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JOURNAL OF LEGAL PLURALISM
and Unofficial Law
NUMBER 60 / 2010
SPECIAL ISSUE:
HUMAN RIGHTS AND LEGAL

PLURALISM
GUEST EDITOR: YÜKSEL SEZGIN
HOW TO INTEGRATE HUMAN RIGHTS INTO

CUSTOMARY AND RELIGIOUS LEGAL
SYSTEMS?
Yüksel Sezgin
A ‘TRIBAL’ WOMEN’S FORUM IN SOUTH

RAJASTHAN, INDIA
Mengia Hong Tschalaer
HUMAN RIGHTS PROMOTION IN POST-

CONFLICT SIERRA LEONE
Giselle Corradi
INDIGENOUS JUSTICE SYSTEMS IN

LATIN AMERICA
Kimberly Inksater
DEEP LEGAL PLURALISM IN SOUTH AFRICA

Christa Rautenbach
BOOK REVIEW
Milena Stefanova, Nicholas Menzies
and Unofficial Law
POLICY
The Journal of Legal Pluralism and Unofficial Law (JLP) is a refereed, independent, inter-disciplinary,
international journal devoted to scholarly writing, documentation, information on current developments, and
communications about all aspects of legal pluralism and unofficial law anywhere in the world and at any
time. Issues 1-18 bear the name African Law Studies.
MANUSCRIPTS
Manuscripts for the Journal of Legal Pluralism should be submitted to the editor-in-chief:
Gordon R. Woodman
School of Law, University of Birmingham
Edgbaston, Birmingham B15 2TT
United Kingdom
Fax: (+ 44) (0)121 414 3585
Email: G.R.Woodman@bham.ac.uk
or to one of the associate editors. Unless the editors are otherwise informed, submission of a manuscript
implies the undertaking that it is not currently being considered by another journal and that if accepted it
will be available for publication.
Manuscripts must conform to the style and other instructions contained in the JLP ‘style sheet’ (to be found
on the JLP web site under the title ‘Author guidelines’), and should generally be submitted in electronic
form.
SUBSCRIPTIONS
Subscriptions to the Journal of Legal Pluralism are currently €29.90 per number for individuals. Two
numbers are published each year, the two amounting to approximately 400 pages. From nr. 49 (2004) the
Journal has been published by LIT Verlag, Münster-Hamburg-Berlin-Vienna-London, whose address for
orders is Grevener St./Fresnostr.2, D-48159 Münster, Germany, Fax (+49) (0)251 23 19 72, vertrieb@lit-
verlag.de.
Back numbers of African Law Studies and the Journal of Legal Pluralism to nr. 48 are available from
William S. Hein & Co., Inc., 1285 Main Street, Buffalo, New York 14209-1987, USA..
INDEXES AND DATABASES
Articles appearing in the Journal of Legal Pluralism are indexed in the principal legal and social science
indexes and online data-bases. It is planned to make available the full text of all articles published more than
two years previously on the website of the Journal of Legal Pluralism at www.jlp.bham.ac.uk . Currently
the site contains the full text of all articles in nrs. 19 to 54, and abstracts of articles in nrs. 43 to the
current number.
CITATION
The Journal of Legal Pluralism and Unofficial Law should be cited as: Journal of Legal Pluralism.
- iii -
EDITOR-IN-CHIEF
GORDON R. WOODMAN, Law, University of Birmingham
ASSOCIATE EDITORS
RICHARD L. ABEL, Law, University of California, Los Angeles

FRANZ VON BENDA-BECKMANN, Max Planck Institute for Social Anthropology, Halle/Saale
ANNE GRIFFITHS, Private Law, University of Edinburgh
JOHN GRIFFITHS, Sociology of Law, University of Groningen
RICHARD ROBERTS, History, Stanford University
FRANCIS G. SNYDER, European University Institute, Florence
EDITORIAL ADVISORY BOARD
ELS BAERENDS SALLY ENGLE MERRY

Sociology of Law, University of Anthropology, Wellesley College
Groningen SALLY F. MOORE
KEEBET VON BENDA-BECKMANN Anthropology, Harvard University
Max Planck Institute for Social LAURA NADER
Anthropology, Halle/Saale Anthropology,
DONALD BLACK University of California, Berkeley
Sociology, University of Virginia FILIP REYNTJENS
MARTIN CHANOCK African Law and Politics,
Legal Studies, LaTrobe University University of Antwerp
MARIE-CLAIRE FOBLETS SIMON ROBERTS
Social and Cultural Anthropology, Law, London School of Economics
Catholic University of Leuven ADRIAN VAN ROUVEROY VAN
DAVID M. ENGEL NIEUWAAL
Law and Social Policy, State University African Studies Centre, Leiden
of New York BART RWEZAURA
MARC GALANTER Law, Open University Tanzania
Law and South Asian Studies, Uni- BOAVENTURA DE SOUSA SANTOS
versity of Wisconsin Economics, University of Coimbra
CAROL GREENHOUSE RÜDIGER SCHOTT
Anthropology, Indiana University Ethnography, University of Münster
Bloomington ROGER SOUTHALL
PHILLIP H. GULLIVER Political Studies, Rhodes University
Anthropology, York University FONS STRIJBOSCH
ROBERT KIDDER Catholic University of Nijmegen
Sociology, Temple University JACQUES VANDERLINDEN
ETIENNE LE ROY Law, Free University Brussels
CNRS, Paris RICHARD WERBNER
Anthropology,
University of Manchester
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CONTENTS
FROM THE EDITORS vii
ABSTRACTS OF ARTICLES ix
ABOUT THE CONTRIBUTORS xiii
INTRODUCTION TO THE SPECIAL ISSUE

Yüksel Sezgin, Guest Editor 1
HOW TO INTEGRATE UNIVERSAL HUMAN RIGHTS

INTO CUSTOMARY AND RELIGIOUS LEGAL SYSTEMS?
Yüksel Sezgin 5
WOMEN ENTERING THE LEGAL LANDSCAPE:

NEGOTIATING LEGAL GENDER REFORMS IN
A ‘TRIBAL’ WOMEN’S FORUM IN SOUTH RAJASTHAN, INDIA
Mengia Hong Tschalaer 41
HUMAN RIGHTS PROMOTION IN POST CONFLICT SIERRA LEONE:

COMING TO GRIPS WITH PLURALITY IN CUSTOMARY JUSTICE
Giselle Corradi 73
TRANSFORMATIVE JURICULTURAL PLURALISM:

INDIGENOUS JUSTICE SYSTEMS IN LATIN AMERICA AND
INTERNATIONAL HUMAN RIGHTS
Kimberly Inksater 105
DEEP LEGAL PLURALISM IN SOUTH AFRICA:

JUDICIAL ACCOMMODATION OF NON-STATE LAW
Christa Rautenbach 143
BOOK REVIEW
International Council on Human Rights Policy, When Legal Worlds Overlap:

Human Rights, State and Non-State Law. Geneva: ICHRP. 2009.
Milena Stefanova and Nicholas Menzies 179
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2010 – nr. 60
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FROM THE EDITORS
We are delighted to publish this Special Number on Human Rights and Legal
Pluralism. The articles are derived from papers delivered at the Zürich conference
of the Commission on Legal Pluralism which took place in August and September,
2009. The Guest Editor, Yüksel Sezgin, whose considerable efforts have brought
this to fruition, has also written the Introduction, in which he explains the
importance of this topic in different fields of theory and practice today.
The next international conference of the Commission will be held in Cape Town,
South Africa, from 8 to 10 September 2011. With the central theme Living
Realities of Legal Pluralism, it will be organised in cooperation with the Centre for
Legal and Applied Research (CLEAR), the Research Chair in Customary Law,
and the Chair for Comparative Law in Africa, all at the University of Cape Town
(UCT). Full details may be found on the website of the Commission at
www.commission-on-legal-pluralism.com, and also on the website of the UCT
conference management centre at http://www.pluralismconference2011.co.za/.
Gordon Woodman
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2010 – nr. 60
____________________________________________________________________
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ABSTRACTS OF ARTICLES
JLP 60: 5-40
HOW TO INTEGRATE UNIVERSAL HUMAN RIGHTS INTO

CUSTOMARY AND RELIGIOUS LEGAL SYSTEMS?
Yüksel Sezgin
Customary religious legal systems have been historically utilized in various areas,
from fighting against crime to such mundane affairs as setting the price of goods
and services in the market place or regulating personal and familial relations.
Against this background, the present study focuses its lenses exclusively on so-
called personal status systems as quintessential examples of customary religious
legal systems in the contemporary world. In this context the article first addresses
the question of why modern nation-states such as Israel, Egypt, and India still
continue to employ pluralistic personal status systems and differentiate among their
citizens despite the fact that they were originally founded on premises of non-
discrimination and equal treatment. Secondly, the study explains how pluralistic
organizations of law and justice affect the fundamental rights and freedoms of
individuals living under such systems; how they cope with limitations imposed
upon their rights by communal/religious institutions; and what tactics and
strategies they use to navigate through the maze of personal law. Lastly, after
demonstrating what approaches have been successfully used to bring about changes
in the context of Israeli, Egyptian, and Indian personal status laws, the paper
identifies key lessons and recommendations for the purpose of helping human
rights activists, donors and members of programmatic communities who design
intervention mechanisms and tools to incorporate universal human rights standards
into customary and religious systems around the world.
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2010 – nr. 60
____________________________________________________________________
JLP 60: 41-70
WOMEN ENTERING THE LEGAL LANDSCAPE:

NEGOTIATING LEGAL GENDER REFORMS IN A ‘TRIBAL’
WOMEN’S FORUM IN SOUTH RAJASTHAN, INDIA
By studying the actual functioning of an unusual new ‘tribal’ women’s forum this
paper analyses how poor women of the Meena community in rural south Rajasthan
reshape the complex landscape of legal pluralism in rural India. Based on
empirical material, collected during six months of field research, the paper
examines whether, how and to what extent gender equality and gender justice can
be realised in a new hybrid legal body such as the “Social Reform Committee”.
The case study cautions against the evaluation of institutions such as this based on
western liberal or feminist criteria. It argues that the struggle in the establishment
of individual rights and gender equality have to be seen in a context where
women’s lives are intertwined with their families and communities, and where
abstract citizenship rights do not exist. A focus on legal pluralism offers an
opportunity to explore the formulation of alternative norms and the use of new
institutional arenas in current attempts to transform gender relations. A body like
the women’s forum presents an accessible local arena for the negotiation of
gender-just reforms. It is equally an innovative alternative to ‘modern’, expensive
and ineffective state courts as well as to corrupt and male-dominated ‘traditional’
caste councils (pânchayats).
JLP 60: 71-100
HUMAN RIGHTS PROMOTION IN POST CONFLICT

SIERRA LEONE: COMING TO GRIPS WITH PLURALITY
IN CUSTOMARY JUSTICE
Giselle Corradi
Improving ‘access to justice for the poor’ features high on justice sector reform
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ABSTRACTS OF ARTICLES
____________________________________________________________________
agendas in post conflict sub-Saharan Africa. This results in increased attention for
the role of customary structures of dispute resolution at the grassroots. At the same
time, it raises the challenge to address possible areas of tension between customary
justice and human rights. Based on a case study in Sierra Leone, this article
explores the scope, reach and limits of interventions that aim at promoting human
rights within customary justice. The paper shows that the latter is multi-layered,
including different actors and approaches for the maintenance of local order, with
some forums adjudicating according to customary rules and others favoring
mediation and the achievement of a negotiated solution. It argues that most
interventions tend to focus on official customary justice providers and the
identification of customary rules, while ignoring or at best indirectly targeting non-
official actors and practices. It concludes that more attention is needed to plurality
in customary justice, both in terms of the multiplicity of actors that play a role at
grassroots level, the different approaches they follow for the resolution of
conflicts, and the particular challenges and opportunities they present for the
promotion of human rights locally.
JLP 60: 101-137
TRANSFORMATIVE JURICULTURAL PLURALISM:

INDIGENOUS JUSTICE SYSTEMS IN LATIN AMERICA
AND INTERNATIONAL HUMAN RIGHTS
Kimberly Inksater
The author proposes an approach to legal pluralism, termed transformative

juricultural pluralism, which would facilitate the resolution of tensions between
international human rights norms and indigenous justice practices. The paper
examines theoretical models of legal pluralism, the normative basis for the
autonomy of indigenous peoples’ justice systems, and tensions with international
human rights norms related to physical integrity. To advance her innovative
approach she analyzes the application of corporal sanctions and the related
international instruments and jurisprudence. She argues that corporal sanctions
such as lashings and stocks, as applied within some indigenous justice systems in
Latin American countries, may be acceptable within transformative juricultural
pluralism that calls for respect for autonomy of indigenous law, respect for
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2010 – nr. 60
____________________________________________________________________
cultural difference and cultural incompleteness and the existence of a cross

juricultural dialogue mechanism to define intercultural norms for national
application by all juridical systems that coexist within a state.
JLP 59: 139-172
DEEP LEGAL PLURALISM IN SOUTH AFRICA:

JUDICIAL ACCOMMODATION OF NON-STATE LAW
Christa Rautenbach
South Africa has a diverse society where individuals and groups have different
backgrounds, religions, cultures, preferences, customs and usages. The mixed
character of the South African legal system allows for a limited form of legal
pluralism where either the common law or the African customary law is applied
depending on the circumstances. Although the South African Constitution creates
the possibility for legislative recognition of other cultural or religious systems of
personal and family law, such recognition has not happened. For various historical
and other reasons South African society remains splintered along cultural and
religious lines, a situation which creates the ideal breeding-ground for deep legal
pluralism in South Africa. The phenomenon of deep legal pluralism gives rise to
unique legal challenges, most notably in the area of human rights. From time to
time, individuals from cultural and religious communities living under their own
legal systems, approach the South African courts for human rights protection. This
contribution focuses on the way in which the South African courts have been
dealing with the claims of the Muslim community to have aspects of their family
law recognised or protected and attempts to draw a parallel between the cases
delivered during the apartheid era and those after it. It is argued that the
judiciary’s accommodation of religious and cultural diversity is contributing to the
phenomenon of deep legal pluralism in South Africa.
- xii -
ABOUT THE CONTRIBUTORS
Giselle CORRADI is a Ph.D. candidate at the Human Rights Centre, Ghent

University Law School. She was born in Buenos Aires, where she obtained a
Bachelor in Law degree. She started specializing in legal anthropology during her
work for a Masters in Comparative Studies of Culture at Ghent University. She
developed an interest in development studies in the course of her work as a
consultant in fair trade initiatives in Peru and Guatemala. Currently she combines
these three academic domains in her research ‘Addressing Traditional Law in Post
Conflict Legal and Judicial Development Aid in sub-Saharan Africa’, focusing on
the relationship between human rights, legal pluralism and justice sector aid in
Sierra Leone and Mozambique.
Mengia HONG TSCHALAER was born 1978 in Zürich, Switzerland. She is

currently a PhD candidate at the Department of Social Anthropology, University
of Zürich, and a Research Fellow at the Columbia Law School in New York. She
graduated with an MA in social anthropology, international law and East Asian art
history from the University of Zürich in 2007. Her Master’s thesis focused on an
indigenous or ‘tribal’ women’s court in Southern Rajasthan, where she
investigated the (re)production of gender relations and kinship norms, as well as
their contestation, within the complex landscape of legal pluralism in rural India.
Her PhD dissertation deals with issues of Islamic family law, gender, and
modernity in the city of Lucknow in northern India. The focus is on the processes
of gender construction within state- and non-state Muslim legal institutions. In
particular the thesis aims to study the ways Muslim women currently further
gender equity and women's rights within Shariat law. It highlights the workings of
an unusual new institution, the All India Muslim Women’s Personal Law Board,
set up recently in 2005 by progressive Muslim women This dissertation project is
supported by a grant from the University of Zürich within the framework of its
interdisciplinary postgraduate school in gender studies. Her academic focus is on
legal pluralism in the area of family laws, gender, identity politics and the state in
India. She has conducted extensive field-research in Udaipur (Raj.) and Lucknow
(UP), India.
Kimberly INKSATER, a Canadian, has studied in the Social Sciences (gaining a

B. Soc. Sc. Degree at the University of Ottawa) and Law (Bachelor of Laws,
University of Toronto and Master of Laws, University of Ottawa). Her academic
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2010 – nr. 60
___________________________________________________________________
interests and professional practice in human rights and justice merge together in
her current work, as Executive Director with the Just Governance Group. She has
presented papers on legal pluralism from a human rights perspective at
international conferences in Bolivia and Colombia. Current research projects focus
on how community-based and traditional justice mechanisms respond to violence
against women and also whether they promote peaceful coexistence and at the
same time respect the equality rights of vulnerable individuals.
Nicholas MENZIES is a Justice Reform Specialist at the World Bank. He has

worked at the intersections of plural legal systems as a land and natural resources
lawyer for indigenous communities in Australia, on legal empowerment and access
to justice issues in Cambodia and in providing policy advice to the Papua New
Guinean cabinet across a range of matters, from participatory budgeting and
micro-enterprise development to gender-based violence. He has also worked in
progressive political advocacy, building social movements for political, cultural
and environmental action.
Christa RAUTENBACH is a professor at the faculty of law, North-West

University (Potchefstroom Campus), South Africa, where she obtained the degrees
B Iuris (cum laude), LLB (cum laude), LLB and LLD. She teaches legal pluralism
and law of succession to undergraduate and postgraduate students and is actively
involved in researching issues pertaining to African customary law and religious
legal systems. She has published extensively on these subjects in national and
international journals. She is an Alexander von Humboldt scholar and undertook
several research visits to the Max Planck Institute for Comparative Public Law and
International Law in Heidelberg, Germany. Other research visits have been to the
Van Vollenhoven Institute in Leiden and the School of Oriental and African studies
in London. She is co-editor and co-author a number of textbooks or chapters in
textbooks including: 'Customary Law of Succession and Inheritance.' Pp. 190-246
in Willem A. Joubert, J.A. Faris and Joan Church (eds.) Law of South Africa.
Durban: LexisNexis, 2009; Introduction to Legal Pluralism in South Africa.
Durban: LexisNexis, 2006; and Law of Succession in South Africa. Goodwood:
Oxford University Press, 2009. She is co-editor of the open access electronic
Potchefstroom Electronic Law Journal. Her current research interests include
matters of cultural diversity and cultural governance, and she is a member of the
interest group of the International Association of Constitutional Lawyers
conducting empirical research on the Use of Foreign Precedents by Constitutional
Judges.
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ABOUT THE CONTRIBUTORS
____________________________________________________________________
Yüksel SEZGIN is a visiting assistant professor of women’s studies, religion, and

the social sciences at Harvard Divinity School. His research and teaching interests
include legal pluralism, informal justice systems, religious law, state-society
relations, and human and women's rights in the context of the Middle East, South
Asia, and sub-Saharan Africa. His articles on comparative law, religion, and
politics have appeared in various edited volumes and journals including Studies in
Law, Politics, and Society, Journal of Legal Pluralism (‘Theorizing Formal
Pluralism: Quantification of Legal Pluralism for Spatio-Temporal Analysis’ JLP
50: 101-118, 2004), Review of International Affairs, Turkish Studies, Turkish
Yearbook of International Relations, Insight Turkey, Perceptions, and the Journal
of Comparative Asian Development. He is currently working on a book manuscript
‘Human Rights in the Triangle of State, Law, and Religion’. The manuscript is
based on his doctoral dissertation, which received both the American Political
Science Association and the Middle Eastern Studies Association best dissertation
awards. The project explores the impact of polycentric personal status systems on
human and women's rights, and individuals' responses to violation of their
fundamental rights and liberties under religious institutions by engaging in various
hermeneutic activities. The research primarily relies upon 200 face-to-face
interviews with people from 20 ethno-religious communities and ethnographic data
collected through fieldwork in Israel, Egypt, India and Sierra Leone.
Milena STEFANOVA is the Program Coordinator of the World Bank's Justice for
the Poor program in Vanuatu where she works on issues of land and natural
resource management, access to justice, local governance and service delivery.
Prior to joining the Bank she worked for the Human Rights Office of the United
Nations Integrated Mission in Timor-Leste (UNMIT) and the Crisis Response Unit
of Amnesty International in Washington DC.
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2010 – nr. 60
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- xvi -
INTRODUCTION TO THE
SPECIAL ISSUE
Yüksel Sezgin, Guest Editor
Despite its prevalence in academic circles both as a sociological and political

phenomenon—particularly among anthropologists, lawyers, social scientists and
alike—legal pluralism has long been neglected by international organizations and
donor agencies which have recognized solely the legal system of the state and
systematically refused (on ideological as well as technical grounds) to engage with
non-state or informal justice mechanisms. In recent years, however, we have been
witnessing a resurgence of interest in legal pluralism outside of the academia,
particularly in circles that can be broadly defined as ‘programmatic communities’.
These seem to be going through a major paradigm shift and gradually switching
their lenses away from what Golub (2003) calls the state-centered orthodoxy of
rule of law to non-state law and legal systems.
The United Nations Program for Development (UNDP), for instance, was among
the very first organizations that recognized the significance of informal justice
mechanisms and incorporated legal pluralistic perspectives into its legal
empowerment of the poor initiative that was launched several years ago. Similarly,
the World Bank has established its own program, Justice for the Poor (J4P), which
in a fairly short time has grown into a robust and very productive program that has
not only significantly contributed to the growing legal pluralism and development
literature but has also implemented very successful legal empowerment and access
to justice projects in a number of countries in Africa, East Asia and the Pacific. In
addition to the UNDP and the World Bank’s flagship programs, the United States
Institute of Peace (USIP), the United States Agency for International Development
(USAID) and the International Development Law Organization (IDLO) have also
played a pivotal role in popularizing the concept of legal pluralism among the
members of programmatic communities through their publications and on-the-
ground access to justice projects dealing with the informal sector.
The main reason for the international community’s growing interest in issues
pertaining to customary or informal justice systems is the realization that a
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2010 – nr. 60
___________________________________________________________________
comprehensive approach to economic growth, poverty reduction and human

development entails an engagement with normative orderings beyond the state’s
reach. These constitute the backbone of the wide normative systems that determine
allocation and ownership of natural resources and land titles in many societies in
the developing world. With that understanding, programmatic communities have
increasingly promoted the idea of integrating legal empowerment programs
focused on non-state sectors into broader socio-economic development projects so
that the underserved groups will have greater access to informal justice
mechanisms and be able to utilize them for their individual and socio-economic
well-being. Engagement with non-state legal systems is, however, a double-edged
sword. They can be effective—often much more so than the formal system—in
maintaining peace and order at a relatively low cost. However, non-state legal
systems (tribal, customary, religious etc.) are also known for their lack of
compliance with international human rights norms and standards (e.g., gender
inequality, inhumane, cruel punishments and unfair trials). As indicated by a
recent report on plural legal systems by the International Council on Human Rights
Policy (ICHRP) (a review of which can be found in this volume) the main
challenge for international organizations which have wanted to engage with non-
state justice mechanisms has been ensuring compliance by these polycentric
structures with international human rights standards (ICHRP 2009). In fact,
recognizing the complexity of task at hand, the United Nations (UNICEF,
UNIFEM, UNDP) has recently commissioned an extensive study1 on informal
justice systems and their impact on fundamental rights and freedoms—particularly
those of women, children and minorities—in order to standardize minimum rules
of engagement for UN agencies that interact with various informal justice
mechanisms around the world.
The issue of human rights under informal justice systems has been also on the
agenda of two recent conferences that brought together academics and
representatives of international organizations and donor agencies in Washington
D.C. (2009) and Copenhagen (2010). These well-attended international meetings
have been particularly instrumental in facilitating a broader discussion of legal
pluralism in policy circles and identifying potential areas of interest and
collaboration between academics and practitioners. As many participants indicated,
academic and programmatic communities could greatly benefit from exchange of
ideas and further engagement and cooperation with one another. In fact, this is to a
1
The study is being currently undertaken by the Danish Institute for Human
Rights, and the final report is expected to be made public in early 2011.
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INTRODUCTION TO THE SPECIAL ISSUE
Yüksel Sezgin, Guest Editor
____________________________________________________________________
great extent true. The programmatic community has the human resources,
organizational and fiscal skills while the academic community possesses
intellectual, theoretical, methodological expertise, and is capable of understanding
sociological, ethnographic and political forces that shape non-state justice
mechanisms in various parts of the world. Despite their overlapping interest and
the great potential for collaboration, however, there continue to exist some
profound ideological and philosophical differences between the two worlds, in
addition to persisting methodological and theoretical differences that seem to
hinder further exchange of ideas and cooperation. For example, it is not
uncommon to hear in academic circles a distrusting member cynically questioning
the ‘real' reasons behind the sudden interest of an international organization (e.g.,
the World Bank) in engaging with plural legal systems, or complaining about
methodological shortcomings of a study conducted by programmatic communities.
Similarly, representatives of development agencies often resent the academics
who, they argue, fail to sufficiently grasp the institutional, political, technical and
temporal constraints under which programmatic communities usually operate while
working with informal justice mechanisms.
Thus, against this background, the present volume has been produced as a humble
attempt to bring academic and programmatic communities closer to one another by
bridging the existing philosophical and methodological gaps. To that end, articles
included in the volume deal with the very question of human rights in the context
of plural legal systems through various case studies from a range of countries from
Israel, Egypt, India, Sierra Leone and South Africa to Bolivia and Guatemala.
These highlight not only points of tension between international human rights
standards and local practices but also practical solutions offered by state and non-
state actors in legally pluralistic societies. Within this framework, the overall aim
of the volume is to identify key lessons and offer policy recommendations for the
benefit of practitioners and academics who engage with informal or semiformal
justice mechanisms and encounter the same challenges in other parts of world.
Lastly I should avail myself of this opportunity to thank Prof. Gordon R.

Woodman, Editor in Chief of the Journal of Legal Pluralism, for his
encouragement, generous support and meticulous professional dedication without
which this special issue would probably have not seen the daylight. For this, we,
the authors, are truly indebted to him. Furthermore, in my capacity as the Guest
Editor, I also extend my sincere gratitude to the authors for their hard work,
patience and cooperation that has made the publication process a truly enjoyable
experience for me.
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2010 – nr. 60
___________________________________________________________________
Articles in this volume were originally presented at the 16th International Congress
of the Commission on Legal Pluralism that took place in Zurich from August 31-
September 3, 2009.
Cambridge, MA
December 2010
References
GOLUB, Stephen
2003 Beyond rule of law orthodoxy: the legal empowerment alternative.
Washington D.C.: Carnegie Endowment for International Peace.
ICHRP (International Council on Human Rights Policy)
2009 When legal worlds overlap: human rights, state and non-state law.
Versoix: ICHRP.
-4-
HOW TO INTEGRATE
UNIVERSAL HUMAN RIGHTS
INTO CUSTOMARY AND
RELIGIOUS LEGAL SYSTEMS?
Yüksel Sezgin
Introduction
About 80 % of the people in the developing world, particularly in Asia and Africa,
are believed to be using informal or non-state legal systems which include
traditional, tribal as well as religious jurisdictions. The so-called customary and
religious legal systems1, which will be the main focus of the present study, can
take many forms and shapes depending upon the tradition, locality and prevailing
socio-political conditions. Such legal systems have been historically utilized in
various areas from fighting against crime to mundane affairs such as setting the
price of goods and services in the market place. However, in the modern world,
customary and religious legal systems are most commonly used to regulate
personal status or family affairs. Thus, the present study will exclusively focus its
lenses on so-called personal status systems as quintessential examples of religious-
customary legal systems around the world. Against this background, a personal
1
There is no such thing as a purely sacred or religious legal system that solely
relies upon religious texts, norms and precepts for its source and inspiration. In
reality, all religious legal systems are hybrid systems which throughout ages have
evolved and taken their present form through fusion and entwinement of competing
interpretations of sacred texts, jurisprudence, culture and customs of the people
who resorted to them. Thus, throughout the article such jurisdictions will be
referred to as “customary and religious legal systems”.
© Copyright 2010 – Yüksel Sezgin
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2010 – nr. 60
___________________________________________________________________
status2 system can be defined as a system in which members of various ethno-

religious communities that are specifically recognized as such by central
authorities are subject to the jurisdiction of their own communal norms and
institutions in regard to personal matters such as marriage, divorce, maintenance,
inheritance and so forth. In other words, in such systems there is often not a
unified or a territorial body of family law that is uniformly applied to every citizen
of the land irrespective of his or her ethno-religious background but rather alegal
order organized as a plural system in which a Muslim is subject to Islamic Shari’a,
a Jew to Halakhah, a Christian to Canon Law, a Hindu to Dharmashastra and so
forth.
Plural systems of personal status have been historically employed by imperial

powers to categorize their colonial subjects according to their racial, religious,
sectarian, ethnic and parochial differences (Mamdani 1996; Mirow 2004). Yet,
personal status is not solely an antiquated system of legal and political ordering.
On the contrary, many postcolonial nations from Indonesia to Morocco, which
originally inherited such pluralistic legal systems from their colonial predecessors,
still continue to employ variant forms of personal status in their legal systems. In
other words, some states continue to compartmentalize their societies into ethnic,
religious and racial groupings and forcefully subject their citizens to communal
laws which are fully integrated into state’s legal system and backed by its
enforcement agencies. We can understand why colonial regimes, which often had
a ‘divide and rule’ approach towards their subject populations, may have employed
pluralistic personal status systems, but it is not easy to comprehend why modern
nation-states, which are often constitutionally committed to uphold universal
human rights standards and treat their citizens equally before the law, would
ignore their constitutional obligations and discriminate among their citizens on the
basis of gender, ethnicity and religion by continuing to recognize archaic personal
status laws.
2
At the outset it should be noted that in this study I will adopt a narrower
definition of ‘personal status’ which includes only the matters of marriage,
divorce, maintenance, and succession. Historically, ‘personal status’ has been a
much broader concept that included all matters of family law and succession as
well as religious endowments. Although personal status systems still continue to
exist in many parts of the world today, their content varies widely from one
country to another. Hence, by narrowing down the scope of the concept, I aim to
increase its portability or comparability across the cases analyzed in the article.
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HOW TO INTEGRATE UNIVERSAL HUMAN RIGHTS?
Yüksel Sezgin
____________________________________________________________________
Hence, by closely analyzing the Israeli, Egyptian and Indian legal systems, the
article will first address the question of why modern nation-states continue to
employ pluralistic personal status systems and differentiate among their citizens
despite the fact that they were originally founded on premises of non-
discrimination and equal treatment. Secondly, the paper will also explain how
pluralistic organization of law and justice affect the fundamental rights and
freedoms of individuals living under such systems; how individuals cope with
limitations imposed upon their rights by communal institutions; and what tactics
and strategies they use to navigate through the maze of personal law. Lastly, after
demonstrating what approaches have been successfully used to bring about changes
in the context of religious and customary law, the paper will identify key lessons
and recommendations for the purpose of helping human rights activists, donors
and members of programmatic communities who need to design intervention
mechanisms and tools to integrate universal human rights standards into customary
and religious systems around the world.
Many scholars have considered the survival and persistence of archaic institutions
of personal law as an anachronistic legacy of colonialism or a remnant of a distant
past. According to the proponents of the ‘colonial legacy’ thesis, after
independence, many postcolonial governments, despite their strong desire to unify
their legal system under an overarching network of law and courts, failed to
overcome the resistance of social groups and thereby were forced to continue to
recognize communal jurisdictions which were originally installed by their colonial
predecessors. By the same token, personal status systems persisted because the
disempowered and incapacitated postcolonial governments were unable to
overcome the opposition of non-state forces and establish a uniform legal system
but rather passively acquiesced in the continuation of colonial institutions of
personal law (Benton 2002; Dane 1991; Darian-Smith and Fitzpatrick 1999;
Hooker 1975; Larson 2001; Thompson 2000; Vanderlinden 1989; Young 1994).
However, ‘colonial legacy’ accounts do not suffice alone to explain the reason why
variant forms of personal status continue to exist today, as these explanations often
neglect the centrality of state and the desire of its leaders to control the field of
personal status and turn it into an instrument of their state and nation-building
projects. In fact, a close analysis of the experiences of many postcolonial nations
reveals that various forms of personal status have come into existence as a result
not of historical contingency, but of a dynamic interaction between two powerful
centripetal and centrifugal forces: the ruling elite’s choice of regime type and
ideological orientation on the one hand, and the balance of power between the state
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and social forces on the other.
Postcolonial nations, which inherited such pluralistic legal systems from their
imperial patrons upon independence, faced more or less the same challenges: what
were they going to do with these regimes, which were not necessarily conducive to
building a unified and civic sense of nationhood? Were they going to preserve
them, or eradicate and replace them with completely new bodies of law and legal
institutions? Countries’ responses to these challenges were determined by their
ruling elites’ ideological orientations, and ability to impose their political will upon
social forces after overcoming their opposition, and by the capacity of ethno-
religious groups to resist the government’s interventions in personal status and
preserve their political and juridical autonomy. That is to say, governments’
differing regime choices, ideological orientations, and varying levels of ability to
successfully intervene in societal structures on the one hand, and the ethno-
religious groups’ varying capacity to resist government interventions, on the other,
have led to rise of differing forms and degrees of legal plurality across the
postcolonial world. For example, even the countries (e.g., Israel and Egypt),
which had exactly the same type of personal status under the colonial rule, have
later developed completely different forms of personal status, as the factors (e.g.,
ideological orientation, and relative balance of power between the state and
society), which originally gave rise to formation of personal status systems in
question, have changed and continuously evolved over time.
Regardless of the political and social factors which led to their formation in the
first place pluralistic personal status systems have been reported to be invariably
detrimental to the rights and freedoms of individuals, especially women, children
and religious dissidents; and their harmful effects have been reported to be even
worse in countries where individuals have been provided with no secular
alternatives and forcefully subjected to the jurisdiction of communal norms and
institutions without their explicit consent. However, as the present study will
demonstrate, in response to grave human rights violations and limitations imposed
by communal jurisdictions, many groups and individuals have formed various
hermeneutic and self-ruling communities, and pushed for changes in the internal
structures of personal status regimes. By doing so, they have directly challenged
the legitimacy of states’ meddling in personal status; and contested the validity of
various categories of subjectivity (e.g., ethnicity, gender) by offering deviant
interpretations of officially-sanctioned religious norms and precepts. In fact, the
experiences of many postcolonial nations evidence that the ongoing contestations in
the triangle of state-community-individual have not only exacerbated existing state-
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Yüksel Sezgin
____________________________________________________________________
society crises, but also caused profound ideological divisions in legally pluralistic
societies. That is to say, the field of human rights in many countries has turned
into both a site of resistance and a testing ground where the fate of governments’
attempts to regulate their personal status systems has been ultimately decided by
the people who interacted with these institutions on a daily basis.
Historical and Political Roots of Modern Personal Status Systems
For analytical purposes this study will introduce three ideal-typical3 forms of
personal status based on their degree of plurality or fragmentation: 1) Low-
Degree, 2) Medium-Degree, and 3) High-Degree (Sezgin 2004b). Each category
theoretically corresponds to a different prototypical pattern of recognition and
incorporation of personal status regimes that can be widely found in the
postcolonial world. Moreover, all other things being equal, each category also
attests to convergence of a particular type of regime structure or ideological
orientation with a particular type and magnitude of counteracting social opposition
mounted by ethno-religious communities at a specific time and place.
Many postcolonial nations inherited pluralistic personal status systems, which were
used by imperial powers for identifying and categorizing their subjects into racial,
ethno-religious and tribal groupings. In other words, after independence each
country encountered the very same question: what they were going to do with
these highly discriminatory and fragmented systems. Obviously the prolongation of
these structures after independence would have not only resulted in further
ossification of the colonial categories of race, gender and ethnicity, but also
subverted the attempts of postcolonial leaders to redefine the terms of membership
of the political community. The responses of postcolonial governments to this very
question were first and foremost determined by their choice of regime type and
ideological orientation. For example, inclusionary regimes, which are principally
committed to the idea of building an egalitarian, homogenous and civic citizenry,
have deemed the colonial institutions of personal status inherently inconducive to
3
The ideal types used here as well as the regime typologies introduced below, are
employed for purely analytical purposes. It is extremely rare for states in real life
to fit entirely within a single category and have no common characteristics with
another state belonging to a different category. Instead, at different times countries
will tend more toward one category than another.
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their vision and taken radical steps to reduce their degree of plurality by abolishing
and replacing these structures with territorially-unified systems of law and courts.
Along the same lines, many governments with secular credentials (e.g., the
People’s Democratic Republic of Yemen, Ethiopia between 1974 and 1991, India,,
Tanganyika, Senegal, and the Socialist Federal Republic of Yugoslavia) have also
embraced a similar approach towards religiously-based personal status systems,
and aimed to abolish these structures to lessen the role of religious norms and
institutions in public life (Bennett and Vermeulen 1979; Carson 1958; Cotran
1965; Creevey 1996; Favali and Pateman 2003; Mamdani 1996; Massad 2001;
Prinsloo 1990; Schacht and Layish 1991; Seidman 1978).
In contrast, exclusionary or theocratically-oriented regimes, which propagate the

supremacy of a particular race, ethnicity or religion in a society, have viewed
personal status systems instrumentally and aimed to conserve, and even reinforce,
the pluralistic nature of these structures in order to promote a particular form of
subjectivity and turn their vision of stratified citizenry into reality. In other words,
exclusionary and theocratically-inclined regimes (e.g., South Africa in the
apartheid period, Lebanon, Iran, Pakistan and Israel) have utilized personal status
systems to maintain the ‘purity’ of particular groups by imposing strict rules of
endogamy and banning or officially discouraging mixed-blood unions among
members of different religious, ethnic, and racial groups (Allott 1980; Allott et al.
1969; Bennett and Peart 1983; Berkes 1998; Brubaker 1996; Burman 1983;
Butenschøn 2001, 2000; Chesterman and Galligan 1997; Ghai 1975; Lewis 1968;
Marx 1996; Molyneux 1991; Ortaylı 2004; Smith 1963; Smooha and Jarve 2005;
Wadud 2005; Yiftachel 1999, 1997).
Unlike these ideologically motivated regimes, some postcolonial governments have

been moved by more mechanical considerations in reforming their pluralistic
personal status systems. These regimes are bureaucratic-authoritarian regimes that
are often characterized by a relative lack of ideological interest in personal status
issues. They have rather viewed their pluralistic regimes as an undesired legacy of
colonialism and extra-territoriality which, they thought, had to be completely
wiped out to achieve full independence. In their eyes, the prolongation of colonial
systems of personal status would not only limit the power and reach of the state,
but also compromise the national sovereignty. Thus, these regimes (e.g., Egypt,
Indonesia) have often intervened in their personal status systems with such motives
as a desire to consolide the power of the central administration, increase its
effectiveness, bring an end to the multiplicity of local jurisdictions on national
territory for the realization of full sovereignty, and prevent non-state actors
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Yüksel Sezgin
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(especially religious and traditional authorities) from becoming strongholds of

