DOCSLIB.ORG

A Turn to Legal Pluralism in Rule of Law Promotion?

Total Page：16

File Type：pdf, Size：1020Kb

Download full-text PDF Read full-text
A Turn to Legal Pluralism in Rule of Law Promotion? This article from Erasmus Law Review is published by Eleven international publishing and made available to anonieme bezoeker A Turn to Legal Pluralism in Rule of Law Promotion? Ronald Janse* most popular explanations of this failure in recent years Abstract is that rule of law promotion has wrongly focused almost exclusively on strengthening state legal systems. Over the past 25 years, international organizations, NGOs By devoting attention to such activities as drafting and and (mostly Western) states have spent considerable energy enacting laws, training and equipping legal professio- and resources on strengthening and reforming legal systems nals, making courts more efficient in handling cases, and in developing countries. The results of these efforts have coordinating the activities of courts and other legal insti- generally been disappointing, despite occasional successes. tutions such as prosecutorial offices and prison services, Among donors, one of most popular explanations of this donors have sadly ignored the fact that the state legal failure in recent years is that rule of law promotion has system is largely irrelevant to the lives of most people in wrongly focused almost exclusively on strengthening the developing countries. Donors now routinely point out formal legal system. Donors have therefore decided to 'en- that ‘at least 80 or 90 per cent’ of disputes in developing gage' with informal justice systems. The turn to legal countries are resolved by non-state justice systems,1i.e. pluralism is to be welcomed for various reasons. But it is also governance and justice mechanisms that operate outside surprising and worrisome. It is surprising because legal plu- the framework of the state or in the fringes between ralism in developing countries was a fact of life before rule state and society.2 These systems, donors now argue, are of law promotion began. What made donors pursuing legal both more legitimate (application of local norms by local reform blind to this reality for so long? It is worrisome people) and more accessible (physical, monetary and because it is not self-evident that the factors which have opportunity costs, familiarity with language and proce- contributed to such cognitive blindness have disappeared 3 dure) for people than the state legal system. Moreover, 181 overnight. Are donors really ready to refocus their efforts on non-state justice systems regulate issues of deep concern legal pluralism and 'engage' with informal justice systems? to people, such as protection of land, property and live- This paper, which is based on a review of the literature on stock, and personal security and local crime. Therefore, donor engamenet with legal pluralism in so-called conflict donors have decided to ‘engage’ with non-state justice affected and fragile states, is about these questions. It systems. argues that 7 factors have been responsible for donor blind- The turn to legal pluralism, loosely defined here as a ness regarding legal pluralism. It questions whether these context within which multiple legal forms coexist, has factors have been addressed. not yet had an overwhelming impact on rule of law pro- motion, which continues by and large to focus on state Keywords: legal pluralism, rule of law promotion, legal legal systems. But there is no doubt that donors have reform, customary law, non-state legal systems, donor poli- started to take non-state justice systems seriously. cy Prominent organisations have encouraged groups of 1. The distinction between non-state justice systems and state legal sys- 1 Introduction tems will be used throughout this article, but it is not a fortunate dis- tinction. Firstly, non-state justice systems can consist of highly formal- Over the past 25 years, international organisations, non- ised rules and procedures. Secondly, most justice systems are hybrids of state and non-state systems. Still, the distinction seems more appropri- governmental organisations (NGOs) and (mostly West- ate than the pair formal–informal. Another often-used distinction is ern) states have spent considerable energy and resources between state and customary systems. For discussion of appropriate on strengthening and reforming legal systems in devel- terminology (non-state, informal, customary, community-based), see P. oping countries. The results of these efforts, as critics Albrecht, H.M. Kyed, D. Isser and E. Harper (eds.), Perspectives on Involving Non-State and Customary Actors in Justice and Security and donors agree, have generally been disappointing, Reform (2011). despite occasional successes. Among donors, one of the 2. J. Faundez, ‘Legal Pluralism and International Development Agencies; State Building or Legal Reform?’, 3 Hague Journal on the Rule of Law, 18-38, at 19 (2011). * Ronald Janse is Associate Professor of Law, University of Amsterdam, 3. This claim about the disadvantages of formal versus non-state justice The Netherlands. I benefitted from perceptive and useful comments by systems is