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CUSTOMARY CONFLICT RESOLUTION MECHANISMS AND TRANSITIONAL JUSTICE IN ETHIOPIA: OPPORTUNITIES AND CHALLENGES
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Being a home to more than 80 ethnic groups, Ethiopia has to balance normative diversity with efforts to implement state law across its territory. This volume explores the co-existence of state, customary, and religious legal forums from the perspective of legal practitioners and local justice seekers. It shows how the various stakeholders' use of negotiation, and their strategic application of law can lead to unwanted confusion, but also to sustainable conflict resolution, innovative new procedures and hybrid norms. The book thus generates important knowledge on the conditions necessary for stimulating a cooperative co-existence of different legal systems.
Being a home to more than 80 ethnic groups, Ethiopia has to balance normative diversity with efforts to implement state law across its territory. This volume explores the co-existence of state, customary, and religious legal forums from the perspective of legal practitioners and local justice seekers. It shows how the various stakeholders' use of negotiation, and their strategic application of law can lead to unwanted confusion, but also to sustainable conflict resolution, innovative new procedures and hybrid norms. The book thus generates important knowledge on the conditions necessary for stimulating a cooperative co-existence of different legal systems.
As student of law and later as a teacher, I was questioning whether Gadaa System has
something to contribute to democratic values and sustainable institutions of governance
in contemporary Ethiopian legal system. In particular, in sub-Saharan African countries
where democracy and rule of law are proclaimed but not translated into practice, it
appears vital to look into alternatives that can fill governance deficits. It is against this
backdrop and after series of research processes; field work among the Boran and GujiOromo, that Ethiopia: When the Gadaa Democracy Rules in a Federal State; Bridging
Indigenous Institutions of Governance to Modern Democracy came into focus.
The main objective of this research is, therefore, to respond to the search of alternative
solution to hurdles democratisation process, Africa as a region as well as Ethiopia as a
country faces, through African indigenous knowledge of governance, namely the Gadaa
System. Accordingly, institutional and fundamental principles analysed in this thesis
clearly indicate that indigenous system of governance such as the Gadaa System embraces
archaic democratic values that are useful even today. However, bridging two separate
institutions and political systems is not without challenges. This study is committed
to discerning tensions and compatibility issues. The incompatibilities arise from both
political systems; indigenous as well as modern. However, they bear not only tensions
but also solutions. Hence, where the challenges that arise from indigenous political
system could be resolved by progressive principles of modern political systems; tensions
that arise from modern political system are sought to be addressed by embracing legally
viable values of the Gadaa System through the instrumentality of federalism and legal
pluralism. In sum, three main reasons support the approach of this study: in Africa no
system of governance is perfect divorced from its indigenous institutions of governance;
indigenous knowledge of governance as a resource that could enhance democratization
in Ethiopia should not be left at peripheries; and an inclusive policy that accommodates
diversity and ensures the advancement of human culture appeals.
This article deals with Gurraacha institution, which is very important in inter-ethnic peace building and resolving conflict among people of south-central Ethiopia. This institution was named after the Oromo term 'Gurraacha' (literally meaning black) to indicate its power in inter-ethnic peace building and conflict resolution. It is one element of Oromo Gadaa system which was established time immemorial to sustain peace between Oromo and non-Oromo neighboring ethnic groups. The data for this study was collected through interview, observation and focus group discussions in 2014 and 2015. As revealed by this study, Gurraacha institution is a guarantee for sustaining peace among people of south-central Ethiopia by managing conflict over boundary, grazing land, looting of cattle and water points. Overall, the study concluded that Gurraacha institution has real significance in inter-ethnic peace-building, sustaining social harmony and inter-ethnic conflict resolution. In Gurraacha 79 institution, people rebuild lost peace and order of Waaqa (God) by performing purification rituals. There is no corruption in Gurraacha institution since all activities are undertaken according to Waaqa's law and order. There is no false oath in this institution because such act is believed to have negative consequences. The oath of Gurraacha institution which are made during reconciliation process transcend generations. This institution is the model of conflict transformation which is hardly found in today's world. Therefore, using this indigenous institution for future policy formulation in the country as inter-ethnic peace building and conflict resolution model is important for the realization of sustainable peace and development.
