Normative Pluralism and Human Rights

Social Normativities in Conflict

Kyriaki Topidi

• Publisher: Routledge
• Year: 2018
• eBook ISBN: 9781351676496
• Edition: 1
• Topic: Law
• Subtopic: Civil Rights in Law
• Index: Law

The complex legal situations arising from the coexistence of international law, state law, and social and religious norms in different parts of the world often include scenarios of conflict between them. These conflicting norms issued from different categories of 'laws' result in difficulties in describing, identifying and analysing human rights in plural environments.

This volume studies how normative conflicts unfold when trapped in the aspirations of human rights and their local realizations. It reflects on how such tensions can be eased, while observing how and why they occur. The authors examine how obedience or resistance to the official law is generated through the interaction of a multiplicity of conflicting norms, interpretations and practices. Emphasis is placed on the actors involved in raising or decreasing the tension surrounding the conflict and the implications that the conflict carries, whether resolved or not, in conditions of asymmetric power movements. It is argued that legal responsiveness to state law depends on how people with different identities deal with it, narrate it and build expectations from it, bearing in mind that normative pluralism may also operate as an instrument towards the exclusion of certain communities from the public sphere. The chapters look particularly to expose the dialogue between parallel normative spheres in order for law to become more effective, while investigating the types of socio-legal variables that affect the functioning of law, leading to conflicts between rights, values and entire cultural frames.

1 Introduction

Conflicts over justice and hybrid social actors as legal agents

Werner Menski

Prologue: a biographical note

More than 70 years after the end of World War II, the world is still suffering much conflict and wanton violence. In fact, chaos looms in the ‘trumped’ USA and a soon-to-be dis-Mayed UK that misled its voters that it would be feasible, in this globally connected world, to insist on ‘sovereignty’. World War II may have ended in 1945, but today the globe has more refugees and displaced people than we have seen at any time in history, as serious disputes flare up on all major continents. In such chaotic conditions, various reverberations of earlier and present conflicts affect how we feel, think, act and react, in many more ways than are immediately obvious. Connected to this, mapping conflicts in relation to human rights remains a huge challenge today, a conundrum in the view of many observers, but that word and/or image does not help take us forward,¹ neither in theory nor in practice. I hope and in fact insist that we can do better than that.

A few years ago, helped by a young Indian historian, I examined Jürgen Habermas as a modern social thinker for an Indian collection of articles (Menski, 2012a). We found that his original theorising was too eurocentric and did not go far enough in critiquing violence in the public sphere. Researching that piece also opened our eyes to the so-called ‘accident of birth’ affecting how post-War Germans recovered from the disastrous conflict their leaders had caused. Habermas, who was 16 in 1945, could immediately carry on his education to become the international star (Menski, 2012a: 180) he still is today. My father, trained as a village teacher at a young age to replace a schoolmaster drawn into the army in 1943, turned 19 in 1945. But he was not lucky. After having to serve in the army from 1944 onwards, he became a prisoner of war somewhere in Belgium until 1948, in atrocious conditions that he never wanted to speak about. On release, he had nowhere to go, as his home was now in Poland. A stranger in his own country, forced to rebuild his life from scratch, he also did not know the whereabouts of his family, who eventually turned out to be spread all over Germany. That young man, like Habermas shocked to discover what had really happened (Menski, 2012a: 182), never trusted politicians and the state, which explains to some extent why in due course I became more critical than Habermas about abuses of power and turned into a legal pluralist deeply concerned about conflicts manipulated by individuals in the name of some official law or ideology.

I remember seeing Hamburg in ruins in the early 1950s, never imagining that more than 60 years later I would contribute to a book on conflict. Finding earlier that a major strand running through the work of Habermas is ‘fear of violence and abuse of power’ (Menski, 2012a: 181), I seem to have reacted to this memorable imprint on my mental map by concluding that Habermas had not gone far enough in his activism of opposing violent conflict. Particularly his insistence on secular rationality had led him to develop a eurocentric blind spot regarding the power of religion and connected normativities. I respect Habermas for admitting this omission, which he famously rectified after 9/11 (Borradori, 2003; Habermas, 2008; 2010). This revised theorising now implicitly endorses the viability of legal pluralism studies as a mapping exercise for better understanding of discourses about the public space and the ubiquitous, multi-layered phenomenon of conflict.

