Legal Pluralism and Democracy: When does Legal Pluralism enhance,
when does it erode Legitimacy of and Trust in Democratic Institutions?
Workshop to be held at the International Institute for the Sociology of Law (IISJ) in Oñati, Spain, June 9-11, 2011 and convened by Mirjam Künkler (Princeton University) and Yüksel Sezgin (Harvard Divinity School)
The introduction of colonial (secular) law notwithstanding, many countries of Asia, Africa and Latin America have since independence adopted schemes of legal pluralism and multiple jurisdictions where pockets of law are adjudicated based on (positivized) religious and customary legal norms. Colonial administrations seldom imposed their own law in the realm of family- or personal status law, and sometimes also adjudicated in matters of criminal law based on local norms (or colonial interpretations thereof), rather than on the basis of standards in criminal law prevalent in their own societies. Since independence, many post-colonial states therefore function with multiple jurisdictions, often in order to accommodate cultural particularity. As a result, differentiations based on religion, gender and culture in both rights and duties often exist within the same politico-legal space. On the one hand, such differentiations, including group rights, may protect cultural particularity and enhance trust in central/national administrations by alleviating the burden of assimilation into a national culture. On the other, they may introduce unequal legal standards undermining internationally recognized civil and human rights. Especially in countries that have democratized and thus carry the promise of international rights standards, tensions may arise between accommodating for cultural particularity on the one hand, and delivering upon the promise of universal and equal citizenship on the other – both of which are crucial sources of legitimacy and trust in nascent democracies.
This workshop examines the implications of legal pluralism and multiple jurisdictions for the quality of post-colonial democracies. From Indonesia to Senegal, India to Peru, the Philippines to Mongolia, states have been faced with the trade-off between difference and inclusion, unity and equality, accommodating for particularity in their legal systems versus delivering upon their promise of unitary rights standards. The legitimacy and trust in democratic regimes hinge upon these mutually exclusive projects. For the purposes of the workshop, we understand as having legal pluralism both those states that officially recognize multiple jurisdictions (such as Indonesia with special qadi courts), those that within a unified judicial system apply different codes of law (such as India with “sharia” law for Muslims), and those states where informal justice is a common phenomenon (as in the application of non-codified customary law through non-state authorities like village elders).
We welcome paper proposal that specifically address questions such as: when does legal pluralism hinder or advance the support for and trust in democratic values and institutions? When and how can legal pluralism reconcile competing demands for equality, unity and particularity without disrupting democratic institutions and processes? While the workshop will focus on post-colonial democracies, we also welcome paper proposals that draw comparisons to democracies that did not emerge from a colonial context, but whose legal systems are plural.
The Workshop shall bring together junior and senior scholars of Law, Political Science, Anthropology and Sociology, as well as practitioners and activists involved in legal reform. We hope to strike a balance between accounts based on rich ethnographies, and those based on comparative-institutional analyses. Both types should allow us to inform a better theoretical understanding of the consequences of legal pluralism for the quality of long-standing and nascent democracies and the trade-offs states face in designing legal and judicial institutions that are perceived as culturally legitimate but also comply with universal rights standards.
Each participant will be asked to present a paper of 6,000-8,000 words, and panels will be organized comparatively. To open the discussion, one participant will be asked to offer a ten-minute commentary on a given paper, before the floor will be opened for discussion of the paper among all participants.
Papers shall be circulated eight weeks ahead of the workshop, and shall afterwards be edited and submitted for publication in the IISL working paper or book series.
Please email paper abstracts of 350 words and a short bio until August 10, 2010 to the Workshop Directors at legalpluralism-onati@hotmail.com
