Gautam Bhan
Posted online: Friday , Jul 03, 2009 at 0427 hrs
http://www.indianexpress.com/news/on-freedoms-avenue/484509/
The historic judgment reading down Section 377 in the Delhi high court on Thursday chose its words very carefully. It turned for help to an older moment, a moment of origin. Citing the constitutional debates of 1946, it reminded us of another India. An India that was being imagined just as it was coming to freedom. Nehru urged, in those debates, that we see the Constitution in its spirit rather than in any narrow legal wording. On Thursday, Judges Shah and Muralidhar sought to unearth that spirit. “If there is one constitutional tenet,” they argued, “that can be said to be the underlying theme of the Indian Constitution, it is that of ‘inclusiveness’. This Court believes that the Indian Constitution reflects this value deeply ingrained in Indian society, nurtured over several generations.” A few lines later, they argued further: “Indian constitutional law does not permit criminal law to be held captive by popular misconceptions of who the LGBTs are. It cannot be forgotten that discrimination is the antitheses of equality and that it is the recognition of equality which will foster the dignity of every individual.”
Court one, item one on the Delhi high court’s cause list. Ten thirty in the morning on the 2nd of July. A high court pass secured by a few dozen activists each of whom was remembering moments from the last decade of fighting Sec 377. It is these simple words and an electronic pass receipt that a movement lasting decades and a legal battle lasting eight years came down to. In the end, it was enough. When the judgment was read, you could feel the emotion in the room. Our tears flowed not just because we had “won”. They came for the judgment that had set us free. This judgment is a judgment about dignity. It is about an India that Nehru imagined — an India that would open its arms and embrace all who lived within it. It is about the words equality, dignity and rights finding roots in the lives of millions of queer Indians who today can feel their feet on the ground of their own country.
This judgment is a return to Ambedkar. The judges reminded us of the Ambedkar who so passionately fought for the constitution of his imagination. In Ambedkar’s India, he wrote fervently that the courts of law of our land must be ruled by a “constitutional morality” and not a public morality. State interest, he argued, cannot be governed by public morality but by the spirit of the Constitution. In the days to come, as morality debates will no doubt flood our media and public spaces, we must keep this other morality equally in mind. A morality that we share as citizens, not just as individuals.
This judgment is about equality. Citing Article 15 of our Constitution, the judges ruled that “sex” as commonly used in non-discrimination statutes must also include “sexual orientation”. Non-discrimination legislation based on gender/ sex now can be read to include sexual orientation. Reading Article 15 into the judgment, the judges have reminded us decriminalising queer people also means simultaneously treating them with equal respect in jobs, in hospitals, in our homes and in our public places.
Yet how do we read this judgment not just as queer people but also as Indians no matter our sexuality, gender, religion, caste, language or region? Movements across this country have and continue to struggle for their rights. Frustrations with the government and the “system” are commonplace. Many have argued that change is not possible in India and even less in the new India, which in its shine has separated from the Bharat that so many inhabit. This judgment is a renewal of faith in the system so many of us — this writer included — find so easy to almost lose faith in. It is a reminder that the Constitution is still alive, and that movements and fights sometimes end in days of victory. All Indians must celebrate that — it is not just queer rights that were protected today, but all the rights of all Indians.
We will remember tomorrow to be more cautious. The queer movement has long said that the fight for the dignity of queer people will not be won just in the courtroom. Our fights are in the spaces where homophobia impacts people’s lives: families, clinics, police stations, offices and the streets of our cities. The law will not change these spaces overnight. Our fights are far from over. This judgment, however, has untied our hands. Our debates now to change public opinion will be played on level playing fields amongst citizens as equals. We have the words of this judgment and the chance to make them come alive outside the courtroom.
The biggest change, however, will be within the hearts and minds of queer people. The process of accepting ourselves, of not being ashamed, of believing in our right to have rights is a long and lonely one. The process of thinking of ourselves as equal citizens takes even longer. This judgment will change what a young queer woman sees when she’s in the mirror. There are no words to explain what that means or how valuable it is.
For the government of India and its ministers, who recently have spoken about Section 377, they should read this judgment closely as they come to their “consensus”. They should ask themselves which of the tenets of this judgment they wish to consider and reconsider. They should remember that Ambedkar and Nehru imagined statesmen and women in their assemblies. The day has come for them to return, along with the rest of us, to that imagined assembly.
Inclusiveness, values, tolerance, constitutional morality, equality. In the older imagination of India, these words would not be just about queer people or homosexuality. Today, these have taken the first step to become Indian words again. The judges have reminded us that these are the ingrained values of Indian culture that so many are trying to “defend”. This judgment should be seen by all of us, gay or straight, no matter what we think of sexuality and homosexuality, as a victory for a secular, democratic, constitutional and free India. We should all be proud. Today, queer people are finally, proudly, happily also just everyday Indians — free, equal, and breathing deeply the air of a day that feels like no other.
Today, queer people are fellow citizens. Today, queer people will finally feel the ground below their feet.
The writer works on urban policy express@expressindia.com
Find the judgment at:
http://lobis.nic.in/dhc/APS/judgement/02-07-2009/APS02072009CW74552001.pdf
7/3/09
6/24/09
Open Letter on the Equal Opportunity Commission Bill
To sign this letter, please click here, or email the Centre for the Study of Social Exclusion. Additional resources (including comparative legislations) are available here.
-------------------------------------------------------------------------------------
22nd June 2009
The Minister for Minority Affairs,
Government of India
Paryavaran Bhavan, CGO Complex, Lodhi Road,
New Delhi 110 003
Respected Sir,
[Re: Equal Opportunity and Diversity]
In her address to Parliament on 4 June 2009, the Hon’ble President promised the constitution of an Equal Opportunity Commission to combat discrimination. We welcome this announcement, and write to you to further the public debate on equality of opportunities.
As you are aware, the Rajinder Sachar Committee’s ‘Report on Social, Economic and Educational Status of the Muslim Community of India’ (2006) recommended the constitution of an Equal Opportunity Commission to look into the grievances of deprived groups, and that the idea of providing incentives for diversity should be explored. Two expert committees under Dr. Madhav Menon and Dr. Amitabh Kundu were constituted to consider these recommendations respectively. The Menon Committee Report (2008) proposed an Equal Opportunity Commission Bill to prohibit discrimination against ‘deprived groups’ defined on certain grounds such as sex, disability, religion, caste, language etc. The Kundu Committee Report (2008) recommended the constitution of a Diversity Commission to oversee the incentivisation of diversity in education institutions, employment establishments and housing societies. The proposed ‘diversity index’ is sensitive to religion, caste and sex.
These recommendations represent a paradigmatic shift in India’s approach to equality. Moving beyond an exclusive focus on reservations, they explore a combination of antidiscrimination and diversity promotion measures to pursue social justice. They also recognise that discrimination takes place on multiple grounds, and that compartmentalising suffering through group-specific measures may spawn politics of resentment and competition. Finally, they transcend the divide between public and private actors and apply equally to all. Yet, the obligations they seek to impose on private actors are no more onerous than those imposed on their counterparts in many liberal democracies.
For these reasons, we laud the recommendations and support the proposed measures for equal opportunities and diversity. However, the draft proposals leave too many unresolved issues for the Commission to sort out in the future. We think that this is a recipe for much litigation. Rights and obligations, insofar as it is possible, should be clearly laid down in the legislation itself. We make the following suggestions towards broadening the public debate on these proposals:
A. Interlinking equal opportunity and diversity:
(i) Antidiscrimination and diversity promotion are related ideals. They should form part of a single ‘Equality Bill’ with a single regulatory and enforcement commission. Distinct bodies for monitoring the prohibition on discrimination and promotion of diversity is not only wasteful, but may result in counterproductive turf-wars.
(ii) The connection between the ideas is not merely institutional but also conceptual: the ‘diversity gap’ in any establishment should be relevant to (but not determinative of) the adjudication of complaints of discrimination against that establishment.
B. A general duty to reduce inequality:
(iii) The objective of reducing socio-economic deprivation should be taken into account by all public bodies (widely defined to include not only bodies established by the Constitution or any law, but also any other bodies performing public functions) while framing policy in their respective fields of activity.
C. Scope of protection against discrimination:
(iv) The list of grounds on which discrimination is prohibited in the Menon Committee Report includes ‘sex, caste, language, religion, disability, descent, place of birth, residence, race or any other...’ ground. While we welcome an open-ended list in order to accommodate legitimate demands in the future, other autonomy-infringing grounds like ‘pregnancy, sexual orientation, gender identity, occupation, skin-colour, political opinion, age, membership of trade unions or other associations, number of children, tribe, marital status’ should also be included.
(v) The ‘deprivation index’ should include political, social, cultural and material deprivation, evidenced by inadequate representation of the group in public institutions, violence and hostility faced by its members, prejudice and negative stereotypes prevalent against the group, and its economic, social and educational backwardness.
(vi) The legislation should have a clear statement prohibiting ‘direct discrimination’ or ‘indirect discrimination’ against, and ‘harassment’ or ‘victimisation’ of, any member of a deprived group defined by any of the protected grounds. These terms should be clearly defined. Discrimination based on ‘food preference’, when it has a disproportionate impact on a deprived group, should be expressly provided as an instance of indirect discrimination.
(vii) The legislation should clearly provide that the claimant does not have the onus of proving discriminatory intent.
(viii) Direct discrimination, as a general rule, should not be justifiable. Any exceptions (for example, medium of instruction in schools vis-a-vis language discrimination, or age of majority vis-a-vis age discrimination) should be specifically provided in the statute. Indirect discrimination may be justified only if the impugned measure is a proportionate means of achieving a legitimate objective—mere reasonableness of the measure should not be sufficient. Harassment and victimisation should not be justifiable under any circumstance.
(ix) The sectors in which discrimination is prohibited should not be restricted to employment and education. We agree that a phased introduction of prohibition, as recommended by the Menon Committee Report, may be desirable for reasons of feasibility. However, given the prevalence of discrimination in the housing sector, its exclusion from the immediate scope of the legislation is not warranted.
(x) All public bodies (widely defined to include private bodies performing public functions) and political parties should be required to refrain from discriminating in all their activities.
D. Scope of diversity promotion:
(xi) The ‘diversity index’ proposed in the Kundu Committee Report is sensitive to sex, religion and caste. We suggest that tribe and language should also be valid grounds for formulating a diversity index.
(xii) A clear statutory obligation to reduce diversity gap should be imposed on all public bodies (widely defined to include private bodies performing public functions) and other establishments that contract with governments.
(xiii) Diversity promotion should be a precondition for all government subsidies, grants, contracts etc, not only at the central level, but also at the state and local level. Establishments with narrower diversity gaps should get preferential access to governmental grants etc.
(xiv) Bodies and establishments covered by the two preceding clauses should publish their diversity gaps and their plans to promote diversity. Citizens should also have an enforceable right to this information.
(xv) In case of establishments not covered above, the right to information regarding their diversity gap should nonetheless be available to their employees/ residents/ applicants/ students etc.
E. Enforcement Mechanism:
(xvi) The single Equality Commission should be independent of political interference, but subject to political scrutiny and judicial review, while formulating the deprivation and diversity indices. Bipartisan appointment, involvement of civil society and transparency obligations on the lines of recently constituted bodies such as the Central Information Commission should be considered.
(xvii) Draft deprivation and diversity indices should be published on the Commission’s website and elsewhere for public debate before finalisation. Reasons and evidence for the identification/non-identification of any group as ‘deprived’ should also be publicly available.
(xviii) Relationship with the SC/ST Commission, Backward Classes Commission, Minorities Commission, National Commission for Women, and the National Human Rights Commission should be clearly specified. Emphasis should be on co-ordination and data sharing. The Equality Commission is not based on any single identity and its proposed mandate is distinct from these pre-existing commissions. Yet, it can learn from their experiences—legislation should facilitate this institutional learning.
(xix) The proposed Equality Commission in the Menon Committee Bill has extensive powers for investigation, data gathering, auditing, advocacy and advisory functions. However, the recommendatory nature of the orders and ‘codes of practice’ limits the effectiveness of the Commission. Further, while reliance on voluntary compliance and emphasis on mediated settlements is entirely commendable, it fails to elevate the ‘equal opportunities’ to the status of ‘rights’. The lack of effective enforcement machinery thus, dilutes the larger mandate of the Commission and needs to be remedied at the very outset.
(xx) The scope of membership of Facilitation Centres (provided for in the Menon Committee Bill) should be widened, and its powers and functions should be clarified and strengthened.
(xxi) Section 39 (b) in the Menon Committee Bill elevates the ‘Equal Opportunity Practices Code’ to the level of a “Standing Orders” under the Industrial Disputes Act, thus making it binding and enforceable. However, the single Equality Bill should clarify that the scope of establishments covered by it is wider than that under the Industrial Disputes Act, and should also provide for a mechanism for enforcement of these Codes in establishments that do not fall within the scope of the Industrial Disputes Act.
(xxii) Likewise, the powers to investigate and audit in Sections 23-25 and Section 27, should culminate in effective action in the event of widespread discriminatory practices, or victimisation.
(xxiii) The Menon Committee Report envisages a group-driven complaints model rather than an individual-driven one. We suggest that in addition to group rights, individual victims of discrimination should be given a right to mandatory orders, injunctions, declaratory orders, compensation, reasonable accommodation, protection orders against harassment and against victimisation for making a complaint, and the right to information about the diversity gap in their establishment.
(xxiv) In case of direct discrimination, harassment or victimisation by public bodies, part of the compensation amount should be recovered from the salary of the person(s) responsible for such discrimination, harassment or victimisation.
These measures are too important to be passed in haste and without wider public debate. We hope you will give these suggestions as well as the experience of jurisdictions with comparable legislations (such as South Africa, Canada, the United Kingdom, the European Union and the United States) due consideration and circulate the draft of a single ‘Equality Bill’ for further public debate.
In anticipation,
Yours Sincerely,
CC: The Prime Minister
Government of India
CC: The Minister for Law and Justice
Government of India
(Text drafted by Tarunabh Khaitan for CSSE, NLSIU, with inputs from Roopa Madhav, Kamala Sankaran and Usha Ramanathan)
-------------------------------------------------------------------------------------
22nd June 2009
The Minister for Minority Affairs,
Government of India
Paryavaran Bhavan, CGO Complex, Lodhi Road,
New Delhi 110 003
Respected Sir,
[Re: Equal Opportunity and Diversity]
In her address to Parliament on 4 June 2009, the Hon’ble President promised the constitution of an Equal Opportunity Commission to combat discrimination. We welcome this announcement, and write to you to further the public debate on equality of opportunities.
As you are aware, the Rajinder Sachar Committee’s ‘Report on Social, Economic and Educational Status of the Muslim Community of India’ (2006) recommended the constitution of an Equal Opportunity Commission to look into the grievances of deprived groups, and that the idea of providing incentives for diversity should be explored. Two expert committees under Dr. Madhav Menon and Dr. Amitabh Kundu were constituted to consider these recommendations respectively. The Menon Committee Report (2008) proposed an Equal Opportunity Commission Bill to prohibit discrimination against ‘deprived groups’ defined on certain grounds such as sex, disability, religion, caste, language etc. The Kundu Committee Report (2008) recommended the constitution of a Diversity Commission to oversee the incentivisation of diversity in education institutions, employment establishments and housing societies. The proposed ‘diversity index’ is sensitive to religion, caste and sex.
These recommendations represent a paradigmatic shift in India’s approach to equality. Moving beyond an exclusive focus on reservations, they explore a combination of antidiscrimination and diversity promotion measures to pursue social justice. They also recognise that discrimination takes place on multiple grounds, and that compartmentalising suffering through group-specific measures may spawn politics of resentment and competition. Finally, they transcend the divide between public and private actors and apply equally to all. Yet, the obligations they seek to impose on private actors are no more onerous than those imposed on their counterparts in many liberal democracies.
For these reasons, we laud the recommendations and support the proposed measures for equal opportunities and diversity. However, the draft proposals leave too many unresolved issues for the Commission to sort out in the future. We think that this is a recipe for much litigation. Rights and obligations, insofar as it is possible, should be clearly laid down in the legislation itself. We make the following suggestions towards broadening the public debate on these proposals:
A. Interlinking equal opportunity and diversity:
(i) Antidiscrimination and diversity promotion are related ideals. They should form part of a single ‘Equality Bill’ with a single regulatory and enforcement commission. Distinct bodies for monitoring the prohibition on discrimination and promotion of diversity is not only wasteful, but may result in counterproductive turf-wars.
(ii) The connection between the ideas is not merely institutional but also conceptual: the ‘diversity gap’ in any establishment should be relevant to (but not determinative of) the adjudication of complaints of discrimination against that establishment.
B. A general duty to reduce inequality:
(iii) The objective of reducing socio-economic deprivation should be taken into account by all public bodies (widely defined to include not only bodies established by the Constitution or any law, but also any other bodies performing public functions) while framing policy in their respective fields of activity.