Ethiopia has been practicing various indigenous conflict resolution mechanisms for many centuries. The study on which this article is based was aimed at describing the role of indigenous conflict resolution mechanisms for maintaining social solidarity and strengthening communities in Alefa district. Descriptive qualitative research method was used with semi-structured face-to-face interviews to collect data. Thematic analysis was employed to analyze the data. The findings reveals that indigenous conflict resolution mechanisms are more flexible than the formal court procedures. Indigenous conflict resolution typically involves consensus building based on open discussions to exchange information and clarify issues about the conflict. The desired end result of indigenous conflict resolution mechanisms is a sense of harmony, solidarity and shared dialogue among conflicting parties not punishment. The absence of clear policy direction in the application of indigenous conflict resolution mechanisms has been found to be a limiting factor. Indigenous conflict resolution mechanisms have great untapped potential in maintaining social solidarity among a multiethnic and multicultural society such as Ethiopia where inter-communal conflicts are prevalent.
Peacebuilding has become a guiding principle of international intervention in the periphery since its inclusion in the Agenda for Peace of the United Nations in 1992. The aim of creating the conditions for a self-sustaining peace in order to prevent a return to armed conflict is, however, far from easy or consensual. The conception of liberal peace proved particularly limited, and inevitably controversial, and the reality of war-torn societies far more complex than anticipated by international actors that today assume activities in the promotion of peace in post-conflict contexts. With a trajectory full of contested successes and some glaring failures, the current model has been the target of harsh criticism and widespread scepticism. This article critically examines the theoretical background and practicalities of peacebuilding, exploring its ambition as well as the weaknesses of the paradigm adopted by the international community since the 1990s.
For many commentators the lack of success in international statebuilding efforts has been explained through the critical discourse of ‘liberal peace’, where it is assumed that ‘liberal’ Western interests and assumptions have influenced policymaking leading to counterproductive results. At the core of the critique is the assumption that the liberal peace approach has sought to reproduce and impose Western models: the reconstruction of ‘Westphalian’ frameworks of state sovereignty; the liberal framework of individual rights and winner-takes-all elections; and neo-liberal free market economic programmes. This article challenges this view of Western policymaking and suggests that post-Cold War post-conflict intervention and statebuilding can be better understood as a critique of classical liberal assumptions about the autonomous subject – framed in terms of sovereignty, law, democracy and the market. The conflating of discursive forms with their former liberal content creates the danger that critiques of liberal peace can rewrite post-Cold War intervention in ways that exaggerate the liberal nature of the policy frameworks and act as apologia, excusing policy failure on the basis of the self-flattering view of Western policy elites: that non-Western subjects were not ready for ‘Western’ freedoms.
Understanding reconciliation in times of political transition raises fundamental and ultimately unanswerable questions about the human condition. Talk of reconciliation invariably comes after there has been some gross violation of norms: widespread disappearances, killings, torture, and rape. Reconciliation necessarily conjures its antecedents and forces us to ask how men (and sometimes women) can visit such horrors upon one another. When we look at the face of evil, are we, as many people contend, seeing ourselves, or on the contrary are some people capable of evil in a way that others would never approach? Reconciliation is perhaps deeply compelling, however, because it not only implicates the worst that human beings are capable of, but the best as well. Reconciliation embodies the possibility of transforming war into peace, trauma into survival, hatred into forgiveness; it is the way human beings connect with one another, against all odds. It exemplifies the potential for virtually limitless strength and generosity of spirit that is also immanent in human nature. This Article explores some of the questions that must be confronted when incipient governments promote reconciliation to palliate the ills of transition. In Part II, this article raises broad conceptual questions about reconciliation. Part III then examines the historical factors that have contributed to the spread of reconciliation initiatives throughout the world in recent years. In Part IV, we examine why nations pursue reconciliation and whether reconciliation can achieve the goals imputed to it. Finally, Part V looks at the mechanisms by which nations pursue reconciliation. This article concludes with suggestions for developing a further understanding of reconciliation.