political opposition and posing an immediate danger to the government (Sezgin
2009, 2004a).
These various motives for intervention have also influenced the choices and means
of reform undertaken by postcolonial governments in regulating their pluralistic
personal status regimes. Broadly speaking, in terms of their stated objectives,
three distinctive categories of reform have been widely undertaken in the
postcolonial world: 1) Normative Reform, which seeks to achieve normative
unification by unifying personal status laws of various communities under a
common civil code that would be applicable to all citizens regardless of their
communal affiliations; 2) Institutional Reform, that aims to reduce institutional
plurality by unifying communal courts under a system of uniform and
hierarchically-structured network of national courts; and 3) Substantive Reform,
that solely aims to change the substance of personal status laws without reducing
either institutional or normative plurality (e.g., reforms prohibiting bigamy or
underage marriages).
Since each type of reform serves a different purpose, regimes with different
ideological orientations would naturally prefer reforms leading to different
outcomes. In fact, the evidence from postcolonial governments suggests that, while
the institutional reform has been mostly initiated by regimes with mere efficiency
or sovereignty considerations (e.g., bureaucratic-authoritarian), normative reform,
which requires a strong ideological commitment on the part of reforming
governments, has been often attempted by ideologically motivated inclusionary or
secular regimes (Bennett and Peart 1983: 147). Substantive reforms, on the other
hand, have been undertaken by all governments-regardless of regime type - often
as a response to pressures from intrinsic and extrinsic forces demanding change in
the field of personal status (e.g., women’s right to divorce, minimum marriageable
age) (Charrad 2001; Massad 2001).
Reforms in personal status or family law never take place in the absence of social
opposition. On the contrary, governments’ interference in the field of personal
status has always drawn the fierce resistance of ethno-religious communities whose
norms and institutions have been targeted by reforms. And the intensity and
severity of that resistance seem to be directly correlated with the type of reform in
question. For example, a close scrutiny of the experiences of postcolonial nations
shows that normative reform has instigated the greatest amount of resistance from
social forces while opposition mounted against institutional or substantive reforms
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2010 – nr. 60
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has been less and relatively easier for governments to overcome. By the same
token, in order to successfully overcome the strong opposition of religious groups
and undertake normative reform, governments must mobilize a greater amount of
their resources and fully support the reform process with an unshakable moral and
ideological commitment. (Anderson 1958; Cotran 1996; Kahn-Freud 1969; Read
1972).4 Hence, given these higher standards and requirements for its success,
normative reform has been extremely difficult to undertake for many postcolonial
governments with limited resources. In this respect, the task for regimes with
inclusionary or secular orientations, which often attempted to undertake both
normative and institutional reform, has been the most difficult, while regimes with
bureaucratic-authoritarian, theocratic or exclusionary orientations had a rather
easier job, as they mostly limited the scope of their interventions to institutional
and substantive reforms.
In brief, postcolonial governments have often viewed personal status systems

instrumentally and attempted to manipulate these pluralistic structures in order to
implement a particular ideological vision and program, while ethno-religious
communities have fiercely resisted the government meddling in personal status and
have tried to preserve their political and juridical autonomy. In the end, these
continuous interactions between various governments and ethno-religious
communities across the postcolonial world have given rise to one of the three
above-mentioned ideal-typical forms of personal status in each country. Each of
these categories attests to the convergence of a particular type of regime structure
with a particular type and magnitude of counteracting societal opposition. For
example, personal status systems with low degree plurality (LDP) have been
mostly observed in countries with strong inclusionary and/or secular inclinations
that have already achieved considerable levels of unification in their systems, but
their attempts at further unification have somewhat stalled in the face of strong
resistance from specific ethno-religious groups. Compared to nations in other
categories, these countries possess the most centralized and unified legal systems,
4
Perhaps another reason why normative reforms have been more difficult to
undertake is that this type of reform is actually a process of double reform, in the
sense that it subsequently entails the undertaking of institutional reform, too.
Particularly in pluralistic regimes where communal laws are directly applied by
communal courts, normative reform cannot be undertaken alone. It has to be done
in tandem with institutional reform, as there cannot be a system in which
communal courts will continue to exist and apply provisions of the same uniform
civil code to members of different ethno-religious communities.
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Yüksel Sezgin
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as they are just one step short of achieving complete legal unification.
Of the cases analyzed in this study, India would best exemplify this ideal-typical
category. Despite its inclusionary and secularist proclivities and strong desire to
enact a Uniform Civil Code (UCC) that would be applicable to all citizens
irrespective of their religious affiliations, the Indian regime has only partially
succeeded in its goal of normative unification; moreover, it completely dropped
the idea of a common civil code after repeatedly failing to surmount the muscular
opposition of the Indian Muslim community. As a result, today the country still
remains as a pluralistic system, albeit to a much lesser degree than six decades
ago.
On the other hand, personal status systems with high degree plurality (HDP) have
been frequently found in regimes with theocratic and exclusionary inclinations. As
such regimes have predominantly viewed pluralistic legal structures as instruments
for realizing their vision of building ethno-religiously stratified societies and
augmenting the role of religious norms and institutions in public life, they have
often preserved and reinforced plural systems of personal status. Nations in this
category have the most fragmented and decentralized legal systems of all, as they
are characterized by high levels of communal autonomy and substantial degrees of
normative and institutional pluralization in the field of personal status.5 Among the
cases that best epitomize this category is Israel, in which fourteen state-recognized
ethno-religious communities run their own communal courts that are staffed with
their own communal judges applying religious laws of their own communities.
Israel has maintained a highly pluralistic legal system that it inherited from the
Ottomans and the British. As shown below, this archaic system was retained
because the founding fathers of the country had deemed it ideologically useful for
preserving the ‘purity’ and ‘supremacy’ of the country’s Jewish citizens while
differentiating and relegating non-Jewish groups to a second-class status (Sezgin,
n.d.).
5
For pure theoretical interest it must be noted that, in some very rare
circumstances, HDP may come about as a result of a balance of power tilting
strongly in favor of societal organizations. For example, in cases of total state
failure, some dominant segments within the society may well take over the state’s
functions and impose a religiously-oriented and highly-pluralized legal system over
the rest of the population in concordance with their ideological objectives (e.g.,
Somalia).
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2010 – nr. 60
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In between these two prototypical forms exist the personal status systems with
Medium Degree Plurality (MDP). This type has been frequently found in
bureaucratic-authoritarian regimes that have been primarily motivated by such
mechanical considerations as achieving bureaucratic efficiency, establishing
control over widely scattered non-state jurisdictions, and weakening the
independent political vigor of religious institutions. In order to succeed in these
objectives, bureaucratic-authoritarian regimes have extensively resorted to
institutional measures to unify the communal courts of various communities under
an overarching network of national courts, while shying away from normative
reforms that were usually undertaken by ideologically motivated governments
which sought to facilitate a secular or inclusionary transformation in their
societies. Although they have usually aimed for institutional reform, bureaucratic-
authoritarian regimes have still encountered the stiff resistance of some small but
powerful groups who opposed the institutional measures employed by the state.
Bureaucratic-authoritarian regimes have usually succeeded in achieving their
institutional objectives to the extent that they have skillfully managed and
overcome the resistance of these groups. Many countries in this category have
inherited highly fragmented personal status regimes, but later drastically reduced
the plurality of legal systems by means of institutional reform.
Of the three cases analyzed in this article, Egypt can be considered a textbook
example of this latter category. Especially, during the reign of Nasser, the
Egyptian regime, largely moved by mechanical considerations, abolished the
religious courts of both Muslim and non-Muslim communities and transferred their
jurisdiction to national courts without undertaking an accompanying reform for
normative unification. In the final analysis, the Egyptian regime, after successfully
overcoming the opposition of communal leaders who were suddenly deprived of
their traditional privileges with the abolition of religious courts, eventually
succeeded in cutting its degree of plurality nearly in half by utilizing institutional
measures.
A Comparative Analysis of Israeli, Egyptian and Indian Personal

Status Systems
Israel inherited the old millet6 system under which the Ottoman and British
6
For more on the Ottoman millet system, see Goffman (1994); Braude (1982); and
Karpat (1982).
- 14 -
Yüksel Sezgin
____________________________________________________________________
imperial authorities granted juridical autonomy over matters of personal status

(e.g., marriage, divorce, succession, maintenance and alimony) to eleven7 ethno-
religious communities in Palestine. Since its inception as an independent nation,
Israel has more or less maintained this highly pluralized and decentralized legal
system, and further extended its limits to include three more communities whose
jurisdictions were not previously recognized under the Turkish or British rule.8
Israel has never attempted to put an end to the multiplicity of religious courts and
unify them under a network of national courts, as Egypt did in 1955. Nor has it
ever attempted to abolish the religious personal status laws and enact a secular and
uniform civil code in their place, as India did in the 1950s. Rather, it has
maintained a highly pluralistic system of personal status in which the religious
courts of fourteen state-recognized communities, staffed with their very own
communal judges who apply religious laws of their own communities, are granted
exclusive jurisdiction over matters of marriage and divorce and concurrent
jurisdiction with the civil courts in regard to issues of maintenance and succession.
The adoption and utilization of the old millet structure came as a logical extension
of Israel’s exclusionary and theocratically-inclined ruling ideology in which
religion has been allowed to play an exceptionally pivotal role in the determination
of the rights and duties of the citizen vis-à-vis the state. According to the ruling
ideology, Israel was first and foremost the state of the Jewish people. Everyone
else was a second class citizen. Against this background, the archaic system of
millet with its strict rules of endogamy has been viewed by the Israeli leaders as a
useful tool for the preservation and homogenization of the Israeli-Jewish identity
and the differentiation of non-Jewish communal identities by building a
7
According to the Second Schedule to the Palestine Order in Council, as amended
in 1939, the following communities were officially recognized by the Mandatory
regime in addition to the Sunni Muslim community: the Eastern (Orthodox)
Community, the Latin (Catholic) Community, the Gregorian Armenian
Community, the Armenian (Catholic) Community, the Syrian (Catholic)
Community, the Chaldean (Uniate) Community, the Jewish Community, the Greek
Catholic Melkite Community, the Maronite Community, and the Syrian Orthodox
Community (Wright 1952: 127).
8
These three communities recognized after the establishment of the State of Israel
are: the Druze Community (1957), the Evangelical Episcopal Church (1970), and
the Bahai Community (1971) (Abou Ramadan 2003: 255; Edelman 1994: 51;
Goldstein 1992: 145; Shava 1981: 239, 247).
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2010 – nr. 60
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hierarchically stratified form of subjectivity that would fully correspond to their

ideological vision.
In brief, the old millet system has been preserved to serve two major objectives: 1)
the protection and homogenization of Israeli-Jewish identity, and 2) the
differentiation of non-Jewish identities. That is to say, the millet system was
further modified by the Israeli government with these two goals in mind. The
primary objective was to create and secure a monolithic Israeli-Jewish national
identity by drawing a single, visible ethnic boundary that would encompass all
Jewish inhabitants of Israel notwithstanding that they differed among themselves
along ethnic, sectarian, linguistic and ideological lines (Woods 2008). The first
step in this direction was taken with the recognition of the jurisdiction of rabbinical
courts along with the religious courts of other communities over matters of
marriage, divorce, maintenance and inheritance in 1947. Judaism has very strict
rules of endogamy. Marriage is permissible only between a man and a woman who
are both halachically regarded as Jewish. In other words, marriage to non-Jews or
Jews whose Jewishness is not vetted by rabbinical authorities is prohibited
(Edelman 1994: 61). In this regard, with its recognition of the monopoly of
rabbinical authorities over marital affairs, the Israeli government aimed to
maintain the purity of the Israeli Jewish-identity and prevent its dehomogenization
through mixed marriages (Friedman 1995: 61). In 1949, the Israeli government
further fortified its position against exogamy by officially declaring that it would
not introduce a provision for civil marriage and divorce that could potentially open
the door to interreligious marriages, and thereby lead to degeneration of the Jewish
identity (Abramov 1976: 194; Segev and Weinstein 1986: 252).
Four years later, in 1953, the government took a much more radical step towards
homogenization of the Israeli-Jewish identity with a new law that abandoned the
earlier principle of voluntary association and forcibly imposed the jurisdiction of
Judaic law and courts on all Jewish residents of the country. Now the jurisdiction
of non-conformist Jewish communities (e.g., Karaites, Samaritans etc.) which had
enjoyed wide legal autonomy under the colonial rule was completely terminated
and the state-run, rabbinical courts, which applied only the Orthodox version of
Halakhah, were elevated to the position of government-backed, status-conferring
institutions to determine the privileges and disabilities of the Jewish citizens of
Israel. In other words, with the passage of the 1953 Rabbinical Courts Jurisdiction
(Marriage and Divorce) Law, Israeli authorities aimed to replace the internal
plurality of Jewish law with a uniform legal structure which, they hoped, would
help create a unified Jewish identity by removing the barriers to mixed marriages
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Yüksel Sezgin
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between Jews with different ethnic, sectarian and theological backgrounds who
migrated to Israel from the four corners of the world. After all, for the success of
the Zionist nation-building project, an Oriental Jew from Yemen and an Ashkenazi
Jew from Eastern Europe had to be able to marry one another without wondering
whether his or her future spouse was a ‘proper’ Jew. And this was precisely what
the Israeli leaders set out to achieve through their interventions in the laws of
personal status during the first decade of statehood (Bentwich 1964: 244; Chigier
1967: 156; Rubinstein 1967: 386; Strum 1989: 488).
The process of homogenization among Israeli Jews logically necessitated the

invention and conservation of non-Jewish identities. In this regard, Israeli leaders
also exploited the existing millet system as an instrument of exclusion and
differentiation. In their eyes, differentiation of non-Jewish identities was not only
necessary to ensure the purity of the Israeli-Jewish identity but also highly
desirable to further divide the native population of Palestine along sectarian, tribal
and ethnic lines for the establishment of an effective regime of control and
domination (Lustick 1980: 133-135). In fact, the number of recognized religious
communities which are legally entitled to run their own religious courts, has
soared from 11 to 14 under Israeli rule. Among these newly recognized
communities, the case of Druze community is particularly indicative of the Israeli
state’s exclusionary purposes in its preservation and modification of the old millet
system. As Ben-Gurion once put it so eloquently, the main objective of the
creation of Druze religious courts was to “foster among the Druze an awareness
that they are a separate community vis-à-vis the Muslim community” (Firro 1999:
94). In the final analysis, the old millet system was utilized by the Israeli state not
only to guarantee the homogeneity of its Jewish population, but also to prevent the
Druze, Christian and Muslim Arab communities from forming an overarching
Arab or Palestinian identity by officially discouraging mixed marriages between
their members.
At the time of its independence, like Israel, Egypt, too, had inherited the very
same millet system from the Ottomans and the British in which the government
recognized the jurisdiction of fifteen ethno-religious communities9 in the field of
9
These communities are: the Muslims, the Copts, both Orthodox and Catholic, the
Melkites, the Greek Orthodox, the Maronites, the Armenian Gregorians, the
Armenian Catholics, the Syrian Orthodox, the Syrian Catholic, the Chaldeans, the
Roman Catholics, the Anglican Protestants, the Karaite Jews and the Rabbanite
Jews.
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personal status. With the passage of Law No. 462 in September 1955, however,
the Egyptian government took a radical step towards institutional unification, and
drastically lowered plurality of its personal status system. The new law abolished
all communal courts including the courts of the Muslim community and transferred
their jurisdiction to national courts where civil judges were now put in charge of
applying the religious laws of parties in matters of personal status (Abécassis and
Le Gall-Kazazian 1992). Yet the institutional reform was not accompanied by
normative reform that would unify the laws of various communities under a
common civil code which could be uniformly applied to all Egyptian subjects
irrespective of their religious affiliations.
The reason for the abstention of the Nasserite regime from normative reform is
that it was primarily moved by such motives as the wish to increase the efficiency
of its central administration and reinstate the sovereignty of the Egyptian state by
terminating non-state jurisdictions, rather than such ideological considerations as
secularizing the public sphere or redefining the provisions of membership in the
political community. In fact, concerns of bureaucratic rationality and sovereignty
were so central to the process that the memorandum explaining the motives for the
promulgation of Law No. 462 read more like a Weberian manifesto than a
document prepared by a military government (Hajjar 1956; Safran 1958).
Although it was not explicitly stated in the memorandum for obvious reasons,
another objective of Law No. 462 was to subjugate the Egyptian ulama and bring
al-Azhar under the firm control of the government (Crecelius 1966: 35). In fact,
by abolition of Shari’a courts, the government was able not only to strip the
members of ulama of their traditional privileges, but also to “break the
independent political power of Islamic institutions so it could use them for its own
[political] purposes” (Crecelius 1980: 65). Since government did not directly
intervene in religious laws of communities by means of normative reform, the
opposition to its measures mainly came from a relatively small group whose vital
interests were endangered by the abolition of communal courts. Most notable
among those who opposed Law No. 462 were members of ulama and leaders of
Christian communities who lost their traditional privileges and status. However,
the Egyptian government successfully neutralized the opposition by co-opting
religious leaders who in turn helped the government carry on its program
uninterrupted by publicly throwing their support behind the regime. Thus, in the
eyes of the Nasserite regime, there simply was no need for normative reform Not
only did it lack ideological motivation and commitment to undertake such a costly
and troublesome process but also the need for it never occurred as institutional
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Yüksel Sezgin
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unification achieved through Law No. 462 was deemed sufficient to attain the
regime’s initial political and bureaucratic goals.
India also inherited a similar model of personal status by the time of its
independence in 1947. However, in terms of the form and degree of its plurality,
the Indian system was already at the point where Egypt ended up after its reforms
in 1955. In other words, thanks to British colonial rule, secular Indian judges at
the national courts were already applying the personal laws of various religious
communities10 in matters of family law as of 1947. Yet, especially in the aftermath
of partition, the persistence of colonial institutions of personal law was considered
a serious impediment to the achievement of national unity by the leaders of
independent India. National unity, Gandhi and Nehru believed, was to be achieved
only through the establishment of a secular state (Galanter and Krishnan 2000). In
such a state, they envisioned, communal and sectarian differences had to be wiped
out and the people of India had to learn to think of themselves, first and foremost,
as members of a composite nation, not as members of a particular religious group
or caste. In this regard, the application of different bodies of law to citizens with
different ethnic and religious backgrounds was simply not helping the cause of
national unity. Hence, the next logical step for the new government was to end the
normative plurality of its field of personal status by enacting a UCC.That desire of
the founding fathers was embodied in Article 44 of the 1950 Constitution which
stipulated that “the state shall endeavor to secure for the citizens a uniform civil
10
The laws of following communities were applied in personal status matters of
their members by the courts of British India: Hindus, Muslims, Christians, Jews
and Parsis. Sikhs, Jains and Buddhist can be also added to this list. Yet, the issue
of whether these communities had historically their own religious precepts and
norms that stood as independent legal systems in their own right is a matter of
great controversy and debate in the literature (Goswami 1994; Jain 2004; Kharak
1998; Mitra 1913,49-82; Singh 1995). Nonetheless, it must be also remembered
that during the colonial period, the laws of these communities were usually
accommodated and applied as part of the customary law and usage in accordance
with the rulings of the Privy Council in London and several high courts in India.
Moreover, some of these communities even came close to being recognized as
independent legal communities and granted certain privileges. In this respect, the
1909 Anand Marriage Act, which legally recognized a particular form of marriage
that had long been exercised among the Sikhs, and the earlier Punjab Laws Act IV
(1872), which had granted formal recognition to customary laws of Punjabi
communities, including that of Sikhs, are particularly worth mention.
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code throughout the territory of India.”
However, today, nearly six decades after the promulgation of the constitution,
India still does not have such a common code applicable to all citizens irrespective
of their religion. This is because Indian leaders have not been able to overcome the
opposition of religious minorities to the idea of a common civil code (especially
the Muslim community), and unify the law once and for all. Instead, they have
carried out a limited version of normative reform that they originally planned by
bringing Hindus, Sikhs, Jains and Buddhists under the purview of a single
territorial law with a hope that it would encourage other communities to follow the
course so that one day the entire country could be brought under the purview of a
UCC. Even though the resultant Hindu Code Bill (HCB) reform of 1955-56
significantly reduced India’s degree of plurality, it was still far from satisfying the
ideological expectations of the secular regime as it was still a communal legislation
in its essence. For instance, under the HCB it was not possible to solemnize a
marriage between a ‘Hindu’, as defined by law, and a non-Hindu.11 That is to say,
the law was not really serving the regime’s secular or inclusionary objectives.
Therefore, the problem before the government was that if India was to be truly a
secular and democratic nation, then it had to allow interfaith marriages and
provide citizens with an alternative civil code of marriage, divorce, and
succession, at least in the interim. In the end, all these considerations led the
government to enact the Special Marriage Act (SMA) in May 1954 while the HCB
was already under consideration in the parliament (Menski 2001). Yet, the
question remains whether the availability of the 1954 SMA and other secular
remedies (e.g., Sections 125-128 of the CrPC of 1973) have really provided Indian
citizens with a protection against the encroachments of communal laws; and more
importantly whether Indian citizens who were presented with these so-called
secular alternatives were any better off than citizens of Israel and Egypt who were
forcefully subjected to laws of their communities without an alternative like the
1954 SMA of India. The next section will answer these questions, while shedding
light upon the impact of personal status laws on human rights in these three
countries.
11
Persons professing Hinduism, Sikhism, Jainism, and Buddhism were declared to
be ‘Hindus’ for the purposes of the HCB. In subsequent amendments, the
definition of ‘Hindu’ was further expanded to include any person who was not a
Muslim, Christian, Jew or Parsi by religion (Elst 2002).
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Impact of Personal Status Systems on Individual Rights and Liberties
It would plainly be wrong if matters of personal status were merely analyzed from
an angle of judicial consolidation or nation-building, as they are intimately related
to the rights and freedoms of the individuals who live under such systems. In other
words, questions of who can marry whom or whether one could obtain a divorce
are not just questions of identity or ‘border stones’ demarcating communal
boundaries. For a Coptic Orthodox woman who needs to change her denomination
to be able to divorce her husband in Egypt, for a Russian Jew forbidden to marry
within Israel because not considered a ‘proper’ Jew by the rabbinical authorities,
or a Muslim woman in India who is stripped of her legal entitlements to
maintenance by an unholy alliance between self-proclaimed leaders of her
community and the government, these questions are of utmost significance, as they
often turn the lives of millions of people upside down and cause years of suffering
and tragedy.
Regardless of their form or degree pluralistic personal status systems may be said
to be invariably detrimental to the rights and freedoms of individuals who are
subject to their jurisdiction. This is because personal status systems institutionalize
the discriminatory patriarchal structures and gender inequalities of major religious
traditions by giving them formal recognition and state-sanctioned backing.
Particularly, in countries where citizens are forcefully subjected to the jurisdiction
of religious courts and norms without their clear consent, and where no alternative
civil or secular procedures are made available for citizens who do not want to
make use of the religious channel, the impact of formal plurality in personal status
on rights and freedoms of citizens are usually reported to be even more severe.
The impact of personal status laws on some groups tend to be much harsher. These
usually include women, children, religious dissidents, secular individuals, and
people who do not belong to a ‘recognized’ community (e.g., the Baha’i in Egypt
or Protestants in Israel). For example, in the case of women’s rights, many
religious traditions discriminate against women by explicitly favoring men in
familial matters such as marriage, divorce or inheritance. Under the Islamic law in
Israel, Egypt and India, Muslim women’s right to divorce is severely truncated
vis-à-vis Muslim men who have a relatively easier access to divorce. The situation
is no different for Jewish women who need to bribe or beg their husbands to
receive a divorce writ (get) to be formally released from the bond of marriage or
for the Hindu women who have been traditionally denied an equal share in the
allocation of joint family property.
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As they exercise their jurisdiction, communal courts also function as status-

conferring institutions that determine the rights and disabilities of the majority of
the citizens who are subject to their purview. In personal status systems, an
individual’s religious affiliation is more than a matter of personal conviction, but is
rather an issue of public law, as it singlehandedly determines what set of norms
should apply to his particular case. In this regard, authorities who are in charge of
communal laws first need to determine what community a person belongs to. This
often leads to the problem of defining who is a Jew; who is a Muslim; who is a
Hindu and so forth, as authorities often need to investigate whether people truly
belong to the community they say they belong to on the basis of religious law. For
example in Israel, rabbinical authorities refuse to marry individuals whose
Jewishness according to halachic criteria is in question. Given the fact that there is
no civil marriage in Israel, rabbinical authorities’ refusal unmistakably means that
these individuals will be permanently banned from marriage in the country. In
fact, the problem has recently reached worrisome levels. The number of Israeli
Jews who are denied a right to marry and establish a family is reported to be well
over 300,000 (Rosenblum and Tal 2004: 5).
The failure or unwillingness of the state to protect the rights and freedoms of
individual citizens against the encroachment of communal authorities in many
countries have led individuals to take matters into their own hands and attempt to
bring about desired changes within the system through various means. One of the
tactics frequently used by individuals to navigate through the maze of personal law
is known as forum-shopping.12 Forum-shopping usually occurs in pluralistic legal
systems in which there are multiple normative orderings with parallel jurisdictions.
In such systems, litigants alter their strategies accordingly and tend to move their
cases from one jurisdiction to another in pursuit of legal gains by exploiting their
inherent inconsistencies and loopholes of pluralistic jurisdictions. Among the cases
analyzed in this paper, forum-shopping is most visible in Egypt, where Christians
frequently convert to Islam or migrate between different churches in order to
escape disabilities imposed upon their rights by their own communities. For
example, members of churches which do not allow divorce, may migrate to
another denomination which permits divorce and remarriage in the church.
Similarly, people have often exploited a loophole left by Law No. 462 of 1955.
12
Forum shopping can be briefly defined as “a litigant’s attempt to have his action
tried in a particular court” of his choice where he thinks “he will receive the most
favorable judgment” (Black et al. 1979: 590).
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According to the law, non-Muslim couples who belong to a different sect (ta’ifa)
and rite (milla) are subject to Islamic law.13 This has encouraged non-Muslim
litigants who want to divorce their spouses but were unable to do so under their
communal laws to move to another church other than their spouses’ so that they
can obtain a divorce under Islamic law, which has a more liberal stance on divorce
than some Christian communities.
Some individuals and groups also respond to violations of their rights by forming
hermeneutic or interpretative communities that challenge the officially-sanctioned
restrictive and discriminatory interpretations of religious precepts, and offer their
own ‘progressive’ or ‘deviant’ interpretations in the hope of advancing their rights
and reforming the communal structures from within. Groups seeking to alter
communal practices employ a great variety of tactics. But hermeneutic
communities especially resort to moderate means to induce desired changes
through reform from within. In order to get the conservative communal authorities
to agree to reform, they also seek the support of external actors (e.g., government
representatives, judiciary, politicians and intellectuals), build coalitions with like-
minded groups, and lobby for judicial and legislative interventions in communal
practices.
Such groups are best exemplified by women’s organizations in Egypt, Israel and
India that challenge the hermeneutic monopoly of religious institutions and offer
alternative women-friendly reinterpretations of religious norms in order to advance
their rights to divorce, maintenance and inheritance. As mentioned above, in doing
so such organizations could resort to a range of tactics from seeking intervention
of judicial and legislative authorities to building coalitions to change policy and
influence public opinion. The particular strategy or tactic that a hermeneutic group
eventually adopts is usually determined by a number of factors including the
strategic objectives of the group, the political and legal culture of the country,
institutional constraints, opportunities, and the existence of a broader support
structure (i.e., allies, financial and legal resources, etc.) or lack thereof.
For a number of reasons, legislative tactics seem to be heavily favored by

Egyptian women’s organizations, which ran a very successful grassroots campaign
from the mid-1980s until the enactment of Law No. 1 in 2000 (the so-called Khul
Law) which expanded Muslim women’s right to divorce in Egypt. Apparently,
13
Although Law No. 462 of 1955 was abrogated and replaced by Law No. 1 of
2000, this still holds true today under the Egyptian case law.
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Egyptian women’s organizations drew very important lessons from the failure of
the 1979 Jihan’s Law (No.44) that attempted to expand their rights through
unpopular top-down processes (Hatem 1992). The important lesson taken by
women was that, as evidenced in the Egyptian Supreme Constitutional Court’s
1985 ruling, which struck down the 1979 Law as unconstitutional, a solely liberal
or secular approach to personal status was likely to backfire and do more harm
than good to their cause . Thus, any change in the personal status laws had to be
firmly rooted in the historical sources and tradition of Shari’a. Indeed, for the next
two decades, this is what the Egyptian women’s organizations did. They adopted
the “strategy of engaging religious discourse, based on the women’s reading of
their [own] rights under the principles of Shari’a” (Singerman 2005: 161). In
doing this, they successfully reinvented the Islamic tradition and expanded the
scope of their rights after the discovery of a lesser known hadith, which eventually
opened the door to the 2000 Khul Law (Sonneveld 2007).
Another tactic most commonly employed by women’s organizations is legal

mobilization, or instrumental use of the courts to challenge the legitimacy of
patriarchal norms, raise awareness within the community, and lay the groundwork
for long-term institutional changes from within using the threat of external judicial
intervention. India has been a fertile ground for this type of legal work with its
vigorous tradition of judicial activism and public interest litigation (Desai and
Muralidhar 2000). In fact, since the 1980s the women’s rights organizations have
increasingly resorted to this strategy, and with the help of some sympathetic judges
have pushed for some important changes in the personal laws of the country.
Especially, in the aftermath of the infamous 1986 Muslim Women (Protection of
Rights on Divorce) Act, women’s organizations launched a judicial campaign
through which they aimed to defeat the ill-famed legislation’s minimalist
interpretation at courts that could further attenuate Muslim women’s right to post-
marital maintenance. Their campaign reached its culmination in 2001 with the
Indian Supreme Court’s Danial Latifi case in which the court overruled the
restrictive interpretations of the legislation while upholding an expansionist
interpretations that eventually extended the Muslim women’s right to postnuptial
maintenance beyond the religiously-sanctioned iddat period (Subramanian 2005).
As they strive for legislative and legal changes in personal status systems,
hermeneutic communities often reach out to other groups who share a similar
sense of deprivation and victimization, and build coalitions with them to fight
against the oppression of personal status laws and institutions. These coalitions,
which often take a cross-communal form, include a large variety of human rights
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organizations from different religious, sectarian, ethnic and ideological

backgrounds. This trend has been particularly visible among the Israeli women’s
and civil rights groups which have come together to build a united front against
patriarchal and religious oppression by transcending their communal boundaries.
An example of these successful alliances is ICAR (International Coalition for
Agunah Rights) that brings together 27 women’s organizations, from North
America and Israel in search of a solution to the problem of agunot14 (anchored
women, plural of agunah). ICAR is a diverse array of organizations that includes
women’s organizations from Orthodox, Conservative and Reform streams as well
as representatives of secular women’s groups. In recent years ICAR has devoted a
considerable part of its efforts to influence the process through which the dayanim
(religious judges, plural of dayan) are appointed to the Israeli rabbinical courts. In
fact, in December 2002, after an energetic lobbying campaign by ICAR members,
Sharon Shenhav, an ICAR attorney, was successfully elected as one of two
representatives of the Israel Bar Association to the ten-person commission that
appoints rabbinical court judges (Shenhav 2004).15 Even though according to the
law, only Orthodox Jewish men who are specialized in Halakhah can be appointed
as dayanim, during her two consecutive terms on the nomination committee
Shenhav had worked hard to influence the process of selection, by making sure
that only those candidates who were familiar with the problems of women under
the religious law and willing to work around these problems, got appointed to the
courts.16
14
A woman denied a get (divorce writ) by her husband is technically called
mesurevet get in Jewish law, yet the term agunah is much more commonly used.
An agunah cannot get married to another man or have a child with a man other
than her husband until her get is properly issued. Otherwise, her relationship will
be deemed adulterous and her children will be stigmatized as mamzerim (a Biblical
term referring to the offspring of such relationships and subsequent generations)
whose offspring will not be allowed to marry other Jews for ten generations. The
Ministry of Interior Affairs maintains a list of certified bastards or mamzerim in
Israel. As of 2004, the list contained the names of 92 Israeli citizens (Rosenblum
and Tal 2004: 39). For further information on legal consequences of bastardy in
Israel, see Gross (2001) and Feldblum (1997-1998).
15
Ms. Shenhav was reelected for a second term in December 2005 which ended in
January 2009.
16
Personal interview with Sharon Shenhav (Jerusalem, January 2005; New York,
April 2010)
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Another successful example of such coalitions is the Working Group for Equality
in Personal Status Issues, an alliance of various civil rights movements and
women’s groups representing Muslims, Jews and Christians in Israel. The
Working Group was especially instrumental in the passage of the Law of Family
Courts Amendment Act (No. 5) of 2001, which equated the legal status of Muslim
and Christian women to that of Jewish and Druze women by granting them “the
option of recourse in maintenance suits - as well as in all other matters of personal
status, except for marriages and divorces - to the new civil family courts” (Shahar
2006: 130).
Nonetheless, some hermeneutic communities adopt more subtle tactics. For

example, Kolech, an Israeli Orthodox women’s organization that works with other
feminist organizations to improve the status of women in Jewish law, embraces
innovative methods to change the way dayanim interpret the Halakhah. Apart from
organizing meetings in which both the representatives of women’s organizations
and dayanim participate, they also approach the wives of dayanim with a hope that
they could influence the thinking of their husbands and help them adopt a more
sympathetic stance towards the problems of Jewish women.17 Like Kolech, many
other religious groups, recognizing the urgency of problems people suffer under
the personal status systems have begun to offer ‘religiously permissible’ solutions,
some of which are worth mention: prenuptial agreements, kiddushei ta’ut
(annulment due to a defect or erroneous assumption), and hafka'at kiddushin
(annulment on technical grounds). Even though they are used to a certain extent
among various Jewish groups in Israel, none of them has yet garnered the support
of religious authorities and won legal recognition.18
Although hermeneutic communities usually adopt moderate means and strive for
limited changes from within, some of them may become gradually marginalized
and adopt a more radical agenda by demanding complete abolition of pluralistic
personal status systems. As evidenced by many examples, as traditional institutions
of personal law increasingly fail to respond to demands for change, some
hermeneutic groups cease to use mainstream channels of personal status and
gradually evolve into ‘self-ruling’ communities, by setting up their own judicial
17
Personal interview with Drorit Rosenfeld (Jerusalem, January 2005)
18
Phone interview with Dr. Hannah Kehat, former chairwoman of Kolech (New
York, April 2010)
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bodies that apply their ‘own’ version of the law to the members of their self-
proclaimed ‘communities’.
Self-ruling communities are best epitomized by such secular associations as the

