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Is There Ever a ‘Right to One's Own Law’? An Exploration of Possible Rights Foundations for Legal Pluralism

  • Frédéric Mégret (a1)
Abstract

This article explores the possibility of elaborating a strong rights foundation for ‘weak’ legal pluralist arrangements, consisting of the recognition by the state of a degree of autonomy for the legal practices of minorities. It finds unhelpful and reductionist those arguments based merely on whether certain aspects of minority law are in violation of human rights or are more effective at protecting rights than state law. Instead, the article seeks to tackle the central issue of whether there is more generally a human rights case for legal pluralism, despite the modern rights movement's strong historical association with state monism and egalitarian universalism. Traditional rights bases for minority protection, both group and individual based, are envisaged specifically from the point of view of recognition of minority legal traditions. Both are found to raise difficulties that are magnified by the entry into play of legal considerations. When it comes to collective rights, there is a fear that endowing certain communities with legal autonomy will increase their ability to oppress the minority within; when it comes to individual rights, the idea of a ‘right to one's law’ misses the degree to which law is an institutional construct which requires a new division of power within the state that goes far beyond what are generally understood as basic freedoms. Rather than assessing the problem merely from an individual or group point of view, the rights validity of legal pluralist arrangements is seen as dependent on how they relate to society at large. Specifically, a case is made that legal pluralism can be part of a beneficial coming to terms by societies with their diversity, a reinforcement of democratic forms and, in some cases, a type of transitional justice that recognises the extent to which the deprivation of law has been a traditional means of subjugation of minorities. The article concludes with an effort to recast the entire debate from the point of view of international human rights law and to critique its somewhat arbitrary focus on the state as the only locus of significant legal diversity.

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1 Williams Rowan, ‘Civil and Religious Law in England: A Religious Perspective’ (2008) 10 Ecclesiastical Law Journal 273, 274–75.

2 See Van Cott Donna Lee, ‘A Political Analysis of Legal Pluralism in Bolivia and Colombia’ (2000) 32 Journal of Latin American Studies 207–34.

3 Merry Sally Engle, ‘Legal Pluralism’ (1988) 22 Law and Society Review 869.

4 Griffiths John, ‘What is Legal Pluralism?’ (1986) 24 Journal of Legal Pluralism and Unofficial Law 1.

5 Note that this characterisation has a certain counter-intuitive ring to it. It is typically sociologists who describe state-sanctioned legal pluralist arrangements as ‘weak’, which seems to denote that they need that sanction to exist as opposed to being endowed with a rich, concrete life of their own. For lawyers in the traditional mould, the temptation might be to describe ‘weak’ legal pluralism as ‘strong’ because, being sanctioned by the law, it is endowed with a rich, formal life and protected by the state apparatus. To this sociologists would retort, of course, that calling this ‘strong’ legal pluralism is precisely a manifestation of state monism that only sees state law as ‘real’ law and fails to understand the normative significance of law beyond the state.

6 Bennett TW, ‘The Compatibility of African Customary Law and Human Rights’ (1991) Acta Juridica/African Customary Law 18.

7 Minow Martha, ‘Is Pluralism an Ideal or a Compromise: An Essay for Carol Weisbrod’ (2007) 40 Connecticut Law Review 1287.

8 Chiba Masaji, Asian Indigenous Law: In Interaction with Received Law (Kegan Paul 1986).

9 Sieder Rachel, Multiculturalism in Latin America: Indigenous Rights, Diversity, and Democracy (Palgrave Macmillan 2002).

10 Hinz Manfred O and Patemann Helgard K, The Shade of New Leaves: Governance in Traditional Authority; a Southern African Perspective, vol 29 (Lit Verlag 2006).

11 Grillo Ralph D, Legal Practice and Cultural Diversity (Ashgate 2009).

12 As Mahmood Mamdani put it, ‘legal pluralism in this instance was more an expression of power relations in a colonial society than a recognition and tolerance of any multicultural diversity’: Mamdani Mahmood, Citizen and Subject: Contemporary Africa and the Legacy of Late Colonialism (Princeton University Press 1996) 116. On the ambiguity of legal pluralism having been endorsed in post-apartheid South Africa, see Oomen Barbara, ‘Group Rights in Post-Apartheid South Africa – The Case of the Traditional Leaders’ (1999) 44 Journal of Legal Pluralism and Unofficial Law 73.