very often repeated in donor policy documents, but seriously two anonymous reviewers and by various researchers, in particular distorts reality in some (or many?) cases. See for instance R.C. Crook, Adriaan Bedner, Bruno Braak and Jan Michiel Otto, during a presenta- 'State Courts and the Regulation of Land Disputes in Ghana: The Liti- tion of the paper at the Van Vollenhoven Institute for Law, Governance gants Perspective' (IDS working paper 241, Institute of Commonwealth and Development, Leiden University. Studies, Sussex, 2005), 1-21. Ronald Janse ELR December 2013 | No. 3/4 This article from Erasmus Law Review is published by Eleven international publishing and made available to anonieme bezoeker practitioners to develop programs that engage with non- series of explanations of why donors did not see the state justice systems. These include the World Bank and importance of legal pluralism before. It subsequently its Justice for the Poor Program, the United States looks at whether the factors that led to cognitive blind- Institute for Peace, the Open Society Justice Initiative, ness have been addressed. the International Development Law Organization and the United Nations Development Program. Moreover, donors have co-sponsored and participated in various 2 The Discovery of Legal international conferences that brought together practi- tioners and academics from various relevant disciplines. Pluralism Some of these have resulted in publications with the 4 state of the art. As a result, programming experience, Rule of law promotion has a long history, albeit under know-how and knowledge based on empirical research different names.7 Its renaissance since the late 1980s, and theoretical analysis are accumulating and spreading. however, is unprecedented in various respects. Fifteen Moreover, there is growing consensus among practi- years ago, Thomas Carothers opened a widely read arti- tioners on the broad contours of frameworks for engage- cle in Foreign Affairs on the ‘Rule of Law Revival’ with ment with non-state justice systems. In short, leading the observation that ‘one cannot get through a foreign donors are aware of the many challenges of engaging policy debate these days without someone proposing the with non-state justice systems, but also have some clues rule of law as a solution to the world's troubles’.8 This on how to proceed further and expand their activities in observation is even more true today than it was back the area of non-state justice systems. They seem better then: the rule of law is promoted around the world for prepared to engage with non-state justice systems than many reasons, including the wars on drugs and terror- they were more than two decades ago when they started ism, counter-insurgency, poverty alleviation, economic rule of law promotion targeted at formal justice systems. development, comprehensive development, European The recent burst of intellectual and practical activity integration, post-conflict state-building and the protec- regarding legal pluralism has undoubtedly revitalised tion of intellectual property rights. As this list, which is the field of rule of law promotion. Yet the turn to legal not exhaustive, indicates, rule of law is being promoted pluralism is also surprising and worrisome. It is surpris- by an ever-expanding number of organisations (states, ing because legal pluralism in developing countries was international organisations, NGOs, multinational corpo- a fact of life before rule of law promotion began and rations, consultancy firms, think tanks, universities, law because this fact was well known in the West and else- 182 firms) from many different walks of life, including where. What made donors pursuing legal reform blind development aid, justice and law enforcement, business, 5 to this reality for so long? It is worrisome because it is defence and diplomacy. Also, the amount of resources not self-evident that the factors that have contributed to spent on rule of law promotion has risen significantly such cognitive blindness have disappeared overnight. and averages around 2.7 billion USD per year, accord- Are donors really ready to refocus their efforts on legal ing to a recent report by the International Development pluralism and ‘engage’ with non-state justice systems? Law Organization.9 In short, rule of law promotion has This article, which is based on a review of the literature recently been pursued by ever more actors for ever more on rule of law promotion in so-called conflict-affected and fragile states, is about these questions.6 It starts with some remarks on when and why rule or law promotion turned its attention to legal pluralism. It then offers a 4. B.Z. Tamanaha, C. Sage and M. Woolcock, Legal Pluralism and Devel- opment (2012); H.M. Keyd (ed.), ‘Special Issue on Legal Pluralism and 7. A detailed history of rule of law promotion has not been written. The International Development Interventions’, 63 Journal of Legal Pluralism usual story traces current rule of law promotion to the law and develop- (2011); D.H. Isser (ed.), Customary Justice and the Rule of Law in War- ment movement, but Twining has correctly pointed out that this Torn Societies (2011); J.
