Laws in Conflict: Legacies of War, Gender, and Legal Pluralism in Chechnya

2019 ◽  
Vol 71 (04) ◽  
pp. 667-709 ◽  
Author(s):  
Egor Lazarev
Keyword(s):  
Gender Gap ◽  
Legal Pluralism ◽  
State Building ◽  
Customary Law ◽  
Legal Mobilization ◽  
Legal Institutions ◽  
State Law ◽  
Gender Hierarchies ◽  
And Behavior

AbstractHow do legacies of conflict affect choices between state and nonstate legal institutions? This article studies this question in Chechnya, where state law coexists with Sharia and customary law. The author focuses on the effect of conflict-induced disruption of gender hierarchies because the dominant interpretations of religious and customary norms are discriminatory against women. The author finds that women in Chechnya are more likely than men to rely on state law and that this gender gap in legal preferences and behavior is especially large in more-victimized communities. The author infers from this finding that the conflict created the conditions for women in Chechnya to pursue their interests through state law—albeit not without resistance. Women’s legal mobilization has generated a backlash from the Chechen government, which has attempted to reinstate a patriarchal order. The author concludes that conflict may induce legal mobilization among the weak and that gender may become a central cleavage during state-building processes in postconflict environments.

scholarly journals EKSISTENSI OTONOMI DESA PAKRAMAN DALAM PERSPEKTIF PLURALISME HUKUM

2014 ◽  
Vol 3 (3) ◽  
Author(s):  
Anak Agung Istri Ari Atu Dewi
Keyword(s):  
Legal System ◽  
Research Method ◽  
Legal Pluralism ◽  
Customary Law ◽  
Legal Interpretation ◽  
State Law ◽  
Legal Research ◽  
Local Regulation ◽  
Traditional Institution ◽  
The Republic

The purpose of this research is to discover the existence of autonomy of Desa Pakraman in legal pluralism perspective. Related with that purpose, there are two issues that will be discussed, first, how does the existence of the autonomy of Desa Pakraman in Indonesia’s legal system?,Second, how does the existence of the autonomy of Desa Pakraman in legal pluralism perspective?. The research method is normative legal research using statue approach, concept approach and analytical approach and law analysis by using legal interpretation. Based on the problems, the results of discussion are : first, the existence of the autonomy of Desa Pakraman within the Indonesia’s legal system has regulated in the 1945 Constitution of the Republic of Indonesia, national and local Regulations. In the Constitution, specifically Article 18 B of paragraph (2), declare that the states recognizes Desa Pakraman and their traditional rights. In regulation of Law No.5 of 1960 concerning basic Agrarian Law (UUPA), regulation of Human Rights, and regulation of Desa (Village) are clearly recognize Desa Pakraman as traditional institution has traditional rights, one of it is the autonomy of Desa Pakraman. At the local regulation, autonomy Desa Pakraman has regulated in Local Regulation about Desa Pakraman. Second, that existence of autonomy Desa Pakraman in perspective legal pluralism is that the existence autonomy Desa Pakraman is a weak legal pluralism. In perspective weak legal pluralism the state law as a superior and the customary law as an inferior, its position in the hierarchy under State law. As a theory, the semi-autonomous social field from Sally Falk Moore perspectives that Desa Pakraman is semi-autonomous. Desa Pakraman has capacity to hold their village based on the customary law and outomaticly Desa Pakraman to be in framework of state law.

Navigating Diffuse Jurisdictions

2019 ◽  
pp. 98-120
Author(s):  
Helen Quane
Keyword(s):  
Legal System ◽  
Legal Pluralism ◽  
Customary Law ◽  
Specific Reference ◽  
State Law ◽  
System P ◽  
The Status ◽  
Over Time