13 For a recent highlighting of that ‘institutional turn’, see Redding Jeff, ‘Institutional v. Liberal Contexts for Contemporary Non-State, Muslim Civil Dispute Resolution Systems’ (2010) 6 Journal of Islamic State Practices in International Law.

14 Laura Grenfell, ‘The Relationship between Legal Pluralism and the Rule of Law in South Africa and Timor-Leste’, ANU-Digital Collections, 11 April 2011, available at https://digitalcollections.anu.edu.au/handle/1885/7180; Esther Meininghaus, ‘Legal Pluralism in Afghanistan’, Zentrum für Entwicklungsforschung Center for Development Research University of Bonn, no date, Working Paper Series, available at http://www.zef.de/fileadmin/webfiles/downloads/zef_wp/wp72.pdf.

15 Pimentel David, ‘Rule of Law Reform without Cultural Imperialism: Reinforcing Customary Justice through Collateral Review in Southern Sudan’ (2010) 2 Hague Journal on the Rule of Law 1.

16 Not, of course, without reason since a number of legal systems, particularly in Africa, have largely exempted customary law from the normal scrutiny of the courts. See Nyamu Celestine I, ‘How Should Human Rights and Development Respond to Cultural Legitimization of Gender Hierarchy in Developing Countries’ (2000) 41 Harvard International Law Journal 381.

17 The fear that this is what was at stake may explain the ECtHR's decision in the Refah case, the only international human rights court decision on the issue: Refah v Turkey (2002) 35 EHRR 3, [127]–[128].

18 Appiah Kwame Anthony, The Ethics of Identity (Princeton University Press 2007) 71.

19 Oppermann Brenda, ‘The Impact of Legal Pluralism on Women's Status: An Examination of Marriage Laws in Egypt, South Africa, and the United States’ (2006) 17 Hastings Women's Law Journal 65; Hellum Anne, ‘Human Rights and Gender Relations in Postcolonial Africa: Options and Limits for the Subjects of Legal Pluralism’ (2000) 25 Law & Social Inquiry 635; Bigge David M and von Briesen Amelie, ‘Conflict in the Zimbabwean Courts: Women's Rights and Indigenous Self-determination in Magaya v Magaya’ (2000) 13 Harvard Human Rights Journal 289.

20 Of course, the fact that women, for example, may suffer from legal pluralist arrangements that leave them, so to speak, at the mercy of their group does not exclude a simultaneous degree of militancy for recognition of such a group's rights, combined with a struggle against particular prejudicial interpretations of that group's norms, either by intra-group elites or by the state: Castillo Aida Hernandez, ‘National Law and Indigenous Customary Law: The Struggle for Justice of Indigenous Women in Chiapas, Mexico’ in Maxine Molyneux and Shahrashoub Razavi (eds), Gender Justice, Development, and Rights (OUP 2002); Hellum (n 19) 635.

21 Refah case (n 17).

22 Available at http://www.onelawforall.org.uk/. The ‘equal rights for all’ appears, for example, on a poster for the campaign which describes Sharia as a ‘threat to one law for all and equal rights’.

23 This quite familiar strategy of challenging the system's excessive abstract universalism in its own words (constitutionalism, unitary law) is, of course, familiar from various decolonisation and irredentist struggles, but perhaps particularly appropriate when the challenge is to obtain recognition within the state. See, for example, Tully James, ‘The Crisis of Identification: The Case of Canada’ (1994) 42 Political Studies 77.

24 Most notably in recent years, the Refah party in Turkey. See the Refah case (n 17) (to quote the leader of the party, ‘There must be several legal systems. The citizen must be able to choose for himself which legal system is most appropriate for him, within a framework of general principles … Why then, should I be obliged to live according to another's rules? (…) The right to choose one's own legal system is an integral part of the freedom of religion’).