New Family in Israel that offers an alternative non-religious mode of marriage and
divorce to Jews who do not want to be subject to the jurisdiction of rabbinical
authorities, or by such religious organizations as the All India Muslim Personal
Law Board (AIMPLB), which, after long years of dissatisfaction with the
particular version of Shari'a applied by the Indian courts, decided to set up an
alternative network of Islamic courts (Darul Qazas) and apply its own version of
Islamic law in the field of personal status (Mahmood 2001). Governments’
responses to the emergence of these alternative bodies of law and justice vary
widely from one case to another. For instance, the marriage certificates or divorce
‘decrees’ issued by the New Family organization in Israel do not have any official
standing vis-à-vis the state’s legal system, while in India both the government and
courts tend to tolerate Darul Qazas and even recognize some of their decisions in
accordance with the provisions of the 1996 Arbitration Act (Khan 2005; Thomas
2006).
In the final analysis, however, the rise of non-state normative orderings in an

already pluralistically-organized legal system can be viewed as a failure of the
central administration to regulate the plurality of its personal status field.
Moreover, the rise of self-ruling communities would also undermine the authority
of central government by directly challenging the theological and political
legitimacy of its juridical control over the field of personal status. The same can be
also said for hermeneutic communities. When they build cross-communal
coalitions or offer deviant interpretations of state-sponsored religious norms, these
communities challenge not only the authority of communal norms and institutions,
but also the state and its value system that upheld a ‘discriminatory’ system of
personal status in the first place. In this regard, one can argue that in pluralistic
societies the field of human rights functions just as another site of resistance where
boundaries of political community and hegemonic meta-narratives of gender and
subjectivity are continuously contested and redefined by various groups and
individuals who interact with the religious norms and institutions on a daily basis.
Yet, the field of human rights also functions as a testing ground where one can
observe whether governments have actually attained any of the goals which
originally led them to intervene in legally pluralistic structures through means of
institutional, normative or substantive reform. For example, the original purpose
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of the Israeli government in maintaining the old millet system was the preservation
and homogenization of the Israeli-Jewish identity. Given the fact that the existing
personal status system has caused a serious state-society crisis and profound
ideological divisions in the country and further fragmented the Jewish majority by
dividing them into two groups as marriageable and unmarriageable Jews, one can
argue that the Israeli millet system has, encountered serious challenges arising
from its goal of homogenizing and unifying the Israeli Jewish population.
Similarly, the goal of the Nasserite regime in 1955 was to rationalize its legal
system and break down the independent political power of the religious authorities.
However, the exploitation of the current system of personal status by religious
activists to discredit the regime and intimidate secularist forces in Egypt (as shown
by the infamous Abu Zayd case) and the continuing use of such tactics as forum-
shopping by individuals in pursuit of legal gains have shown that the half-baked
reform of 1955 has only half succeeded in its goals (Najjar 2000; Shaham 2006).
Likewise, the Shah Bano case of 1985 and the ensuing events demonstrated that
the Indian leaders have, to a great extent, failed to establish a truly inclusionary
and secular regime in which an individual’s religious conviction or lack thereof
would play no role in determining her rights and freedoms. Considering the rising
number Shariat courts run by Islamic groups as well as the increasing communal
violence across the country it becomes crystal clear that India is still light years
away from the secular, democratic society that its founding fathers envisioned.
Conclusion: How to Integrate Universal Human Rights Standards

into Customary and Religious Legal Systems?
As noted earlier, all postcolonial nations responded to the challenges of legal

pluralism and attempted to regulate their pluralistic structures in accordance with
their ideological orientations and regime choices. Interactions between the central
authorities and societal forces opposing the state’s interventions in familial and
religious affairs have led to rise of differing forms and degrees of personal status
in each country. Yet, the current study has shown that, regardless of their form or
degree, all personal status systems have impacted on the rights and freedoms of
individuals in the same way. In other words, as far as the effect of personal status
regimes on human rights is concerned, there has not been much difference
between high and low-degree plurality, nor for that matter between an
exclusionary/ theocratically-oriented regime and an inclusionary/secular one, as
exemplified by the cases of Israel and India.
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However, this should not come as a surprise, since as yet no society seems to have
found an answer to the questions of whose rights should prevail if the rights of
individuals and communities are in conflict; or to what extent a democratic regime
should tolerate communal norms and institutions that exercise illiberal sanctions
and restrictions upon their members; or when the state needs to intervene in order
to save a citizen from the oppression of her community. In search of an answer to
these question, many scholars, from Gutmann (2003), Shachar (2001), Rawls
(1999), Kukathas (1992, 1998), Benhabib (2002), Young (2000) and Kymlicka
(1995, 1996) to Barzilai (2003, 2004) have offered their own prescriptions and
emphasized the importance of individuals’ freedom of association and right to exit
from their parochial communities. In plain words, they have argued that, if
international human rights standards are to prevail, citizens must be completely
free to leave the communal track and transfer their disputes to civil courts at will,
especially when there is a direct and imminent threat by communal norms and
institutions to the constitutionally protected rights and freedoms of individuals.
Yet, like Kukathas (1992), I am of the opinion that an individual’s right to exit is
usually a hollow right, which exists merely on paper. It can be meaningful only if
the community in question grants such a freedom willingly to its individual
members and, more importantly, if there is a larger society outside which
embraces liberal values and is willing to welcome the person after she has deserted
her own cultural community. Unfortunately, individuals are usually not allowed to
make their own decisions freely, especially when they dissent from the
community’s line of thinking; and even when they are courageous enough to raise
their voice against the community, they often do not find a broader society
embracing liberal values and waiting to welcome and protect them against the
possible retaliations of their cultural communities. This is what happened to the
seventy-five year old Shah Bano when she decided step outside her communal
boundary to make use of the so-called secular remedies guaranteed by the Indian
state (Engineer 1987; Hussain 1992), and this is what could possibly happen to a
Palestinian woman, should she ever dare to leave her own religious community
and seek refuge in the larger Jewish polity in Israel.
This is a dire picture. But there is still much to be hopeful about. There is a
revolution taking place in the personal status systems of many postcolonial nations.
The revolution is spearheaded by hermeneutic communities which offer their
deviant interpretations of officially-sanctioned religious norms and precepts in the
hope of inducing some change from within. The change introduced through such
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means, as noted by the Human Rights Watch in its critique of Law No. 1 of 2000,
which was passed as a result of Egyptian women’s organizations’ two-decade long
successful campaign (Deif 2004), may fall short of the so-called universal and
secular standards of human rights. Furthermore, the pace of change and the
outcome may be criticized for being too slow and insufficient. But these ‘limited’
and ‘gradual’ changes are more likely to affect individuals’ rights in a positive
direction than the so-called secular remedies, which are often forcefully imposed
upon non-western societies through top-down processes. Moreover, top-down
secular solutions could cause more harm than good by diminishing chances of ever
upholding universal principles of human rights in religiously-oriented societies. On
the other hand, hermeneutic communities are better positioned to challenge the
monopoly of religious authorities to interpret the law and contest the hegemonic
narratives of gender and subjectivity by redefining the roles of various groups (i.e.
women, children etc.) as rights-bearing individuals in the familial and public
space. In other words, reforms spearheaded by hermeneutic groups would come
about as a result of a grand bargaining between progressive and conservative
forces in each society. Thus, they would better reflect the socio-legal and political
realities of non-western societies; and be more likely to be readily adopted by the
majority of people.
With this in mind, the main recommendation for the international development
agencies and practitioners is to identify these hermeneutic communities and help
them build necessary capacity to induce internal reform. Situations vary from
country to country or even from one community to another within the same
country, and therefore there are no generic templates to be adopted. But a good
entry point is always a thorough differential diagnosis through which the existing
human rights issues and their underlying causes can be identified in each and every
communal system. Then, the next step should involve identification, categorization
and mapping of major state and non-state actors and their stake in the communal
legal systems. At this stage various rapid assessment tools can be utilized by
practitioners to identify hermeneutic communities and determine their level of
expertise, genealogy, allies, resources, strengths, weaknesses and needs. Once the
due diligence process is complete, then potential partners should be shortlisted and
offered customized solutions and capacity-building opportunities. These should
include legal, technical, financial assistance but the level of engagement with
hermeneutic communities is of critical importance. Excessive engagement or
association with international agencies or NGOs might harm the status of
hermeneutic communities and alienate them in the eyes of local populations. What
makes these groups relatively successful and acceptable in their societies is the
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authenticity of their message and structure. Thus, international agencies should be

extra careful not to harm the social standing of these groups and simply make them
look as agents or proxies of ‘western organizations’.
Overall, a multipronged strategy has to be developed to induce internal reform in

customary legal systems. Identification and support of hermeneutic communities is
important but only one of the many possible strategies to be pursued. Although
bottom-up or grassroots strategies often seem more promising, international
agencies must still continue pressuring governments to meet their obligations under
various human rights instruments (e.g., CEDAW, Maputo Protocol) to formally
integrate universal rights standards into domestic legal systems. Simultaneously,
civil society organizations and governments should be encouraged to educate
individuals about their rights and liberties guaranteed by the formal legal system.
Many countries have secular legislation setting a minimum age for marriage, and
prohibiting bigamy or divorce against the consent of the wife, but traditional and
religious courts continue to ignore such restrictions set upon their jurisdiction by
secular legislation. In order to prevent that, people should be made aware of their
rights, and be encouraged to monitor and pressurize traditional and religious
authorities to abide by limitations placed upon them by secular legislation.
At the same time, people should be educated, perhaps by the representatives of

hermeneutic communities, about their rights that already exist under the
traditional, religious and formal legal systems. For example, Muslim women can
normally prohibit their husbands from taking a second wife or exercise a right to
self-divorce by inserting provisions to those effects into their marital contracts.
But, under societal and patriarchal pressure, most are discouraged from exercising
their rights. They often fear that they will be stigmatized as ‘loose’ women if they
exercise their ‘God-given’ rights, as husbands fear that their peers will question
their ‘manhood’ if they let women insert such provisions into the marital contract.
In order to fight against these stereotypes, various legal literacy and awareness
campaigns can be organized through media or by directly talking to religious
leaders, marriage registrars, lawyers and judges. Particularly, religious leaders’
public support through writings and sermons in favor of exercising these rights can
be very helpful for inducing behavioral change. That is to say, before inventing
new rights, international agencies and practitioners should make sure that the
rights that already exist within the framework of traditional, religious or formal
legal systems are being fully utilized.
When I asked a Muslim women’s rights activist in New Delhi in 2005 what the top
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2010 – nr. 60
___________________________________________________________________
five problems the women suffered most from were, she said “poverty, poverty,
poverty, poverty and then unequal personal laws which discriminate against
women”. Therefore, the practitioner should not lose perspective, and should be
constantly reminded that the issue of integrating universal human rights standards
into religious and traditional systems is simply a matter of empowerment of
marginalized or underserved populations such as women, children and minorities.
Hence, legal literacy and awareness programs targeting marginalized populations
should always be integrated into various poverty eradication, public health,
education and micro-lending programs. It has been repeatedly demonstrated
through successful micro-credit projects in South Asia (e.g., BRAC, Grameen
Bank) that such empowerment programs can help marginalized groups become
more aware of their rights and be more assertive in their dealings with traditional
and patriarchal institutions (Shehabuddin 2008).
Lastly, where it is possible, international actors should form partnerships with

hermeneutic groups to encourage marginalized groups’ representation and
inclusion in the legal system. A woman may be forbidden to become a judge in a
Shari’a or rabbinical court, but, as the successful example of Sharon Shenhav in
Israel shows, women may be part of the committee that nominates the religious
judges. Moreover, in countries where religious law is applied by civil family
courts, women must be represented on the bench. As frequently observed, female
judges tend to interpret and apply the same religious norms much more liberally
than male judges. Thus, civil society organizations should press governments to
appoint more female and minority judges to family courts. In fact, this may be a
better option in the drive to overcome some of the shortcomings of religious and
communal norms without engaging in lengthy legislative or judicial battles to
reform discriminatory personal status laws.
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WOMEN ENTERING THE LEGAL
LANDSCAPE: NEGOTIATING LEGAL
GENDER REFORMS IN A ‘TRIBAL’
WOMEN’S FORUM IN SOUTH
RAJASTHAN, INDIA1
Introduction
This essay examines the ways ‘tribal’ women of the Meena community2 in rural
1
I gratefully acknowledge the comments given by Shalini Randeria and Yüksel
Sezgin on earlier versions of this article.
2
The Meena are a subgroup of the Bhil, the third largest group of tribes in India,
who live in four states in central and north–western India (Madhya Pradesh,
Gujarat, Rajasthan and Maharashtra). From a political perspective, the Meena fall
into the category of ‘scheduled tribe’ in the state of Rajasthan, which in
independent India means “the disadvantaged sections of the population, which
deserve and need ‘special help’” (Galanter 2003: 187). According to The
Constitution of India, Article 342, the President is empowered to draw up a list of
tribes that are referred to as “scheduled tribes” in order to promote the educational
and the economic interests of the so-called “weaker section” of the population and
to protect them from “social injustice”. The majority of the Meena are classified
as Hindu and there is a very small Christian minority. The conversion of Bhils to
Christianity dates back to the end of the 19th century, when Christian Missions
made their entry into the tribal belt in south Rajasthan. The Meenas, whether
Hindu or Christian, still adhere to their animistic practices while incorporating
© Copyright 2010 – Mengia Hong Tschalaer
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2010 – nr. 60
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south Rajasthan create a new legal space for the (re)negotiation of gender norms
and women’s identities within patriarchal structures in modern India. It focuses on
processes of a selective appropriation of modern norms of gender and social
equality by rural women within a newly established women’s judicial body, known
as the Social Reform Committee. The Social Reform Committee, that is both
similar to and different from the ‘traditional’ caste pânchayat3, was set up 1998 by
Astha in Udaipur, a state-registered non-governmental organisation concerned with
tribal and women’s issues (Astha Sansthan n.d.). The establishment of a new
hybrid arena, straddling ‘tradition’ and ‘modernity’ and offering an alternative to
modern and expensive state courts as well as the ‘traditional’ corrupt and male-
dominated caste councils (pânchayat), can be considered as characteristic of
India’s entangled modernities (Randeria 2002, 2003, 2004b). Such an innovative
legal institution, which allows poor rural women to negotiate norms of ‘gender
justice’, reflects the unevenness of the processes of modernisation (Therborn 1995;
Eisenstadt 2000) in the postcolony. It illustrates the complexity of modernity in
India that defies the unilinear scheme of modernisation theory. The complex legal
pluralistic landscape in south Rajasthan, comprised of modern state courts as well
as ‘traditional’ non-state legal institutions for the settlement of family disputes,
should not be seen as a failure of state hegemony or a sign of state weakness. It is
rather a feature of state-community relationships in post-colonial societies that
afford recognised ethnic communities limited spaces of self-organisation, as
Randeria (2002) has argued. The very fact that it is modern women’s NGOs that
support communities in shaping this space and stretching its limits testifies to the
everyday intermingling and interplay of ‘tradition’ and ‘modernity’, which are
conceptualised not only as binary opposites but as sequential stages in
modernisation theory.
Using empirical material from South Rajasthan this essay first explores the
possibilities and constraints that tribal women face in their quest for what is
Hindand Christian rituals into their belief system. The literacy rate for women is
said to be 31.8 % and for men 52.2% (Source: Rajasthan Scheduled Tribes Census
2001).
3
Pânchayat designates a gathering of male members of a sub-caste. It settles
relatively autonomously disputes regarding marriage, separation, property and
inheritance and suchlike through mediation. Pânchayats are very common in rural
areas among low-caste communities. Its jurisdiction is de facto recognised by the
state, especially in the realm of family law.
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____________________________________________________________________
usually described in modernist and individualistic terms as gender equality and

women’s rights. Despite the plurality of arenas of dispute resolution in South
Rajasthan, including those which are family- and community-based as well as state
authorities, the legal space for tribal women to negotiate ‘justice’ is highly
restricted. It will be argued that gender equality and women’s rights are not to be
realised within the already existent judicial bodies but that new avenues have had
to be found for these women to render their grievances and issues visible to the
public. NGOs as well as tribal women felt the need for the establishment of an
innovative legal tribal women’s forum. This legal body is considered here as a
space of resistance, where gender and power relations are actively challenged and
(re)negotiated in an otherwise patriarchal setting. This is due to women’s attempt
to do ‘justice’ in the shadow of state law and institutions in a mainly female legal
arena, where ‘modern’ liberal legal morality is introduced and negotiated within a
‘traditional’ patriarchal social setting. The second section focuses on one particular
longstanding marital dispute to investigate the representation of gender relations by
women and men during the mediations in this newly created body, where the
different norms of morality for kin and affines are contested in public. It will be
demonstrated that this hybrid legal institution offers a public arena for the
negotiation of divergent norms on gender relations. These norms range from
patriarchal discourses that stress male superiority to the rather abstract and liberal
discourses of gender equality and women’s rights. This case study exemplifies the
discrepancy between the modern individualistic concepts of women’s rights and
gender justice as proclaimed by the state and NGOs and women’s claim for respect
and recognition within and outside of the family/community. Arguing within the
theoretical framework of plural and entangled modernities, this essay examines the
potential and limitations of alternative non-state legal forums as possible arenas for
the translation of ideas of gender and social equality in modern India. Light is shed
on women’s strategies to construct women’s identities and female representations
in a context where solidarities and responsibilities within gender and kin relations
are often given priority over individual claims. Thereby, a case will be made for a
less monolithic understanding of modern legal concepts by acknowledging the
complexity of marital and kin relations that give meaning to women’s identities
and lives in rural Rajasthan. The engagement of rural tribal women in narratives
on individualistic modern women’s rights and gender equality not only puts into
question family and community solidarities and values but also affects their
identity as good mothers, wives, daughters, daughters-in-law etc. The Social
Reform Committee is therefore an important space for tribal women to contest
norms of gender equality and justice according to the working and functioning of
conflict resolution within their own community.
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2010 – nr. 60
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Legal Pluralism in India
Legal pluralism in India is a direct result of colonial and (post)colonial politics

(Agnes 1999: 41). Because of the variety of ideological and religious sources by
which family and personal matters were regulated in (pre)colonial India, the
colonial administration did not succeed in formulating a set of regulations
pertaining to issues of personal and family laws. Under colonial rule, an official
body of Muslim and Hindu personal law had been established (Agnes 1999: 41.
Some authors such as F. von Benda-Beckmann (2003: 185) and Mukhopadhyay
(1998: 15) speak in this context of a reinvention or a rediscovery of customary law
that is a distorted interpretation of the local legal situation). But in practice
disputes in the realm of personal and family laws were still negotiated within the
so-called ‘traditional’ or ‘customary’ forums.
After Independence the process of nation -building and modernisation in India

strongly focused on the creation of individual citizens governed by a secular
Uniform Civil Code, but Indian society has never been unified under a single set
of laws. In fact, the colonial classification of Hindu and Muslim personal laws
within the state legal structure was retained and provided a fertile soil for the
political assertion of religious and communal identities after
Independence.,Women and the family have been considered to be pivotal in this
contest and a crucial component in the preservation of religious culture and
traditions (Sarkar 2004:238–239; Sunder Rajan 2003:2; Das 2004:145; Hasan
1999:128). In a context where women are mere markers of culture and tradition
rather than right-bearing individuals, the promotion of liberal women’s rights and
gender equality becomes difficult. The Indian feminist Sunder Rajan (2003: 165)
laments that the Indian state has so far failed to deploy its role on behalf of women
to initiate social reforms within the legal body. In fact, the rise of Hindu-Muslim
communalism in the 1980s prompted the government to locate family laws in the
private sphere of religious and ethnic communities and thus render them
unreachable by legal reforms by the state (Hasan 1999: 132). Subsequently, some
feminists argued for a return to community values and solidarities whereas others
like Agnes (1999: 106), Hasan (1999: 132) and Sunder Rajan (2003: 158) expect
the Indian state to secure social and gender equality within ethnic and religious
communities. So today, the Indian state tolerates, besides the different religious
family laws within state legal structure, de facto a coexisting multiplicity of
‘traditional’ and ‘customary’ legal authorities and institutions (Randeria 2002:
- 44 -
____________________________________________________________________
301).4 The latter category of non-state legal institutions features a variety of

informal legal bodies and authorities ranging from the local caste councils
(pânchayats) and family assemblies that exclude women to the newly established
women’s courts such as the All India Muslim Women’s Personal Law Board in
Lucknow, the Jyoti Sangh in Ahmedabad or the Social Reform Committee in south
Rajasthan, that is at the centre of this study.
Unfortunately, little is known about the functions and workings of non-state legal
institutions in India. They are generally frowned upon. Both political science and
women’s studies have shied away from including the category of non-state legal
forums in their debates on the plurality of personal and family laws. Consequently,
the question of gender equality and women’s rights in India has largely been
discussed and debated within the framework of the political and academic debates
on the issue of religion-based personal laws within state structure and there is an
urban and statist bias inherent in these debates. Whereas the political debate has
been divisive for established political parties as well as the women’s movement,
the academic debate has been largely confined to the field of political science
(Austin 2001; Baird 2005; Engineer 1999; Khory 2005; Mahmood 2005; Rudolph
and Rudoph 2001) and women’s studies (Agnes 1999; Sunder Rajan 2003; Basu
1998a, b; Hasan 1998, 1999; Menon 2002; Kapur and Cossmann 1996;
Mukhopadhyay 1998). This paper intends to break with this preserved background
of political and women’s studies and law that tend to highlight the achievements of
the exceptional and educated few urban women. It sheds light on the grassroots
resistance offered by less extraordinary tribal women in south Rajasthan within an
extraordinary women’s judicial body.
4
This de facto tolerance is given expression in the Provision of the Pânchayats
(Extension to the Scheduled Areas) Act, 1996. This extends to the Scheduled
Areas the provisions of Part IX of the Indian Constitution relating to Panchayats,
but provides in section 4(a):
A state legislation on the Pânchayats that may be made shall be
in consonance with the customary law, social and religious
practices and traditional management practices of community
resources.
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Legal Pluralism Within the Context of India’s Multiple and

Entangled Modernities
The emergence of new hybrid legal bodies for the promotion of women’s rights
and gender equality in modern India renders it unrealistic to regard the state legal
system as the sole field in which legal reforms may be promoted, as proclaimed by
modernists. It is necessary to look into the options and constraints for social actors
to do and to get ‘justice’ within the complex landscape of legal pluralism. By
studying a legal women’s forum that is both similar to and different from the
‘traditional’ caste pânchayat, this paper delineates the workings of hybrid
modernities in a particular setting. This extraordinary legal women’s body
constitutes a special feature within the complex landscape of legal pluralism in
Rajasthan that is otherwise defined by strong gender and power hierarchies and
has hitherto excluded women from participation. However, although without state
authority, this institution cannot be understood without reference to the state and
state policies. As I have mentioned above, the process of nation -building in India
after Independence focused strongly on the creation of individual citizens to be
governed by a secular Uniform Civil Code. The fact that communal identities
particular ties to may well change their form but do not necessarily transform
themselves into the site for secular individualism became evident with the rise of
communalism in the mid-1980s. The reintroduction of so-called ‘traditional’ legal
forums for the promotion of legal reforms as proclaimed by various feminists is
thus not a return to (pre)colonial legal structures, but the result of political and
legal discourses and debates on how to face the challenges of Indian modernity.
Menski from a post-modern perspective argues:
… that there has been a remarkable shift of emphasis, away from

law and the state’s claim to rule the roost, towards society and
greater recognition of the potentially beneficial role of social
norms and obligations (Menski (2001: 28).
In his view, the explanation for the recent popularity of Hindu law outside the area
of state intervention lies beyond the dichotomy of tradition and modernity but has
to be seen as a reaction to modernist Western assimilation pressures. From this
perspective it would be rash to categorise local forums such as the local caste
pânchayat as pure traditional pre-colonial relics as Hayden (1999) in his classical
anthropological study on the caste pânchayat among the Nandiwallas tends to do.
Neither is this newly established tribal women’s judicial legal body whose
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functioning and structure is similar to the caste pânchayat a fallback on old

tradition. Although recognising pre-colonial social linkages such as kin, caste and
community, the Social Reform Community meets the requirements of modern
India. With the institutionalising of such a women’s forum, these tribal women
create a space to openly claim fundamental rights such as the right to assembly,
the right to free speech and freedom of movement that are otherwise absent as a
result of social and cultural practices.5
This women’s forum that is anchored in both ‘modernity’ and ‘tradition’

demonstrates the plurality and variety of ways and schemes that emerge through
global and local processes of modernisation (Therborn 1995). From this
perspective, the processes of modernisation are not a motor of westernisation and
homogenisation. Rather modernity may assume different shapes and recitations on
a national (Eisenstadt 2000) as well as a local level (Randeria 2002, 2003, 2004a).
The approach of multiple modernities as theorised by Eisenstadt (2000) renders it
possible to overcome the dichotomies of the West and the rest and to recognise
historical interdependences and developments. Modernity here is not considered as
a homogenous set of indicators in terms of democracy, liberalism, individualism
etc., but as a changeable and negotiable concept of norms and values (Beck at al.
2001). Thus, the various non-state legal institutions in India and the lack of the
state’s exclusive right to govern family laws are in fact an inherent feature of
India’s specific texture of modernity, where different cultural and historical
concepts co-exist (Randeria 2004a). This hybrid women’s forum can be thus
considered to be an intrinsic part of these entangled modernities, as Randeria
terms it, and to constitute an example of the ambiguities of the selective
appropriation and disavowal of modernity in this tribal rural area in south
Rajasthan. Modernity is therefore not only an analytical, sociological category but
also a term of self-representation for social actors, a part of the social imagery
(Randeria 2004a).
To discuss and examine local caste pânchayats and newly established legal bodies
within the framework of plural or entangled modernities means to perceive these
forums of dispute settlement not as insular but as interactive and susceptible.6 This
5
These legal principles have been laid down in the Declaration of Human Rights
and in the Convention on the Elimination of All Forms of Discrimination against
Women (CEDAW). India became a signatory to CEDAW in 1980 and ratified the
convenion in 1993.
6
See also S. Moore on her theory of the semi-autonomous social field:
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approach enables us to investigate more adequately the entanglement of different

patriarchal and NGO-influenced discourses on law, justice and norms of gender
relations as well as processes of resistance and change within the legal landscape
of South Rajasthan. Recent anthropological studies of local pânchayats in the
context of marriage policing in Haryana (Chowdhury 2004) and of customary
divorce in rural India (Holden 2003) fail to shed light on the processes and
dynamics of such local institutions within the wider context of legal pluralism.
Similarly Erin Moore’s (1993) study of Muslim women’s strategies of resistance
against non-state and state legal institutions does not succeed in unearthing a
deeper insight into the multiplicity of strategies of women who represent different
moral standards on gender norms within so called ‘traditional’ non-state and
‘modern’ state legal institutions. This article seeks to fill this lacuna of
anthropological studies. Using empirical material from south Rajasthan, the
constraints and possibilities for Meena women to access and use particular state
and non-state legal institutions for the settlement of disputes in the realm of family
law will be first examined. Drawing on a case study, the contestation of
stereotypical constructions of gendered ascriptions by social actors of blame, duty
and responsibilities will be discussed in a second part. In order to locate the new
[A]n inspection of semi-autonomous social fields strongly

suggests that the various processes that make internally generated
rules effective are often also the immediate forces that dictate the
mode of compliance or non-compliance to state-made legal
rules.…
One of the most usual ways in which centralized governments
invade the social fields within their boundaries is by means of
legislation. But innovative legislation or other attempts to direct
change often fail to achieve their intended purposes; and even
when they succeed wholly or partially, they frequently carry with
them unplanned and unexpected consequences. This is partly
because new laws are thrust upon going social arrangements in
which there are complexes of binding obligations already in
existence. Legislation is often passed with the intention of
altering the going social arrangements in specified ways. The
social arrangements are often effectively stronger than the new
laws. (S. Moore 1973: 721, 723)
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avenues by which women’s rights and aspirations for gender equality enter Meena
society, their legal situation will be roughly sketched in the following.
The Legal Landscape in Rural South Rajasthan
An analysis of the variety of non-state and state institutions that are theoretically
available to Meena women reveals that access to and choice of institutions is
limited in a context where ‘justice’ is moulded by strongly hierarchical power and
gender relations. Meena have access to four different institutions of dispute
settlement, namely the family gathering, the caste pânchayat, the state courts and
the Social Reform Committee.
The family gathering is the first authority where marital discord and other disputes
in the family are discussed. The family gathering is a semi-public affair, at which
not only members of the family of the aggrieved parties are present but also the
presence of the village elders (mukhiyâ) and other influential persons from the
village is indispensable. The family gathering is not primarily concerned with
doing justice for women but it is rather a site for the (re)-negotiation of power
relations among men. The family gathering is thus by no means fertile soil for
gender reforms.
The public non-state dispute-processing forum most frequently addressed by the

Meena is the caste pânchayat, called jajam by the Meena community. Jajam refers
to the place of the assembly that meets, most likely somewhere in the village under
a tree. Disputes regarding marriage, separation, inheritance, spousal abuse and
land ownership and claims are negotiated within this assembly. The word
pânchayat is formed from pânch (Indo-Aryan) ‘five’ and refers to the number of
the permanent members, the pânch. Additionally, there is a chief, hereditary or
elected and generally in the position for life who is the president of the assembly
and referred to as sarpânch. But the assembly of the pânchayat, including
onlookers, the contesting parties and the dignitaries, can easily comprise up to a
hundred people. The pânch and the sarpânch are responsible for bringing
infringements to its attention and convening the assembly when the need arises
(Dumont 1980: 174). The pânchayat is thus not a forum presided over by a
designated person who directs the proceedings, but one in which disputes and
quarrels are settled by negotiations between the disputants. The discussions can
last for hours or even for days and the task of the pânchayat speakers is to
characterise actions as improper, thereby identifying the actor as one who has
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behaved improperly. Decisions are made without any reference to statutory law.
‘Law’ in this context is not a vernacular word and the term is only used when
referring to national and trans-national modern legacy. For ‘law’ among the
Meena can be best perceived as social rules and codes of behaviour that regulate
social life and define what has to be controlled and sanctioned in day-to-day
interaction (Bourdieu 2002: 112).
The caste pânchayat was and is in most villages still primarily a men’s assembly
where women are not allowed to participate, although the decisions involve them
in an important way. Women could or can only bring up infringements for
mediation within the pânchayat through their male neighbours or relatives.
However, the majority of my female informants stated that a woman approached
the pânchayat only in case of severe physical abuse and violence. Otherwise she
had to swallow injustice in silence. Due to the work of various women’s groups in
the tribal area in south Rajasthan since the late 80s and early 90s, some significant
changes have taken place recently. According to a young tribal woman, women
are now allowed in the jajam and an older tribal woman said laughingly, “[i]f five
men gathered in the village five women would join them”. Yet as anthropological
studies on the caste pânchayat in Haryana (UP) (Chowdhry 2004) and the Muslim
council in Rajasthan (Erin Moore 1993) have made clear, local caste pânchayats in
rural areas remain largely a mainly men’s forum that strictly excludes women
from participation. The concept of ‘justice’ in the caste pânchayat is shaped by
monetary rather than ethical standards. My Meena informants, men and women,
have rolled their eyes in a gesture of annoyance or have lamented angrily that
bribery is still very prevalent and presents a major hindrance to justice and gender
reforms. In the run-up to the negotiation, the disputants have to pay a considerable
bribe (rupees 500–2'000) to the mukhiyâ and additionally bear the expenses for
alcohol and beedis (local leaf-cigarette). An elder tribal man states, “the mukhiyâ
[village elder] can easily be bribed and he drinks. His mood depends on how much
money you are able to give.”
The state courts are, according to a lawyer at the family court in Udaipur and legal
advisor for Astha, not interested in solving the cases of the poor and especially not
poor tribal. But above all, the state courts are inefficient and sluggish. A case can
take several years before a decision is made, if it is at all. Tribal people perceive
state institutions as corrupt, indifferent towards their grievances and above all not
trustworthy. Therefore, the Meena prefer to use pânchayats to solve problems.
Community based forums of jurisdiction have the advantage of using norms that
are socially binding and in accordance with local customs rather than the
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unfamiliar law that distant state courts apply (Randeria 2003: 15). Although the
state courts are not necessarily more expensive than the caste pânchayat, where
large sums of money are spent on feeding caste members, on payments to the
leaders and suchlike, people tend to view money that is paid within the community
as an investment in social relationships that activates and strengthens social ties
rather than money lost on strangers in the world of courts (Randeria 2003: 14).
Furthermore, the police are by no means an avenue along which tribal people in
general, and tribal women in particular, can hope for help and support to come.
The police, as they are interested in making money in this context as in others, are
disinterested in supporting penniless tribals.
Where Do Women Find Justice?
My discussion of the different legal institutions theoretically available to Meena

women has shown that practically none of these institutions seems to take into
account women’s concerns. All my female informants unanimously agreed that
there was no way tribal women could seek justice within state and non-state legal
forums before the setting up of the Social Reform Committee. The only option for
women to get justice before the establishment of the women’s forum was to give
their distress a physical voice by becoming ill or by threatening suicide. Using the
body as a tool to give expression to distress and alienation is a current practice
among Meena women. Erin Moore (1993) in her study on gender, legal pluralism
and Islam in rural Rajasthan termed this phenomenon ‘the somatisation of the
conflict’. Women thereby express their negative sentiments and respond to their
inferior position in the household and the family through illness, the threat of
suicide, or both.
In 1998 the local women’s group of the Tribal Women’s Awareness Society, an
organisation of Astha in Udaipur, decided to set up a tribal women’s forum, or the
Social Reform Committee, that would be both similar to and different from the
caste pânchayat. The idea of an institution of dispute reconciliation, focusing
mainly on women’s issues, did not evolve from the local context of the Meena
community, but was modelled on the Jyoti Sangh in Ahmedabad (Gujarat, West
India). The Jyoti Sangh, launched 75 years ago, was the first women’s
organisation inspired by Gandhi to mobilise women for the Quit India movement.
The Jyoti Sangh has a long history in settling marital discords of women of all
castes and classes and has, according to Randeria,
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a formidable reputation in following up and enforcing the terms

of reconciliation it has worked out with the couple (after
extensive consultations with the extended family) (Randeria
2004b: 168).
Like the Jyoti Sangh, the Social Reform Committee is mainly concerned with
cases of marital discord such as divorce, inheritance, alimony, polygyny, domestic
violence and adultery. It additionally deals with cases about land disputes. The
Social Reform Committee is an integrated part of the Tribal Women’s Awareness
Society that works in 104 villages in Girwa and Jhadol Blocks of Udaipur District.
In these two Blocks thirty-five percent of the population belong to the category of
scheduled tribes (according to the 2001 census). The Social Reform Committee
itself counts no fewer than four hundred members, of which the great majority are
women associated with the local groups of the Tribal Women’s Awareness
Society.
The structure of the Social Reform Committee consists of an executive body and a
fact-finding committee, called the Case Committee. The executive body, the
pânch, is composed of seven women and five men and is presided over by a male
sarpânch or president. The Case Committee consists of members of the pânch and
two elder dignitaries, the mukhiyâ. It is a forum where the cases are analysed,
discussed and followed up prior to negotiation. Although the Case Committee is
eager to have all cases solved within the Social Reform Committee, cases dealing
with manslaughter and murder are not dealt with by the Committee. Here, the
Case Committee takes an advisory role, merely guiding the aggrieved party on
how to proceed. Every two years the members of the Social Reform Committee
elect both the executive committee and the Case Committee.
As I have mentioned in the context of the caste pânchayat, ‘law’ among the Meena
is not to be understood in a positivist sense as formal rules in a statute book. ‘Law’
in this context has to be perceived as informal rules and codes of behaviour that
structure social life and define what has to be controlled in day-to-day interaction.
In this regard, the Social Reform Committee is no different from the caste
pânchayat. These lengthy dispute settlement proceedings do not aim to do justice
in an adjudicative sense or to prove ‘facts’, as these are already widely known
through the gossip that normally spreads in the prior negotiation over a case. The
task of the speakers involved is to prove the case rhetorically for the parties and to
‘convince’ the assembly of its credibility. Sanctions negotiated during the
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reconciliation sessions by the executive committee, the Committee members and

the supporters of the two litigant parties, are theoretically binding on both parties.
Its ignorance or violation results in a second trial or even excommunication.
Excommunicating a particular person or family means their exclusion from
communal festivities and interactions for a certain period of time. Monetary fines
only play a secondary role. The only money that has to be paid in the Committee
is a registration fee of Rs 101 and the cost of one kilogram of jaggeri. Jaggeri is a
molasses made of sugarcane juice that is exchanged between the two litigants as a
sign of reconciliation. The decisions are always written on paper bearing a Rs 100
stamp that needs to be signed by both parties. The original is kept in a register of
the Social Reform Committee and a copy is sent to the state court for official
approval. This stamped paper is a written proof of the litigants’ decision and
serves as a paper of reference in the event of a re-opening of the proceedings by
either the Committee or the state courts. The practice of keeping written records
has been adapted from the state courts and is unknown to other non-state legal
institutions among the Meena. According to the chairman of the Social Reform
Committee, between 1998 and 2006 60 cases out of 80 were settled and 20 are still
pending. This relatively small number of cases derives from the fact that the scope
and influence of the Social Reform Committee is confined to the activities of the
Tribal Women’s Awareness Society. These women and men who are not engaged
with Astha either do not know about this alternative mode of dispute settlement, or
are reluctant to address such a new legal body that lacks the authority of the
community, or both. Moreover, a relatively high number of minor infringements
are already solved in a more informal way within the women’s groups.
The Social Reform Committee is an alternative to the corrupt, male-dominated

state and non-state legal institutions. This judicial women’s body offers women a
platform to publicly tell their stories and to vent grievances that would otherwise
be hidden, the women being rendered silent by pressure to maintain virtue and
family honour. The fact that these tribal women find the courage to speak out in
public and thus break with this code of behaviour is the result of a long process
that started off with the institutionalisation of women’s groups in the early 1990s
by the Tribal Women’s Awareness Society. It was in these women’s groups that
problems and conflicts regarding marriage, divorce, separation, alimony,
polygyny, land rights, domestic violence and inheritance were first discussed. The
number of cases that have come up in these regular gatherings show that these
tribal women together with Astha felt a need to establish an arena where women’s
grievances and concerns could be made visible and put up for discussion in public.
Women here are no longer passive objects, whose idealised female body and
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identity provide the sites where power and gender relations are (re)negotiated
among men. With the institutionalisation of this extraordinary forum, women have
become visible and are heard in the public sphere. In the process, societal norms
and practices on gender and power relations are publicly challenged.
Yet relations of power and gender identities when deeply anchored in society,
cannot be turned upside down from one day to the next through the mere
institutionalising of a women’s judicial body. Metaphors such as ‘we cannot clap
with only one hand’ or ’a cart cannot move with one wheel, it needs two,’ as used
by my informants, reflect the necessity of cooperation between men and women in
order to secure social legitimacy for the Committee’s decisions and its authority as
an institution. As the women’s court lacks the authority of the community as well
as the formal legitimacy of the state courts, it needs, as a new legal body, to find
other avenues to legitimise its decisions. One way is to eschew bribery and other
sorts of corruption. The hybrid legal body thus proves to be a cheap and effective
legal option not only for women but also for men who cannot afford the high costs
common to both state and community legal institutions. Yet, despite the bad
reputation of legal state institutions in the tribal community, the state-registered
Astha does collaborate with the police and the family court in Udaipur. Very
sensitive cases like rape and severe atrocities, for example, require the presence of
the police in the Case Committee as well as during the process of mediation in the
Social Reform Committee. Another reason to hand cases to the police or the state
court is to put non-cooperative men under pressure. To take the case to the family
or criminal court in Udaipur would not only delay the mediation but would also
considerably increase the cost of resolution.
In rural south Rajasthan the option of ‘forum shopping’, or the possibilities for
social actors to choose from one or the other legal forum available to them is
limited. This is on one hand due to the ignorance of state institutions regarding the
grievances of tribal people in general, and on the other because of the prevalent
gender bias in both state and non-state legal institutions. In this context the Social
Reform Committee provides an arena where not only patriarchal norms on gender
relations but also societal power hierarchies are (re)negotiated by the socially most
disadvantaged sections of society, namely women and the poor tribal communities.
It offers not only a social space of negotiation and mediation for women but also
an alternative arena for reconcilement for penniless tribal men who belong to the
least influential segment of the community. This women’s forum offers a new
arena for mediation by a body that is not the ‘traditional’ family or caste-based
institution but is still embedded within the social structures of the Meena
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community and therefore is not as unfamiliar as the far away modern state courts.
Having neither the authority of the local pânchayats nor of the state courts, this
extraordinary, mainly female legal body constitutes a third way between the family
and community and the state. Therefore, this tribal women’s forum fits neither the
category of tradition nor that of modernity in a modernist sense. It exemplifies the
entanglements of traditional procedures of dispute settlement with both patriarchal
and modern principles of gender equality and women’s rights. My material on the
Social Reform Committee in south Rajasthan thus shows the uneasiness of the
modernity-tradition dichotomy as a representative category for state and non-state
legal bodies. The plurality of sources of norms and legal moral concepts, ranging
from traditional-conservative through traditional-moderate to modern-secular,
leaves room for social actors to contest international, national and local concepts
of law and justice as well as their self-representation within the latter (Appadurai
1996; Arce and Long 2000). Therefore, instead of judging the parallel existence of
a plurality of legal forums in India to be a failure of state hegemony it should be
rather conceived of as an opportunity for local communities to strengthen their
realm of self-organisation (Randeria 2004b: 173).
The following analysis of the Punjibai case illustrates how gender justice and
gender equality are negotiated in practice during dispute settlement. The analysis
will examine in what ways and how gender, kin and community relations and their
expectations of behaviour are challenged, refused or appropriated during the
process of mediation.
2. Struggle for ‘Justice’: A Case Study
The case analysed in this section concerns the story of the young tribal woman
Punjibai and her daughter born as the result of an affair with the bus driver
Ratanlal. Ratanlal is about twenty years older than Punjibai and married to
Basantibai. The couple have four children and live in a small village about 20 km
from the city of Udaipur. After Punjibai gave birth to a baby girl in 2004 she went
to live with Ratanlal and his first wife Basantibai. Punjibai’s attempt to gain
acknowledgement as Ratanlal’s second wife by receiving a bride price or jewellery
failed. Ratanlal’s family and his first wife made it amply clear that Ratanlal’s
‘mistress’ was unwelcome in their household. As a result of the verbal abuse and
physical violence that Punjibai had to endure in Ratanlal’s house, she decided to
return to her parents’ house. There she stayed for over a year. During this period
Ratanlal’s family tried several times to take her back but without success. Punjibai
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insisted that she would return only after having been acknowledged as Ratanlal’s
second wife and granted a separate house for herself and her daughter. AsRatanlal
and his family were not willing to accommodate her as his legitimate second wife
she chose to claim alimony. The case went through a lengthy process of
negotiation mediated by relatives and community leaders (mukhiya and sarpânch).
However, the negotiations failed to find a solution both the parties could agree on.
After a year without getting any money from Ratanlal for herself and the little girl,
Punjibai decided to appeal to the police and file for alimony. Because Punjibai
could not afford Rs 1,000 for the police to bring the case to the court, her case
remained unheard. Following the advice of her aunt, a leader of the women’s
group, she approached the Social Reform Committee to seek help and support in
December 2005. The case was negotiated in the women’s court in January 2006.
The issues raised in the Punjibai case included the attribution of responsibilities
and duties between men and women in and beyond the household, concepts of
virginity and blame and the relationship between co-wives in the same household.
Her story thus offered an ideal site for the contestation and interpretation of
gendered norms and codes of behaviour by social actors within the complex fabric
of family and community relations. Here the analysis will focus on how the
‘protagonists’ in the Punjibai case contested norms and codes of behaviour that are
inherent to the highly gendered concept of honour (izzat) during the process of
mediation.
The Process of Mediation
At least eighty people, men and women, have gathered in the tribal village Pai
either to negotiate or to witness the procedure of negotiation in the Punjibai case.
The majority of the onlookers, sitting on the ground under the big shady tree, are
women. A few of them are completely veiled so that only their silver bangles and
anklets can be seen. The assembly is arranged in two opposing half-circles. On the
one side is Ratanlal and on the other Punjibai with her family and supporters. In
front of them, two men and three women, the speakers, are gathered around a
small table, taking notes of the young woman’s story. Ratanlal’s wife, Basantibai,
is standing a little aloof while critically observing the negotiations.
Punjibai is the first to introduce her point of view to the assembly. With a loud but
slightly trembling voice, this young women reports her story to the assembly of at
least eighty people. The end of her red and black synthetic sari completely veils
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her face. The flow of her words is accompanied by the soft jingle-jangle of her
bangles, which dance up and down her bare arms to the rhythm of her gestures.
In her narrative, Punjibai expresses her disapproval of Ratanlal’s behaviour before