C. Scope of protection against discrimination:
(iv) The list of grounds on which discrimination is prohibited in the Menon Committee Report includes ‘sex, caste, language, religion, disability, descent, place of birth, residence, race or any other...’ ground. While we welcome an open-ended list in order to accommodate legitimate demands in the future, other autonomy-infringing grounds like ‘pregnancy, sexual orientation, gender identity, occupation, skin-colour, political opinion, age, membership of trade unions or other associations, number of children, tribe, marital status’ should also be included.
(v) The ‘deprivation index’ should include political, social, cultural and material deprivation, evidenced by inadequate representation of the group in public institutions, violence and hostility faced by its members, prejudice and negative stereotypes prevalent against the group, and its economic, social and educational backwardness.
(vi) The legislation should have a clear statement prohibiting ‘direct discrimination’ or ‘indirect discrimination’ against, and ‘harassment’ or ‘victimisation’ of, any member of a deprived group defined by any of the protected grounds. These terms should be clearly defined. Discrimination based on ‘food preference’, when it has a disproportionate impact on a deprived group, should be expressly provided as an instance of indirect discrimination.
(vii) The legislation should clearly provide that the claimant does not have the onus of proving discriminatory intent.
(viii) Direct discrimination, as a general rule, should not be justifiable. Any exceptions (for example, medium of instruction in schools vis-a-vis language discrimination, or age of majority vis-a-vis age discrimination) should be specifically provided in the statute. Indirect discrimination may be justified only if the impugned measure is a proportionate means of achieving a legitimate objective—mere reasonableness of the measure should not be sufficient. Harassment and victimisation should not be justifiable under any circumstance.
(ix) The sectors in which discrimination is prohibited should not be restricted to employment and education. We agree that a phased introduction of prohibition, as recommended by the Menon Committee Report, may be desirable for reasons of feasibility. However, given the prevalence of discrimination in the housing sector, its exclusion from the immediate scope of the legislation is not warranted.
(x) All public bodies (widely defined to include private bodies performing public functions) and political parties should be required to refrain from discriminating in all their activities.
D. Scope of diversity promotion:
(xi) The ‘diversity index’ proposed in the Kundu Committee Report is sensitive to sex, religion and caste. We suggest that tribe and language should also be valid grounds for formulating a diversity index.
(xii) A clear statutory obligation to reduce diversity gap should be imposed on all public bodies (widely defined to include private bodies performing public functions) and other establishments that contract with governments.
(xiii) Diversity promotion should be a precondition for all government subsidies, grants, contracts etc, not only at the central level, but also at the state and local level. Establishments with narrower diversity gaps should get preferential access to governmental grants etc.
(xiv) Bodies and establishments covered by the two preceding clauses should publish their diversity gaps and their plans to promote diversity. Citizens should also have an enforceable right to this information.
(xv) In case of establishments not covered above, the right to information regarding their diversity gap should nonetheless be available to their employees/ residents/ applicants/ students etc.
E. Enforcement Mechanism:
(xvi) The single Equality Commission should be independent of political interference, but subject to political scrutiny and judicial review, while formulating the deprivation and diversity indices. Bipartisan appointment, involvement of civil society and transparency obligations on the lines of recently constituted bodies such as the Central Information Commission should be considered.
(xvii) Draft deprivation and diversity indices should be published on the Commission’s website and elsewhere for public debate before finalisation. Reasons and evidence for the identification/non-identification of any group as ‘deprived’ should also be publicly available.
(xviii) Relationship with the SC/ST Commission, Backward Classes Commission, Minorities Commission, National Commission for Women, and the National Human Rights Commission should be clearly specified. Emphasis should be on co-ordination and data sharing. The Equality Commission is not based on any single identity and its proposed mandate is distinct from these pre-existing commissions. Yet, it can learn from their experiences—legislation should facilitate this institutional learning.
(xix) The proposed Equality Commission in the Menon Committee Bill has extensive powers for investigation, data gathering, auditing, advocacy and advisory functions. However, the recommendatory nature of the orders and ‘codes of practice’ limits the effectiveness of the Commission. Further, while reliance on voluntary compliance and emphasis on mediated settlements is entirely commendable, it fails to elevate the ‘equal opportunities’ to the status of ‘rights’. The lack of effective enforcement machinery thus, dilutes the larger mandate of the Commission and needs to be remedied at the very outset.
(xx) The scope of membership of Facilitation Centres (provided for in the Menon Committee Bill) should be widened, and its powers and functions should be clarified and strengthened.
(xxi) Section 39 (b) in the Menon Committee Bill elevates the ‘Equal Opportunity Practices Code’ to the level of a “Standing Orders” under the Industrial Disputes Act, thus making it binding and enforceable. However, the single Equality Bill should clarify that the scope of establishments covered by it is wider than that under the Industrial Disputes Act, and should also provide for a mechanism for enforcement of these Codes in establishments that do not fall within the scope of the Industrial Disputes Act.
(xxii) Likewise, the powers to investigate and audit in Sections 23-25 and Section 27, should culminate in effective action in the event of widespread discriminatory practices, or victimisation.
(xxiii) The Menon Committee Report envisages a group-driven complaints model rather than an individual-driven one. We suggest that in addition to group rights, individual victims of discrimination should be given a right to mandatory orders, injunctions, declaratory orders, compensation, reasonable accommodation, protection orders against harassment and against victimisation for making a complaint, and the right to information about the diversity gap in their establishment.
(xxiv) In case of direct discrimination, harassment or victimisation by public bodies, part of the compensation amount should be recovered from the salary of the person(s) responsible for such discrimination, harassment or victimisation.
These measures are too important to be passed in haste and without wider public debate. We hope you will give these suggestions as well as the experience of jurisdictions with comparable legislations (such as South Africa, Canada, the United Kingdom, the European Union and the United States) due consideration and circulate the draft of a single ‘Equality Bill’ for further public debate.
In anticipation,
Yours Sincerely,
CC: The Prime Minister
Government of India
CC: The Minister for Law and Justice
Government of India
(Text drafted by Tarunabh Khaitan for CSSE, NLSIU, with inputs from Roopa Madhav, Kamala Sankaran and Usha Ramanathan)
6/13/09
Law Text Culture
CALL FOR PAPERS
Volume 14, 2010
Law’s Theatrical Presence frame, rhetoric, image, body, appearance
Guest editors: Marett Leiboff and Sophie Nield
This issue of Law Text Culture seeks to explore law through the lens of theatrical and performance theory and to read theatre through the paradigm of law. The ‘theatrical’ of which we speak is not that of words or playtexts, drama or literature, nor is it solely the ‘performative’ as a universal referent to any form of enacted public practice. The field of performance studies has certainly expanded in past decades into social and political analysis, but at the expense of the potentially useful theatrical frame. The revitalised field of theatricality, rather than pivoting around acting, costumes, props and stages, allows us to foreground ideas of frame, the body, appearance, rhetoric, and image as key intersections for understanding the work of the law in producing, shaping and staging justice.
The line between reality (truth, perhaps) and its representation is an energised question in theatre and performance studies currently, and one of the key theoretical perspectives being drawn on is Agamben’s modelling of jurisprudence in relation to the current legal states of exception, public resistance and terror. The relationship of the law and the theatre as twin sites of appearance and representation is, we hope, provocative: the ‘frame’ of the theatre and the ‘being framed’ of the law may speak to each other in useful ways.
Law and theatre more infamously intersect where law is used to regulate and repress. Here, it is law that frames actions, bodies, images and events, through the regulation of events, especially those involved in resistance. How law then responds to these actions is a prime site of contention, in particular where these events are filmed and recorded. A personal decision to frame, film, record and display lives online provides a challenge to law, where the boundary between action as real and action as constructed becomes blurred and confused in the online world. Can delineating actions as ‘theatre’ perhaps be a manoeuvre through which to render some sites as ‘real’ rather than commercial, if issues of copyright infringement or privacy needed to be addressed? Theatre as a practice and as a concept may, we hope, be useful here to the law in providing a means by which boundaries can be set where everyone and everything is engaged in performance.
The places in which courts and tribunals sit are ‘theatrical’: spaces to watch and be watched, where ritual and rhetoric may be used to impress judge and jury; where probable and improbable narratives of events are constructed out of speech acts and stylised dialogue. Theatre theory may, we propose, here be used to uncover the limitations of these narratives. We invite contributions exploring how the work of theatre theory - Brecht and Meyerhold, Grotowski and Artaud, Piscator and Schechner, theatre anthropology and Dario Fo, to name a few - might be drawn upon as a ‘theatrical jurisprudence’.
There are also several real-world contexts in which law and theatrical practice are already working in tandem: the recent spate of ‘tribunal’ plays in the UK which often temporally overlap the already theatricalised legal processes which they seek to reproduce; the involvement of performance scholars in the management of restorative justice; the controversial use of verbatim ‘testimony’ of displaced persons, refugees and victims of war in theatre productions.
In order to explore these, and other, questions, we seek scholarly articles, artworks, reviews, and creative writing from legal and theatre studies scholars and practitioners on topics including, but not limited to:
Performance and restorative justice in indigenous contexts
'Tribunal theatre' and the restaging of public inquiries and war crimes tribunals
Theatricality and politics
Theatrical/legal appearance and representation
Legal orators and rhetoricians
Indigenous law and practice, performance and story telling
Theatre theory as jurisprudence
Melodrama
Theatrical licensing and censorship
Histories of theatrical court cases
The use of theatre in teaching law
Theatre techniques in dispute resolution
All scholarly articles will be subject to independent peer review, while all other submissions (artworks, reviews and creative writing) will be considered by the guest editors in consultation with the Managing Editor of Law Text Culture.
Abstracts/expressions of interest: 30 June 2009
Workshops:
London October 2009
Wollongong December 2009
Deadline for draft articles February 2010
Publication December 2010
For information please contact guest editors:
Marett Leiboff Sophie Nield
marett@uow.edu.au sophie.nield@rhul.ac.uk
Faculty of Law, University of Wollongong
Northfields Avenue
WOLLONGONG NSW 2522 Department of Drama and Theatre
Royal Holloway
University of London
CALL FOR PAPERS
Volume 14, 2010
Law’s Theatrical Presence frame, rhetoric, image, body, appearance
Guest editors: Marett Leiboff and Sophie Nield
This issue of Law Text Culture seeks to explore law through the lens of theatrical and performance theory and to read theatre through the paradigm of law. The ‘theatrical’ of which we speak is not that of words or playtexts, drama or literature, nor is it solely the ‘performative’ as a universal referent to any form of enacted public practice. The field of performance studies has certainly expanded in past decades into social and political analysis, but at the expense of the potentially useful theatrical frame. The revitalised field of theatricality, rather than pivoting around acting, costumes, props and stages, allows us to foreground ideas of frame, the body, appearance, rhetoric, and image as key intersections for understanding the work of the law in producing, shaping and staging justice.
The line between reality (truth, perhaps) and its representation is an energised question in theatre and performance studies currently, and one of the key theoretical perspectives being drawn on is Agamben’s modelling of jurisprudence in relation to the current legal states of exception, public resistance and terror. The relationship of the law and the theatre as twin sites of appearance and representation is, we hope, provocative: the ‘frame’ of the theatre and the ‘being framed’ of the law may speak to each other in useful ways.
Law and theatre more infamously intersect where law is used to regulate and repress. Here, it is law that frames actions, bodies, images and events, through the regulation of events, especially those involved in resistance. How law then responds to these actions is a prime site of contention, in particular where these events are filmed and recorded. A personal decision to frame, film, record and display lives online provides a challenge to law, where the boundary between action as real and action as constructed becomes blurred and confused in the online world. Can delineating actions as ‘theatre’ perhaps be a manoeuvre through which to render some sites as ‘real’ rather than commercial, if issues of copyright infringement or privacy needed to be addressed? Theatre as a practice and as a concept may, we hope, be useful here to the law in providing a means by which boundaries can be set where everyone and everything is engaged in performance.
The places in which courts and tribunals sit are ‘theatrical’: spaces to watch and be watched, where ritual and rhetoric may be used to impress judge and jury; where probable and improbable narratives of events are constructed out of speech acts and stylised dialogue. Theatre theory may, we propose, here be used to uncover the limitations of these narratives. We invite contributions exploring how the work of theatre theory - Brecht and Meyerhold, Grotowski and Artaud, Piscator and Schechner, theatre anthropology and Dario Fo, to name a few - might be drawn upon as a ‘theatrical jurisprudence’.
There are also several real-world contexts in which law and theatrical practice are already working in tandem: the recent spate of ‘tribunal’ plays in the UK which often temporally overlap the already theatricalised legal processes which they seek to reproduce; the involvement of performance scholars in the management of restorative justice; the controversial use of verbatim ‘testimony’ of displaced persons, refugees and victims of war in theatre productions.
In order to explore these, and other, questions, we seek scholarly articles, artworks, reviews, and creative writing from legal and theatre studies scholars and practitioners on topics including, but not limited to:
Performance and restorative justice in indigenous contexts
'Tribunal theatre' and the restaging of public inquiries and war crimes tribunals
Theatricality and politics
Theatrical/legal appearance and representation
Legal orators and rhetoricians
Indigenous law and practice, performance and story telling
Theatre theory as jurisprudence
Melodrama
Theatrical licensing and censorship
Histories of theatrical court cases
The use of theatre in teaching law
Theatre techniques in dispute resolution
All scholarly articles will be subject to independent peer review, while all other submissions (artworks, reviews and creative writing) will be considered by the guest editors in consultation with the Managing Editor of Law Text Culture.
Abstracts/expressions of interest: 30 June 2009
Workshops:
London October 2009
Wollongong December 2009
Deadline for draft articles February 2010
Publication December 2010
For information please contact guest editors:
Marett Leiboff Sophie Nield
marett@uow.edu.au sophie.nield@rhul.ac.uk
Faculty of Law, University of Wollongong
Northfields Avenue
WOLLONGONG NSW 2522 Department of Drama and Theatre
Royal Holloway
University of London
6/9/09
LASSnet Authors: Kamala Sankaran
Announcing Kamala Sankaran's new book
Freedom of Association in India and International Labour Standards
http://www.lexisnexis.in/freedom-of-association-in-india-and-international-labour-standards.htm
Freedom of Association in India and International Labour Standards
http://www.lexisnexis.in/freedom-of-association-in-india-and-international-labour-standards.htm
6/8/09
LASSNET Authors: Aisha Gill's co-authored volume, forthcoming
Violence Against Women in South Asian Communities
Issues for Policy and Practice
Edited by Ravi K Thiara and Aisha K GillForeword by Professor Liz Kelly CBE
Paperback, ISBN: 978-1-84310-670-8, 234mm x 156mm / 9.25in x 6in, 256pp, October 2009, £25.00, $44.95
4/26/09
CFP: Socio-Legal Review
Creating Student-Centric Space for Socio-Legal Writing
The ‘Socio-Legal Review’ is an initiative of the Law and Society Committee that hopes to inspire socio-legal writing among members of the legal and social science community. It aims at exploring themes relating to the interface of law and society and providing a platform for students and young scholars. The Committee is keen to give ‘law and society’ an expansive interpretation, thereby keeping its basic criteria for contributions simply that of high academic merit, as long as there is a perceivable link.
This would include not just writing about the role played by law in social change, or the role played by social dynamics in the formulation and implementation of law, but also writing that simply takes cognizance of legal institutions/ institutions of governance/administration, power structures in social commentary and so on. Through this effort, the journal also hopes to fill the lacunae relating to academic debate on socio-legal matters among law students.
This year’s Editorial Board has decided to continue with the policy of not imposing a theme. A contribution is eligible as long as fits in with the general mandate of the journal. The manuscript should be on any theme exploring the interface between law and the society. Each volume of the Socio-Legal Review consists of Articles, Comments and Laws’ Translations. Law’s Translations consists of shorter pieces designed to provide a glimpse into a new legal strategy, political initiative or advocacy technique applied in the field, a current problem or obstacle faced in legal reform or development work, or a new issue that has not yet received much attention and needs to be brought to light. This section is designed for the student researchers, legal practitioners, field staffers, and activists who often have the most significant insights to contribute, but the least time to write longer, scholarly articles.
The first issue of the ‘Socio-Legal Review’, published in 2005, carried the theme ‘Law and Marginalisation’. The first issue included contributions from Shail Mayaram (Senior Fellow, Centre for Study of Developing Societies, Delhi), Sivamohan Sumathy (University of Peradeniya, Sri Lanka), apart from contributions from within the National Law School. Themes ranged from ‘Poverty, Migration and Memory in the Mega-City’, ‘Migration and ‘Displacement of Sri Lankan Tamil Women’, ‘Globalisation and the City-zen’ to ‘Reservation Policy of India and Rawls’ Theory of Justice’ and ‘Contours of the Dalit Movement’.