Load more

Recommended publications
  • Problematic Legal Pluralism: Causes and Some Potential ‘Cures’ 2014 Shaun Larcom1
    View metadata, citation and similar papers at core.ac.uk brought to you by CORE provided by Apollo PROBLEMATIC LEGAL PLURALISM: CAUSES AND SOME POTENTIAL ‘CURES’ 2014 SHAUN LARCOM1 Abstract The tools of analytical positivism and economic analysis are applied to the phenomenon of legal pluralism. An analytical framework is developed to ascertain when legal pluralism is problematic in the control of wrongdoing. It is demonstrated that there are three specific cases; rivalrous compliance, sanctions for wrong behaviour that are deemed to be wrongs themselves and the uncoordinated sanctioning of common wrongs. Then there is a discussion of the consequences and some approaches that can be used to ameliorate each case that has been identified. It is hoped that this framework will be used to guide future practical and theoretical discussions on legal pluralism and its potential problems. Keywords: legal pluralism, law and economics, legal dissonance, norms, criminal law, religious law 1. INTRODUCTION This article provides a framework for organising and guiding theoretical and practical discussion that relates to the phenomenon of legal pluralism. It is suggested that legal pluralism can only become a truly useful concept for those concerned with institutional design if there is greater analytical clarity and a more systematic analysis of its problematic manifestations. It is hoped that this article provides some much needed progress in these areas, something that seems all the more important given that the term is growing both in recognition and use, especially by policy makers and development practitioners.2 We know that non-state groupings can greatly enhance the quality and meaning of people’s lives.
    [Show full text]
  • Legal Pluralism, Sharia Courts, and Constitutional Issues in Ethiopia * *
    View metadata, citation and similar papers at core.ac.uk brought to you by CORE provided by IDS OpenDocs Legal Pluralism, Sharia Courts, and Constitutional Issues in Ethiopia * * Mohammed Abdo * Abstract State laws employ different approaches in addressing the effect of pluralistic normative ordering in a multicultural setting. A legal regime may resort to the uniform application of state laws and reject religious and customary norms, or may recognize and allow the application of the norms and practices of identity groups as long as they are in conformity with constitutional and human rights standards. Another option is to adopt a hands-off approach whereby the norms and practices of cultural and/or religious groups are permitted to operate and are not necessarily required to meet constitutional and human rights standards. Against the backdrop of the notion of legal pluralism adopted by the FDRE Constitution, this article examines whether final decisions rendered by sharia courts in Ethiopia are required to meet constitutional standards (such as the supremacy clause, gender equality and non-discrimination). Based on the analysis of the relevant provisions of the law and literature, it is argued that decisions of sharia courts (whose jurisdiction is not compulsory, but based on the consent of litigating parties) seem to be exempted from constitutional standards even where they may be in conflict with state laws. Key words: Legal pluralism, sharia courts, constitutional standards, a hand-off approach, Ethiopia. Introduction The 1995 Federal
    [Show full text]
  • International Criminal Justice, Legal Pluralism, and the Margin of Appreciation Lessons from the European Convention on Human Rights
    \\jciprod01\productn\H\HLH\33-1\HLH102.txt unknown Seq: 1 14-SEP-20 9:53 International Criminal Justice, Legal Pluralism, and the Margin of Appreciation Lessons from the European Convention on Human Rights Fr´ed´eric M´egret1 Abstract: This Article explores the potential of the margin of appreciation to conceptualize the pluralism of international criminal justice. A growing debate in international criminal justice concerns the extent to which it can and ought to be conceived pluralistically. That debate has often remained theoretical, however, lacking a broad understanding of how that pluralism could be justified and implemented in international law. This Article ar- gues that the notion of the margin of appreciation, as developed in the jurisprudence