African Customary Law and Common Law in South Africa: Reconciling Contending Legal Systems

ABSTRACT

The multicultural fabric of contemporary South African society is the result of the interaction between various and differing historical narratives, each with their own knowledge system, which led to the emergence of legal pluralism. The common law and African customary law are the major legal systems. A historical- political construction of the common law indicates that it has been influenced by the dominant political power. From an historical perspective, the contraction and expansion of the common law is due to its continuous deconstruction, whereby new knowledge is introduced into the existing system. Section 173 of the Constitution of 1996 provides that the judiciary is now responsible for developing the common law. However, under the new constitutional dispensation, the reconstruction of African customary law that is now on an equal footing with the common law indicates that it is being remodelled to fit the mould of Western legal values. In order to achieve jurisprudential parity between the two systems, the humanistic values of ubuntu should be adopted to infuse African equity into the common law. The realisation of this objective is possible if an interpretative paradigm is recognised as a means of ameliorating the legalistic consequences of the prevalent positivist paradigm. Within an African Renaissance model, adherence to an interpretative paradigm would advance restorative justice, and curriculum transformation along with research and development that resonate African/South African values. This would instil new vigour into the law and the Constitution that is seemingly becoming stulted due to its adherence to Western values.     

Ubuntu. The missing link in the rights discourse in post-apartheid transformation in South Africa

ABSTRACT

A human rights discourse has been central to both the anti-apartheid struggle of South Africa and the country's post-apartheid transformation. But in the drive to extend constitutionally mandated social and economic rights to all South Africans, the approach has had shortcomings. The current neo-liberal economic policy framework constrains policy choices and, in some instances, restricts fair adjudication of rights by the courts. The revival of notions of African Renaissance and indigenous ethnophilosophies, notably ubuntu, which shares the primacy of human dignity of a rights discourse, offers new perspectives. This article looks at the limitations of the human rights discourse and at how ubuntu, as a principled basis for judicial decision making, can contribute to the evolution of the rights discourse in South Africa and lead towards greater realisation of constitutional rights for all.     

The Missing Link: Explaining the Political Mobilisation of Islam in Indonesia

Abstract

Why has an increase in personal piety among Indonesia's Muslims not translated into electoral gains for Islamic political parties? To help explain this conundrum, this article focuses on the role of Indonesia's mass Islamic social organisations, Nahdlatul Ulama (NU) and Muhammadiyah. Using a political economy lens, it argues that control over state resources and the provision of social welfare facilities have helped political parties maintain power over the years and that NU and Muhammadiyah have at times played important mediating roles in this process. Extending this analysis into Indonesia's contemporary politics, it then proposes that since 2004 in particular, the health and education facilities provided by NU and Muhammadiyah are becoming less important to ordinary people in relation to the services provided by the state. It concludes that this trend has weakened the ability of these organisations to channel public support to political parties/candidates and is one reason why Islamic parties have not been able to capitalise on increased religiosity in the social sphere.     

Ubuntu and sumak kawsay: The Inter-Parliamentary Union and the search for a global South humanist paradigm of development

The Inter-Parliamentary Union (IPU) continuously seeks to assert itself as a voice of the peoples of the world in global debates, where geopolitical interests of states, often representing political and economic elites, dominate. This article critically analyses one of the latest contributions to norm setting and idea-generation by the IPU: the concepts of ubuntu and sumak kawsay (also known as buen vivir in Spanish and living well in English) as the basis for the international response to the challenge of failed development strategies globally. This proposal from the IPU arises from the exhaustion of the dominant discourses and concepts underpinning international development. These discourses are based on the colonial model of power and are increasingly being challenged by calls from subaltern voices for ‘unthinking, rethinking and delinking’ from hegemonic illusions. Further, the article argues, the proposed ideals of ‘living well’ and ‘human solidarity’ cannot be implemented within the current colonially inspired humanist paradigm, but require a ‘decolonial’ orientation of global humanism.     

After and Beyond Amoral Familism: The Impact of the Economic Crisis on Social Capital Italian-style

Abstract

The economic crisis that began with the great crash of 2008 has brought about a significant increase in inequality in Italy between individuals and families as well as between different geographic areas. A higher degree of inequality has had negative effects on social capital, reducing so-called bridging and linking elements of social capital while strengthening bonding elements, with a concomitant decline in civic culture. These effects can be dangerous for democracy, in so far as they lower the citizens’ trust in institutions. Since social capital is created as well as destroyed by political and social actors, a relevant question is whether these actors have had a role in transforming social capital into trust in institutions. From an analysis of the changes that have taken place in the Italian political system, it would appear that a significant segment of the political system has destroyed more institutional social capital than it has helped to create.     

