Pub Date : 2020-11-02DOI: 10.1080/07329113.2020.1837465
Waheeda Amien, K. Rajwani
Abstract This paper explores potential solutions to address the unequal access of Jewish women to religious divorce known as a get in the legal context of South Africa. We assess rabbinical and state (judicial and legislative) responses to the issue of get refusal in Orthodox and Conservative South African Jewish communities and show that there are significant limitations to the effectiveness of their responses. By drawing on South African case law and parallel rulings on religious entanglement in the United States of America, we illustrate the legal viability of judicial enforcement of a ketubah (Jewish marriage contract) in South Africa. In particular, we argue that inclusion, recognition, and enforcement of maintenance clauses in the ketubah by South African courts can incentivize recalcitrant husbands to issue a get. We further address the need for legislation to solidify the judicial enforceability of a ketubah, thereby ensuring timely and equitable access to religious divorce for Jewish women in South Africa.
{"title":"Equalizing gendered access to Jewish divorce in South Africa","authors":"Waheeda Amien, K. Rajwani","doi":"10.1080/07329113.2020.1837465","DOIUrl":"https://doi.org/10.1080/07329113.2020.1837465","url":null,"abstract":"Abstract This paper explores potential solutions to address the unequal access of Jewish women to religious divorce known as a get in the legal context of South Africa. We assess rabbinical and state (judicial and legislative) responses to the issue of get refusal in Orthodox and Conservative South African Jewish communities and show that there are significant limitations to the effectiveness of their responses. By drawing on South African case law and parallel rulings on religious entanglement in the United States of America, we illustrate the legal viability of judicial enforcement of a ketubah (Jewish marriage contract) in South Africa. In particular, we argue that inclusion, recognition, and enforcement of maintenance clauses in the ketubah by South African courts can incentivize recalcitrant husbands to issue a get. We further address the need for legislation to solidify the judicial enforceability of a ketubah, thereby ensuring timely and equitable access to religious divorce for Jewish women in South Africa.","PeriodicalId":44432,"journal":{"name":"Journal of Legal Pluralism and Unofficial Law","volume":null,"pages":null},"PeriodicalIF":0.6,"publicationDate":"2020-11-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"73570011","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 : 2020-10-23DOI: 10.1080/07329113.2020.1835220
A. Speed
Abstract It is widely documented that the formal family justice system in England and Wales is in crisis. The family courts are plagued by delays and backlogs, whilst parties struggle to secure access to advice and representation due to cuts to public funding. Increasingly, litigants face economic, physical and cultural barriers to courts brought about by rising court fees, reforms to the court system and demographic changes which have resulted in diverse family forms for whom the family courts may have little legitimacy. The first part of this article examines how recent changes to family law and policy in England and Wales have reduced the ease with which parties are able to achieve procedural and substantive justice through the family courts. The second part of the article analyses how forums of dispute resolution which are delivered by non-state actors, but which rely on the state for their authority, have evolved to fill this justice gap and are therefore indicative of a move towards ‘weak’ legal pluralism in the context of family justice. It is argued that although the family courts are still an important cornerstone of the justice landscape, alternative forums of dispute resolution increasingly play a positive role in enabling disputants to achieve their procedural and substantive goals and this is strengthened by a weak approach to legal pluralism which upholds the autonomy of the parties whilst also ensuring necessary protections and safeguards for vulnerable litigants. The article therefore challenges critics of weak pluralism, who perceive that reliance on state recognition precludes institutions playing an important role outside of the state hierarchy.