The second volume, published in 2006, has articles by W. T. Murphy (London School of Economics) and Rajeev Dhavan (Advocate, Supreme Court). As a theme was not imposed on contribution, writing ranged from subjects as varied as the pharmaceutical industry and patents to the impact of genetics on theories of crime and punishment. The third volume of the journal, released in August 2007, includes contributions by Dr. Fiona Kumari Campbell (Griffith University) and Dr. Narnia Bohler-Muller (Nelson Mandela Metropolitan University, Port Elizabeth), besides contributions from law students. The fourth volume released in August 2008 contains contributions by Roger Cotterell and Ofer Raban as well as student articles. This volume introduces a new section titled ‘Conversations’ in which Roger Cotterrell and Ofer Raban respond to Brian Tamanaha’s thesis on the instrumentality of law. Prof. Ron Harris contributes with a piece on political parties in Israel. We are happy that we have been able to attract student writing on South Asia as this volume has articles by students at Yale Law School, Harvard Law School and the National Law School of India University.
In May 2008, the Socio-Legal Review, in conjunction with the Law and Society Committee at the National Law School, conducted a workshop on ‘Encouraging Socio-Legal Writing on University Campuses’. Attended by members of our Advisory Board such as Upendra Baxi and Nivedita Menon and young academics and students, the enthusiastic discussion at the workshop bodes well for the future of socio-legal writing in the region.
Since 2007, Socio-Legal Review has been fortunate to have been funded through a generous three year grant from the Modern Law Review. This year, based on an assessment of the journal, the editorial board of Modern Law Review has renewed the funding for the next three years. This grant has been instrumental is providing us financial security and permitting us to concentrate our efforts on improving the journal and indeed, working on our mandate of creating a student-centric space for socio-legal writing in South Asia.
Write to:
Nirupama Pillai
for the Editorial Board, Socio-Legal Review
4/12/09
Prashant Bhushan: Class Bias of the Judiciary
Misplaced Priorities and Class Bias of the Judiciary Prashant Bhushan
It is clear from the recent record of the higher judiciary that the imperative of upholding civil liberties, socio-economic rights, and environmental protection has been subordinated to agendas such as the “war on terror”, “development” and satisfying corporate interests. Far from remaining faithful to the motives that resulted in the institution of public interest litigation, the Supreme Court has tended to act against the interests of the socio-economically backward.
4/11/09
Post From Yogendra Yadav
Applications Invited: Summer Workshop on Quantitative Methods in Political Science
Lokniti - Programme for Comparative Democracy, Centre for the Study of Developing Societies (CSDS), Delhi, in collaboration with Indian Institute of Advanced Study (IIAS), Shimla invites candidates to apply for a two week Summer Workshop on Research Methodology: Analyzing Quantitative Data on Indian Politics to be held at Shimla from Monday, 15th June 2009 to Saturday, 27th June 2009. Research training in Political Science remains one of the weakest aspects of learning for any student in India. Keeping this in view we plan to bring together a group of young political scientists with the aim of providing them an opportunity to improve their skills in quantitative analysis. While some of our mid-career colleagues would be invited to attend the summer school, we will select candidates from across the country for the limited seats that are available through a process of competitive selection. In this Summer School there will be a special emphasis on making sense of quantitative data of both aggregate nature and survey data for analysis of Indian politics. The selected participants will be given a set of readings before they come to attend the workshop and will be expected to attend lectures and practical data analysis sessions. This is the Third Summer School being organized by CSDS and IIAS beginning in 2007. Some of the leading scholars working on empirical methods in Political Science have been involved in designing this summer school and will act as resource persons. These include Pradeep Chhibber (University of California at Berkeley), Peter deSouza (IIAS, Shimla), Irfan Nooruddin (Ohio State University), Yogendra Yadav (CSDS), Suhas Palshikar (University of Pune) and Sandeep Shastri (IACT). We invite the following categories of candidates to apply for this workshop: a. Teachers of Political Science in colleges and Universities who are working on empirical subjects and would benefit from further training.b. Research students of Political Science who are working on empirical themes for their M. Phil. or Ph. D. dissertations and can benefit from further training.c. Any other person (including those from outside Political Science and outside academia) who are interested in making sense of politics by analyzing quantitative data. We would give preference to young scholars. We have only about 16 seats to be filled through selection and we expect a tough competition. Please send your detailed CV with a statement of research interest (those already registered for M. Phil. or Ph.D. should clearly mention the topic of dissertation along with a brief summary of the objectives and methodologies used) in about 500 words. Applicants should also visit our website http://www.lokniti.org/index.htm; access the questionnaire used for National Election Study 2004 and write a 500 word Note on a research question based on this questionnaire that interests them. Selection for the workshop will be made on the basis of the two write-ups submitted by candidates as mentioned above. The last date for receiving the nomination/application is 23rd March 2009. We will not entertain any nominations/applications received after the above-mentioned date. The Summer School is sponsored by the IIAS and the Institute will meet the travel expenses (Train AC II or its equivalent) of the participant from his/her place of residence to Shimla both to and fro. IIAS will also provide free accommodation and food during the Summer School. Please note that this is a full time residential training course and candidates admitted to the workshop are expected to stay at the Institute and engage in full time work on all days during this period. Please send your nominations/applications by email to banasmita@gmail.com or by snail mail to: The Co-directorLokniti: Programme for Comparative Democracy Centre for the Study of Developing Societies (CSDS) 29 Rajpur Road, Delhi 110 054. India
Lokniti - Programme for Comparative Democracy, Centre for the Study of Developing Societies (CSDS), Delhi, in collaboration with Indian Institute of Advanced Study (IIAS), Shimla invites candidates to apply for a two week Summer Workshop on Research Methodology: Analyzing Quantitative Data on Indian Politics to be held at Shimla from Monday, 15th June 2009 to Saturday, 27th June 2009. Research training in Political Science remains one of the weakest aspects of learning for any student in India. Keeping this in view we plan to bring together a group of young political scientists with the aim of providing them an opportunity to improve their skills in quantitative analysis. While some of our mid-career colleagues would be invited to attend the summer school, we will select candidates from across the country for the limited seats that are available through a process of competitive selection. In this Summer School there will be a special emphasis on making sense of quantitative data of both aggregate nature and survey data for analysis of Indian politics. The selected participants will be given a set of readings before they come to attend the workshop and will be expected to attend lectures and practical data analysis sessions. This is the Third Summer School being organized by CSDS and IIAS beginning in 2007. Some of the leading scholars working on empirical methods in Political Science have been involved in designing this summer school and will act as resource persons. These include Pradeep Chhibber (University of California at Berkeley), Peter deSouza (IIAS, Shimla), Irfan Nooruddin (Ohio State University), Yogendra Yadav (CSDS), Suhas Palshikar (University of Pune) and Sandeep Shastri (IACT). We invite the following categories of candidates to apply for this workshop: a. Teachers of Political Science in colleges and Universities who are working on empirical subjects and would benefit from further training.b. Research students of Political Science who are working on empirical themes for their M. Phil. or Ph. D. dissertations and can benefit from further training.c. Any other person (including those from outside Political Science and outside academia) who are interested in making sense of politics by analyzing quantitative data. We would give preference to young scholars. We have only about 16 seats to be filled through selection and we expect a tough competition. Please send your detailed CV with a statement of research interest (those already registered for M. Phil. or Ph.D. should clearly mention the topic of dissertation along with a brief summary of the objectives and methodologies used) in about 500 words. Applicants should also visit our website http://www.lokniti.org/index.htm; access the questionnaire used for National Election Study 2004 and write a 500 word Note on a research question based on this questionnaire that interests them. Selection for the workshop will be made on the basis of the two write-ups submitted by candidates as mentioned above. The last date for receiving the nomination/application is 23rd March 2009. We will not entertain any nominations/applications received after the above-mentioned date. The Summer School is sponsored by the IIAS and the Institute will meet the travel expenses (Train AC II or its equivalent) of the participant from his/her place of residence to Shimla both to and fro. IIAS will also provide free accommodation and food during the Summer School. Please note that this is a full time residential training course and candidates admitted to the workshop are expected to stay at the Institute and engage in full time work on all days during this period. Please send your nominations/applications by email to banasmita@gmail.com or by snail mail to: The Co-directorLokniti: Programme for Comparative Democracy Centre for the Study of Developing Societies (CSDS) 29 Rajpur Road, Delhi 110 054. India
Post From Kalpana Kannabiran
--------------------------
Tribute to Aman Kachroo
Kalpana Kannabiran
The murder of nineteen-year-old medical student Aman Kachroo is deeply saddening. Ragging has been rampant in the country, especially in colleges of professional education for at least four decades now. As a child, I remember my teenaged uncle discontinuing engineering in Bhopal in the mid 1970s unable to bear the humiliation of ragging. We have no count of the number of young students, mostly young men, who have lost their lives, taken their lives or made a choice between a professional education and staying alive and sane. It is certainly not a recent phenomenon. While we have a law in place now, it is hardly surprising that the law only comes into operation when there is a serious violation – like this one -- where the gravity of the offence puts it within the purview of criminal law.
The term “ragging” itself is problematic because it masks the fact that the acts it refers to are harassment and battery aimed at diminishing the dignity of those who enter the institution at a time when they are powerless and vulnerable. Fresh out of school, several moving out of the secure confines of home for the first time, groping to find their feet in the world after gaining entry into institutions that will transport them to their dreams, these youngsters are rudely awakened to the fact that violation of dignity and person is a defining trait of the world of their dreams.
The “sporting” way of dealing with it, we are told, is to grin and bear it. There are several that do. But does that mean they do not experience humiliation? How does that experience condition their behaviour and personality in their lives ahead? It is impossible that targeted violence will not leave scars. How many have actually been able to tell their stories? When they have, how many of us have heard them carefully and acted diligently – as parents, teachers and peers?
There are others, like Aman Kachroo, who refuse to submit themselves to such humiliation. And they, the human rights defenders in institutions of higher learning, face the hostility of a negligent, callous and thereby complicit administration on the one side, an indifferent faculty on the other and a murderous mob closing in on them. This mob, of course, needs no reason to be murderous. It is not violence that needs any justification or rationalization. While all freshers are vulnerable, those who come from vulnerable social backgrounds are doubly targeted. In Aman’s case, he came in through a quota, and yet he dared to stand up and speak. A little understood dimension of campus violence is that it reproduces the exclusions and silencing outside. And because campuses are closed spaces, insulated from the world outside, the normal protections that may be claimed and that might operate outside, are rejected in favour of non transparent conciliatory processes within that are simply incapable of tackling the gravity of these situations.
The use of the term “ragging” to describe these attacks that range from verbal to physical abuse and murder, aggravates the problem by detracting attention from its seriousness – teachers, parents, friends, in general all those in touch with victims, generally share the view that this is a rite of passage which will pass. The question we need to ask ourselves, however, is, even if it is a rite of passage, even if we are certain it will pass, why must we tolerate or condone intentional humiliation and battery?
This is scarcely the time for us to distance ourselves from the problem by saying it does not happen in our institutions. We need now to take responsibility for a systemic failure that has had tragic consequences, for which we are, as teachers especially, collectively responsible. I have personally heard the head of an institution tell freshers that while ragging is prohibited, before they lodge a formal complaint, they must also remember that it is the seniors who will eventually guide them through their academic work. It is not true either that it is only the “lumpen” elements among students who indulge in this behaviour. The brightest, most high performing students figure as kingpins in the lynch mob, providing intellectual grist to the “ragging” mill.
There are those that participate actively, and others who buy their peace and inclusion by being passive participant-spectators in these orgies. The participation in violence dehumanizes both equally. Can it be argued that having participated in an orgy of this kind, these students will be able to just move on and get their star grades, make it in life, be good teachers, friends and parents, and make peace with themselves? It is not my intention here to essentialise negative character traits or behavioural patterns as never changing and evil. Rather, what I do wish to suggest is that participation in willful violence against a group perceived as powerless, has a far-reaching impact on the perpetrators. We have not even begun to grapple with this because we have defined murderous violence down to flippant “teasing” that does not penetrate the surface of consciousness. Perhaps we need to think of how this bearing of witness as violators will influence their response to similar violence against those in their care a generation later?
If it is possible for students in an academic environment, to use the fact of belonging to the institution to inflict harm and suffering on an unimaginable scale on younger colleagues, it is time for us to reflect critically on the kind of education we impart and the students we are turning out. What does it tell us about the character of the institutions we have built?
Most urgent of all, it is time for students who are troubled by this violence to come together and form a national coalition against campus violence, making it known and clear to all parties on campuses across the country that there will henceforth be zero tolerance for any infringement of the right to dignity and education in an environment of freedom. It is only this exercise of associational freedom that will call into account all parties responsible for providing and safeguarding fundamental rights of students in vulnerable situations in educational institutions.
[Professor, NALSAR University of Law, Hyderabad]
Post From Olivia Killias
Commission on Legal Pluralism
Call for Papers
for our Conference in Zurich, August 31 – September 3, 2009
The abstracts have to be submitted until May 15
For any further information, please contact the executive secretariat,
Dr. Markus Weilenmann, Alpenstreet 25
CH-8803 Rüschlikon, Switzerland
drmweilenmann@smile.ch.
Commission on Legal Pluralism
Theme for our Conference in Zurich
Legal Pluralist Perspectives on
Development and Cultural Diversity
In dealing with the impact of globalisation and transnational forms of law, the attention of a growing number of state institutions, policy makers, scholars and international organizations has focused on how law operates in a variety of settings. For current social, economic and political changes across the globe are manifested in vastly increased flows of commodities, people, capital, technologies, images and knowledge across local, regional and national frontiers. Attempts to monitor and regulate these changes make it necessary to reappraise the ways in which legal pluralism works and the forms that it adopts. In its conference the Commission will explore this issue from the perspective of studies of non-state and state laws and of the relationships which are possible between different laws in circumstances of legal pluralism. It will also focus on the many different ways in which laws operate and are utilised by social actors in these new circumstances. It will address the different ways in which discourses about rights and obligations are adopted by different constituencies and how local concerns shape the ways in which universal legal categories of rights are being implemented, resisted and transformed as well as reformulated in these processes. In examining these issues the Commission’s Session will highlight 1) the operation and effects of legal pluralism at a variety of levels; 2) the ways in which states regulate and respond to pluralism and its impact on communities and social actors; and 3) how other normative orders are invoked in response to processes of globalisation by various bodies such as indigenous people, minorities, non-governmental organisations and individuals. Topics for discussion may comprise, but need not be limited to, the role of international law, (including human rights) as well as the management of natural resources, gender issues, law, governance and legal pluralism, law, theory and justice, and the legal regulation of biogenetics.
Opening Session
Prof. Dr. Anne Griffiths, President of the Commission on Legal Pluralism,
School of Law, University of Edinburgh
Introductory Plenary Session
Responsible Prof. Dr. Shalini Randeria
Ethnologisches Seminar, University of Zurich
List of Panels
1 The challenges and prospects of intercultural
approaches to governance and globalization
Prof. Dr. Christoph Eberhard
Facultés universitaires Saint Louis, Bruxelles
Much is being published and many conferences and seminars are held on Law, Governance and Sustainable Development. But the paradigmatic transition that these concepts reflect and contribute to shape is not sufficiently explored; neither are the stakes and the emerging challenges of a redefinition of the modalities of our living together where “state”, “government”, “development / growth” as central analytical tools start to be challenged. Especially what “globalization”, “governance” and “development” may mean from different cultural perspectives, how this “global concepts” are translated into “local settings”, what their hegemonic language and dynamics hide and suppress on the local planes are questions which remain not sufficiently explored.
Nevertheless the contemporary discourses on “globalization”, “governance” and “sustainable development” do permit to renew the ways we think about our living together.
“Globalisation” stresses the awareness that we are all sharing the same planet and are thus bound to all participate in our “collective voyage” on “spaceship earth”. “Governance” emancipates the shaping of our living together from the State monopoly and from the legal paradigm in its strict sense. Through its accent on responsibilization and participation of the actors in the elaboration and application of collective action, it points to a broadened, pluralist perspective of Law, which in an anthropological understanding can be seen as that which puts forms and puts into forms the reproduction of humanity and the resolution of conflicts in our societies. If the notion invites us to unveil its traps, especially under its form of “good governance”, it is also an invitation to explore the potentialities which are inherent in the emerging forms of “living together”. What are the contemporary stakes in rethinking the modalities of our “living together” and how to integrate realities which are largely ignored by mainstream modern legal, political and economic thought?
A purely Western approach, starting from the existing analytical tools, cannot suffice. If “governance” and “sustainable development” are “globalised realities” and may thus appear as new universals in the continuity of the “rule of law”, “democracy”, “human rights”, “development”, one should be aware that the institutional transfer of Western models to its former colonies has not ceased to be problematic. What do these concepts mean in very different cultural, economic, social and political contexts? Beyond their legality, are they legitimate and efficient? What are the stakes of their translation into idioms and world visions that do not share the Western cultural matrix? What are equivalents to these concepts in non-Western cultural settings? How are the questions put and approached? Could these other approaches not also be an enrichment to the “global”, very “Western”, way of putting questions and answers? What are the conditions and the stakes of genuine intercultural dialogue on the shaping of our living together? The requirement of intercultural dialogue is inevitable in order to complete the analysis of the current situation and in order to map out new horizons for action. This panel is an invitation to take up the challenge of this requirement.