This book presents a timely review of the relations between the formal and customary justice systems in Ethiopia, and offers recommendations for legal reform. The book provides cases studies from all the Region of Ethiopia based on field research on the working of customary dispute resolution (CDR) institutions, their mandates, compositions, procedures and processes. The cases studies also document considerable unofficial linkages with the state judicial system, and consider the advantages as well as the limitations of customary institutions with respect to national and international law. The editor's introduction reviews the history of state law and its relations with customary law, summarises the main findings by region as well as as on inter-ethnic issues, and draws conclusions about social and legal structures, principles of organization, cultural concepts and areas, and judicial processes. The introduction also addresses the questions of inclusion and exclusion on the basis of gerontocratic power, gender, age and marginalised status, and the gradual as well as remarkable recent transformations of CDR institutions. The editor's conclusion reviews the characteristics, advantages and limitations of CDR institutions. A strong case is made for greater recognition of customary systems and better alliance with state justice, while safeguarding individual and minority rights. The editors suggest that the current context of greater decentralization opens up opportunities for pratical collaboration between the systems by promoting legal pluralism and reform, thereby enhancing local level justice delivery. The editors conclude by proposing a range of options for more meaningful partnership for consideration by policy makers, the legal profession and other stakeholders. In memory of Aberra Jembere and Dinsa Lepisa. Cover: Elders at peace ceremony in Arbore, 1993.
This book presents a timely review of the relations between the formal and customary justice systems in Ethiopia, and offers recommendations for legal reform. The book provides cases studies from all the Region of Ethiopia based on field research on the working of customary dispute resolution (CDR) institutions, their mandates, compositions, procedures and processes. The cases studies also document considerable unofficial linkages with the state judicial system, and consider the advantages as well as the limitations of customary institutions with respect to national and international law. The editor's introduction reviews the history of state law and its relations with customary law, summarises the main findings by region as well as as on inter-ethnic issues, and draws conclusions about social and legal structures, principles of organization, cultural concepts and areas, and judicial processes. The introduction also addresses the questions of inclusion and exclusion on the basis of gerontocratic power, gender, age and marginalised status, and the gradual as well as remarkable recent transformations of CDR institutions. The editor's conclusion reviews the characteristics, advantages and limitations of CDR institutions. A strong case is made for greater recognition of customary systems and better alliance with state justice, while safeguarding individual and minority rights. The editors suggest that the current context of greater decentralization opens up opportunities for pratical collaboration between the systems by promoting legal pluralism and reform, thereby enhancing local level justice delivery. The editors conclude by proposing a range of options for more meaningful partnership for consideration by policy makers, the legal profession and other stakeholders. In memory of Aberra Jembere and Dinsa Lepisa. Cover: Elders at peace ceremony in Arbore, 1993.
This book presents a timely review of the relations between the formal and customary justice systems in Ethiopia, and offers recommendations for legal reform. The book provides cases studies from all the Region of Ethiopia based on field research on the working of customary dispute resolution (CDR) institutions, their mandates, compositions, procedures and processes. The cases studies also document considerable unofficial linkages with the state judicial system, and consider the advantages as well as the limitations of customary institutions with respect to national and international law. The editor's introduction reviews the history of state law and its relations with customary law, summarises the main findings by region as well as as on inter-ethnic issues, and draws conclusions about social and legal structures, principles of organization, cultural concepts and areas, and judicial processes. The introduction also addresses the questions of inclusion and exclusion on the basis of gerontocratic power, gender, age and marginalised status, and the gradual as well as remarkable recent transformations of CDR institutions. The editor's conclusion reviews the characteristics, advantages and limitations of CDR institutions. A strong case is made for greater recognition of customary systems and better alliance with state justice, while safeguarding individual and minority rights. The editors suggest that the current context of greater decentralization opens up opportunities for pratical collaboration between the systems by promoting legal pluralism and reform, thereby enhancing local level justice delivery. The editors conclude by proposing a range of options for more meaningful partnership for consideration by policy makers, the legal profession and other stakeholders. In memory of Aberra Jembere and Dinsa Lepisa. Cover: Elders at peace ceremony in Arbore, 1993.