{"title":"Just-ish? An analysis of routes to justice in family law disputes in England and Wales","authors":"A. Speed","doi":"10.1080/07329113.2020.1835220","DOIUrl":"https://doi.org/10.1080/07329113.2020.1835220","url":null,"abstract":"Abstract It is widely documented that the formal family justice system in England and Wales is in crisis. The family courts are plagued by delays and backlogs, whilst parties struggle to secure access to advice and representation due to cuts to public funding. Increasingly, litigants face economic, physical and cultural barriers to courts brought about by rising court fees, reforms to the court system and demographic changes which have resulted in diverse family forms for whom the family courts may have little legitimacy. The first part of this article examines how recent changes to family law and policy in England and Wales have reduced the ease with which parties are able to achieve procedural and substantive justice through the family courts. The second part of the article analyses how forums of dispute resolution which are delivered by non-state actors, but which rely on the state for their authority, have evolved to fill this justice gap and are therefore indicative of a move towards ‘weak’ legal pluralism in the context of family justice. It is argued that although the family courts are still an important cornerstone of the justice landscape, alternative forums of dispute resolution increasingly play a positive role in enabling disputants to achieve their procedural and substantive goals and this is strengthened by a weak approach to legal pluralism which upholds the autonomy of the parties whilst also ensuring necessary protections and safeguards for vulnerable litigants. The article therefore challenges critics of weak pluralism, who perceive that reliance on state recognition precludes institutions playing an important role outside of the state hierarchy.","PeriodicalId":44432,"journal":{"name":"Journal of Legal Pluralism and Unofficial Law","volume":null,"pages":null},"PeriodicalIF":0.6,"publicationDate":"2020-10-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"86296853","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 : 2020-10-13DOI: 10.1080/07329113.2020.1833574
M. Wiber
In this volume, Braverman and Johnson bring together 15 contributions, plus an introduction and afterword, all focused on the legalities surrounding the global oceans. In their introduction, Braver...
{"title":"Blue Legalities. The Life & Laws of the Sea","authors":"M. Wiber","doi":"10.1080/07329113.2020.1833574","DOIUrl":"https://doi.org/10.1080/07329113.2020.1833574","url":null,"abstract":"In this volume, Braverman and Johnson bring together 15 contributions, plus an introduction and afterword, all focused on the legalities surrounding the global oceans. In their introduction, Braver...","PeriodicalId":44432,"journal":{"name":"Journal of Legal Pluralism and Unofficial Law","volume":null,"pages":null},"PeriodicalIF":0.6,"publicationDate":"2020-10-13","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"75087042","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 : 2020-08-20DOI: 10.1080/07329113.2020.1810995
Alma Begicevic
{"title":"Constituting Religion: Islam, Liberal Rights, and the Malaysian State","authors":"Alma Begicevic","doi":"10.1080/07329113.2020.1810995","DOIUrl":"https://doi.org/10.1080/07329113.2020.1810995","url":null,"abstract":"","PeriodicalId":44432,"journal":{"name":"Journal of Legal Pluralism and Unofficial Law","volume":null,"pages":null},"PeriodicalIF":0.6,"publicationDate":"2020-08-20","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"90313819","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 : 2020-05-03DOI: 10.1080/07329113.2020.1755577
T. Ledvinka
Abstract The legacy of Jacob Grimm, one of the Grimm brothers, is not limited to philological, mythological and folklore studies but also includes significant research into law and legal culture, which was seen as archaeological in his time. This resonated in classics of social and legal anthropology but was largely repudiated due to the anti–German sentiments raised around the World Wars. Some scholars have praised Jacob as the founder of legal ethnography and archaeology as well as legal pluralism, while others have criticized him as a nationalist inventor of a single German customary law. This paper argues that while Jacob’s legal research was tightly related to the German politics of self–determination; it is a distinct scholarly work whose many aspects are pertinent even for more recent socio–legal ethnographies. It points out especially the philological origins of his concept of law and the idea of legal poetry as a key factor in the formation of anthropological legal pluralism. Finally, Jacob’s attempt to understand the law in the past is seen as a transitional scholarly moment of the disenchantment of the law, which was closed before in theological and philological forms, that inaugurated the road to contemporary legal anthropology.