Contact
Prof. Dr. Christoph Eberhard
Facultés universitaires Saint Louis, Boulevard du Jardin Botanique, 43
B-1000 Bruxelles, Tel : 00 32 2 211 78 33
E-mail : c.eberhard@free.fr
Website : http://www.dhdi.org/
2 Negotiating Gender and Legal Pluralism:
Local, National and Transnational Perspectives on Law
Prof. Dr. Anne Griffiths, University of Edinburgh
Prof. Dr. Anne Hellum, University of Oslo
In recent years the mobility of persons and law both within and beyond nation-states has been such that is necessary to reformulate the relationship between local, national and transnational domains. This requires a reappraisal of the role of the state and its relationship with law for given the intersection of development, transnational capital, civil society, non governmental actors, and states it is clear that nation-states can no longer be treated as discrete legal entities that can be studied in isolation either internally or externally. These factors that are driving social and economic change highlight a need to reassess the relationship between law, culture and rights, in an age where law and legal institutions now cross local, regional and national boundaries and in which the ‘local’ is embedded in and shaped by regional, national, and international networks of power and information. This is especially pertinent given the emergence of and prominence accorded to international human rights in the struggles over claims to non-discrimination and equality, land and resources, rights to cultural property and recognition and protection of minority and/or group identity.
However, in reappraising legal pluralism little attention has been paid to the gendered dimensions of law, despite the impact that this has on women’s and men’s access to resources, including legal institutions. This panel will explore the importance of gender and its impact on law at multiple levels. It will investigate how gender as a construct is socially and legally constructed and the consequences that this has for people’s access to property and resources and the strategies that they employ in their pursuit of the latter. It will consider the extent to which international instruments and conventions, such as the Convention on the Elimination of All Forms of Discrimination Against Women or the African Charter on Human and People’s Rights, may be used to empower women, as well as the extent to which such international instruments and conventions (that set up cross cultural expectations and agendas with regard to women’s rights) may be applied or tailored to tackle the local, everyday domains in which men and women operate.
In tackling these issues the panel seeks to highlight women and men’s experiences of legal pluralism, with a particular emphasis on the advantages and disadvantages that plural legal systems pose for women. Such issues raise questions about the potential, as well as the limits to, a rights centred discourse in this context. This in turn raises questions about who has the power and authority to define, interpret and implement law at the many levels at which it operates, and the implications that this has for women’s access to, and use of, law.
Contact
Professor Anne Griffiths, University of Edinburgh, Anne.Griffiths@ed.ac.uk and Professor Anne Hellum, University of Oslo, anne.hellum@jus.uio.no
3 Transnational Legal Pluralism:
Constructing the Legal Bondage of International Migrant Labour
Heinzpeter Znoj, Prof. Dr.
Institute for Social Anthropology,
University of Bern, Switzerland
Olivia Killias, PhD candidate
Institute for Social Anthropology,
University of Bern, Switzerland
Bonded labour arrangements, although long expected to gradually disappear with economic growth, societal development and legal reforms, remain a common phenomenon throughout the world. Examples of contemporary labour migration resulting in situations of dependency and exploitation have caused practices of slavery to become again - more than one hundred years after its abolition by law in most parts of the world - a widely discussed issue. This is reflected in the keen current interest in phenomena called ‘trafficking’, ‘modern forms of slavery’ and ‘forced labour’, concepts that remain, however, often undefined and are used metaphorically to denote various kinds and degrees of exploitation, violence and coercion.
In an attempt to bring some theoretical rigour into discussions on bonded labour and related concepts, we propose to take a closer look at how underlying legal frameworks help to create, sustain and legitimate bonded forms of labour. Legal frameworks are not only important for understanding the statutory position of slaves or debt bondsmen in former times, but also for analysing bondage in contemporary labour migration. In fact, according to Steinfeld and Engermann, what needs explaining in both past and present studies on (migrant) labour is “the legal rules that give employers rights to certain coercive devices, permit them to use others but prohibit still other forms of coercion.”
In the context of the increased mobility of migrant workers within and across borders, both labour sending and receiving states attempt to monitor and regulate international labour flows by implementing laws on labour migration. Furthermore, non-governmental organisations adopt and utilise international human rights instruments in order to promote the protection of migrant workers’ rights on the local level. Accordingly, the labour arrangements involving migrant workers can be socially and legally constructed in a range of different ways, depending on whom has the power to legally and socially define their situation at a certain moment in time – an immigration official, an employer, a profit-oriented recruitment agency, or an NGO activist?
The concept of legal pluralism, so far mainly applied to national contexts in which state, religious and traditional laws coexist and interact, can be fruitfully applied to a transnational context, were actors refer to the legal frameworks of their home and destination countries as well as to globally applicable legal norms. In some cases the legal complexity involved in the regulation of international labour flows can create a space for dependency, exploitation and even violence. In launching this panel at the next conference on legal pluralism in Zurich, we hope to bring together researchers interested in the ways legal pluralism works in the context of transnationalism, and how it contributes to create – or, on the contrary, reduce - bondage in contemporary transnational labour arrangements.
Some of the core questions that the panel aims to discuss are:
Under which circumstances do constellations of legal pluralism contribute to the creation and maintaining of ‘bonded’ labour relations? What does the emergence and prevalence of these dependencies tell us about new and old inequalities and about the changing social fabric within and between societies?
How does legal pluralism work in the transnational context of labour migration? To what extent do different actors participating in the field of labour migration rely on legal instruments to defend their interests and positions, and what are the consequences of these different uses of law for the migrant workers themselves? What role do ideologies of labour and gender play in the legal practices on labour migration?
Contact
Olivia Killias, PhD candidate
Institute for Social Anthropology,
University of Bern, Switzerland
Länggassstrasse 49a
CH-3000 Bern 9
Olivia.killias@anthro.unibe.ch
4 Plural socio-legal spaces, power and resistances
Dr. Fauzia Shariff,
London School of Economics and Political Sciences, UK
Contemporary challenges posed by the global and national juxtapositioning of diverse cultures and faiths has led to increasing interest in enquiries into the nature of parallel normative social fields or legal orders, referred to as legal pluralism. Overlapping normative social fields may range from legal systems such as state law, customary laws and religious laws, to socio-legal spaces such as the community, family, or other groups defined through ideology or group identity. These legal orders are spaces in which individuals are constituted and socialised and which encompass rules and the means of inducing or coercing compliance.
For socio-legal scholars, sociologists, anthropologists and policy-makers interested in issues of social justice, unpicking the dynamics of these co-existing normative social fields is a valuable prerequisite to resolving and theorising problems facing modern law and society. These challenges demand a better understanding not only of the legal orders themselves but also of how individuals and sub-groups inhabit and navigate through them.
This session will consider examples of how individuals move between legal orders to avoid or challenge inequalities and disadvantage or in search of benefits. Papers may consider:
1. Examples of individuals navigating through a number of legal orders to challenge perceived inequalities or injustices;
2. Factors that affect when and why individuals take recourse to a particular legal order as an act of resistance, and factors that might prevent them from doing so;
3. How power and power relations in one legal order are affected by this navigation of legal pluralism.
Examples may consider legal pluralism through legal implants (migrant communities acting in accordance with law that is not incorporated into state law), or other parts of the world where legal transplants (imposition or reception of foreign laws into state law) differ from indigenous legal orders. Papers are particularly encouraged to consider other spaces where individuals are constituted such as the family, community or other group where they face inequality and the possibility of using alternative legal orders as a means of resistance.
Contact
Dr. Fauzia Shariff, (fauz.knight@yahoo.co.uk)
London School of Economics and Political Sciences,
Department of Law, Houghton Street,
London WC2A, 2AE, UK
5 Resignifications: Law, Justice, Moralities
Prof. Dr. Susanne Brandtstädter, University of Oslo
This panel suggests readdressing the problem of law and culture by exploring ethnographically new constellations of law, justice and morality and their different principles for social action: accountability, responsibility, and sensibility. Though separate from justice as a social aesthetic and morality as an emotional compass, the workings of ‘the rule of law’ depend on its promise to deliver fairness and sustain ‘the good’ by means of due process or constitutional rights. The globalization of the rights discourse today demonstrates the cross-cultural attractiveness of this promise. It also demonstrates, however, frustrations that the reality of global law often falls far short of it: access to law might remain a privilege of elites, decisions that emphasis individual accountability can offend moral sensibilities, or responsibility stands in conflict with the principle of equality before the law. Increasingly complex political, cultural and social settings seem here to result both in ‘law’s fetishization’ (Comaroff and Comaroff 2006) and\or the exodus to alternative arenas and means to make ‘right’. This panel looks at ‘ethnographic moments’ where the contradictions between accountability, responsibility, and sensibility become manifest, and which inform political processes of resignifying the ‘right’, the ‘just’, and the ‘good’.
Contact: Susanne Brandtstädter, University of Oslo
Email: susanne.brandtstadter@sai.uio.no
6 Pluralism within Pluralism in Small Island Nations
of the South Pacific
Prof. Dr. Anthony Angelo
and
Associate Prof. Dr. Jennifer Corrin
TC Beirne School of Law, University of Queensland, Australia
In countries of the South Pacific, societies are often discussed in terms of the dichotomy between ‘traditional’ and ‘modern’. Similarly, legal systems are often described by reference to the dichotomy between ‘traditional law’ or ‘informal justice’ and ‘state law’ or ‘formal justice’. In fact, these divisions are becoming a thing of the past, gradually blurred by changes in the pattern of society caused by greater mobility and the impact of Western ideas. Further, the approach usually taken to the accommodation of customary law, which has been to formally ‘recognise’ it in constitutions has, at least in theory, put an end to its independent operation. In the search for a more effective approach to legal pluralism, the existing dichotomy may often obscure a more complex interplay within the spheres of ‘traditional law’ and ‘state law’. In each of these spheres there are uncertainties, including questions of definition and scope, which constitute a potentially destabilising factor and have significant rule of law implications. This panel seeks to stimulate discussion on these uncertainties and on the tensions between different sources and types of law within the ‘traditional’ and ‘state’ law spheres in the South Pacific region. Within this theme, sub-themes of human rights (including but not restricted to gender issues), natural resources, and other issues of perennial concern will be used as a focus for discussion.
Contact
Dr. Jennifer Corrin, TC Beirne School of Law
Asia Pacific Law Centre for Public, International and Comparative Law
University of Queensland, St Lucia, Qld 4072, j.corrin@law.uq.edu.au
7 Communitarian Law and Decision Making Process:
Regulations for Adaptive Governance and Recognition of Collective Rights in Watershed Management
Ingo Gentes, PhD
Centre for Research and Education in Tropical Agricultural (CATIE)
COSTA RICA
Contact
Ingo Gentes
Centre for Research and Education in Tropical Agricultural (CATIE)
Cartago, Turrialba 30501
COSTA RICA
igentes@catie.ac.cr, ingo.gentes@gmail.com
http://www.catie.ac.cr/
8 Legal pluralism in the management of watersheds
and the equitable distribution of benefits among
stakeholders
Sharon B. Singzon, D. Tech. Sc.
Eastern Samar State University, Philippines
Yonariza Guchiano, PhD
Andalas University, Padang - Indonesia
Watersheds play a very important role in the life of communities that are within its coverage. Attention to watershed development and management has recently been done as a result of the realization of the critical status of many watersheds particularly in Asia. Watersheds in the past were seen as source of rich natural resources and livelihood. It is the provider of water for various human purposes, source of timber and forest products, wild flora and fauna, as well as ecological integrity. Global warming and climate change are global phenomena that significantly affect the benefits derived from the watershed in terms of ecological and environmental sustainability.
Exploitation of the benefits from this natural resource has led to degradation of many watershed. Various stakeholders may have different understanding in terms of utilization, management and development of this resource. The watershed is often considered as a common property resource of the community where it belongs, others see it as a government-owned property, or as a resource available to those who have the finances to extract its products. Because of this, development and management of the watershed is sometimes hindered as nobody seems to take ownership for its management and development. This panel will therefore seek to learn from various watershed project cases and answer questions such as: Who are the beneficiaries or stakeholders of watershed resources that are involved in its development and management? Who takes the lead and what are the legal bases for their involvement? How does co-management in watershed take place? What are the conflicts or obstacles to watershed development and management? In how far are these difficulties linked to questions of legal pluralism? What kinds of advantages or disadvantages result from the relationship between legal pluralism and watershed management?
We invite theoretical papers, case studies, or conceptual papers that seek to answer the above-mentioned panel questions...
Contact
Sharon B. Singzon, D. Tech. Sc.
College of Agriculture and Natural Sciences, Eastern Samar State University,
Borongan, Eastern Samar, Philippines
drsingzon@yahoo.com
Yonariza Guchiano, PhD
Kampus Universitas Andalas Limau Manis, Padang 25161, Indonesia
yonariza@gmail.com
9 Defining boundaries of recognized indigenous land
By Prof. René Kuppe, Vienna University, Austria &
Prof. Pablo Gutiérrez Vega, University of Seville, Spain
rené.kuppe@univie.ac.at
As a scholar of indigenous peoples’ rights has recently stated, “One of the cornerstones of indigenous peoples‘ rights is their right to use and/or own their traditional territories“ (Jérémie Gilbert). This right is based on international instruments, possibly on international customary law, and has been recognized, at least in principle, by most national legal systems of those states where indigenous peoples live. Nevertheless, most legal sources do not answer the question clearly enough how to define the geographical boundaries of indigenous lands. Basic provisions, like Art. 14 of ILO Convention 169, require states to recognize the ownership and possession of indigenous peoples of the land they traditionally occupy; but the term “traditionally occupy“ is a complex concept which in turn requires interpretation. Furthermore, recently adopted international instruments such as the UN Declaration refer to lands and territories not only ‘traditionally owned’ but also ‘otherwise occupied and used’, thus enlarging the nature and scope of lands likely to be eligible for indigenous claims.
State practice and legal analysis have not developed uniform criteria to define lands that can be legitimately claimed by indigenous peoples. Even though a lot of scholarly writing has been produced on indigenous land rights, a remarkable emptiness prevails concerning the issue of the criteria that should define the limits of these rights. Besides, one of the most outbreaking endorsements of the already cited UN Declaration on the Rights of Indigenous peoples, is that Indigenous peoples have the right to own, use, develop and control the lands, territories and resources that they possess by reason of traditional ownership or other traditional occupation or use, as well as those which they have otherwise acquired. (…) Such recognition shall be conducted with due respect to the customs, traditions and land tenure systems of the indigenous peoples concerned.
The workshop wants to overcome this situation. On the one hand, it shall bring together critical case studies about the experiences of indigenous groups with the identification of their lands and territories by state agencies. Did the State recognize indigenous criteria (customs, traditions and land tenure systems) when granting protection to indigenous lands? Did the State limit the reach of indigenous land by recognizing rights over (indigenous) lands claimed by third parties? Missing cultural sensitiveness and third parties’ claims are some of the main reasons for reducing the size of recognised indigenous land rights, and both topics have to do with the missing intercultural dialogue and understanding. Event though it may be perceived as a simple bureaucratic readjustment, the reduction of the size and nature of claimed ancestral territories, far from being negligible, seriously jeopardize the spiritual and material survival of indigenous communities throughout the world.
In second place, the workshop shall contribute to a better methodology of how key rules about the determination of the extent of demarcated indigenous land rights shall be interpreted. Legal rules on land rights (both international and national) must be inspired by the perspective of legal pluralism, and the content of terms like “traditionally occupied lands“ should be filled up by a process giving sufficient weight to indigenous values, criteria and rules of how the boundaries of their lands should be identified.
10 Pluralistic approaches to land tenure regulation
Janine Ubink, PhD
Leiden University, The Netherlands
Throughout the 20th century, both practice and research concerning land law in developing countries were marked by strong differences of opinion about the kind of law that would fit these societies. The main divide was between those convinced of the need to design and introduce law as a state-led program – the ‘centralists’ – and those who would rather leave matters of law to local groups and communities – the ‘localists’.
From the 1960s onwards, centralist approaches dominated the field in the name of development, emphasizing codification of land rights, land registration, and land reform. This centralist paradigm was broadly supported by the economic discipline as well as by other disciplines as diverse as law and land surveying. From the 1ate 1970s ‘localists’ again raised serious questions concerning the feasibility of the centralist approach. They called attention to continuing local practices and arrangements of ‘indigenous law’ or ‘local law’, and to the failures of state-led registration projects.
