Legal pluralism is not a recent concept in Social Sciences and its recognition today is hardly problematic. Many questions however still lack final answers and discussions on accommodating diversity in a non-Eurocentric way remain extremely relevant. Debates are not only legal but also political. They may technically focus on how to accommodate the rule of law with soft law, international law and local law or go further and critically discuss what is justice and fairness and the balance between the right to be different and the right to be equal. The aim of this panel is to discuss how to address legal pluralism and interlegality in order to democratise 21st century societies.
We challenge participants to move beyond the conceptual discussion and the mapping of the various forms of legal pluralism and invite them to raise legal and political relevant questions and contribute to embedded debates on how to deal with interactions between legal orders and, therefore, contribute to informed policy making. We welcome both empirically grounded and theoretically informed contributions capable of thinking about, and beyond, the forms of contemporary legal pluralism in the world in a forward-looking but historically based and non-Eurocentric perspective.
The set of issues and questions we intend to discuss includes, but is not limited to: the relation between human rights, rule of law and legal pluralism; legal pluralism, criminal law and violence(s); legal pluralism and the problematic bifurcated state; legal pluralism and access to justice; legal pluralism and feminisms; legal pluralism and access to water; legal pluralism and access to land; legal pluralism and decolonizing the law and the state; politics of state informalisation; legal pluralism and intercultural constitutionalism; legal pluralism and legal education (Session organized by Sara Araújo and Marta Patrício).
Chair: Sara Araújo | Centro de Estudos Sociais - UC
Marta Patrício | CEI-IUL
Contemporary legal pluralism in rural Mozambique: intersections between legal orders and access to justice
Legal pluralism is the coexistence of the rule of law with, among others, local law - such as social norms or customs. These are an expression of cultural pluralism, recognized and celebrated by the international community, for instance, in article 2 of UNESCO’s Universal Declaration on Cultural Diversity (2001). But despite we live in “heterogeneous states”, marked by such recognition and by “interlegality” and “legal hybridization” (Santos 2003), the accommodation of different legal orders and the interactions between them still trigger discussions. That is so when local law that entails violence(s) and harms people’s rights is considered (politically) as more democratic, and when people’s own agency makes them mobilize the customary beyond the limits imposed by the state law. In my PhD research, I looked at legal pluralism in Mossurize, a Mozambican borderland rural district in the south of Manica province, with a history of resistance to invaders. In Mossurize, as in other rural (remote) districts of Mozambique, prevails the sense of distance towards the central state and people experience distrust, resilience and impermeability to anything that comes from “outside”. As such, these populations rely heavily in the "traditional" or community courts, which solve problems by applying vaNdau customary law or with resort to “common sense rules”; the rule of law is not only the exception as it is often seen as “unfair”. It is against this backdrop that I analyze the coexistence of Mossurize’s several courts and the practices that social actors reproduce there during conflicts and trials. Drawn from empirical data gathered during fieldwork, this paper will demonstrate if (or how) legal pluralism in Mossurize reproduces violence(s), and influences the representations and meanings of justice and fairness. The understanding of such contemporary forms of legal pluralism, mainly non-Eurocentric ones, is important and plays a part in the debates about the access to justice in 21st century societies, as well as to build informed and grounded policies.
Laura Edith Saavedra Hernández | Centro de Investigación y Estudios Superiores en Antropología Social (CIESAS)
The Participatory Legal Defense: a proposal to build intercultural dialogues between tseltal women and the legal systems in the legal context of Chiapas, Mexico
This work is part of the doctoral thesis "Building justice (s) beyond the law: the experiences of indigenous women who participate with the Center for the Rights of Women of Chiapas, A.C." (CDMCH by its initials in Spanish). The objective of this paper will be to analyze the participatory legal defense, methodology developed by the CDMCH, in cases of violence against women, in the context of legal pluralism in the region known as “Altos de Chiapas”. The methodology of the Participatory Legal Defense has been built from the experience that the Center has had for more than 10 years of dedicating itself to the defense of the rights of women in the “Altos de Chiapas”. This proposal is committed to devictimize indigenous women, making them part of the entire judicial process for the defense of their human rights, also betting on solidarity and the generation of actions that question and promote changes in the face of violence from different areas of life of indigenous.