{"title":"The disenchantment of the lore of law: Jacob Grimm's legal anthropology before anthropology","authors":"T. Ledvinka","doi":"10.1080/07329113.2020.1755577","DOIUrl":"https://doi.org/10.1080/07329113.2020.1755577","url":null,"abstract":"Abstract The legacy of Jacob Grimm, one of the Grimm brothers, is not limited to philological, mythological and folklore studies but also includes significant research into law and legal culture, which was seen as archaeological in his time. This resonated in classics of social and legal anthropology but was largely repudiated due to the anti–German sentiments raised around the World Wars. Some scholars have praised Jacob as the founder of legal ethnography and archaeology as well as legal pluralism, while others have criticized him as a nationalist inventor of a single German customary law. This paper argues that while Jacob’s legal research was tightly related to the German politics of self–determination; it is a distinct scholarly work whose many aspects are pertinent even for more recent socio–legal ethnographies. It points out especially the philological origins of his concept of law and the idea of legal poetry as a key factor in the formation of anthropological legal pluralism. Finally, Jacob’s attempt to understand the law in the past is seen as a transitional scholarly moment of the disenchantment of the law, which was closed before in theological and philological forms, that inaugurated the road to contemporary legal anthropology.","PeriodicalId":44432,"journal":{"name":"Journal of Legal Pluralism and Unofficial Law","volume":null,"pages":null},"PeriodicalIF":0.6,"publicationDate":"2020-05-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"90725697","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 : 2020-05-03DOI: 10.1080/07329113.2020.1796296
Sophia Sabrow
Abstract This paper addresses the question of why states enforce certain legal rules but not others. While systematic non-enforcement of laws is considered undesirable in a positivist sense, this article perceives non-enforcement as a deliberate tool of mediation. Arguing that laws can regulate social behaviour beyond their literal application, non-enforcement can become a mechanism to mediate between contradicting legal orders that coexist in the same socio-legal space. A case study of non-enforcement of Sharia legal codes in northern Nigeria illustrates my argument. I seek to explain why certain Sharia provisions are carried out, while others remain systematically unenforced despite sophisticated enforcement mechanisms. Through expert interviews and an interpretative media analysis, I claim that this is the result of a compromise in order to mediate between Sharia Law on the one hand and secular Common Law on the other. Despite undesirable side effects, non-enforcement has so far guaranteed stability around the highly sensitive issue in Nigeria. My data furthermore suggests that we have to look beyond the literal enforcement of laws in order to understand their social meaning and how they influence behaviour.
{"title":"Non-enforcement as a tool of mediation in pluralistic societies","authors":"Sophia Sabrow","doi":"10.1080/07329113.2020.1796296","DOIUrl":"https://doi.org/10.1080/07329113.2020.1796296","url":null,"abstract":"Abstract This paper addresses the question of why states enforce certain legal rules but not others. While systematic non-enforcement of laws is considered undesirable in a positivist sense, this article perceives non-enforcement as a deliberate tool of mediation. Arguing that laws can regulate social behaviour beyond their literal application, non-enforcement can become a mechanism to mediate between contradicting legal orders that coexist in the same socio-legal space. A case study of non-enforcement of Sharia legal codes in northern Nigeria illustrates my argument. I seek to explain why certain Sharia provisions are carried out, while others remain systematically unenforced despite sophisticated enforcement mechanisms. Through expert interviews and an interpretative media analysis, I claim that this is the result of a compromise in order to mediate between Sharia Law on the one hand and secular Common Law on the other. Despite undesirable side effects, non-enforcement has so far guaranteed stability around the highly sensitive issue in Nigeria. My data furthermore suggests that we have to look beyond the literal enforcement of laws in order to understand their social meaning and how they influence behaviour.","PeriodicalId":44432,"journal":{"name":"Journal of Legal Pluralism and Unofficial Law","volume":null,"pages":null},"PeriodicalIF":0.6,"publicationDate":"2020-05-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"79919287","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 : 2020-05-03DOI: 10.1080/07329113.2020.1794405
Margaret O'Brien
{"title":"Transformations on the ground: space and the power of land in Botswana","authors":"Margaret O'Brien","doi":"10.1080/07329113.2020.1794405","DOIUrl":"https://doi.org/10.1080/07329113.2020.1794405","url":null,"abstract":"","PeriodicalId":44432,"journal":{"name":"Journal of Legal Pluralism and Unofficial Law","volume":null,"pages":null},"PeriodicalIF":0.6,"publicationDate":"2020-05-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"74636586","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 : 2020-05-03DOI: 10.1080/07329113.2020.1780387
