Legal Diaspora Studies and the Literary Text
2. Legal Diaspora Studies as an Emergent Approach
2.3 Legal Pluralism and Historical Place of Origin
Shah and Bayir preface their contemporary study with a reference to the fact that indeed, a pluralistic system existed during the Ottoman era which authorized
“European and American nationals to be judged in courts instituted by their countries of origin as part of their assertion of extra-territorial jurisdiction,”²³ a system of legal concessions or capitulations abolished in 1923. Indeed, it has been argued that to conceive of globalization (and thus, diaspora) as a contem-porary threat to the nation-state is to emphasize a linear narrative of law based on positivist and natural-rights assumptions which ignores historical evidence of legal pluralism, that, as Paul Berman writes,“legal norms have always migrated across territorial boundaries.”²⁴ Colonialism called for the development of a means of dealing with multiple jurisdictions across multiple spaces, necessitat-ing the recognition of a legally pluralistic system–where a dispute resolution process, for example, could operate locally at a metaphysical distance from a colonial courthouse hierarchy.²⁵ These “layered constructions of sovereignty”
recognized the authority of religious and culturally diverse communities as well as the reality that, as the legal historian Laura Benton observes,“conflicts continually shifted jurisdictional boundaries.”²⁶This complex arrangement also ensured that settlers moving to establish a new world abroad could make and remake legal orders linking them to their place of origin.
In this sense, diaspora laws have a long history of plurality and can be con-ceived of as a network of jurisdictions and the negotiation of legal subjectivities linked to a point of origin. On the one hand, this can perhaps be read as a rei-fication of the centrist dogma which presents dispersal and diffusion as a con-cretization of nation-state legal practices, but if regarded from a constructivist
BBC,“Rapid rise in global family disputes”(May,).
<http://www.bbc.co.uk/news/uk-> (acc.Dec,).
Shah and Bayir,“Legal Adapation of British Settlers,”–.
Paul Schiff Berman,“Global Legal Pluralism,”Southern California Law Review():
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Peter Karsten,Between Law and Custom:“High”and“Low”Legal Cultures in the Lands of the British Diaspora(Cambridge: CUP,). ##–##.
Lauren A. Benton,“Historical Perspectives on Legal Pluralism,”Hague Journal on the Rule of Law.():–,;.
point of view, it is perhaps more interesting to consider the means in which dia-sporic communities negotiated (and contested) socio-legal constructions of their legal subjectivities. So, for Shah, diasporas are always“engaged in processes of code-switching and cultural navigation,”²⁷in other words, undertaking“hybrid adaptive strategies”by complying with“multiple-rule systems”in dispute reso-lution lay courts or through kinship resoreso-lution, for example²⁸. Diasporas are then not outside official/state law, but engage as, in the way Shah describes, “trans-local actors”which do not simply demonstrate a web of trans-legality but also force “a rethink of established legal boundaries.”²⁹ Legal pluralism is then, not a facet of special treatment for diasporic communities but rather recognition of that“the constant making and re-making of [legal] boundaries”³⁰exists in all societies at all times in a“rich texture of legal systems.”³¹ Societies’adaptations are the departure point, rather than a nation-state as the central source of legiti-macy. This can be seen as a form of globalized localism, or diasporic localism in this case perhaps.
Such interlegality is a reflection of what David Delaney calls the“verticality of legal space,”³² which goes against the linear route of migration reciprocally linked to origins and instead draws attention to“questions of scales and perspective” – domestic, extraterritorial, international, transnational, global, local, customary, tribal, religious.³³ As Santos observes,“the modern state is based on the assump-tion that law operates on a single scale,”³⁴when in fact there are different legal orders operating on different scales in different legal spaces,³⁵ “creat[ing] different
Shah,“Diasporas as legal actors,”.
Shah,“Diasporas as legal actors,”. Shah notes that most legal systems in the world, with the notable exception of the UK,“make provision for minorities under personal law sys-tems of one kind or another”(“Diasporas as legal actors,”).
Shah,“Diasporas as legal actors,”.