This proposal turns out to be innovative, in the sense, to be applied in contexts of legal pluralism and for the legal defense of indigenous women. Through the analysis of two cases will be shown not only the application of legal defense, but also the contributions made to the effort to build intercultural dialogues for the visibility of the ecology of knowledge that exists in the region.
The research was carried out from a collaborative methodology through volunteering at the CDMCH; where I had the opportunity to work in the legal defense area of the Center. There I met the women who came to ask for support to legally resolve their cases of violence. The analysis of this paper will be developed from two cases of tseltal women, who wanted to share their story of violence, justice and forgiveness. In order to know the meanings that they had of justice, I took on the task of accompanying them in their legal process, ethnographically recovering the process and making some interviews. In their narratives and in their own experience in the courts, I repeatedly found forgiveness as an alternative of justice, not only for these two women, but also for the majority of indigenous women who shared their lives to develop the research.
Helene Maria Kyed | Danish Institute for International Studies
The politics of Legal Pluralism in Mozambique
What happens when legal pluralism becomes a policy concept? Or put differently: what are the consequences when legal pluralism enters national laws and policies and thereby ceases to be solely an analytical concept used by scholars to address the plurality of normative orders and institutions that enforce order within a political organisation? This article explores the consequences of legal pluralism as a policy concept, and argues that it is of utmost importance to acknowledge how policies on legal pluralism can give way to different layers of politics in practice. Such ‘politics of legal pluralism’ denotes the, often covert, political interests behind legal pluralism policies and the political implications of how such policies are put into effect. I show this with the case of Mozambique where legal pluralism has been recognised in the 2004 Constitution, and where a range of state efforts to recognise non-state justice and policing providers have taken place since the civil war ended in 1992. Based on extensive fieldwork since 2002, I explore the state recognition of traditional authorities in rural areas and the more recent implementation of community policing in urban areas. With these examples, the article shows that the politics of legal pluralism can take the form of at least three layers of politics: i.e. the politics of asserting the superior authority of state institutions and law over other existing legal orders or through the establishment of new non-state institutions; the political party interests in controlling non-state legal orders to consolidate power; and local level contestations over power and 'clients' to sustain the authority of a given institution or of personal power positions. In Mozambique the result of these layers of politics is new forms of plurality, but these co-exist with, and are reshaped by, state and regime efforts to monopolise the legal domain, even to such an extent that the very notion of 'pluralism' itself is under constant attack.
Antônio Carlos Wolkmer | UNESC-SC and La Salle University-Canoas.
Maria de Fatima S. Wolkmer | UNESC-SC
For a Pluralist and Decolonial Alternative: the cultural worldview of good living
The proposal in question seeks to describe some contemporary innovations within the framework of the Latin American constitutional system, taking into account the Ecuadorian Political Charter of 2008, and its emphasis on the paradigmatic concept of well living.
For this, a theoretical-reflexive contribution based on a critical-social and pluralistic interpretation is used methodologically, favoring national and foreign bibliographic sources.
From the analysis of the Ecuadorian constitution, it is verified that the central principle of this social-type Constitutionalism - provokes and reveals a shift from anthropocentrism of Eurocentric modernity to another worldview (inspired by the Andean culture), where life and recognition of the diversity as the structuring axes of social, economic, legal and political relations.
Finally, the paradigmatic meaning of the normative and ethical concept of buen vivir (sumak kawsay) is expressed as an alternative, decolonial and pluralist horizon, contributing radically to redefine the spaces of legality and to socially rewrite / transform existing colonial relations in peripheral societies of the global South.