Reconfiguring Law: An Ethnographic Perspective from Botswana

Using two marital disputes, this article examines women's experiences in bringing legal claims regarding family property in Botswana. It highlights the ways women draw on diverse economic and social resources available to them through their differing positions within gendered social networks that shape daily life and affect the ability to access and manipulate a legal system incorporating Tswana customary law and European law. The divergent discourses among women and between women and men document how the administrative and theoretical separation of legal systems does not extend to people's uses of the law in arranging their own lives. This analysis challenges the formalist model of legal pluralism by demonstrating that legal arguments are constructed from the gendered social and economic facts of individuals'lives that traverse the legal categories of European and customary law. It also contributes to feminist legal scholarship by explicitly marking the links among gender, power, and law.     

A review of the legislative reform of customary arbitration in Ghana

Due to the phenomenon of legal pluralism that colonial rule left in its wake, customary arbitration is still a method of dispute resolution in Ghana despite the formal judicial system. But until 2010, customary arbitration practice was regulated only by case law. To put it on a firmer legal foundation and streamline its practice and procedures, the Alternative Dispute Resolution Act 2010 codified customary arbitration as an ADR method. In this article, we examine the legislative reform of customary arbitration in Ghana and assess the extent to which the ADR Act has improved it.     

Modest Expectations: Gender and Property Rights in Urban Mexico

This article examines gender and property in Guadalajara, Mexico, in the light of debates that oppose formal title to the social embeddedness of rights in customary law and assert that titling is bad for women. The article focuses on urban homes, private property, and civil law but finds that qualities regarded as characterizing customary property relations also shape popular understandings of property in urban Mexico. Discussion groups and social surveys in four low-income neighborhoods addressed two aspects of family law and property: whose name should appear on titles, and who should inherit the home. The results show that women, as wives, sisters, and daughters, have a secondary relationship to property. They also suggest that the opposition of individual title to socially embedded rights is a false dichotomy and that generalizing arguments about formalization and especially the negative gender implications of titling risks replicating the universalizing tendencies of Western property models.     

成文法、习惯法与传统中国社会中的土地流转

本文详细考察了宋代至清代有关土地的成文法和习惯法的发展情况 ,在此基础上 ,对成文法和习惯法在农村土地流转方面所造成的影响进行了分析 ,指出习惯法的长期存在是由于其能够起到降低契约达成和执行中的交易费用的作用。同时本文还就法律制度中所反映的土地所有权和使用权思想进行了总结     

A Non-Essentialist Version of Legal Pluralism

The concept of legal pluralism has been touted by many socio-legal scholars as a key concept in the analysis of law. Yet, after almost twenty years of such claims, there has been little progress in the development of the concept. This article will argue that the underlying cause of this lack progress lies in the fact that promoters of the concept have relied upon function-based, essentialist concepts of law. It will describe the problems generated by such concepts and, following this general analysis, will review the versions of legal pluralism articulated by Boaventura de Sousa Santos and Gunther Teubner. The critique of their versions of legal pluralism will lead into the posing of a non-essentialist alternative which avoids the conceptual problems of prevailing versions of legal pluralism, and provides a better tool for purposes of research and analysis of the relationship between law and society.     

Other Phases of Legal Pluralism in the Contemporary World

Since the discovery of the dual structure of state law and minor law in non-Western countries, the scope of the inquiry into legal pluralism has been expanding gradually. This article attempts to prompt this inquiry by identifying hitherto neglected phases of legal pluralism working in the contemporary world. After discussing various kinds of legal pluralism, other types of legal pluralism are suggested for verification by interested scholars, such as legal pluralism in conflict, legal pluralism in subjectivity, a conceptual scheme and an operational definition of legal pluralism.     

Very Long Engagements: The Persistent Authority of Bridewealth in a Post‐Apartheid South African Community

This article examines the persistent authority of lobola, the customary practice for forming marriages in many South African communities. South African marriage rates have sharply fallen, and many blame this on economic challenges completing lobola. Using in‐depth, qualitative research from a village in KwaZulu‐Natal, where lobola demands are the country's highest and marriage rates its lowest, I argue that lobola's authority survives because lay actors have innovated new approaches for pursuing emerging desires for marriage via lobola. I argue that dyadic narratives of marriage increasingly circulate alongside “traditional” extended‐family narratives, especially among the young women who strongly support lobola while yearning for gender‐egalitarian marriages. My argument synthesizes actor‐oriented analyses of legal pluralism with Ewick and Silbey's theorization of lay actors’ role in producing legality to illuminate how lay actors contribute not only to the form and content of different legal systems, but also to the reach of their authority.     

Pluralism and local law in extraterritorial spaces

Based on ethnographic research, this article shows how legal orders are being established in spaces where the state law is absent. The case of refugee camps—often discussed as sites of legal limbo and state of exception—seems to be a space of legal pluralism. However, when observing local legal practices, this pluralism is dissolved into a powerful local camp law. This characteristic type of legal order is produced by social camp-specific mechanisms, camp materiality as well as the remaking of pre-camp structures. Therefore, refugee camps should be viewed as extraterritorial spaces with a high degree of legal autonomy that enables and forces residents to create a local camp law. The findings of this study add to the literature of law and order in camps and to the debates on plural configurations in extraterritorial spaces.     