and after the baby was born. Ratanlal’s omission to accommodate Punjibai at his
and his family’s house before the baby was born can be viewed as a refusal to
acknowledge Punjibai as his ‘socially accepted’ second wife and thereby a
rejection of his spousal duties. For among the Meena, a marriage to Punjibai
before the birth of the child and without the consent of his first wife would have
been socially accepted and thus possible. To acquire a second wife is a legitimate
and widespread practice. But the initiative for such a marriage has to be taken by
the male. If there had been such a proper marital bond, Punjibai would have been
assured food and shelter by her husband and his family. However, after the birth
of the baby, a marriage, with the performance of all the required rituals, is not
possible any more. They can only live in nâta, a form of cohabitation without a
proper wedding ceremony. While Nâta means forgoing the standard wedding
rituals the ‘bride’ still receives the jewellery and cloths from the ‘groom’s’
family.7 Nâta is thus an accepted form of cohabitation although socially less
respected than marriage. As a consequence, living in nâta makes a woman’s
position in her in-laws’ house more problematic and difficult and renders her more
vulnerable to physical and verbal abuse, as was obviously the case here. The fact
that Punjibai had been ‘brought from the street’, as Ratanlal’s first wife termed it,
and the loss of her virginity (izzat)8 outside of marriage render Punjibai’s situation
7
The Meena distinguish between the girl’s first and second marriage. The first
marriage is performed according the rituals that are mainly adopted from
Hinduism. The wedding takes place in the house of the bride, and the bride’s
parents have to pay for all the expenses of the feast. If the woman is a widow or if
she has been ‘traditionally’ or officially divorced or if she had a baby before
marriage she can get married, but important rituals that define the proper wedding
are in such a case omitted. Although the bride still gets dâpâ (bride-price) and
raqm (silver jewellery) the wedding ceremony cannot be performed in the bride’s
nâtal house but takes place in the groom’s house or in the house of the mother-
brother or sister-father [meaning of these terms unclear] from the groom’s side.
This kind of marriage is called nâta. In the case where a widow lives together with
a man, preferably a widower himself, without having performed any ceremony,
this is also called nâta.
8
The loss of the girl’s virginity prior to the wedding, though condemned in
principle among the Meena, is yet condoned in practice. It does not lead to the
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in Ratanlal’s household very difficult. She therefore overtly accuses Ratanlal of,
first, having spoiled her life by stealing her virginity and, secondly, of neglecting
and mistreating her during the time of their cohabitation. She complains: “They
didn’t care if I had enough food and they beat me up! They scolded me and I had
to sleep outside on a sack. He has spoilt my life [by deflowering her] and now I
have to sleep on a sack!” But even if Ratanlal was willing to fulfil his spousal
duties towards Punjibai, her doubts still linger on by saying; “But if I stayed there,
where is my future? I don’t want to go there as a servant and to do the work of a
servant!” Punjibai’s allusion to her ascribed role as a servant rather than wife takes
into account the highly asymmetric relationship between the first and the second
wives living in the same household, as is common among the Meena. Whereas the
first wife is assumed to be the owner of the house, presiding over the household
and financial matters, the second wife is a mere servant; even marriage does not
equalise her status. She is responsible for the majority of the housework and
fieldwork. Facing these circumstances, Punjibai excludes all possibility of doubt
by firmly stating; “I saw what I had to endure during these fifteen days I lived
there. I won’t stay with them!” To Ratan Lal she says: “If you don’t keep me in
your house you have to give me at least Rs 50,000 rupees for my respect [honour],
so my parents and I will be respected in society again.” Punjibai’s claim clearly
emanates from her narrative. She does not want to return to Ratanlal but she wants
her and her family’s honour to be restored with the payment of compensation for
her lost virginity. Once Punjibai’s family honour is restored they will be free to
wed her off to someone else in nâta, despite the loss of the most prized possession
of an unmarried girl – her virginity. The amount of Rs 50,000 izzat ka paisa
claimed here in the Social Reform Committee is far more than that in the family
gathering or the caste pânchayat, where only rupees Rs 1,000 to 10,000 are
requested. But here, the claim for such a huge sum of money reflects the concern
of the Social Reform Committee not only to restore respect and honour but also to
secure a certain financial security for Punjibai and her daughter while they are
living at her parents’ house.
Ratanlal’s argumentation is obviously driven by the endeavour to reject Punjibai’s
complete rejection of the ‘guilty’ girl as in so-called high caste Hindu

communities. A girl’s respect, here also called izzat, can even be restored by the
payment of izzat ka paisa by the alleged perpetrator’s family. After having
received the money (Rs 1,000-10,000) the girl’s parents are free to have her marry
someone else with a proper wedding ceremony.
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reproaches and to reinstate his reputation as a man of virtue by saying: “During

the time she lived in my house, I gave her everything she needed. I asked her to
stay with us but she only said yes tomorrow, after tomorrow…” Ratanlal’s
narrative depicts Punjibai as a woman of bad temper, who ran away and refused to
stay. He complains:
A few days later, Punjibai’s parents brought her to my place. […]

The pânch said that we have to live together for six months.
After these six months, I will give her jewellery and a decision
will be made. But she only stayed for one month and then she
left.
In his account, it is not a woman’s ‘choice’ whether she wants to stay with her
‘husband’ or not, but more of a man’s or society’s decision, and women have to
bear the consequences of a refusal by facing social and financial neglect and
marginalisation. Ratanlal completely denies the alleged neglect of Punjibai and
further stresses his willingness to live with Punjibai in nâta by giving her the
jewellery. In this respect, Ratanlal rejects all blame for having deflowered a
minor9 and having failed to pay maintenance for his daughter, and re-claims a
reputation as a good and responsible husband. This illustration clearly reflects
hegemonic discourses of gender relations, whereby blame and duty are ascribed on
the grounds of normative female behaviour. The construction of the ideal female
becomes the site for the negotiation of male benefits and female blame that justifies
and reinforces gender asymmetries. As a result the outcome of the negotiation
often discriminates against women.
After both the aggrieved parties have presented their arguments to the assembly it
is now in the hands of Punjibai’s and Ratanlal’s respective speakers, or their
pânch, as referred to by my informants, to ‘convince’ the assembly of their
clients’ case.
Ratanlal’s speaker is the sarpânch of his village, who begins his argument with an
assertion as to whom he considers guilty. He says to Punjibai: “Please don’t get
angry but I only tell you facts. If a girl roams around in the village...” Here the
sarpânch’s narrative highlights the ‘fact’ that women who stroll around invite
9
The legal age of consent by a girl for sexual intercourse according to Indian law
is 16 years. Under section 375 of the Indian Penal Code sexual intercourse with a
woman even with her consent is rape, if she is below 16 years of age.
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trouble. The word ghumna in Hindi or ‘to roam around’ in English, when used in
relation to women, commonly connotes prostitution or women of easy virtue and
thus dishonour. Women’s lives in this rural tribal area are strongly structured by
the concept of honour or izzat. A woman's honour is related to her sexual
purity.To preserve her purity restrictions are placed on her freedom of movement
to protect her from impure and thus improper actions. She has to exhibit chastity
and modesty by conforming to a strict code of behaviour and movement. In short,
a woman’s chastity, purity and modesty structures the relationships between men
and women, the family and the wider community in this rural area in an important
way, which is most likely to the disadvantage of women. On that basis female
duties and expected behaviour are defined within the argumentative framework of
the sarpânch’s indictment of Punjibai. This implies a strongly gendered ascription
of the public and the private sphere that locates the female in the private and the
male in the public domain. From this perspective, girls strolling around in the
public sphere unaccompanied are not acceptable. Whereas chaste and honourable
women are sought to be legitimately confined to the household, men and especially
bus drivers are depicted as sexual and prone to promiscuity. In this vein, the
sarpânch overtly laments bus driver’s weakness for women, by saying, “I don’t
believe in drivers. Ratanlal might have many women in his life”but he finally
blames Punjibai for having invited trouble by making herself available. He asks
Punjibai: “Why did you have to walk into his trap and why are you after married
men?” In the paternalistic scheme of the sarpânch respect and honour of the
family as well as of the society depends on the correct behaviour and conduct of its
women. Men in contrast have to fulfil their financial duties within a conjugal
relationship. In his view, a relationship between Punjibai and Ratanlal can only be
considered “[I]f he has the means to support his family.”
Punjibai’s speaker is Meerabai, a middle-aged, assertive tribal woman and one of

the initiators of the Social Reform Committee. Meerabai is a successful product of
the Women’s Development Program in Rajasthan that was initiated by the state in
1984. Based on an interactive network linking government officials, NGO staff
and women’s groups, the program aimed to empower rural grassroots women in
several districts in Rajasthan. When Meerabai first engaged with a local NGO at
the age of seventeen she was in her own words completely illiterate and did not
know about her right to talk in public, freedom of movement, the right to
assembly, the right to education and the right to work. She proudly says that her
engagement with NGOs over twenty years has changed her life profoundly.
Today, she is literate and holds a leadership position in the Tribal Women’s
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Awareness Society as well as in the local village pânchayat10. In 1994 Meerabai

received the ‘Prime Minister’s Award’ under P.V. Narasimah Rao, in recognition
of her extraordinary and innovative work in the field of women’s empowerment.
Through her long-term NGO background, Meerabai’s view on social norms and
values is strongly influenced by liberal NGO discourses and modern concepts of
gender equality and women’s rights. Here, she creates a strong voice of dissent
during the process of mediation. Her rhetoric overtly challenges the patriarchal
scheme of the sarpânch. In contrast, she asserts Punjibai’s right to move beyond
the confines of the household without putting her own and her family’s honour at
stake. In doing so, her narrative focuses on the malaise of girls’ abuse among the
Meena. In her view, the fact that bus drivers use young girls for their own
pleasure and thus ruin their lives (by deflowering them) has to be made topical.
Then Punjibai “[w]as just ‘one’ of these girls but she could have been anybody’s
daughter or sister sitting here. [To Ratanlal] Don’t get angry but whenever these
bus drivers see a nice girl they get weak in their knees and only have eyes for this
girl. These bus drivers have ruined the lives of thousands of young girls! It is thus
not only Punjibai’s fault, it is also your fault!” Here, the social construction of
men as sex driven and women as mere markers of societal morality is no longer
accepted as a matrix for the definition of right and wrong or just and unjust. Men
have to be called to account for their actions. To Ratanlal she says angrily: “What
right do you have to enter her life?” There is a major difference in the portrayal of
the sarpânch and Meerabai of how blame and duties are allocated between female
and male. Here, Meerabai stresses the equal responsibility of men and women to
control their sexuality. She publicly calls for a woman’s freedom of movement and
the right to talk in public and sheds light on the man’s responsibility to retain his
sexual urge. One would have liked to get to know more about the deliberations of
10
The village pânchayat is, unlike the caste pânchayat discussed above, a
governmental institution. It belongs to one of the three bodies of local governance
set up by the state after Independence in order give the ultimate decision-making
power concerning health, education, and management and protection of natural
resources to the villagers. Gender reform endeavours have not been promoted
solely on the micro level. Promulgations of law by the Indian state clearly
indicate, that they are also a state issue. Further, the enactment of the 73rd
Constitutional Amendment in 1997 gave an entitlement to reserved seats for
Scheduled castes and the Scheduled tribes in the village pânchayat in proportion to
their population. Among these seats 33% are reserved for women in the same
category. In practice, women were given the possibility to participate in local
politics seven to eight years ago (Sathe and Joshi 1999).
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2010 – nr. 60
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the other two tribal women presiding over this process of mediation, who,
although theyapproved Meerabai’s perception, did not assert their own position.
The Decision
The decision taken by the Committee is based on a mutual agreement reached on

the basis of negotiation and is announced as follows:
Ratanlal says that he wants to keep Punjibai. They have to stay

together for four hundred months. After four hundred months he
will think of giving Punjibai her own house, it depends on his
financial situation.
The verdict might come as a surprise because it fails to take into account
Punjibai’s claim to compensation and alimony. Instead, she has to return to
Ratanlal and Basantibai. But it would be wrong not to see the subtle changes
brought by this women’s forum, where the rights of the first and second wife as
well as the man’s ability to provide financial security have to be balanced. Then as
Basantibai, Ratanlal’s wife, reasoned: “You all sitting here should think about this.
If she wants to live separately, how can my husband who earns 100 rupees a day
manage to afford two stoves?” Paying tribute to the complexity of the issue, the
decision discloses a crucial shift in the otherwise hierarchical relationship between
the first and second wives:
In the future Ratanlal has to promise the Social Reform

Committee that he will treat both women equally in his house and
that he will give the same amount of money for maintenance to
both of them.
The verdict that clearly stipulates social and financial equality between the two
wives acknowledges the right of a second wife that was otherwise absent in this
tribal area as well as in the state legal system. In India, although polygamy has
been officially outlawed under the Hindu Marriage Act, 1955, ‘second marriage’
is a common practice in this tribal community as elsewhere in India. The
consequence of this discrepancy between law and practice results in the absence of
any legal status of the second wife. Under the Hindu Marriage Act a second
marriage is considered void, leaving the second wife with nothing but
stigmatisation. Since polygamy is still very prevalent in this rural area, to give
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financial rights to the second wife is important. It has to be noted that women in
Punjibai’s situation are often rejected by their natal family and the chances for
them to get maintenance for themselves and the children from their (ex-) husbands
or lovers by a court ruling are slim. So, in most cases the only option to save these
women from destitution is to send them back to their husbands. The decision taken
in this case reflects the need to ensure social and financial support for Punjibai by
stipulating her right as a second wife.
From a liberal perspective, the Punjibai case has shown the limitations to the
implementation and realisation of gender equality and justice. Ratanlal has not
been accused of rape nor has he been committed to pay maintenance for his child.
The example of the Punjibai case reveals the difficulties for the disentanglement of
deeply rooted patriarchal concepts that are defining for gender identities and the
resultant expectations of behaviour within the family and in the wider community.
In a context where the situation of an individual within the complex field of family
and community relations is a condition of their identity, the decision is ultimately
made according to the interests of the family or community and not necessarily in
favour of the individual. Thus the contestation of a woman’s honour and respect
primarily affects the family and kin and the community and not the person in
question. Nevertheless, to engage in women’s rights narratives using such
concepts as the right to maintenance and gender equality means to embark on a
legal discourse that perceives women as individuals by neglecting their complex
relationships within the family and the community. There is a discrepancy between
the liberal categories of women’s rights and gender equality and women’s claim
for respect and social recognition within and outside the family and community.
The question of how to “do justice” for Punjibai in a modern liberal sense not only
calls into question family and community solidarities and values but also affects
her identity as a good mother, co-wife and daughter (Sunder Rajan 2003: 165). As
Strathern (2004: 208) concludes from her experience with family disputes in Papua
New Guinea, the stumbling blocks on the way to gender equality cannot be
attributed solely to customs and traditions but are very often due to an individual’s
responsibilities and duties within the complex weave of social relationships.
Bearing in mind the importance and complexity of social relationships, I would not
advocate judging the ‘success’ of this women’s forum by modern and liberal
parameters. In fact, I argue for a less monolithic understanding of the categories of
gender equality and women’s rights. Then the institutionalisation of such a legal
women’s forum has certainly affected women’s life in this tribal rural area in an
important way. Having openly claimed their rights to talk and to move in public,
tribal women have become visible and their voices are heard in a domain that was
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2010 – nr. 60
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hitherto reserved for men. The Social Reform Committee now constitutes an arena
where deep-rooted gendered concepts of behaviour and misbehaviour are
challenged and contested by tribal women. The ‘success’ of such an informal
women’s body lies first in the fact that tribal women have created a space where
they are seen and heard in an otherwise male-dominated area, and, second, that in
this space there is room for the (re-)negotiation of otherwise unquestioned relations
between men and women both within and outside the family.
Conclusion
This legal women’s institution, the Social Reform Committee, demonstrates the
different ways in which the ‘garb of modernity’ can be worn in India. India’s first
Prime Minister Nehru intended to modernise India by slipping on her the ‘garb of
modernity’ by virtue of the premises of individualism, democracy, secularism,
liberalism and civil society. This new fashion in Indian politics has been welcomed
by social reformers and feminists in the wake of the modernisation of the Indian
state, putting their hopes for gender and social equality in the new state legal
system. But Nehru felt that, in a country where separate family laws are granted to
its different religious, ethnic and cultural communities and state hegemony is
limited, India never quite fitted into the western ‘garb of modernity’. In fact,
India’s modernity, characterised by the co-existence of so-called ‘traditional’
institutions with ‘modern’ state institutions, demonstrates the plurality of
trajectories of modernisation as well as the plurality of modernity that emerges
from the latter (Therborn 1995; Eisenstadt 2000). Acknowledging these traditional
caste and village councils as part of India’s “entangled modernities”, as Randeria
(2002, 2003, 2004a, b) puts it, allows one to transcend the binary oppositions of
tradition and modernity. On the contrary, so-called ‘traditional’ structures are not
conceived as backward or as (pre)colonial relics, but as constitutive elements of
post-colonial modernity in India as elsewhere (Randeria 2003: 15).
Within the framework of multiple or entangled modernities the Social Reform

Committee sets an example of selective local appropriation of modern values and
practices regarding gender by women in this rural tribal area. The entanglements
of modern NGO-influenced discourses and traditional patriarchal discourses on
women’s and men’s behaviour and duties during the process of conflict resolution
in the Punjibai case demonstrate the selective mix of modernity and tradition in
this local context. Similarly this innovative women’s forum is anchored in both
‘modernity’ and ‘tradition’. Set up by an NGO and modelled on the Jyoti Sangh,
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an urban women’s organisation aimed at reconciliation rather than women’s

independence, the Social Reform Committee incorporates elements of state courts
like written records but also structural elements of the caste pânchayat like the
procedure of negotiation. Given this multilayered and complex nature of India’s
modernity, the ‘success’ of such a women’s forum cannot be judged against a set
of western parameters. Women’s lives are deeply embedded in communal and
familial structures, and liberal concepts of citizenship are absent and also
unrealistic, since the state provides neither women’s shelter, nor social security in
the absence of family and kin. So instead of simply trusting in the state legal
system for the promotion of gender and social equality, it is worth taking into
account alternative legal forums such as the Social Reform Committee for the
promotion of women’s rights and gender equality. This forum is not as unfamiliar
as the far away state courts and its working and functioning is embedded within
the Meena community. With this hybrid legal body, tribal women enter the legal
sphere that was hitherto exclusively reserved to men, and the forum also renders
visible the grievances and concerns of women, otherwise quietly retained behind
the ghunghat or the veil. The Social Reform Committee creates an important space
for these tribal women to openly challenge deeply rooted gender asymmetries and
(re)negotiate their identities as wife, mother, daughter, daughter-in-law etc. in the
context of the complex fabric of kin and family relations within the Meena
community.
Suggestions to be Made
The above-discussed Punjibai case provides important lessons for the implementation
of women’s rights in a local tribal setting, where the influence of state laws is often
absent and/or informal legality is given priority to the abstract vernacular of modern
legality. I therefore suggest to avert one’s eyes from the state legal system as the sole
instance for the implementation of transnational laws, and to follow a new advocacy of
local institutions of informal justice. Women’s rights have to be realised in the context
of their embeddedness in affective ties of the family and solidarity of caste and kinship
networks in which the lives of rural women are inextricably enmeshed. I therefore
argue for a localisation of women’s rights with the support of NGOs where, first, the
access to universal legal ideas has to be locally ensured and, second, these ideas have
to be given meaning within their cultural and societal context. Here the following
suggestions are made:
1. For the practical implementation of women’s rights it is necessary to
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2010 – nr. 60
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conceptualise women beyond the confines of the family and the household
and to render them visible and heard in public. I therefore strongly support
the idea of an alternative women’s forum as a possible avenue for modern
human and women’s right to enter an area that is otherwise highly patriarchal
or corrupt. In my view, to give women a separate space for engagement with
modern liberal ideas and the contestation of gender relations has proved to be
a valid alternative to the patriarchal caste pânchayat and to the far-away and
abstract state courts. But the fact that institutions as such do not change
ongoing arrangements of social relations is well known. In order to gain
social legitimacy, strategies and mechanisms have to be designed to, first,
create rights consciousness on a local level and, second, to make people
apply these laws. Such an informal legal institution needs some sort of
legitimacy within society by either involving community authorities (e.g.
sarpânch in the Punjibai case) or by working with the local police or court.
2. The formulations of women’s rights are often highly abstract and couched in
a language that makes it difficult to understand and to implement on a local
level. It is necessary to adopt a context-sensitive approach that includes a
thorough study of local legal norms in order to make international legitimacy
meaningful in a local setting and so as not to miss local practices that might
be more favourable for women than modern law (e.g. as to the rights of the
second wife).
3. For the implementation of modern women’s rights, a very cautious approach

is required in a context where notions of tradition and culture are often used
as tools to uphold existing gender hierarchies and exclude modern ideas and
ideologies. One way to deal with this dilemma is to adjust international law to
an extent that challenges societal mechanisms that put women’s fundamental
rights at risk. In doing this, one has to be careful not to reinforce already
existing gender hierarchies, by customising too much, or to run the risk of
rejection by modifying too little. In order to make a difference in a woman’s
life, the thinking, feeling and actions of people have to be shaped through
universal modern principles of equal rights of women and men.
4. Last but not least, it has to be stressed that putting non-state legal institutions
into focus for the implementation of human and women’s rights is not to deny
the state’s responsibility to implement and monitor human and women’s
rights policies. Moreover, the state has to ensure and control the effective
implementation of gender equality even in areas where its influence is absent
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by working hand in hand with local NGOs. Therefore, these institutions need
to be linked to the state as well as local authorities to ensure the effective
implementation and monitoring of international laws.
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Randeria, Martin Fuchs and Antje Linkenbach (eds.), Soziale Welt
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HUMAN RIGHTS PROMOTION IN
POST CONFLICT SIERRA LEONE:
COMING TO GRIPS WITH
PLURALITY IN CUSTOMARY
JUSTICE1
Giselle Corradi
Customary Justice in the Current Development Paradigm
Justice sector aid in sub-Saharan Africa has increased significantly during the last
decade.2 The main factors accounting for this are the democratization process that
followed the end of the Cold War and the prevalence of violent conflicts in the
region (Piron 2005: 1). At the same time, the current development paradigm is
characterized by a focus on poverty reduction, where poverty is not just a matter
of material deprivation, but also entails powerlessness, vulnerability, lawlessness
and fear of crime (Narayan 2000). As a result, ‘access to justice for the poor’
features high on justice sector aid agendas as a key strategy to fight poverty
1
My thanks are due to my supervisor, Eva Brems, and to the editors of this
volume for their many constructive comments on earlier versions of this article. I
am also grateful to my colleague Martien Schotsmans and to all the interviewees
who made it possible that the fieldwork in Sierra Leone was a very enriching
experience. This work was supported by the Belgian Ministry of Scientific Policy
in the framework of the programme ‘Society and Future’ 2007 [TA/00/17
AFTRALAW].
2
From an estimated USD 17.7 million in 1994 to USD 110 million in 2002 (Piron
2005: 1)
© Copyright 2010 – Giselle Corradi
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(World Bank Justice for the Poor Programme n.d.; Wojkowska 2006, for the
UNDP Oslo Governance Centre; DFID 2004). Under this paradigm, development
actors increasingly start to show interest in traditional or customary justice since
the latter is in general more accessible to poor people in many regions of the
developing world (Piron 2006: 291; Golub 2003: 1).3 This is particularly the case
in Sub Saharan Africa, where customary justice accounts for about 80% of dispute
resolution (World Bank Justice for the Poor Programme n.d.; Wojkowska 2006;
DFID 2004; OECD-DAC 2007: 11; German Federal Ministry for Economic
Cooperation and Development 2002; SIDA 2002; Penal Reform International
2000). However, development actors remain cautious about engaging with
traditional justice. In the first place, there is a lack of consensus and knowledge on
how to intervene. Moreover, there is the difficulty of reproducing strategies that
are based on specific local circumstances. But probably the main challenge is that
traditional justice is often at odds with rule of law principles and human rights
standards (Perlin and Baird 2008).
In post conflict countries this dilemma is all the more visible.4 On the one hand,
international actors are pressed to support the development of a legitimate justice
system for reasons of peace and security (Sannerholm 2006: 1) and the imperative
to prevent a repetition of abuses committed during the war (United Nations
Secretary General 2004). On the other hand, the formal justice system may have
collapsed during wartime, so that it is not possible to rely on it, at least not in the
short and medium term (Baker and Scheye 2007: 507-511; Widner 2001: 70).
According to Samuels, it takes about twenty years to recreate a criminal justice
system after serious armed conflict (Samuels 2006: 18). In view of this, many
development actors have resorted to traditional justice as a means to fill the gap in
3
The term ‘traditional or customary justice’ is used here without distinction
between the two in order to contrast them with interventions in the justice sector
that address ‘western-like’ justice frameworks. We do not thereby imply a sharp
divide between tradition and modernity, nor an evolutionary view of justice. On
the contrary, the material presented in this paper underscores the dynamic
character of justice frameworks and their porosity (Santos 2002: 437), semi-
autonomous nature (Moore 1973: 719-746), and the transnational processes that
contribute to shape them (Merry 2006).
4
By post conflict we refer to societies emerging from interstate, intrastate (with or
without foreign involvement) and non state armed conflicts: Department Of Peace
And Conflict Research Uppsala University n.d.
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access to justice, while promoting reforms in it so that it complies with

international human rights.
In this paper, I explore the scope, reach and limits of such interventions. Based on
a case study on Sierra Leone, I analyse different strategies for addressing the
tension between traditional justice and human rights. After presenting an overview
of key contextual features, I move towards a discussion of the main initiatives that
are carried out at national and local level, where I examine the kinds of
interventions that are carried out, their objectives and beneficiaries. Finally, I
consider these findings in the light of insights developed by socio-legal studies on
legal pluralism and human rights in cross-cultural perspective, where I argue that
particular attention should be paid to plurality in customary justice.
This analysis is based on qualitative field research carried out during April 2009 in
the capital city, Freetown, and upcountry in Makeni and Bo towns, as well as in
Moyamba district. A total of 58 semi-structured interviews were conducted with a
wide spectrum of actors, including international financial institutions, UN bodies,
bilateral donors and aid agencies, and international NGOs, as well as national
actors and stakeholders, such as ministries, local NGOs, civil society
organizations, traditional authorities, local court functionaries and local consultants
and academics. In addition, grey literature, such as program descriptions, annual
reports and strategy papers were gathered, analysed and discussed with these
actors. The findings emerging from this exercise were further interpreted in the
light of a desk review of qualitative and quantitative studies on Sierra Leone’s
legal landscape, as well as ethnographic and historical material.
Justice Sector Interventions in Sierra Leone: Key Contextual Features
Sierra Leone experienced a brutal civil war from 1991 to 2002. During this
conflict about seventy five thousand people died, and over one million were
displaced, and the worst human rights abuses were committed. Cultural heritage
was destroyed and the country’s economy and infrastructure were devastated. The
Truth and Reconciliation Commission identified failure of leadership, endemic
greed, corruption, nepotism and the subversion of traditional systems by colonial
power and post independence governments as root causes of the conflict (Truth
and Reconciliation Commission, Sierra Leone 2004). While aid in the immediate
aftermath of the war focused on peace keeping and peace building, current
interventions start to shift progressively towards long term sustainable
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development and addressing the causes of the war. This includes improved access
to justice and the promotion of human rights (Government of Sierra Leone 2004:
6, 2005, 2007).
However, many features of Sierra Leone’s legal and political landscape present
challenges to the attainment of these goals. Next to the difficulties presented by the
legacy of the conflict, there is a reality of multi-layered legal pluralism, where an
official dual system of common law and customary law operates next to a whole
range of other informal justice instances and actors. In addition, the promotion of
human rights takes place in a context where certain aspects of the social
organization, such as traditional justice in its various forms, are often at odds with
several human rights standards. Before going into a discussion of how legal
development interventions address this tension in Sierra Leone, in the next lines, I
sketch the backdrop against which these initiatives take place.
Multi-layered Legal Pluralism
Sierra Leone has a dual legal system, where two types of official law operate
concurrently. On the one hand there is general law, which is often called ‘the
formal system’, including the Constitution, laws made by Parliament and common
law. On the other hand there is an institutionalized customary law system, often
called ‘semi-formal’, which is recognized by the Constitution, 1991, section 170,
as part of common law and which is defined as “the rules of law which by custom
are applicable to particular communities in Sierra Leone”. This duality stems from
colonial times, when the territory of modern Freetown and the Western peninsula
became a British Crown Colony in 1808 and was governed by English law. In
1896, a Protectorate was further established to govern the provincial areas by
indirect rule (Alie 1990: 112-164). Under this system, the British colonial
administration ruled over rural Sierra Leone by co-opting and subordinating
traditional authorities to their power, while at the same time enhancing these
authorities’ power over their populations (Maru 2006; Alie 1990). In this way,
chiefdoms were created as administrative units, paramount chiefs were designated
as their rulers and the Native Courts Act was passed, by which chiefs got authority
to adjudicate customary law in their chiefdoms (Maru 2005: 18,19; Alie 1990:
134-135, 152-153). After independence in 1961, the Local Courts Act, 1963, was
passed, by which native courts were replaced by local courts and the power of
chiefs to administer justice was passed to local court chairmen. In this way, a
recognized version of customary law has continued to be part of the formal legal
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system of Sierra Leone to date, albeit with the many changes introduced during
colonial and post colonial administrations. (For discussion of the changes brought
about in customary law by colonial rule see: Kent 2007; Manning 2008a: footnote
27; Archibald and Richards 2002: 343.)
The formal legal system comprises the supreme court, the appeals courts, the high
courts and the magistrate courts.5 These courts have jurisdiction to adjudicate
serious crimes, civil claims in Freetown and some civil claims throughout the
provinces.6 However, different studies on the legal systems in Sierra Leone point
to the fact that the formal system is not the dominant mode of dispute resolution
for the great majority of Sierra Leoneans (Manning 2008a; Dale 2007, 2008;
Baker 2005; Alterman et al. 2002). One of the reasons for this is the
inaccessibility of these courts in terms of distance, costs, including direct costs for
filing a case, eventual fines, time and transportation (Dale 2007: 1-2). Formal
courts are scarce in general, with little to no presence in the provinces as most of
the few existing ones are concentrated in the capital. (Maru 2006). Moreover,
there exist a number of social and cultural barriers, such as language, formality,
lack of information and lack of trust (Dale 2007: 1-2).
About 85% of Sierra Leoneans fall under the jurisdiction of customary law (Dale
2007: 1). ‘Local courts’ are formally and legally empowered to hear and determine
cases involving customary law issues in the provinces.7 They are presided over by
a chairman, who is assisted by a vice-chairman and a panel of elders, by a clerk
and a bailiff, who carry out administrative duties, and by a customary law
5
Magistrate courts are courts of first instance for civil disputes below Le 250,000
(about USD 68) or criminal offences where the punishment is a prison sentence of
less than three years, or up to seven years if the accused consents. A magistrate
court can also be constituted by two Justices of the Peace. High Courts have
original jurisdiction for cases exceeding that.
6
Sierra Leone is divided into three provincial areas: Southern province, Eastern
province and Northern Province and the Western Area, which comprises
Freetown, the capital. Each province is divided into districts (12 in total), which
are further divided into Chiefdoms (149 in total) and these are divided into
sections. Magistrate courts can be found in the provinces up to the district level.
7
According to the senior customary law officer of Sierra Leone, there are 300
local courts spread evenly in the country at chiefdom level, except for the Western
Area. Personal interview, Bo, 14/04/09
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enforcement agency, the chiefdom police. The latter’s main responsibilities are
conducting arrests, seizing property in default of obedience and imprisonment
(Kane et al. 2005: 9). Local courts have jurisdiction within their chiefdom over all
civil cases governed by customary law and all civil cases governed by general law
where the claim does not exceed 250,000 Leones. This limit does not apply to
disputes over land situated in the provinces ownership, use and grants of which are
governed by customary law and for which therefore the court of first instance is
the local court.8 Regarding criminal matters, local courts can hear and determine
cases where the sentence does not exceed six months or the fine does not exceed
50,000 Leones, though in practice these limits are not always respected (Kent
2007: 523).9 Further, no legal representation is allowed at these courts, according
to the Local Courts Act, 1963.
According to a recent survey on local courts, gender disparity is a salient feature

of these forums, which is manifested in respect of both the membership and the
users of courts (Koroma 2007: 5, 6, 26). 94% percent of the members of the
surveyed local courts were male (Koroma 2007: 16) and the majority of the parties
to the cases heard by them were also male (Koroma 2007: 21). Next, this study
found that the kind of cases most frequently handled by these courts are debt
claims (25.3%), breach of chiefdom by-laws (14.49%) and woman palaver
(13.04%).10 Other cases included dishonesty, use of abusive language, marrying
daughter without consent of father, failure to pay local tax, and damage to plants
and crops by cattle (Koroma 2007: 5, 19). The law applied for these cases is
unwritten and varies from community to community. Outcomes depend on the
case, ranging from retributive to restorative measures (Koroma 2007: 6, 22, 24).
This customary system is linked to the formal one by means of an appeal

procedure that places the former below the hierarchy of the latter. In theory, a
8
E-mail communication with Monfred Sessay, senior customary law officer of
Sierra Leone, 21/10/10.
9
Criminal cases, such as murder or armed robbery, are mainly reported to the
Sierra Leone police: personal interviews, April 2009. See also Archibald and
Richards 2002: 343.
10
‘Woman Palaver’ refers to allegations of sexual relations between a man and the
wife of another community member.
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party dissatisfied with the decision of a local court can appeal to the district appeal
court, which consists of a district magistrate sitting with two assessors who are
experts in customary law. Appeals from this court lie to the local appeals division
of the high court, which is constituted by a high court judge sitting with two
assessors. Appeals from decisions of the high court lie to the court of appeal and
finally to the supreme court. In practice though, the appeals procedure is rarely
used.11 In addition, the law provides for regional customary law officers, who are
appointed by the Ministry of Justice and whose functions are to advise on matters
related to customary law and revise local courts’ decisions. However, there are
only three officers for the whole country.12
According to studies on the perception of the law in Sierra Leone, these forums
seem to be the most accepted and best understood formalized system in the
provinces, but they operate as a last resort once other informal mechanisms have
been tried (Manning 2008a: 3; Alterman et al. 2002; Koroma 2007: 23). Amongst
the main problems associated with these forums we find lack of supervision and
judicial independence, with chiefs often interfering in rulings and local courts
overstepping their mandate, for example by imposing abusive fines (Manning
2008a: 5). Further, the accessibility of the system both in terms of distance and
costs is also problematic, though to a lesser extent than in the case of formal
courts. Finally, we find the unpredictability of outcomes due to abuses in the
application of unwritten rules (Alterman et al. 2000: 17) and a lack of training in
case management skills, as well as a gender bias (Koroma 2007).
The following graphic illustrates the relationship between this official customary
system and the formal one:
11
Personal Interviews, April 2009; See also Manning 2008a: 5
12
Interview with the senior customary law officer of Sierra Leone, Bo, 14/04/09.
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Next to this dual system, there operate a range of informal traditional justice
instances and authorities, such as paramount chiefs’, section chiefs’ and village
chiefs’ courts, religious leaders, professional circle leaders, gender and youth
leaders, village elders and family heads, secret societies, and sorcerers (Sawyer
2008; Manning 2008a; Manning et al. 2006; Baker 2005; Kane et al. 2005;
Alterman et al. 2002; Archibald and Richards 2002).The instance where conflicts
are first reported depends on the type of conflict and the community (Foster et al.
2008: 34), but according to various studies, most Sierra Leoneans prefer to solve
conflicts at the community or at the closest related unit since it is considered a
failure to bring a case to a court (Manning et al. 2006: 13).
Chiefs are present in each human settlement in Sierra Leone and they are legally
empowered to mediate or arbitrate but not to adjudicate, though in practice they
often do (Manning 2008a: 6, Manning et al. 2006: 13). They play an important
role in solving disputes and providing more affordable and speedy solutions to
conflicts (Sawyer 2008), but their popularity varies from chiefdom to chiefdom
(Manning et al. 2006). For many, this means of dispute resolution is perceived as
an initial formal forum, in contrast to the actual legal mandate of chiefs. Cases are
not often referred to nor appealed from chiefs’ courts due to their authority and
power, but when this happens, cases are likely to be taken up in the hierarchy of
chiefs, i.e. from a section chief’s court to a paramount chief’s court (Fortes et al.
2007: 35). In addition they apply traditional community rules, called by-laws.
Religious leaders also play a role in mediation, as do women, youth and
professional circle leaders regarding intra-group disputes (Alterman et al. 2002:
30, 31; Manning 2008a: 7).13 Also paralegals and peace monitors are often
13
According to the 2004 National Census, 77% of Sierra Leoneans are Muslim,
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approached for advice and mediation, where modern and traditional laws and
views of justice are combined in the treatment of cases with high rates of
satisfaction (Sawyer 2008; Maru 2006: 427, 476; Baker 2005: 381).
Sorcerers and supernatural forces are part of the informal legal landscape too
(Manning 2008a; Sawyer 2008; Alie 2008; Fanthorpe 2007; Kane et al. 2005;
Alterman et al. 2002). Belief in the supernatural seems to be quite strong in some
communities, and infractions of certain rules are feared to bring illness and
misfortune, not only to the person in question but also to the community (Alie
2008: 136). Diviners are often relied upon for the identification of culprits or for
planting curses (Sawyer 2008; Kane et al. 2005: 15; Alterman et al. 2002: 33). In
addition, certain matters are handled by sodality groups, called secret societies
(Fanthorpe 2007: 4; Kane et al. 2005: 15; Alterman et al. 2002: 31, 32). These
are single sex communities the purpose of which is to regulate sexual identity and
social conduct, while canalizing and controlling powers of the spirit world
(Fanthorpe 2007: ii, 1). They prepare men and women for adult life by means of
initiation ceremonies, forming solidarity networks amongst age groups who are
initiated in the same event (Fanthorpe 2007: ii, 1).14 Their activities include
meetings that are open only to society members and where decisions are taken
affecting many aspects of open communal life. For example, in most communities
leaders must hold a certain rank in the hierarchy within the secret society in order
to be legitimately entitled to become chiefs (Alterman et al. 2002: 32). Secret
societies have their own laws, procedures and penalties and they try breaches of
obligations of membership, imposing fines and punishments (Archibald and
Richards 2002: 344). These institutions are deeply rooted in Sierra Leonean
culture (Archibald and Richards 2002: 344), though according to some reports
their importance is in decline in some communities (Manning 2008a: 7). However,
because of their very nature, their actual role and functioning in terms of justice
administration remains difficult for outsiders to assess.
Consequently, traditional or customary justice in Sierra Leone cannot be identified