25 Invocation of rights arguments has often run against a traditional reluctance from minority groups to draw on rights to ground claims about legal pluralism. Minority groups may decide that they much prefer the continued operation of an effective ‘strong legal pluralism’ which, possibly in the shadows and even in clandestinity, has the merit of existing and not seeing its complexity stultified by formal preemption. Grounding legal pluralism on rights, conversely, may seem to concede too much: that the claims of the minority normative system to autonomy should be grounded in the language of another normative system. This is not the place to deal with the paradoxical potential for alienation that comes from resorting to rights discourse, albeit for the purpose of making one's case for recognition (a companion article to the present is planned that will examine this dimension). Suffice it to note that, despite this risk and if only for strategic reasons, claims for recognition of ‘minority law’ have taken the form of a dialogue with the majority and have sought to invoke rights discourse for their benefit. In the process, they have contributed to redefine what rights might mean for them. In turn, rights-based systems have had no choice but to assess both the merits of legal monism and legal pluralism from a rights angle.

26 In fact the very idea of ‘legal pluralism’ as a paradigm only has meaning in the context of the rise of a legal monism that opposed modern state law to primitive legal cultures, and sought to understand their possible interaction, whilst broadly finding the situation anomalous.

27 Gay Ruth, Safe Among the Germans: Liberated Jews after World War II (Yale University Press 2002) 21.

28 This can too readily take for granted that a Western liberal system is necessarily best in terms of rights. For example, whilst treatment of women is indeed a concern with most systems of indigenous justice, we certainly ought to be wary of the idea that discrimination against women is an inherent feature of minority law but one antithetical to the Western legal framework, as if the latter had rid itself of all suspicion of patriarchy simply through the proclamation of rights (especially when liberal rights discourse itself has been criticised for its gender blind spots). In other words, the portrayal of minority law as incompatible with human rights is often indistinguishable from a certain constitution of Western law as civilised in relation to its ‘other’.

29 A typical line of argument, in that respect, is one that favours legal pluralism yet cautions, from the point of view of rights, against an entirely unconstrained ‘strong pluralism’. See Grenfell Laura, ‘Legal Pluralism and the Rule of Law in Timor Leste’ (2006) 19 Leiden Journal of International Law 305.

30 Woodman Gordon R, ‘Legal Pluralism and the Search for Justice’ (1996) 40 Journal of African Law 152, 162.

31 Fromherz Christopher J, ‘Indigenous Peoples’ Courts: Egalitarian Juridical Pluralism, Self-determination, and the United Nations Declaration on the Rights of Indigenous Peoples' (2007) 156 University of Pennsylvania Law Review 1341, 1377.

32 Boyd Marion, Dispute Resolution in Family Law: Protecting Choice, Promoting Inclusion (Ministry of the Attorney General 2004) 67.

33 WLSA Zimbabwe, Inheritance in Zimbabwe: Laws, Customs and Practices (SAPES Harare 1994).

34 Boyd (n 32) 65.

35 Woodman (n 30) 165.

36 United Nations Declaration on the Rights of Indigenous Peoples, Human Rights Council, Report to the General Assembly on the First Session of the Human Rights Council, UN Doc A/HRC/1/L.10, Annex, 30 June 2006, 58 (emphasis added).

37 New South Wales Law Reform Commission, ‘Sentencing: Aboriginal Offenders’, 2000, para 3.12, available at http://www.lawlink.nsw.gov.au/lrc.nsf/pages/r96chp3.

38 Were this not the case, and if self-determination were to be expressed as a demand for sovereign independence that was subsequently actualised, the question of legal pluralism would cease to be relevant.

39 Harring Sidney L, Crow Dog's Case: American Indian Sovereignty, Tribal Law, and United States Law in the Nineteenth Century (CUP 1994).

40 See Law Commission of Canada, Indigenous Legal Traditions (UBC Press 2007) 1239.

41 See, for example, Mégret Frédéric, ‘The Disabilities Convention: Human Rights of Persons with Disabilities or Disability Rights?’ (2008) 30 Human Rights Quarterly 494.