Legal Design for Practice,Activism, Policy,and Research

This article offers an original integrated introduction to how to think about what design can do for law; where to find examples of legal design; and how to assess it. It identifies clear points of contact between lawyerly concerns and designerly skills, knowledge, and attitudes. It proposes that designerly ways can directly improve lawyerly communication; and that they can also generate new structured‐yet‐free spaces in which lawyers can be at once practical, critical, and imaginative. The article foregrounds the, hitherto unrecognized, diversity of existing legal design practice by drawing examples from across four fields of lawyering: legal practice, legal activism, policy making, and legal research. Emphasis is placed throughout on the need for a critical approach to legal design – that is, for legal design to be thought about and done with a commitment to avoiding, exposing, and remedying biases and inequalities.     

Headscarves, Human Rights, and Harmonious Multicultural Society: Implications of the French Ban for Interpretations of Equality

Through the lens of the French law prohibiting Muslim headscarves in schools, this article examines the way in which societal tensions that arise in the context of religious and cultural pluralism are translated into legal discourses relating to human rights and equality. It explores the way in which the law is rooted in France's broader sociopolitical structure and history and contrasts it to the United Kingdom and Turkey. It proposes that the law is based on an anachronistic, formal interpretation of equality that is inappropriate for addressing the inevitable cultural diversity of modern French society, and through its permeation into law and policymaking more widely, it is a primary cause of the heightened social tensions involving the Muslim minority. An assessment of the legitimacy of a law that restricts minority groups' cultural practices in this way in any society should be based on a substantive interpretation of equality and should necessarily involve an active endeavor to understand the meanings of those cultural practices for those groups within their distinct context. Upon this foundation, law and policy can be developed in a way that better reconciles the pluralism of modern society with the common objectives of social harmony, stability, and tolerance.     

Indigenous Peoples and Family Law: Issues in Aotearoa/New Zealand

This article provides a glimpse into how historical and currentlegislation has attempted to grapple with the practice of customaryfamily law by the indigenous peoples of Aotearoa/New Zealand.It focuses on examining family law in two contexts: marriageand property ownership; and children and legal parenthood. Theanalysis provides an interesting insight into the interplaybetween customary law and statute law. The impact of colonizationupon indigenous peoples and the practice of their law, and howgovernments today choose to recognize and provide for indigenouspeoples is a policy issue prevalent in many of the British colonizedlands. This article concludes that a comprehensive review ofthe nature and extent to which legislation should provide forMaori customary law is required in Aotearoa/New Zealand. Thehaphazard approach of current years is insufficient.     

Socio‐legal Studies in France: Beyond the Law Faculty

This article is the third in an occasional series dealing with the development, current status, and future of socio‐legal studies in selected countries. It follows articles by Kim Economides (Aotearoa/New Zealand) and Harry Arthurs and Annie Bunting (Canada). In this article we argue that in France one can identify work that corresponds to the key strands of socio‐legal research in Anglo‐American societies but that ‘socio‐legal’ as a category of research and scholarship does not have the presence it has in the United Kingdom. French law faculties continue to be strongly shaped by a traditional disciplinary orthodoxy rooted in a highly and distinctively structured form of doctrinal analysis. In the first part, we explain the relatively limited presence of socio‐legal studies in French law faculties in terms of the historical and institutional mechanisms by which disciplinary closure has been created and maintained around traditional orthodoxies. But in the second part we will trace the presence – predominantly outside law faculties – of significant fragments of socio‐legal practice in the scholarship of law and allied disciplines.     

中国企业海外购置不动产的法律风险防范———尼日利亚土地交易理论与实践

随着中国企业对非洲的投资日益增长,在非洲购买不动产发展实业的案例也越来越多。由于殖民地历史和当地习惯法的双重影响,非洲国家规制不动产交易的法律呈现出多种样态并存的现象。巨额的交易价格和资产的不可移动性致使在非洲投资不动产存在各种风险。如何从法律层面控制和防范风险成为中国企业海外投资不动产的重要课题。,以中国企业在尼日利亚购买土地为实例④,探讨尼日利亚的土地市场、契据交付、产权登记、土地法律渊源、产权移转流程、合同规则等理论及操作实践,旨在为在尼日利亚投资的中国企业和个人提供法律指引,降低在当地投资的法律风险。     

Mediation,financial remedies,information provision and legal advice: the post-LASPO conundrum*

The near-total collapse in numbers of solicitors providing legal advice and assistance to publicly-funded clients attempting to settle private family law issues through mediation since the legal aid reforms implemented in 2013 raises important questions about how, if at all, clients in mediation can receive legal information and advice other than from lawyers in financial cases following divorce. This article explores, in a preliminary way, this aspect of mediation practice, drawing on small-scale qualitative data from a study conducted shortly prior to the legal aid reforms concerning the settlement of such cases. It explores how mediators then approached their (permissible) function of providing clients with legal information and how they dealt with cases where they felt that the proposed outcome was particularly unfair to one party or unlikely to be endorsed by a court, and asks how mediation practice – and legal practice – may come under pressure to change in this brave new world.     

