Legal Pluralism and Governance: Interview with Livia Holden

We have asked ourselves questions like the following: Where and how do social actors initiate their claims? Do the theorizations of law affect access to legal remedies? What is the impact of gender, religion, power, and ethnicity? What makes social actors to decide in their forum shopping?

Livia, legal anthropology has been your main field of research for many years. You have recently edited “Legal Pluralism and Governance in South Asia and in the Diasporas“.  Would you briefly introduce yourself to our readers and present this volume?

I like to see myself as an anthropologist of law but I am sometimes puzzled by the life of this discipline. Twenty years ago anthropology of law was still a specialized field that hardly offered any professional opportunities. When I started my PhD at SOAS with a thesis focusing on divorce customs among Hindus in India I would get questions like: Why studying something that will disappear in ten years from now? Or, who will be interested in knowing about customs in remote areas of India? Ten years later I was surprised to realize that my book, Hindu Divorce,[1] was at least useful to the Indian citizens who needed to bring evidence of their customary divorce before European and North American jurisdictions. And, perhaps interestingly, these customs, like many other practices of law everywhere, have not disappeared.

(C) Taylor & Francis

(C) Taylor & Francis

During the last decade legal anthropology and socio-legal studies have attracted a growing interest and graduate programmes are now mushrooming. Although legal anthropology is not new, law as a field of study has generated a renewed interest by scholars from a variety of disciplines. This fragmentation might be linked to the crisis of anthropology and the concomitant appropriation of ethnographic methods by sister disciplines in the humanities and social sciences. But legal anthropology remains a fascinating field in my view. Legal Pluralism and Governance in South Asia and the Diasporas[2] is perhaps a good example of both the difficulty and the potential of legal anthropology today. It is the outcome of a demanding dialogue among socio-legal scholars and legal anthropologists who have studied South Asian laws and customs.

In the introduction I have quickly outlined the hurdles of this volume, which to many extents mirror the difficulty for legal anthropology to be seen as a comprehensive discipline potentially including also an applied component. The Puducherry workshop that was meant to be an unprecedented meeting between North American and European scholarship on South Asia was cancelled at the last minute after lengthy negotiations. We succeeded to convene a panel on non-state jurisdictions at the Law and Society Conference 2012 in Honolulu but only few authors could join because the initial funds allocated to this project were also withdrawn at the last minute. But in the meantime more authors had sent me their papers, and I realized that we were all talking not only about legal pluralism but also about governance.

Whilst carrying out long-term research in Pakistan I have observed a change in the strategy of many development organizations active in South Asia. For a long time the implementation of the global rule of law has been intended exclusively within and through the state. This state centered approach is giving room now to non-state practices of law and conflict resolution, perhaps as local dressing of an otherwise global agenda. However a polarization remains for what concerns the ontology of law.

At the extremes are the ones who abhor the idea of law beyond or, outside the state; and the ones who argue instead for normative systems irrespective from the state. Legal Pluralism and Governance proposes a way out by shifting the attention from the ontology of law to law as praxis. We have asked ourselves questions like the following: Where and how do social actors initiate their claims? Do the theorizations of law affect access to legal remedies? What is the impact of gender, religion, power, and ethnicity? What makes social actors to decide in their forum shopping?

In the first part of Legal Pluralism and Governance Parashar and Madsen both throw light on the fact that personal laws are increasingly relevant at the level of global governance but in a way as to hamper the process of justice and perpetuating inequalities. They are both critical of legal pluralism which they see as condoning violence and inequalities. Menski and Shah argue instead for the accommodation of South Asian laws in the European legal setting lest the alienation of entire diasporic communities. Both see legal pluralism as a theoretical framework allowing religion to be taken into account as a factor informing the law. Shah argues also that underlying Christian frameworks have distorted personal laws, Muslim law, and shari’ah by superimposing the opposition between state and non-state law. Perhaps the most original contribution of this volume is the inclusion of views against legal pluralism as well as views pro legal pluralism. Hence the need – in my view – to apprehend legal pluralism from an historical perspective.