Dangerous othering in Meg Vandermerwe’s Zebra crossing: Ubuntu – ideals and realities of the 2010 FIFA World Cup

This article explores the process of ‘othering’ in Meg Vandermerwe’s 2013 novel Zebra crossing. Othering is defined as a discursive practice in which one social group defines another in an inferior way. The novel is narrated by Zimbabwean-born albino, Chipo, who crosses the border into South Africa shortly before the start of the 2010 FIFA World Cup. Far from finding the better life she had hoped for there, Chipo is instead met with prejudice and disdain from locals. Through her portrayal of Chipo’s life as an illegal immigrant in Cape Town, Vandermerwe shows that while apartheid is over, social division and inter-group conflict are not. All the while juxtaposing this reality against the backdrop of the World Cup and the ubuntu ideals it championed but failed to deliver, Vandermerwe exposes how wide the gap is between theory and practice, ideology and lived reality. Highlighting the power of discursive practices like othering to produce real and violent consequences, Vandermerwe warns that if we do not truly embrace the values of forgiveness, compassion and acceptance, we face a dark future in which a cycle of conflict and injustice is repeated instead of being broken.     

The 2014 Thai Coup and Some Roots of Authoritarianism

ABSTRACT

Thailand is the only country currently ruled by a coup-installed military government. The 2014 coup aimed not only to abolish the influence of Thaksin Shinawatra but also to shift Thailand’s politics in an authoritarian direction. While the army authored the coup, the professional and official elite played a prominent role in engineering the coup and shaping political reforms. This article examines some historical antecedents of this authoritarian turn, first in the broad trends of Thailand’s modern political history, and second in the emergence and political evolution of the Bangkok middle class.     

Rural Transformations and Democracy in Northeast Thailand

ABSTRACT

This article analyses the underlying economic, social and political processes that contributed to democratic progress in the rural areas of northeast Thailand. After the 2006 military coup villagers in the region played an important role in anti-coup activities and actively demanded for democratic rule. To defend democratic rule, villagers not only opposed military intervention but also challenged elites, who they considered had masterminded the coup. The coup was a landmark change in terms of the relationship between the highest authority in Thailand and the rural masses. According to the Thai hierarchical order, villagers are regarded as inferior who must obey the elite. Any action that does not conform to this rule is considered morally wrong and to be punished. Why did rural dwellers dare to engage openly in political action that defied the hierarchical order? To comprehend such actions the article examines structural changes in Thailand’s countryside that released villagers from traditional bonds and enabled them to engage in a new form of political mobilisation. It is argued that the emergence of a democratic movement in the rural northeast is a result of two important processes: rural socio-economic transformations and political democratisation.     

The historical emergence and transformation of the Moroccan political party field

Abstract

This article offers a historical analysis of the emergence of the political party field in post-independence Morocco and makes the case for a bottom-up approach that pays close attention to actors’ cultural dispositions, capabilities and the constraints imposed upon them by emergent fields. It starts by briefly introducing the conceptual toolbox of Bourdieusian field theory, underscoring the analytical strengths of the concepts it includes. Drawing on a qualitative analysis of both primary and secondary sources, the article then deploys the aforementioned concepts to trace the historical processes that shaped the emergence of the Moroccan political party field. In doing so, this article suggests a novel approach to the study of political parties that emphasizes the importance of adopting a bottom-up perspective, and the need to go beyond mono-causal explanatory accounts.     

Branding Dissent: Nitirat,Thailand’s Enlightened Jurists

Abstract

This article examines the political role of a group of academic lawyers based at Thammasat University who have been seeking to reform various aspects of the Thai legal and judicial system. The seven-member group started out by criticising the illegality of the 2006 coup. After the 2010 crackdown against redshirt protestors, the group named itself Nitirat and started to hold seminars, draft legal proposals, and campaign to amend various laws. Nitirat has repeatedly challenged the legal and constitutional underpinnings of three key elements of the Thai state: the judiciary, the military, and the monarchy. In doing so, the group has gained a mass following, drawn mainly from those sympathetic to the “redshirt” movement which broadly supports former Prime Minister Thaksin Shinawatra. Informally led by scholar Worajet Pakeerat, Nitirat has created a popular branding which is reflected in huge audiences for public events, and the sales of souvenirs. The article aims to answer the following questions: How does Nitirat combine the roles of legal academic and political activist? How does it differ from the traditional mode of Thai public intellectuals? How significant is the Nitirat phenomenon?     