42 Australian Commission of Inquiry into Poverty and Ronald Sackville, Law and Poverty in Australia (1975) 280–81.

43 UN Human Rights Committee, Kitok v Sweden, UN Doc CCPR/C/33/D/197/1985, 10 August 1988. See also, in the Canadian context, Delgamuukw v British Columbia [1997] 3 SCR 1010, 153 DLR (4th) 193.

44 Australian Law Reform Commission, ‘The Recognition of Aboriginal Customary Laws’ (1986) para 107.

45 Law Commission of Canada (n 40) 3.

46 These concerns must be added, of course, to states' own concerns about the issue in terms of sovereignty and territorial integrity, but they remain distinct, strictly speaking, from rights concerns.

47 Tamir Yael, ‘Against Collective Rights’ (1999) 1 Multicultural Questions 158.

48 Jones Peter, ‘Human Rights, Group Rights, and Peoples’ Rights' (1999) 21 Human Rights Quarterly 80.

49 Macklem Patrick, ‘Minority Rights in International Law’ (2008) 6 International Journal of Constitutional Law 531, 533.

50 Taylor Charles, ‘The Politics of Recognition’ in Heble Ajay, Pennee Donna Palmater and Struthers JR (Tim) (eds), New Contexts of Canadian Criticism (Broadview Press 1997) 125.

51 Similar arguments are made in the UK where only Jews and Quakers, for example, benefit from certain legal dispensations when it comes to marriage.

52 Poulter Sebastian, ‘Cultural Pluralism and its Limits: A Legal Perspective’ in CRE Britain: A Plural Society (Commission for Racial Equality 1990), 14.

53 ibid.

54 Poulter Sebastian and De Silva Desmond, English Law and Ethnic Minority Customs (Butterworth 1986) v.

55 Thlimmenos v Greece (2001) 31 EHRR 411. In that case what was at issue was the failure by Greek authorities to introduce an exception to the rule that persons who had been criminally convicted could not become chartered accountants. The petitioner was a Jehovah's Witness who had been convicted for refusing to serve in the army. There was obviously never any question of Jehovah's Witnesses having some larger entitlement to a separate legal order, aside from the specifics of the case.

56 See, generally, Reasons Charles and Pavlich David, ‘Social and Legal Alienation: The Case of Aboriginal Peoples in Canada’ (1995) 6 Critical Criminology 46.

57 Wimmer Andreas and Schetter Conrad, ‘Putting State Formation First: Some Recommendations for Reconstruction and Peace-making in Afghanistan’ (2003) 15 Journal of International Development 525, 536 (noting that it would ‘certainly be alienating for large sections of the population if judicial reform were to impose a unified code for the entire country and block access to justice through non-state channels such as religious courts’).

58 Human Rights Commission, Report of the Special Rapporteur on the Situation of Human Rights and Fundamental Freedoms of Indigenous People, Rodolfo Stavenhagen, UN Doc E/CN.4/2004/80, 26 January 2004, para 54.

59 Australian Law Reform Commission (n 44) para 110.

60 Interestingly, uncertainty about the law is often an argument that is invoked in favour of legal monism. However, if minority law remains, uncertainty will not be abolished merely by pretending that only one legal system applies. At least ‘weak’ legal pluralism takes seriously the demand to reduce dissonance between legal orders.

61 Hence, in attempting to critique Rawls' Theory of Justice from an African point of view, Gordon Woodman points out ((n 30) 154) that, for Rawls, membership in a given society is assumed to be unproblematic:

[Rawls] … leaves no room for the suggestion that the regulation of some areas of life might be left by the state to the arrangements within, for example, a traditional polity or lineage whose membership is unrelated to that of a state. He omits the possibility that one such community, or a whole ‘society’, might acknowledge the legitimacy of another group's claim to select its own principles of justice for application to certain fields of social life. Rawls' system is infected by the modern state's monopolistic claims.

62 Australian Law Reform Commission (n 44) para 108.

63 Boyd (n 32) 156.

64 Philip Selznick, ‘Communitarian Jurisprudence’ in Carney David E (ed), To Promote the General Welfare: A Communitarian Legal Reader (Lexington Books 1999) 34.