The focus of the current collection of articles

When I was asked earlier to contribute to Topidi and Fielder (2016), in the light of the comments above, it made sense to support the key arguments of that study about religion as a form of empowerment. Similarly, regarding connections of law and ‘culture’ in relation to human rights protection, I did not hesitate to provide this introduction about the potential for constructive use of ‘hybrid social normativities’ in efforts to promote and protect human rights. This longish phrase is akin to, and at the same time much more than, the elusive scintillating concept of ‘culture’, itself a highly pluralistic interdisciplinary entity. In a broadly speaking legal context, ‘hybrid social normativities’ can evidently mean many different things. It signifies interdisciplinarity, something plural and socio-legal, but is also about values and identity. It is more diverse than ‘mixed jurisdictions’, a label that stresses the plurality of legal orders, but speaks too little about interdisciplinary overlaps and the impacts of law-related disciplines.² As the sphere of hybrid social normativities extends also to values and ethics, ‘normativities’ are not merely a plethora of ‘customs’ of various kinds, but also the values and identity markers connected to socio-cultural patterns, structures and processes. Since the socio-cultural sphere partly overlaps with economics and politics, and also extends to the wide field of human rights activism and international law engagement, even prominent phenomena like ‘civil society’ would fall under this broad label. This deeply hybrid entity is therefore, it appears, composed of all the necessary ingredients for negotiating disputes and, hopefully, balancing agreeable outcomes. It combines elements of the social, the legal and the ethical, in different mixes at different moments, and thus needs to be understood and watched as a chameleon-like entity. It may harmoniously blend in at certain times, may even become invisible, but then it may also suddenly change colour, become aggressive, pose risks and enlarge conflicts. Akin in many ways to ‘law’ itself, then, especially if we do not restrict that label only to a narrow state-centric force, ‘hybrid social normativities’ either supplement or strengthen any legal order that already exists, or they may seek to oppose, undermine or challenge such law.³

All articles in this volume discuss and test the nature and strength of the connections between ‘law’ in a narrow sense, ‘human rights’ as an alternative choice of words for ‘justice’, and the undeniable, often elusive impacts and influences of ‘hybrid social normativities’, which remain difficult to identify without appropriate lenses or analytical tools. These articles began their life in the laboratory of a series of international doctoral training workshops on legal pluralism and human rights, organised by the editor and the University of Lucerne, with support from several other institutions and individuals, including myself. It is an entirely rational progression that we now cooperate in producing this volume. Composed of highly disparate papers, it needs to contain a clear message to readers, hopefully provided by this introduction.

The doctoral training seminars were advising young researchers that if your project wants to write about everything, you are actually writing about nothing. Aware of that risk, the question arises now what this book is trying to convey. I first provide a comprehensive mapping of the nature and perceptions of conflicts that readers are going to encounter in the various chapters,⁴ always with an eye on the core aim of human rights protection and the complications presented by law’s inherent plurality. A further section then enlarges the discourse on conflict itself, showing that it need not be perceived as a negative process. Disputes and conflicts arise out of the hybridity of roles and decision-making processes that various actors display, motivated by different values and normativities. These have to be tested in their practical application, always focused on the plurality-conscious key image, as I see it, of law as a kite, outlined below. The continuously cultivated key argument becomes therefore that a variety of social actors and their disparate concerns, voices and values needs to be constantly accounted for if constructive human rights-focused activity is to result in better practice than seen at present. Simply cutting out the ‘traditional’ voices of ‘culture’ and ‘society’ in efforts to introduce ‘modern’ or ‘progressive’ laws and safeguard deeper levels of human rights protection is not going to be successful unless we acknowledge that ‘law’, as a situation-specific, context-dependent and always highly dynamic entity, has to be debated in a plurality-conscious interdisciplinary manner. Whether one calls that ‘decentralisation’, as Chapter 11 suggests, ‘adaptation’ (Chapter 12), ‘communication’ (Chapter 13), or something else, it always seems necessary to allow space for competing and conflicting understandings of various voices and their reasons to differ. Rather than ruthless assertions of power, this demands engagement in negotiation and balancing acts, which may result in a partly unsatisfactory compromise for all stakeholders. Simply demanding perfect justice, as we shall see, could itself be toxic. ‘Good law’, also sensible ‘living law’ (Menski, 2012b), this means to say, is more than the sum total of state-centric laws, human rights and international law provisions. It needs, which is the key message of this volume, the constructive input of hybrid social normativities to be turned, through well-considered processes of inclusive discourse and practical application, into a lived reality that is sustainable and capable of protecting basic human rights in various specific contexts.