This chapter studies the jurisdictional boundaries between state and non-state law with specific reference to religious, or customary, law. The determination of these regulatory forms as state law depends on the extent to which they perform prescriptive, adjudicative, or enforcement functions. Indeed, the boundaries between state and non-state law are not as stable as they may appear, as they are liable to shift according to circumstances and over time. The chapter then argues that the issue of classification acquires resonance in cases where legal pluralism occurs as the character and scope of a state’s exercise of jurisdiction becomes far more ambiguous in such situations. This can create uncertainty about the jurisdiction of the respective systems, the status of norms from one system that are given effect in another, and how these norms should be interpreted and applied given their concurrent existence within more than one legal system.

scholarly journals PLURALISME HUKUM PERKAWINAN DI TAPANULI SELATAN

2019 ◽  
Vol 43 (1) ◽  
pp. 64
Author(s):  
Ikhwanuddin Harahap
Keyword(s):  
Human Life ◽  
Legal Pluralism ◽  
Qualitative Approach ◽  
Customary Law ◽  
State Law ◽  
Legal Systems ◽  
The South ◽  
Religious Law ◽  
North Sumatra ◽  
Marital Law

<p><strong>Abstrak:</strong> Pluralisme hukum merupakan fenomena universal yang dialami oleh semua bangsa. Ia mencakup berbagai aspek kehidupan manusia seperti hukum, politik, dan ekonomi. Pluralisme hukum adalah keniscayaan yang harus diterima. Dalam bingkai pluralisme hukum, masyarakat dihadapkan pada berbagai pilihan hukum, yaitu hukum adat, hukum agama dan hukum negara, tidak terkecuali masyarakat Tapanuli Selatan Provinsi Sumatera Utara. Masyarakat di daerah ini juga mengalami pluralisme hukum dalam bidang perkawinan. Paling tidak, tiga sistem hukum bisa menjadi pilihan mereka atau bahkan dengan melakukan kombinasi antar hukum yang ada. Penelitian ini dilakukan dengan pendekatan kualitatif fenomenologis untuk melihat bentuk relasi antar hukum yang hidup di tengah-tengah masyarakat Tapanuli Selatan. Temuan penelitian ini mendeskripsikan bahwa pada level tertentu, secara umum, keragaman hukum perkawinan merupakan sebuah harmonisasi, di mana masyarakat menggunakan dua sistem hukum bahkan lebih pada saat yang bersamaan. Namun ada kalanya pada situasi tertentu, keragaman hukum ini berubah menjadi “ketegangan”.</p><p><strong>Abstract:</strong> Legal Pluralism on Marriage in South Tapanuli. Legal pluralism is an universal phenomenon experienced by all nations. He covers various aspects of human life, such as law, politics and economics. Legal pluralism is a necessity that must be accepted. In the framework of legal pluralism, people are faced with a variety of legal choices, namely customary law, religious law and state law. No exception is the South Tapanuli community of North Sumatra Province. Communities in this area also experience legal pluralism in the field of marriage. At least, there are three legal systems that can be choosed or by combining existing laws. This research was conducted with a phenomenological qualitative approach to see the form of inter-legal relations that lived in the midst of the community of South Tapanuli. The findings of this study describe that at a certain level, in general, the diversity of marital law is a harmonization, in which people use two legal systems even more at the same time. But sometimes in certain situations, the legal pluralism turns into “tension”.</p><p><strong>Kata Kunci:</strong> pluralisme hukum, perkawinan, Mandailing, Tapanuli Selatan</p>

scholarly journals State Recognition of Customary Law in the South Pacific

2021 ◽  
Author(s):  
◽  
Campbell McLachlan
Keyword(s):  
Human Rights ◽  
Group Identity ◽  
South Pacific ◽  
Legal Pluralism ◽  
The State ◽  
Colonial Period ◽  
Customary Law ◽  
State Law ◽  
The Pacific ◽  
Fresh Impetus