of the European Court of Human Rights, makes an impor- tant contribution to our understanding of the potential pluralism of inter- national criminal justice. Developed as a tool to reconcile European human rights principles with the diversity of European societies, the margin of appreciation provides arguments to better justify pluralism as both prag- matic and principled. Moreover, the margin of appreciation provides gui- dance in considering how far domestic criminal justice systems should stray from central norms of international criminal justice. The article concludes with some thoughts on the way forward in forging a pluralistic interna- tional criminal justice jurisprudence that does not sacrifice a universalist commitment. TABLE OF CONTENTS The Case for Pluralism: The View from the Margin of Appreciationv ......................................... 67 R The Merely Pragmatic Case for Pluralism .................. 68 R 1. Full Professor and Dawson Scholar, Faculty of Law, McGill University.
    [Show full text]
  • Global Legal Pluralism As a Normative Project
    GW Law Faculty Publications & Other Works Faculty Scholarship 2018 Global Legal Pluralism as a Normative Project Paul Schiff Berman George Washington University Law School, [email protected] Follow this and additional works at: https://scholarship.law.gwu.edu/faculty_publications Part of the Law Commons Recommended Citation Berman, Paul Schiff, Global Legal Pluralism as a Normative Project (2018). 8 UC Irvine L. Rev. 149 (2018).; GWU Law School Public Law Research Paper No. 2018-76; GWU Legal Studies Research Paper No. 2018-76. Available at SSRN: https://ssrn.com/abstract=3288690 This Article is brought to you for free and open access by the Faculty Scholarship at Scholarly Commons. It has been accepted for inclusion in GW Law Faculty Publications & Other Works by an authorized administrator of Scholarly Commons. For more information, please contact [email protected]. First to Printer_Berman (Do Not Delete) 8/30/2018 10:42 AM Global Legal Pluralism as a Normative Project Paul Schiff Berman* Introduction ..................................................................................................................... 149 I. Global Legal Pluralism As a Descriptive Project ................................................... 154 II. From Descriptive to Normative .............................................................................. 156 III. Legal Pluralism and the Idea of Communication Across Difference ............. 158 IV. Building a Normative Global Legal Pluralism ..................................................... 161
    [Show full text]
  • Legal Pluralism, Plurality of Laws, and Legal Practices: Theories, Critiques, and Praxiological Re-Specification
    EUROPEAN JOURNAL OF LEGAL STUDIES : ISSUE 1 Legal Pluralism, Plurality of Laws, and Legal Practices: Theories, Critiques, and Praxiological Re-specification Baudouin Dupret* Legal pluralism has become a major theme in socio-legal studies. However, under this very broad denomination, one can identify many different trends which share little but the very basic idea that law is much more than state law. Despite their eclectic character, these many conceptions of legal pluralism also share some common fundamental premises concerning the nature of law, its function, and its relationship with its cultural milieu. This contribution aims at critically addressing these premises and at suggesting some re- specification of the question of law, its plural sources, and the many practices that enfold in relationship with it. In its spirit, this re-specification can be characterised as realistic and praxiological. Indeed, I shall argue that it is at best useless and at worst wrong to start from a label like “legal pluralism” so as to describe something which is presumed to be an instance of such label. My contention here is that law is what people consider as law, nothing more nothing less, and that occurrences of legal plurality are limited to these situations where people explicitly orient themselves to the fragmented spectrum of law. Instead of looking at the hypothetical pluralistic model of law which something like, e.g., Egyptian law, would be an instance of, the task of social scientists is, rather, to describe the situations, the mechanisms and the processes through which people orient to something legal which they identify as pluralistic.
