113.2021.2004840
Raúl Márquez Porras
My contribution to the 40th anniversary of the Journal of Legal Pluralism and Unofficial Law is a call for further development of a methodology, ethnography, and an anthropologist’s reflection on how it has been conceived (and underdeveloped) so far in the field of socio-legal studies and research on contemporary judicial systems. Studying on the ground how and by whom law is applied – or disregarded, changed, contested – has been one of the main goals of legal anthropology since its inception as a field of study (Bens and Vetters 2018). However, it has been carried out mainly in post-colonial contexts, despite the fact that since the 1970s anthropologists have also turned their attention to the elites of the West (Nader 1972) and shared a broadened conception of pluralism that takes “official law seriously as a subject of ethnographic research” (Bens and Vetters 2018, 240). The point is that in-depth ethnographies devoted to western judicial systems are still rare, and the few we find take a narrow approach that focuses on what happens in the courtroom. The problem, then, is not only to do ethnography about (or in) the judiciary, but to decide what kind of ethnography to do. I elaborate on this critique in the remainder of this essay, proposing some lines of research and approaches that draw on the classical formulation of the case study, as well as on recent works published in this journal and in the context of southern Europe (Spain and Italy). Most ethnographies about the judiciary in contemporary societies take courts as their only space for observation (there is a so-called “courtroom ethnography”, in fact). Additionally, they do so using approaches more or less related to ethnomethodology – conversation analysis, semiotics and dramaturgy – focusing on the analysis of discourses, symbols and interactions: the setting and atmosphere in the courtroom, the routines and performances of the different actors, the dialogues they establish, etc., in order to consider what all this reveals about the different roles, hierarchies, legal cultures and ideologies involved (Philips 1998; Garapon 1999; Dahlberg 2009; Bens 2018). These courtroom-centred ethnographies offer vivid descriptions and detailed analyses of particular proceedings. They identify unsuspected issues, such as patterns of behaviour, distinctive judging styles, and conflict and power dynamics, among others (Conley and O’Barr 1988, 478–479). However, as discourse analysts recognise,
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