with a single institution or actor, but is embodied by a range of instances, actors
21% are Christian and 2% follow no religion, but the majority combine these
religions with traditional beliefs (Manning 2008a: footnote 43).
14
In rural Sierra Leone, initiation is a requisite for full integration of the individual
as a community member. In the case of women, this includes circumcision
(Fanthorpe 2007).
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and practices with varying degrees of state recognition and local legitimacy. In
other words, we find a combination of ‘state law pluralism’, arising from the
recognition and incorporation of parts of customary law into the state legal system,
and ‘deep legal pluralism’, in which state law coexists with informal customary
law (Woodman 1996: 157, 158).
While the relationship between different forms of governance at local level has
been addressed by several authors (Manning 2008a; Richards 2008; Thomson
2007; Jackson 2006; Fanthorpe 2005), the ways in which all these layers of justice
relate, influence, contest and constitute each other, is a domain that needs further
exploration. According to Sawyer,
… the formal and informal spheres are for the most part separate,
though there is occasional interpenetration and overlap, and
plaintiffs can and sometimes do pursue claims in different spheres
simultaneously (Sawyer 2008: 393).
In addition, according to the findings of the World Bank’s programme Justice for
the Poor (J4P) in Sierra Leone, it is not always the choice of the persons directly
involved in a conflict whether to take it to higher levels for resolution. It is often
the family elders or the village headmen who decide on the necessity to bring a
case to a section or a paramount chief.15 Finally, certain forms of interaction are
overt and official, whereas others are rather unofficial or concealed. A case in
point is the appointment procedure of local court chairmen, which falls under the
responsibility of the Ministry of Local Government, on the recommendation of the
paramount chief of the region. On the one hand, this practice has been criticized
since it undermines the independence of local court chairmen with regard to
chiefs, who would often interfere with verdicts and even request cases to be
transferred to their own informal courts (Daramy 2008).16 On the other hand,
15
Interview with J4P Sierra Leone, Freetown, 09/04/09. The World Bank
Programme ‘Justice for the Poor’ in Sierra Leone conducts qualitative and
quantitative research on how justice and governance function at community level
with the purpose of informing operations.
16
Note the link with what Shaw refers to as ‘Temne constructions of power and
agency’, whereby power and control of a situation are linked to the capacity to act
upon it by indirect or hidden means and the capacity to act through others by
subsuming their agency (Shaw 2002: 96).
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though no official training or qualification is required to hold the position of local

court chairman, it is known that these persons are often required to be senior
secret society members, which, since this is not public information, necessitates
the involvement of the chiefs. (Personal interviews, Sierra Leone, April 2009;
Kane et al. 2005: 15. For further discussion of the ‘unspoken’ political role of
civil societies see Fanthorpe 2007). Further exploring these issues would provide
us with a richer understanding of how legal pluralism actually operates and what
possibilities and challenges it poses for the promotion of human rights.
The Legacy of the Conflict
With the end of the civil war, new opportunities opened for reviewing the
organization of justice in Sierra Leone. In part, these result from the fact that the
weaknesses found in the administration of justice after the conflict were not only
associated with the legacy of the war itself, but went back to pre-war times
(Thompson 2002: 5). During the conflict, the judiciary was severely affected at all
levels (Keen 2003: 74). State institutions, including magistrate courts, were
systematically targeted, bringing the activities of formal courts in the provinces to
almost a complete halt (Thompson 2002: 10). In those regions where local courts
were not attacked they continued to function but without any government support,
the - often arbitrary – fines they imposed being their only source of income
(Thompson 2002: 11). The role of chiefs in the administration of justice was also
affected during wartime, since they were specifically targeted during the conflict
(Archibald and Richards 2002: 344).
However, endemic problems, such as a corrupt administration of justice, the lack

of presence of formal courts in the provinces, underinvestment in infrastructure
and underfunding of formal and local courts, though aggravated seriously by the
war, were not caused by it. On the contrary, the politicization and lack of
independence of the judiciary (Thompson 2002) and the manipulation of justice by
chiefs in pre-war times, in combination with the poverty and marginalization that
affected the youth in particular, have been identified as factors lying at the roots of
the conflict (Archibald and Richards 2002: 345). Many chiefs and elders who
controlled the rural judicial system used to hand down excessive fines and
compelled their subjects to work for them without payment. This generated
grievances against them and led several youths to join the rebel movement out of
frustration (Fanthorpe 2005: 30, 31), or to settle “old scores for justice gone sour”
(Archibald and Richards 2002: 344).
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These insights have led scholars to argue that, in order to avoid a repetition of
violence, a revision of exclusionary social practices, and especially those found in
the justice sector, is needed. Positions vary regarding the means to attain this. On
the one hand, we find the view that what is needed is to abolish unsupervised and
undocumented judicial practices and to challenge abusive practices by exemplary
appeals to higher courts (Richards 2005: 587). On the other hand, we find the
position that customary institutions should not be abolished for they remain the
closest to the rural populations (Sawyer 2008; Fanthorpe 2005). According to this
argument, what is needed is a comprehensive reform in order to increase their
downwards accountability and transparency (Fanthorpe 2005: 45). In both
scenarios, human rights could offer a powerful framework to contest elite
privileges and enhance the inclusion of marginalized groups.
Social Organization, Justice and Human Rights in Sierra Leone
Several aspects of the social organization in Sierra Leone have been identified as
marginalizing and unfair. Some scholars refer to this social configuration as a
‘lingering gerontocratic tradition’ (Manning 2008a), whereas other characterize the
context as one ruled by autocrats, where power is concentrated in the hands of ‘big
men’, where violence is part of everyday life and with a failed social infrastructure
(Maru 2006: 8, 9). In human rights terms, this comes down to the exclusion of
many Sierra Leoneans, and in particular certain categories of persons, such as
women, children, ‘youth’ and ‘strangers’, from civil and political rights, as well as
social and economic rights.17 In varying degrees, this is reflected at all layers of
the administration of justice, so it would be inaccurate to regard this problem as
one of customary justice alone.
At the formal level, Sierra Leone is a signatory to the main international and
regional human rights conventions. Treaty provisions have to be domesticated into
national laws, which according to the Sierra Leone Human Rights Commission,
has not been satisfactorily done (Human Rights Commission of Sierra Leone 2007:
ix). For example, the National Constitution is contradictory in that some sections
17
The term ‘stranger’ refers to a migrant from another region of the country,
whereas ‘youth’ is not necessarily defined by age, but rather socially as a person
who is unmarried, landless and without economic and political power (Manning
2008b: 2).
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grant the protection of the rights of women and discourage discrimination (section
6(2)), whereas other sections allow discrimination under laws of adoption,
marriage, divorce, burial, property and aspects of personal law (section 27). In
2007, the Government of Sierra Leone enacted the Gender Acts, i.e. the Domestic
Violence Act, the Devolution of Estates Act and the Registration of Customary
Marriage Act, as well as the Child Act in order to domesticate the Convention on
the Elimination of all forms of Discrimination against Women and the Convention
on the Rights of the Child. This legislation represents an advance in the protection
of women’s and children’s rights, though certain areas still fall short of
international standards, such as the silence regarding the prohibition of female
circumcision (Mannah 2007). However, the path that needs to be walked before
these laws are effectively enforced, including their dissemination and improved
access to justice, is long (Kamara 2008).
In addition discrimination against women in customary law and justice is one of

the most problematic human rights issues throughout the whole country (Human
Rights Commission of Sierra Leone 2007: 22; United Nations Committee on the
Elimination of Discrimination Against Women 2006; Amnesty International 2006).
At present traditional justice in its various forms tends to be male-dominated and
patriarchal. This is reflected in traditional laws related to land tenure and
inheritance, where women are not allowed to own or inherit property, in
customary marriages, where women fulfil a subservient role towards their partners
and are inherited upon their husband’s death, in the husband’s right to punish his
wife, and in the exclusion of women from participation in many spheres of
political life, amongst others. These discriminatory customs result in widespread
violations of women’s most basic human rights, including lack of access to a fair
hearing, unlawful imprisonments and punishments, a lack of respect for their
physical integrity, disrespect for their property rights, as in the case of forceible
evictions from their homes and land, and high levels of domestic and sexual
violence, which represent a significant obstacle to reducing poverty. 18
Children are also subject to discrimination, particularly in the case of the girl
child. Clear examples of discriminatory practices are the forced betrothal of girl
children and early marriage, which are often related to dowry transactions.
18
For instance, according to the testimony of a woman from Kenema town, local
court officials put her in a box in public all day to humiliate her as a punishment
for not signing divorce papers that would deprive her and her children from any
maintenance rights (Amnesty International 2006: 5, 6).
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Moreover, only local ‘citizens’ have access to local courts, whereas ‘strangers’
can only access a local court through a local citizen protector (Archibald and
Richards 2002: 344).19 Another salient feature of customary law is its oral
character, which in many cases has resulted in manipulation, abusive fines and
arbitrary trials (Archibald and Richards 2002: 344). Corporal punishment was
reported to be in decline, though this is probably only the case at local courts and
adjudication by chiefs, whereas it remains unclear if it is also the case within
secret societies.20
A recent survey on people’s knowledge, attitudes and perception of human rights

in Sierra Leone further confirms the challenge of mainstreaming human rights in
this country.21 This study found that 40.5% of respondents think their knowledge
of human rights is low, compared to the 19.7% who think it is high. In terms of
human rights awareness, less than half of the respondents were aware of the
Domestic Violence Act, and only 0.7% knew the Devolution of Estates Act.
Though respondents supporting gender equality were on the majority side, 81.7%
of respondents agreed that women were obliged to have sex with their husbands,
even if sick, which reveals the resilient character of patriarchal ideas.
To sum up, the promotion of human rights and access to justice in Sierra Leone
takes place in a context characterized by at least the following challenges: a
history, and in particular the recent experience of brutal conflict, pointing to the
compelling need to reform exclusionary practices and institutions; a legal
landscape that combines ‘state law pluralism’ and ‘deep legal pluralism’, where
customary justice in its various forms is the most accessible to the majority of the
population; and the fact that customary justice is often at odds with several human
rights and it is composed by a multiplicity of layers that are not always easy to
reach for outsiders.
19
‘Local citizens’ are persons from the town, whereas ‘strangers’ are migrants
from other regions of the country.
20
Personal Interviews, April 2007. According to some authors, human sacrifices
are carried out within the secret societies in order to assuage the spirits (Fanthorpe
2007, citing Bellman 1975).
21
See Human Rights Commission of Sierra Leone 2009.
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Addressing Human Rights in Sierra Leone’s Customary Justice
Against this background, a sort of consensus seems to have arisen amongst

national and international development actors active in the justice sector, whereby
traditional or customary justice is seen as a key component of what these actors
have termed ‘primary justice’, i.e. justice at the community level.22 As such,
traditional justice plays an important role in improving access to justice, especially
for the poor. For this purpose, these actors point to the need to reinforce
traditional justice by building on its positive features, while modifying or
eliminating the negative ones, such as the tension with human rights.23
In our study of the interventions that have addressed this domain we have
identified four main strategies, each dealing with customary justice at a different
level: first, the enactment of legislation at the national level regulating problematic
aspects of customary law; second, interventions at the level of local courts, such as
the restatement of customary law and capacity building, including human rights
education for local court personnel; third, sensitization and human rights training
for traditional authorities, and fourth, awareness raising activities at the grassroots
level in order to promote an understanding of human rights issues and the working
of the justice system. In addition, a series of initiatives have been undertaken,
whose main objective may not be to address the tension between traditional justice
and human rights as such, but which in practice deliver a significant contribution
to this end. This is the case of the provision of paralegal services and peace
monitoring schemes.
Enacting Legislation to Regulate Customary Law and Justice
At the national level, the enactment of the abovementioned Gender and Child Acts
introduced a new frame for the regulation of several aspects of customary law.
The Registration of Customary Marriage and Divorce Act provides for the
registration of customary marriages and divorces so that marital status can be
proved. In addition, it forbids marriage below the age of 18 and it requires the
consent of both parties. It also confers on women the right to acquire and dispose
of property in their own right, and it abolishes the return of dowry in case of
22
Personal Interviews, April 2009.
23
Personal interviews, April 2007.
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divorce or separation. The Devolution of Estates Act modifies customary law by

introducing a principle that both husband and wife have the right to inherit
property from each other. In addition, male and female children are given the
same inheritance rights. Further, it prohibits involuntary wife inheritance. Finally,
the Domestic Violence Act introduces a new offence of domestic violence, which
should modify the stance of traditional justice towards condoning certain forms of
conduct, such as wife battering. The Child Act refers to the prohibition of forced
marriage and dowry transactions and it provides for the right to inherit from
parents, whether or not a child was born in wedlock. However, these steps are
seriously undermined by the fact that section 27(4)(d) of the Constitution, which
takes precedence over these laws, tolerates discrimination with respect to
“adoption, marriage, divorce, burial, devolution of property on death or other
interests of personal law” (Kamara 2008).
The Ministry of Social Welfare, Gender and Children’s Affairs (MSWGCA) is the
lead agency in the implementation of this legislation through a three year (2009-
2011) ‘Strategic Roll Out Plan’, which includes a series of initiatives related to
primary justice (MSWGCA n.d.).24 However, the implementation of this plan is
seriously undermined by a lack of funding and capacity. The MSWGCA has one
of the smallest budgets, with current government priorities lying elsewhere. As a
result, by the time of our visit to Sierra Leone, the Ministry had not been able to
attract the necessary funding and these activities could not yet be properly
undertaken.25
In addition, a ‘Local Courts Bill’ has been in the process of being drafted with the
support of the Justice Sector Development Programme (JSDP).26 This law reform
aims at depoliticising the local courts and reviewing aspects of their functioning
that interfere with the right to a fair trial, such as the appointment of local court
24
This plan was developed with the technical support of the Human Rights
Commission for Sierra Leone, the International Rescue Committee, UNIOSIL and
Action Aid and with the financial support of UNIFEM and Irish Aid.
25
Interview with an official from the MSWGCA, Freetown, 17/04/09.
26
JSDP is a five year programme (2005-2010) of the Government of Sierra Leone
funded by the UK Department for International Development and managed by the
British Council (British Council 2004, 2005). The programme is closely linked to
the Justice Sector and Reform Strategy and Investment Plan of the Ministry of
Justice and the Ministry of Local Governance.
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chairmen on the recommendation of chiefs, which is proposed to be transferred to

the Chief Justice, on the recommendation of a ‘local court service committee’.27
Restatement of Customary Law and Capacity Building at the Semi formal Level
Local courts have been targeted by different initiatives, the ‘restatement’ of

customary law and human rights education being amongst the main ones. Under a
pilot project of JSDP in Moyamba district, a ‘restatement’ of the customary law of
the local courts of the 14 chiefdoms of the district has been recently completed.
The exercise was carried out by the senior customary law officer of Sierra Leone
assisted by local court clerks, who by means of consultation with the communities
and traditional authorities arrived at a first written version in English of the
customary laws in place. The purpose of this intervention is to register the
customary law as it is being used at the level of local courts in order to identify the
areas that contravene human rights and modify them. Once this exercise has been
completed and the final version approved by the ministry of justice and local
traditional authorities, this pilot project would serve as a model to be scaled up to
eventually arrive at a national codification.28 Even though codification has been
generally rejected by most scholars on the basis that it ‘freezes’ tradition, in Sierra
Leone the dominant view amongst most national and international actors remains
that the unwritten character of customary law has led to uncertainty and abuse,
which can be remedied by writing it down and making it publicly known.29 In this
sense, it is worth to notice that the customary law that is being registered is the
one used at the level of the local courts. Considering that customary law varies
from community to community, the question remains whether it is feasible to scale
up this project to cover the whole country, how ethnic differences will be dealt
with, and whether enough funding will be available for it.
In addition, research on the functioning of local courts led JSDP to conclude that
27
Paramount chiefs would continue to form part of these committees, but their
influence would be limited by the presence of other members. Interview at Court
Monitoring Programme, 07/04/09; Interview at JSDP, 09/04/09.
28
Interview with an official from the JSDP, Freetown, 09/04/09; Interview with
Customary Law Officer, Bo, 14/04/09; Interview with an official from the JSDP,
Moyamba, 15/04/09.
29
Personal Interviews, April 2009. See also Kane et al. 2005: 24, 25.
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there is a need for capacity building, so a training manual is being developed for
this purpose, including a module on procedures and jurisdiction of the local courts,
a module on human rights, and a module on records management, which will be
used to train the local courts’ staff. Support to the capacity of local courts extends
to infrastructure as well, with the provision of material for record keeping, which
would be used in case of appeals. Also the Roll Out Plan of the MSWGCA
foresees strengthening local courts by providing them with copies of the Gender
Acts together with guidelines, case law from elsewhere and sentencing guidelines
(MSWGCA n.d.). Further, the United Nations Integrated Peacebuilding Office in
Sierra Leone and UNDP have registered plans to support human rights monitoring
and training at local courts in collaboration with the customary law officer.30
However, local court personnel are known to change according to political moves,
which undermines the effectiveness of these initiatives.31
Sensitising Traditional Authorities
In view of the prominent role traditional authorities play in their chiefdoms and
their influence over their communities, development actors cannot afford to ignore
them in their programmes.32 Chiefs are present in every community whereas
formal and local courts present problems of access and capacity. Therefore,
development actors consider their role as mediators at the grassroots as a valuable
resource for improving access to justice and avoiding court congestion.33
However, traditional authorities have been criticised for a lack of transparency and
fairness in the administration of justice and they are amongst the groups that
contest certain human rights. Consequently, chiefs and traditional authorities are
targeted for sensitization about human rights in order to bring about change ‘from
inside’ (Kane et al. 2005: 22). Such is the case of UNICEF’s initiative ‘Chiefs
Champions for Children’, which aims at getting traditional chiefs to promote girl
30
Interview with an official from UNIPSIl, Freetown, 08/04/09. See also UNDP
2009.
31
32
33
Interview with an official from the JSDP, Freetown, 09/04/09; Interview with
officials from the Ministry of Justice Sierra Leone, Justice Sector Coordination
Office, Freetown, 09/04/09.
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child education, and denounce early marriages and female circumcision, amongst
other acts.34 The United Nations Population Fund supports the formation of
community leaders’ networks, with the purpose of reinforcing their capacity to
promote human rights.35 Also the MSWGCA Roll Out Plan foresees sensitization
activities for chiefs, elders, mammy queens, and youth and religious leaders
(MSWGCA n.d.). This aims to gain the support of traditional authorities regarding
the Gender laws, while delineating their different roles under the new Acts. In
addition, this plan deems the education of ‘key influencers’, such as traditional
authorities, a crucial step due to their role in disseminating these laws, including
through ‘traditional channels’.36 The Pilot Project of JSDP in Moyamba district has
also involved traditional authorities in their ‘task force’, including a paramount
chief who is a member of the human rights committee.37
All these initiatives aim to generate the collaboration of traditional authorities in

the promotion of human rights, which would eventually be reflected in the
incorporation of human rights ideas in the way they deal with conflict resolution.
At the same time, chiefs are sensitized to devolve adjudication to the local courts,
which would result in fairer trials.38 This is complemented by informing
communities about the official role of the chiefs in the justice sector. For example,
JSDP is piloting a community mediation scheme that encourages people to
reconcile when they have problems rather than resorting to chiefs’ courts for
adjudication.
34
Interview with an official from UNICEF local office, Freetown, 08/04/09.
35
Interview with officials from United Nations Population Fund (UNFPA) local
office, Freetown, 06/04/09.
36
Though not explicitly mentioned in the Roll Out Plan, this refers to secret
society meetings.
37
Interview with Paramount Chief Joseph Ali-Kavura Kongomah II, Fakunya
Chiefdom, 15/04/09.
38
All national and international organizations that were interviewed coincided in
agreeing that the role of chiefs should be to mediate or arbitrate but not to
adjudicate. Personal Interviews, April 2009.
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Raising Awareness at the Grassroots
At the demand side of justice, different awareness raising campaigns have been
organised aiming to produce a better understanding of the justice sector and an
internalization of human rights at the grassroots. The dissemination of the Gender
and Child Acts at community level has been envisaged by various organizations,
including JSDP, the Lawyers Centre for Legal Assistance (LAWCLA), and the
MSWGCA. The latter foresees community meetings and discussions led by ‘key
influencers’, such as traditional authorities, whereas LAWCLA has developed user
friendlier versions of these laws. Further, JSDP plans to bring the results of the
restatement of the customary law back to the communities, where traditional
practices found to contravene human rights will be exposed with reference to the
new national legislation.
The integration of the new laws into the national and teacher training curriculum
has been another way of addressing the issue. UNICEF has supported the
incorporation of new curricula at schools, where children learn about their rights
and more progressive gender roles.39 In addition, illiterate people are targeted by
radio programmes, community drama and story telling, community cinema
projections and music. The use of theatre, social drama, storytelling and songs for
the promotion of community discussions on traditional values and human rights are
popular techniques for opening up discussions on human rights issues since they
build on the African oral tradition, which is culturally closer to the communities
than formal trainings.40 In doing this, some actors have tried to identify local
practices and ideas that reinforce those values that can also be found in human
rights, so that the concept is not perceived as strange or coming from outside.41
Finally, paralegals and ‘peace monitors’ also play an important role in raising
human rights awareness at the grassroots. These organizations do not address the
tension between customary justice and human rights directly, but they provide
different services at community level, such as mediation, education, advocacy and
free legal services, thereby constituting an alternative to other local channels to
39
Interview with an official from UNICEF local office, Freetown, 08/04/09.
40
Interview with an activist from ‘Community Organization for Mobilization and
Empowerment’ (COME) Sierra Leone, Bo, 14/04/09. These activities have been
financed by JSDP. See also Jalloh and Braima 2008.
41
Interview with officials from UNFPA local office, Freetown, 06/04/09.
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seek justice.42 Working with local respected people facilitates the acceptance of
these schemes, which, in principle, constitute some form of ‘competition’ with
local traditional authorities. This is mitigated by a search for cooperation and
mutual involvement. In his study of customary justice and human rights in rural
Sierra Leone Kent describes how a positive interaction between paralegals and
other customary justice actors can be built, as in cases where they consult with
each other on the way to resolve their respective cases (Kent 2007: 525). This in
turn enhances the implementation of human rights by means of a process of
‘societal norm internalization’, which takes advantage of the openings provided by
the dynamic nature of customary law and the contestation of cultural norms. (Kent
2007). In addition, though some paralegal organizations offer legal representation,
they also draw on customary law for the resolution of cases, working as a bridge
between the two regimes (Maru 2005: 22).
Another community mediation scheme that has gained popularity is that of ‘peace
monitors’, which are respected individuals in their communities, sometimes even
the chiefs themselves, who receive training on conflict management techniques and
human rights, which is linked to local traditional methods of compromise and
conflict settlement. During meetings and dialogues, the peace facilitators, the
conflicting parties and community members analyse the causes, consequences and
solutions to their problems.43
Finally, it is worth noticing that interventions aimed at improving the quality of

justice at the formal level can have an indirect positive impact on human rights in
customary forums, either by providing for ‘negotiation resources’ in the
interpretation of traditional laws or by providing for competition (Oomen 2006).
Dealing with Plurality in Customary Justice
The above mentioned strategies are in line with one of the main lessons learnt
from the well known debate on human rights regarding universality and cultural
42
Interview with a member of ‘Timup for Justice’, Freetown 09/04/09, Interview
with a member of ‘Timup for Justice’, Bo 14/04/09.
43
Interview with a member of ‘Conciliation Resources’, Freetown, 08/04/09;
Interview with members of ‘Conciliation Resources’ Bo, 14/04/09, Interview with
members of ‘Peace and Reconciliation Movement’, Bo, 14/04/09.
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diversity, namely, that justice systems, and culture in general, are open and
dynamic, and that tradition and custom are not static, so that the tension between
local perceptions of social order and human rights ideas can be bridged (Cowan et
al. 2001). However, when turning to the difficult question of how to achieve this
in practice, we find partial answers that can inform interventions. Several scholars
draw our attention to the notion of dialogue and struggle around the ‘legitimacy’,
both of human rights and of custom. An Na’Im argues that compliance with human
rights should stem from their legitimacy in the societies where they are to be
applied, which becomes possible through an enhanced interpretation of cultural
norms (An Na’Im 1992). For this purpose, a process of ‘internal discourse’ is
necessary, where disadvantaged persons can challenge the monopolization and
manipulation of the interpretation of cultural norms by powerful individuals,
groups and their interests. The exercise of restating the customary law seems to
open an opportunity for a more inclusive interpretation of customary rules,
provided that there is room to hear all voices and contest interpretations that
perpetuate oppressive understandings.
It remains to be seen which approach will be followed to address those customary

norms that are found to contradict human rights. In this sense, scholars have
pointed out that taking seriously the social legitimacy of custom implies that
reforms should result from an internal critique and cannot be imposed in a top
down fashion (Kane et al. 2005). In addition, Merry argues that ‘localizing’ human
rights implies a process of ‘vernacularization’, where on the one hand human
rights ideas are translated into frameworks that are relevant to the life situations of
grassroots people, and, on the other hand, these ideas are appropriated by these
people to the degree that they are useful in the advancement of their interests
(Merry 2006: 219). Kent refers to these processes as the ‘societal internalization’
of human rights into areas governed by customary law, so that the latter evolves in
line with these international standards (Kent 2007: 511). The recourse to
community insiders and local agents of change as allies in the implementation of
human rights could facilitate such processes of vernacularization, but at the same
time this requires some degree of monitoring so that the emancipatory dimension
of human rights standards is not ‘neutralized’ by interpretations that reproduce a
status quo, or is even lost in the translation.
In this sense, the feature of ‘plurality’ in customary justice is key to an

understanding, for it ranges from more or less formalized customary laws, as
applied at the level of local courts, to arbitration by chiefs and mediation by
elders, family heads and respected persons. As the evidence from Sierra Leone
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shows, the great majority of ‘social order’ issues are negotiated rather than taken
to court and sorted out according to pre-established rules. This reality compels us
to think of customary justice and legal pluralism in a pluralistic way, where the
focus not only goes to the diversity of courts and norms and how human rights can
be implemented at that level, but to a deeper diversity that operates at the level of
how societies imagine justice, or in the words of Geertz, other ‘legal sensibilities’
(Geertz 1983: 175). In Sierra Leone this is exemplified by those dispute fora that
are more inclined to apply norms and rules explicitly, such as the local courts, as
opposed to those that resort to negotiation and consensus building, such as family
heads and local leaders. Therefore, a more explicit understanding is needed of how
the different ‘layers’ of customary justice, their particular ‘logics’ and ways of
operating present different challenges and opportunities to the implementation of
human rights.
In turn, this brings us to a focus on justice from the perspective of ‘process’

(Moore 1978) and how the different ‘layers’ of justice interact with each other. In
this sense, we realize that the interplay between interventions at national, semi-
formal, informal and grassroots levels is crucial. In the present case study, we find
that the different layers of traditional justice are differently targeted and affected
by interventions. Customary justice, as it is found at the level of local courts, is
the one that is most explicitly engaged with for the promotion of human rights by
means of the restatement of customary laws, the regulation by national legislation,
training, and monitoring, whereas ‘deeper’ informal layers, such as the justice that
is applied within secret societies, is hardly ever discussed in the frame of
interventions. One wonders whether awareness-raising initiatives and sensitization
of chiefs and traditional authorities on human rights issues have an impact on the
way justice operates within this realm.
Moreover, a gender perspective is required when engaging with plurality in

customary justice. In Sierra Leone, most users of local courts are men. The fact
that there exists a gender disparity at this particular layer of customary justice
should lead us to a reflection on who is actually benefiting from each intervention.
Would a focus on improving local courts guarantee better access for women?
Should interventions instead focus on other fora to which women currently have
more access? Or both? Resources are limited, so it is necessary to evaluate how
the expected outcomes are likely to reach and benefit as many persons as possible,
and in particular those that are frequently excluded.
Finally, the other side of the coin in this debate is how much room these
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interventions foresee for an inclusive conceptualization of human rights (Brems

2001). On the one hand, this means that human rights' universality does not imply
uniformity so they can be differently interpreted depending on the particular
context where they operate. On the other hand, it means that the definition of what
human rights are, is also dynamic. An Na’im refers to this in terms of a ‘cross-
cultural dialogue’, whereby human rights become legitimate through the
contribution of different cultural traditions (An Na’im 1992). It exceeds the scope
of the present case study to perform an analysis of what an inclusive understanding
of human rights would look like in the light of the different Sierra Leonean
traditions, but this is certainly an issue that deserves consideration.
Conclusions
Engagement with customary justice in the frame of post-conflict justice sector aid
is often guided by the aim to improve access to justice. At the same time, this
entails undertaking initiatives that bring customary justice into line with human
rights. The findings in the present case study suggest that policy makers and
practitioners designing interventions in this domain should take account of two
different but related issues. On the one hand, it is necessary to recognize that a
binary approach, i.e. ‘the formal’ vs ‘the customary’, does not take account of the
reality on the ground, which is characterized by a much greater plurality. The
colonial experience of many sub-Saharan African countries resulted in a
multiplicity of ‘layers’ of customary justice. However, most interventions
addressing customary justice deal with the ‘most visible’ actors, i.e. local courts
and chiefs, whereas other actors that fulfil a key role in maintaining local order,
such as religious and group leaders, elders, family heads, secret society authorities
and sorcerers, are at best indirectly targeted by awareness-raising activities that are
directed to the community in general and which address general issues.
On the other hand, we find the need to engage with different ‘logics’ or ways of
understanding justice. Most interventions aim at getting customary rules in line
with human rights. However, it is mainly local courts, and to some extent the
chiefs, that are inclined to apply a priori defined rules in the resolution of
conflicts. Elders, family heads and group leaders, are more inclined to solve
conflicts by means of mediation and consensus building, whereas secret society
heads and sorcerers operate according to ‘logics’ that are hardly ever considered in
relation to human rights. A cross-cultural approach that considers the particular
challenges and opportunities that these different ‘logics’ represent to the
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implementation of human rights needs to be the point of departure. Moreover, all

these layers of justice interact in ways that need to be included in the analyses.
Therefore, it is paramount to deal with plurality in customary justice in an explicit
way, so that strategies for action do not remain ‘at the tip of the iceberg’.
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TRANSFORMATIVE
JURICULTURAL PLURALISM:
INDIGENOUS JUSTICE SYSTEMS IN
LATIN AMERICA AND
INTERNATIONAL HUMAN RIGHTS
Kimberly Inksater
1. Introduction
The philosophical underpinnings, norms and procedures that provide the basis for
indigenous peoples’ justice systems are distinct from those of positivist legal
systems. This paper will consider some of the physical sanctions applied in some
indigenous legal orders that raise concerns for their possible violation of
international human rights norms. Examples of other practices that provoke strong
reactions or outright rejection of the possibility of formal recognition of indigenous
justice systems are: sanctions against community members with special needs who
do not participate fully in communal life; limited participation of women in
positions of authority; and lack of gender analysis in the resolution of cases of
violence against women.
I will argue that these tensions between norms and practices in indigenous law and
international and national human rights may be understood and possibly resolved
within a legal pluralism framework that emphasizes the autonomy of indigenous
law as well as cross-cultural juridical mechanisms.
In order to advance this argument I will propose an alternative approach to legal

pluralism that seeks to transform the scenario where multiple legal cultures in a
single state territory may collide. In the next section of the paper I will present the
© Copyright 2010 – Kimberly Inksater
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attributes of the prescriptive practice-based approach which I call ‘transformative

juricultural pluralism’ (Bunn-Livingstone 2002).1 This approach also seeks to
address the limitations of other approaches to legal pluralism, particularly with
regard to the definition of law and the interaction between legal orders existing
within a state territory. My proposed approach seeks to promote the autonomy of
indigenous law based on indigenous difference, including the right to self-
determination. The approach has been developed on the basis of knowledge of
indigenous justice systems in Latin America and therefore cannot be readily
applied to other justice systems such as religious or ethnic-based systems existing
in other countries or regions. I would suggest that would require further study.
To determine the elements of such an approach in the next section of the paper I
will present a new approach to legal pluralism and also summarize the limitations
of three current theoretical approaches to legal pluralism in responding to
indigenous peoples’ justice systems. Subsequently, in the third section, I will
present normative arguments that justify the new transformative juricultural
approach as it relates to the right to self-determination of indigenous peoples, and
specifically the right to maintain their indigenous law. The fourth section examines
corporal sanctions applied in some indigenous justice systems, with particular
emphasis from countries in the Americas where I have worked, in relation to the
right to physical integrity and the tensions that arise when rights and distinct legal
cultures co-exist. Finally, I will examine how legal pluralism, especially the model
that I propose, can promote cross-cultural mechanisms to resolve these tensions
between juridical cultures.
2. A New Definition of Legal Pluralism
a. Transformative Juricultural Pluralism
I propose an approach to legal pluralism that I refer to as ‘transformative

juricultural pluralism’ which draws upon the legal pluralism literature and the
aspects of indigenous difference.
1
The term ‘juricultural pluralism’ is used by Bunn-Livingstone to incorporate
cultural and juridical aspects of law to recognize that law is culturally defined.
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Kimberly Inksater
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My approach is transformative in that it is prescriptive2 and for that purpose adopts

a forward-looking methodology that seeks to change the dominant status quo. I
propose a methodology consistent with the category of legal pluralism I refer to as
‘critical postmodern’. This methodology is based on ‘emanicipatory knowledge’
(Santos 1995: 27-37) which prioritizes subjective knowledge of local communities
created through dialogue and ‘emancipatory practice’ (Kleinhans and Macdonald
1997: 46), which privileges the multiple narratives of legal subjects and their
inherent capacity to influence and construct law. A new configuration of legal
orders in a state territory guided by such an emancipatory methodology is
consistent with indigenous peoples’ right to self-determination. The purpose is not
to describe pluralistic scenarios but to transform them to achieve deep or radical
plurality.
The term juricultural pluralism recognizes the diversity of subjective definitions of

law but acknowledges the juridical element necessary for a normative order to be
determined ‘law’. In his comprehensive attempt to examine the postmodern
paradigmatic transition of law, Santos offers key elements in the definition of law
and the reconfiguration of state law in a situation of legal plurality (Santos 1995:
114).3 He defines law as:
… a body of regularized procedures and normative standards,

considered justiciable in any given group, which contributes to
the creation and prevention of disputes, and to their settlement
through an argumentative discourse, coupled with the threat of
force (Santos 1995: 428-429).4
2
I propose a prescriptive rather than descriptive model. The descriptive approach
is suggested by Griffiths (1986) and adopted by Bunn-Livingstone (2002).
3
Santos prefers ‘plurality of legal orders’ to the term ‘legal pluralism’ and he also
notes that legal plurality has always been the empirical reality. In recent work
Santos uses the term ‘legal hybridization’ to explain the interaction between
‘traditional’ law and state or ‘modern’ law that results in “multicultural legal
plurality” in a heterogeneous state such as Mozambique. (Santos 2006).
4
In his second edition Santos expands his discussion of ‘justiciability’ and the
importance of contextual analysis of dispute resolution norms and
procedures (Santos 2002a: 100–104).
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Santos’ definition suggests there is a decidedly juridical meaning for a normative

order to be considered ‘law’. In transformative juricultural pluralism this objective
juridical element is forged with the emancipatory epistemology in an effort both to
recognize cultural subjectivity and to distinguish ‘law’ from other forms of social
regulation.
The essential elements of transformative juricultural pluralism are: (i) respect for
autonomy of laws demonstrated by non-interference by the state with decisions of
local indigenous peoples’ judicial authorities, (ii) respect for cultural difference
and acknowledgement of one’s own culture as ‘incomplete’,5 and (iii) the existence
of egalitarian mechanisms for cross-juricultural interaction and decision-making.
This intercultural dialogue among judicial authorities would seek to define
intercultural procedural and normative principles to be applied independently in
state and indigenous legal orders (Van Cott 2000: 209).6 These three elements will
be assessed in relation to the tensions with human rights norms in the last section
of the paper.
Transformative juricultural pluralism has been formulated in response to the

current concepts of legal pluralism which exist in legal scholarship. Below, I will
briefly review the theoretical currents in the scholarship on legal pluralism to
determine the aspects of these approaches that need to be addressed in relation to
the right of indigenous peoples to self-determination.
b. Current models of Legal Pluralism
My review of theoretical scholarship resulted in the identification of three major

conceptual models of legal pluralism that can be characterized as state-centric
pluralism,7 socio-legal pluralism (Merry 1988) and critical postmodern legal
5
Santos uses this term to refer to a critical perspective that one’s own culture is
incomplete given that no one culture can claim to have the complete conception of
human dignity (Santos 2002a).
6
Van Cott suggests two criteria to measure the success of legal pluralist models:
the extent to which multiple legal systems are able to operate
without interference and the extent to which conflicts among legal
systems are managed institutionally (Van Cott 2000; 209).
7
Griffiths (1986) characterizes this as weak legal pluralism since it maintains a
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Kimberly Inksater
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pluralism (Santos 1995, 2002a; Kleinhans and Macdonald 1997). Although the
term legal pluralism is employed frequently, especially with regard to indigenous
law in Latin America, it is not always accompanied by a full discussion of what
meaning the author attributes to the term beyond a rejection of legal monism.8 It is
not possible here to review exhaustively the legal pluralism theory and framework,
but I will briefly outline these three conceptual models.
Post-colonial state-centric legal pluralism is characterized by the recognition of

plurality within the state legal order. Regardless of the term applied (classic,
weak, internal or formal) this state-centric pluralism refers to different laws for
different groups in society, subsumed within the framework of state law and often
in a colonial or post-colonial context. This type of legal pluralism occurs when the
state acknowledges or tolerates ‘other’ law such as ‘customary law’ of original
peoples although it may restrict its application to personal matters with which the
state was not or is not concerned (Van Cott 2000: 209. Also see Yrigoyen 1997,
applying the term ‘tolerant pluralism’ in her categorization of pluralist models).
State tolerance for ‘other’ legal cultures may be due to the state’s unwillingness or
inability to ensure state law reaches all areas of its territory, or the state may seek
to incorporate non-state legal orders within the purview of the state for policy aims
such as efficiency and legitimacy of the administration of justice (Sezgin 2004).
Griffiths claims this is ‘weak’ legal pluralism because the state tolerates the social
reality in its territory by formally recognizing a parallel legal order but without
relinquishing the goal of legal centralism (Griffiths 1986; Davies 2005: 91-93).
Secondly, the ‘socio-legal’ approach to legal pluralism promotes a broader

sociological definition of “plural normative orders in the same social field” or
“normative heterogeneity” (Griffiths 1986: 38). Law is defined as the “self
regulation of a semi-autonomous social field.”9 Griffiths searches for empirical
state law centralism. Merry (1988) refers to state centric as classic legal pluralism.
Hoekema (2009) calls this form of pluralism unitary formal legal pluralism.
Woodman (1998) calls this state law pluralism.
8
Monism is used interchangeably with the terms ‘legal centralism’ (Griffiths 1986)
or ‘singularity’ (Davies 2005) to refer to the idea that state law, in positivist
tradition, is coherent, unitary and universal in its neutral and acultural application.
Proponents of legal pluralism attempt, in various ways, to respond to this monism.
9
Both Merry (1988) and Griffiths (1986) adopt the term “semi-autonomous social
field” from Moore (1978).
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2010 – nr. 60
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legal pluralism in a social field, not in a legal system or with a juridical

approach.10 This social science approach to legal pluralism has been closely linked
to the anthropological study of ‘law’ by ‘western’ scholars in ‘non-western’
cultures.11 The challenges of cross-cultural study highlight the need to assess one’s
own conceptions of law and define a measurable area of study through a definition
of law that is useful across cultures. This exercise in definition is complex since,
as Clifford Geertz and others suggest, law is culturally constructed and culturally
understood (Geertz 1983: 232; see also Rosen 2006 and Greenhouse 1998). The
premise that law is within culture, not a separate or isolated system, obviates the
need to contextualize any study of legal pluralism or to begin from a position of
difference (Rosen 2006: 6). The limitation of this socio-legal approach is the
breadth of its definition and consequently the lack of definition of what constitutes
‘law’. It is not helpful for defining how autonomous legal orders resolve tensions
or difficult cases.
Finally, ‘critical postmodern legal pluralism’ is a “rather undeveloped approach,”