Recently, both paradigms seem to be faltering. The centralist promise of a rule of law was damaged by implementation failures, while the localist promise of a community-based law often remained unfulfilled as discriminatory practices and unpredictability prevailed. There is an ongoing quest for a new paradigm in land tenure regulation based on pluralism, reconciling state perspectives of a programmatic, national and legal nature with people’s perspectives on local land law and land use.
In this panel we want to analyze concrete cases of governmental tenure reform programs that have evolved in selected countries since 1990, particularly “third way approaches” to incorporate ‘local’ rights to land – such as customary rights or urban squatters’ rights – into the national legal system. We would like to invite papers that discuss the ensuing plural regimes of land rights and management, with specific emphasis on their rationale and goals; their implementation, and their effects on tenure security.
Contact
Janine Ubink
Van Vollenhoven Institute for Law, Governance and Development
Faculty of Law, Leiden University
The Netherlands
j.ubink@law.leidenuniv.nl
11 Developing Institutional Frameworks for Translating
Global Conventions on Natural Resources Management
into Local Actions in the Context of Decentralization:
Experiences and Reflections Related to Land, Water, and
Forestry Resources Management and Conservation in
Asia
Helmi
Andalas University, Padang, Indonesia.
Shyama Prasad Rout
Jawaharlal Nehru University, New Delhi, India
This panel embarking from three major factors related to natural resources management especially land, water and forestry: global conventions, decentralization, and empowerment of community for local actions. There are a number of global conventions related to land, water and forestry resources which already agreed upon as a response to the deterioration of the resources and their uses to fulfill human needs. Millenium Development Goals (MDGs) is the latest (which more comprehensive to cover poverty, natural resources, health, etc), the Dublin Declaration (which concern with water), Kyoto Protocols (which concern with carbon dioxide emission), Biodiversity Convention are among others. The principles and general guidelines contained in the convention provide a basis for improvement of natural resources management in general and land, water and forestry in particular.
Following the agreement on principles adopted, efforts have been made to translate the conventions into action at local levels. Various organizations including government agencies, civil society organizations, private sectors (national and international), and research institutes have involved in the processes. These efforts have to take into account the latest development on governance: decentralization and empowerment of local people to actively play roles in managing provision of public goods and services (including provision of environmental services). Institutional frameworks have been developed and implementations have taken place which trying to deal with pluralism of laws at different levels (from global to local). However, the results are mix, some are successful to some degree and some were not achieved the objective as expected. The deterioration of the land, water, and forest resources which continue to happen at alarming rate give indication that there is a need to review institutional framework used to facilitate action at local levels and the implementation experiences. The basic questions are: What are the characteristics of the institutional frameworks developed? What are the characteristics of strategies adopted and the dynamics of interactions in the implementation among the actors? How do they reflect the interest of national and local governments to conserve and increase revenues from natural resources management? How do the institutional frameworks and implementation strategies reflect the concern of local people on their culture, rights, obligations, and welfare? How the interests of the stakeholders were reconciled? How best (performance) is the land, water and forest managed within the institutional frameworks and implementation strategies? Answers to these questions would enable us to draw lessons and make reflections related to legal pluralism issues which can help to improve concerted action (from global to local) in land, water and forestry management and conservation.
Researchers and practitioners are invited to submit papers which could provide answer to some or all of these questions.
Contact
Helmi
Andalas University (Center for Irrigation, Land and Water Resources and development Studies), Padang, INDONESIA.
E-mail address: helmi59pdg@yahoo.com.
Phone/Fax: +62-0751-74389.
Shyama Prasad Rout
Centre for Political Studies, Jawaharlal Nehru University, New Delhi, India
E-Mail address: shyama2u@rediffmail.com Phone- +91-9437110826
12 Legal Pluralism and Environmental Justice
in a Rural Natural Resources Context of South Asia
Ms M.S.Vani and Mr Rohit Asthana
Development Centre for Alternative Policies,
New Delhi, India
Legal Pluralism is a fact of life in multicultural societies, particularly such as those of Asia and Africa. Indigenous legal traditions of plural dimensions reflecting and evidencing such cultural plurality co-exist with monistic forms of governance and administration of justice through formal state-engendered legal frameworks. The latter in most cases, have been a product of the colonial experience. Despite the fact of a vast allegiance of the populations of Asian countries to their indigenous legal traditions through the frameworks of customary law, legal frameworks based on monistic and ethnocentric western jurisprudence predominate in many such nations. Customary laws, where they are recognized by constitutional or statutory legal frameworks, are frequently circumscribed by formal notions of justice, legality and authority, giving rise to normative and jurisdictional conflicts. Such conflicts may relate to concepts of law and justice that impact on notions and visions of development and progress. Complex processes of legal pluralism have evolved in this clash of and continuous interaction between differing worldviews and jurisprudential systems based on them. Added to this intra-national melting pot of legal cultures are the tremendous conflicting influences of transnational economic, political and social phenomena and the institutions and the legal frameworks that they bring in their wake. They are authored on the one hand by globalizing economic forces that seek to consolidate economic and political power, and on the other, by the aspirations of the international community for sustainable and equitable development articulated through formal and non-formal movements, institutions and processes.
One such initiative has been the environmental justice movement that emerged in the west as an illustration of the integration of environmental conservation and social justice principles and goals that were subsequently translated into government action initiatives for protection of the quality of life of minority and disadvantaged groups against the harmful effects of environmental pollution. While this concept has evolved rapidly over the past decade or so in Western countries, it is still in a nascent stage in other parts of the world, particularly developing countries. Western initiatives for environmental justice are located in legal frameworks founded on western systems of jurisprudence. In legal pluralistic and rural natural –resource dependent rural societies such as those of Asia, a departure needs to be made in defining and operationalising the concept, goals, objectives and processes of achieving environmental justice.
Rural livelihoods in Asian countries revolve substantially on the use of natural resources. These resources have historically been at the centre of the conflict between western and traditional systems of law in countries which have undergone the colonial experience, when legal frameworks were targeted at establishing colonial rule through access to land and natural resources. Property rights to natural resources and the legitimacy of public participation in their control and management have been at the heart of this conflict. In current global conditions of progressive environmental degradation through over-exploitation, misuse and climate change phenomena, how does a disempowered, poor, socially disadvantaged rural citizen in a developing country in the Asian context secure his or her rights to natural resources, and thereby a sustainable livelihood? Do conditions and situations of legal pluralism hinder or enhance such a citizen’s prospects of securing participation and justice?
This panel seeks to explore the contours and content of environmental justice in the Asian, rural natural resource context, in conditions of legal pluralism. The panel invites papers on topics including, but not limited to the following.
Influences of religious/ spiritual law on conceptions of man –nature relationship, law and justice.
Concepts and theory of environmental justice from pluralistic jurisprudential perspectives.
Property rights and management of natural resources from legal pluralistic perspectives.
Access to justice in Asian rural societies in conditions of legal pluralism.
Structures and processes of law making and implementation in the natural resources sector – role of legal pluralism
Role of transnational laws and influence of multi-lateral and bilateral agencies in resource rights and management and impact on customary legal frameworks.
Prospects and processes for harmonizing customary law with constitutional and statutory legal frameworks for addressing traditional practices that violate environmental justice principles.
Contact
Ms M.S.Vani and Mr Rohit Asthana
Development Centre for Alternative Policies,
5 Babar Road, New Delhi 110001 India
Phone: 91-11-23353774; 09412092349; 094129093395; 09868127328
Email: dcap@del3.vsnl.net.in; devcentre_ap@yahoo.com; devcentreap@gmail.com
13 Embedding International Environmental Law in Contexts
of Legal Pluralism (with a focus on Water and Africa)
Corinne Wacker, PhD, Institut für Umwelttechnik,
Fachhochschule beider Basel
Law has been designated by Giddens (1990) as a dimension of Globalization. Specialized fields of law, such as environmental law, create a trans-national legal culture, a system of expert knowledge which is ‘disembedded’ from the social context. We propose to share and discuss case studies and conceptual papers on the implementation of international environmental law in contexts of legal diversity. We propose to set a focus on the procedural conditions under which international environmental law can become meaningful in contexts of legal diversity and instrumental to local communities to claim entitlements over the natural resources of their environment (with a focus on water resources of water courses under international water treaty regimes).
To make the environmental dimension an internalized component of the decision making process and on the use and management of natural resources, International Environmental Law has adopted the principle of public participation. Through participation in the process of law making, law can become meaningful and instrumental to local actors and become part of their world (Cover 1983, Mellissaris 2004). In a dialogue between state and non-state actors, a “productive misreading” of the law (Teubner 1992) can facilitate an internal reconstruction process of the law in contexts of legal diversity. States can also voluntarily enter in agreements with extralegal institutions grounded in local knowledge, create linkage institutions and accept local autonomy on the management of natural resources (Guillet 1995). With these characteristics, linkage institutions between the state and non state actors have the potential to enable marginalized traditional communities to claim their rights on natural resources of their environment (Zerner 2000). What are the procedural and substantive conditions to make international environmental law meaningful in contexts of legal diversity?
Case Study: Environmental Law in the Making in a Context of Legal Diversity at Lake Victoria’s Wetland Shoreline in Uganda.
Formed by the bi-annual equatorial rise and fall of the lake level, the wetland bays and small islands along the northern shoreline of Lake Victoria were since thousands of years the privileged premises of a great aquatic civilization based on fishing, canoe trading along the waterways of the river Nile system and on flood recession gardening. Neglected by the colonial Nile Treaties which have allocated the rights to the Nile water to two countries having the right to grow irrigated crops and to eight others to whom this right has been denied, the wetlands of the Nile River and its Sub-Basin, Lake Victoria, have been bypassed as a specific ecosystem and habitat in the international water law of River Nile. By implanting additionally also modern land laws in the colonies, the wetland habitat of land and water has been dismembered into separate international and national legal units and has been marginalized. As part of public land, wetland habitats have become in Uganda, however, privileged premises for marginalized population segments who continue the traditional modes of swamp livelihood as illegal encroachers on public land and on a part of an international water body.
As country situated in the catchments of River Nile, Uganda has large areas of wetlands. Under President Museveni (since 1986) Uganda has set up a national environmental law endorsing the principle of participation in environmental law and the delegation of decision making on environmental matters at local level. Additionally the environmental law allows also the ‘traditional uses’ of wetland resources under the environmental law. This favourable legal context enabled a local community of wetland resource users, making a living illegally by using wetlands for fishing, gardening and craft making at the shoreline of Lake Victoria in Jinja town, to form a collective, to embark in a dialogue with government representatives and finally to become a “custodian” on the wetland, entitled to use the wetland resources for traditional uses and to monitor locally - as private sector collective under a co-management system with the local authorities - that the environmental wetland law of Uganda is enforced. This delegated co-management system enabled implementing environmental law in a context of legal pluralism. Uganda has inherited a dual legal system from its colonial period, but successive post-independence legal reforms have created diverging layers of laws on wetlands, which were, however, poorly enforced against the many poor who made a living from the urban and peri-urban wetlands of Jinja town, where the case study is situated. A “living law” (Tamanaha 1997, 2000) governed the transactions among the wetland user community, encompassing and keeping alive principles of customary African law which are distinct from the colonial customary law and the post-independent modern law of the country. With this case study based on six years of anthropological field research and on participatory legal drafting with the Wasoga and the fishing communities named “Bakenji” of Lake Victoria’s northern shoreline, we propose to discuss some principles of African land and water law and procedural aspects on how to implement environmental law in a context of legal diversity. As le Roy and Le Bris (1982) underlined, African law is not linked to a specific space but to social relations of the people who interact and use this space and it is the collective that enables and controls individual user rights on a habitat which are effective as long as the resource is effectively used and the relationship to the authority which has allocated this right is maintained. The local case study of a collective of wetland resource users from the shoreline of Lake Victoria in Uganda suggests that international environmental law can be embedded in legal systems which derogate in their principles form colonial or modern land property law.
Contact
Corinne Wacker, PhD
9, rue du Château
2000 Neuchâtel, corinne.wacker@bluewin.ch
14 Legal Pluralism and Human Rights
Yuksel Sezgin, PhD,
University of Washington
The panel will focus on the impact of non-state legal orders (customary, religious etc.) on rights and freedoms of individuals living under these systems. Existence of multiple jurisdictions often entails existence of multiple standards of rights and duties for individuals within the same politico-legal space. Yet, the lack of a common standard of rights and duties in a society can also lead to rise of differentiated or stratified categories of citizenry by grouping individuals into racial, ethnic, tribal, sectarian and gendered categories. In this respect, the first question that the panel will address is how universal human rights values can be instilled into a polycentric system where collective rights are held superior to individual rights or the principle of applying territorial, abstract and depersonalized norms to individuals without discrimination is either only weakly established or completely unknown. Moreover, the following questions will be also answered by the panel: Does legal pluralism help or prevent cultivation of international human rights standards? How much or what type of plurality can promote the so-called universal standards of human rights? Is legal pluralism an ill-intended tool for cultural relativists to deny international human rights to their constituents? Whose rights should prevail when there is a conflict between the rights of individuals and those of communities? In addition to purely legal and academic papers, the panel also welcomes papers from human rights or development practitioners who deal with public policy or immediate questions of how to reconcile differences between non-western norms/values and the so-called universal human rights principles, by particularly focusing on vulnerable populations (e.g., women, children, indigenous peoples etc.).
Contact
Yuksel Sezgin, PhD, University of Washington
Comparative Law and Society Studies Centre
Email: ysezgin@u.washington.edu
15 Contributes applied legal anthropology to an
improved governance of legal pluralism?
Dr. Markus Weilenmann
Office for Conflict Research in Developing Countries,
Rüschlikon, Switzerland
In recent years, questions concerning applied legal and social anthropology have come more frequently to the fore, mainly in respect to the improvement of development politics. The German Technical Cooperation for instance requested legal anthropological advice for the designing of its good governance programmes from the mid 90s onwards. A leading question was whether such advice could develop practical recommendations which take the political, social and cultural living conditions of the recipient countries as starting point. And under the heading „cultural cooperation“, the Swiss Agency for Development Cooperation strived for a closer collaboration with social anthropologists. More recently, also the UN requested a large-scale study on informal justice. Typically however, in all cases the focus rests only on those cultural aspects which are located outside of development agencies and thus hamper or enable a social change in the recipient countries.
Yet culture is of course not only „something“ that is located outside of these agencies and thus only in the good hands where one discusses the existing links between culture, legal structure and „social development“. Culture is also a typical mark of these agencies themselves, which invent the corresponding rules in order to design and manage development projects. With the growing globalisation such aspects gain importance, the more so as (private and public) development bureaucracies exert a growing pressure on the social and economic relations of local communities in non-western contexts. This process is particularly accentuated by the (not so new) discourse order on topics like good governance, the rule of law, the recognition of the human rights or the promotion of justice and democracy - topics, which are explicitly declared as new fields of action of private and public development agencies.
However, if one turns the scope to the social anthropological debates on development cooperation, which actually are largely influenced by exponents of development anthropology, one gets an ambivalent impression. While such an initial point would require substantial social and legal anthropological research on the socio-cultural impact of development aid, many anthropologists still prefer emphasizing the so-called „anthropological scepticism“ and add that development aid is „of no use“. Herewith, the debate is steered towards a direction which is rather due to a value orientation than to the upcoming cultural conflicts. Vis-Ã -vis the development practitioners one insists on the one hand resolutely on the boosted consideration of social anthropological viewpoints during the planning and implementation phase of those projects which are located at the interface between national and local notions of law. And on the basis of de-constructive approaches one identifies the ethnocentricity of bureaucratic patterns of decision-making. Those anthropologists however, who are engaged in such disputed territories are on the other hand accused of being „traitors“ of the „common cause“, since they would „sell“ their local knowledge to bureaucrats and thus only help them to cover their own deficit of social legitimacy (see Escobar, 1991; Ferguson, 1994; Hobart, 1993: Mosse, 2003 and many others).
But when the discussion shifts to possible alternatives, the contributions are usually not very helpful. In most cases only commonplace points are stressed such as the postulation for more self-reflection, the promotion of actor-centred approaches or the „empowerment“ of discriminated minorities (Gardner and Lewis, 1997; Grillot, 1997; Mosse and Lewis, 2005).
The goal of this panel is thus a qualified exchange of ideas and experiences between legal anthropological practitioners and researchers, which goes beyond wishful thinking and professional cynicism. The question whether applied legal anthropology contributes to an improved governance of legal pluralism or not is thus not only a value related question (whether one believes “legal pluralism” or “governance” is “good” or “bad”) but a question, which also challenges our identities and our world views.
With this panel, I thus call
for papers that contribute to an improved understanding of the problems of “the other”;
for papers which analyse the social and political complexities, in which legal anthropological research or advice takes place;
for papers which consider cultural and legal conflicts at the interface between state bureaucracies and local notions of governance;
for papers which identify legal and political dynamics that could evoke distinct or controversial problem understandings, research agendas, operational strategies or management plans.