Prakash Shah,“Socio-Legal Perspectives on Ethnic Diversity,”inIn Law and Ethnic Plurality –Socio-Legal Perspectives, ed. P. Shah (Leiden and Boston: Martinus Niljhoff,):.
Alison Harvey,“Rev. ofMigration, Diasporas and Legal Systems in Europe, ed. Shah and Men-ski, andThe Challenge of Asylum to Legal SystemsCavendish, by Shah,”European Journal of Mi-gration and Law():–,.
David Delaney,“Globalization and Law: Introduction,”inThe Legal Geographies Reader:
Law, Power and Space, ed. N. Blomley et al. (Oxford: OUP,):–,.
Delaney,“Globalization and Law,”.
Boaventura de Sousa Santos,“Law: A Map of Misreading. Toward a Postmodern Conception of Law,”Journal of Law and Society.():–,.
Santos defines local law as a large-scale legality, nation-state law as a medium-scale legality and world law as a small-scale legality (“Law: A Map of Misreading,”). He writes:“For the local communities the customary law was the local law, a large-scale legality well adapted to prevent and settle local disputes”(“Law: A Map of Misreading,”) InToward a New Legal
legal realities.”³⁶These“multiple networks of legal orders”can be conceived of, again, as adaptive strategies.³⁷ Santos writes about his experiences looking at the law of the favelas in Brazil, exploring“the creation of an internal legality, par-allel to–and sometimes conflicting with–state official legality.”³⁸He looked at how dispute resolution would involve a community organization with legal re-sponsibility over civil (but not criminal) jurisdiction, state agencies, locally drafted contracts,“selective borrowings from the official legal system,”³⁹and both formal-ly trained and lay persons acting as legal adjudicators: Santos calls this the oper-ation of forms of law in“constellations of legality.”⁴⁰
Twinings suggests legal pluralism forces us to ask how we can conceptualize law.⁴¹ The themes here could be said to be“contradiction and fragmentation”:⁴² we are required to view law differently, not as territorially bound but“emerging from a plethora of often competing normative frameworks.”⁴³
Thus, both legal pluralism and transjurisdictionalism are de-centring law from the state, albeit in different ways.⁴⁴ Interlegality could be said to be a
Common Sense(London and Edinburgh: LexisNexis Butterworths Tolley,) he writes:“laws use different criteria to determine the meaningful details”().
Santos,“Law: A Map of Misreading,”.
Santos,“Law: A Map of Misreading,”.
Santos,Toward a New Legal Common Sense,.
Santos,Toward a New Legal Common Sense,.
Santos,Toward a New Legal Common Sense,.
William Twining,“Normative and Legal Pluralism: A Global Perspective,”Duke Journal of Comparative & International Law():–,:“it is worth asking: plurality of what exactly? Setting aside concerns about‘the legal’, one can roughly differentiate three cate-gories that are explicitly mentioned or implied: institutionalized normative orders (e.g., the WTO, the regime of internal governance of a law school or a university or large organization);
a system, or code or discrete set of norms (the U.S. Constitution, the rules of football); looser aggregations of norms (public lecture rituals, American spelling); and a few single norms which do not clearly belong to any one system or agglomeration (is the smoking ban part of the rules governing the library, the law school, the university or something more general […]
as we shall see,‘legal pluralism’is variously applied to institutionalized legal orders, systems, codes or other bodies of rules, sources of law, and to single rules or principles (e.g., the rule in Rylands v Fletcher,the principle that no person should profit from her own wrong).”
Harvey,“Rev. ofMigration, Diasporas and Legal Systems in EuropeandThe Challenge of Asy-lum to Legal Systems,”.
Ruth Buchanan,“Reconceptualizing Law and Politics in the Transnational: Constitutional and Legal Pluralist Approaches,”Socio-Legal Review():–,.
Twining,“Normative and Legal Pluralism,”:“social fact pluralism studies have focused on relatively small, face-to-face groups.Second, the main emphasis has been on what in our legal tradition has been classified as private law- marriage, family, inheritance, land, and to a
focus on the contact zone, transjurisdictionalism on the operational process of adjudicating across boundaries and legal systems (wrenched free, in other words, from territory);⁴⁵ and legal pluralism as a consideration of the network in which these systems interact.