This thesis examines the recognition by the state of the customary law of indigenous peoples by reference to a comparative study of Commonwealth South Pacific Jurisdictions. It aims both to Illuminate the process of recognition as a contribution to the comparative theory of legal pluralism and to describe distinctive elements of the experience with recognition In the Pacific.<br><br>The Pacific case shares many of the features of the Introduction of Western law into non-Western societies generally, but the absence of complex plural legal systems during the colonial period and the contemporary vitality of traditionalism have required a reworking of the policy basis and techniques for recognition.<br><br>This task is approached from four propositions. 'The persistent fact of pluralism' envisages recognition as informed by an acknowledgement that legal pluralism exists and persists as a factual phenomenon, regardless of the extent of accommodation afforded to custom in the state legal system. The nature of this phenomenon and the options open to the state are explored in Chapter 'Legal pluralism and legal theory'. 'A legacy of colonial misconceptions' argues that the dominant paradigm for recognition is colonial and therefore requires critical re-examination. Chapter 11 'The colonial experience and the idea of customary law' discusses the status de jure of customary law in the Pacific during the colonial period and evaluates the impact of colonialism on custom and approaches to its recognition.<br><br>Independence and the reassertion of the indigenous identity of Pacific peoples has created a fresh impetus for recognition. 'The implications of a reassertion of autochthonous values' are explored in three chapters on contemporary reforms: Chapter III, 'custom as a source of underlying law' on the general incorporation of custom; Chapter V, 'Disputes: custom as process' on local-level 'customary courts'; and Chapter VI on 'Land: custom as title'. <br><br>Finally, the fourth proposition, 'justice and group identity', sees recognition as justified by the requirements of justice in relation to Indigenous groups within the nation state. Chapter IV, 'Human rights and cultural relativism', evaluates the scope for group Identity within a framework of non-discrimination and the protection of individuals' human rights.<br><br>The thesis concludes by contrasting the changing ideological role of custom with the realities of recognition and by contrasting recognition by the incorporation of custom into state law with recognition by the adjustment of state law to acknowledge the separate sphere of custom.

With or Without You: Qing, Li, Fa, and Legal Pluralism in China

2021 ◽  
Vol 5 (2) ◽  
pp. 88-118
Author(s):  
Qian Liu
Keyword(s):  
Lived Experience ◽  
Empirical Studies ◽  
Legal Pluralism ◽  
Urban China ◽  
Legal Mobilization ◽  
Law And Society ◽  
State Law ◽  
Rural Villages ◽  
Chinese Law ◽  
Legal Transplantation

Abstract The concept of legal pluralism was introduced to China in the mid-1990s to address the conflict between state law and local norms and customs. More than two decades after its introduction, the scope of legal pluralism in China has shifted to the coexistence and interaction between state law and nonstate orders. In this article, I review theoretical discussions and empirical studies on legal pluralism in China. The existing studies on legal pluralism focus mostly on rural villages, which marginalizes the lived experience of urban residents who are also caught in China’s rapid legal transplantation in recent decades. At the same time, law and society scholars who study labor dispute resolution in urban China tend to frame the questions as legal mobilization, rather than legal pluralism. The term qingli 情理[commonsense feelings of justice] is a common theme underlying the scholarship of legal pluralism and legal mobilization in China, and thus it has the potential to bring them together and bridge the findings of the two bodies of scholarship. This article contributes to the literature on Chinese law and society by demonstrating the role that qingli plays in bridging different areas of sociolegal studies.

scholarly journals The Paradigm of Pluralism In Indonesia: Communal VS Legal State

2021 ◽  
Vol 15 ◽  
pp. 259-265
Author(s):  
Suci Flambonita ◽  
Vera Novianti ◽  
Artha Febriansyah ◽  
Wahyu Ernaningsih
Keyword(s):  
Natural Resources ◽  
The State ◽  
Customary Law ◽  
Cultural Identities ◽  
Legal Institutions ◽  
State Law ◽  
Value System ◽  
Sociological Approach ◽  
Indigenous Land ◽  
Strong Relationships