"Civil war conflict is a core development issue. The existence of civil war can dramatically slow a country's development process, especially in low-income countries which are more vulnerable to civil war conflict. Conversely, development can impede civil war. When development succeeds, countries become safer―when development fails, they experience a greater risk of being caught in a conflict trap. Ultimately, civil war is a failure of development.
"'Breaking the Conflict Trap' identifies the dire consequences that civil war has on the development process and offers three main findings. First, civil war has adverse ripple effects that are often not taken into account by those who determine whether wars start or end. Second, some countries are more likely than others to experience civil war conflict and thus, the risks of civil war differ considerably according to a country's characteristics including its economic stability. Finally, Breaking the Conflict Trap explores viable international measures that can be taken to reduce the global incidence of civil war and proposes a practical agenda for action.
"This book should serve as a wake up call to anyone in the international community who still thinks that development and conflict are distinct issues." Source: Amazon -- https://www.amazon.com/Breaking-Conflict-Trap-Development-Research/dp/0821354817/ref=sr_1_1?ie=UTF8&qid=1550856279&sr=8-1&keywords=breaking+the+conflict+trap
Many countries have attempted to transition to democracy following conflict or repression, but the basic meaning of transitional justice remains hotly contested. In this book, Colleen Murphy analyses transitional justice - showing how it is distinguished from retributive, corrective, and distributive justice - and outlines the ethical standards which societies attempting to democratize should follow. She argues that transitional justice involves the just pursuit of societal transformation. Such transformation requires political reconciliation, which in turn has a complex set of institutional and interpersonal requirements including the rule of law. She shows how societal transformation is also influenced by the moral claims of victims and the demands of perpetrators, and how justice processes can fail to be just by failing to foster this transformation or by not treating victims and perpetrators fairly. Her book will be accessible and enlightening for philosophers, political and social scientists, policy analysts, and legal and human rights scholars and activists. Offers a clear analysis of this contested concept Draws on the rich interdisciplinary literature on transitional justice, appealing to a broad range of audiences including philosophers, political and social scientists, legal and human rights scholars, and activists and policy analysts Provides resources for understanding what should count as success in transitional justice processes.
This book analyzes the development of indigenous religious, commercial, and political institutions among the Oromo mainly during the relatively peaceful two centuries in its history, from 1704 to 1882. The largest ethnic group in East Africa, the Oromo promoted peace, cultural assimilation, and ethnic integration.
The author assesses scientists' previous lack of interest in indigenous agricultural knowledge and practices and the emergence of such interest during the past two decades. He suggests the implications this is likely to have for efforts of agricultural research scientists and extension educators to increase the agricultural productivity, income generation, and general quality of life of small-scale producers. -from Editor
Whether one thinks of the Middle East, South Africa, the Balkans, Latin America, or Cambodia, an extraordinary amount of experience and experimentation has by now occurred with transitional justice. In the latest of transitions, transitional justice is no longer a by-product or afterthought, but rather, the driver of political change. This volume contains the evolving reflections on the practice and discourse of transitional justice over the last decade or so, since the book Transitional Justice came out. There is a strong focus on the ways in which transitional justice concepts have found legal expression, including through human rights law and jurisprudence and international criminal law. These works seek to illuminate some of the hard choices faced in the design of transitional justice: criminal trials versus amnesties or truth commissions; domestic or international processes; peace and reconciliation versus accountability and punishment. Transitional justice is considered not only in relation to political events and legal developments but the broader social and cultural tendencies of our times.