Emma Charlene Lubaale
Abstract This article makes a contribution to existing literature by developing a pluralist account for international criminal justice, specifically where there are Traditional Justice Mechanisms (TJMs) at play. This account has the effect of challenging the dominant assumption that TJMs have no place in international criminal justice, in particular, where the option to conduct criminal prosecution is considered. Subsequent to the background section, the second section engages with literature on legal pluralism in international criminal justice. This review constitutes an analytical framework for evaluating the ways in which TJMs can interact with other systems of justice. The third section provides an overview of the Ugandan conflict with a view to demonstrating the multiple approaches invoked in addressing the effects of the conflict in Uganda. The fourth section gives an overview of the scope and nature of TJMs while the fifth section engages with the criticisms leveled against TJMs. In light of the discussion in the fifth section, it is recommended that if TJMs in Uganda are to be properly contextualized and understood, there is a need to interpret the Juba Peace Agreement through a legal pluralism lens. The sixth section engages with the practical ways that TJMs can play a role in criminal proceedings before the ICC and national courts. Overall, the argument advanced is that where the option to prosecute is considered by the ICC, TJMs should, on a case by case basis, play a role within the framework of international criminal justice. Rather than choosing between TJMs and international criminal justice, emphasis should be placed on how TJMs and international criminal justice complement each other.
{"title":"Legal pluralism as a lens through which to understand the role and place of TJMS in international criminal justice","authors":"Emma Charlene Lubaale","doi":"10.1080/07329113.2020.1780387","DOIUrl":"https://doi.org/10.1080/07329113.2020.1780387","url":null,"abstract":"Abstract This article makes a contribution to existing literature by developing a pluralist account for international criminal justice, specifically where there are Traditional Justice Mechanisms (TJMs) at play. This account has the effect of challenging the dominant assumption that TJMs have no place in international criminal justice, in particular, where the option to conduct criminal prosecution is considered. Subsequent to the background section, the second section engages with literature on legal pluralism in international criminal justice. This review constitutes an analytical framework for evaluating the ways in which TJMs can interact with other systems of justice. The third section provides an overview of the Ugandan conflict with a view to demonstrating the multiple approaches invoked in addressing the effects of the conflict in Uganda. The fourth section gives an overview of the scope and nature of TJMs while the fifth section engages with the criticisms leveled against TJMs. In light of the discussion in the fifth section, it is recommended that if TJMs in Uganda are to be properly contextualized and understood, there is a need to interpret the Juba Peace Agreement through a legal pluralism lens. The sixth section engages with the practical ways that TJMs can play a role in criminal proceedings before the ICC and national courts. Overall, the argument advanced is that where the option to prosecute is considered by the ICC, TJMs should, on a case by case basis, play a role within the framework of international criminal justice. Rather than choosing between TJMs and international criminal justice, emphasis should be placed on how TJMs and international criminal justice complement each other.","PeriodicalId":44432,"journal":{"name":"Journal of Legal Pluralism and Unofficial Law","volume":null,"pages":null},"PeriodicalIF":0.6,"publicationDate":"2020-05-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"80673394","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 : 2020-05-03DOI: 10.1080/07329113.2020.1796297
M. Bavinck
Abstract This paper considers the contribution of legal pluralism scholarship to the field of socio-technical transition studies. Making use of a case study on the changeover to ring seine fishing in India, it pays particular attention to the implications of legal pluralism – or the co-existence of multiple legal systems in a societal field – for the stability of such transitions. Ring seine fishing developed in particular niches in the 1970s to spread swiftly throughout the subcontinent, dividing the fisher population into fervent protagonists and antagonists. Arguing that socio-technical innovations are often contested and that rival parties make use of alternative legal systems to advance their rights, the paper suggests that so-called regimes function as arenas for deliberating and battling alternative futures in fishing. Rather than creating stability for a particular socio-technical transition, such regimes may actually mask deep socio-legal divides.