    [Show full text]
  • Integrating Legal Pluralism to ICRC's Task of Enhancing
    Integrating Legal Pluralism to ICRC’s Task of Enhancing Compliance with International Humanitarian Law by Maria del Pilar Vanegas Guzman Faculty of Law McGill University, Montreal August, 2010 A thesis submitted to McGill University in partial fulfillment of the requirements of the degree of Master of Laws (LL.M.) © Maria del Pilar Vanegas Guzman 2010 Abstract The latest public reports by the International Committee of the Red Cross demonstrate its increased operational tendency granting importance to diversity and contextualization in the multiple contexts where the humanitarian institution operates. These reports call for the use of imagination and creativity to face challenges not yet overcome though recognized at least a decade back -notably the recurrent record of non-compliance with the law of armed conflict while the numbers of victims of war grow at a worrying pace. This thesis explores whether the predominant positivist legal character within the ICRC -typical of the western legal tradition- contributes or instead constitutes an obstacle to the current operational trends. It is argued here that complementing the marked positivist view of law at the ICRC with pluralist perspectives would help ease the tension and bridge the gap that it is argued exists at the ICRC between the legal and the operational minds. The ground is ripe for the integration of positivist and pluralist approaches at the ICRC, since a pluralist vision of law is in line with the pragmatic operational perspectives at the ICRC. A pluralist vision would entail open appeal to the moral ingredient of law in an inclusive and non-hierarchical dialogue which would integrate the diversity of actors at war as active participants in the legal enterprise.
    [Show full text]
  • Critical Legal Pluralism and the Law of the Ulayat: Resistant Legalities in a Plural Legal Reality”
    “Critical Legal Pluralism and the Law of the Ulayat: Resistant Legalities in a Plural Legal Reality” Observing the Impact of RUPES in Paninggahan, West Sumatra: Implementation, Integration, and Reactions of Normative Reward Frameworks and Assessments for the Future Dr Lucy Finchett-Maddock School of Law, Birkbeck College Report, ICRAF Fellowship Bogor and Paninggahan 1 Abstract This paper reports on research conducted evaluating the appropriateness of a critical legal pluralist framework for understanding the complex relations between natural resources, law, the different stakeholders and their resultant actions, in Payments for Environmental Services (PES) schemes in legal pluralist settings. Suggestions will be made as to how this methodology can be utilised for the successful implementation of future schemes. Themes Critical Legal Pluralism; Legal Pluralism; Stakeholder Relations (Actor Interests); Embeddedness; Forum-Shopping; Natural Resource Management; Project Law; Rewards; Resistant Legalities; Payments for Environmental Services (PES) 2 Abbreviations BAL Basic Agrarian Law 1960 BMN Badan Perwakilan Anak Nagari BPAN Badan Perwakilan Anak Nagari CDM Clean Development Mechanism CLP Critical Legal Pluralism CLS Critical Legal Studies ES Environmental Services GPS Global Positioning System HuMa Perkumpulan untuk Pembaharuan Hukum Berbasis Masyarakat dan Ekologis ICRAF World Agroforestry Centre IMF International Monetary Fund KAN Kerapatan Adat Nagari PES Payments for Environmental Services RaTA Rapid Land Tenure Assessment Manual
    [Show full text]
  • Articles Indigenizing Intellectual Property Law: Customary Law, Legal Pluralism, and the Protection of Indigenous Peoples'
    \\server05\productn\T\TWL\15-2\TWL203.txt unknown Seq: 1 14-OCT-09 11:22 ARTICLES INDIGENIZING INTELLECTUAL PROPERTY LAW: CUSTOMARY LAW, LEGAL PLURALISM, AND THE PROTECTION OF INDIGENOUS PEOPLES’ RIGHTS, IDENTITY, AND RESOURCES Danielle M. Conway* I. INTRODUCTION Cultures live and cultures die. Cultures live by the transmission of law, knowledge, land, and resources from one generation to the next.1 Cultures die, in large measure, because of exploitation of peoples and * Professor of Law & Director, University of Hawai‘i Procurement Institute, University of Hawai‘i at Manoa, ¯ William S. Richardson School of Law. I wish to thank the traditional owners of the lands of First Peoples. A significant portion of this work was based upon