Like the basic principle of supplying medical aid in emergencies, the primary goal of all transitional justice initiatives must be to first avoid the occurrence of additional violations. While preventing further injury we can also try to heal the wounds which have already been sustained. Punishing those responsible for past violations, preventing them from repeating these in the future, providing a clear deterrent message to others who may be tempted to act in a like manner, and providing some solace to victims by demonstrating that those who caused their suffering will also suffer, are of major importance in this context. They are not, however, the complete picture. Accountability may be the most essential ingredient to healing the past, but it is the total answer to neither justice nor reconciliation. Punishment will not by itself heal the past wounds, which are so commonly the cause of renewed hostilities and the occurrence of new violations. A serious approach to this challenge needs to be holistic. Despite the overwhelming obstacles, significant advances have been made in recent years towards building mechanisms to provide accountability, but there has been far less progress towards understanding or creating practical mechanisms that promote reconciliation. Many conflicts take place in societies in which the role of formal policing and legal systems has been negligible or, taken at its best, provided a minimal contribution towards law and order; in others they have been the tools of abuse. This does not mean that there is anarchy.
Truth and reconciliation commissions have become one of the standard options on the palette of transitional justice alternatives. They stand as something of a half-way house among approaches towards accountability for past atrocities and other human rights violations. The truth and reconciliation commission does not “forgive and forget,” because it is predicated on public truth-telling, but nor does it encompass rigorous prosecution by criminal justice mechanisms. The South African model is probably the best-known, although it had some atypical features, such as the power to recommend amnesty to perpetrators who made full confession of their deeds. The Sierra Leone Truth and Reconciliation Commission was established in July 2002. It presented its final report to the President of Sierra Leone on October 5, 2004. The actual operations of the Commission, consisting of both private and public encounters with victims and perpetrators, public hearings on thematic issues, and other research and investigation took only about eight months, however. The report provided Sierra Leone with a detailed narrative of the countryʹs history, with a focus on the brutal civil war of the 1990s, analysis of various dimensions of political, economic and social life with a view to understanding the causes of the conflict, and a series of findings and recommendations. Perhaps the most distinctive feature of post-conflict justice in Sierra Leone has been the parallel existence of an international criminal justice mechanism, the Special Court for Sierra Leone.
Introduction After more than 50 years of political violence, Colombia confronts the possibility of negotiating the disarmament, demobilization, and reintegration of at least one of its armed actors. Colombians and the international community welcome the possibility of putting an end to the increasingly bloody internal armed conflict and consequently reducing the number of executions, disappearances, kidnappings, and wounded and displaced persons. However, the fact that there are two types of non-state armed actors, guerrillas and paramilitaries, who have committed grave crimes, including human rights violations and crimes of war, and that most of these groups are involved in drug trafficking complicates any resolution to the conflict. The new interplay between domestic and international legal systems and standards also presents interesting challenges. For two years the Colombian Congress considered different versions of governmental initiatives on differentiated criminal treatment for members of armed groups willing to disarm and demobilize. The first draft introduced by the Uribe administration in October 2003 included elements of punishment, conditional parole, and reparations, but also had a number of shortcomings. Domestic and international actors pressured the government to modify the draft legislation. Congress became dissatisfied with the executive's amended draft and no effort was made to move forward. The executive submitted another draft to Congress in February 2005 after earlier efforts to submit a joint initiative with a group of Congress members failed. By March 2005 eight congressional initiatives, in addition to the executiveʹs draft bill, had been submitted to Congress.
On April 6, 1994, a plane carrying the presidents of Rwanda and Burundi was shot down as it approached the airport in the Rwandan capital, Kigali, killing all on board. The assassination of President Juvénal Habyarimana served as a pretext for launching a long-planned program to eliminate political rivals to the president and his supporters. Violence was initially focused in the capital, as the presidential guard and other elite troops targeted opposition politicians and civil society activists of all ethnicities. As the group of military and political leaders who assumed control of Rwanda carried the violence into every corner of the country, however, it quickly assumed the clear characteristics of genocide, since it focused on Rwanda's minority ethnic group, the Tutsi, regardless of their political activity, class, age, or gender. By the time the rebel Rwandan Patriotic Front (RPF) took control of the country in mid-July 1994, more than half a million people had been killed. In the decade since the 1994 genocide and war, the government of Rwanda has undertaken a variety of programs to attempt to promote reconciliation, combat impunity, and prevent future communal violence. The government has built numerous memorials and established annual commemorations of the genocide, sought to create unity by adopting a new national anthem, flag, and seal, overseen the drafting of a new constitution and various political reforms, and instituted programs, including “solidarity camps” for students, former prisoners, and returned refugees to teach a revised history of the country.