Indonesia with all of its diversities in which law and culture live side by side and become part of state law regularity. Centralistic view contends that the only institution which plays role in creating social regularity is the country through the law formed and determined by the country. In its reality, there are many ‘other forces’ that do not come from the state such as customary law, religion law, habits, trade agreement across country and so on. Those forces also have the ability to regulate the community actions bound in it even sometimes the member or the community in the society prefers to obey the rules formed by their group compared to the state law regulations. The research method used was sociological approach with moral, ethic, and religious approach. Traditional communities are groups of individuals who live from generation to generation in a certain geographical territory and are bind by cultural identities, strong relationships with their indigenous land, regions, and natural resources. Their value system determines their economic, political, and legal institutions. Indigenous peoples are groups of individuals who live from generation to generation in a certain geographical territory and are bind by cultural identities, strong relationships with their indigenous land, regions, and natural resources. Their value system determines their economic, political, and legal institutions arranged by customary institutions that have the authority to govern.

scholarly journals State Recognition of Customary Law in the South Pacific

2021 ◽  
Author(s):  
◽  
Campbell McLachlan
Keyword(s):  
Human Rights ◽  
Group Identity ◽  
South Pacific ◽  
Legal Pluralism ◽  
The State ◽  
Colonial Period ◽  
Customary Law ◽  
State Law ◽  
The Pacific ◽  
Fresh Impetus

This thesis examines the recognition by the state of the customary law of indigenous peoples by reference to a comparative study of Commonwealth South Pacific Jurisdictions. It aims both to Illuminate the process of recognition as a contribution to the comparative theory of legal pluralism and to describe distinctive elements of the experience with recognition In the Pacific.<br><br>The Pacific case shares many of the features of the Introduction of Western law into non-Western societies generally, but the absence of complex plural legal systems during the colonial period and the contemporary vitality of traditionalism have required a reworking of the policy basis and techniques for recognition.<br><br>This task is approached from four propositions. 'The persistent fact of pluralism' envisages recognition as informed by an acknowledgement that legal pluralism exists and persists as a factual phenomenon, regardless of the extent of accommodation afforded to custom in the state legal system. The nature of this phenomenon and the options open to the state are explored in Chapter 'Legal pluralism and legal theory'. 'A legacy of colonial misconceptions' argues that the dominant paradigm for recognition is colonial and therefore requires critical re-examination. Chapter 11 'The colonial experience and the idea of customary law' discusses the status de jure of customary law in the Pacific during the colonial period and evaluates the impact of colonialism on custom and approaches to its recognition.<br><br>Independence and the reassertion of the indigenous identity of Pacific peoples has created a fresh impetus for recognition. 'The implications of a reassertion of autochthonous values' are explored in three chapters on contemporary reforms: Chapter III, 'custom as a source of underlying law' on the general incorporation of custom; Chapter V, 'Disputes: custom as process' on local-level 'customary courts'; and Chapter VI on 'Land: custom as title'. <br><br>Finally, the fourth proposition, 'justice and group identity', sees recognition as justified by the requirements of justice in relation to Indigenous groups within the nation state. Chapter IV, 'Human rights and cultural relativism', evaluates the scope for group Identity within a framework of non-discrimination and the protection of individuals' human rights.<br><br>The thesis concludes by contrasting the changing ideological role of custom with the realities of recognition and by contrasting recognition by the incorporation of custom into state law with recognition by the adjustment of state law to acknowledge the separate sphere of custom.

Controlling the Law: Legal Pluralism in China's South-West Minority Regions

2018 ◽  
Vol 236 ◽  
pp. 1154-1174
Author(s):  
Katherine P. Kaup
Keyword(s):  
Law Enforcement ◽  
Rule Of Law ◽  
Legal Pluralism ◽  
Customary Law ◽  
State Law ◽  
Legal Standards ◽  
South West ◽  
Long Run ◽  
Local Officials ◽  
Minority Regions

AbstractMillions of China's ethnic minority citizens remain subject to competing legal standards, even as state officials strive to strengthen a unified notion of state law. Minority customary law continues to bind many minority citizens in both civil and criminal arenas and often conflicts directly with state law. What happens when these laws conflict? Based on fieldwork in Yunnan, this article shows how local officials and communities navigate legal pluralism and what legal and policy provisions guide them. Granting local judges discretionary authority to set aside state law in favour of customary law, although seemingly undermining law enforcement, may in the long run be the best path to strengthening rule of law in China's minority regions.