Islam and politics in a Malay state: Kelantan 1838–1969

Abstract

The contention of this book is that it is necessary to study political activity at the level of the common individual. This position is in clear contrast to the common assumption that individuals are ineffectual in asserting their political rights, unaware of political issues and unimportant in the course of national history. Bowen has aimed his study deliberately at the actions and associations of the commoners involved in the Meiji popular rights movement. He focuses upon three gekka jiken (“incidents of intensified violence”)—the Fukushima Incident of 1882 and the Kabasan and Chichibu incidents of 1884—seeking “to learn why they happened; what they tell about general social, economic, and political conditions; and what consequences they had for society and politics as a whole” (p. 6).     

Le probléme des origines des Assemblées d'États: Réflexions méthodologiques à la lumière de l'histoire sud‐est européenne de l'institution

Summary

This paper examines the relations between republican and democratic forces in Restoration Spain. From the middle of the last century, republicanism was the political movement most clearly involved with the democratization of Spanish politics. After the collapse of the 1873 Republic, the republican movement went through a severe crisis which led to its fragmentation over issues both of principle (federalists against unitarists) and of practice (revolutionaries against reformists). Between 1873 and 1931 Spanish republicanism underwent a marked transformation. The old republicanism was characterized by the modes of political activity of the nineteenth century — the club, the committee, the masonic lodge. The new republicanism, on the other hand, emerged from the first decade of the present century clearly moving in the direction of the modern political parties which finally crystallized out in 1931. Together the Radical and the Reformist parties are a case‐study in the transition between the classical and the modern which perfectly exemplifies the hybrid nature of republican democracy.

Though Spanish republicanism was socially heterogeneous, embracing within its various parts elements of the upper and middle bourgeoisie, substantial sections of the petty, urban bourgeoisie, and a declining, but still numerous, section of the working class, it still needed an alliance with the socialists (the Conjunción of 1910). However, what was most notable about Spanish republicanism was its link with the intelligentsia; it was they who gave it its character and who made the greatest effort to integrate Spain into the most modern currents of European thought.     

The Great Game and the evolving nature of political talk shows on Russian television

ABSTRACT

Much has been written about the specific way in which the Russian government under President Vladimir V. Putin uses television to propagate pro-government views on domestic and international politics by influencing what is aired. This paper examines the first season of The Great Game (Bol’shaya Igra in Russian), a television talk show that appears on Russia’s national television network Channel One, as an example of the government’s effort to shape public opinion. A content analysis suggests The Great Game differs from the typical Russian talk show genre in that it delivers political messages without much entertainment, providing cerebral discussions of issues that nonetheless back up all nine of the core “neoconservative” concepts underlying recent Russian political strategy. This suggests that the Russian government and television executives innovate to determine how best to use television to win over skeptical citizens to the Kremlin’s point of view.     

Political Order in Occupied Societies 1 : Realist Lessons from Germany and Japan

Abstract

The American occupations of Germany and Japan have many lessons to offer the United States today as it contemplates creating new political orders in Afghanistan and Iraq. The lessons that are to be drawn are not, however, the ones that are usually drawn by the current administration and others. First and foremost, a systematic comparison with the German and Japanese experiences clearly shows that the preconditions for democratization are not present in the contemporary cases, suggesting that the United States needs to recalibrate its objectives. Instead of seeking democratization, the United States should try first to create stability, even as it creates at least the institutional forms on which a more pluralistic political system can eventually be erected. The U.S. experience with state building in the Philippines and South Korea may be more relevant today than the German and Japanese cases. Other lessons that can be drawn from the German and Japanese as well as other past U.S. experiences with occupying countries include: the importance of finding a common threat that can unite enough indigenous elites that order can be established; integrating the new states into regional systems; and perhaps most importantly, using the instruments of transitional justice (trials, purges, censorship, etc.) in a fashion calculated to rehabilitate and incorporate supporters of the old regimes while delivering a modicum of justice.     

The reorientation of place legislation in England in the 1690s

Summary

Mediating Conflict in the Swiss Diets of the Fifteenth and Sixteenth Centuries

The Helvetic Confederation developed in the fourteenth and fifteenth centuries as a web of alliances between the most important urban and peasant republics (Orte) in the area of present‐day Switzerland. The only form of mediating conflicts laid down in the alliances was by tribunals of arbitration; but these were never recognised by all the Orte in the web of alliances and proved inadequate in the face of growing antagonisms and coalitions throughout the Confederacy. It became necessary to have recourse to political arrangements involving the interested parties. The forum for these arrangements was the Diets, meetings of deputies of all members of the Confederacy. These more or less represented the most important political forces. Difficulties arose only when there was no consensus in individual Orten and when the official deputies to the Diet represented only the magistrates (Obrigkeiten). In such cases it could happen, especially in matters of foreign policy, that individual groups went their own way and thwarted the decisions of the Diet. It usually took a long time to arrive at a consensus in the Diets because the deputies were bound by an ‘imperative mandate’ and the minority would mostly not accept the will of the majority. In the fifteenth and sixteenth centuries participation and the achievement of consensus were the conditions of joint action of the Helvetic Confederation.     

