Journal of Legal Pluralism and Unofficial Law最新文献

{"title":"Construing the transformed property paradigm of South Africa’s water law: new opportunities presented by legal pluralism?","authors":"Germarie Viljoen","doi":"10.1080/07329113.2021.2004718","DOIUrl":"https://doi.org/10.1080/07329113.2021.2004718","url":null,"abstract":"","PeriodicalId":44432,"journal":{"name":"Journal of Legal Pluralism and Unofficial Law","volume":"97 1","pages":""},"PeriodicalIF":0.6,"publicationDate":"2021-11-16","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"78521250","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}

{"title":"Wait, what are we fighting about? – Kelsen, Ehrlich and the reconciliation of normative jurisprudence and sociology of law","authors":"M. Hopman","doi":"10.1080/07329113.2021.1973204","DOIUrl":"https://doi.org/10.1080/07329113.2021.1973204","url":null,"abstract":"The 1915-1917 debate between Ehrlich and Kelsen is a fundamental debate in legal theory, between normative jurisprudence and sociology of law. Although both professors see themselves as being on op...","PeriodicalId":44432,"journal":{"name":"Journal of Legal Pluralism and Unofficial Law","volume":"13 1","pages":""},"PeriodicalIF":0.6,"publicationDate":"2021-09-09","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"89039020","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}

{"title":"Scientific versus folk legal pluralism","authors":"B. Tamanaha","doi":"10.1080/07329113.2021.2004843","DOIUrl":"https://doi.org/10.1080/07329113.2021.2004843","url":null,"abstract":"Three decades ago I published “The folly of the ‘social scientific’ concept of legal pluralism” (1993) (hereinafter “Folly”). Reading this essay today brings me a rush of embarrassment. The article is obnoxious in tone, overconfident, and less than fully informed. At the time, I had recently entered academia, and launched an attack against what I thought was the orthodoxy of legal pluralism. Today, if it were possible to re-write the piece and remove its vitriol, I would. Mea culpa. Moreover, my unrestrained critical blast misled many readers to think that I flatly rejected legal pluralism and opposed the very notion of non-state law. But that was not my position. In the conclusion, I stated: “Clearly there is a compelling intuitive impulse to describe as law or law-like certain dispute resolution institutions and norms found in pre-state societies and in post-colonial societies where the power of the state is weak and indigenous institutions are dominant [....]. [T]hese norms and institutions can and should be called law or law-like” (211; emphasis added). In my previous work as an Assistant Attorney General in Yap, Micronesia, I witnessed first-hand a thriving system of customary law that handled a range of legal matters, often more efficaciously than the state legal system (Tamanaha 1989). What “Folly” criticized was the social scientific concept of legal pluralism. This essay elaborates the contrast between scientific legal pluralism and folk legal pluralism. This is a fitting topic to mark the fortieth anniversary of the Journal of Legal Pluralism because it addresses core issues taken up by seminal pieces published in the journal over several decades (Galanter 1981; Griffiths 1986; Woodman 1998; von Benda-Beckmann 2002). The scientific versus folk distinction was drawn by John Griffiths in an 1984 essay that articulated ideas which informed his enormously influential article, “What is legal pluralism?” (1986).","PeriodicalId":44432,"journal":{"name":"Journal of Legal Pluralism and Unofficial Law","volume":"4 1","pages":"427 - 437"},"PeriodicalIF":0.6,"publicationDate":"2021-09-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"75181213","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}

