11 February 2011

NOTICE: Workshop on Louisiana Legal History

A workshop on “Louisiana: The Legal History of Europe in a Single US State” will take place in Edinburgh on 20-21 May, 2011. The notice on the Edinburgh Legal History Blog reads: \

The programme is not finalised but currently appears as follows: George Dargo, “Louisiana in the Early American Republic”; John W. Cairns, “Planning and Printing a Code/Digest?”; John Lovett and Markus Puder, “Possession, Prescription and Uncertain Land Titles in Louisiana: 1808-1825”; Asya Ostroukh, “The Significance of Quebec Sources for Understanding the Origin and Nature of Louisiana’s Civil Law Codification”; Vernon V. Palmer, "Slavery and Louisiana Civil Law 1825-1870"; Agustín Parise, “Influence of the Louisiana Civil Code of 1825 in Latin-American Codification Movements: The References to Louisiana Provisions in the Argentine Civil Code of 1871.”

More information will be available in due course about, place, cost and so on.

This Louisianian recommends it.

07 February 2011

NOTICE: Jackson on critical legal pluralism and the Begum case

Amy Jackson’s ‘A critical legal pluralist analysis of the Begum Case’, Osgoode CLPE Research Paper No. 46/2010, is available on SSRN here:

This paper considers the advantages of a critical legal pluralist analysis of the English case R (on the application of Begum) v. Headteacher and Governors of Denbigh High School [2007] 1 AC 100. The case concerns whether a state school’s decision to exclude a pupil (Shabina Begum) for wearing an Islamic veil (a jilbab, which is a long coat-like garment which covers the whole body except the hands and face) infringed her right to manifest her religion and her right to an education protected under Articles 9 and 2 (of the First Protocol) of the European Convention of Human Rights 1950. The various court decisions of the case determine that both Articles 9 and 2 cannot be relied upon for claims related to the accommodation of religious dress in state schools. Compared with doctrinal legal scholarship and traditional legal pluralist analyses of the case, both criticised for essentialising normative orders and communities, a critical legal pluralist analysis provides the advantage of focusing on the subjective beliefs of a legal subject. Undertaking a critical legal pluralist approach as a legal methodology, rather than more traditional legal analyses, exposes and defeats various assumptions which surround the practice of veiling.

NOTICE: Pimentel on Indigenous Justice

David Pimentel (Florida Coastal School of Law)’s ‘Legal pluralism and the rule of law: can indigenous justice survive?’, to be published in the (2010) 32 Harvard International Review 32, is available on SSRN here.

The description reads:

If non-Western, indigenous legal systems are to maintain their relevance and vitality, if they are even to have a place in the new global community, they will need to resist the pressures to simply import or impose Western law and instead adapt to minimum international norms on their own terms. Accordingly, those agencies and individuals engaged in promoting the rule of law, economic development, or respect for human rights should resist the impulse to simply impose the Western laws and legal institutions — as the U.S. Congress did to the Native American communities post-Crow Dog. Instead, reform-minded agencies and individuals should seek opportunities to engage and influence customary law and customary institutions, to encourage human rights recognition within such systems. Solutions can and must come from customary systems’ embracing human rights norms, not from initiatives to displace or ignore customary systems in favor of Western ones. With appropriate influence, including that of limited judicial enforcement of constitutional guarantees under the legal pluralism regime, customary courts and customary law can become guardians not only of traditional culture, but also of human rights and rule of law principles. And they will be all the more effective in this latter enterprise because the systems are home-grown, culturally appropriate, and embraced by the communities they serve.

The mistaken reaction to Ex parte Crow Dog, when fear and misunderstanding of cultural difference led to an imposition of federal jurisdiction over tribal communities, is a sobering case in point. Indigenous and other non-Western systems deserve more respect and deference than that, but the reform and development winds are blowing against them, particularly on what have become non-negotiable issues of human rights and rule of law. Customary law institutions will have to bend and adapt if they are to survive; but they are already equipped to do that, and Western reformers should acknowledge and appreciate that. Legal pluralism continues to offer great promise, both for the preservation of cultural values and institutions, and ultimately for the establishment of the rule of law, but only if the indigenous legal systems can be engaged in a spirit of mutual respect.