Putting it this way, another important lesson from the doctoral workshops can be added here, related to the theme of limits of law (Allott, 1980). In the seminars leading to this book, we jokingly concluded at some point, on a nice Alm outside Lucerne, that there could not be a viable human right to a Postdoctoral Fellowship for all doctoral students! This indicates the painful realisation that some kind of socio-cultural relativism applies also to basic notions of human rights, which remain subject to multiple limits and constraints in the constantly developing understandings of concepts of justice. This does not make human rights or international law principles irrelevant, redundant or even deficient. It suggests, however, supporting argumentative presumptions backgrounded by history (Sen, 2006), that such competing claims about rights and obligations, about fairness and respect for difference, always need to remain open for debate and adjustments. In that process, they require the constructive input of all law-related entities to become a ‘good’ lived reality. Equally important, the various human actors involved in such conflicts and discussions need to engage in altruistic abstinence from exploiting majoritarian advantages rather than self-righteous manipulation of power imbalances.

Maps and perceptions of conflict

Current events and developments in the world confirm, however, that self-righteous bullying remains rife, so that the prominent phenomenon of conflict and its (ab)use, in the daily life of individuals, societies, states and the global community, continues to take many shapes, with many competing agenda, multiple purposes and numerous disparate, often disastrous outcomes. Readers who know my recent work, still building on Menski (2006), yet going far beyond it now in a series of articles on law as kite flying (see Menski 2012b, 2013, 2014a, 2014b, 2014c, and much else more recently), will instantly realise that this way of framing conflict relies on complex perceptions of legal pluralism and its practical application, part of ongoing global discourses on justice (Jamal, 2018; Menski, 2016a; Sen, 2009).

Since this volume grew out of a series of international doctoral workshops, partly concerned with different aspects of legal pluralism, all contributors to this volume are familiar with my theorising of law as a kite, yet may of course not endorse it, or simply do not mention it. In fact, as Professor Marie-Claire Foblets has commented on more than one occasion, taking legal pluralism for granted and getting on with the real job of producing world-class literature on how law and anthropology can together create a better world seems to be the real task of legal anthropology today. Yet this knowing silence about an underlying theoretical model or pattern of theorising law as a hybrid plural entity does not help readers who have no mental map of this kite methodology present before them to follow what this volume is trying to say.⁵ Hence I must explain here briefly how that map of the kite model works and what its implications for the present study are.

In fact this kite methodology seems as much a matter of common sense than sophisticated legalistic theorising. It seeks to understand the complexities inherent in different manifestations of ‘living law’ all over the world, testing whether this is ‘good law’ (Menski, 2012b). In that normative context, it asserts that neither state law nor human rights law or international law, though prominent today, are ever the only form of ‘law’ needed while searching for the ‘right law’, as the neo-Kantian legal philosopher Rudolf Stammler (1856–1938) called this long ago. Neither of these may be even the dominant form of law in a specific context, given the highly dynamic nature and culture-specificity of law and the subjective positionality, differential power status and levels of agency of all kinds of individuals as law-related decision-makers. Basically, the kite model shows that there are always four competing types of different kinds of law acting together, in varying relationships of competition and power, explained immediately below and illustrated, if readers can see the wood for the trees, throughout this volume. In brief (see Menski, 2013: 26), at the top, imagine corner 1 representing various forms of traditional natural law, ethics and values, including religion. On the right, envisage corner 2, which signifies various hybrid social normativities as well as economic sustainability. On the left, find corner 3, representing the various familiar forms and manifestations of state law, while corner 4 at the bottom concentrates on the new natural law of human rights and international law.

