Applied Legal Pluralism

Processes, Driving Forces and Effects

Ghislain Otis, Jean Leclair, Sophie Thériault

• Publisher: Routledge
• Year: 2022
• ISBN:
  9781000609127
• Edition: 1
• Topic: Derecho
• Subtopic: Teoría y práctica del derecho

This book offers a comparative study of the management of legal pluralism.

The authors describe and analyse the way state and non-state legal systems acknowledge legal pluralism – defined as the coexistence of a state and non-state legal systems in the same space in respect of the same subject matter for the same population - and determine its consequences for their own purposes. The book sheds light on the management processes deployed by legal systems in Africa, Canada, Central Europe and the South Pacific, the multitudinous factors circumscribing the action of systems and individuals with respect to legal pluralism, and the effects of management strategies and processes on systems as well as on individuals. The book offers fresh practical and analytical insight on applied legal pluralism, a fast-growing field of scholarship and professional practice. Drawing from a wealth of original empirical data collected in several countries by a multilingual and multidisciplinary team, it provides a thorough account of the intricate patterns of state and non-state practices with respect to legal pluralism.

As the book's non-prescriptive approach helps to uncover and evaluate several biases or assumptions on the part of policy makers, scholars and development agencies regarding the nature and the consequences of legal pluralism, it will appeal to a wide range of scholars and practitioners in law, development studies, political science and social sciences.

Chapter 1 Processes of legal pluralism management

Ghislain Otis and Sophie Thériault

DOI: 10.4324/9781003288114-2

Introduction

Chapter 1 of this book offers a detailed analysis of processes of managing legal pluralism that emerge primarily, but not exclusively, from the cases studied by the researchers in the Legitimus project.¹ In practice, these processes can be broken down into a variety of modes, and then further into an array of inter-systemic relational models.²

1 This of course in no way rules out the possibility of other dynamics and processes being observed through research in other regions or with other communities. 2 For a comprehensive study of the various models of relationships between State and non-State orders, see Miranda Forsyth, “A Typology of Relationships between State and Non-State Justice Systems” (2007) 39:56 J Leg Pluralism & Unofficial L 67. See also Erica Harper, Customary Justice: From Program Design to Impact Evaluation (Rome: International Development Law Organization, 2011) at 80–93.

To properly present the analysis, we will begin by providing a few definitions of the terms and expressions used in the following pages. First, by the “management” of legal pluralism, we mean the measures taken by one legal system to determine and implement the consequences of the existence of one or more additional legal systems applying on the same territory, to the same people, in respect of the same matters. Accordingly, the “processes” for managing legal pluralism are the methods and actions that one legal system employs to determine and implement the consequences of the existence of one or more additional legal systems. By the term “managing system,” we are referring to the system that, for its own purposes, implements actions and takes measures with respect to the consequences of the existence of one or more additional legal systems. The “system of reference” is the one that the managing system refers to in order to determine what those consequences are, and how it may apply them for its own purposes.

The cases studied have made it possible to identify two broad categories of processes that legal systems use to manage legal pluralism: management by articulation and management by adaptation. Articulation takes place when the managing system acknowledges the existence of another system (the system of reference) and gives that other system some measure of direct legal effect. Adaptation takes place when the managing system, as a result of its proximity with another system, adapts and transforms yet does not recognize the reference system as a binding legal source of principles, rules, or processes. This part of the book is devoted to a thorough discussion of these processes.

It is worth noting that the management of legal pluralism is not necessarily synonymous with a “dialogue” or cooperation between legal systems.³ Our analysis does show that the way systems manage pluralism can give rise to situations where the systems act simultaneously upon each other in a coordinated way and even cross-pollinate⁴ and that such interactions may arise from dialogue; in reality, however, this happens rarely. Depending on the attitude a system adopts, it might decide to unilaterally deal with the consequences of legal pluralism.

