Beyond the Law of the Nation-State

View metadata, citation and similar papers at core.ac.uk brought to you by CORE provided by LUISSearch Beyond the Law of the Nation-State: An Inquiry into the Theory of Legal Pluralism and Societal Law By Mustafa Yaylali Mustafa Yaylali PhD Candidate in Political Theory LUISS Guido Carli Promotor: Prof. Dr. Sebastiano Maffetone 1 Acknowledgements I want to thank my mother Emine Öztas (+15-01-1948) for all her support financially and mentally. And I also want to thank my sister Mesusde Demirkiran and her family for supporting me financially and emotionally through this challenging period 2 Contents Contents Introduction Chapter 1 The Concept of Legal Pluralism 1.1 Introduction 1.1.1 Law and Legal Pluralism 1.1.2 Problem Statement 1.1.3 Outline 1.1.4 Background 1.2 Legal Pluralism and the “The Malinowski Problem” 1.2.1 The Concept of Legal Pluralism 1.2.1 Non-Essentialist Version of Law- definition of Law 1.2.2 Legal pluralism: A Brief History 1.2.3 John Griffiths and Brian Tamanaha:’ The Malinowski Problem’ and the Analytical Dispute on Legal Pluralism 1.2.4 Non-Essentialist Version of Law- definition of Law 1.3 Law in Manacle of Logic 1.4 Legal Pluralism and Institutional -Organizational Framework 1.5 Eugen Ehrlich’s “Living Law” 1.6 Conclusion Chapter 2 “Community and Law” 2.1 Introduction 2.2 Concept of Community 2.2.1 Tönnies Typology Between Gemeinschaft and Gesellschaft 2.2.2 Gemeinschaft and Gesellschaft 2.3 Trust and values 2.3.1 Trust versus Logic 2.3.2. Values versus Rules 2.3.3 ADR versus Judication 3 Chapter 3 Jewish Diamond Industry 3.1 Introduction 3.2 The Diamond Industry’s Chain of Network 3.2.1 Network Effects 3.2.2 DeBeers Syndicate and the Diamond Industry Network 3.3 Trust and Reputation 3.3.1 Reputation 3.3.2 Information and Credit Supply 3.4 Values and the Diamond Industry 3.4.1 Values 3.4.2 Community and its influence on the Diamond Industry 3.5 Diamond Dealers Club and Alternative Dispute Resolution Chapter 4 The Harm Principle and Associationalism 4.1 Introduction 4.1.1 Introduction 4.1.2 Problem statement 4.1.3 Outline 4.2The Harm-Principle 4.2.1 Introduction into the Harm-Principle 4.2.2 The Passive Dimension of the Harm Principle and The Social Autonomy 4.2.2.1 “Social organism” and “Social Autonomy” 4.2.2.2 Utilitarian ethics and Social Autonomy 4.2.3 Active Dimension of the Harm Principle 4.3 Otto von Gierke and Harold Laski: The Associationalist version on the Compatibility Between the Community Approach with Individualism 4.3.1 Associationalism 4.3.2 Otto von Gierke and the Genossenschaft-Theory 4.3.3 The Concept of the Individual According to Laski 4.4 Conclusion 4 Chapter 5 Afghanistan and its Failed Constitutional History 5.1 Introduction 5.2 Islam, State Law and Customary Law 5.2.1 Islamic Law (Sharia): 5.2.2 Customary Law (Pashtunwali): 5.3 Statutory law: 5.3.1 The Constitution of 1923 5.3.2 The Constitution of 1931 5.3.3 The Constitution of 1964 5.9 The 2004 Constitution 5.10 Conclusion Chapter 6 Althusius and Social-Federalism in Afghanistan 6.1 Introduction 6.1.1 Introduction 6.1.2 Problem Statement 6.1.3 Outline 6.1 The Afghan (Social and Political )Reality of the Constitution 6.1.1 Introduction 6.1.2 Arendt Lijphardt and Consociationalism 6.1.3 Afghanistan and Pashtunwali 6.3 Societal Federalism and the Political Philosophy of Althusius 6.3.1 Introduction 6.3.2 The concept of Sovereignty 6.3.3 Althusius and his Concept of Sovereignty 6.3.4 The ‘Symbiosis’ 6.3.5 Communication and Contract 6.3.6 The Political order of Associations and Communities 6.3.7 Social-Federalism and Subsidiairty 6.4 Conclusion Conclusion 5 Introduction ”Basing societies around plural self-governing communities of choice would enable individuals to exercise the option of doing things differently, but also offer the constraint of exit over exercise community regulation, since such obligations would be voluntary. Greater community self-control would tend to reduce inter-community friction, because individuals would not feel threatened that they would be the subject of legislation in matters of morals and lifestyles by artificial political majorities” 1 Background These “artificial political majorities”, as Paul Hirst has phrased it, leads to a kind of oppression, in which ”democratic process” becomes its legitimatory ground. Because of merely passing through the carousel of “democratic process”, suddenly it would justify the oppressive nature of governance in, which law is being employed as at tool to oppress the minority who lost in the “Democratic Carousel”. In the words of Carl Schmitt, “Whoever control 51 percent would be permitted to use legal means to close the door to legality, though which they themselves entered, and to treat partisan opponents like common criminals, who are then perhaps reduced to kicking their boots.” 