Journal of Legal Pluralism and Unofficial Law最新文献

{"title":"The stock theft act and customary courts in Botswana: justice sacrificed on the altar of expediency?","authors":"B. Dambe, C. Fombad","doi":"10.1080/07329113.2020.1734381","DOIUrl":"https://doi.org/10.1080/07329113.2020.1734381","url":null,"abstract":"Abstract The incidence of stock theft has been high in Botswana, as it is elsewhere in the Southern African Development Community (SADC). In 1996, the problem compelled the country’s parliament to intervene and enact the Stock Theft Act. After 22 years of its being in operation, however, there is little evidence to suggest that the Act’s harsh penalties have led to a reduction in cattle theft. A more serious problem with the law is that its penalties are imposed by customary courts with scarcely any safeguards in place to ensure that justice is done. Arguably, justice is sacrificed at the altar of expediency in response to widespread popular revulsion against cattle thieves. This paper engages with the problem of cattle theft, examining what motivated the adoption of such a harsh law and what the implications are of granting customary courts the jurisdiction to deal with these matters. While there is an urgent need to repeal the Act, in the meantime it should be applied strictly, with all presiding officers of customary courts being required, at the beginning of every stock-theft proceeding, to inform the accused that he or she has a right to opt for a trial before a Magistrates’ court. This is one of the few safeguards provided for by the Act, but because it is ignored so often, many people end up in prison when they might have been acquitted had they been tried by the better-equipped Magistrates’ courts.","PeriodicalId":44432,"journal":{"name":"Journal of Legal Pluralism and Unofficial Law","volume":null,"pages":null},"PeriodicalIF":0.6,"publicationDate":"2020-01-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"89564115","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":"Alcohol ambivalences and the law: tax tendering and “native liquor” in rural Uganda","authors":"Danse Anna Maria de Bondt","doi":"10.1080/07329113.2020.1727725","DOIUrl":"https://doi.org/10.1080/07329113.2020.1727725","url":null,"abstract":"Abstract This article is an attempt to ethnographically represent some of the processes in which the meanings and practices of home brewed alcohol affect local legislative practices in Kisoro District, south-western Uganda, in particular taxation. Data from the field shows how home brewed alcohols are taxed differently throughout the district. Some drinks are taxed in one sub-county, but neglected in another and vice versa. The question that concerns this article is why. Building on the work of Sally Falk Moore (1973), this article analyses how alcohol producers, traders, private tax collectors and government officials navigate multiple semi-autonomous social fields that set overlapping and contradicting rules for alcohol trading practices in the area. Specifically, it argues that what qualifies as a taxable alcoholic product depends on local perceptions of alcohol as well as on negotiations between tax collectors and the local population about the meaning of alcohol.","PeriodicalId":44432,"journal":{"name":"Journal of Legal Pluralism and Unofficial Law","volume":null,"pages":null},"PeriodicalIF":0.6,"publicationDate":"2020-01-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"86049573","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":"‘We have rights to designs’: interrogating design pirating on the Ghanaian textiles market","authors":"E. Darku, N. Lubisi","doi":"10.1080/07329113.2019.1700449","DOIUrl":"https://doi.org/10.1080/07329113.2019.1700449","url":null,"abstract":"Abstract This paper examines the challenges of copyright implementation in the Ghanaian textile market. Specifically, the paper looks at the challenges of administering copyright law in an informal market structure governed by both cultural norms and legal precepts. Using qualitative data collected from interviews and documents, this paper argues that copyright laws do not adequately take into account the normative systems that govern the production of textile as a cultural good. Therefore, challenges faced by the state to regulate piracy in the textile market exist because of the gap between formal legal provisions for conducting business and informal norms and market practices. The paper concludes that the copyright law in its current form does not address the normative practices at the core of trading textiles and that piracy can be effectively controlled if copyright laws incorporate cultural ideas and definition of design, authorship and ownership in the textile industry.","PeriodicalId":44432,"journal":{"name":"Journal of Legal Pluralism and Unofficial Law","volume":null,"pages":null},"PeriodicalIF":0.6,"publicationDate":"2020-01-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"79095588","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":"Acknowledgement to our reviewers in 2019","authors":"","doi":"10.1080/07329113.2020.1735171","DOIUrl":"https://doi.org/10.1080/07329113.2020.1735171","url":null,"abstract":"","PeriodicalId":44432,"journal":{"name":"Journal of Legal Pluralism and Unofficial Law","volume":null,"pages":null},"PeriodicalIF":0.6,"publicationDate":"2020-01-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"86442900","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":"State law and legal pluralism: towards an appraisal","authors":"Hanisah Binte Abdullah Sani","doi":"10.1080/07329113.2020.1727726","DOIUrl":"https://doi.org/10.1080/07329113.2020.1727726","url":null,"abstract":"Abstract Is plurality within state law