3 Drawing inspiration from Étienne Le Roy, dialogue is defined here as any process contributing to [TRANSLATION] “bringing together different approaches and learning how to make them work together” (Étienne Le Roy, “Bricolages anthropologiques pour promouvoir, en Afrique et ailleurs, un dialogue des univers juridiques” (2005) 50:40 McGill LJ 951 at 953). 4 Swenson describes this type of interaction: “established legal systems of the nation-state are continuously changed by means of the transfer and adoption of legal perceptions of an indigenous people, at the same time as customary activities of the latter are reshaped according to institutional regulations concerning, for instance, their traditional land use patterns, and other customs.” (Tom G. Swenson, “Interlegality, a Process for Strengthening Indigenous Peoples Autonomy: The Case of the Sami in Norway” (2005) 37:51 J Leg Pluralism & Unofficial L 51 at 52).

Another scenario involves a co-existence of systems but a total absence of management of the legally plural situation. Indeed, an examination of the various management processes implicitly reveals many instances of non-management – a common state of affairs where one system legally disregards the very existence of the other, so that, from the former’s point of view, no de jure consequences may flow from the latter. Non-management does not mean that the first system’s agents are not aware that other normative spaces or phenomena exist; it merely denotes that they ignore them or perceive them as legally neutral facts. This attitude is worth noting, since it allows legal pluralism to produce characteristic effects on systems and on individuals. These effects will be considered in Chapter 3 of this book.

It should be emphasized that this chapter identifies and describes various management processes but does not present them as mutually exclusive and strict alternatives, or as watertight categories. As we will explain, processes can be combined and the difference between certain strategies is sometimes only one of degree.

1 Management through the articulation of systems

The processes in this first category all produce an operational articulation of systems for the purpose of the managing system. The articulation of one system with another generally involves the articulating system’s acknowledgement – formal or informal, general or sector-specific – of a system of reference, which results in the system of reference producing at least some direct de jure effect from the perspective of the managing system.

The articulation of systems does not occur exclusively in situations of legal pluralism. The rules of private international law, for instance, result in a certain articulation of legal orders when one system adopts mechanisms to allow for the application within itself, on conditions that it sets, of a foreign system’s legal principles and rules. Situations of legal pluralism nevertheless raise the problem of articulation in a unique way because of the relational dynamics caused by the often daily interaction of systems, which involve varying degrees of rivalry and power imbalances, as discussed in Chapter 2 of this book.

Articulation does not invariably result in the legal effectiveness, for the purpose of the managing system, of the system of reference. Sometimes, although rarely, articulation is actually repressive, as when State law explicitly imposes criminal sanctions on those applying or enforcing the non-State legal system. Forsyth writes that such a scenario “involves the state actively repressing a non-state justice system by making it illegal for it to deal with cases.”⁵ Thus, the approach involves the acknowledgement of the existence of another system and the creation of criminal or prohibitive consequences intended to extinguish the validity of this system outside the State.⁶ It is an antagonistic approach to managing legal pluralism, a manifestation of what Swenson calls “combative legal pluralism,” which could perhaps more accurately be termed “combative management of legal pluralism.”⁷ Articulation is still involved, however, because the process creates a new wrongdoing in the articulating State system which has as its substance the very activation of the non-State system.⁸ Repressive articulation, however, should not be confused with treating as non-existent and without effect the exercise of authority or coercive power within another system. The latter type of non-management of legal pluralism means, for example, that non-State justice remains without legal effect in the State order, but it does not make its very application a wrongdoing in itself. Indeed, legislatures sometimes even take pains to explicitly state that they do not prohibit customary conflict management processes.⁹ The discussion in the pages that follow will concern essentially non-repressive articulation, which exists in the cases studied in the form of either reception or withdrawal.

5 Forsyth, supra note 2 at 73. 6 Examples of this repressive approach can be found in Harper, supra note 2 at 80. 7 Geoffrey Swenson, “Legal Pluralism in Theory and Practice” (2018) 20:3 Intl Studies Rev 438 at 443, 448. 8 The possibility of repressive articulation manifesting through processes other than the criminal law must not be ruled out. 9 For example, in Zambia, subsection 50(1) of the Local Courts Act, Cap 29 of the Laws of Zambia creates a criminal offence prohibiting any unauthorized person from exercising the duties of a local judge. However, it also provides that “nothing in this subsection shall be deemed to prohibit any African customary arbitration or settlement in any matter with the consent of the parties thereto if such arbitration or settlement is conducted in the manner recognised by...