In many societies, histories of exclusion, racism and nationalist violence often create divisions so deep that finding a way to deal with the atrocities of the past seems nearly impossible. These societies face difficult practical questions about how to devise new state and civil society institutions that will respond to massive or systematic violations of human rights, recognize victims and prevent the recurrence of abuse. Identities in Transition: Challenges for Transitional Justice in Divided Societies brings together a rich group of international researchers and practitioners who, for the first time, examine transitional justice through an ‘identity’ lens. They tackle ways that transitional justice can act as a means of political learning across communities; foster citizenship, trust and recognition; and break down harmful myths and stereotypes, as steps toward meeting the difficult challenges for transitional justice in divided societies.
The dramatic growth of the field of transitional justice (TJ) since the late 1980s is connected to the idea that TJ can serve as an instrument to consolidate democratic transitions. This instrumental justification is not the only rationale for adopting TJ. One can make a plausible normative argument that there are moral duties to expose the truth about gross human rights violations, to prosecute their perpetrators, and to compensate their victims, even if such programs have little or no effect on the larger processes of democratic transition. But the international popularity of TJ is undoubtedly connected to the idea that it also may contribute to democratization, which has increasingly become an accepted goal of international organizations. There are many ways in which TJ has been said to help consolidate democracy, but one familiar claim is that in societies that have been scarred by ethnic animosity or religious intolerance, TJ can help reshape identities and, in particular, to weaken those aspects of people's identities that were the source of violence and conflict and to replace them with a strengthened sense of shared identity related to common membership in the national political community. For example, the ethnic identities of “Hutu” and “Tutsi” had become interpreted in Rwanda as inherently antagonistic and monolithic, and hence were capable of being mobilized for acts of genocide.
This study examined the patterns or mechanism for conflict resolution in traditional African societies with particular reference to Yoruba and Igbo societies in Nigeria and Pondo tribe in South Africa. The paper notes that conflict resolution in traditional African societies provides opportunity to interact with the parties concerned, it promotes consensus-building, social bridge reconstructions and enactment of order in the society. The paper submits further that the western world placed more emphasis on the judicial system presided over by council of elders, kings’ courts, peoples (open place) assemblies, etc; for dispute settlement and justice dispensation. It concludes that traditional conflict resolution techniques such as mediation, adjudication, reconciliation, and negotiation as well as
cross examination which were employed by Africans in the past, offer great prospects for peaceful co-existence and harmonious relationships in post-conflict periods than the modern method of litigation settlements in law courts.
Key words: African Conflict, Mediation, Reconciliation, Adjudication, Negotiation, etc
Traditional institutions of conflict resolution play a very significant role in the day-to-day lives of Africans in general and Ethiopians in particular. In Ethiopia, a country that has adopted ethnic federalism as its policy, such traditional institutions help to blur political boundaries and bring people from different ethnic and regional backgrounds together. Furthermore, they serve as alternative institutions of conflict resolution in a country where the state legal system is failing to fully provide the judiciary needs of the nation. For instance, in Jille Dhmugaa district, where the research was conducted, there are only two judges for a total population of 102 936. Apart from the lack of capacity under which it suffers, the state legal system can also be criticised for a high degree of preferential treatment due to corruption, so that justice is provided only to a few. Furthermore, the ideology of the state legal system is drawn mainly from the western legal philosophy which is highly influenced by an individualistic orientation and does not fit the strong social orientation on the ground where it is being implemented. These reasons and more are raised by many as main drawbacks of the state legal system in Ethiopia. There were times in Ethiopian history when the state legal system officially incorporated elements from the traditional institutions of conflict resolution in the state courts (Carmichael 2003:122; Walker 1933:153–156). The Ethiopian constitution has, however, limited the mandate of the customary and religious institutions to private and family matters. Nevertheless, these institutions are playing a very significant role in other domains – such as criminal matters. The strong social tie existing in the community makes the significance of reconciliation, the key role of traditional institutions, indispensable. The main questions this paper attempts to answer, on the bases of ethnographic data, are: What are the pull factors towards traditional institutions? And why do people prefer the traditional institutions vis-à-vis the state legal system?