Paiens unt dreit? Reversed dichotomy and the East in Boeve de Haumtone and Bevis of Hampton

ABSTRACT

It is usually accepted that Saracens are evil and Christians are good in medieval narratives. The common medieval thought towards binary opposition can be pointed out by the Chanson de Roland: ‘paiens unt tort e Chrestiens unt dreit’. However, it seems that there is religious prejudice and ignorance towards the Saracens and their geographical location, the East. The Anglo-Norman Boeve de Haumtone is an early medieval narrative that focuses on cross-cultural interaction within a framework that combines political, social and religious events with geographical exploration both in the East and the West. Similarly, Bevis of Hampton is the Middle English version that reshapes the socio historical and religious events on which their sources have focused. The aim of this article is to explore the idea that another East existed during the Middle Ages. This article will address the question of what relation Boeve de Haumtone and Bevis of Hampton might have to crusading geography. It will be argued how and why the East is not portrayed as a scary, evil place as it is in other contemporary romances, and the evidence for this may be presented by the hero’s preference for living in the East for the rest of his life.     

Introduction: Understanding Thailand’s Politics

ABSTRACT

Thailand’s politics from the mid-2000s has seen considerable conflict and contestation, with seven prime ministers, two military coups, and scores of deaths from political violence. This article, as well as introducing the eight articles in the Special Issue, examines various aspects of this tumultuous period and the authoritarian turn in Thai politics. It does this by examining some of the theoretical and conceptual analysis of Thailand's politics and critiquing the basic assumptions underlying the modernisation and hybrid regimes perspectives that have tended to dominate debates on democratisation. While the concepts of bureaucratic polity and network monarchy shed light on important political actors in Thailand, they have not grappled with the persistence of authoritarianism. In theoretical terms, the article suggests that it is necessary to understand historically specific capitalist development as well as the social underpinnings that establish authoritarian trajectories and reinforce the tenacity of authoritarianism.     

La représentation politique dans les doctrines et dans les institutions au XVIIIème et au XIXème siècles en Europe et aux Etats‐Unis: Une recherche en cours

SUMMARY

In this article Cristiana Senigaglia seeks to elucidate Hegel's conception of the coup d'état. This is necessary because Hegel did not systematically expound his view in this writings, notably it is not treated in his central work, Die Philosophie des Rechts. But a consistent view can be found in his historical and philosophical writings. The article suggests that Hegel did consider there were circumstances in which a use of force to change an existing political order, or lack of it, were justified. He cited the political chaos in early modern Italy, or the constitutional instabilities in France in his own time as examples where the forces of history justified illegal and forceful interventions, be they from above or below, or the intervention of the decisive historical individual, a Caesar or a Bonaparte. To be justified, in Hegel's view, such irregular actions must be consistent with the contemporary underlying forces driving the historical process: they must have the effect of creating a new, acceptable legal order to replace that which is overthrown; and in consequence must result in a new normalization. In order to be justified, and thus to succeed in the long term, the exceptional situation created by the coup must be temporary and limited. Hegel saw Robespierre and Bonaparte as examples where a justified coup was initiated, but then the will of the initiators became an obstacle to a new normalization.     

Urban change in China. Politics and development in Tsinan,Shantung, 1890–1949

Abstract

Over the last decade, in response to the metropolitan, heavily political concerns of the “China's response to” school in Western research on modern Chinese history, there has been a move toward local (regional, provincial, county and urban) studies. A focus on localities has meant increased emphasis on social and economic change and their linkages with political events. A new sub-field has emerged—Chinese cities. David Buck's ambitiously titled Urban Change in China is the first monograph to appear from the urban history sub-field. Its publication should, therefore, be an occasion for assessment of the parameters it assumes for the sub-discipline.     

Reflections on the Mosul problem

Summary

It now becomes possible to summarize our conclusions on the Brussels Line:

1. It does not fulfil the object of British policy completely in that it surrenders to Turkey the control of Assyrian destinies. It does, however, provide for the establishment and security of an ‘Iraq state sufficient to assure our own security.

2. The frontier does not, and cannot, satisfy the linguistic, racial, and religious requirements of a good frontier owing to the chaotic intermixture of these elements in its vicinity.

3. It is not strategically the best frontier for ‘Iraq, but it is sufficiently defensible to guarantee the security of the ‘Iraq state. It is economically sound.

4. It satisfies the political desires of the minorities concerned, except those of the Kurd and Assyrian.