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Legal Pluralism - global and regional

Websites/Multiple Documents

Title: International Development Law Organization
Description/subject: "IDLO is the only intergovernmental organization exclusively devoted to promoting the rule of law. Governments, multilateral organizations, private foundations and the private sector support our work. We are headquartered in Rome, where we were first founded, and where we continue to enjoy strong support from the Italian government. We are present in The Hague, a city whose hospitality connects us with an unrivaled legal tradition. And we are represented at the United Nations in New York and Geneva, where we help shape the debate about human rights and development."
Language: English
Source/publisher: International Development Law Organization
Format/size: html
Date of entry/update: 28 July 2015

Individual Documents

Title: Restitution and Legal Pluralism in Contexts of Displacement
Date of publication: August 2012
Description/subject: "...This paper examines the value and limitations of HLP restitution in contexts of customary land tenure and legal pluralism and examines the role that customary justice can play as part of a transitional justice process. It argues that actors involved with restitution and broader efforts to reinstate justice, the rule of law, and democracy in post-conflict and transitional contexts should engage, albeit under certain conditions, with nonstate justice mechanisms. For the overwhelming majority of populations in developing countries, which is where most internally displaced persons (IDPs) live, customary justice is the only accessible form of justice. Engagement with it is essential to improving access to justice and to reforming or influencing its rules and processes in accordance with the human rights and democratic principles promoted by transitional justice..."
Author/creator: Barbara McCallin
Language: English
Source/publisher: Brookings Institution
Format/size: pdf (303K)
Date of entry/update: 29 July 2015

Title: Divers paths to justice - Legal pluralism and the rights of indigenous peoples in Southeast Asia
Date of publication: 26 November 2011
Description/subject: "Indigenous peoples are among the most historically ancient living cultures of the world and have over time developed their own distinct bodies of laws and institutions of social organisation, regulation and control. These laws and institutions are expressed and practised in ways unique to their sociocultural contexts as self-determining peoples since time immemorial. Today, they are commonly referred to as customary laws (and practices). Customary laws govern community affairs, and regulate and maintain indigenous peoples’ social and cultural practices, economic, environmental and spiritual well-being. However, customary laws and practices and governing institutions have come under frequent and repeated attack, leading to their severe distortion and erosion since the period of conquest and colonisation. This situation has continued with the formation of new States following decolonisation in more recent times. Prejudices against indigenous peoples and projects of nation-building have led to these peoples being marginalised and the practice of their customary laws, cultural practices, beliefs and institutions has become a criminal offence in many parts of the world, including Asia..."
Author/creator: Marcus Colchester & Sophie Chao (eds.) with Ramy Bulan, Jennifer Corpuz, Amity Doolittle, Devasish Roy, Myrna Safitri, Gam Shimray & Prasert Trakansuphakon
Language: English
Source/publisher: Asia Indigenous Peoples Pact (AIPP), Forest Peoples Programme (FPP), The Center for People and Forests (RECOFTC), Rights and Resources Initiative (RRI)
Format/size: pdf (2,1MB-reduced version; 3.9MB-original)
Alternate URLs: http://www.forestpeoples.org/sites/fpp/files/publication/2011/11/divers-paths-justice-cover.pdf
Date of entry/update: 24 February 2015