Legal education in Nigeria: an evaluation of the recruitment practice for the teaching of law as a career

This article makes a critical assessment of legal education in Nigeria, focusing on the standard of hiring for the teaching of law as a career in the country. Legal academics are hired based upon an accreditation standard that requires a vocational qualification determined through a call to the Nigerian Bar. The article argues that making a vocational qualification a criterion for academic appointment – apart from other achievements demonstrated through higher law degrees – inhibits innovation in teaching and learning and needs to change. This change is premised on three reasons: the growth of interdisciplinary legal scholarship; the trend in the legal marketplace; and the correlation between a law faculty and a department of religion. And it concludes with some proposals to think about for a more scholarly approach towards the teaching of law within Nigerian academia. The aim of this article is to inform the essential dichotomy between legal scholarship and practice, and the transnational aspirations of legal academics, for those involved in the development of law teaching and study, as well as those concerned with educational policy and administration around the world.     

国际法在欧洲国家的适用问题研究

欧洲是国际法的发源地,关于国际法与国内法关系的学说最早于英国出现。国际习惯法与国际条约是国际法的主要渊源,考察欧洲国家适用国际习惯法与国际条约的法律规定与实践,国际法在欧洲国家有不同的适用问题。     

Jurisdiction in Trans Health

This article utilizes a novel framework to analyse the contested boundaries between law and medicine. Bringing theoretical and empirical insights together, it expands recent socio-legal scholarship on jurisdiction. Jurisdictional analysis is conducted in an under-researched area of health law – namely, the accessibility of trans-related health care. The article draws upon the first qualitative research project to assess the impact of self-declaration of legal gender status in Denmark. This was adopted in 2014, at the same time as access to hormones and surgeries was centralized and restricted. The combined impact of these reforms disappointed the trans people interviewed, which demonstrates the importance of identifying how legal and medical norms interrelate. Jurisdictional analysis helps to illuminate how law was used to develop and protect professional competencies. Such insights will be valuable for researchers interested in the potential of self-declaration, and for scholars of health law and socio-legal studies more generally.     

Traditional Local Justice,Women’s Rights,and the Rule of Law: A Pluralistic Framework

The paper focuses on the application of a particular conception of the rule of law to situations characterized by traditional local justice and legal pluralism. While in the twentieth century international rule‐of‐law programmes were directed almost exclusively at state legal system, they have recently begun to take into account traditional local justice, namely, those institutions which in many world regions represent the main form of effective justice. Starting with a review of the positive and negative aspects of traditional local justice from a rule‐of‐law perspective, the paper underlines the widespread lack of protection of human rights, particularly of women’s rights. Discussing vertical rule‐of‐law functions in contexts of legal pluralism the paper stresses the advantages of an approach to the promotion of the rule of law based on mutual recognition and influence between different legal authorities and sources. It is argued that this “interactive” approach appears best suited to the complex frameworks of relations that characterize present‐day systems of deep legal pluralism. Finally, the paper underlines the correspondence between this approach and a conception of the rule of law as an ideal framework of plural interactions characterized by the limits imposed on the law by the law itself, and it discusses its advantages from the perspective of human rights and women’s rights promotion.     

Religion, State Power, and Domestic Violence in Muslim Societies: A Framework for Comparative Analysis

This article focuses on the issue of domestic violence in Muslim societies in the Middle East, Africa, and Asia. The analytical framework is comparative, emphasizing four factors and the interplay among them: shari'a (Islamic law), state power, intrafamily violence, and struggles over women's rights. The comparative approach historicizes the problem of domestic violence and impunity to consider the impact of transnational legal discourses (Islamism and human rights) on "local" struggles over rights and law. The use of shari'a creates some commonalities in gender and family relations in Muslim societies, notably the sanctioning and maintenance of male authority over female relatives. However, the most important issue for understanding domestic violence and impunity is the relationship between religion and state power. This relationship takes three forms: communalization, in which religious law is separate from the national legal regime; nationalization, in which the state incorporates religious law into the national legal regime; and theocratization, in which the national legal regime is based on religious law.     

Winnowing the chaff out of the grains: the intermixture of customary law and spiritualism in Ghana

Belief in the supernatural runs so deep in the cultural lives of Ghanaians that customary law – ‘the rules of law, which by custom are applicable to particular communities in Ghana’ – has not been spared its influence. This article asserts that state sanctioned enforcement of superstition inspired customs violates the fundamental constitutional value of freedom of conscience relative to persons who do not subscribe to such beliefs in the supernatural. But in order to accommodate the twin state interests of preserving customary laws and respecting the freedom of conscience, this article proposes the development of a body of customary laws devoid of superstition. It sets out to discuss why this idea is imperative and how it can be achieved.