scholarly journals Konstruksi Hukum Adat Pernikahan Masyarakat Melayu Palembang Berdasarkan Syar’iat Islam

2019 ◽  
Vol 15 (1) ◽  
pp. 17-38
Author(s):  
Ahmad Fahmi
Keyword(s):  
Islamic Law ◽  
Implementation Process ◽  
The State ◽  
Customary Law ◽  
State Law ◽  
Interview Method ◽  
Before And After ◽  
Marriage Customs ◽  
And Behavior ◽  
Islamic Marriage

  Marriage is one of the tiers in the life of the society which called “stage a long the life cycle”. The purpose of this research is to obtain the informationa about: First, The Customs Procedures of Marriage for Melayu Palembang People; Second, Islamic Law in Marriage Customs for Melayu Palembang People; Third, The Customs Culture of Marriage for Melayu Palembang People; and Fourth, The Islamic Construction of Marriage Customs for Melayu Palembang People. This Research is using Qualitative Research Methods with Law Sociologist approachment and Islamic Idea, which is focused to the implementation process of marriage based on Islamic and Culture law with performance goals that have been set. The Research several Data was obtained by using interview method which was done to the object of respondent. The results of this research show : First, The customs procedures of marriage for Melayu Palembang people, in the implementation, are use Islamic law however there are some choreography by itself such as pre-marriage and after marriage. The culture of marriage for Melayu Palembang people, is divided into four phases: Cultural phase pre-marriage, Cultural phase implementation of marriage, Cultural phase after marriage and pattern of settling after marriage. Second, Marriage Law in Islamic religious teachings with Matrial Law in the state law, in marriage ordinances of Melayu Palembang people in general can be said to have been aligned, in its implementation also in accordance with the rules and referral. Where as the references in the state law on marriage are Al Quran, Al Sunnah and Qaidah Fighiyah and Consesus of Muslims in Indonesia. Third, Contribution of customary law appears on before and after marriage where there are certain or dinances and there are certain ways to hold the marriage. The customary law of our country is the laws that suit the development of Islamic Society in Indonesia, customary marriage for Melayu Palembang people on its implementation is the application of Islamic Law Theory. Fourth, Construction of Islam in marriage maintained, that marriage has values that are preserved by Melayu Palembang people continuously. The value of faith in Islamic Marriage is a good act and behavior and can lead toward the marriage in the religion of Islam, namely to evoke marriage that enriches sakina, mawada, warahmah and barokah. The points contained in the religion of Islam contains the meaning and the bonding element that have a profund influence on customary marriage of Melayu Palembang people, because this bonds came from the power that comes from the Creator.

Ahmad Ibrahim Memorial Lecture; GLOBALIZATION, SOCIAL AND RELIGIOUS DIVERSITY, LEGAL PLURALISM: CAN STATE LAW SURVIVE?

2012 ◽  
Vol 15 (2) ◽  
Author(s):  
Gordon R Woodman
Keyword(s):  
Religious Diversity ◽  
Legal Education ◽  
Legal Pluralism ◽  
Memorial Lecture ◽  
State Law ◽  
Small Measure ◽  
Education Association ◽  
Deep Thought

It is a great honour to be invited to give this 8th Ahmad Ibrahim Memorial Lecture. I met Ahmad Ibrahim several times during his period as founding Dean of the Kulliyyah of Laws of the International Islamic University Malaysia, when we both attended conferences of the Commonwealth Legal Education Association in Cumberland Lodge, Windsor, Britain. He was immensely respected in the field of legal education in the Commonwealth; his interventions in our discussions were fewer than those of some colleagues, who liked to talk at lenght on every occassion and about every topic, but when he made comments they were always efective, being evidently based on long experience and deep thought. I have since read some of his work and learnt from it - as will appear , in small measure, from some references i make later in this lecture.

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