Date of publication: April 2011
Description/subject: Summary: "For years, policy makers have debated how to deal with customary tenure —sometimes known as ―informal, ―indigenous, or ―traditional law. This concern arises because dual (or multiple) legal systems co-exist in many countries: statutory law alongside informal, customary practices, religious law, etc. Educated urban elites tend to use the statutory system while rural citizens, the less educated, and the poor typically rely on the customary system. The presence of multiple systems can contribute to insecurity and conflict; finding ways to effectively integrate the two is an important policy challenge in many countries. In the past, most countries thought that with time and ―modernization‖ they could simply erase customary tenure systems, replacing them with statutory systems based on titled private property. Experience now shows that this is not realistic (at least in the short term) and neither may it be desirable since customary tenure systems have attributes and strengths that respond to real needs in many countries. Furthermore, as customary systems are undermined, they leave a void that statutory administrative systems are ill equipped to fill, given the limited administrative capacity in many countries. For these reasons, policymakers now seek some sort of accommodation with customary tenure and are looking for guidance and experience with how these issues have been dealt with in other countries. As many as two billion people are currently estimated to live under customary tenure regimes. When these systems are undermined, people lose rights that are critical to their livelihoods, spawning resistance and increasing poverty among already marginal populations. This process is accelerating as international companies seek land in remote communities, forest resources are commoditized (with REDD and Payments for Eco-system Services), and periurban development creates new land markets. This brief proposes that valorizing customary tenure systems can mitigate the pressures that undermine local tenure security. This can be done by formally recognizing and providing a legal ―space‖ for customary tenure rights, by registering rights established under customary tenure regimes as statutory rights, or by implementing a hybrid model that combines elements of customary and statutory systems. In all cases, the goal is to provide cost-effective tenure security..."
Language: English
Format/size: pdf (345K)
Date of entry/update: 02 August 2015

Title: A Basic Introduction to Customary Justice Systems
Date of publication: 2011
Description/subject: "...the premise that customary justice systems are the preferred choice of users is grounded in salient practical and social rationale. Their speed, accessibility and cost-effectiveness make them a natural partner for disputants based in rural settings and isolated from the state system. Moreover, their focus on consensus-based decisions and the restoration of community harmony seems to respond to the needs of tightly knit communities whose members share close bonds of social and economic dependency..."...This is Chapter 1 of "Customary Justice: From Program Design to Impact Evaluation".
Author/creator: Erica Harper
Language: English
Source/publisher: International Development Law Organization (IDLO)
Format/size: pdf (114K)
Date of entry/update: 27 July 2015

Title: Customary Justice: From Program Design to Impact Evaluation
Date of publication: 2011
Description/subject: "...Informal or non-state justice systems are umbrella terms often used to describe mechanisms of justice and conflict resolution that operate outside the bounds of a formal, state-based legal system. These may include, but are not limited to, indigenous, customary and religious legal orders, alternative dispute resolution mechanisms and popular justice forums. This book is concerned primarily with customary justice systems, sometimes also referred to as ‘traditional justice systems’. While the diversity of such systems makes generalization difficult, for the purposes of this book, ‘customary justice’ refers to a system of customs, norms and practices that are repeated by members of a particular group for such an extent of time that they consider them to be mandatory. Customary systems tend to draw their authority from cultural, customary or religious beliefs and ideas, rather than the political or legal authority of the state. As such, provided that it has not been incorporated into state law, customary law is only law to the extent that the people who follow it, voluntarily or otherwise, consider it to have the status of law. Customary justice systems are as much social or political orders as they are legal orders; customary law generally comprises descriptions of what a community does as well as prescriptions as to what its members should do. These norms and rules are actively produced, enforced and recreated through processes of participation and contestation. Customary law can therefore be dynamic, adaptable and flexible, and any written version of it is likely to become quickly outdated. Factors as diverse as ecology, socio-economics, proximity to the state system, and religious beliefs all contribute to the development of customary law. These factors explain why the precepts of customary justice systems can differ greatly over small distances, and why there may be several versions of customary law co-existing in one place, in competition with each other as well as the state system..."
Author/creator: Erica Harper
Language: English
Source/publisher: International Development Law Organization (IDLO)
Format/size: pdf (1.1MB)
Alternate URLs: http://www.burmalibrary.org/docs21/Customary_Justice-From_Program_Design_to_Impact_Evaluation.pdf
Date of entry/update: 27 July 2015