my research and experiences as a 2006-2007 Fulbright Senior Scholar to Australia. My Fulbright experience was made possible by the Council for the International Exchange of Scholars, the Australian-American Fulbright Commis- sion, Canberra, ACT, Australia, Mark Darby, Lyndell Wilson, the William S. Richard- son School of Law, Ka Huli Ao Center of Excellence in Native Hawaiian Law, La Trobe University Faculty of Law and Management, Bundoora, VIC, Australia, and Artists in the Black, Sydney, NSW, Australia. I also wish to thank Terri Janke, Liz Cavanagh, Nick Parmeter, Tom Calma, Leah Lui-Chivizhe, Stewart O’Connell, Raelene Webb QC, Jackie Huggins, and Michael “Mick” Dodson for the education, community absorption, and the “Welcome to Country.” I am also grateful to the Texas Wesleyan University School of Law for inviting me to present this paper at the 2008 Law Review Symposium. For their support, I wish to thank Professor Jill J.
    [Show full text]
  • Legal Pluralism 101
    7 Legal Pluralism 101 William Twining I. INTRODUCTION The purpose of this chapter is to try to demystify the mainstream literature on legal pluralism for foreign consultants or activists concerned with poverty reduction in the global South. The chapter proceeds on the working assumption that such interventions are legitimate, welcome, and well informed. My standpoint is that of a British jurist interested in jurisprudence, legal anthro- pology, “Law and Development,” and the implications of “globalization” for the discipline and practice of law.1 The mainstream literature on legal pluralism draws on several disciplines and does not belong to a single intellectual tradition. It is accordingly difficult to generalize about it. However, I suggest that a high proportion of the anthropological and sociolegal literature up to the mid-1990s approximates to a single ideal type, here characterized as social fact legal pluralism (sflp). In the past fifteen years, the idea of global legal pluralism (glp) has become fashionable, but I argue that this is in many respects based on a qualitatively different lot of concerns and that, if there is a single subject or field encompassed by this idea, it needs to be relabeled. The mainstream literature contains a rich heritage of particular studies and some rather less satisfactory theorizing. One of the problems is that it has been bedeviled by an obsession with perennial jurisprudential problems surrounding the concept of law and legal positivism. It has rather neglected other theoretical issues about both pluralism and general normative theory. Part of the problem is that there is almost systematic ambiguity with regard to some of the central concepts.
    [Show full text]
  • A Pluralist Approach to International Law T Paul Schiff Berman
    Article A Pluralist Approach to International Law t Paul Schiff Berman I. IN TRO D UCTIO N ............................................................................................................................ 30 1 II. PROCESS AND PLURALISM: THE NEW HAVEN SCHOOL OF INTERNATIONAL LAW AND THE W ORK OF ROBERT C OVER ........................................................................................................... 305 Ill. TRANSNATIONAL LEGAL PROCESS: A BLENDING OF PROCESS AND PLURALISM .......................... 309 IV. A PLURALIST APPROACH TO INTERNATIONAL LAW: SIX SITES OF STUDY ................................... 311 A. The Multidirectional Interactionof Local, National, and InternationalNorms ............. 311 B. Non-state InternationalLawmaking ............................................................................... 312 C . Dialectical Legal Interactions........................................................................................ 315 D . Confl icts of Law .............................................................................................................. 3 16 E. ProceduralMechanisms for Managing Hybrid Legal Spaces........................................ 320 F. The D isaggregationof the State ..................................................................................... 321 V. GLOBAL LEGAL PROCESSES AS JURISGENERATIVE ...................................................................... 322 V I. C ON C LU SIO N...............................................................................................................................