{"title":"River lives, River movements. Fisher communities mobilizing local and official rules in defense of the Magdalena River","authors":"R. Boelens, Juliana Forigua-Sandoval, Bibiana Duarte-Abadía, Juan Carlos Gutiérrez-Camargo","doi":"10.1080/07329113.2021.2012376","DOIUrl":"https://doi.org/10.1080/07329113.2021.2012376","url":null,"abstract":"Abstract The Magdalena River, Colombia’s main river backbone, features multiple tensions and socio-environmental conflicts. They manifest themselves in the river’s ecological degradation and negatively impact the riparian communities and artisanal fishermen, whose productive activities and rights of access to water are restricted. For these communities, the river is a means of passing down and exchanging knowledge between generations. However, their knowledge and practices are not recognized in the dominant governance processes over the Magdalena River. In an interview with Juan Carlos Gutiérrez-Camargo, environmental activist, researcher and companion of artisanal fishermen, we illustrate the universe of epistemologies and worldviews of these communities. We discuss, from a legal-pluralism perspective, the contradictions between state norms and authorities, parastatal powers, and the customary rights of fishing communities. We analyze how the simultaneous presence of various authorities and the complex, unequal arena of legal, extra-legal and illegal forces, hinders enforcement of fishermen’s customary socio-legal repertoires and also of the Colombian Constitution to protect riverside communities’ human rights. The interview reflects on the great complexity of exercising community leadership, environmental protection and defense of artisanal fishing in the midst of a socio-normative political arena permeated by state abandonment and paramilitary violence. For this reason, the interview stresses the importance of recognizing artisanal fisher collectives as political subjects in river co-governance. It also highlights the ambivalent implications of granting rights to nature and rivers: their meaning, functions and impact depend on their political trajectory and mobilization by grassrooted collectives. Finally, Gutiérrez proposes strengthening knowledge networks to bolster river co-governance where the political-cultural and socio-normative frameworks of riverside communities play a preponderant role.","PeriodicalId":44432,"journal":{"name":"Journal of Legal Pluralism and Unofficial Law","volume":"210 1","pages":"458 - 476"},"PeriodicalIF":0.6,"publicationDate":"2021-09-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"86845339","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}

{"title":"The enduring utility of customary justice in fragile and post-conflict states: why development actors need to stop searching for magic bullets and solve the political economy and human rights challenges associated with justice programming","authors":"E. Harper","doi":"10.1080/07329113.2021.2004845","DOIUrl":"https://doi.org/10.1080/07329113.2021.2004845","url":null,"abstract":"ABSTRACT Although programming with them has lost the appeal and expectancy it enjoyed two decades ago, customary systems continue to play important roles, including in some of today’s most challenging and predatory environments. This ongoing utility raises important questions about how such systems could be better leveraged, and why programming dilemmas, including around human rights and state-non-state relations, remain unresolved. Crafting solutions to these dilemmas, it is argued, will require changes in practice, none of which will be easy or necessarily welcomed by the development community. In this process, past programming experience can offer rich lessons that should be drawn upon.","PeriodicalId":44432,"journal":{"name":"Journal of Legal Pluralism and Unofficial Law","volume":"124 1","pages":"342 - 355"},"PeriodicalIF":0.6,"publicationDate":"2021-09-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"88999883","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}