In the second half of Legal Pluralism and Governance Vatuk shows how new state jurisdictions that have inspired from non-state jurisdiction propose to better cater for women. The paper that I have co-authored with Chaudhary describes how non-state and state jurisdictions are not necessarily antagonists and can be seen as a continuum since they both contribute to governability in Pakistan. On the basis of two case-studies, respectively from Punjab and Gilgit Baltistan, we try to also show that custom should not be confused with personal law and that interreligious fields (as practices relating to more than one religion) as well as interlegal fields deserve further exploration. Shariff explains that the strategies of dispute resolution among the Santals in Bengal are constantly readjusted following the ways social groups position themselves vis- a-vis the hegemonic instances of the state. Sbriccoli describes how law in Rajasthan is neither limited to the state nor constituted by a plurality of fora.

FreemontCalifornia

Hindu Temple in Freemont, California

How and to what extent is “legal pluralism” a useful category to address issues such as gender or indigenous rights? 

This is a very pertinent question in light of what is happening around us. The readers may also be interested in the divergence between Menski and Parashar in Legal Pluralism and Governance. Essentially Parashar is accusing Menski to support a legal tradition that is unfavorable to women and gender rights. This conflict is interesting because both authors argue for the protection of women and other minorities’ rights but from opposite sides: Parashar favors a state centered perspective while Menski is arguing for the accommodation of non-European laws in Europe.

From a broader perspective this conflict could be read as an interrogation on the commensurability between the discourse of anthropology and the discourse of human rights. Marilyn Strathern and Mark Goodale have analysed this at great length and have shown how the combination of anthropology and human rights constitute at the same time a theoretical impossibility and a practical occurrence. The authors of Legal Pluralism and Governance as a whole do show something similar but the scope of the discussion is more specific for being focused more on situations of de facto legal pluralism and less on the ontology of law.

But I would like to respond to your question about the usefulness of the legal pluralism for what concerns gender or indigenous rights by arguing for the need to apprehend legal pluralism from an historical perspective. In the introduction to Legal Pluralism and Governance in South Asia and Diasporas I try to attract the attention to the historical circumstances of the legal pluralism conceived by Pospisil (1979) in his study of Kapaku Papuans and the study of the relationship between law and social institutions in Western societies by Foucault (1979) and Fitzpatrick (1983). At that time talking about law beyond the state was linked with the criticism to social inequalities but with the passage of time the critical stance of legal pluralism was diluted. By now both the legal pluralism characterized in opposition to legal centralism and the legal pluralism as multiplicity rather than a unique sovereign system have been challenged.

Criticism to legal pluralism revolves around the fear that the equal acknowledgment of the diverse practices of law would irremediably inflate the notion of state law and furthermore blurring the supposedly necessary boundaries between state and non-state law. While Woodman (1998) and de Sousa Santos (2002) have responded by questioning the ontological nature of the opposition between state and non-state law, others have preferred to develop models of plurality of laws; i.e. the integration of counter-hegemonic instances within the state (Benda-Beckman and Benda-Beckman 2006).

However, a systematic interrogation on the governance implications of the opposition between state and non-state law today was hardly tackled in academia. I suggest that legal pluralism is a useful conceptual framework to account for praxis of state-law as non-exhaustive and non-state law as non-exclusive.

The idea that I am trying to express might be clearer with an example. When I was studying customary divorce practices at the woman’s initiative among Hindus in central India I was met with resistance both by feminists and orthodox Hindus. The first would fear that I would uphold practices that were against women’s rights and gender equality; the second would fear that I would uphold practices that were against Hindu upper caste principles. It took me more than ten years to show how these customary practices, if reasonably acknowledged, have the advantage to provide an accessible way out to women that would be otherwise trapped in a unhappy marriage.

From a theoretical perspective the study of these practices is illuminating because it becomes clear how often state-law and non-state law overlap and sometimes complement one another.