In our highly centralized political system, with its advanced technology and communications apparatus, it is tempting to think that legal innovation can effect social change. Roscoe Pound perceived the law as a tool for social engineering (1965: 247–252). Some version of this idea is the current rationale for most legislation. Underlying the social engineering view is the assumption that social arrangements are susceptible to conscious human control, and that the instrument by means of which this control is to be achieved is the law. In such formulations “the law” is a short term for a very complex aggregation of principles, norms, ideas, rules, practices, and the activities of agencies of legislation, administration, adjudication and enforcement, backed by political power and legitimacy. The complex “law,” thus condensed into one term, is abstracted from the social context in which it exists, and is spoken of as if it were an entity capable of controlling that context. But the contrary can also be persuasively argued: that “it is society that controls law and not the reverse …” (Cochrane, 1971: 93–4). This semantic morass is partly the result of the multiplicity of referents of the terms “law” and “society.” But both ways of describing the state of affairs have the same implication for the sociological study of law. Law and the social context in which it operates must be inspected together. As Selznick has said, there is no longer any need “to argue the general interdependence of law and society” (1959: 115). Yet although everyone acknowledges that the enforceable rules stated and restated in legal institutions, in legislatures, courts and administrative agencies, also have a place in ordinary social life (Bohannan, 1965), that normal locus is where they are least studied. (See, for example, the emphasis on the study of official behavior in the recent Chambliss and Seidman, 1971, and on dispute settlement in much of the recent anthropological literature, cf. , Moore, 1969. A significant exception is the emphasis on “law-in-society” in Friedman and Macaulay, 1969.)
Conflict workers (peace workers) apply for membership in the conflict formation as outside parties. Their credentials: as fellow human beings, they bring in general conflict knowledge and skills with compassion and perseverance, but no hidden agendas.
This paper is about conflicts of rights, and the particularly difficult challenges that such conflicts present when they entail
women’s equality and claims of cultural recognition. South Africa since 1994 has presented a series of challenging—but by
no means unique—circumstances many of which entail conflicting claims of rights. The central aim of this paper is, to make
sense of the idea that the institution of traditional leadership can be sustained—and indeed given new, more concrete powers—in
a democracy; and to explore the implications that this has for women’s equality and equal human rights. This is a particularly
pertinent question in the South African context, and I think it is worth reiterating from the outset that there is a distinct
impression that women’s equality is always “up for grabs” when other, perhaps more powerful interests, come into play, in
a way that would be unacceptable for other aspects of identity, and therefore signifiers of equality. It would be inconceivable,
for example, to countenance a claim for a hierarchical racial arrangement in a given community, no matter how deeply culturally entrenched that arrangement was, and regardless of how
much support it (ostensibly) had from the community concerned. I think therefore that we are obliged to ask difficult questions
about the new legislation on traditional leadership, and to put it under the microscope of political theory in assessing the
claim that this is one way of recognizing people’s rights and freedoms in a new democracy.
At the beginning of the twenty–first century, terms such as state collapse and failed states are becoming familiar, regularly used in international politics to describe a new and frightening challenge to international security. The dramatic events of September 11 have pushed the issue of collapsed states further into the limelight. This article has two aims. Firstly, it explains the contextual factors that gave rise to the phenomenon of state collapse. In the early post–Cold War period, state collapse was usually viewed as a regional phenomenon, and concerns were mainly limited to humanitarian consequences for the local population and destabilizing effects on neighbouring countries. Now, state collapse is seen in a more global context, and concerns are directed at the emergence of groups of non–state actors who are hostile to the fundamental values and interests of the international society such as peace, stability, rule of law, freedom and democracy. Secondly, the article offers some observations about the normative implications of the phenomenon of state collapse for peace–building and reconstruction.