(Davies 2005: 107) but it is the most recent area of theoretical debate on the topic.
It is useful for its attention to the construction of knowledge and meaning by the
subjects of law and also its challenge to the status quo or hegemonic legal
discourse. The principles of critical legal pluralism advanced by Kleinhans and
Macdonald are compatible with the autonomy and identity of distinct peoples.
Their approach, apparently consistent with standpoint epistemology, advances a
number of important methodological factors. First, subjects are the legal authority
and actively influence ‘law.’ Second, it is acknowledged that legal subjects possess
multiple identities and therefore perceive multiple legal orders (Kleinhans and
Macdonald 1997: 40).12 Third, critical legal pluralism recognizes subjects’ ability
to construct law, or in other words, to transform what they believe is law through
“empancipatory practice” (Kleinhans and Macdonald 1997: 46).
10
Griffiths argues: “Legal pluralism is an attribute of a social field and not of
‘law’ or a ‘legal system’.” (Griffiths 1986: 38)
11
This approach to the ‘ethnography of law’ is exemplified in Nader (1969), which
includes chapters by the major anthropologists working in the ethnography of law:
Paul Bohannan, Max Gluckman, Sally Falk Moore and Leopold Pospisil.
12
The actual situation in Bolivia illustrates this point: rural indigenous people can
identify with state or communal law and individuals who retain communal rights
but live in urban centers add another layer of identity. See Urioste 2007: 37-39.
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Kimberly Inksater
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As mentioned above, the literature regarding indigenous law in Latin America

retains elements of a state-centric approach to legal pluralism without prescriptive
remedies that respect autonomous legal orders. In practice, there have been
rudimentary formal efforts “to establish legal pluralism” (Van Cott 2003: 2)
through constitutional recognition but this has not translated into the autonomous
jurisdiction desired by indigenous peoples. The scholarship in legal pluralism has
been criticized for its acceptance of the state as a static and fixed element of law
without any critical political analysis (Santos 1995: 117). The academic studies
regarding indigenous rights and legal pluralism in Latin America have not
sufficiently criticized the role of the state or the definition of ‘law’. I would
conclude, therefore, that in order to advance an innovative approach to legal
pluralism, there is a need to include and critique the state and also define the
parameters of law based on legal cultures operating in a designated scenario.
3. Justification for Transformative Juricultural Pluralism
There are various arguments to support my proposed approach to legal pluralism

configurations involving indigenous justice systems. In this section three general
arguments will be explored in order to provide the normative rationale for
transformative juricultural pluralism.
a. Difference as justification for autonomy
Indigenous peoples’ quest for autonomy is grounded in their distinct identities that
are commonly described in historical, cultural, territorial and sovereignty terms
and that provide the basis for a definition of indigenous law. This distinctiveness is
noted in order to differentiate the treatment that should be accorded indigenous
peoples in state territories as compared to ethnic groups not considered ‘nations’
(Kymlicka 1995; Santos 1995: 319). ‘Indigenous difference’ is the basis for claims
of increased autonomy (Macklem 2001). The factors of indigenous difference have
been amply described by other authors (Wright 1992; Roux 1990; Casas 2004;
Stavenhagen 2002) and will not be exhaustively reviewed here. Suffice it to say
that historical, territorial and cultural difference justify the autonomy claims of
indigenous peoples in contrast to ethnic minorities, and is broadly based on the
historical fact that indigenous peoples occupied land prior to conquest and
therefore prior to the formation of states.
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Despite the oppression through conquest and assimilationist policies,13 indigenous

peoples have resisted colonial subordination. Their cultures, including legal
orders, have survived, if not flourished in Bolivia and Colombia, among other
countries. Indigenous rights have come to the forefront in national and
international spheres since the 1980s (Albó 2002: 76-77), facilitated by the
emergence of human rights movements (Stavenhagen 2002: 31) and a
cosmopolitan process. This re-emergence has strengthened or permitted the open
practice of indigenous law, whereas previously it may have been clandestine.14
Inherently connected to any consideration of indigenous difference in law are the

concepts of self-determination, sovereignty and the recognition of cultural
differences. The self-determination question has in fact been resolved in
international law. In turn, the right to sovereignty is the expression of the right of
self-determination, and most indigenous groups in the Americas seek to achieve
some form of internal sovereignty (Van Cott 2000: 211).
Self-government is the essential expression of sovereignty. However, examples of

genuine self-government in the Americas that include autonomy for indigenous law
are few (Hoekema 2002: 75-77). Formulations and definitions of self-government
vary along a continuum in tandem with the conceptions of self-determination
(Kymlicka 1995: 181). While political autonomy and self-government may be
aspirations of some indigenous nations I would argue that they are not necessary
precursors to an autonomous model of legal pluralism.
Indigenous cultures, including indigenous justice systems, as expressions of that

culture, can be sustained through the generous implementation of self-
determination. An approach to legal pluralism in the Americas should therefore
13
In Latin America scholars note that in the colonial era the Spanish imposed
structures, roles, religion and forced labour on indigenous peoples but through
segregation permitted the continuance of indigenous structures. After independence
from Spain in the Republican era the Latin American states developed assimilation
policies in an effort to forcefully create nation-states based on a mestizo identity.
(Stavenhagen 2002; Yrigoyen 2002: 157; Seider 2002: 187-193).
14
Interview of Jorge Caballero, Advisor to the Regional Indigenous Council of
Cauca Bogotá, Colombia (1 October 2005). Some publications note how the
reclaiming of legal practices has strengthened indigenous identity (e.g. Tingana
2005: 25).
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Kimberly Inksater
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ensure the autonomous administration of indigenous law by indigenous peoples.

Transformative juricultural pluralism responds to this requirement by promoting
non-interference by the state in a manner that a state-centric approach does not.
b. Defining indigenous law
Multiple legal identities
The distinctiveness of each indigenous culture, as well as the multiple legal

identities involved in modern communities, result in a variety of conceptions of
law. The review of current approaches to legal pluralism led me to conclude that a
definition of law remains a necessary component of a pluralist proposal. I argue
that law should be defined through a combination of subjective and objective
elements, as is consistent with the critical postmodern approach to legal
pluralism. The perspective of an indigenous group, defined by its nation or
locality, should be privileged while at the same time the external scholar or
observer has criteria for analysis in the consideration of norms, procedures,
legitimate adjudicative authorities and sanctions.
This subjective construction of legal knowledge is consistent with the autonomy of

indigenous law and the right to self-determination. Indigenous peoples have
historically constructed their own law based on practice and the interweaving of
legal cultures (see also Halkyer 2004).
The definition of an indigenous legal order requires an analysis of the local

political, social, and spiritual context in broad terms as well as more specifically in
terms of degree and nature of adjudicative principles, institutions, procedures and
events in a socially and/or geographically defined community (Tingana 2005:
19). Generalizations that characterize indigenous justice systems as homogenous
and isolated models are inaccurate and fail to recognize the distinct nature of the
local context and the degree to which indigenous legal orders interact with state
law. Despite this cautionary requirement, some authors have attempted to
synthesize common elements that cut across most indigenous justice systems. For
example, Albó asserts that indigenous law can generally be characterized as having
several traits (Albó 2003: 89-90; also Pratt 1995: 43). Indigenous law is an
accumulation of historical practices which have been locally defined and applied
by the whole community and its designated authorities. It is holistically organized
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rather than atomized into isolated subject areas. It has historically adhered to oral
proceedings, although communities in Bolivia and Colombia have begun to keep
written archives, and interaction with state law has resulted in the use of written
resolutions in some communities (Fernández 2005: 152).
The main elements of Santos’ definition of law, presented above, are also met by
local indigenous law. The norms and procedures of indigenous legal orders are
guided by the world visions of the particular culture (Fernández 2005: 2) thus
providing legitimacy and institutionalism (Cueto 2003: 61) to the law. It is in this
manner that Johnston explains the Great Law of Peace of the Six Nations
Confederacy (Johnston 2003), and ACIN explains the Law of Origin of the Nasa
people (ACIN n.d.). The procedural aspects of indigenous law are often blended
with religious rituals15 or at the least are rife with symbolism.16 Specific legal
norms, procedures and sanctions are locally established for the purpose of
maintaining community equilibrium and protecting cultural values. Legal
proceedings often form part of the predetermined responsibilities of political and
spiritual authorities when disputes, brought to the attention of the authorities by the
aggrieved party or his or her family, are adjudicated by these leaders. At times the
final decision regarding a case is made directly by the General Assembly of the
whole community (Albó 2003). Community leaders are assigned the power to
sanction transgressions according to predetermined, and often symbolic, sanctions
that may be of a compensatory or punitive nature.
I would argue that an approach to legal pluralism that promotes autonomy of

indigenous law must consider a combination of a juridical definition with what
indigenous peoples identify, in multiple ways, as their own law. While the
subjective meaning of law may be prioritized, the juridical inquiry into dispute
resolution expressly defines the boundaries of a legal culture.17 I suggest this
15
See Fernández 2005, explaining that justice practices in the Andean region are
not distinct from the religious or spiritual realm. For example, religious rituals are
used within the investigative phase in communities in the Bolivian highlands.
(Fernández 2005: 170)
16
Thus the corporal sanction of lashing explained below is symbolic of lightning, a
purifying force between lightness and darkness. See: Gembuel Pechene v. Passu,
Colombia Constitutional Court, T-523/1997 (15 October 1997).
17
“… [D]efining a culture is a question of defining boundaries” (Wallerstein 1991:
187, cited Santos 1995: 257). This combination approach is consistent with
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combined approach to define state and indigenous law because, in addition to

indigenous legal orders, the state needs to appear in the scenario, albeit in a
transformed role in a “radically plural society.”18
Interlegality
A more relevant legal pluralism also needs to look forward for precision and re-
definition, not backward to a traditional or neo-colonial model. Indigenous legal
orders have evolved by incorporating elements of colonial law and modern state
law while at the same time retaining their distinctiveness.
The multiple conceptions of law also result in varying degrees of interaction or

articulation between indigenous justice systems and the state legal system, but
many authors agree that indigenous justice does not and cannot operate in an
isolated manner (Anaya 2004; Santos 1995, 2006; Stavenhagen 2002). Santos has
termed this interaction between types of law ‘interlegality’ (Santos 1995: 473).
It is important to note that the use of some aspects of state law by indigenous
authorities does not imply the abdication of indigenous jurisdiction. Rather it may
be evidence of the strategic use of the state system to advance the interests of the
community.19 Alternatively, I would suggest that lack of interaction may be
Davies’ assertion that law is a cultural expression and must ground itself in a
political or social force for its legitimacy because it is incapable of grounding itself
(Davies 2005: 109-110).
18
“If Law is essentially a cultural expression then the foundation for its legitimacy
is a radically plural society” (Davies 2005: 109-110). So also Tapia describes
radical pluralism in the political realm:
A radical pluralism, that is to say, from the roots and thought of
as a general condition, cannot help be a criticism of the
exploitation and exclusion and political domination. It appears to
me that the objective of a radical pluralism can be thought of as a
regulatory idea based in the self-development process of self-
government along with other liberties. (Tapia 2002: 34,
translated by the author.)
19
See e.g. a case reported from Bolivia. There the indigenous authorities of a
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evidence of the absence of the state, either physically or figuratively. In some

communities in Bolivia and Colombia it may be the practice to refer the most
serious types of criminal cases, such as murder, to the state justice system (Perafan
Simmonds 2000: 261, 2001: 217), or to seek assistance with the enforcement of
indigenous law sanctions. Interaction between state law and indigenous law is also
a reflection of multiple identities operating in a pluralistic legal context.
Transformative juricultural pluralism, coherent with the critical postmodern

approach to legal pluralism, places the state and indigenous justice systems on an
equal plane and requires actors in both systems to transform their cross-juricultural
relations.
c. International Indigenous Peoples’ Rights Norms
Transformative juricultural pluralism is also consistent with international legal

norms. In the twentieth century international law became a tool for indigenous
peoples; especially in light of developments in human rights treaties after the
Second World War. Self-determination provisions of various United Nations
declarations and treaties promoted the independence of colonized countries20 by
recognizing the right to self-determination of peoples. Thus the International
Covenant on Civil and Political Rights provided at art. 1:
community found three men guilty of homicide and sanctioned them to pay a fine
and two cows to the family of the victim as well as a fine to the communal
authorities. The indigenous authorities went to the local prosecutor and police to
seek state enforcement of the sanction. The state prosecutor detained one of the
indigenous leaders for obstructing justice for failing to report the murder. (La
Prensa 2006).
20
See: Charter of the United Nations, 26 June 1945, Can. T.S. 1945 No. 7;
Declaration Granting of Independence to Colonial Countries and Peoples, GA Res.
1514 (XV), UN GAOR, 15th Sess., Supp. No. 16, UN Doc. A/4684 (1960);
Declaration on Principles of International Law Concerning Friendly relations and
Cooperation among States in Accordance with the Charter of the United Nations,
GA Res. 2625 (XXV), UN GAOR, 25th Sess., Supp. No. 28, UN Doc. A/5217
(1970); ICCPR; International Covenant on Economic, Social and Cultural Rights,
19 December 1966, 993 UNT.S. 3, 6 I.L.M. 368 (entered into force 3 January
1976) .
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All peoples have the right of self-determination. By virtue of that

right they freely determine their political status and freely pursue
their economic, social and cultural development.
The term ‘peoples’ was restrictively defined as entire populations of a territory

colonized by a foreign power and excluded those peoples in a situation of internal
colonization (Anaya 2004: 100). The subsequent debate centered on indigenous
peoples’ struggle for inclusion in the definition of ‘peoples.’21 Until recently,
treaties or declarations on indigenous peoples’ rights have not recognized the right
to self-determination because States Parties sought to avoid the implications of a
comprehensive application of the principle of self-determination to protect their
sovereignty and territorial integrity (Weissner 2003: 302).
In 2007 the General Assembly of the United Nations approved the United Nations
Declaration on the Rights of Indigenous Peoples (the UN Declaration),
representing a significant advance in recognizing the right to self-determination for
indigenous peoples. The UN Declaration and the Draft American Declaration on
the Rights of Indigenous Peoples (the Draft American Declaration) recognize
indigenous peoples’ right to self-determination (UN Declaration, art. 3; Draft
American Declaration, III; the latter limits self-determination to internal self-
determination while the UN declaration does not specify), autonomy or self-
government (UN Declaration, art. 3 bis; Draft American Declaration, art. XX),
and their own juridical systems (UN Declaration, art. 33; Draft American
Declaration, art. XX1; again the latter draft declaration is more limited by stating
that indigenous law is part of the state legal system and can be applied to matters
internal to the communities). While the UN Declaration limits indigenous laws to
“juridical systems, or customs, in accordance with international human rights
standards” (UN Declaration, art. 33), it makes no reference to the subordination of
indigenous legal orders to national legal systems. The Draft American Declaration
clearly subsumes indigenous legal institutions into and makes them subordinate to
state law.22 In terms of transformative juricultural pluralism, the UN Declaration
21
The criteria generally used to define “peoples” are a shared or unique history,
ethnicity, culture, language, religion or spirituality, and a unique relation to land
(Johnston 2003: 110; Weissner 2003: 372).
22
Draft American Declaration, art. XXI, states:
(1) Indigenous law shall be recognized as part of the legal system
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offers greater scope for autonomy and egalitarian mechanisms for cross-cultural
dialogue than the text of the Draft American Declaration.
Convention 169, adopted by the International Labour Organization in 1989 (ILO

Convention 169), has been the only international instrument available to
indigenous organizations and legal scholars supporting the recognition of
indigenous law in the national sphere. It has been ratified by 17 countries of which
13, including Bolivia and Colombia, are in the Americas. While most Latin
American countries have ratified and integrated the provisions of ILO Convention
169 into domestic constitutions it is of questionable usefulness as a basis for
transformative juricultural pluralism. The Convention has received limited
ratification internationally outside the Americas, it contains an arguably weak
recognition of the right to an independent indigenous jurisdiction domestically, and
it fails to recognize the right to self-determination of indigenous peoples.23
Yrigoyen argues that ILO Convention 169 does not subordinate indigenous
jurisdiction to the state system (Yrigoyen 2003: 187). Admittedly article 8(2)
grants a specific right to retain legal customs and institutions in the following
terms:
These peoples shall have the right to retain their own customs
and institutions, where these are not incompatible with
fundamental rights defined by the national legal system and with
and of the States’ framework for social and economic

development.
(2) Indigenous peoples have the right to maintain and strengthen
their legal systems for addressing internal matters in their
communities, and to apply them in accordance with their own
rules and procedures, including matters related to the resolution
of conflicts within and between indigenous peoples, and to the
preservation of peace and harmony.
23
ILO Convention 169, art. 1(3) states:
The use of the term peoples in this Convention shall not be
construed as having any implications as regards the rights which
may attach to the term under international law [emphasis in the
original].
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internationally recognized human rights. Procedures shall be

established, whenever necessary, to resolve conflicts which may
arise in the application of this principle.
However, I would argue that the surrounding text is directed toward the
consideration of indigenous customs within the state system. Thus article 8(1)
provides: “In applying national laws and regulations to the peoples concerned, due
regard shall be had to their customs or customary laws”. Thus there is a sense of
ambiguity between the autonomous application of indigenous law and the state
application of indigenous customs.
The duality or ambiguity continues in article 9(2), which provides: “The customs
of these peoples in regard to penal matters shall be taken into consideration by the
authorities and courts dealing with such cases”. In article 9(1) the application of
indigenous sanctions is considered:
To the extent compatible with the national legal system and

internationally recognized human rights, the methods customarily
practiced by the peoples concerned for dealing with offences
committed by their members shall be respected.
These provisions imply that state law may apply indigenous ‘customary law’ and
that indigenous authorities may apply their own law within the limits of
fundamental human rights norms. I would argue that these constitute minimalist
autonomy provisions, and merely mandate States Parties to guarantee the
‘retention’ of ‘customary law’ within a state-centric approach to legal pluralism.
In contrast, the UN Declaration provides for the active protection of indigenous
law, stating in article 33 that indigenous peoples may promote, develop and
maintain their juridical systems. However, Convention 169 does not limit the
application of indigenous law in a broad manner, referring only to fundamental
human rights as opposed to international human rights norms in general. I would
argue that Convention 169 and the Draft American Declaration provide for a more
limited respect for indigenous law within the state legal order and do not promote
autonomy.
The instruments reviewed in this sub-section illustrate the tensions that arise from
various interpretations of the right to autonomy, specifically with regard to
indigenous law. Collective rights challenge the hegemony of state centralism and
consequently, I would argue, States Parties to the latter two above-cited
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instruments perceive a necessity to defend the dominance of state law and the myth
of universalism by limiting indigenous law.
International human rights norms validate legal pluralism in general terms by

recognizing indigenous peoples’ right to maintain their legal institutions.
Transformative juricultural pluralism challenges States Parties to move beyond a
state-centric approach to a critical postmodern approach to resolve tensions in an
manner that respects indigenous autonomy, cultural difference and egalitarian
cross-juricultural interaction.
4. Physical Integrity: Human Rights Limitation on Indigenous Law
This section will examine one area of tension with international human rights
norms that sparks public debate in countries with indigenous legal jurisdictions
such as Colombia and Bolivia.24 Given that human rights are the express limit on
indigenous legal jurisdiction in international law, as well as in some constitutional
arrangements such as the new Constitution of Bolivia, the right to physical
integrity will be considered in the context of corporal sanctions applied by some
indigenous communities.
24
Given that this research has not included a field study I have had to rely on texts
written in Bolivia and Colombia by academics, and work experience in those
countries and in Guatemala. The arguments in this text have been enriched through
discussions with individuals much more knowledgeable than I, including
academics, rights activists and indigenous leaders. In Colombia, of particular help
in the development of my understanding of indigenous law and legal pluralism
have been: Edgar Ardila (Professor of Law, National University), Jorge Caballero
(Advisor to the Regional Indigenous Council of Cauca), Edgar Londoño (Advisor
to the Regional Indigenous Council of Tolima), Manuel Jilacue (Regional
Indigenous Council of Tolima), Esther Sánchez Botero (Legal Antropologist),
Martín Tingana (Anthropologist, Member of the Coordinating Committee of the
Law School of the Pastos) and the project team of the Community Justice School
of the Community Justice Network.
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a. Right to Physical Integrity and the use of Corporal Sanctions
Death penalty
The death penalty could be considered the most extreme case of the use of force
by a justice system. Amnesty International estimates that more than two thirds of
countries in the world have abolished it in law or in practice (Amnesty
International n.d.).
The death penalty, applied in some indigenous communities in the region, is

perhaps both the most controversial sanction and the most difficult to study
because of its apparently limited or clandestine use in Bolivia, and arguably its
disuse in Colombian indigenous communities. In Bolivia, the death penalty appears
to have been imposed under indigenous law in the highland Aymara communities
and also in the Guaraní community of Izozog in the lowlands. Historically, the
death penalty was applied for major crimes by the Aymara and Quechua peoples in
Bolivia for crimes considered serious such as murder, adultery, theft and malicious
witchcraft (Fernandez 2005: 221). In the Aymara community of Sica Sica in
Bolivia, given the threat of prosecution, traditional authorities only hinted to
Fernandez that major crimes continued to be sanctioned with the death penalty
(Fernandez 2005: 108). In the traditional territory of Laymi-Puraka sanctions such
as the death penalty and banishment are being abandoned in favour of higher fines
paid in currency, cattle or land (Fernandez 2005: 327). In the lowlands community
of Izogog women accused of witchcraft have been banished from the Guaraní
community under the threat of death if they return (Van Cott 2000: 229-230).
In Bolivia the new Constitution, in Article 190 (II), expressly states that the
aboriginal or indigenous rural subsistence farmers’ jurisdiction will respect the
right to life as well as the right to a legal defense and other rights and guarantees
in the Constitution.
The International Covenant on Civil and Political Rights (ICCPR), particularly

Article 6, contains internal tensions that are difficult to reconcile. Sub-section (1)
states: “Every human being has the inherent right to life. This right shall be
protected by law. No one shall be arbitrarily deprived of his life.” In the next sub-
section of Article 6 the death penalty is limited in its application by stating that it is
to be applied only for the most serious crimes and by a final resolution of a
competent court. The Interamerican Declaration on Human Rights (Pact of San
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José), article 4 restricts the ability of states to reinstate the death penalty or
broaden its application to crimes not subject to it at the time of States Parties’
ratification of the treaty. Interestingly, the prohibition against torture, including
corporal punishment, appears to have been addressed more forcefully by the
Human Rights Committee than the death penalty. The Committee states, in its
General Comment No. 20, that when the death penalty is carried out for the most
serious crimes it “must be carried out in such a ways as to cause the least possible
physical and mental suffering” (UN Human Rights Committee 2006: para. 6).
This is one of the tensions within the ICCPR resulting from the fact that the death
penalty is not actually prohibited by article 6.
The justification for lynching and vengeance killing as sanctions applied within
indigenous law conflates what are arguably homicides into a discussion of legal
sanctions. I would argue that lynching and vengeance killings, regardless of the
degree of social acceptability, do not constitute a legitimate legal sanction enforced
by a judicial indigenous authority within international law.
Corporal Sanctions
The community studies conducted by researchers in Bolivia and Colombia show

that, while corporal sanctions are still applied in some communities, the principal
sanctions are now of an economic nature (Perafán 1995: 40; Flores Gonzales
2003: 132). Communities may resort to corporal sanctions for the most serious
offences when compensation has not been sufficient to achieve the restorative
objectives of rehabilitation and social harmony (Perafán et al. 2000; Fernández
2005: 108-109). Corporal sanctions are also applied as a general deterrent
(Fernández 2005: 7). Deterrence is sought through the public application of
corporal sanctions by either community authorities or family members in an effort
to shame the individual and his or her social group and to serve as an example to
the community (Perafán 1995: 40). Indigenous leaders and some academics assert
that corporal sanctions are more humane than long-term imprisonment since they
permit the individual to remain in the community for his or her rehabilitation
(Perafán et al. 2000: 165; Calla Ortega 1999: 66-67). Arguably, analysis of the
use of corporal sanctions needs to be considered within the communal context of
the indigenous community. These physical sanctions, from a ‘western’ legal
perspective, are considered prima facie violations of international human rights
norms such as the right to life and the prohibition against torture and cruel and
inhuman treatment.
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The general objective of sanctions in indigenous justice systems – whether

corporal or not – is to restore equilibrium and harmony to social relations in the
community and to rehabilitate the individual socially, spiritually and morally
(CERES 1999: 93; Albó 2003: 90-95; Defensor del Pueblo 2003: 42). The
practice of lashing and the use of stocks have been considered by the
Constitutional Court of Colombia with specific reference to the international
prohibition against torture, and cruel, inhuman and degrading treatment found in
various instruments.25 The Convention Against Torture (CAT) defines torture in
Article 1 as:
… any act by which severe pain or suffering, whether physical or

mental, is intentionally inflicted on a person for such purposes as
obtaining from him or a third person information or a confession,
punishing him for an act he or a third person has committed or is
suspected of having committed, or intimidating or coercing him
or a third person, or for any reason based on discrimination of
any kind, when such pain or suffering is inflicted by or at the
instigation of or with the consent or acquiescence of a public
official or other person acting an official capacity. It does not
include pain or suffering arising only from, inherent in or
incidental to lawful sanctions.
At first glance the use of legally defined corporal sanctions appears to be excluded
from the scope of the definition; however the United Nations Human Rights
Committee and Manfred Nowak, the previous Special Rapporteur on Torture,
have stated that corporal punishment, even if prescribed in law, is contrary to this
provision (Nowak 2005: paras. 5, 18-2826). The Special Rapporteur noted that the
25
Gembuel Pechene v. Passu (15 October 1997), Colombia Constitutional Court,
T-523/1997; González Wasorna v. Asamblea General de Cabildos Indígenas
Región Chami y Cabildo Mayor Único (8 August 1996), Colombia Constitutional
Court, T-349/1996.
26
Thus:
Lawful sanctions refer only to penal practices that are widely
accepted as legitimate by the international community and are
compatible with basic internationally accepted standards. (UN
High Commission for Human Rights 2002: 33)
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Human Rights Committee and the Committee Against Torture have declared that
flogging amounts to cruel, inhuman or degrading punishment (Nowak 2005).
In Errol Pryce v. Jamaica27 the Human Rights Committee expressed the view that,
regardless of the crime committed by the accused, corporal punishment constitutes
a violation of article 7 of the ICCPR.28 However, these treaty bodies do not
examine corporal punishment applied under indigenous peoples’ justice systems or
other para-statal or non-state actors because States Parties, such as Colombia and
Bolivia, have not provided information on the indigenous legal jurisdictions.
The Inter-American Court on Human Rights also condemned the lawful sentencing
of a prisoner to fifteen lashes with a knotted rope.29 The Court held that, although
lawfully prescribed, the sanction amounted to torture. Arguably, the cited cases of
state-sanctioned flogging and the situations considered by the Committee against
27
CCPR/C/80/D/793/1998 (13 may 2004).
28
In that case the complainant was flogged six times with a tamarind switch on the
buttocks with his pants removed and with approximately 25 prison wardens
observing. The Human Rights Committee, at paragraph 2.4, describes the
administration of the punishment as related by the complainant in his affidavit:
… he was blindfolded and ordered to drop his pants and
underpants. His feet were lifted and placed in slots in the floor in
front of a barrel that was lying on its side. His arms were drawn
forward so that his body was lying across the barrel. A warder
placed the author’s penis into a slot cut out in the side of the
barrel. His wrists and ankles were strapped to the platform. He
states that a doctor and about 25 prison warders were present
during the whipping. According to the author, the doctor did not
examine him afterwards.’
29
In this case, the prisoner had undergone surgery two weeks prior to the
administration of the corporal punishment and was made to lie naked in a spread
eagle position while strapped onto a metal structure. He was flogged on his back
and remained in the prison infirmary for two months following the punishment.
Caesar v. Trinidad y Tobago (2005), Inter-Am. Ct. H.R. (Ser. C) No. 123 at
para. 72 (the reference to the ‘knotted rope’ being a description of a ‘cat o’ nine
tails’ rope).
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Torture30 are more severe and humiliating as compared to the lashings described in
the case studies in Bolivia and Colombia. For example, in the Colombia case
described below, the Nasa peoples apply lashes on the back of the calf with the
individual fully clothed.
The Colombian Constitutional Court found that lashing did not inflict severe pain
or suffering, nor was the sanction humiliating to the offender given his cultural
context and distinguished the lashings administered by the community from the
sanction in Tyrer v. United Kingdom ((1978) 26 Eur.Ct.H.R. Ser. A).31 In that
case, the European Court of Human Rights found that the lashing of the
complainant did not amount to torture or ‘inhuman treatment’ (para. 29) but it
assessed the facts of the case in light of the prohibition against ‘degrading’
treatment. The Court suggested the most important criterion for the determination
was the degree of humiliation experienced by the complainant (para. 30). The
European Court also noted the assessment must be made on the circumstances of a
case and, “in particular, on the nature and context of the punishment itself and the
manner and method of its execution” (para. 30). The Court found that the lashes
across the bare buttocks of the young offender by strangers reached the level of
humiliation to be considered degrading treatment. I would argue that the degree of
humiliation was of a more serious nature in the state-sanctioned punishments
reviewed by the international tribunals than the lashings applied in indigenous
communities in Bolivia and Colombia. In all the state-sanctioned cases, the
complainants were either fully or partially naked, and made to lie over a table or
were strapped onto a table or other device. The lashes, although not significant in
30
The Committee Against Torture has considered judicially sanctioned flogging
and amputation of limbs in Saudia Arabia, finding both forms of punishment a
violation of the Convention (UN Committee Against Torture 2002). The
Committee states that the corporal punishment of flogging and amputation are not
in conformity with the Convention, but does not describe cases of flogging. The
use of flogging in Saudi Arabia may be distinguished from the case studies, cited
here, by their severity and degree of humiliation, given that the prisoners are
stripped naked and shackled at the hands and feet. Amnesty International gives
examples of sentences of 4,750 and 1,500 lashes are applied at the rate of 50
lashes every 6 months over the duration of imprisonment (in the cases referred to
imprisonment was 15 years) (Amnesty International 2002.)
31
At para. 10 it is stated that the youth had to pull down his trousers and
underpants and bend over a table for the lashes to be administered.
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number, were applied on bare skin. Regardless, international human rights

agencies have clearly stated that all corporal punishment by a state official is a
violation of the prohibition, a norm claimed to be universal.32
b. Physical Integrity Jurisprudence and Transformative Juricultural Pluralism
I would suggest that the rights provisions, individual cases and observations of the
UN bodies discussed above generate specific lines of inquiry that need to be
considered in the context of transformative juricultural pluralism.
The first line of inquiry is critical to transformative juricultural pluralism. Is the

prohibition against torture and cruel, degrading and inhuman treatment, and by
deduction all forms of corporal punishment, actually universal?33 Arguably,
international human rights norms have been declared universal by the dominant
discourse. An-Na’im examines the paradox of the universality question.
Human rights are by definition universal because they are the

rights of human beings, everywhere, by virtue of their humanity,
and without any distinction on such grounds as race, sex,
religion, or national origin. But the quality of being a universal
norm can only be achieved through a global consensus-building
process, and neither assumed, nor imposed through the
32
Caesar v. Trinidad y Tobago, above, para. 70. However, the concept of
universality of rights has been criticized for being a ‘western’ cultural construct in
that human rights were universalized by the ‘west’ without a genuine cross cultural
debate (Santos 1995: 337-342). Santos and others do not, however, argue for
‘cultural relativism’, claiming the universalism versus relativism duality is a false
debate (Santos 1995: 339; Macklem 2001: 40-43).
33
The same question could be posed regarding the death penalty. Arguably the
prohibition against the death penalty is not universal. Amnesty International notes
that in law 87 countries have abolished capital punishment for all crimes; 11 have
abolished the death penalty for all but the most serious crimes 27 countries retain
the penalty in law but not practice and 71 retain the use of the death penalty:
Amnesty International, “Facts and Figures on the Death Penalty” (27 June 2006),
online: <http://web.amnesty.org/pages/deathpenalty-facts-eng>.
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hegemony of universalizing claims from one relativist perspective

or another (An-Na’im 2004: 101).
I would argue that, while the prohibition against torture is likely an intercultural
norm in the sense of prohibiting the arbitrary and egregious use of force by state
officials, corporal punishment in multiple forms remains a prescription for
aberrant behaviour in many cultures, and its prohibition as degrading treatment,
cannot simply be declared universal. In reality, state practice may negate the
declarations of universalism by states or UN bodies.34 Therefore, the suggestion
that lawful sanctions must be practices widely accepted as legitimate by the
international community warrants an exhaustive intercultural dialogue to determine
the shared criteria of legitimacy (Santos 1995, Santos 2002b; Hoffe 2000. Hoffe
claims that intercultural criminal law needs to be defined by shared moral
principles rejecting a technical and codified approach to international human
rights.)
Second, can the lashings applied in the case studies mentioned above be
distinguished from the international cases cited? The European Court in Tyrer
noted that all criminal sanctions involved some degree of humiliation (para. 29), so
that to amount to degrading treatment “the humiliation or debasement involved
must attain a particular level and must in any event be other than the usual element
of humiliation …” (para. 30). The Court went on to assess whether the lashings in
that case resulted in severe physical or mental effects. Additionally and
ambiguously, the Human Rights Committee has stated that the prohibition extends
to corporal punishment that involves “excessive chastisement”, UN Human Rights
Committee 2006: para. 5). I would argue that the lashings described in the case
studies can be distinguished from the international cases reviewed. First, there
does not appear to be a level of debasement or humiliation in the cases from
indigenous communities that would trigger the ‘degrading’ prohibition.
34
The Supreme Court of Canada did not find unlawful a provision of the Criminal
Code which permits parents and teachers to use force to correct children as long as
it is reasonable given the circumstance (Canadian Foundation for Children, Youth
and the Law v. The Attorney General in Right of Canada [2004] 1S.C.R. 76, 234
D.L.R. (4th) 257, 2004 SCC 4). It should also be noted that the concept of what is
tolerable punishment evolves in time. In Canada for example, strapping and
whipping was permitted as a form of discipline in prisons until 1972, when the
relevant section of the Criminal Code was repealed. The strap, whip or paddle was
applied on the bare back or buttocks (Colin Farrell n.d.).
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Admittedly, the case studies do not include the subjective narrative of individuals
who have received lashings, so the physical or mental effects are difficult to
determine. Nor is the issue of non-conformity with corporal sanctions within the
communities a topic of discussion in the case studies. Yet, the information on
lashings could be interpreted as showing that they are less humiliating than those
in the international cases. The information in the cases indicates that the lashings
are generally applied by members of the governing bodies in the amount of one to
three lashes per member to a person who is fully clothed.
Assuming a position of cultural ‘incompleteness,’ I would argue that it is

extremely difficult for state legal authorities to assess whether such a sanction
amounts to degrading treatment, including excessive chastisement, without
entering into a cross-juricultural dialogue. Otherwise, one legal culture is
unilaterally imposing its world view regarding legitimate sanctions without respect
for cultural difference. I would proffer the opinion that these lashings do not
amount to degrading treatment as they do not appear to meet the repugnancy
threshold for either humiliation or pain and suffering. A full inquiry into the
meaning of humiliation and its diverse interpretations across cultures is beyond the
scope of this paper. I would propose that, within the cross-juricultural dialogue,
the concept of ‘human dignity’ be debated from the position of cultural
‘incompleteness’ in order to achieve an intercultural understanding (Santos 2002b:
47, acknowledging that all cultures have distinct conceptions of human dignity).
Finally, can the tensions in international law between the right to self-
determination and the rights protecting the physical integrity of individuals not be
resolved within indigenous legal orders without interference by international and,
consequently, state law? The lines of inquiry discussed above require both cross-
juricultural dialogue and intra-juricultural reflection. An-Na’im argues for local
self-regulation of human rights to counter the dependency perpetuated through the
international regime’s focus on state law (An-Na’im 2003: 105-109). I would
assert that the international right to self-determination must include the right to
self-regulation, otherwise the universalism of rights discourse is perpetuated and
autonomy becomes a hollow concept.
The Superior Indigenous Tribunal of Tolima in Colombia is an example of an