{"title":"Redressing legal pluralism in South Africa’s water law","authors":"B. van Koppen, B. Schreiner, Patience Mukuyu","doi":"10.1080/07329113.2021.2016266","DOIUrl":"https://doi.org/10.1080/07329113.2021.2016266","url":null,"abstract":"ABSTRACT During apartheid, South Africa formalized legal pluralism as territorial and institutional segregation that legitimized the white minority’s grab of most land, water and mineral resources. In the homelands on the remaining 13% of the country, allied tribal chiefs controlled second-class customary land and water rights. Under the democratic dispensation, the new Constitution (1996) and National Water Act (1998) aim at redressing this racial discrimination. However, these goals have not been achieved. Building on literature, field research and ongoing policy and legal debates, this paper traces causes for this failure and examines whether and how a different interpretation of statutory law can decolonize past legal pluralism. A main cause of this failure is the continued power by white large-scale water users and their consultants and lawyers. Monopolizing technical and legal knowledge, they fiercely defend apartheid era’s Existing Lawful Uses by 1998 and relatively easily obtain administrative licences for post-1998 water uptake, while claiming excessive monetary values of entitlements to water resources that the state, with tax payers, as custodian holds. In contrast, black water users’ pre-1998 Existing Lawful Uses have not been defined as yet and burdensome licences processes for new water uptake are inaccessible to the many smaller-scale black water users. The paper concludes that, in former homelands, the legal status of living customary water tenure should be elevated and protected. Inclusive facilitated processes can further clarify the “sharing in” of water resources flowing over or under the communities’ territories inside the boundaries of former homelands, also to enable gradual alignment with constitutional rights. However, in “sharing out” these water resources with powerful third parties, including foreign investors, customary water tenure should be fully protected. As a core minimum of highest priority water resource rights across the country, the current Basic Human Needs Reserve should include all water-related constitutional rights, so also water for sufficient food, and be implemented.","PeriodicalId":44432,"journal":{"name":"Journal of Legal Pluralism and Unofficial Law","volume":"21 1","pages":"383 - 396"},"PeriodicalIF":0.6,"publicationDate":"2021-09-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"83252981","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}

{"title":"The early years: African Law Studies (numbers 12–16, 1975–78)","authors":"Richard L. Abel","doi":"10.1080/07329113.2021.1996100","DOIUrl":"https://doi.org/10.1080/07329113.2021.1996100","url":null,"abstract":"ABSTRACT African Law Studies was the predecessor of the Journal of Legal Pluralism and Unofficial Law, published from 1969 to 1980. In a short overview of these early years of the journal, Richard Abel, one of the former editors-in-chief, shares his experiences with the journal in a period when it was still Africa-focused but when the foundations were laid for both the wider geographical scope and the conceptual-theoretical focus on legal pluralism.","PeriodicalId":44432,"journal":{"name":"Journal of Legal Pluralism and Unofficial Law","volume":"6 1","pages":"407 - 409"},"PeriodicalIF":0.6,"publicationDate":"2021-09-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"85386681","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}

{"title":"Forum shopping and shopping forums: another 40-year anniversary","authors":"C. Lund","doi":"10.1080/07329113.2021.1996075","DOIUrl":"https://doi.org/10.1080/07329113.2021.1996075","url":null,"abstract":"ABSTRACT In the first year of the journal of Legal Pluralism’s existence, Keebet von Benda-Beckmann’s article Forum shopping and shopping forums. Dispute processing in a Minangkabau village in West Sumatra was published. Christian Lund reflects on the continued theoretical and methodological relevance of the article for the social scientific study of law and legal pluralism, property and conflict, institutions and authorities, and the role of claimants.","PeriodicalId":44432,"journal":{"name":"Journal of Legal Pluralism and Unofficial Law","volume":"3 1","pages":"414 - 418"},"PeriodicalIF":0.6,"publicationDate":"2021-09-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"82903249","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}