Title: Customary Justice: Perspectives on Legal Empowerment
Date of publication: 2011
Description/subject: "Rule of law practitioners from around the world are keenly aware that customary justice systems are a potentially important means of improving access to justice. Whether by choice or because they have no alternative options, the world’s poor overwhelmingly favor customary justice systems over their formal counterparts. While the quality and equity of the outcomes delivered may vary, the sheer volume of outcomes suggests that there is significant opportunity to enhance legal empowerment by improving the quality of the justice processes that disadvantaged individuals and communities already use. At the same time, it is clear that customary justice systems can also restrict access to justice, particularly for marginalized and vulnerable groups. These processes can reinforce power imbalances, and outcomes can contravene human rights and justice standards. A central conundrum of engaging with customary justice systems is therefore how to support their many important positive aspects and enhance their capacity to protect the human rights of the most vulnerable members of society, notably women, minorities, indigenous peoples, disabled people and children. Despite these obvious linkages, the question of the role that customary justice systems should play in rule of law development programming remains poorly understood. In particular, there is scant knowledge on the extent to which assistance has translated into behavioral change among actors involved or on methodologies for evaluating impact and drawing lessons for future activities..."
Author/creator: Janine Ubink, Editor; Thomas McInerney, Series Editor
Language: English
Source/publisher: International Development Law Organization (IDLO)
Format/size: pdf (1.3MB)
Alternate URLs: http://www.burmalibrary.org/docs21/Customary_Justice-Perspectives_on_Legal_Empowerment.pdf
Date of entry/update: 28 July 2015

Title: Customs and Constitutions: State recognition of customary law around the world
Date of publication: 2011
Description/subject: Foreword: "Since the Convention on Biological Diversity acknowledged the relevance of “traditional knowledge, innovations and practices of indigenous and local communities” for biodiversity conservation, the past two decades have witnessed a growing acknowledgement of the substantial role that customary law plays in regulating the use of natural resources in many countries. Indigenous peoples’ associations have become ever more effective advocates for recognition of customary rights to territory and resources and have increasing influence in international negotiations. The role of customary practices in biodiversity conservation is explicitly acknowledged in the Aichi Targets adopted at the 10 th Conference of the Parties to the Convention on Biological Diversity in October 2010. Target 18 sets the goal that, by 2020, “the traditional knowledge, innovations and practices of indigenous and local communities, relevant for the conservation and sustainable use of biodiversity, and their customary use of biological resources, are respected, subject to national legislation and relevant international obligations, and fully integrated and reflected in the implementation of the Convention with the full and effective participation of indigenous and local communities, at all relevant l evels.” IUCN’s Regional Environmental Law Programme, Asia, initiated this study – carried out entirely on a voluntary basis – in an attempt to better understand the degree to which customary practices and law that govern natural resources are recognized by individual nation States. The study found that more than 60% of the 190 constitutions reviewed provide at least some degree of recognition of customary law, and that only 20% specifically recognize customary law that governs land and natural resources. Some countries that do not provide constitutional recognition of customary law do so by statute. While constitutional recognition was the primary focus of this study, a preliminary compilation of information on statutory recognition of customary law was carried out and is provided as well. This effort benefitted from the input of members of IUCN’s Commission on Environmental Law and Commission on Environmental Economics and Social Policy. We gratefully acknowledge the author, Ms. Katrina Cuskelly, who began this study as a volunteer intern with the IUCN’s Regional Environmental Law Programme, Asia, and continued and completed the work over the course of more than one year. Without her dedication and commitment, this study would not have been possible. We hope that this study provides a basis for continuing research and, eventually, initiatives for constitutional and statutory reform, to appropriately recognize customary law governing natural resources, and to contribute to the security to the people whose lives it governs and who are dependent on the natural resources"
Author/creator: Katrina Cuskelly
Language: English
Source/publisher: IUCN
Format/size: pdf (1.3MB-reduced version; 2.4MB-original)
Alternate URLs: https://portals.iucn.org/library/efiles/edocs/2011-101.pdf
Date of entry/update: 03 January 2016