internal review mechanism. It was established by the regional organization of local
indigenous councils to strengthen local indigenous legal orders, liaise with state
law officials, if necessary, and resolve inter-council jurisdictional conflicts that are
brought to the Tribunal’s attention (Londoño Montoya and Romero Bossa 2005:
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28-33). An analysis of indigenous law in Tolima recognizes that critical self-

reflection strengthens the application of indigenous law in the communities. For
example, the analysis demonstrates a particular concern for lack of enforcement by
some local Council in cases of child support and other complaints brought to the
attention of authorities by women (Londoño Montoya and Romero Bossa 2005:
18).
5. Towards Transformative Pluralism
In this section, I will reflect on the layers of tensions that have emerged between
legal orders or cultures in the preceding sections. This reflection is grounded in
the three main elements of transformative juricultural pluralism I elaborated at the
outset. Three elements of the transformative approach ensure respect for the
autonomy of indigenous law: non-interference by state law, respect for cultural
difference based on cultural ‘incompleteness,’ and egalitarian measures for cross-
juricultural dialogue.
a. Resolving Tensions in the International Realm
Human rights agreements, developed after World War II, were the outcome of a
political debate that resulted in a more individualistic approach. Convention 169
and now the UN Declaration on Indigenous Rights, to be finally considered by the
UN General Assembly, challenge states to address the collective rights of
indigenous peoples that have been ignored and denied in international human rights
law. Since its inception, the human rights regime has challenged the status quo by
gradually piercing state sovereignty, promoting a universal jurisdiction in the
criminal realm (Sriram 2003), and redefining the subjects of international law.35
The ‘success’ of human rights is tempered by the resistance of states to the full
adoption of treaties and international dispute resolution mechanisms.
35
There has been a redefinition of the subjects of international law through a
gradual introduction of non-state actors into international law, especially in the law
of armed conflict and human rights. (See e.g. International Committee of the Red
Cross, 1996; also Clapham 2006.)
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2010 – nr. 60
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Bunn-Livingstone analyzed declarations and reservations made by States Parties to

international human rights conventions, in order to determine the degree of
pluralism in international treaty law (Bunn-Livingstone 2002). She found that,
despite widespread participation, the high number of reservations deposited upon
ratification,36 and justified by reference to domestic legal practices, was indicative
of tension and juricultural pluralism. She found that the use of the term
‘universality’ by Status Parties was a reference to universal participation and not
uniform acceptance of norms. The ‘universality’ of human rights treaties, actually
a sign of widespread participation, is contradicted by the significant number of
reservations. The simple fact that the international system permits reservations to
multilateral treaties suggests a tolerance for pluralism and national interpretation
and application of international norms. The significant degree of state practice
related to reservations demonstrates the empirical reality of pluralism and the
mythical nature of universalism (Bunn-Livingstone 2002: 300-301).
Transformative juricultural pluralism, as applied to indigenous peoples’ rights,

attempts to move beyond the universalism–cultural relativism debate by promoting
respect for cultural difference and mechanisms for cross-juricultural dialogue. In
the international realm the recent endorsement of the UN Declaration on the
Rights of Indigenous People by all UN member states, including the four that had
initially voted against the Declaration, provides a normative international
framework for states and indigenous peoples. It is important to note that the
distinct interpretations of the Declaration by states, including Canada, corroborate
my argument herein that international human rights provide a normative
framework for national cross-juricultural dialogue mechanisms to resolve
collective and individual tensions, such as corporal sanctions, relevant to the
context.
36
At the time of her study there were 910 reservations to 6 treaties (Convention on
the Rights of the Child, International Covenant on Civil and Political Rights,
International Covenant on Economic Social and Cultural Rights, International
Convention on the Elimination of All Forms of Racial Discrimination, Convention
on the Prevention and Punishment of the Crime of Genocide, Convention on the
Elimination of All Forms of Discrimination Against Women). The percentage of
States Parties making reservations to these conventions was generally more than
30% with the lowest number of reservations being made to the Genocide
Convention. (Bunn-Livingstone 2002: 296.)
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Kimberly Inksater
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b. Resolving Tensions in the National Realm
Balancing Collective with Individual Rights
There is a broad tension emerging in the national sphere between the protection
and promotion of cultural plurality and the individual rights guarantees that are in
force within countries. The recognition of cultural plurality translates into
collective protections for indigenous cultures which inherently provoke tensions
with individual rights. This tension can be characterized by the
collective/individual duality, although it may be inaccurate to label this tension as
dichotomous. It could be more accurately analyzed along a continuum from
extreme collective autonomy to extreme individualism.
A remedy for this tension between collective and individual rights could be found
in an innovative juricultural constitutional arrangement that would recognize the
right to self-determination expressed in the form of autonomy of indigenous legal
orders without ignoring individual rights protected in national law. An example of
such an arrangement can be found in the new Bolivia Constitution. Article 179
(11) recognizes that indigenous and ‘ordinary’ legal jurisdictions enjoy the same
normative hierarchy. A recent law, Law 102 of 2010, demands all legal
jurisdictions in the country, including indigenous systems, to respect the right to
life and other rights expressly identified, including the equality rights of women,
children and senior citizens.
Transformative juricultural pluralism promotes the plurality of legal cultures and

their multilateral interaction through a juricultural dialogue mechanism to define
shared procedural and substantive principles in an effort to find a balance along the
collective/ individual continuum. Additionally, this balance also needs to be
addressed by internal limits defined by communities. I would argue that
empancipatory methodology, which privileges local subjective knowledge
generation, demands respect for internal review processes. According to An-
Na’im, an approach that empowers local communities to protect their own rights
counters the dependency perpetuated by human rights protection mechanisms
because “it respects and trusts the human agency of those communities” (An-
Na’im 2004: 110-11). This approach to local empowerment is consistent with the
emancipatory methodology of transformative juricultural pluralism and would,
arguably, advance the decolonization of human rights practice.
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2010 – nr. 60
___________________________________________________________________
Juricultural Dialogue to Define Concepts and Limits
Also in the national realm, a more specific tension between corporal sanctions
applied in some indigenous communities and specific protections, such as the right
to life and the prohibition against torture, is evident. Although cultural
perspectives on sanctions vary, the international human rights provisions, treaty
body observations and case law call upon States Parties to ensure conformity with
the dominant and arguably ‘western’ human rights discourse. Indigenous legal
cultures may appear to punish transgressors harshly, although, I would suggest,
the punishments are simply different from ‘western’ sanctions. The communal way
of life characteristic of most indigenous communities requires a high degree of
cohesion among members to maintain communal and family interests. I have
argued that the corporal sanctions applied in the indigenous communities studied
do not amount to degrading treatment because they do not appear to cause intense
pain or humiliation. Interviews in Colombia and Bolivia have confirmed this
assessment. Lashings are used sparingly and media coverage of egregious lashings
serves also to ensure lashings are mostly symbolic in nature. Also, a study of
community justice in rural areas in Bolivia found that the criminal sanction causing
the most concern among community members was long-term imprisonment in
community jails when rehabilitation was deemed impossible (Calla 2008). I would
argue that a determination of whether a sanction amounts to degrading treatment
should be made in the local and national context through a process that is
respectful of juricultural difference.
A cross-juricultural dialogue based on the combined approach to the definition of

law which I argued for in the first section could address this specific tension
between cultural understandings of human rights, human dignity and legitimate
sanctions. The subjective perspective of the community is considered and the
juridical aspects of community legal norms and sanctions are assessed in a dialectic
process. The death penalty is an example where such a combined analysis would
be helpful. Do the community subjects define the death penalty as a criminal
sanction within their legal culture? The important issue here is whether the
community members regard the death penalty as a conventional and legitimate
sanction within their legal order. When does the acceptance of vengeance killing
cross from being a social to being a legal norm? I would argue that these two
questions can best be determined through the lens of the more juridical definition
of law. The inquiry would then examine whether particular offences call for the
sanction, what regular procedures are respected in the community and whether the
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Kimberly Inksater
____________________________________________________________________
authorities tasked with adjudicating offences have applied the sanction following
these regular procedures. The exploration of these specific tensions through cross-
juricultural dialogue based on cultural ‘incompleteness’ is consistent with Santos’
proposal for transforming human rights into a truly multicultural rather than a
universalized ‘western’ concept (Santos 1995: 340-363, 2002b).
6. Conclusion
This paper has illustrated the tensions between legal cultures that are bound to
surface in national and international spheres and that are characterized, at least
empirically, by pluralism.
The tensions that emerged in the analysis of corporal sanctions and international
rights protections cannot be conclusively resolved. The broad collective/individual
dilemma and specific rights-based tensions will remain in both international and
national spheres. However, the transformative juricultural pluralism I propose
should help the management of the tensions in an innovative manner that respects
juricultural difference. This approach counters the hegemony of dominant practice
and discourse through attention to the autonomy of indigenous legal cultures and
shared cross-juricultural meanings of law. In order to engage in a multicultural
circumferential process, representatives of legal cultures need to commit to the
concept of cultural ‘incompleteness.’ I argue that, taking the right to self-
determination as established, indigenous peoples should internally review and limit
their law without state intervention. This will not mean that the state is absent.
Unlike other categories of legal pluralism examined at the outset, this approach
challenges both state law and indigenous law to transform intra-legally and inter-
legally. The transformative juricultural approach, specifically through the adoption
of an empancipatory methodology and the three essential elements, offers a means
to move beyond the weak pluralistic reality into an uncontrolled and complex
radical pluralism.
Academics, human rights institutions, development agencies and judicial bodies

can develop the elements of transformative juricultural pluralism in practice. The
transformative juricultural approach calls on indigenous justice authorities and
state or official justice authorities to create formal inter-juricultural dialogue
mechanisms to resolve tensions or conflicts between jurisdictions. These may take
the form of a mixed constitutional court or a specialized mixed tribunal to address
the contradictions and tensions between justice systems and constitutional
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2010 – nr. 60
___________________________________________________________________
guarantees. In Colombia the Judicial Council has promoted judicial education and
communication between judicial authorities of the state and indigenous
jurisdictions with the participation of anthropologists and human rights experts. In
Guatemala, Colombia and Bolivia indigenous justice authorities and lawyers have
confirmed to me that local dialogue between prosecutors, judges and indigenous
authorities is practiced successfully on a case by case basis even when formal high
court mechanisms or procedures have not been developed.
Finally, internal review mechanisms need to be promoted at the community or sub-

national level so that the second element of transformative juricultural pluralism,
respect for difference, is promoted within as well as between justice systems. The
promotion of review tribunals and indigenous law schools by representative
indigenous peoples’ political organizations, such as the various indigenous law
schools in Colombia and the Tolima Superior Indigenous Tribunal, helps
strengthen human rights education and critical thought within indigenous
communities.
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DEEP LEGAL PLURALISM IN
SOUTH AFRICA:
JUDICIAL ACCOMMODATION
OF NON-STATE LAW
Christa Rautenbach
Introduction
South Africa has been portrayed as a 'rainbow nation' by Archbishop Tutu in

describing post-apartheid South Africa.1 The expression was used again by
President Mandela in his first month in office when he stated publicly:
Each of us is as intimately attached to the soil of this beautiful

country as are the famous jacaranda trees of Pretoria and the mimosa
trees of the bushveld - a rainbow nation at peace with itself and the
world.2
There can be no doubt that the expression 'rainbow nation' was, and still is, a
spoken metaphor for South African unity, intended to unify the greatly divided
South African nation at a time when strict divisions existed between racial groups,
1
Between 1948 and 1994 the then ruling National Party pursued its policy of
separate development, notoriously known as apartheid. During this time Afrikaner
nationalism was rife and cultural and religious groups were kept separated from
one another, simply because individuals belonging to the various groups were
considered not to be culturally (or racially) equal.
2
Own emphasis. Quoted in Manzo 1996: 71.
© Copyright 2010 – Christa Rautenbach
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especially between white and black people. Nevertheless, apartheid may have been
abolished but the fibre of South African society remains splintered along cultural
and religious lines. The legal system of South Africa used to symbolise and, to a
certain extent, still symbolises this divide. The state law is a mixed, or at least, a
dual legal system that consists of the common law3 applying to all South Africans
except in circumstances where the African customary law4 is applicable.
Determining when the common law and when the customary law will be applicable
is no easy matter. Individuals often find themselves in overlapping and even
contradictory situations originating from different legal systems, and the courts
have to determine which law is applicable to a certain set of facts through the
application of the choice of law rules (Bennett 2006: 17-27).
But there is more to this than meets the eye. Some forms of non-state law have
emerged as a reaction to some of the injustices caused by the colonial laws. For
example, in the area of criminal law, so-called people's courts have applied
alternative methods of unofficial dispute resolution developed as a reaction against
3
The common law is a conglomeration of European laws, chiefly a mixture of
Roman-Dutch law and English common law, which has been developed by means
of legislation and judicial decisions. One of the features of the South African legal
system is the fact that it is largely uncodified. Every lawyer knows that he or she
has to consult various sources to find the law. These sources include legislation,
precedent, Roman-Dutch law, custom, customary law, modern legal textbooks and
the Constitution. According to Girvin 1996: 95 the mixed legal system in South
Africa owes a great deal to the earlier judges of South Africa.
4
African customary law is the various laws observed by indigenous communities
and can be found in scholarly textbooks, legislation, judicial decisions and custom.
In Alexkor Ltd v Richtersveld Community 2003 (12) BCLR 1301 (CC) para 51 the
Court stated: "While in the past indigenous law was seen through the common law
lens, it must now be seen as an integral part of our law. Like all law it depends for
its ultimate force and validity on the Constitution. Its validity must now be
determined by reference not to common-law, but to the Constitution." For similar
viewpoints, see Pharmaceutical Manufacturers Association of SA: In re Ex Parte
President of the Republic of South Africa 2000 (2) SA 674 (CC) para 44; Mabuza v
Mbatha 2003 4 SA 218 (C) para 32; Bhe v Magistrate, Khayelitsha (Commission
for Gender Equality as Amicus Curiae); Shibi v Sithole; South African Human
Rights Commission v President of the Republic of South Africa 2005 1 SA 580
(CC) para 43.
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the (perceived or real) inaccessibility and unfairness of the Western5 courts

(Bennett 2004: 151-160). In other areas, for example in family law, members of
cultural and religious communities previously forced to live together as a result of
apartheid observe certain aspects of their own laws which are generally not
recognised by South African law (Van Niekerk 2001: 349-361). Although both of
these examples are manifestations of 'deep legal pluralism',6 it is especially the
last example that forms the focal point of this discussion.
One could blame apartheid for the existence, and even expansion, of non-state law
('the other law') in the context of family law, and thus for the phenomenon of
legal pluralism in South Africa, or one could even go back so far as to blame it all
on colonialism.7 Whatever the rationale for the survival of deep legal pluralism in
South Africa, legal pluralism is more than a simple juristic peculiarity; it is a
reality that is closely interwoven with the daily lives of all South Africans. The
legal fraternity is faced with the complexities of legal pluralism on a daily basis.
Both the 19938 and the final9 Constitution of South Africa, in guaranteeing cultural
5
The common law is characterised as 'Western' as it shares commonalities with
other legal systems belonging to the Romano-Germanic and Common Law
families.
6
Legal pluralism may be interpreted in different ways. In a South African context,
the discussion of Van Niekerk 2006: 5-14 and 2008: 208-220 is followed. She
argues that the narrow interpretation of legal pluralism in the context of family
laws is the co-existence of officially recognised state laws, whilst deep legal
pluralism can be regarded as the factual situation which reflects the realities of a
society in which various legal systems are observed, some officially and others
unofficially. In South Africa, the common and customary law embodies official
legal pluralism, whilst those two 'official' legal systems, together with all other
'unofficial' legal systems (eg Hindu law, Jewish law and Muslim law) embody
'deep' legal pluralism.
7
The colonials tolerated at first and later applied African customary law to a
certain extent. During the time of apartheid people belonging to other cultures
were forced to live together in close-knit communities, thereby encouraging the
formation of a group identity which, to a large extent, remains even today.
8
Constitution of the Republic of South Africa 200 of 1993.
9
Constitution of the Republic of South Africa, 1996. The final Constitution is
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2010 – nr. 60
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and religious rights, provide that the state may pass legislation recognising systems
of personal and family law consistent with and subject to other provisions of the
Constitution. These constitutional provisions do not compel the government to give
legislative recognition to some forms of non-state law relating to culture or
religion, neither do they create a right to have a particular cultural or religious
system of personal law recognised (Moosa 1996: 354). In other words, there is no
responsibility on the government to incorporate cultural or religious forms of non-
state law into state law, and so far government and the legislature have mostly
remained silent on these issues.10
However, the judiciary, in particular the Constitutional Court, has been less
passive in affording individuals belonging to religious or cultural groups protection
where needed. The relevant cases deal mostly with legal pluralism issues in the
context of human rights law, and read like a jurisprudential chronicle reflecting the
changing values of a diverse society on the move. This article discusses the change
in judicial policy regarding aspects of non-state religious family law and the
contribution of the judiciary to the acknowledgement of deep legal pluralism in
South Africa. The modest aim of this contribution is not to give a full picture of
South Africa's jurisprudence on these issues up to date, or to compare the situation
in a global context.11 In the discussion that follows the emphasis will be on
supreme law and is not numbered in the same way as the other statutes. All
references in this contribution are to the final Constitution unless indicated
otherwise.
10
In July 2003 the South African Law Reform Commission published a report
proposing the enactment of legislation recognising certain aspects of Muslim law.
Their final report contained a draft Recognition of Muslim Marriages Bill but to
date this Bill has not been transformed into legislation and as a result Muslim
marriages do not form part of state law as yet – see South African Law Reform
Commission 2003: 110.
11
Section 39(1)(b) of the Constitution quoted in the next paragraph compels a
court to consider international law when interpreting the Bill of Rights. South
Africa also follows a dualist approach to the incorporation of international law,
which in essence requires the formal transformation of international law into
domestic law. See Dugard 2005: 47-48. Although this contribution does not
include a discussion of South Africa's international treaty obligations, it is fitting
to refer briefly to the United Nation's Convention on the Elimination of All Forms
of Discrimination Against Women, 1979 (CEDAW) which South Africa ratified in
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jurisprudence dealing with religious family laws, and more particular Muslim
family law, produced by their adjudication of claims by Muslim parties that
recently culminated in the benchmark judgment Hassam v Jacobs.12 In doing so,
the difference in the courts' approach before and after apartheid, and the factors
influencing it, will be identified and discussed. This jurisprudence, it will be
argued, clearly demonstrates that the judiciary’s accommodation of religious and
cultural diversity is acknowledging and even endorsing the existence of deep legal
pluralism in South Africa.
Setting the Stage for Deep Legal Pluralism in South Africa
As already indicated, South African state law does not recognise the laws of other
cultural or religious legal systems, such as Muslim law or Jewish law. The
respective communities observe their legal rules in the private sphere and
observances thereof are overseen by religious institutions, such as the Beth Din for
Jews and the Jamiat-ul-Ulama for Muslims. The institutions' pronouncements are
only binding inter partes, and dissatisfied parties cannot approach the South
African courts to enforce or appeal their findings (Rautenbach, Goolam & Moosa:
2006: 151).
Over the years there have been numerous attempts by religious communities,
especially the Muslim community, to have at least certain aspects of their personal
laws recognised.13 These communities find support for their argument that South
1993. It is notable that some Muslim countries have ratified the Convention with
reservations, especially by accepting the Convention only to the extent that its
provisions are compatible with Islam.
12
2009 (5) SA 572 (CC) (the Hassam case). In this case the applicant (the
surviving wife) was married to the deceased in accordance with Muslim rites. The
deceased was also married to a second wife without the knowledge of the
applicant. The executor refused to recognise the surviving wife as a spouse of the
deceased because of the deceased's second marriage. The question was whether a
Muslim wife, involved in a polygynous Muslim union, could be regarded as a
spouse in terms of the Intestate Succession Act 81 of 1987.
13
The majority of Muslims who first arrived in the former Cape Colony were
brought from the Dutch colonies in the East Indies (now Indonesia), the coastal
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2010 – nr. 60
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Africa must give recognition to aspects of other legal systems in the text of the
Constitution. Section 15(1) of the Constitution recognises everyone's right to
freedom of conscience, religion, thought, belief and opinion, whilst section
15(3)(a) further provides for conditional legislative recognition of certain aspects
of cultural and religious family law and/or personal legal systems. Section 15(3) of
the Constitution is an important provision in the context of legal pluralism and has
been utilised in discussions in favour of legal pluralism on a number of occasions.
It reads as follows:
(a) This section does not prevent legislation recognising-

(i) marriages concluded under any tradition, or a
system of religious, personal or family law; or
(ii) systems of personal and family law under any
tradition, or adhered to by persons professing a
particular religion.
(b) Recognition in terms of paragraph (a) must be consistent
with this section and the other provisions of the
Constitution.
Recognition in terms of this provision must be consistent with other provisions of

the Constitution and it must be construed in the context of the interpretation clause
which reads as follows (section 39):
regions of Southern India and Malaysia as slaves, convicts and political exiles.
Later they were also imported from India to work on the sugar plantations of the
former Natal province, and some of them also came as businessmen. Although the
Dutch colonials prohibited the practise of Islam in public places or the conversion
of heathens or Christians to Islam, the English colonials gave Muslims religious
freedom in 1806. Today Muslims constitute about 2% of the total population of
South Africa. In 1996 there were 553 584 Muslims in a population of 40 583 573
people in South Africa (statistics provided electronically by the Central Statistical
Services on 24 February 2000). There are also other statistics available that differ
somewhat from the statistics of the Central Statistical Services. The difference is,
however, of no great importance. See Moosa 1996: 39-40. More recent statistics
are not available. Most South African Muslims are members of the Sunni school
but there is a small number of individuals who had converted to the Shi'a school.
For more information, see Mahida 2010.
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(1) When interpreting the Bill of Rights, a court, tribunal or

forum-
(a) must promote the values that underlie an open
and democratic society based on human dignity,
equality and freedom;
(b) must consider international law; and
(c) may consider foreign law.
(2) When interpreting any legislation, and when developing
the common law or customary law, every court, tribunal
or forum must promote the spirit, purport and objects of
the Bill of Rights.
(3) The Bill of Rights does not deny the existence of any
other rights or freedoms that are recognised or conferred
by common law, customary law or legislation, to the
extent that they are consistent with the Bill.
The interpretation clause has been instrumental in displacing to some extent the
traditional approach to interpretation of 'literalism-cum-intentionalism'14 with
purposive interpretation.15 In general the judiciary is eager to steer away from the
traditional interpretation mechanisms, remarkably also in the area of legal
pluralism, as will be illustrated later. In Daniels v Campbell16 Justice Sachs
14
This expression is borrowed from Du Plessis 2008: 32.29-41, who explains that
it refers to the alliance between determining the intention of the legislature and
finding the literal meaning of a specific provision.
15
Currie and De Waal 2005: 148 explains the meaning of purposive interpretation
as follows: "[It] is aimed at teasing out the core values that underpin the listed
fundamental rights in an open and democratic society based on human dignity,
equality and freedom and then to prefer the interpretation of a provision that best
supports and protects those values."
16
2004 (5) SA 331 (CC) (the Daniels case). This case dealt with the legal status of
a Muslim wife in the context of family law and the question was whether a spouse
married according to the tenets of the Muslim faith could be regarded as a spouse
in terms of the Intestate Succession Act 81 of 1987 and/or as a survivor in terms of
the Maintenance of Surviving Spouses Act 27 of 1990. The answer of the Court to
both questions was positive and both Acts were developed to make provision for
the surviving spouse of a de facto Muslim union. The Court, however, refrained
from expressing its viewpoint on the legal status of Muslim wives involved in a de
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interpreted section 15(3)(a) in the context of the founding constitutional values

(human dignity, equality and freedom) and concluded that the section permits the
recognition of 'marriages concluded under any tradition or a system of religion,
personal or family law.' He held that the-
... founding values as given expression in the Bill of Rights now

provide the context within which legislation must be construed.
The interpretive injunction contained in section 39(2), namely,
that when interpreting any legislation courts must promote the
spirit, purport and objects of the Bill of Rights, must be
understood in this context (at para 55).
Justice Sachs (at para 56) also pointed out that the common and customary law (the
state law) must be developed and legislation interpreted to be consistent with the
Bill of Rights17 and international obligations to reflect the 'change in the legal
norms and the values of our [South African] society.'
In the context of religious and cultural family law a number of other constitutional
provisions, mostly classified as human rights provisions, are also important to
qualify, strengthen and contextualise religious and cultural diversity, for
example:18
• the preamble to the Constitution recognises the diverse character of South

African society and declares that 'the people of South Africa ... believe that
South Africa belongs to all who live in it, united in our diversity';
• section 9(1) guarantees everyone's equality before the law and equal
protection and benefit from the law and must be read with section 9(3), which
prohibits direct or indirect unfair discrimination in the public or private sphere
on one or more grounds, including ethnic or social origin, colour, religion,
conscience, belief, culture or language;
• section 10 emphasises that everyone has inherent dignity which must be
respected and protected;
facto polygynous Muslim union.

17
The Bill of Rights is contained in Chapter 2 of the Constitution.
18
See also Du Plessis 2008: 380-384 and 2009: 11-14 for a discussion of the
constitutional provisions which are relevant to this debate.
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• section 15(1) is the most important freedom of religion clause

guaranteeing everyone's 'right to freedom of conscience, religion, thought,
belief and opinion.' Together with section 15(3), allowing for legislative
recognition of religious and cultural marriages and other personal legal
systems outside the mainstream legal system, it forms a strong basis for the
emergence of legal pluralism in South Africa.
• section 30 provides that everyone has the right to participate in the
cultural life of his or her choice;
• section 31 deals directly with culture and provides that all persons have a
right to enjoy and practise their religion together with other members of that
community; and
• section 185 makes provision for the establishment of a Commission for
the Promotion and Protection of the Rights of Cultural, Religious and
Linguistic Communities.
Equally important in the context of legal pluralism are the so-called operational
constitutional provisions, which include the following:
• section 7(1), which characterises the Bill of Rights as a cornerstone of

democracy, enshrining the rights of all people in South Africa and affirming
the values of dignity, equality and freedom; and section 7(2), which
commands the state to 'respect, protect, promote and fulfil the rights in the
Bill of Rights';
• section 8(1), which applies the Bill of Rights to all law and binds the
judiciary, legislature, executive and other organs of state, and also section
8(3), which enjoins the development of legislation or the common law to give
effect to a right in the Bill of Rights;
• section 38, which allows for aggrieved persons to approach a court for the
protection of their rights; and
• section 39 (quoted above), which prescribes a new approach to
constitutional and legislative interpretation.
In the context of cultural and religious family laws, these provisions have played
and will continue to play an important role in the adjudication of legal pluralism
issues, as will be illustrated in the following paragraphs.
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Emergence of Deep Legal Pluralism Through Case Law
Before democratic changes were brought about, the principle of parliamentary

sovereignty and limited powers when it came to the evaluation of legislation
prevented the courts from developing the law, even when fairness dictated
otherwise. This is no longer so. South African courts have the power to develop
the law and must do so without fear and prejudice to 'promote the spirit, purport
and objects of the Bill of Rights.' The South African Constitution declares that
'[t]he courts are independent and subject only to the Constitution and the law,
which they must apply impartially and without fear, favour or prejudice' (section
165(2)).
A value-laden Constitution opened the doors for judicial engagement with the
phenomenon of deep legal pluralism and gave the courts the opportunity to bring
about change in the judicial policies regarding the same. A perusal of the case law
illustrates that there are various factors that played a role in the judiciary's
acknowledgement of deep legal pluralism in South Africa. The discussion that
follows attempts to pinpoint these factors by comparing, by way of illustration, the
approach of the judiciary post 1994 with their approach before 1994.19 The case
law selected for consideration is a mere sample from an array of cases dealing
with typical legal pluralism issues and focuses generally on adjudication of aspects
of Muslim family law.
New approach to legislative interpretation
The first noticeable change in the approach of the courts relates to their method of
legislative interpretation brought about by the interpretation clause in the
Constitution (section 39 quoted above). According to the orthodox method of
interpretation (the 'literalism-cum-intentionalism' approach) the courts’ paramount
rule is to ascertain the intention of the legislature by looking at the ordinary
grammatical meaning of the words used in the statutory provision, except if doing
19
Besides the commencement of the 1993 Constitution, 1994 is the date hailed as
the beginning of the new democracy in South Africa. It was also the date when the
first democratic elections were held, and the date on which the former President
Mandela came to power and the African National Congress (ANC) became the
governing political party.
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so 'would lead to an absurdity so glaring that the Legislature could not have
contemplated it.'20 Although some courts, most notably those of the Supreme
Court of Appeal, still favour this approach to legislative interpretation, it is
generally accepted that the Constitution provides a new framework for legislative
interpretation. In Nortje v Attorney-General of the Cape21 it was stated that-
... it is no doubt correct to say that the constraints imposed by the

traditional rules of interpreting statutes result in too restrictive
and 'legalistic' an approach to legislation of this kind and will
frustrate both contemporary and future Courts' efforts to
accommodate changing social dynamics over the years (page
471).
The Constitution is a value-laden document which requires promotion and

application and, as pointed out in the Nortje case (page 471), it provides a set of
societal values to which the law must conform. However, many questions remain
unanswered. For example, which and whose values are we talking about? From
whose point of view are these values evaluated, and what about the dangers of
cultural relativism?22 In a nutshell, one could say that South Africa has a diverse
community of constitutional interpreters, most notably the judges, involved in the
constitutional discourse (Botha 2006: 26-27) and different approaches are the order
of the day rather than the exception. Furthermore, if one considers the fact that
most of the members of the judiciary were and still are the products of rather
similar South African law schools, why then is there such a great a difference
between the pre and post apartheid judgments pertaining to legal pluralism issues?
The difference could be attributed to the fact that the multicultural composition of
the judiciary has changed considerably, and that this fact evidently has shaped and
is still shaping the (legal) culture.
One could illustrate the problem by referring to pre-1994 case law dealing with the
recognition of Muslim unions. For a very long time the South African courts
refused to recognise the validity of Muslim unions and their consequences because
20
Commissioner, SARS v Executor, Frith's Estate 2001 (2) SA 261 (SCA) 273.
21
1995 (2) SA 460 (C) (the Nortje case).
22
For example 'muti'-killings in order to harvest human body parts for traditional
medicine. See Rautenbach 2007: 519.
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of their potentially polygynous nature.23 The locus classicus in this regard dates
back more than eighty years, viz. Seedat's Executors v The Master (Natal)24 where
the Court refused to recognise the validity of the Muslim union because of its
potentially polygynous nature and declared that-
[p]olygamy [polygyny] vitally affects the nature of the most

important relationship into which human beings can enter. It is
reprobated by the majority of civilized peoples, on grounds of
morality and religion, and the Courts of a country which forbids
it are not justified in recognizing a polygamous union as a valid
marriage (pages 307-308 - italics added).
The words uttered by the Court, viz. 'the majority of civilized peoples, on grounds
of morality and religion' clearly illustrate the point in question. Who is the
'majority of civilized' people that influences the court's decision that a polygamous
union is contrary to this country's morals? It is tempting to conclude that the
Court's words reflected its own beliefs, customs and ethics which were relative to
the individual judge within his own social context, thus reflecting a kind of cultural
relativistic approach.
23
Polygyny is a form of polygamy where a man has more than one wife. Although
the majority of cases use the terminology 'polygamy' or 'polygamous', it is in
actual fact 'polygyny' or 'polygynous' they had in mind. In the case of traditional
Muslim law, a man is allowed to marry up to four wives. Goolam, Badat and
Moosa 2006: 266.
24
1917 AD 302 (the Seedat's case). In this case the testator lived in India where he
married his first wife according to Muslim rites. After he obtained domicile in
South Africa he re-visited India and married his second wife also according to
Muslim rites. Upon his death in South Africa it turned out that the testator had a
will executed in South Africa bequeathing his estate to executors in trust to realise
and to distribute it between his two wives and his children according to the Muslim
law of succession. The question as to the validity of the second marriage did not
come into question (probably because the litigants knew they had a lost case) but
the argument was that the first marriage was a valid marriage, because it was valid
in India. The court based its non-recognition of the first marriage on the principle
that 'no country is under an obligation on grounds of international comity to
recognize a legal relation which is repugnant to the moral principles of its people'
(see page 307).
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The viewpoint in the Seedat's case represented the stance of the courts for many
years to come25 and it was still the attitude twenty seven years ago in Ismail v
Ismail26 where the Court held that there was no justification to deviate from the
line of decisions refusing to give effect to the consequences of polygynous unions
in the almost seventy years preceding it. The court came to the conclusion that
Muslim unions must be regarded as void on the grounds of public policy. What
exactly the standard for public policy at that stage was can be found in the court's
explanation of the meaning of the concept of 'public policy,' which is closely
connected with terms such as boni mores, mores or morals, terms which have a
narrow and a wide meaning (pages 1025-1026). Widely construed, when the
concept boni mores, mores or morals is used in connection with conduct, it refers
to conduct which is morally or sexually reprehensible. However, narrowly
interpreted, it can be defined as 'the accepted customs and usages of a particular
25
Some of the decisions have been referred to in the Ismail case referred to in the
next note. See also Denson 2009: 250-263 and Rautenbach 2004: 121-152 for a
discussion of some of the cases.
26
1983 1 SA 1006 (A) (the Ismail case). The union between the spouses was
celebrated and terminated in accordance with the tenets and customs of the Muslim
faith. The wife claimed payment of arrear maintenance, delivery of deferred
dowry and the return or payment in lieu of the return of certain jewellery. Her
action was founded upon Muslim customs. Council for the wife argued that
previous cases considered the mores of society which, at that stage, regarded all
non-Christian cultures to be 'barbaric and uncivilised and all tenets of non-
Christian cultures which clash with Christian concepts as immoral even within the
framework of relative culture and religion.' Council was of the opinion that times
had changed and that the mores of modern times no longer accommodated this
stance, but indeed had become more tolerant towards polygynous unions - see
pages 1008 - 1014. Council for the husband argued, on the other hand, that the
customs relied upon by the wife were contra bonos mores, unreasonable and in
conflict with the laws of South Africa, and that the wife's cause of action had to
fail – see pages 1014-1017. The Court a quo upheld the exception of the husband
on the grounds that the union was potentially polygynous and against the public
policy. The wife appealed against this decision. On appeal the Court held that the
union was void on the grounds of public policy, and so were the customs and
contract which flowed therefrom. As a result the claims instituted in terms of the
'void' Muslim union failed.
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social group that are usually morally binding upon all members of the group and
are regarded as essential to its welfare and preservation' (page 1025H). The court
found that a Muslim union 'can be regarded as being contra bonos mores in the
wider sense of the phrase, viz. as being contrary to the accepted customs and
usages which are regarded as morally binding upon all members of our society';
thereby marginalising everybody not compliant to the morals of only one religious
group, most probably Christianity, that sets the standard for public policy.
The Seedat's and Ismail cases, including those cases in between which were
bounded by the stare decisis rule,27 emanated from a time when the sovereignty of
the South African parliament was not debatable, long before the commencement of
a new constitutional order under a supreme28 and justiciable Constitution, and
during a time when segregation between racial groups was the order of the day.
The Ismail case was the last judgment on the issue of a Muslim union before the
1993 Constitution came into operation, followed by the final Constitution. These
two Constitutions changed the playing field considerably. One has to agree with
the words of Judge Cameron in Holomisa v Argus Newspapers Ltd29 that '[t]he
Constitution has changed the "context" of all legal thought and decision-making in
South Africa' (page 618C-D). The change in legal thought and decision-making,
especially regarding judicial interpretation, is evident in a number of constitutional
court decisions pertaining to legal pluralism issues.
Although section 39 of the Constitution led to a new approach to interpretation,

especially regarding human rights issues, it does not necessarily mean that there is
always a deviation from orthodox methods; it can also involve a re-evaluation of
those methods. For example, in the Daniels case the court had to determine if a
Muslim wife can be regarded as a 'spouse' in terms of South African common
law. The court found that linguistically the word 'spouse' in its ordinary meaning
includes parties to a Muslim marriage and that such a reading would correspond to
27
According to this rule, courts must abide or adhere to principles established by
decisions in earlier cases, especially those higher up in the hierarchy.
28
Section 2 of the Constitution confirms the supremacy of the South African
Constitution and reads: "This Constitution is the supreme law of the Republic; law
or conduct inconsistent with it is invalid, and the obligations imposed by it must be
fulfilled."
29
1996 (2) SA 588 (W).
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Christa Rautenbach
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the way the word is generally understood and used. According to the court-
[i]t is far more awkward from a linguistic point of view to

exclude parties to a Muslim marriage from the word 'spouse'
than to include them. Such exclusion as was effected in the past
did not flow from courts giving the word 'spouse' its ordinary
meaning. Rather, it emanated from a linguistically strained use of
the word flowing from a culturally and racially hegemonic
appropriation of it. Such interpretation owed more to the artifice
of prejudice than to the dictates of the English language. Both in
intent and impact the restricted interpretation was discriminatory,
expressly exalting a particular concept of marriage, flowing
initially from a particular world-view, as the ideal against which
Muslim marriages were measured and found to be wanting.
These words revert back to the age-old argument that a judge cannot be impartial
to the society and political climate in which he or she operates. It is generally
expected from a 'good judge' (the interpreter) to be impartial and tolerant,
especially in adjudicating matters before court but it is difficult to bring this idea in
line with the contents of most beliefs, since the 'truth,' as viewed in many beliefs,
creates a conviction which necessitates subjective criticism and even intolerance to
a certain degree. We also need to bear in mind that practising legal science (legal
pluralism included) is a human activity and can therefore not be entirely objective,
uninvolved, value free or value neutral (Van der Walt 2002: .55-58). The law
must be understood as a set of social rules but there should be no doubt that the
social rules cannot be 'set' (or fixed). They change as the demands of society
change. In addition, factors such as the values of the founding values of the
Constitution, politics and the cultural context of the judge have to have an
influence on judgments. How else can one explain the fact that there is often more
than one dissenting judgment but only one set of facts? The set of social rules
which dominated during the apartheid era certainly influenced methods of
interpretation, just as present-day judges are influenced by contemporary societal
values. Most recently, in the Hassam case (paras 24–25), the Constitutional Court
referred to this change in approach to legislative interpretation under the influence
of section 39 of the Constitution. The Court agreed with the Daniels case where
the latter stated that '... [d]iscriminatory interpretations deeply injurious to those
negatively affected were in the conditions of the time widely accepted in the
courts. They are no longer sustainable in the light of our Constitution (para 20)'.
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On a few occasions the Courts observed that legislative interpretation was