For further information, please contact:
Dr. Markus Weilenmann
Office for Conflict Research in Developing Countries
Alpenstr. 25, CH-8803 Rüschlikon, Switzerland
drmweilenmann@smile.ch or by fax ++41 44 724 39 40
http://www.conflictresearch.ch/
16 Religious, Corporate and Common Law:
Coexistence in One State
Yulia N. Sushkova,
Mordovian State University, Saransk, Russia
The problems of legal development and transformation in the post-soviet countries will be discussed in the context of globalization and sovereignty. The reports will discuss the regulation of the different aspects of family and marital relations, social connections on the bases of common, religious and corporate law. There will be discussed the influence of those sources on the legal being of people within national and international law.
1. Coexistence of the state law and religious law, ethical traditions, common law in the sphere of marital and family relations.
2. The usage of natural resources: interests of international and national corporations v. aboriginal peoples of the North. Common law in the modern mechanism of aboriginal peoples’ rights protection.
3. Corporate law: coexistence and conflict with the state legal system (on the example of corporations, defense and security structures, informal gatherings).
4. A human in the system of legal coordinates (family, community, region, state, international community).
5. Federalism: problems of regulation within the post-soviet states.
6. NGOs and international financial corporations in the process of human and peoples’ rights protection.
7. Traditional law of the Finno-Ugrian peoples: the problems of coexistence with the state law.
Religious, corporate and common law as a system presents a unique legal heritage, which reflects the diversity of culture, traditions, folklore. Coexistence of multiple sources of law shows how the principles of humanity, development and cultural diversity are functioning in the state. The participants are thus encouraged to present original materials, which demonstrate the history, present situation and future perspectives on the issues.
Contact
Yulia N. Sushkova, Prodean of the law department,
Mordovian State University, Saransk
yulenkam@mail.ru
17 Theoretical and Empirical Issues on Legal Pluralism
Prof. Dr. Keebet von Benda-Beckmann
Max Planck Institute for Social Anthropology
Participants are invited to present papers that deal with theoretical and methodological issues involving empirical research on legal pluralism under conditions of globalisation. Issues that might be addressed include: the selection of an appropriate site of research and choices between multi- and single sited research; local self-regulation and local responses to national and transnational regulation.
Contact
Prof. Dr. Keebet von Benda-Beckmann
Max Planck Institute for Social Anthropology
P.O.Box 11 03 51
06017 Halle/Saale
Germany
kbenda@eth.mpg.de
Call for Papers
for our Conference in Zurich, August 31 – September 3, 2009
The abstracts have to be submitted until May 15
For any further information, please contact the executive secretariat,
Dr. Markus Weilenmann, Alpenstreet 25
CH-8803 Rüschlikon, Switzerland
drmweilenmann@smile.ch.
Commission on Legal Pluralism
Theme for our Conference in Zurich
Legal Pluralist Perspectives on
Development and Cultural Diversity
In dealing with the impact of globalisation and transnational forms of law, the attention of a growing number of state institutions, policy makers, scholars and international organizations has focused on how law operates in a variety of settings. For current social, economic and political changes across the globe are manifested in vastly increased flows of commodities, people, capital, technologies, images and knowledge across local, regional and national frontiers. Attempts to monitor and regulate these changes make it necessary to reappraise the ways in which legal pluralism works and the forms that it adopts. In its conference the Commission will explore this issue from the perspective of studies of non-state and state laws and of the relationships which are possible between different laws in circumstances of legal pluralism. It will also focus on the many different ways in which laws operate and are utilised by social actors in these new circumstances. It will address the different ways in which discourses about rights and obligations are adopted by different constituencies and how local concerns shape the ways in which universal legal categories of rights are being implemented, resisted and transformed as well as reformulated in these processes. In examining these issues the Commission’s Session will highlight 1) the operation and effects of legal pluralism at a variety of levels; 2) the ways in which states regulate and respond to pluralism and its impact on communities and social actors; and 3) how other normative orders are invoked in response to processes of globalisation by various bodies such as indigenous people, minorities, non-governmental organisations and individuals. Topics for discussion may comprise, but need not be limited to, the role of international law, (including human rights) as well as the management of natural resources, gender issues, law, governance and legal pluralism, law, theory and justice, and the legal regulation of biogenetics.
Opening Session
Prof. Dr. Anne Griffiths, President of the Commission on Legal Pluralism,
School of Law, University of Edinburgh
Introductory Plenary Session
Responsible Prof. Dr. Shalini Randeria
Ethnologisches Seminar, University of Zurich
List of Panels
1 The challenges and prospects of intercultural
approaches to governance and globalization
Prof. Dr. Christoph Eberhard
Facultés universitaires Saint Louis, Bruxelles
Much is being published and many conferences and seminars are held on Law, Governance and Sustainable Development. But the paradigmatic transition that these concepts reflect and contribute to shape is not sufficiently explored; neither are the stakes and the emerging challenges of a redefinition of the modalities of our living together where “state”, “government”, “development / growth” as central analytical tools start to be challenged. Especially what “globalization”, “governance” and “development” may mean from different cultural perspectives, how this “global concepts” are translated into “local settings”, what their hegemonic language and dynamics hide and suppress on the local planes are questions which remain not sufficiently explored.
Nevertheless the contemporary discourses on “globalization”, “governance” and “sustainable development” do permit to renew the ways we think about our living together.
“Globalisation” stresses the awareness that we are all sharing the same planet and are thus bound to all participate in our “collective voyage” on “spaceship earth”. “Governance” emancipates the shaping of our living together from the State monopoly and from the legal paradigm in its strict sense. Through its accent on responsibilization and participation of the actors in the elaboration and application of collective action, it points to a broadened, pluralist perspective of Law, which in an anthropological understanding can be seen as that which puts forms and puts into forms the reproduction of humanity and the resolution of conflicts in our societies. If the notion invites us to unveil its traps, especially under its form of “good governance”, it is also an invitation to explore the potentialities which are inherent in the emerging forms of “living together”. What are the contemporary stakes in rethinking the modalities of our “living together” and how to integrate realities which are largely ignored by mainstream modern legal, political and economic thought?
A purely Western approach, starting from the existing analytical tools, cannot suffice. If “governance” and “sustainable development” are “globalised realities” and may thus appear as new universals in the continuity of the “rule of law”, “democracy”, “human rights”, “development”, one should be aware that the institutional transfer of Western models to its former colonies has not ceased to be problematic. What do these concepts mean in very different cultural, economic, social and political contexts? Beyond their legality, are they legitimate and efficient? What are the stakes of their translation into idioms and world visions that do not share the Western cultural matrix? What are equivalents to these concepts in non-Western cultural settings? How are the questions put and approached? Could these other approaches not also be an enrichment to the “global”, very “Western”, way of putting questions and answers? What are the conditions and the stakes of genuine intercultural dialogue on the shaping of our living together? The requirement of intercultural dialogue is inevitable in order to complete the analysis of the current situation and in order to map out new horizons for action. This panel is an invitation to take up the challenge of this requirement.
Contact
Prof. Dr. Christoph Eberhard
Facultés universitaires Saint Louis, Boulevard du Jardin Botanique, 43
B-1000 Bruxelles, Tel : 00 32 2 211 78 33
E-mail : c.eberhard@free.fr
Website : http://www.dhdi.org/
2 Negotiating Gender and Legal Pluralism:
Local, National and Transnational Perspectives on Law
Prof. Dr. Anne Griffiths, University of Edinburgh
Prof. Dr. Anne Hellum, University of Oslo
In recent years the mobility of persons and law both within and beyond nation-states has been such that is necessary to reformulate the relationship between local, national and transnational domains. This requires a reappraisal of the role of the state and its relationship with law for given the intersection of development, transnational capital, civil society, non governmental actors, and states it is clear that nation-states can no longer be treated as discrete legal entities that can be studied in isolation either internally or externally. These factors that are driving social and economic change highlight a need to reassess the relationship between law, culture and rights, in an age where law and legal institutions now cross local, regional and national boundaries and in which the ‘local’ is embedded in and shaped by regional, national, and international networks of power and information. This is especially pertinent given the emergence of and prominence accorded to international human rights in the struggles over claims to non-discrimination and equality, land and resources, rights to cultural property and recognition and protection of minority and/or group identity.
However, in reappraising legal pluralism little attention has been paid to the gendered dimensions of law, despite the impact that this has on women’s and men’s access to resources, including legal institutions. This panel will explore the importance of gender and its impact on law at multiple levels. It will investigate how gender as a construct is socially and legally constructed and the consequences that this has for people’s access to property and resources and the strategies that they employ in their pursuit of the latter. It will consider the extent to which international instruments and conventions, such as the Convention on the Elimination of All Forms of Discrimination Against Women or the African Charter on Human and People’s Rights, may be used to empower women, as well as the extent to which such international instruments and conventions (that set up cross cultural expectations and agendas with regard to women’s rights) may be applied or tailored to tackle the local, everyday domains in which men and women operate.
In tackling these issues the panel seeks to highlight women and men’s experiences of legal pluralism, with a particular emphasis on the advantages and disadvantages that plural legal systems pose for women. Such issues raise questions about the potential, as well as the limits to, a rights centred discourse in this context. This in turn raises questions about who has the power and authority to define, interpret and implement law at the many levels at which it operates, and the implications that this has for women’s access to, and use of, law.
Contact
Professor Anne Griffiths, University of Edinburgh, Anne.Griffiths@ed.ac.uk and Professor Anne Hellum, University of Oslo, anne.hellum@jus.uio.no
3 Transnational Legal Pluralism:
Constructing the Legal Bondage of International Migrant Labour
Heinzpeter Znoj, Prof. Dr.
Institute for Social Anthropology,
University of Bern, Switzerland
Olivia Killias, PhD candidate
Institute for Social Anthropology,
University of Bern, Switzerland
Bonded labour arrangements, although long expected to gradually disappear with economic growth, societal development and legal reforms, remain a common phenomenon throughout the world. Examples of contemporary labour migration resulting in situations of dependency and exploitation have caused practices of slavery to become again - more than one hundred years after its abolition by law in most parts of the world - a widely discussed issue. This is reflected in the keen current interest in phenomena called ‘trafficking’, ‘modern forms of slavery’ and ‘forced labour’, concepts that remain, however, often undefined and are used metaphorically to denote various kinds and degrees of exploitation, violence and coercion.
In an attempt to bring some theoretical rigour into discussions on bonded labour and related concepts, we propose to take a closer look at how underlying legal frameworks help to create, sustain and legitimate bonded forms of labour. Legal frameworks are not only important for understanding the statutory position of slaves or debt bondsmen in former times, but also for analysing bondage in contemporary labour migration. In fact, according to Steinfeld and Engermann, what needs explaining in both past and present studies on (migrant) labour is “the legal rules that give employers rights to certain coercive devices, permit them to use others but prohibit still other forms of coercion.”
In the context of the increased mobility of migrant workers within and across borders, both labour sending and receiving states attempt to monitor and regulate international labour flows by implementing laws on labour migration. Furthermore, non-governmental organisations adopt and utilise international human rights instruments in order to promote the protection of migrant workers’ rights on the local level. Accordingly, the labour arrangements involving migrant workers can be socially and legally constructed in a range of different ways, depending on whom has the power to legally and socially define their situation at a certain moment in time – an immigration official, an employer, a profit-oriented recruitment agency, or an NGO activist?
The concept of legal pluralism, so far mainly applied to national contexts in which state, religious and traditional laws coexist and interact, can be fruitfully applied to a transnational context, were actors refer to the legal frameworks of their home and destination countries as well as to globally applicable legal norms. In some cases the legal complexity involved in the regulation of international labour flows can create a space for dependency, exploitation and even violence. In launching this panel at the next conference on legal pluralism in Zurich, we hope to bring together researchers interested in the ways legal pluralism works in the context of transnationalism, and how it contributes to create – or, on the contrary, reduce - bondage in contemporary transnational labour arrangements.
Some of the core questions that the panel aims to discuss are:
Under which circumstances do constellations of legal pluralism contribute to the creation and maintaining of ‘bonded’ labour relations? What does the emergence and prevalence of these dependencies tell us about new and old inequalities and about the changing social fabric within and between societies?
How does legal pluralism work in the transnational context of labour migration? To what extent do different actors participating in the field of labour migration rely on legal instruments to defend their interests and positions, and what are the consequences of these different uses of law for the migrant workers themselves? What role do ideologies of labour and gender play in the legal practices on labour migration?
Contact
Olivia Killias, PhD candidate
Institute for Social Anthropology,
University of Bern, Switzerland
Länggassstrasse 49a
CH-3000 Bern 9
Olivia.killias@anthro.unibe.ch
4 Plural socio-legal spaces, power and resistances
Dr. Fauzia Shariff,
London School of Economics and Political Sciences, UK
Contemporary challenges posed by the global and national juxtapositioning of diverse cultures and faiths has led to increasing interest in enquiries into the nature of parallel normative social fields or legal orders, referred to as legal pluralism. Overlapping normative social fields may range from legal systems such as state law, customary laws and religious laws, to socio-legal spaces such as the community, family, or other groups defined through ideology or group identity. These legal orders are spaces in which individuals are constituted and socialised and which encompass rules and the means of inducing or coercing compliance.
For socio-legal scholars, sociologists, anthropologists and policy-makers interested in issues of social justice, unpicking the dynamics of these co-existing normative social fields is a valuable prerequisite to resolving and theorising problems facing modern law and society. These challenges demand a better understanding not only of the legal orders themselves but also of how individuals and sub-groups inhabit and navigate through them.
This session will consider examples of how individuals move between legal orders to avoid or challenge inequalities and disadvantage or in search of benefits. Papers may consider:
1. Examples of individuals navigating through a number of legal orders to challenge perceived inequalities or injustices;
2. Factors that affect when and why individuals take recourse to a particular legal order as an act of resistance, and factors that might prevent them from doing so;
3. How power and power relations in one legal order are affected by this navigation of legal pluralism.
Examples may consider legal pluralism through legal implants (migrant communities acting in accordance with law that is not incorporated into state law), or other parts of the world where legal transplants (imposition or reception of foreign laws into state law) differ from indigenous legal orders. Papers are particularly encouraged to consider other spaces where individuals are constituted such as the family, community or other group where they face inequality and the possibility of using alternative legal orders as a means of resistance.
Contact
Dr. Fauzia Shariff, (fauz.knight@yahoo.co.uk)
London School of Economics and Political Sciences,
Department of Law, Houghton Street,
London WC2A, 2AE, UK
5 Resignifications: Law, Justice, Moralities
Prof. Dr. Susanne Brandtstädter, University of Oslo
This panel suggests readdressing the problem of law and culture by exploring ethnographically new constellations of law, justice and morality and their different principles for social action: accountability, responsibility, and sensibility. Though separate from justice as a social aesthetic and morality as an emotional compass, the workings of ‘the rule of law’ depend on its promise to deliver fairness and sustain ‘the good’ by means of due process or constitutional rights. The globalization of the rights discourse today demonstrates the cross-cultural attractiveness of this promise. It also demonstrates, however, frustrations that the reality of global law often falls far short of it: access to law might remain a privilege of elites, decisions that emphasis individual accountability can offend moral sensibilities, or responsibility stands in conflict with the principle of equality before the law. Increasingly complex political, cultural and social settings seem here to result both in ‘law’s fetishization’ (Comaroff and Comaroff 2006) and\or the exodus to alternative arenas and means to make ‘right’. This panel looks at ‘ethnographic moments’ where the contradictions between accountability, responsibility, and sensibility become manifest, and which inform political processes of resignifying the ‘right’, the ‘just’, and the ‘good’.
Contact: Susanne Brandtstädter, University of Oslo
Email: susanne.brandtstadter@sai.uio.no
6 Pluralism within Pluralism in Small Island Nations
of the South Pacific
Prof. Dr. Anthony Angelo
and
Associate Prof. Dr. Jennifer Corrin
TC Beirne School of Law, University of Queensland, Australia
In countries of the South Pacific, societies are often discussed in terms of the dichotomy between ‘traditional’ and ‘modern’. Similarly, legal systems are often described by reference to the dichotomy between ‘traditional law’ or ‘informal justice’ and ‘state law’ or ‘formal justice’. In fact, these divisions are becoming a thing of the past, gradually blurred by changes in the pattern of society caused by greater mobility and the impact of Western ideas. Further, the approach usually taken to the accommodation of customary law, which has been to formally ‘recognise’ it in constitutions has, at least in theory, put an end to its independent operation. In the search for a more effective approach to legal pluralism, the existing dichotomy may often obscure a more complex interplay within the spheres of ‘traditional law’ and ‘state law’. In each of these spheres there are uncertainties, including questions of definition and scope, which constitute a potentially destabilising factor and have significant rule of law implications. This panel seeks to stimulate discussion on these uncertainties and on the tensions between different sources and types of law within the ‘traditional’ and ‘state’ law spheres in the South Pacific region. Within this theme, sub-themes of human rights (including but not restricted to gender issues), natural resources, and other issues of perennial concern will be used as a focus for discussion.