Title: When Legal Worlds Overlap: Human Rights, State and Non-State Law
Date of publication: 2009
Description/subject: "...Plural legal orders occur in numerous circumstances: for example, where different family laws apply to specific ethno-cultural groups, where customary dispute resolution mechanisms operate without state sanction, where non-state legal orders (such as chiefs’ courts) are officially recognised, or where quasistate legal orders (such as alternative dispute resolution mechanisms) are established....The report contributes to the discussions on plural legal orders in four ways: It identifies some important misunderstandings and false dichotomies that have made coherent discussion of plural legal orders particularly difficult (and which similarly undermine the understanding of how religious, indigenous, and gender rights actually interact). (Chapters I to IV) It sets out the human rights issues that need to be addressed in the context of plural legal orders. (Chapters V and VI) It examines some specific policy challenges, notably those that occur in the context of recognition of non-state legal orders; recognition of cultural diversity in law; and justice sector reforms. (Chapters VII to IX) It offers a practical approach – some principles and a framework of questions – that human rights advocates and policy-makers can use as a guide when they work in plural legal contexts. (Chapters X and XI)..."
Language: English
Source/publisher: International Council for Human Rights Policy
Format/size: pdf (489K-reduced version; 946K-original)
Alternate URLs: http://www.ichrp.org/files/reports/50/135_report_en.pdf
Date of entry/update: 19 November 2014

Date of publication: 2007
Description/subject: "The existence of normative legal systems operating independently or semi-independently from the state is an empirical reality in almost every decolonised country in the world. However, despite the prevalence of non-state justice systems, and the growing official and academic recognition of their existence, to date few comparative studies have been made of them (with the notable exception of Morse and Woodman 1988). Further, although in much of the literature concerning non-state justice systems (especially that written by law reform commissions and donor agencies) there are references to the need to ‘recognise,’ ‘empower’ and ‘harmonise’ relations between state and non-state systems, as yet there has been limited enquiry into what exactly is meant by these terms. One explanation for this is the connection of this enquiry with sensitive issues concerning state sovereignty. While it is easy to agree in theory with broad statements about the need for recognition of non-state systems, once the actual detail is broached, significant levels of disagreement emerge. This may be due to what Blagg calls the “meticulously embroidered fiction that it is possible to both ‘empower’ communities and not to give up any of one’s own” (Blagg 2005: 340). The aim of this paper is therefore to produce a comparative analysis of the range of possible relationships between state and non-state justice systems. It does this through the creation of a typology that sets out seven different models of relationship, the specific details that differentiate one model from another, the potential advantages and disadvantages of the different models, and the situations in which these models are working or not working and why. The typology is based on a comparative analysis..."
Author/creator: Miranda Forsyth
Language: English
Source/publisher: "Journal of Legal Pluralism"
Format/size: pdf (175K)
Date of entry/update: 29 July 2015

Title: The Heterogeneous State and Legal Pluralism in Mozambique
Date of publication: 2006
Description/subject: Abstract: "This article analyzes some of the most salient features of the state and the legal system in Mozambique. I propose the concept of the heterogeneous state to highlight the breakdown of the modern equation between the unity of the state, on the one hand, and the unity of its legal and administrative operation, on the other. The centrality of legal pluralism is analyzed in light of an em- pirical research focused on community courts and traditional authorities. I use the concept of legal hybridization with the purpose of showing the porosity of the boundaries of the different legal orders and cultures in Mozambique and the deep cross-fertilizations or cross-contaminations among them. Special at- tention is given to the multicultural plurality resulting from the interaction between modern law"
Author/creator: Boaventura de Sousa Santos
Language: English
Source/publisher: Law & Society Review
Format/size: pdf (200K)
Date of entry/update: 29 July 2015

Description/subject: "The Journal of Legal Pluralism and Unofficial Law (JLP) is devoted to scholarly writing and documentation on all aspects of legal pluralism and unofficial law everywhere in the world and at all times..."
Language: English
Source/publisher: Commission on Legal Pluralism
Format/size: html., pdf
Date of entry/update: 27 July 2015