{"title":"Implications of legal pluralism for socio-technical transition studies – scrutinizing the ascendancy of the ring seine fishery in India","authors":"M. Bavinck","doi":"10.1080/07329113.2020.1796297","DOIUrl":"https://doi.org/10.1080/07329113.2020.1796297","url":null,"abstract":"Abstract This paper considers the contribution of legal pluralism scholarship to the field of socio-technical transition studies. Making use of a case study on the changeover to ring seine fishing in India, it pays particular attention to the implications of legal pluralism – or the co-existence of multiple legal systems in a societal field – for the stability of such transitions. Ring seine fishing developed in particular niches in the 1970s to spread swiftly throughout the subcontinent, dividing the fisher population into fervent protagonists and antagonists. Arguing that socio-technical innovations are often contested and that rival parties make use of alternative legal systems to advance their rights, the paper suggests that so-called regimes function as arenas for deliberating and battling alternative futures in fishing. Rather than creating stability for a particular socio-technical transition, such regimes may actually mask deep socio-legal divides.","PeriodicalId":44432,"journal":{"name":"Journal of Legal Pluralism and Unofficial Law","volume":null,"pages":null},"PeriodicalIF":0.6,"publicationDate":"2020-05-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"86841097","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 : 2020-04-23DOI: 10.1080/07329113.2020.1755537
Marco Motta
Abstract The general concern of this paper revolves around the interplay between state and unofficial law in rural Haiti. By looking at the complex relation between legal and extrajudicial means of managing the consequences of a homicide, I examine the dynamics of imposition, appropriation, and resistance to state law in a postcolonial context. Yet, my concern is less with the devastating manifestation of overt violence than with the quotidian struggles people have to deal with, which I call “the silent wars of the ordinary.” Through a close description of the case at hand, I aim to draw a different picture of what commonly counts as law, as well as the ways in which people relate to the judiciary. My ambition is to allow for another understanding of the making of ordinary legality by demonstrating how the silent wars of the ordinary are intrinsically constitutive of such making.
{"title":"The silent wars of the ordinary: bitter neighborliness and the judiciary in Haiti","authors":"Marco Motta","doi":"10.1080/07329113.2020.1755537","DOIUrl":"https://doi.org/10.1080/07329113.2020.1755537","url":null,"abstract":"Abstract The general concern of this paper revolves around the interplay between state and unofficial law in rural Haiti. By looking at the complex relation between legal and extrajudicial means of managing the consequences of a homicide, I examine the dynamics of imposition, appropriation, and resistance to state law in a postcolonial context. Yet, my concern is less with the devastating manifestation of overt violence than with the quotidian struggles people have to deal with, which I call “the silent wars of the ordinary.” Through a close description of the case at hand, I aim to draw a different picture of what commonly counts as law, as well as the ways in which people relate to the judiciary. My ambition is to allow for another understanding of the making of ordinary legality by demonstrating how the silent wars of the ordinary are intrinsically constitutive of such making.","PeriodicalId":44432,"journal":{"name":"Journal of Legal Pluralism and Unofficial Law","volume":null,"pages":null},"PeriodicalIF":0.6,"publicationDate":"2020-04-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"79019717","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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