That is, however, only the first level or layer of legal plurality, resulting in the dynamic image of a kite that flies in the air and needs to be balanced, through application of legal pluralism as a navigating skill, to avoid crashing.⁶ For the purposes of plurality-conscious navigation, one needs to imagine a second layer of plurality hidden in this kite model. The first realisation that this may be so is found in the triangular image of law (Menski, 2006: 612) and the accompanying concluding discussion about law’s intrinsically plural nature. The 2006 triangle with its intricate numbering system already clarifies that most of socio-legal normativity (in corner 1 of that image), of state law (in corner 2) and of religious, ethical and moral principles (in corner 3) are in fact mixed or hybrid entities and are not purely composed of the core ingredient of the respective corner.⁷ Elements 11, 22 and 33 (Menski, 2006: 612) are manifestly not the norm and the dominant reality is mixity and hybrid plurality.

When the triangle morphed into a kite, the numbering system was changed and a fourth corner emerged. The subsequent realisation that all these four elements are actually contained in all four kite corners, spread all over the conceptual space of the kite of law, albeit with different characteristics and mixities, led me to graphically represent that every corner contains in itself virtually another kite, comprising each time elements of all the four types of law identified above (see Menski, 2013). This complex dual-level structure, referred to as a power kite, helps to identify conflicts of powers in decision-making between the more ethically focused power from within (corner 1), the more social power exercised with others (corner 2), powers over others in a legal/political sense (corner 3), and finally powers from within and over others as a result of the ‘double whammy’ or combined authority claims of human rights and international law today. It is really that simple as a basic descriptive structure. However, in practice these kite corners represent also normative entities. Combined in particular sequences of decision-making processes, they always depend on a plethora of contextual parameters that influence the modalities of the use of these various components. All of this, it seems, is not only hybrid, but highly volatile and dynamic,⁸ since anything may happen at any time.⁹

Faced with this complex internal plurality of law-related entities, one will certainly not always see the expected results of earlier planning, policy making or mapping, however carefully devised. This is a further aspect of the limits of law, elaborately discussed by Allott (1980). Indeed, the outcome may be further conflict and intensification of disputes rather than settlement. One major reason for this, but not a good enough excuse for tolerating chaos and further abuse, could be that the respective legal navigators work with conceptually difficult and to some extent ‘liquid’ building blocks.¹⁰ While there simply is no global agreement on what we mean by ‘law’ (Menski, 2006: 32; Tamanaha, 2008: 391; 2009: 17), ‘religion’ and ‘culture’ are also heavily contested basic elements. In the necessarily interdisciplinary discourses about human rights, the term ‘human rights’ itself, too, ‘contains a multitude of meanings that cross many academic disciplines’ and is thus ‘an inherently interdisciplinary subject’ (Gearty, 2008: 553). This means that human rights discourse, everywhere, ‘runs a thousand narrative risks’ (Baxi, 2002: ix) and has to face the reality, for example, that there are ‘as many NGOs as there are human rights’ (Baxi, 2002: 50).

It is of course not good enough to state that everything is complex and plural, and then just to move on, for the result can only be further partial theorising, fussy fuzziness and more unproductive conflict. Meanwhile, something else seems to have happened. Partly propelled by widespread frustration that conflicts cannot be avoided, much attention has shifted to the currently fashionable field of post-conflict reconstruction, now a veritable growth industry within the larger domains of law and anthropology, resembling the MILLI phenomenon in relation to Islam.¹¹ Yet without deeper understanding of the inner nature of ‘conflict’, which constantly re-appears, despite creation of a UN prevention industry (Mellbourn and Wallensteen, 2008), this all becomes dramatised group da...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright Page
• Dedication
• Table of Contents
• List of Figures
• List of contributors
• Foreword
• Acknowledgments
• 1. Introduction: conflicts over justice and hybrid social actors as legal agents
• PART I: Preventing conflict
• 3. Managing language in multicultural societies: learning from the Indian experience
• PART II: Articulating conflict
• PART III: Processing conflict
• PART IV: Resolving conflict
• Index