{"title":"The consequences of legal pluralism for an interdisciplinary researcher","authors":"S. Larcom","doi":"10.1080/07329113.2021.2000161","DOIUrl":"https://doi.org/10.1080/07329113.2021.2000161","url":null,"abstract":"it is less often practiced or appreciated. In part, this is understandable, as different disciplines have their own terminology, methods, implicit assumptions, conventions and measures of worth and importance. Despite these hurdles, the study of legal pluralism provides a continuing opportunity for truly interdisciplinary research. Many legally plural circumstances are highly complex, contested and beyond the grasp of existing analytical tools. However, importantly, analytical messiness does not necessarily mean that normative judgements cannot be made in assessing their effectiveness in delivering justice, dignity, redress and personal security. For instance, legal pluralism may allow for checks and balances that are simply not possible within a unitary legal system (Berman 1983). Conversely, legal pluralism may lead to legal dissonance, where different legal orders undermine each other, leading to a low-enforcement-high-crime situation that may be most detrimental to the weakest and most marginalised in society (Larcom and Swanson 2015). While the economic analysis of law has many limitations, it is particularly useful for focusing the essence of the legal circumstance and the consequences. Perhaps legal pluralism scholars could benefit from more interaction with the law and economics, empirical legal studies and institutions literatures, where the focus of enquiry is often centred on the consequences of legal arrangements – and how they can be improved. It is also hoped that authors from these literatures will engage more with the rich legal pluralism literature. There is much to learn from all sides. Finally, it is worth reflecting on the fact that, even if after 40 years, the illusion of legal centralism has been destroyed. For some it certainly has, and there is no doubt that the term has grown in prominence over this period. For instance, according to Google Books Ngram Viewer (2021) that aims to measure the frequency of use of words and phrases, the term “legal pluralism” overtook “socio-legal” in the mid-1980s, “law and society” in the mid-2000s, and “law and economics” in the early-2010s.2 However, despite having grown in prominence, the term means different things to different people, disciplines and generations. I hope that at the heart of its meaning remains the idea that law can derive legitimacy from sources other than the state. For it is this key insight, as destructive as it is and as antically messy as it can make things, that allows us to better see reality as it is, and to therefore make descriptive, analytical and normative advances.","PeriodicalId":44432,"journal":{"name":"Journal of Legal Pluralism and Unofficial Law","volume":"22 1","pages":"410 - 413"},"PeriodicalIF":0.6,"publicationDate":"2021-09-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"84118253","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}

{"title":"An exploration of legal pluralism, power and custom in South Africa. A conversation with Aninka Claassens","authors":"J. Ubink, A. Claassens, A. Jonker","doi":"10.1080/07329113.2021.2013547","DOIUrl":"https://doi.org/10.1080/07329113.2021.2013547","url":null,"abstract":"Aninka Claassens is an academic and practitioner who has worked since 1982 as a land activist and academic in the field of legal pluralism in South Africa. During the apartheid era she worked for the women’s anti-apartheid organization the Black Sash, supporting rural communities who resisted forced removals from their land and homes. In 1990 she moved to the Law Faculty at the University of the Witwatersrand where she became involved in land policy work alongside her ongoing role in supporting rural communities involved in anti-bantusan resistance and land re-occupations. She joined the ANC land desk and participated in the drafting of the early land reform laws that were introduced between 1994 and 1999. However, as the ANC policy direction began to shift in favour of supporting traditional leaders rather than the land rights of vulnerable groups, she became involved in litigation, challenging laws such as the 2003 Traditional Leadership and Governance Framework Act of 2003 and the Communal Land Rights Act (CLRA) of 2004. The CLRA was ultimately struck down by the Constitutional Court in 2010. She also supported litigation upholding participatory and inclusive versions of “living” customary law in the face of discrimination derived from distorted versions of “official” customary law. In 2009 she joined the University of Cape Town and later founded the Land and Accountability Research Centre (LARC), which she directed until 2019. LARC forms part of a collaborative network, constituted as the Alliance for Rural Democracy, which provides strategic support to struggles for the recognition and protection of rights and living customary law in the former homeland areas of South Africa. Aninka’s research is mainly focused on the nature and content of customary law in South Africa, particularly regarding the tensions between the jurisprudence of unwritten “living” customary law emanating from judgments of the Constitutional Court, and the autocratic versions of custom inherited from colonialism and apartheid that have been reinforced by traditional leadership laws enacted since 2003. These laws have sought to transfer freehold ownership of the “communal” land in the former homelands to traditional leaders at the expense of pre-existing customary law ownership rights that have vested in families over generations. The laws have also sought to centralize decision-making power and authority in the hands of","PeriodicalId":44432,"journal":{"name":"Journal of Legal Pluralism and Unofficial Law","volume":"113 1","pages":"498 - 521"},"PeriodicalIF":0.6,"publicationDate":"2021-09-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"75527047","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}