Interestingly, most recent trends of feminism in South Asia have started to look at personal laws as not being inherently against women rights. Concomitantly, the state has introduced alternative jurisdiction resting on traditional practices in several South Asian countries. However, here too I argue for some degree of scepticism: top down state intervention that incorporate alternative dispute resolution – which are assumed to favour marginalized groups – may or may not work well. Although eventually state – law, in order to survive and perpetuate itself, cannot but taking into account the de facto plurality of the ground realities in South Asia as well as in multicultural Europe, the many failed attempts of blind incorporation should act as a warning in which Parashar’s warning acquires all its sense.

As Nader (2002) and Foucault (2004) and more recently Basu (2012) have shown, new procedures and alternative legal settings are not necessarily transformative of conventional power asymmetries. A new scenario panes out in which the emerging global middle-classes, are not comfortable with abandoning tradition all together and instead prefer to trans-late it into the new global frameworks. South Asian law courts appear to cope well when they allow a degree of flexibility that accepts the (admittedly difficult) coexistence of the black letter law with a varied and sometimes conflicting cultural diversity. But it is not clear whether this works well in Europe. Hence the new research project that I have just submitted for funds: Cultural Expertise in Europe: What is it useful for?

Gilgit 2

A female judge in Gilgit Baltistan.

One of your research interests at the moment is related to women judges. Would you like to tell us more about this research?

My research about the judiciary in South Asia concentrated mostly on Pakistan and was carried out in collaboration with Marius Holden, anthropologist and filmmaker. We travelled to Punjab, Sindh, Balochistan, Khyberpakhtunkhwa and Gilgit Baltistan to observe and film legal proceedings in the courts presided over by female judges.  Our major outcomes so far have been a documentary film entitled Lady Judges of Pakistan[3] and a forthcoming documentary film entitled The Lady Judge of Gilgit Baltistan, which revolves around the only female judge appointed in the region.

According to statistics released by the Pakistan Law and Justice Commission, women now represent more than 1/3 of the judiciary, a figure that would make Pakistan the country with the greatest number of women appointed as judicial officers among the common law legal systems with a Muslim majority. [4] This figure should be taken with a certain amount of caution given the overall scarcity of information throughout the world regarding the modalities of judicial appointments, especially regarding social diversity. It is nevertheless a significant indicator of an increasing awareness on gender representation. At the same time, the Pakistani judiciary has been accused in the national and international press, as well as by rights activists, of blocking criticism in the media by threatening charges of contempt of court and, more specifically related to the focus of this paper, of preventing women judges from pursuing a career at the higher levels of the judicial system. In our research we have refrained from taking side on this highly politicized controversy, and have rather aimed to offering qualitative data that provide the context of the recent massive induction of women into the judiciary in Pakistan.

This research has been fascinating on several extents and we have collected so much data that even after the production of the second documentary film we will still have data to analyse and deliverables to produce. The focus of our research was the everyday practice of legal proceedings and especially the legal discourses that social actors elaborate in support of their claims. Among the data that I keep as the most precious ones are the ones that show the patterns of legal proceedings in the different fields of law. Following the suggestion of female judges we have also explored the ways they respond and adjust to the complex and intersecting demands of Pakistani society as part of the global world, especially with regard to gender equality.

 

In line with our previous research in South Asia, our project was inspired by the feminist approach that criticizes male monopoly of knowledge, in combination with classical studies of power. Our standpoint is the feminist denunciation of the conventional scientific knowledge that has prioritized men’s values as the paradigm of human experience. However, we have also taken into account the criticism that women’s movements in Asia have directed at North American feminists for their exclusive focus on gender. We have furthermore included culture and power as factors that impact social expectations.