Contact
Dr. Jennifer Corrin, TC Beirne School of Law
Asia Pacific Law Centre for Public, International and Comparative Law
University of Queensland, St Lucia, Qld 4072, j.corrin@law.uq.edu.au
7 Communitarian Law and Decision Making Process:
Regulations for Adaptive Governance and Recognition of Collective Rights in Watershed Management
Ingo Gentes, PhD
Centre for Research and Education in Tropical Agricultural (CATIE)
COSTA RICA
Contact
Ingo Gentes
Centre for Research and Education in Tropical Agricultural (CATIE)
Cartago, Turrialba 30501
COSTA RICA
igentes@catie.ac.cr, ingo.gentes@gmail.com
http://www.catie.ac.cr/
8 Legal pluralism in the management of watersheds
and the equitable distribution of benefits among
stakeholders
Sharon B. Singzon, D. Tech. Sc.
Eastern Samar State University, Philippines
Yonariza Guchiano, PhD
Andalas University, Padang - Indonesia
Watersheds play a very important role in the life of communities that are within its coverage. Attention to watershed development and management has recently been done as a result of the realization of the critical status of many watersheds particularly in Asia. Watersheds in the past were seen as source of rich natural resources and livelihood. It is the provider of water for various human purposes, source of timber and forest products, wild flora and fauna, as well as ecological integrity. Global warming and climate change are global phenomena that significantly affect the benefits derived from the watershed in terms of ecological and environmental sustainability.
Exploitation of the benefits from this natural resource has led to degradation of many watershed. Various stakeholders may have different understanding in terms of utilization, management and development of this resource. The watershed is often considered as a common property resource of the community where it belongs, others see it as a government-owned property, or as a resource available to those who have the finances to extract its products. Because of this, development and management of the watershed is sometimes hindered as nobody seems to take ownership for its management and development. This panel will therefore seek to learn from various watershed project cases and answer questions such as: Who are the beneficiaries or stakeholders of watershed resources that are involved in its development and management? Who takes the lead and what are the legal bases for their involvement? How does co-management in watershed take place? What are the conflicts or obstacles to watershed development and management? In how far are these difficulties linked to questions of legal pluralism? What kinds of advantages or disadvantages result from the relationship between legal pluralism and watershed management?
We invite theoretical papers, case studies, or conceptual papers that seek to answer the above-mentioned panel questions...
Contact
Sharon B. Singzon, D. Tech. Sc.
College of Agriculture and Natural Sciences, Eastern Samar State University,
Borongan, Eastern Samar, Philippines
drsingzon@yahoo.com
Yonariza Guchiano, PhD
Kampus Universitas Andalas Limau Manis, Padang 25161, Indonesia
yonariza@gmail.com
9 Defining boundaries of recognized indigenous land
By Prof. René Kuppe, Vienna University, Austria &
Prof. Pablo Gutiérrez Vega, University of Seville, Spain
rené.kuppe@univie.ac.at
As a scholar of indigenous peoples’ rights has recently stated, “One of the cornerstones of indigenous peoples‘ rights is their right to use and/or own their traditional territories“ (Jérémie Gilbert). This right is based on international instruments, possibly on international customary law, and has been recognized, at least in principle, by most national legal systems of those states where indigenous peoples live. Nevertheless, most legal sources do not answer the question clearly enough how to define the geographical boundaries of indigenous lands. Basic provisions, like Art. 14 of ILO Convention 169, require states to recognize the ownership and possession of indigenous peoples of the land they traditionally occupy; but the term “traditionally occupy“ is a complex concept which in turn requires interpretation. Furthermore, recently adopted international instruments such as the UN Declaration refer to lands and territories not only ‘traditionally owned’ but also ‘otherwise occupied and used’, thus enlarging the nature and scope of lands likely to be eligible for indigenous claims.
State practice and legal analysis have not developed uniform criteria to define lands that can be legitimately claimed by indigenous peoples. Even though a lot of scholarly writing has been produced on indigenous land rights, a remarkable emptiness prevails concerning the issue of the criteria that should define the limits of these rights. Besides, one of the most outbreaking endorsements of the already cited UN Declaration on the Rights of Indigenous peoples, is that Indigenous peoples have the right to own, use, develop and control the lands, territories and resources that they possess by reason of traditional ownership or other traditional occupation or use, as well as those which they have otherwise acquired. (…) Such recognition shall be conducted with due respect to the customs, traditions and land tenure systems of the indigenous peoples concerned.
The workshop wants to overcome this situation. On the one hand, it shall bring together critical case studies about the experiences of indigenous groups with the identification of their lands and territories by state agencies. Did the State recognize indigenous criteria (customs, traditions and land tenure systems) when granting protection to indigenous lands? Did the State limit the reach of indigenous land by recognizing rights over (indigenous) lands claimed by third parties? Missing cultural sensitiveness and third parties’ claims are some of the main reasons for reducing the size of recognised indigenous land rights, and both topics have to do with the missing intercultural dialogue and understanding. Event though it may be perceived as a simple bureaucratic readjustment, the reduction of the size and nature of claimed ancestral territories, far from being negligible, seriously jeopardize the spiritual and material survival of indigenous communities throughout the world.
In second place, the workshop shall contribute to a better methodology of how key rules about the determination of the extent of demarcated indigenous land rights shall be interpreted. Legal rules on land rights (both international and national) must be inspired by the perspective of legal pluralism, and the content of terms like “traditionally occupied lands“ should be filled up by a process giving sufficient weight to indigenous values, criteria and rules of how the boundaries of their lands should be identified.
10 Pluralistic approaches to land tenure regulation
Janine Ubink, PhD
Leiden University, The Netherlands
Throughout the 20th century, both practice and research concerning land law in developing countries were marked by strong differences of opinion about the kind of law that would fit these societies. The main divide was between those convinced of the need to design and introduce law as a state-led program – the ‘centralists’ – and those who would rather leave matters of law to local groups and communities – the ‘localists’.
From the 1960s onwards, centralist approaches dominated the field in the name of development, emphasizing codification of land rights, land registration, and land reform. This centralist paradigm was broadly supported by the economic discipline as well as by other disciplines as diverse as law and land surveying. From the 1ate 1970s ‘localists’ again raised serious questions concerning the feasibility of the centralist approach. They called attention to continuing local practices and arrangements of ‘indigenous law’ or ‘local law’, and to the failures of state-led registration projects.
Recently, both paradigms seem to be faltering. The centralist promise of a rule of law was damaged by implementation failures, while the localist promise of a community-based law often remained unfulfilled as discriminatory practices and unpredictability prevailed. There is an ongoing quest for a new paradigm in land tenure regulation based on pluralism, reconciling state perspectives of a programmatic, national and legal nature with people’s perspectives on local land law and land use.
In this panel we want to analyze concrete cases of governmental tenure reform programs that have evolved in selected countries since 1990, particularly “third way approaches” to incorporate ‘local’ rights to land – such as customary rights or urban squatters’ rights – into the national legal system. We would like to invite papers that discuss the ensuing plural regimes of land rights and management, with specific emphasis on their rationale and goals; their implementation, and their effects on tenure security.
Contact
Janine Ubink
Van Vollenhoven Institute for Law, Governance and Development
Faculty of Law, Leiden University
The Netherlands
j.ubink@law.leidenuniv.nl
11 Developing Institutional Frameworks for Translating
Global Conventions on Natural Resources Management
into Local Actions in the Context of Decentralization:
Experiences and Reflections Related to Land, Water, and
Forestry Resources Management and Conservation in
Asia
Helmi
Andalas University, Padang, Indonesia.
Shyama Prasad Rout
Jawaharlal Nehru University, New Delhi, India
This panel embarking from three major factors related to natural resources management especially land, water and forestry: global conventions, decentralization, and empowerment of community for local actions. There are a number of global conventions related to land, water and forestry resources which already agreed upon as a response to the deterioration of the resources and their uses to fulfill human needs. Millenium Development Goals (MDGs) is the latest (which more comprehensive to cover poverty, natural resources, health, etc), the Dublin Declaration (which concern with water), Kyoto Protocols (which concern with carbon dioxide emission), Biodiversity Convention are among others. The principles and general guidelines contained in the convention provide a basis for improvement of natural resources management in general and land, water and forestry in particular.
Following the agreement on principles adopted, efforts have been made to translate the conventions into action at local levels. Various organizations including government agencies, civil society organizations, private sectors (national and international), and research institutes have involved in the processes. These efforts have to take into account the latest development on governance: decentralization and empowerment of local people to actively play roles in managing provision of public goods and services (including provision of environmental services). Institutional frameworks have been developed and implementations have taken place which trying to deal with pluralism of laws at different levels (from global to local). However, the results are mix, some are successful to some degree and some were not achieved the objective as expected. The deterioration of the land, water, and forest resources which continue to happen at alarming rate give indication that there is a need to review institutional framework used to facilitate action at local levels and the implementation experiences. The basic questions are: What are the characteristics of the institutional frameworks developed? What are the characteristics of strategies adopted and the dynamics of interactions in the implementation among the actors? How do they reflect the interest of national and local governments to conserve and increase revenues from natural resources management? How do the institutional frameworks and implementation strategies reflect the concern of local people on their culture, rights, obligations, and welfare? How the interests of the stakeholders were reconciled? How best (performance) is the land, water and forest managed within the institutional frameworks and implementation strategies? Answers to these questions would enable us to draw lessons and make reflections related to legal pluralism issues which can help to improve concerted action (from global to local) in land, water and forestry management and conservation.
Researchers and practitioners are invited to submit papers which could provide answer to some or all of these questions.
Contact
Helmi
Andalas University (Center for Irrigation, Land and Water Resources and development Studies), Padang, INDONESIA.
E-mail address: helmi59pdg@yahoo.com.
Phone/Fax: +62-0751-74389.
Shyama Prasad Rout
Centre for Political Studies, Jawaharlal Nehru University, New Delhi, India
E-Mail address: shyama2u@rediffmail.com Phone- +91-9437110826
12 Legal Pluralism and Environmental Justice
in a Rural Natural Resources Context of South Asia
Ms M.S.Vani and Mr Rohit Asthana
Development Centre for Alternative Policies,
New Delhi, India
Legal Pluralism is a fact of life in multicultural societies, particularly such as those of Asia and Africa. Indigenous legal traditions of plural dimensions reflecting and evidencing such cultural plurality co-exist with monistic forms of governance and administration of justice through formal state-engendered legal frameworks. The latter in most cases, have been a product of the colonial experience. Despite the fact of a vast allegiance of the populations of Asian countries to their indigenous legal traditions through the frameworks of customary law, legal frameworks based on monistic and ethnocentric western jurisprudence predominate in many such nations. Customary laws, where they are recognized by constitutional or statutory legal frameworks, are frequently circumscribed by formal notions of justice, legality and authority, giving rise to normative and jurisdictional conflicts. Such conflicts may relate to concepts of law and justice that impact on notions and visions of development and progress. Complex processes of legal pluralism have evolved in this clash of and continuous interaction between differing worldviews and jurisprudential systems based on them. Added to this intra-national melting pot of legal cultures are the tremendous conflicting influences of transnational economic, political and social phenomena and the institutions and the legal frameworks that they bring in their wake. They are authored on the one hand by globalizing economic forces that seek to consolidate economic and political power, and on the other, by the aspirations of the international community for sustainable and equitable development articulated through formal and non-formal movements, institutions and processes.
One such initiative has been the environmental justice movement that emerged in the west as an illustration of the integration of environmental conservation and social justice principles and goals that were subsequently translated into government action initiatives for protection of the quality of life of minority and disadvantaged groups against the harmful effects of environmental pollution. While this concept has evolved rapidly over the past decade or so in Western countries, it is still in a nascent stage in other parts of the world, particularly developing countries. Western initiatives for environmental justice are located in legal frameworks founded on western systems of jurisprudence. In legal pluralistic and rural natural –resource dependent rural societies such as those of Asia, a departure needs to be made in defining and operationalising the concept, goals, objectives and processes of achieving environmental justice.
Rural livelihoods in Asian countries revolve substantially on the use of natural resources. These resources have historically been at the centre of the conflict between western and traditional systems of law in countries which have undergone the colonial experience, when legal frameworks were targeted at establishing colonial rule through access to land and natural resources. Property rights to natural resources and the legitimacy of public participation in their control and management have been at the heart of this conflict. In current global conditions of progressive environmental degradation through over-exploitation, misuse and climate change phenomena, how does a disempowered, poor, socially disadvantaged rural citizen in a developing country in the Asian context secure his or her rights to natural resources, and thereby a sustainable livelihood? Do conditions and situations of legal pluralism hinder or enhance such a citizen’s prospects of securing participation and justice?
This panel seeks to explore the contours and content of environmental justice in the Asian, rural natural resource context, in conditions of legal pluralism. The panel invites papers on topics including, but not limited to the following.
Influences of religious/ spiritual law on conceptions of man –nature relationship, law and justice.
Concepts and theory of environmental justice from pluralistic jurisprudential perspectives.
Property rights and management of natural resources from legal pluralistic perspectives.
Access to justice in Asian rural societies in conditions of legal pluralism.
Structures and processes of law making and implementation in the natural resources sector – role of legal pluralism
Role of transnational laws and influence of multi-lateral and bilateral agencies in resource rights and management and impact on customary legal frameworks.
Prospects and processes for harmonizing customary law with constitutional and statutory legal frameworks for addressing traditional practices that violate environmental justice principles.
Contact
Ms M.S.Vani and Mr Rohit Asthana
Development Centre for Alternative Policies,
5 Babar Road, New Delhi 110001 India
Phone: 91-11-23353774; 09412092349; 094129093395; 09868127328
Email: dcap@del3.vsnl.net.in; devcentre_ap@yahoo.com; devcentreap@gmail.com
13 Embedding International Environmental Law in Contexts
of Legal Pluralism (with a focus on Water and Africa)
Corinne Wacker, PhD, Institut für Umwelttechnik,
Fachhochschule beider Basel
Law has been designated by Giddens (1990) as a dimension of Globalization. Specialized fields of law, such as environmental law, create a trans-national legal culture, a system of expert knowledge which is ‘disembedded’ from the social context. We propose to share and discuss case studies and conceptual papers on the implementation of international environmental law in contexts of legal diversity. We propose to set a focus on the procedural conditions under which international environmental law can become meaningful in contexts of legal diversity and instrumental to local communities to claim entitlements over the natural resources of their environment (with a focus on water resources of water courses under international water treaty regimes).
To make the environmental dimension an internalized component of the decision making process and on the use and management of natural resources, International Environmental Law has adopted the principle of public participation. Through participation in the process of law making, law can become meaningful and instrumental to local actors and become part of their world (Cover 1983, Mellissaris 2004). In a dialogue between state and non-state actors, a “productive misreading” of the law (Teubner 1992) can facilitate an internal reconstruction process of the law in contexts of legal diversity. States can also voluntarily enter in agreements with extralegal institutions grounded in local knowledge, create linkage institutions and accept local autonomy on the management of natural resources (Guillet 1995). With these characteristics, linkage institutions between the state and non state actors have the potential to enable marginalized traditional communities to claim their rights on natural resources of their environment (Zerner 2000). What are the procedural and substantive conditions to make international environmental law meaningful in contexts of legal diversity?
Case Study: Environmental Law in the Making in a Context of Legal Diversity at Lake Victoria’s Wetland Shoreline in Uganda.
Formed by the bi-annual equatorial rise and fall of the lake level, the wetland bays and small islands along the northern shoreline of Lake Victoria were since thousands of years the privileged premises of a great aquatic civilization based on fishing, canoe trading along the waterways of the river Nile system and on flood recession gardening. Neglected by the colonial Nile Treaties which have allocated the rights to the Nile water to two countries having the right to grow irrigated crops and to eight others to whom this right has been denied, the wetlands of the Nile River and its Sub-Basin, Lake Victoria, have been bypassed as a specific ecosystem and habitat in the international water law of River Nile. By implanting additionally also modern land laws in the colonies, the wetland habitat of land and water has been dismembered into separate international and national legal units and has been marginalized. As part of public land, wetland habitats have become in Uganda, however, privileged premises for marginalized population segments who continue the traditional modes of swamp livelihood as illegal encroachers on public land and on a part of an international water body.
