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This book focuses on decision-making by non-state justice institutions at the interface of traditional, religious, and state laws. The authors discuss the implications of non-state justice for the rule of law, presenting case studies on traditional councils and courts in Pakistan, South Sudan, Ethiopia, Bolivia and South Africa.

Inhaltsverzeichnis

Frontmatter

Introduction: A Bifurcated Theory of Law in Hybrid Societies

1. Introduction: A Bifurcated Theory of Law in Hybrid Societies

In recent years, development organizations have finally begun paying greater attention to non-state or informal justice systems. This shift should have occurred long ago. Countries with non-state justice systems in their midst have grappled with their implications for many years, and legal anthropologists and sociologists have been studying and writing about these systems for decades. But development organizations have mostly ignored them, focusing their activities instead on state legal systems. Now, non-state justice systems are taking on primary importance for development agencies and policy-makers.

Brian Z. Tamanaha

Recognizing Non-State Justice Institutions: Five Cases

Frontmatter

2. Pakistan: Jirgas Dispensing Justice without State Control

The Federally Administered Tribal Areas (FATA) are a semi-autonomous region in the north-west of Pakistan, bordering Afghanistan to the west and north, and the Pakistani provinces of Khyber Pakhtunkhwa to the east and Baluchistan to the south. Pakhtun tribes mainly inhabit the territory. Here, and in the neighbouring areas, the traditional justice system of the Pakhtuns, called jirga, continues to be dominant.

Tilmann J. Röder, Naveed A. Shinwari

3. South Sudan: Linking the Chiefs’ Judicial Authority and the Statutory Court System

South Sudan is a country in transition that is still struggling with the consequences of the 50-year civil war with its northern neighbour and resurging internal ethnic conflict. The most recent ethnic clashes in South Sudan are evidence that one of the main challenges for the newly independent country in its continued effort in state building is the implementation of a rule-of-law strategy that meets modern human rights standards and incorporates the legal traditions of the many ethnic groups. In a country as ethnically diverse as South Sudan, with its more than 60 different ethnic groups,1 the role of the different traditional justice systems that exist alongside a weak statutory legal system cannot be underestimated.

Katharina Diehl, Ruben Madol Arol, Simone Malz

4. Ethiopia: Legal and Judicial Plurality and the Incorporation of Traditional Dispute Resolution Mechanisms within the State Justice System

Even though Ethiopia is a country with many ethnic groups1 with their own language, religion and cultural traditions, its long line of local rulers maintained a unitary administration subservient to their own political and economic interests. The last violent change of government occurred on 8 May 1991 as a result of an armed victory by the Ethiopian People’s Revolutionary Democratic Front (EPRDF), which toppled the Derg2 that presided over 17 years (1974–1991) of unitary rule characterized by serious human rights violations that constitute terror as a governmental policy.

Girmachew Alemu Aneme

5. Bolivia: Normative Equality between State and Customary Law. Utopia or the Future of Hybrid Normative Systems?

Bolivia is a country with great diversity associated mainly with the geographical areas, and the natural and ecological resources of its territory. In the 112 existing provinces of the Bolivian plurinational state (Estado Plurinacional de Bolivia), 2.5 million indigenous peasants still keep to their traditional methods of administration and internal decision-making spread throughout some 190 rural Andean municipalities and in 33 other municipalities in the lower eastern lands. A total of 3.1 million people, that is, 38 per cent of the total Bolivian population, live in rural areas. Bolivia’s highland (Andean high plateau) occupies only 28 per cent of the national land area, but harbours 46 per cent of the country’s rural population. Thus, the poverty rates are much higher in this area (69.8 per cent), as there is less land to share and a lower quality of life.1

Lorena Ossio Bustillos

6. South Africa: Legal Recognition of Traditional Courts — Legal Pluralism in Action

South Africa has a mixed or pluralistic legal system. It comprises of a number of distinct legal traditions: transplanted European laws (the core being Roman-Dutch law, subsequently influenced by English common law), collectively known as the common law of South Africa,1 as well as inherited indigenous laws, referred to as African customary law.2 With the commencement of the Constitution of the Republic of South Africa 200 of 1993 (the interim Constitution) 1994 followed by the final Constitution of the Republic of South Africa (the Constitution) in 1996, two more pieces had been added to this puzzle, mixing the pot even further.3 The Constitution is supreme law (Constitution: Section 2) and all other law and conduct, including the common law and customary law, are subject to it. Contemporary South African law is a fascinating blend of Western4 and African5 laws interspersed with constitutional ideals and principles. The relationship between these laws is likely to present a challenge to someone not accustomed to the South African legal system.6

Christa Rautenbach

Non-State Justice Institution and the Law: Conceptual Approaches

Frontmatter

7. Non-State Justice Institutions: A Matter of Fact and a Matter of Legislation

We look back upon more than two centuries of attempts to establish modern statehood and modern legal systems all over the world. Various forms of non-state justice institutions have existed all along this time, others have emerged only during this period, partly in opposition of the newly created state institutions, partly with the approval of the official state judiciaries and administrations, and not seldom even initiated by the governments. The invention of tradition (Hobsbawm and Ranger 1992) and the forming of traditional institutions as an intermediate level in between the state administration and society is a phenomenon to be found not only in African countries, but also in Latin America and South and Central Asia. Either way, non-state justice institutions are a phenomenon of modern statehood. Even the oldest institutions became “non-state” only when modern statehood came in and forced them to adapt to the institutional and normative impositions of modernity.

Matthias Kötter

8. From Normative Pluralism to a Pluralism of Norm Enforcement Regimes: A Governance Research Perspective

The existence of a phenomenon of legal pluralism is by now entirely beyond dispute; the literature related to this phenomenon having experienced something of a boom in the last 30 years, it can hardly be ignored. This indisputable finding allows one to make the following statement: “legal pluralism is a fact” (Griffiths 1986; Tamanaha 2008).

Gunnar Folke Schuppert

9. Legal Pluralism from the Perspective of International Law

Legal pluralism means, generally speaking, that several autonomous legal systems exist besides each other although they cover the same territory or the same groups of persons or both.1 As such the phenomenon is not a particularly new one. What is new is that - for one or other reason - state constitutions or laws on the sub-constitutional level have established or accepted that certain groups or parts of society may enjoy a legal autonomy or, in other words, are governed by legal rules developed by and applicable to them but not to the rest of society. The objective of legal pluralism may be less embracing. It may only envisage that certain aspects of life are governed by legal rules not issued by the state concerned. Even this development is only new concerning the frequency of cases such system is being turned to. For example, the Edict of Potsdam of 29 October/8 November 1685 granted the French immigrants in Brandenburg far-reaching autonomy which resulted, de facto, in legal pluralism which was resented by some in the majority population.

Rüdiger Wolfrum

Backmatter

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