a case of legal pluralism? The traditional canon on legal pluralism cannot come to a consensus on the matter. Those who do not consider plurality within state law a case of legal pluralism argue that it yet privileges an ideology of legal centralism. This formalist and positivist legal theory is anathema to a realist conception of the law that privileges law’s complex social orderings beyond the state. This controversy has produced an analytical stalemate in the field and obscured our understanding of plural legal systems – a ubiquitous feature of legal administration across the world. Reviewing extant scholarship, this paper argues that literature on legal pluralism need to be more critical of the state and to develop an explicit legal theory of political process. This challenges the Austinian notion that state law is derived from an ultimate sovereign and to reveal how state law is a site of intense competition among multiple power brokers.","PeriodicalId":44432,"journal":{"name":"Journal of Legal Pluralism and Unofficial Law","volume":null,"pages":null},"PeriodicalIF":0.6,"publicationDate":"2020-01-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"78910058","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":"Uncovering contracting norms in Khayelitsha stokvels","authors":"A. Hutchison","doi":"10.1080/07329113.2020.1728493","DOIUrl":"https://doi.org/10.1080/07329113.2020.1728493","url":null,"abstract":"Abstract Most written accounts of traditional African customary law in South Africa do not describe a law of commercial contracting. This is despite the fact that contracting happens every day in South Africa’s largely African informal sector. This article reports the findings of a qualitative empirical study of stokvels (informal savings and credit associations) conducted in Khayelitsha, Cape Town in 2018. Stokvels are an example of the appropriation and adaptation of modern financialised practices into Indigenous African culture. As such, they present an example of Indigenous modernity, being neither Western nor traditional. I will argue that vernacular commercial norms may be found in modern stokvel practice, which is ordered through a system of private contracting.","PeriodicalId":44432,"journal":{"name":"Journal of Legal Pluralism and Unofficial Law","volume":null,"pages":null},"PeriodicalIF":0.6,"publicationDate":"2020-01-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"87848463","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 implementation of the African charter on human and peoples’ rights and the convention on the rights of the child in Nigeria: the creation of irresponsible parents and dutiful children?","authors":"M. Adigun","doi":"10.1080/07329113.2019.1675988","DOIUrl":"https://doi.org/10.1080/07329113.2019.1675988","url":null,"abstract":"Abstract This article examines the implementation of the African Charter on Human and Peoples’ Rights and the Convention on the Rights of the Child in Nigeria together with the Junkun native law and custom. The article finds that these are multiple laws reflecting legal pluralism within the social field of the relationship between parents and their offspring. The article further finds that children are obliged to take care of their parents when they are in need for the rest of their lives under the African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act whereas under the Children’s Rights Act, parents are no longer responsible to their children after the children have attained the age of 18 years. Thus, the implementation of the two treaties can create irresponsible parents and dutiful children most especially where children are given more rights under customary law beyond 18 as expressed in the Junkun native law and custom. In resolving this situation of legal pluralism, the article subjects the situation to the interrogation of pluralistic archetypes such as legal pluralism of indifference, legal pluralism of accommodation, combative legal pluralism, legal pluralism of mutual support or complementary legal pluralism and offers solution by way of strategies to be adopted in balancing rights with duties through bridging, harmonization, incorporation, subsidization, or repression. The study argues that the Children’s Rights Act appears to be in a combative relationship with the Junkun native law and custom while the African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act appears to be in a situation of indifference to Children’s Rights Act. Also, the Nigerian Constitution 1999 also appears indifferent to the Junkun native law and custom. The study therefore recommends subsidization and harmonization as strategies to be adopted by the law making organs in Nigeria and urges them to amend the Nigerian Constitution 1999 to accommodate customary law where it offers a better protection. In addition, the study recommends that pending the amendment, judges should be permitted rule shopping or norm shopping as a repressive strategy to supplant any norm that will do injustice where an alternative norm will do otherwise. The study concludes that by having the Constitution amended, the legislative process as a manifestation of the state's legal power or authority in Nigeria will acquire legitimacy. Also, by adopting a repressive strategy, the judicial process as a manifestation of the state's legal power or authority in Nigeria will acquire legitimacy.","PeriodicalId":44432,"journal":{"name":"Journal of Legal Pluralism and Unofficial Law","volume":null,"pages":null},"PeriodicalIF":0.6,"publicationDate":"2019-09-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"88953500","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":"Pluralistic legal system, pluralistic human rights?: teenage pregnancy, child marriage and legal institutions in Bali","authors":"H. Horii","doi":"10.1080/07329113.2019.1683429","DOIUrl":"https://doi.org/10.1080/07329113.2019.1683429","url":null,"abstract":"Abstract This article examines how the existence of multiple legal orders can impact the defense of human rights, by discussing how state legal agents in Bali navigate state law through local concerns and adat (customary) law in cases dealing with teenage pregnancy outside of marriage. In such “emergencies” where the morality of the community is at stake, families, adat authorities and state agents collaborate to find a way to fit these emergency situations into the locally accepted normative system, resulting in what international institutions call “child marriage.” In assessing the interaction between state law and customary law, this study offers a basis for discussing how legal pluralism should be addressed in the realization of human rights.","PeriodicalId":44432,"journal":{"name":"Journal of Legal Pluralism and Unofficial Law","volume":null,"pages":null},"PeriodicalIF":0.6,"publicationDate":"2019-09-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"85529989","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 management of legal pluralism and human rights in decentralized Afghanistan","authors":"Danny Singh","doi":"10.1080/07329113.2019.1660079","DOIUrl":"https://doi.org/10.1080/07329113.2019.1660079","url":null,"abstract":"Abstract Legal pluralism concerns the often complex interactions between various legal orders. This includes the various domains of state law, human rights and tribal customary and religious laws. In recent decades, international developers have attempted to impart universalism within socially, culturally and legally diverse contexts such as decentralized locations that practice local and indigenous modes of justice. International donors in Afghanistan have attempted to spread the rule of law and basic human rights from judicial reform and the 2004 constitution into the countryside, whilst referring to Islamic family and criminal law. The Afghan government and state legalisms are largely centralized within a mountainous country. Most citizens, spread across 34 provinces, rely on the judgements of trusted elders, or even the Taliban in southern regions, in community-based dispute resolutions. Using interviews conducted with Afghan judicial and rule of law experts, this article assesses the management of legal pluralism in Afghanistan. It is argued that, with varying results, legal pluralism has been managed by “project law” to promote “better world visions” and donors’ notions of (social) justice to introduce western laws and human rights to local customary settings. This is followed by concluding remarks and some recommendations. When implementing projects, international developers could work towards incorporating all actors and their legal institutions, including local mediators. Improving case tracking at the provincial and district levels is needed to promote consistency and improve observance of basic human rights standards. Furthermore, continuing to raise awareness of women’s rights in rural areas with the use of local organizations and civil society could impart human rights locally. This can be achieved by training ulema, mullahs and other local justice authorities of basic human rights in highly funded community development councils and other national solidarity programme projects.","PeriodicalId":44432,"journal":{"name":"Journal of Legal Pluralism and Unofficial Law","volume":null,"pages":null},"PeriodicalIF":0.6,"publicationDate":"2019-09-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"85139466","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":"Reconciling human rights and customary law: legal pluralism in the governance of small-scale fisheries**","authors":"S. Jentoft, M. Bavinck","doi":"10.1080/07329113.2019.1674105","DOIUrl":"https://doi.org/10.1080/07329113.2019.1674105","url":null,"abstract":"Abstract The Voluntary Guidelines for Securing Sustainable Small-Scale Fisheries (SSF Guidelines) introduce a human rights framework for fisheries management and development, suggesting an inclusive approach that embraces a range of rights, regimes and interests. These reflect diverse systems of law, values and norms, straddling both customary and statutory systems of governance and tenure. The interface between these different systems poses questions about the extent to which they are reconcilable with a human rights-based approach. The latter originates in the domain of transnational law, which has been increasing in scope and importance in recent decades. How transnational law interacts with and affects various law systems is an empirical question, to which much scholarly attention has gone. The normative question that emerges, however, is how to balance the recognition of universal human rights with respect for historically-evolved and locally legitimate, customary law in case of conflicts between them. This paper investigates some of the tensions and opportunities that arise in the meeting of the SSF Guidelines and customary socio-legal systems, paying special attention to four important fields of overlap and possibly contention: tenure, gender, child labour and markets. Co-management platforms are suggested to be the ideal meeting ground for negotiating acceptable hybrids and designing so-called interlegalities.","PeriodicalId":44432,"journal":{"name":"Journal of Legal Pluralism and Unofficial Law","volume":null,"pages":null},"PeriodicalIF":0.6,"publicationDate":"2019-09-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"74439403","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}