65 A recognition that, interestingly, is routinely extended to legal situations that have had their source in the jurisdiction of another state as part of the application of private international law, increasingly on grounds not only of deference to the sovereignty of other states but of tolerance for practices that may be foreign but fall within broad parameters of human rights acceptability: Poulter Sebastian, ‘Ethnic Minority Customs, English Law and Human Rights’ (1987) 36 International and Comparative Law Quarterly 589, 594–95.

66 Sieder Rachel, ‘Rethinking Democratisation and Citizenship: Legal Pluralism and Institutional Reform in Guatemala’ (1999) 3 Citizenship Studies 103, 112.

67 International Covenant on Civil and Political Rights (opened for signature 19 December 1966, entered into force 23 March 1976) 999 UNTS 171.

68 Woodman (n 30) 165.

69 Boyd (n 32) 56.

70 Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982 (being Sch B to the Canada Act 1982, c II) (Canada).

71 Boyd (n 32).

72 Awad v Ziriax, 754 F Supp 2d 1298, (WD Okla 2010) (USA).

73 Malik Maleiha, Muslim Legal Norms and the Integration of European Muslims (European University Institute 2009) 12.

74 Mark Thompson, ‘Private Arbitration and Islamic Law’, The League of Ordinary Gentlemen, 8 November 2010, available at http://ordinary-gentlemen.com/blog/2010/11/08/private-arbitration-and-islamic-law/.

75 Speech by Lord Phillips, Lord Chief Justice of England and Wales, ‘Equality before the Law’, East London Muslim Centre, 3 July 2008, available at http://www.eastlondonmosque.org.uk/uploadedImage/pdf/LMC%20Lord%20Chief%20Justice%20booklet.pdf.

76 The assimilationist creed may make sense from the point of view of projects of national construction, but there is no reason to think that the latter are a particularly legitimate goal from the point of view of human rights.

77 Malik (n 73) 1.

78 In addition to that aura of jurisprudential familiarity, the liberal framing of legal pluralism also minimises (although it does not entirely do away with) liberal concerns about the ‘minority within the minority’, since the decision to submit to a particular form of non-state law is one that has to be renewed voluntarily for each dispute rather than being available as a matter of law, with at best an uneasy opt-out option.

79 Chanock Martin, ‘The South African Native Administration Act of 1929: Reflections on a Pathological Case of Legal Pluralism’ in Mendelsohn Oliver and Baxi Upendra (eds), The Rights of Subordinated Peoples (OUP 1994) 306.

80 Sieder (n 66) 110.

81 The International Council on Human Rights Policy, ‘Research Project on Plural Legal Orders and Human Rights: An Approach Paper’, June 2008, para 32, available at http://www.ichrp.org/files/papers/152/135_approach_paper_2008.pdf.

82 Donovan Dolores A and Assefa Getachew, ‘Homicide in Ethiopia: Human Rights, Federalism, and Legal Pluralism’ (2003) 51 American Journal of Comparative Law 505, 507.

83 For example, Michael Daxner suggested in a recent blog that ‘[s]ince legal pluralism de facto already does exist in Afghanistan, the necessary clarity of procedures and the cases and fields where a specific legal system should apply must be deliberated – a good exercise in freedom’: Michael Daxner, ‘Guest Blog – Legal Pluralism: Decentralization of the Rule of Law?’, Afghanistan Analysts Networks, 13 January 2011, available at http://aan-afghanistan.com/index.asp?id=1431.

84 Australian Law Reform Commission (n 44) para 103. This is arguably a case where recognition of minority law would have that positive effect. There may be cases where the ‘recognition of diversity’ would be instrumentalised as a tool for the further ‘ghettoisation’ of minorities. The point is that these are complex political debates that should take place between the groups involved and the larger society they inhabit.

85 van Dijk Theo, ‘Democracy and Minority Rights’ (1996) 35 Howard Journal of Criminal Justice 148, 155.