I do not wish to disclose here our conclusions but the recurrent pattern in the narratives of the lady judges Pakistan is a quest for an international acknowledgement of their capacity to professionally respond to culture-informed social expectations. From this perspective gender segregation can even become an indicator of accountability and a way for female judges to be accepted even by the most conventional strata of Pakistani society. Women judges in Pakistan express a keen wish for international acknowledgement that takes cultural and religious specificities into account. These claims often become instrumental to global agendas, such as education for profit and post-colonial agendas. The struggle is therefore for the social scientist to adequately make sense of these socio-political and economic dynamics without becoming an instrument.

The international trend is that the representation of women in the legal profession is crucial to a just decision-making process, and the lady-judges of Pakistan are evidently filling the gap. The challenge lies in whether this change will be mainly a formal one or also one that leads to a consistent inclusion of women at all levels of the judiciary.

We suggest that the inclusion of women in the judiciary should be considered an achievement regardless of the issue of whether a gender-balanced judiciary is indeed more accountable and just. Obnoxious arguments making of the obstacles to women a justification for their exclusion have received credit for too long.  However, at a time when academic research is increasingly funded by global development, too many showcases of superficial success pop up as the inflated produce of the unholy alliances between local and international players. We preferred to ethically throw light at both the achievements as well as the failures of the massive appointment of female judges in Pakistan as a multi-faceted social phenomenon, which is also affected by global development agendas and for-profit strategies.

 

[1]Holden, L. (2008) Hindu Divorce: A Legal Anthropology, London: Ashgate.

[2]It was published in 2013 as a special issue for the Journal of Legal Pluralism and as an edited volume by Taylor & Francis in 2014-2015.

[3] The title of this project is inspired by the fact that women judges are addressed as “Lady-Judges” in Pakistan. In similar vein, we also sometimes use the appellation lady-judges. Special thanks go to the true supporters of Lady-Judges of Pakistan for providing access: the Supreme Court, especially the Honorable Chief Justice Ifthikar Chaudhry, Honorable Justices Jawad Khawaja, Tassaduq Jillani (former Chief Justice), Mian Sakirullah Jehan, and Nasirul-Mulk (Chief Justice at the time of this interview), as well as the Federal Judicial Academy, especially the Director General Mr Chawla. Our gratitude also goes to LUMS and to the Babar Ali Foundation for financial support. Special thanks go to the French ANR program 08 GOU 064 Justice and Governance in South Asia, which has financed the first leg of this project and provided most of the technical equipment. However, the true protagonists of this project are the women judges who have enthusiastically taken the lead on many occasions. We would like to thank in particular the following respected Judges: Jazeela Aslam, Zaira Mansoor, Phool Bibi, Sarwat Khosa, Sarwat Mumtaz, Fahrat Rana, and Muneera Abbasi. Many more have participated in this project and their contribution is acknowledged in Lady Judges of Pakistan. Without the collaboration and support of the female judges in Pakistan this project would have been impossible.

[4] Other common law countries with a Muslim majority population are Bangladesh, Brunei, Gambia, and Malaysia.

 

* Header image: Peshawar District Court

 

Bibliography

Basu, S (2012) Judges of Normality: Mediating Marriage in the Family Courts of Kolkata, India, Signs, 37(2), Unfinished Revolutions, A special issue edited by Phillip Rothwell: 469-492.

Benda-Beckman, F and Benda-Beckman, K (2006) The Dynamics of Change and Continuity in Plural Legal Orders, Journal of Legal Pluralism, 53–54: 12–14.

de Sousa Santos, B (2002) Toward a New Legal Common Sense, Cambridge University Press.

Fitzpatrick, P (1983) Marxism and Legal Pluralism, Australian Journal of Law and Society, 1–2: 45–71.

Foucault, M (1979) Discipline and Punish: The Birth of the Prison, Vintage.

Foucault, Michel (2004) Security, Territory, Population, Paris: Gallimard.

Pospisil, L (1979) Legally Induced Culture Change in New Guinea, in Imposition of Law, Burman and Harrell-Bond, eds., 127-144.

Woodman, G (1998) Ideological Combat and Social Observation: Recent Debate About Legal Pluralism, Journal of Legal Pluralism, 42: 48.

 

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