As country situated in the catchments of River Nile, Uganda has large areas of wetlands. Under President Museveni (since 1986) Uganda has set up a national environmental law endorsing the principle of participation in environmental law and the delegation of decision making on environmental matters at local level. Additionally the environmental law allows also the ‘traditional uses’ of wetland resources under the environmental law. This favourable legal context enabled a local community of wetland resource users, making a living illegally by using wetlands for fishing, gardening and craft making at the shoreline of Lake Victoria in Jinja town, to form a collective, to embark in a dialogue with government representatives and finally to become a “custodian” on the wetland, entitled to use the wetland resources for traditional uses and to monitor locally - as private sector collective under a co-management system with the local authorities - that the environmental wetland law of Uganda is enforced. This delegated co-management system enabled implementing environmental law in a context of legal pluralism. Uganda has inherited a dual legal system from its colonial period, but successive post-independence legal reforms have created diverging layers of laws on wetlands, which were, however, poorly enforced against the many poor who made a living from the urban and peri-urban wetlands of Jinja town, where the case study is situated. A “living law” (Tamanaha 1997, 2000) governed the transactions among the wetland user community, encompassing and keeping alive principles of customary African law which are distinct from the colonial customary law and the post-independent modern law of the country. With this case study based on six years of anthropological field research and on participatory legal drafting with the Wasoga and the fishing communities named “Bakenji” of Lake Victoria’s northern shoreline, we propose to discuss some principles of African land and water law and procedural aspects on how to implement environmental law in a context of legal diversity. As le Roy and Le Bris (1982) underlined, African law is not linked to a specific space but to social relations of the people who interact and use this space and it is the collective that enables and controls individual user rights on a habitat which are effective as long as the resource is effectively used and the relationship to the authority which has allocated this right is maintained. The local case study of a collective of wetland resource users from the shoreline of Lake Victoria in Uganda suggests that international environmental law can be embedded in legal systems which derogate in their principles form colonial or modern land property law.
Contact
Corinne Wacker, PhD
9, rue du Château
2000 Neuchâtel, corinne.wacker@bluewin.ch
14 Legal Pluralism and Human Rights
Yuksel Sezgin, PhD,
University of Washington
The panel will focus on the impact of non-state legal orders (customary, religious etc.) on rights and freedoms of individuals living under these systems. Existence of multiple jurisdictions often entails existence of multiple standards of rights and duties for individuals within the same politico-legal space. Yet, the lack of a common standard of rights and duties in a society can also lead to rise of differentiated or stratified categories of citizenry by grouping individuals into racial, ethnic, tribal, sectarian and gendered categories. In this respect, the first question that the panel will address is how universal human rights values can be instilled into a polycentric system where collective rights are held superior to individual rights or the principle of applying territorial, abstract and depersonalized norms to individuals without discrimination is either only weakly established or completely unknown. Moreover, the following questions will be also answered by the panel: Does legal pluralism help or prevent cultivation of international human rights standards? How much or what type of plurality can promote the so-called universal standards of human rights? Is legal pluralism an ill-intended tool for cultural relativists to deny international human rights to their constituents? Whose rights should prevail when there is a conflict between the rights of individuals and those of communities? In addition to purely legal and academic papers, the panel also welcomes papers from human rights or development practitioners who deal with public policy or immediate questions of how to reconcile differences between non-western norms/values and the so-called universal human rights principles, by particularly focusing on vulnerable populations (e.g., women, children, indigenous peoples etc.).
Contact
Yuksel Sezgin, PhD, University of Washington
Comparative Law and Society Studies Centre
Email: ysezgin@u.washington.edu
15 Contributes applied legal anthropology to an
improved governance of legal pluralism?
Dr. Markus Weilenmann
Office for Conflict Research in Developing Countries,
Rüschlikon, Switzerland
In recent years, questions concerning applied legal and social anthropology have come more frequently to the fore, mainly in respect to the improvement of development politics. The German Technical Cooperation for instance requested legal anthropological advice for the designing of its good governance programmes from the mid 90s onwards. A leading question was whether such advice could develop practical recommendations which take the political, social and cultural living conditions of the recipient countries as starting point. And under the heading „cultural cooperation“, the Swiss Agency for Development Cooperation strived for a closer collaboration with social anthropologists. More recently, also the UN requested a large-scale study on informal justice. Typically however, in all cases the focus rests only on those cultural aspects which are located outside of development agencies and thus hamper or enable a social change in the recipient countries.
Yet culture is of course not only „something“ that is located outside of these agencies and thus only in the good hands where one discusses the existing links between culture, legal structure and „social development“. Culture is also a typical mark of these agencies themselves, which invent the corresponding rules in order to design and manage development projects. With the growing globalisation such aspects gain importance, the more so as (private and public) development bureaucracies exert a growing pressure on the social and economic relations of local communities in non-western contexts. This process is particularly accentuated by the (not so new) discourse order on topics like good governance, the rule of law, the recognition of the human rights or the promotion of justice and democracy - topics, which are explicitly declared as new fields of action of private and public development agencies.
However, if one turns the scope to the social anthropological debates on development cooperation, which actually are largely influenced by exponents of development anthropology, one gets an ambivalent impression. While such an initial point would require substantial social and legal anthropological research on the socio-cultural impact of development aid, many anthropologists still prefer emphasizing the so-called „anthropological scepticism“ and add that development aid is „of no use“. Herewith, the debate is steered towards a direction which is rather due to a value orientation than to the upcoming cultural conflicts. Vis-Ã -vis the development practitioners one insists on the one hand resolutely on the boosted consideration of social anthropological viewpoints during the planning and implementation phase of those projects which are located at the interface between national and local notions of law. And on the basis of de-constructive approaches one identifies the ethnocentricity of bureaucratic patterns of decision-making. Those anthropologists however, who are engaged in such disputed territories are on the other hand accused of being „traitors“ of the „common cause“, since they would „sell“ their local knowledge to bureaucrats and thus only help them to cover their own deficit of social legitimacy (see Escobar, 1991; Ferguson, 1994; Hobart, 1993: Mosse, 2003 and many others).
But when the discussion shifts to possible alternatives, the contributions are usually not very helpful. In most cases only commonplace points are stressed such as the postulation for more self-reflection, the promotion of actor-centred approaches or the „empowerment“ of discriminated minorities (Gardner and Lewis, 1997; Grillot, 1997; Mosse and Lewis, 2005).
The goal of this panel is thus a qualified exchange of ideas and experiences between legal anthropological practitioners and researchers, which goes beyond wishful thinking and professional cynicism. The question whether applied legal anthropology contributes to an improved governance of legal pluralism or not is thus not only a value related question (whether one believes “legal pluralism” or “governance” is “good” or “bad”) but a question, which also challenges our identities and our world views.
With this panel, I thus call
for papers that contribute to an improved understanding of the problems of “the other”;
for papers which analyse the social and political complexities, in which legal anthropological research or advice takes place;
for papers which consider cultural and legal conflicts at the interface between state bureaucracies and local notions of governance;
for papers which identify legal and political dynamics that could evoke distinct or controversial problem understandings, research agendas, operational strategies or management plans.
For further information, please contact:
Dr. Markus Weilenmann
Office for Conflict Research in Developing Countries
Alpenstr. 25, CH-8803 Rüschlikon, Switzerland
drmweilenmann@smile.ch or by fax ++41 44 724 39 40
http://www.conflictresearch.ch/
16 Religious, Corporate and Common Law:
Coexistence in One State
Yulia N. Sushkova,
Mordovian State University, Saransk, Russia
The problems of legal development and transformation in the post-soviet countries will be discussed in the context of globalization and sovereignty. The reports will discuss the regulation of the different aspects of family and marital relations, social connections on the bases of common, religious and corporate law. There will be discussed the influence of those sources on the legal being of people within national and international law.
1. Coexistence of the state law and religious law, ethical traditions, common law in the sphere of marital and family relations.
2. The usage of natural resources: interests of international and national corporations v. aboriginal peoples of the North. Common law in the modern mechanism of aboriginal peoples’ rights protection.
3. Corporate law: coexistence and conflict with the state legal system (on the example of corporations, defense and security structures, informal gatherings).
4. A human in the system of legal coordinates (family, community, region, state, international community).
5. Federalism: problems of regulation within the post-soviet states.
6. NGOs and international financial corporations in the process of human and peoples’ rights protection.
7. Traditional law of the Finno-Ugrian peoples: the problems of coexistence with the state law.
Religious, corporate and common law as a system presents a unique legal heritage, which reflects the diversity of culture, traditions, folklore. Coexistence of multiple sources of law shows how the principles of humanity, development and cultural diversity are functioning in the state. The participants are thus encouraged to present original materials, which demonstrate the history, present situation and future perspectives on the issues.
Contact
Yulia N. Sushkova, Prodean of the law department,
Mordovian State University, Saransk
yulenkam@mail.ru
17 Theoretical and Empirical Issues on Legal Pluralism
Prof. Dr. Keebet von Benda-Beckmann
Max Planck Institute for Social Anthropology
Participants are invited to present papers that deal with theoretical and methodological issues involving empirical research on legal pluralism under conditions of globalisation. Issues that might be addressed include: the selection of an appropriate site of research and choices between multi- and single sited research; local self-regulation and local responses to national and transnational regulation.
Contact
Prof. Dr. Keebet von Benda-Beckmann
Max Planck Institute for Social Anthropology
P.O.Box 11 03 51
06017 Halle/Saale
Germany
kbenda@eth.mpg.de
NUJS Journal of Law & Society
Call for Papers
NUJS Journal of Law & Society is currently soliciting submissions for its inaugural issue due in September, 2009. The deadline for submissions for the 2009 issue is May 10, 2009. Please send in your submissions under the categories mentioned below. The submissions would go through a two-staged peer review process and edited by the student editorial board. For general queries relating to your submissions, see the ‘Note to Authors’ or kindly write to us at nujs.jls@gmail.com.
About the Journal
NUJS Journal of Law & Society is a new, peer-reviewed and student-edited journal of interdisciplinary studies on law and society. It is based at and published from The National University of Juridical Sciences, Kolkata. The journal seeks to present a dedicated forum of debate for work bearing upon the cultural, economic, political and social lives of law in India. Published annually in September, the journal solicits articles, notes and comments covering judicial decisions, legislative developments, empirical research on Indian legal system, public policy studies and theoretical analysis from related fields of inquiry. We welcome submissions from academics, practitioners, policymakers and students from within the legal community and have a strong preference for articles that are not descriptive but prescriptive and argumentatively focused. In addition to the above, we accept new ideas and perspectives under the ‘Essays’ category of the journal. Essays are reviewed for their potential contribution to existing scholarship but most significantly, to seek the possibility of a new approach to an old theme.
Submission Categories
. The submissions may be made under the following categories –
· Notes: 5000 - 7000 words
· Articles: 10000 - 12000 words
· Essays: 2000 - 3000 words
· Legislative Briefs and Case Comments: 3000 - 4000 words.
Note to Authors
The prescribed word limits are inclusive of footnotes and submissions are expected to strictly confirm to length policy and the guidelines listed below. Kindly go through them carefully before mailing your submissions. ‘Notes’ are short articles written by students and are expected to be well-sourced. They are generally characterized with an extensive use of footnotes. As a policy, NUJS Journal of Law & Society aims to publish no more than two student notes. Essays, case comments and legislative briefs can be submitted by anyone. We promptly acknowledge the receipt of submissions and a decision on publication takes around 8 weeks. The issue is out in print within 6 weeks of a decision to publish. Requests for expedited reviews can be forwarded to the Editorial Board when the submission is being considered for publication by other journals. Please mention the name of the journal for which your article is in consideration, one contact person in the Editorial Board of that journal and a date by which you expect our response.
Submission Guidelines
1. Contact Address: Electronic form of submissions should be mailed to nujs.jls@gmail.com.
2. Deadline: The Deadline for submissions is May 10, 2009.
3. Covering Letter: All submissions must be accompanied with a covering letter, containing the name of the author, institutional affiliation, title and category of the submission and a contact address of the author, including the e-mail address. Submissions should be sent as MS word (.doc format) attachments with the title of the article as the file name.
4. Identification Details: The body of the submission must contain no identification of any kind, including the name and institutional affiliation of the author, which must be provided in the covering letter. This is to ensure an impartial review and a fair assessment of your contribution.
Style Guidelines
1. Form of Submission: Submissions must be in electronic form. All submissions must be word-processed, double-spaced in Times New Roman. Main text should be in font size 12 and footnotes in font size 10. All submissions must contain an abstract of not more than 250 words.
2. Title: The Journal does not recommend any specific guidelines regarding the titles and sub-titles. However, the main titles must be centred, typed in small capitals and emphasised in bold. The titles must be uniform, concise and descriptive.
3. Quotations: Quotations should be clearly indicated and it is vital that they are accurate. Double quotation marks should be inserted at the beginning and end of every quotation and where the quotation will run to more than forty words it should be typed as a separate paragraph and left-indented.
4. Foreign words: Foreign words not currently absorbed into the English language should be italicised, e.g., “inter alia”, “bona fide” etc.
5. References and Citations: The Rules of Citation are generally derived from The Bluebook, A Uniform System of Citation (18th Ed.)
Note 1: Please feel free to write to us for any additional queries that you might have about the theme or the structure of your submissions. Write to us at nujs.jls@gmail.com
Note 2: NUJS Journal of Law & Society was formerly the Indian Juridical Review and beginning with our year in office, we have decided to initiate significant changes in the editorial process, thematic compass and publishing structure of the journal to make the scholarship more contemporary, focused and relevant.
Call for Papers
NUJS Journal of Law & Society is currently soliciting submissions for its inaugural issue due in September, 2009. The deadline for submissions for the 2009 issue is May 10, 2009. Please send in your submissions under the categories mentioned below. The submissions would go through a two-staged peer review process and edited by the student editorial board. For general queries relating to your submissions, see the ‘Note to Authors’ or kindly write to us at nujs.jls@gmail.com.
About the Journal
NUJS Journal of Law & Society is a new, peer-reviewed and student-edited journal of interdisciplinary studies on law and society. It is based at and published from The National University of Juridical Sciences, Kolkata. The journal seeks to present a dedicated forum of debate for work bearing upon the cultural, economic, political and social lives of law in India. Published annually in September, the journal solicits articles, notes and comments covering judicial decisions, legislative developments, empirical research on Indian legal system, public policy studies and theoretical analysis from related fields of inquiry. We welcome submissions from academics, practitioners, policymakers and students from within the legal community and have a strong preference for articles that are not descriptive but prescriptive and argumentatively focused. In addition to the above, we accept new ideas and perspectives under the ‘Essays’ category of the journal. Essays are reviewed for their potential contribution to existing scholarship but most significantly, to seek the possibility of a new approach to an old theme.
Submission Categories
. The submissions may be made under the following categories –
· Notes: 5000 - 7000 words
· Articles: 10000 - 12000 words
· Essays: 2000 - 3000 words
· Legislative Briefs and Case Comments: 3000 - 4000 words.
Note to Authors
The prescribed word limits are inclusive of footnotes and submissions are expected to strictly confirm to length policy and the guidelines listed below. Kindly go through them carefully before mailing your submissions. ‘Notes’ are short articles written by students and are expected to be well-sourced. They are generally characterized with an extensive use of footnotes. As a policy, NUJS Journal of Law & Society aims to publish no more than two student notes. Essays, case comments and legislative briefs can be submitted by anyone. We promptly acknowledge the receipt of submissions and a decision on publication takes around 8 weeks. The issue is out in print within 6 weeks of a decision to publish. Requests for expedited reviews can be forwarded to the Editorial Board when the submission is being considered for publication by other journals. Please mention the name of the journal for which your article is in consideration, one contact person in the Editorial Board of that journal and a date by which you expect our response.
Submission Guidelines
1. Contact Address: Electronic form of submissions should be mailed to nujs.jls@gmail.com.
2. Deadline: The Deadline for submissions is May 10, 2009.
3. Covering Letter: All submissions must be accompanied with a covering letter, containing the name of the author, institutional affiliation, title and category of the submission and a contact address of the author, including the e-mail address. Submissions should be sent as MS word (.doc format) attachments with the title of the article as the file name.
4. Identification Details: The body of the submission must contain no identification of any kind, including the name and institutional affiliation of the author, which must be provided in the covering letter. This is to ensure an impartial review and a fair assessment of your contribution.
Style Guidelines
1. Form of Submission: Submissions must be in electronic form. All submissions must be word-processed, double-spaced in Times New Roman. Main text should be in font size 12 and footnotes in font size 10. All submissions must contain an abstract of not more than 250 words.
2. Title: The Journal does not recommend any specific guidelines regarding the titles and sub-titles. However, the main titles must be centred, typed in small capitals and emphasised in bold. The titles must be uniform, concise and descriptive.
3. Quotations: Quotations should be clearly indicated and it is vital that they are accurate. Double quotation marks should be inserted at the beginning and end of every quotation and where the quotation will run to more than forty words it should be typed as a separate paragraph and left-indented.
4. Foreign words: Foreign words not currently absorbed into the English language should be italicised, e.g., “inter alia”, “bona fide” etc.
5. References and Citations: The Rules of Citation are generally derived from The Bluebook, A Uniform System of Citation (18th Ed.)
Note 1: Please feel free to write to us for any additional queries that you might have about the theme or the structure of your submissions. Write to us at nujs.jls@gmail.com
Note 2: NUJS Journal of Law & Society was formerly the Indian Juridical Review and beginning with our year in office, we have decided to initiate significant changes in the editorial process, thematic compass and publishing structure of the journal to make the scholarship more contemporary, focused and relevant.
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