    [Show full text]
  • Legal Pluralism, Sharia Courts, and Constitutional Issues in Ethiopia ∗
    LEGAL PLURALISM, SHARIA COURTS, AND CONSTITUTIONAL ISSUES IN ETHIOPIA ∗ Mohammed Abdo ♣ Abstract State laws employ different approaches in addressing the effect of pluralistic normative ordering in a multicultural setting. A legal regime may resort to the uniform application of state laws and reject religious and customary norms, or may recognize and allow the application of the norms and practices of identity groups as long as they are in conformity with constitutional and human rights standards. Another option is to adopt a hands-off approach whereby the norms and practices of cultural and/or religious groups are permitted to operate and are not necessarily required to meet constitutional and human rights standards. Against the backdrop of the notion of legal pluralism adopted by the FDRE Constitution, this article examines whether final decisions rendered by sharia courts in Ethiopia are required to meet constitutional standards (such as the supremacy clause, gender equality and non-discrimination). Based on the analysis of the relevant provisions of the law and literature, it is argued that decisions of sharia courts (whose jurisdiction is not compulsory, but based on the consent of litigating parties) seem to be exempted from constitutional standards even where they may be in conflict with state laws. Key words: Legal pluralism, sharia courts, constitutional standards, a hand-off approach, Ethiopia. _____________ Introduction The 1995 Federal Democratic Republic of Ethiopia (FDRE) Constitution recognizes the ethno-linguistic and religious diversity in the country. It does so, inter alia, by giving recognition to the settlement of disputes by customary and ∗ The article is a substantially revised version of my paper titled “Legal Pluralism vs Human Rights Issues: Sharia Courts and Human Rights Concerns in the Light of the Federal Constitution of Ethiopia”, which was presented at the Seminar “The Contribution of Non-western Law to the Development of International Human Rights Law’, held on 13- 14 September 2010, Brussels, Belgium.
    [Show full text]
  • Legal Pluralism in Africa: Challenges, Conflicts and Adaptation in a Global Village
    Journal of Law, Policy and Globalization www.iiste.org ISSN 2224-3240 (Paper) ISSN 2224-3259 (Online) Vol.34, 2015 Legal Pluralism in Africa: Challenges, Conflicts and Adaptation in a Global Village Rhoda Asikia Ige MA (Ibadan) LLM (Lagos) Lecturer-in-Law Department of Jurisprudence & International Law University of Lagos Nigeria Abstract Legal Pluralism in Africa came into being as a result of colonialism, which has impacted all areas of human endeavour. However, the amalgamation of foreign laws with indigenous laws often elicits opportunities for challenges and conflicts in interpretation and enforcement of the laws in many African societies. The paper’s focus is limited to British Africa and with a particular reference to Nigeria; the paper will consider the inherent deficiencies in legal pluralism; and it will examine its ‘success’ in a global village which tries to see law as a unifying tool. Introduction The co-existence of two or more systems of law in nearly all countries in Africa today can be traced to two main reasons: 1) the countries which came under the domination of one or more European powers following the Berlin Conference in 1885 which led to the partition of Africa by Europeans. 2) the incursion of Islam and the attendant imposition of Islamic Law by the Jihadists; Islamic law tends to operate in some jurisdictions as indigenous law, this is evidence in Ghana, Sierra Leone, and Uganda or as a distinct system of law as it is practiced in Kenya, Somali, Tanzania and Northern Nigeria. The colonial powers in the various African states approached the problem posed by legal pluralism differently; the continental European powers such as France, Italy, and Spain favour conferring ‘civil status’ on natives, the intention was to enable any native who was sufficiently educated to opt out of indigenous laws.
    [Show full text]