2 Because “The majority is now suddenly no longer a party; it is the state itself. In the state, as Otto Mayer once said, “that which is without limits breaks through” the norms, in which the legislative state and statutory application bind themselves, however narrow and limited these sets of norms may be.“ 3 This control of political power enables the majority to employ law as an instrument to exert their power. “The claim to legality renders every rebellion and countermeasure an injustice and a legal violation or “illegality.” If legality and illegality can be arbitrarily at the disposal of the majority, then the majority can, above all, declare their domestic competitors illegal, that is, hors-la-loi, thereby excluding them from the democratic homogeneity of the people.“ So the question, which arises with our regular “nation-state law” is, to which extent will our system accommodate the diversive values which resides within political entity? 1 Paul Hirst, Statism, Pluralism and Control, Brit. J. Criminol. (2000) 40, 279-295 2 Carl Schmitt, Legality and Legitimacy p.37 3 Idem 6 In the past century we have witnessed many legislative processes, in which majority in the parliament exploited the democratic process to get control on the legislative force. They pushed through many legislative acts through the parliament, many times, even criminalizing the minority or the actions of minority. Female circumcision is a clear example to illustrate this phenomenon. Without attaching any moral value about the content of this practice, at a certain moment a public opinion is created, out of a sudden, based on one or two cases that is being scrutinized in mass media. And female circumcision is banned. Not only is it banned, it is also being criminalized. In the same token, but slightly different, is the desire to ban male circumcision. It was quite surprising to witness a commercial of the Physician’s association who draw the attention on the danger of male circumcision to health, which was the result of many discussion that were going on, in the mass media to ban male circumcision. Strangely enough, male circumcision belongs to the profession of Plastic surgery, and the whole branch as such is not being criminalized, but just one practice that belongs to, a minority within this society. Triggering the public opinion, is one of the tools to attain the majority in the parliament and to attain the legislative power, to oppress the minority, in their actions, dealings, life and customs. Carl Schmitt’s above quoted phrase, is a direct challenge against this phenomenon of the so-called, legal instrumentalism, the abuse of legal tools by majority, to press their will through the whole of (political) society, amongst others. There are also other ways in which legal instrumentalism can be employed, namely ”social engineering projects”, like in Turkey and Afghanistan in 1923, where certain or a whole legal systems has been implemented, with the aim of modernizing the, predominantly, traditional Muslim population. Carl Schmitt attack is clearly aimed at Hans Kelsen’s dictum of “Herschaft der Mehrheit” (majority rule), which advocates that in order to maintain a great amount of freedom, “Herschaft der Mehrheit” is the best option among the worst. The fact that the majority will rule and oppress the minority, is perceived as a minor collateral damage. Because according to Kelsen, the minority would have a chance in this system to gain the majority in the parliament and undue all the ‘harm’ that is being done to them. However, as Tamanha depicted, “Common to these ideas is that they encourage participants to pursue only their individual or groups agendas. They involve a process of competitive combat, they invest faith in the capacity of the process to select or produce the correct outcome, they draw upon metaphors to discredit interference with the “natural” working of the process as improper meddling that generates distortions, and they assert that winning is verification of right or entitlement. The visitors or survivors or products of these processes, by having gone or common good. The losers don’t see it that way. They complain that the process unfairly rewards those with greater resources, that the system has a built-in tilt against them, that the decisionmakers are biased or corrupt, 7 that competition or combat is not a proper way to decide what is right, and that the winner are the most rapacious or unscrupulous rather than the mot deserving. But these complaints have little traction.” 4 The attention that I want to draw on is not so much, which political system would attain more freedom or more equality (Carl Schmitt argues; Equality and Freedom do not match), but to attack the process in which law is being endorsed as an instrument to attain a certain goal to a certain group or people.

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