86 Malik (n 73) 12.

87 Mouffe Chantal, On the Political (Psychology Press 2005) 122.

88 See Adelman Sammy, ‘Constitutionalism, Pluralism and Democracy in Africa’ (1998) 42 Journal of Legal Pluralism and Unofficial Law 73.

89 In the most extreme cases, the abolition of non-state normativities is simply a version of totalitarianism.

90 Yilmaz Ihsan, ‘The Challenge of Post-Modern Legality and Muslim Legal Pluralism in England’ (2002) 28 Journal of Ethnic and Migration Studies 343.

91 Reasons and Pavlich (n 56).

92 ibid.

93 Taylor (n 50).

94 Sieder (n 66) 114.

95 Human Rights Commission (n 58) 58, para 6 (emphasis added).

96 (1985) 159 CLR 70 (Austl).

97 International Convention on the Elimination of All Forms of Racial Discrimination (entered into force 4 January 1969) 660 UNTS 195. This might extend all the way to a recognition of how legal pluralist arrangements fit into affirmation action, namely as ‘special measures taken for the sole purpose of securing adequate advancement of certain racial groups or individuals … in order to ensure such groups or individuals equal enjoyment of human rights and fundamental freedoms’: art 1(4).

98 Aboriginal and Torres Strait Islander Commission Act 1989 (Cth), provision 3 (Austl) (emphasis added).

99 Australian Law Reform Commission (n 44) para 109.

100 For a powerful critique of the legitimation of minority practices as often camouflaging the extent to which ‘culture’ is highly productive of discriminatory gender archetypes, see Okin Susan Moller and others, Is Multiculturalism Bad for Women?, vol 146 (Princeton University Press 1999).

101 Some efforts at introducing legal pluralism have already led to some sombre reassessments. See, for example, Khadiagala Lynn, ‘The Failure of Popular Justice in Uganda: Local Councils and Women's Property Rights’ (2001) 32 Development and Change 55. However, in this case as in others, there is bound to be significant ambiguity as to whether the problem is with legal pluralism per se or this particular kind of legal pluralism.

102 Australian Law Reform Commission (n 44) para 109. Note that the Court's decision may have been influenced by the fact that Refah's programme was understood as a national programme – one arguably to introduce Sharia for the whole of Turkey – as opposed to merely a demand for legal pluralism on behalf of a minority.

103 For a more general recent exploration of international human rights law's statism as part of international law's own statism, see Khadiagala (n 101).

104 Macklem Patrick, ‘Militant Democracy, Legal Pluralism, and the Paradox of Self-Determination’ (2006) 4 International Journal of Constitutional Law 488, in which this and other paradoxes are brilliantly analysed. See also Meerschaut Karen and Gutwirth Serge, ‘Legal Pluralism and Islam in the Scales of the European Court of Human Rights: The Limits of Categorical Balancing’ in Brems Eva (ed), Conflicts Between Fundamental Rights (Intersentia 2008); Christian Moe, ‘Strasbourg's Construction of Islam: A Critique of the Refah Judgment’, paper presented at the Conference of Experts, ‘The Turkish Welfare Party Case: Implications for Human Rights in Europe’, Budapest, 2–3 June 2002; Ali Khan, ‘Will the European Court of Human Rights Push Turkey Toward Islamic Revolution?’, Jurist, 9 September 2002, available at SSRN: http://ssrn.com/abstract=941002.

105 An explanation of how such arrangements might be made workable is beyond the scope of this article, but there is much work on the human rights obligations of non-state actors. The latter presumably would include communities, a fortiori if they were communities which exercised, by delegation or not, certain functions with a clear potential to harm rights. Such communities would fall under the scrutiny of constitutional or international human rights supervision, but they could also claim, as does the state, their own margin of appreciation. Indeed, the margin of appreciation is increasingly touted as a more global device to manage the dialectics of universalism and particularism. See Mégret Frédéric, ‘Who's In and Who's Out? A Propos de la Protection Internationale du Monopole de l'Exercice de la Violence Légitime et Quelques Autres Attributs des Monstres Froids’ (2011) 24 Revue Québécoise de Droit International.

I am grateful to Anna Shea and Annamaria Enenajor for invaluable research assistance.

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