Since the discovery of the dual structure of state law and minor law in non-Western countries, the scope of the inquiry into legal pluralism has been expanding gradually. This article attempts to prompt this inquiry by identifying hitherto neglected phases of legal pluralism working in the contemporary world. After discussing various kinds of legal pluralism, other types of legal pluralism are suggested for verification by interested scholars, such as legal pluralism in conflict, legal pluralism in subjectivity, a conceptual scheme and an operational definition of legal pluralism.
This article examines an institutional approach to development in which indigenous institutions are viewed as a resource for achieving development. It concentrates on indigenous natural resource management (NRM) institutions which have been seen by some development agencies to be a means to address the needs of people and the environment in a way that is also participatory. Using material from Borana, Ethiopia, the article describes the indigenous NRM institutions and examines the outcome of one attempt to work with them. In the process, it shows that partnerships between development agencies and indigenous NRM institutions are often fragile, and tend to dissolve when they fail to meet the preconceptions of the developers. Through an examination of this approach to development, the article also examines the usefulness of recent broad approaches to institutions.
Although it has not yet penetrated mainstream legal academia, the notion of legal pluralism is gaining momentum across a range of law-related fields. It has been a major topic in legal anthropology and legal sociology for about two decades, and is now getting attention in comparative law and international law. This recent convergence on the notion of legal pluralism is fueled by the apparent multiplicity of legal orders, from the local level to global level. There are village, town, or municipal laws of various types; there are state, district or regional laws of various types; there are national, transnational, and international laws of various types. In addition to these familiar bodies of law, in many societies there are more exotic forms of law, like customary law, indigenous law, religious law, or law connected to distinct ethnic or cultural groups. There is also an evident increase in quasi-legal forms, from private policing and private judging, to privately run prisons, to the ongoing creation of the new lex mercatoria, a body of transnational commercial law that is almost entirely the product of private law making activities. These multiple, often uncoordinated, coexisting or overlapping bodies of law may make competing claims of authority; they may impose conflicting demands or norms; and they may have different styles and orientations. This potential conflict generates uncertainty or jeopardy for individuals and groups in society, who cannot be certain in advance which legal regime will be applied to their situation. It also creates opportunities for individuals and groups to strategically invoke or pit one legal order against another. This article will lay out a framework to help examine and understand the pluralistic form that law increasingly takes today. Legal pluralism, it turns out, is a common historical condition. Part I of this article will portray the rich legal pluralism that characterized the medieval period, and it will describe how this pluralism was reduced in the course of the consolidation of state power. The article will then elaborate on new forms of legal pluralism that were produced in the course of colonization. These historical contexts will set the stage for contemporary legal pluralism, which combines the legacy of this past with more recent developments connected to the processes of globalization. Part II of the article will focus on the academic discussion of legal pluralism. Although the notion of legal pluralism is gaining popularity, from its very inception it has been plagued by a fundamental conceptual problem: the difficulty of defining "law." Debates over this conceptual problem have continued unabated for three decades. Moreover, just as the notion of legal pluralism has begun to take off, the theorist who contributed the most to its development announced that, owing to its insoluble conceptual problems, legal pluralism should be discarded. This turnabout is a fascinating intellectual story in itself. Part II will lay out a brief account of the conceptual problem that plagues legal pluralism and will indicate why it cannot be resolved. Scholars who invoke legal pluralism without an awareness of this conceptual problem and its implications risk building upon an incoherent and unstable foundation. Finally, Part III will articulate an approach to contemporary legal pluralism that avoids the conceptual problems suffered by most current approaches, while framing the important features of legal pluralism. It is drawn from and combines the insights produced in legal anthropology, comparative law, international law, and globalization studies, in the hope that the framework can provide common ground for a cross-disciplinary focus on legal pluralism. This article was delivered as the 2007 Julius Stone Address at the University of Sydney School of Law.
"In the past few years indigenous knowledge has emerged as a significant resource in development discussions. This paper interrogates the concept of indigenous knowledge and the strategies its advocates advance to promote development. The paper suggests that the concept of indigenous knowledge,and its role in development, both are problematic issues as currently conceptualized. To productively engage indigenous knowledge in development, we must go beyond the dichotomy of indigenous vs. scientific and work towards greater autonomy for indigenous peoples."
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