'construed in the context of a legal order that did not respect human dignity,
equality and freedom of all people' (for example, the Daniels case para 25). There
is no doubt that the context (socially30 and legally31) that influences legislative
interpretation has changed considerably. The South African Constitution
recognises and endorses diversity, and this fact must influence the orthodox
approach to legislative interpretation too. In the Daniels case (para 28) the Court
pointed out that an interpretive approach that endorses the 'new ethos of tolerance,
pluralism and religious freedom' will ensure the achievement of the progressive
realisation of transformative constitutionalism.32 Such an approach is also in line
with the aim of the final Constitution to '[h]eal the divisions of the past and
establish a society based on democratic values, social justice and fundamental
human rights. (see preamble).'
Du Plessis (2009: 11) argues that contemporary South African jurisprudence

dealing with religious freedom and equality can be referred to as 'a jurisprudence
of difference.' He finds his cue in the workings of the political theorist, Young,
who has referred to the phenomenon of social diversity as 'a politics of
difference.' She explains that a goal of social justice is social equality and makes it
clear that-
[e]quality refers not primarily to the distribution of social goods,

though distributions are certainly entailed by social equality. It
refers primarily to the full participation and inclusion of everyone
in a society's major institutions, and the socially supported
30
Social changes include the abolition of apartheid and the promotion of cultural
and religious diversity.
31
The most important change was the commencement of the 1993 Constitution,
followed by the final Constitution.
32
The South African Constitution is regarded as a transformative document and
the concept of transformative constitutionalism has been utilised in a variety of
contexts and meanings, denoting some or other form of transformation from the
old to the new. See also, for example, Klare 1998: 14; Minister of Health v New
Clicks South Africa (Pty) Ltd (Treatment Action Campaign as Amici Curiae 2006
(2) SA 311 (CC) para 232; S v Mhlungu 1995 (3) SA 867 (CC) para 8; S v
Makwanyane 1995 (3) SA 391 (CC) paras 9, 301 - 302.
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substantive opportunity for all to develop and exercise their

capacities and realise their choices (Young 1990: 173).
It could be argued that for Muslim spouses (both the husband and the wife or
wives) social justice is achievable only when they have achieved full participation
and inclusion in the state’s major institutions, such as full access to the courts, the
unqualified protection of the law, and the recognition of aspects of their family
law. Young's understanding of social equality is in line with the Constitutional
Court's comprehension of an individual's freedom and dignity to participate
voluntarily in religious and cultural practices. According to MEC for Education,
Kwazulu-Natal v Pillay33 a necessary element of freedom and of dignity is an
'entitlement to respect for the unique set of ends that the individual pursues' (para
65). In line with this argument one could argue that true social equality is
achievable only if one has the freedom to live according to the laws of your own
legal system. In other words, the laws of a country should be interpreted to reflect
the different peoples living in it. Although it may be argued that social justice is
only achievable by the participation and inclusion of the group (Muslim
community) in the major institutions, the question remains whether such
participation and inclusion necessarily means social justice for the individuals to
whom some of group's practices may be discriminatory? Saying 'yes' may create
the impression that collective rights (for example, the right to practice your
religion in connection with other members of the group) are superior to individual
rights (for example, the right to equality between the sexes). Put differently, in
recognising the right of the Muslim community to receive official recognition of its
legal system,34 conflict may be created between typically collective rights and
33
2008 (1) SA 474 (CC) (the Pillay case). This judgment of the Constitutional
Court is regarded as a groundbreaking decision regarding cultural and religious
rights in South Africa. A Hindu learner, Sunali, was forbidden by her school to
wear a nose stud because it was banned by the Code of Conduct of the particular
school. Sunali and her mother were not satisfied with the decision of the school
and initiated legal steps against the school which ended up the Constitutional
Court. The Constitutional Court found that a combination of the school's refusal to
grant Sunali an exception to wear her nose-stud and the provisions of the Code of
Conduct resulted in unfair discrimination. See Du Plessis 2008: 379, 396-407 for a
discussion of the case.
34
However, one has to keep in mind that Islamic law is not a unified legal system
but that it consists of all the laws of various Muslim schools which may differ
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individual rights. The example under discussion so far comes to mind, viz. the
situation where a Muslim husband has the advantages of polygyny, whilst a
Muslim wife has to be content with only one husband and the disadvantages of
polygyny. One may argue that polygyny is fundamentally anti-women and that
equal regard of the values of a pluralistic society in a particular legal system does
not necessarily mean gender equality.
New ethos informing the boni mores35
Linking up with the new approach to legal interpretation is the question as to

which ethos informs or should inform the boni mores. In line with the narrow
definition of boni mores the moral values of a social group were defined narrowly
to include only one social group in previous jurisprudence (see Ismail case at pages
1025-1026). Christianity was generally regarded as the source of all values, and
the fundamental values of other major religions, such as those of the Muslim faith,
were not regarded as informing the boni mores.
In contrast to the ethos that informed the boni mores before the new constitutional
order, the current constitutional dispensation necessitates a re-evaluation of the
whole situation. As pointed out in Ryland v Edros36 public policy is a question of
considerably. This aspect may also hamper the process of recognition of Muslim
law in South Africa quite considerably.
35
Concepts such as 'public policy,' 'boni mores,' 'mores' and 'contra bonos
mores' are used by the judiciary and legal scholars alike and it is not always clear
if there is a difference in the meaning of these concepts. In Sasfin (Pty) Ltd v
Beukes 1989 (1) SA 1 (A) 71 the Court refers to this problem but indicates that
these concepts can be used interchangeably to illustrate when something is against
the mores of society and when not. However, the problem is, and always was, the
question as to which society one has to refer to. As proclaimed in South African
Breweries Ltd v HE Muriel (1905) 26 NLR 367: '... public policy is a very unruly
horse and once you get astride it you will never know where it will carry you.'
36
1997 (1) BCLR 77 (C) (the Ryland case. The union between the spouses was
celebrated and terminated according to the tenets and custom of the Muslim faith.
The husband instituted an action in a South African court to evict his ex-wife from
the house they shared but she defended the action and instituted a counter-claim,
based on the 'contractual agreement' constituted by their Muslim union. In terms
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fact which can change only if there is a change in the facts on which it is based.
The 1993 Constitution37 brought about a change in the factual position and
required a reappraisal of the basic values on which public policy was based at that
time. If the 'spirit, purport and objects' of the 1993 Constitution were in conflict
with public policy, as expressed in the Ismail case, there had to be a change in the
public policy. In considering whether or not the underlying values of the 1993
Constitution were in conflict with the traditional views on public policy, the Court
concluded that it could not be said that the contract arising from a Muslim union
was 'contrary to the accepted customs and usages which are regarded as morally
binding upon all members of our society,' or was 'fundamentally opposed to our
principles and institutions' as expressed in the Ismail case. The Court based its
decision, inter alia, on the fact that in the Ismail case the viewpoints of only one
group in a multi-cultural society had been taken into consideration, and held:
[I]t is quite inimical to all the values of the new South Africa for
one group to impose its values on another and that the Courts
should only brand a contract as offensive to public policy if it is
offensive to those values which are shared by the community at
large, by all right-thinking people in the community and not only
by one section of it (para 707G).
The Court also referred to the principles of equality, diversity and the recognition
of South African society as a multi-cultural society. These principles were among
the values that underlined the 1993 Constitution (and that permeate the final
Constitution). In the Court's opinion these values 'irradiate' the concept of public
policy that the courts have to apply (paras 707H-709A). Accordingly the Court
held that the Muslim union, as well as the contract arising from the union, was not
contra bonos mores, and as a result the Ismail case no longer 'operates to preclude
a court from enforcing' contractual claims such as those brought by the parties in
this case. It is important to point out that the question of polygyny was not
important to this case, because the union between the parties was de facto
of the contract they agreed that their marriage and matter flowing therefrom would
be governed by Muslim personal law. One of the issues the Court had to decide on
was whether the Ismail case barred the husband and wife from relying on this
contract which forms the basis of their Muslim union. The Court found that the
contract between the parties was indeed valid and enforceable.
37
The case was decided when the 1993 Constitution was still in operation.
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monogamous. As a result the question of gender (in)equality in the case of

polygyny was never discussed but only equality in the context of tolerance and
accommodation of communities with different societal values.
In Amod v Multilateral Motor Vehicle Accident Fund (Commission for Gender

Equality Intervening)38 the Supreme Court of Appeal confirmed the new direction
taken in the Ryland case and again found that there was an 'important shift in the
identifiable boni mores of the community' which 'must also manifest itself in a
corresponding evolution in the relevant parameters of application in this area (para
23)'. Before the enactment of the two Constitutions, the courts qualified the boni
mores by referring to the societal norms of only one group but now they recognise
the fact that the South African society is diverse with different societal norms.
What is 'wrong' to one society is not necessary 'wrong' to another. This shift in
the boni mores, reflecting the different societal norms, must be reflected in the
approach of the courts towards the customs of other religions. Against this
background the Court held that it 'is inconsistent with the new ethos of tolerance,
pluralism and religious freedom' not to recognise the claim of a Muslim wife for
damages for loss of support' (para 20) and concluded that '[t]he inequality,
arbitrariness, intolerance and inequity inherent in such a conclusion would be
inconsistent with the new ethos which prevailed on 25 July 1993 when the cause of
action in the present matter commenced (para 23)'.
The new ethos informing public policy when the consequences of unrecognised
Muslim unions are in issue continued to prevail in a number of consecutive
decisions and reached a high point in the Hassam case where the Court reiterated
that '... the content of public policy must now be determined with reference to the
founding values underlying our constitutional democracy ... in contrast to the
rigidly exclusive approach that was based on the values and beliefs of a limited
sector of society ... (para 26)'.
The new direction taken by some courts reflects a healthy and much needed
transformation from a divided pluralistic society into one that is united in its
38
1999 (4) SA 1319 (SCA) (the Amod case). Mrs Amod, whose husband had been
killed in a motor collision, lodged a claim against the Accident Fund for damages
for loss of support. The Accident Fund argued that their union could not be
regarded as a valid marriage and that it was thus not responsible to honour the
claim against them, since it was liable only in the case of valid marriages.
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diversity, as declared in the preamble of the South African Constitution. To put it

in another way, social equality, and thus quality equality, is achieved by
acknowledging that 'for all to develop and exercise their capacities and realise
their choices' (as Young described it above) it might be necessary to allow for and
recognise difference under the law. However, a word of caution must be added
here; accommodating legal pluralism must never be an obstacle to the protection of
individual human rights, especially gender rights.
New approach to diversity: celebration of difference39
As already pointed out, the cultural policies of the former South African
government were based on racial segregation (or apartheid). Legislation was
designed to keep society divided along racial lines, resulting in unequal
development of various cultural groups. The law was applied to force separation in
society, publicly and privately, and amounted to a form of social engineering.40
These policies were infamous and, for obvious reasons, widely criticised and
globally resented.
As explained in the introduction, there is another context where the law gave, and
still gives, legal effect to diversity in the private sphere, noticeable in the mixed
nature of the South African legal system. Customary law was initially ignored by
the colonials, then tolerated, and eventually recognised, albeit with certain
reservations and in certain conditions only. It is now part and parcel of, and on a
par with, the common law of South Africa.41 One might have an uneasy feeling
that this situation, where different laws apply to different people, is nothing more
than a manifestation of the old apartheid system, but the fact that there is an
39
The expression 'celebration of difference' is borrowed from Du Plessis 2009: 9
where he discusses the development of South African jurisprudence regarding
religious freedom and equality, which he calls the 'celebration of difference.'
40
For example, the Prohibition of Mixed Marriages Act 55 of 1949 prohibited
marriage between persons of different races, the Group Areas Act 41 of 1950
partitioned South Africa into areas allocated to different racial groups, and the
Population Registration Act 30 of 1950 formalised racial classification.
41
For a brief historical discussion of the recognition of customary law in South
Africa, see Olivier 2009: 12-28, and also note 4 above.
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element of individual choice present today, which is based on the right and
freedom associated with cultural or religious choices, probably saves the day.42
However, such an argument is not trouble-free. The question remains whether this
freedom (cultural and religious) can be exercised by an individual, or is an
individual's choice constrained by the individual's affiliation to a group? Even in
this modern day and age it is doubtful whether people, especially women, subject
to religious or cultural legal systems other than the secular system, really have an
option to choose between alternative legal systems.
An unreserved adoption of legal pluralism may also have the effect that
discriminatory provisions in unrecognised personal laws continue to be in force
due to narrow and doubtful judicial interpretations and the neglect to enforce the
concept of social justice in favour of women. In this regard one can refer to the
number of South African cases dealing with the legal status of Muslim marriages,
where it is often the wife that institutes matrimonial action on the basis of her
Muslim union concluded in accordance with Muslim rites, whilst the husband is
the one that contends that the rites in question were 'either contra bonos mores,
unreasonable or in conflict with laws which were unalterable by [marriage]
agreement' (Ismail case). In defence of the South African courts, especially since
1994, it must be pointed out that their approach to accommodate legal pluralism,
rather than to negate it, were largely due to the fact that the aggrieved parties in
the proceedings have been discarded women who needed legal protection.
Although apartheid belongs to the past, South Africa remains challenged by the
fact that it is home to a pluralistic society whose cultural fabric has been shaped by
a number of factors, including ethnicity, language, religion, culture, politics and
the economy.43 This reality makes it difficult for government to create 'a single
42
However, Sezgin 2009: 273-297 convincingly illustrates how a post-colonial
state such as Israel used legal pluralism to exclude Arabs in the nation-building
process. See also Sezgin 2004: 199-235 for a political analysis of legal pluralism
in Israel.
43
Demographically, the South African population can broadly be divided into the
following population groups: Africans 79,6%, Coloureds 8,9%, Indian/Asian
2,5% and Whites 8,9%. These groups can be subdivided even further depending
on the ethnicity, language, religion and origins of a particular group. See Statistics
South Africa, Statsonline: The Digital Face of Stats SA, available at
http://www.statssa.gov.za/publications/P0302/P03022007.pdf (accessed 3 June
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South African identity without marginalising culture.'44 Similar debates exist in the
legal sphere and the South African legislature also struggles with the question as to
whether to diversify or unify.45 The South African Constitution accepts diversity
and recognises that to promote diversity it may be necessary to create express
provisions for difference. This new approach towards difference or diversity is
reflected in contemporary legislative and judicial policies as illustrated hereafter.
(a) New legislative policy
In line with the constitutional values there has been a clear shift in legislative
policy in providing for the recognition of religious unions or aspects thereof, other
than common law and customary law marriages, in certain circumstances.
Examples include:
• the Civil Proceedings Evidence Act 25 of 1965 recognises religious

marriages for the purposes of the law of evidence (section 10A);
• the Criminal Procedure Act 51 of 1977 recognises religious marriages for
the purposes of the compelling spouses as witnesses in criminal proceedings
(section 195(2));
• the Special Pensions Act 69 of 1996 defines a 'dependent' to include a
spouse to whom the deceased was married under any Asian religion (section
2008). In terms of religious affiliation, about two-thirds (79%) of South Africans

are Christian, mainly Protestant. Other prominent religions include Islam (2%),
Hinduism (2%) and Judaism (2%). About 15% of the population practises no
religion at all. See Central Intelligence Agency, The World Fact Book, available at
https://www.cia.gov/library/publications/the-world-factbook/geos/sf.html#Econ
(accessed 30 June 2008). South Africa has 11 official languages. According to the
2001 census, isiZulu is the mother tongue of 23,8% of the population, followed by
isiXhosa (17,6%), Afrikaans (13,3%), Sesotho (9,4%), and English and Setswana
(8,2% each). The least-spoken indigenous language in South Africa is isiNdebele,
which is spoken by 1,6% of the population. In addition to these official languages,
several local and foreign dialects are also spoken in South Africa. See Statistics
South Africa 2004: 8-12.
44
Du Plessis 2006: 13.
45
See, for example, Rautenbach 2006b: 241-264; Rautenbach 2008: 119-132.
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31(b)(ii));
• the Demobilisation Act 99 of 1996 defines a 'dependent' to include a
spouse to whom the deceased was married in accordance with the tenets of a
religion (section 1(vi)(c));
• the Value Added Tax Act 89 of 1991 recognises religious marriages for
the purposes of tax exemptions in respect of goods imported into South Africa
(Schedule 1 to the Act);
• the Transfer Duty Act 40 of 1949 exempts property inherited by the
surviving spouse in a religious marriage from transfer duty (section 9(1)(f)
read with the definition of 'spouse' in section 1);
• the Estate Duty Act 45 of 1955 exempts property accruing to the
surviving spouse in a religious marriage from estate duty (section 4(q) read
with the definition of 'spouse' in section 1); and
• the Birth and Deaths Registration Act 51 of 1992 defines marriage to
include all marriages concluded according to the tenets of any religion
provided that the relevant marriage is recognised by the Minister (section
1(2)(a)).
These few examples show that the South African legislature recognises the fact
that there are aspects of other legal systems, most notably family law, in need of
recognition or regulation, especially if the relevant aspects fall outside the reach of
existing legislation. If that were to be achieved, these aspects would no longer fall
outside the scope of state law but would instead form part of it. On the face of it,
recognising or regulating some aspects of other religious or cultural legal systems
but refusing to give recognition to these legal systems, or at least, to give
recognition to these marriages, seems to be an anomaly which is difficult to
defend. Although it may be argued that the legislation listed above recognises
religious marriages for practical reasons, the confusion is indicative of the
plurality of the South African society. And it is conspicuous that most of the
examples given above deal with economic considerations benefiting the state.
Parliament and the legislature have been less enthusiastic in taking steps towards
the legislative recognition of Muslim unions as valid marriages. Although the
South African Law Reform Commission proposed a Draft Bill on the Recognition
of Muslim Marriages, included in their Report (2003: 110-133), which was
consequently submitted to the Minister of Justice and Constitutional Development
in July 2003, there has been no legislative recognition to date. This situation has
led to some frustration, and in May 2009 the Women's Legal Centre Trust lodged
an application for direct access to the Constitutional Court to seek an order
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declaring that the president and parliament had failed to fulfil their constitutional
obligations to enact legislation that recognises Muslim marriages. The case was
reported as Women's Legal Centre Trust v President of the Republic of South
Africa,46 but the Court held that the obligation to enact legislation to fulfil the
rights in the Bill of Rights does not fall on the president and parliament alone and
that it is not in the interest of justice to allow the Women's Legal Centre Trust
direct access to the Court. In this particular case it would have been best to have
the benefit of other courts' insights and to have a multistage litigation process
where issues can be isolated and clarified. Until the legislation as proposed in the
Draft Bill has been enacted, the South African courts will be the forum to
approach if aggrieved Muslim parties want to seek redress for the hardships
caused by non-recognition of the validity of their unions.
(b) New judicial policy
In line with the shift in legislative policy, there are a number of South African
cases where cultural and religious diversity has been affirmed, even beyond mere
tolerance, and in actual fact recognised and promoted.47 According to Du Plessis
(2008: 377) the jurisprudence, especially that of the Constitutional Court, that
deals with the assertion of religious and related entitlements-
... has increasingly been interrogating, with transformative

rigour, 'mainstream' preferences and prejudices regarding the
organisation of societal life, inspired by the desire to proceed
beyond – and not again to resurrect – all that used to contribute
to and sustain marginalisation of the Other.48
Although cultural and religious freedom has an element of choice or the freedom
to choose and presupposes the right or freedom to be different, it is not easy to
determine or define how the law should deal with these differences. Legal science
46
2009 (6) SA 94 (CC).
47
Du Plessis 2008: 376-408 discusses some of these examples.
48
Du Plessis 2008: 376 refers to this process as memorial constitutionalism. In
other words, it reflects the need to come to terms with South Africa's notorious
past and to fulfill guarantees of a transformed future.
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(legal pluralism included) is a human activity and can therefore not be entirely
objective, uninvolved, value free or value neutral. The founding values of the
Constitution have shaped and continue to shape how the judiciary deals with
pluralistic issues in South African society. The earlier part of this article has
provided a preview of the change in judicial policy regarding religious and cultural
diversity in a family law context. Although the change in policy can largely be
attributed to the enactment of a normative, value-laden Constitution aspiring to
transform South African society from a state of intolerance to one of celebration of
difference, one should be mindful of the fact that a Constitution is merely a legal
text which would become mere paper law if not used properly by the executive,
judiciary, legislature and all spheres of government. In this regard, judicial
engagement from the outset is quite commendable, in matters of cultural and
religious diversity especially.
A perusal of the case law since early times illustrates how judicial policy has
evolved from intolerance towards potentially polygynous Muslim unions (Seedat's
case) to acceptance of de facto monogamous Muslim unions (Daniels case), and
finally the acknowledgement of the consequences of polygynous Muslim unions
(Hassam case). Clearly this is an indication of legal development through judicial
activism, albeit to a limited extent. It is also important to note that these cases did
not recognise the validity of Muslim unions but rather gave protection to the
parties of these unions by developing the South African common law. For
example, in the Hassan case the common law understanding of spouse was
developed to include the wives of a deceased Muslim in order to allow for them to
inherit from the intestate estate of the deceased.
An interesting point worth mentioning comes from this decision of the

Constitutional Court, viz. the Hassam case, where the Court issued a disclaimer:
'[i]t should ... be emphasised that this judgment does not purport to incorporate
any aspect of Sharia law into South African law (para 17).' This remark is
something of an anomaly, because in giving recognition to certain aspects or
consequences of a Muslim union, the Court indirectly incorporates those aspects or
consequences into South African law. Thus, it does not make sense to say the
parties to a Muslim union (monogamous or polygynous) are spouses in terms of
the Intestate Succession Act 81 of 1987 but that this 'recognised' fact does not
mean that aspects of Sharia law are not incorporated into South African law.
Surely it implies quite the opposite: if one recognises aspects of another legal
system, those aspects are inevitably incorporated into the legal system that
recognised them. The courts are probably cautious not to create the impression
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that they are overstepping their lawmaking boundaries and, considering this, the
comment of the Constitutional Court is understandable. The courts are aware of
the dangers of 'lawfare' and have to develop a jurisprudence that is balanced
enough to give the government and the legislature the space to do their job but at
the same time to ensure that justice is served to those who need it.
The new legislative and judicial policy regarding the recognition of aspects of
Muslim law has generally led to an improvement in the lives of Muslims,
especially Muslim women, and measures up to the standard that Dworkin (1978:
22) sets for sound public policy, viz. that it is-
... that kind of standard that sets out a goal to be reached,

generally an improvement in some economic, political, or social
feature of the community (though some goals are negative, in that
they stipulate that some present feature is to be protected from
adverse change).
(c) Human Rights Based Approach in Protecting the Rights of Cultural and
Religious Communities
As explained before, judicial accommodation of deep legal pluralism has advanced

along the lines of human rights to a large extent. If there is one thing about the
Constitution that every South African knows, it is that it gives you justiciable
rights. The abundance of human rights jurisprudence illustrates this fact. Human
rights litigation in the context of cultural and religious rights is the order of the
day, but not all of the cases deal with non-state family law. Although section 15(3)
of the Constitution does not create a right to have aspects of non-state family law
recognised, other provisions in the Bill of Rights provide the opportunity for the
accommodation of legal pluralism through the recognition of aspects of religious
and cultural legal systems. The Constitution accentuates the values of human
dignity, reaching equality, and the expansion of human rights and freedoms
(sections 1 and 7). Apart from this, the Bill of Rights contains several rights that
need to be protected and promoted, for instance human dignity (section 10),
equality (section 9), religion and culture (sections 15, 30 and 31), freedom of
expression (section 16) and just administrative action (section 33). Most of these
rights will come under discussion in religions and culture but not all of them will
be dealt with in this contribution.
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In the Hassam case the Court was at pains to stress that the case was not
concerned with the constitutional validity of polygynous Muslim unions but with
the question of whether or not the exclusion of Muslim spouses from the protection
of legislation (in this case the Intestate Succession Act 81 of 1987) boils down to a
violation of the rights of the spouses. Almost inevitably, the right to equality
comes into play. The argument is usually that the exclusion of Muslim spouses
from the protection normally afforded to spouses validly married is an
infringement of the right to equality (section 9 of the Constitution). Here the
comparator is the legal position of a spouse married in terms of South African law
which is usually more favourable than her Muslim counterpart. In other words, if
the non-recognition of the Muslim union places the wife in a position inferior to
her common law counterpart, then it amounts to unfair discrimination which is
unconstitutional. However, the situation is more complex than it appears. By
recognising the fact that there are religious and cultural unions in South Africa,
which do not comply with the common law requirements, the court gives
recognition to some of the effects of deep legal pluralism and thus opens the door
for official recognition of gender discrimination which is a built-in aspect of
polygyny. They must therefore be very cautious not to allow legal pluralism to
justify gender discrimination.
The courts dealt with equality issues on numerous occasions and the equality
jurisprudence had ample time to develop a comprehensive set of principles.49 In
Harksen v Lane50 (para 5) the Constitutional Court developed the well-known
multi-stage inquiry to determine the constitutionality of a discriminating
provision.51 The first step is to determine if the impugned provision or conduct
differentiates between people or categories of people. If the answer is no, there is
no violation of section 9. If, however, the answer is yes, the second step is to
determine if the differentiation amounts to unfair discrimination. This requires a
two-stage analysis, namely:
49
According to Dworkin 1978: 22 a 'principle' is 'a standard that is to be
observed, not because it will advance or secure an economic, political, or social
situation deemed desirable, but because it is a requirement of justice or fairness or
some other dimension of morality.'
50
1998 (1) SA 300 (CC).
51
This explanation is based on the author's discussion of the test in Bekker,
Rautenbach and Goolam 2006: 165-166.
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(a) does the differentiation amount to 'discrimination'? If it is on a specified

ground, then discrimination will have been established. If it is not on a
specified ground, then whether or not there is discrimination will depend
upon whether, objectively, the ground is based on attributes and
characteristics which have the potential to impair the fundamental human
dignity of persons as human beings or to affect them adversely in a
comparably serious manner;
(b) if the differentiation amounts to 'discrimination', does it amount to 'unfair
discrimination'? If it has been found to have been on a specified ground,
then unfairness will be presumed. If on an unspecified ground, the
complainant will have to establish unfairness. The test of unfairness
focuses primarily on the impact of the discrimination on the complainant
and others in his or her situation.
If at the end of the two-stage enquiry the differentiation is not found to be unfair,
there will be no violation of section 9. If, however, the discrimination is found to
be unfair then a determination will have to be made as to whether or not the
provisions can be justified under section 36 (the limitation clause) of the
Constitution.
This enquiry was also applied in the Hassam case. The court found that the
exclusion of Muslim spouses of polygynous Muslim unions from the definition of
spouse contained in the Intestate Succession Act 81 of 1987 unfairly discriminates
against Muslim spouses on the grounds of gender, religion and marital status.
There is no justification for such discrimination and as a result the relevant
provision in the Intestate Succession Act is unconstitutional and must be rectified
to include spouses from monogamous and polygynous Muslim unions. The Court
declared that at the enactment of the Intestate Succession Act-
... the only marriages to which the legislature sought to afford

protection were civil marriages recognised under the Marriage
Act. We must now consider the meaning of the word 'spouse' in
the [Intestate Succession] Act in light of its current place and
effect in South Africa and particularly its effect on Muslim
communities. ... [The word 'spouse'] ought to be read through
the prism of the Constitution (para 45).
The right to equality is not the only right that comes into play when the protection
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2010 – nr. 60
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of cultural and religious rights is concerned. For example, the right to dignity is
often utilised, individually or together with other rights, to illustrate a violation of
rights. This was also the situation in the Hassan case. The Court held that a
narrow interpretation of the word 'spouse' that excludes Muslim spouses from the
Intestate Succession Act would 'violate the widow's rights to equality in relation to
marital status, religion and culture and would therefore violate her right to dignity
(para 48).' Put in another way, it means that dignity qualifies equality. If the
widow's right to dignity is impaired by discriminatory actions (for example, her
exclusion from legislative protection), it leads to inequality and thus warrants
constitutional protection. Other rights that have been utilised in the human rights
debate include the rights associated with culture and/or religion (sections 15, 30
and 31) and also freedom of expression (section 16).
Concluding Remarks
The interaction between religious and cultural communities within a political

system has for a considerable time been one of the most important causes of social
problems. As a result of historical developments and the diverse nature of the
South African society, deep legal pluralism is a reality in South Africa. While the
executive, legislature and legal scholars struggle to come to terms with this
phenomenon, the courts have to deal on a daily basis with the harsh consequences
of people still adhering to the legal rules of their 'unrecognised' legal system. One
could argue that the co-existence of a plurality of legal systems is undesirable or
even impractical and that integration or harmonisation is the only way forward.
However, such a viewpoint would not reflect the reality. Some writers have
argued that an interactive process through the intervention of the courts and/or the
legislature can create a harmonised result where discord between legal systems is
removed but the differences remain, thus endorsing instead of vetoing legal
pluralism (Van Niekerk 2008: 209).
The contribution of the courts towards creating a transformed society where the
rights and freedoms of an individual are protected and promoted cannot be
underestimated. Dworkin (1998: 1-6) explains that '[l]awsuits matter in another
way that cannot be measured in money or even liberty' and points out that judges
undeniably 'make new law' every time they give a judgment with influential value.
Despite the disclaimer in the Hassam case (para 17) that the development of the
word 'spouse' to include the multiple wives of a Muslim husband does not
incorporate any aspect of Muslim law into South African law, there is no doubt in
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Christa Rautenbach
____________________________________________________________________
my mind that this piecemeal recognition of aspects of Muslim law acknowledges

and even endorses the phenomenon of deep legal pluralism in South Africa. In the
long run, judicial acknowledgment of aspects of Muslim law might lead to the
transformation of deep legal pluralism (non-state law) into official legal pluralism
(state law pluralism).
In the wake of a transformative Constitution, various factors have been conducive

in allowing the judiciary to deviate from earlier decisions that refused to recognise
aspects of other religious and cultural legal systems, viz. a new approach to
legislative interpretation, a new ethos informing the boni mores, a new attitude to
cultural and religious diversity, a new approach towards human rights protection,
and the changes in the legislative and judicial policies. These factors should not be
viewed in isolation. As evident from the discussion the factors overlap and even
qualify each other, for example, the change in boni mores also contributes to the
change in legislative interpretation methods and vice versa.
In the wake of cases such as the Daniels case and the Hassam case debates have
been taking place on the legal status of cultural and religious non-state laws
formerly consigned to the private sphere as 'things' that cultural and religious
communities do in the privacy of their homes. The Constitutional Court's
viewpoint is that religious and cultural diversity must not be tolerated as a
'necessary evil' but be affirmed 'as one of the primary treasures of our nation'
(Pillay case para 92). At this point, such affirmation proceeds along the line of the
right to equality which is regarded by the Constitutional court as something that
does not require identical treatment but 'equal concern and equal respect' (Pillay
case para 103). However, it is important that one should not lose sight of the fact
that it is not only religious and cultural communities that demand equal concern
and equal respect for their non-state laws but also individuals forming these
communities. The fact that one chooses to be a member of a community living
according to laws outside the mainstream legal systems, can never be sufficient
motivation for human rights infringements within these communities. In other
words, legal pluralism should never be used as a tool to defend or to continue with
human rights violations.
Elsewhere this author (Rautenbach 2006b: 241) compared the phenomenon of legal
pluralism in India with South Africa and came to the conclusion that the South
African common law should be harmonised with the other personal legal systems
that are in operation (unofficially and officially). South Africa should opt for one
unified secular legal system that applies to all, regardless of culture or religion,
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2010 – nr. 60
___________________________________________________________________
whilst providing for differences based on culture and religion. For example, a
uniform code for intestate succession that provides for the devolution of property
of a deceased who is involved in polygynous marriages should be enacted. In
recent times this has indeed happened with the amendment of the Intestate
Succession Act 81 of 1987 to make provision for the inclusion of spouses of
polygynous customary and Muslim marriages.
The harmonisation of various laws will require a ‘testing’ of the constitutionality

of the rules of other personal legal systems. It will therefore be necessary to reach
consensus on the content of the rules that must be recognised. The participation of
the relevant religious and cultural communities in the process of determining the
constitutionality and content of the relevant rules is indispensible. It is, however,
ultimately the responsibility of the legislature to ensure that the aspirations and
ideals of the South African Constitution, which include equality and human dignity
for all, are realised. The courts must be the final protectors who will ensure that
the new legislation satisfies the provisions of the new constitutional order.
Nevertheless, judicial accommodation of aspects of cultural and religious laws
undoubtedly led to the endorsement of deep legal pluralism in South Africa and it
is highly unlikely that this process will be reversed. A fact which is in all
probability frightening to those who believe that true unity is only possible through
unification and harmonisation.
It is important to remember that the law reflects the mores of society but that it
changes slowly, so that it is inclined to reflect the mores of society as they were in
the past rather than in the present. Perhaps one could argue that we have
communities of people in South Africa with conflicting mores, some of which are
archaic, and that the differences are likely to be elided in the near future under the
pressure of globalisation, for instance. In that case it would seem to be attractive to
accept the existence of different legal regimes in different communities of the
population for the time being. But as none of these groups is discrete (the process
of globalisation being well advanced in some areas) there would so often be cases
where dispute would arise as to which regime should be applicable that it would
not be practical to accommodate a number of different systems simultaneously. We
therefore need to abide by one single system - that much is obvious - and debate
should be about the mores that inform the system rather than about whether or not
we should have a plurality of systems.
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Christa Rautenbach
____________________________________________________________________
References
BENNETT, Thomas W.
2004 Customary Law in South Africa. Lansdowne: Juta.
2006 'The conflict of laws.' Pp. 17-27 in Jan C. Bekker, Christa Rautenbach &
Nazeem M.I. Goolam (eds.), Introduction to legal pluralism in South
Africa. Durban: LexisNexis Butterworths.
BOTHA, Christo J.
2006 'The "constitutional" approach to statutory interpretation.' Pp. 15-42 in
Francois Venter and Anèl Du Plessis (eds.), Politics, socio-economic
issues and culture in constitutional adjudication. Potchefstroom: Faculty
of Law.
DENSON, Razaana
2009 'Non-recognition of Muslim marriages: discrimination and social
injustice' Obiter 30: 243-285.
CURRIE, Ian and Johan DE WAAL
2005 The Bill of Rights handbook. Wetton: Juta.
DUGARD, John
2005 International law: A South African perspective. Wetton: Juta.
DU PLESSIS, Lourens
2008a 'Affirmation and celebration of the "religious Other" in South Africa's
constitutional jurisprudence on religious and related rights: Memorial
constitutionalism in action?' African Human Rights Law Journal 8: 376-
408.
2008b 'Interpretation.' Pp. 32.1-32.192 in Stuart Woolman, Theunis Roux and
Michael Bishop (eds.) Constitutional law of South Africa. Cape Town:
Juta.
2009 'Religious freedom and equality as celebration of difference: A significant
development in recent South African constitutional case law.'
Potchefstroom Electronic Law Journal 12: 9-33 at
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epages/2009Volume12no4/2009x12x4_Du_Plessis_art.pdf
DU PLESSIS, Willemien
2006 'South Africa.' Pp. 11-162 in R. Blanpain (ed.) International
encyclopaedia of laws. The Hague: Kluwer Law International.
DWORKIN, Ronald
1978 Taking rights seriously. Cambridge: Harvard University Press.
1998 Law's Empire. Oxford: Hart Publishing.
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GIRVIN, Stephen D.
1996 'The architects of the mixed legal system.' Pp. 95-140 in Reinhard
Zimmermann and Danie Visser (eds.) Southern Cross: Civil And Common
Law In South Africa. Oxford: Clarendon Press.
GOOLAM, Nazeem M.I., Jamila G.H. BADAT and Naima MOOSA
2006 'Islamic law of marriage.' Pp. 252-267 in Jan C. Bekker, Christa
Rautenbach and Nazeem M.I. Goolam (eds.) Introduction to legal
pluralism in South Africa. Durban: LexisNexis Butterworths.
MAHIDA, Ebrahim M.
2010-11-17 History of Muslims in South Africa: A Chronology at
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resources/online%20books/history-muslims/1600s.htm [23 February
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KLARE, Karl
1998 'Legal Culture and Transformative Constitutionalism.' South African
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MANZO, Kathryn A.
1996 Creating boundaries: the politics of race and nation. London: Boulder.
MOOSA, Najma
1996 An analysis of the human rights and gender consequences of the new
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LLD Thesis.
OLIVIER, Nic J.J.
2009 'Recognition of customary law.' Pp. 12-28 in Willem A. Joubert, J.A.
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LexisNexis Butterworths.
RAUTENBACH, Christa
2004 'Islamic marriages in South Africa: Quo Vadimus?' Koers 69: 121-152.
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Comparative Law 3: 119-132.
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RAUTENBACH, Christa, Nazeem M.I. GOOLAM and Naima MOOSA.

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Rautenbach and Nazeem M.I. Goolam (eds.) Introduction to legal
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199-235.
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comparison of Israel and India'. The Journal of Comparative Asian
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SOUTH AFRICAN LAW REFORM COMMISSION
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VAN DER WALT, J.L.
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VAN NIEKERK, Gardiol
2001 'State initiatives to incorporate non-state laws into the official legal order:
A denial of legal pluralism?' The Comparative and International Law
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19399 (C).' South African Public Law Journal 23:208-220.
YOUNG, Iris M.
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2010 – nr. 60
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BOOK REVIEW
Human Rights as Legal Pluralism1
International Council on Human Rights Policy, When Legal Worlds Overlap:

Human Rights, State and Non-State Law. Geneva: ICHRP. 2009. xi + 176 pp.
Milena Stefanova and Nicholas Menzies
Practitioners working in human rights, development and many other fields of

societal change are taking an increasing interest in ‘non-state law’. This Report
from the International Council on Human Rights Policy is therefore timely and
provides a useful tour d’horizon for those new to the area.
The Report’s focus is not without controversy, as increasing practitioner interest in

non-state law is met with consternation by many. Some human rights advocates see
a shift in attention away from the state as tantamount to letting primary duty
bearers ‘off the hook’. This, they claim, is compounded by efforts that elevate the
status of non-state systems manifesting the key human rights abuses (e.g., against
women, due process, individual freedoms) that advocates are trying to overcome.
To its credit, the Report consciously seeks to address these issues and quell
controversy by adopting an even-handed manner. It starts by tackling thorny
definitional questions and presumptions head-on, delves into a case study on family
laws, assesses the conduct of justice sector reform in the context of human rights
and plural orders and closes by providing a framework for human rights advocacy
and policy.
Focus on non-state justice systems has not always been driven for the ‘right’
reasons, which has important implications. For development practitioners, a shift
to non-state law has been pushed in large part by an assumption (not always well
1
The views expressed in this paper are the authors’ alone and should not be
attributed to the World Bank, its executive directors or the countries they
represent.
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2010 – nr. 60
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founded) that classic justice sector reform - the type that focuses on legislation,
institutions and actors in the state justice sector - has been mostly unsuccessful.
Basing a shift of practice on such reasoning has the tendency to drive a complete
change in focus (from state to non-state) rather than a widening of the lens
(pluralism). This has potentially troublesome consequences as it overlooks the
interplay of different justice systems, as well as the important role of justice and
human rights in other sectors (e.g. education, health, infrastructure, land and
natural resource management).
What’s in the Report
The explicit purpose of the Report is to provide ‘tools’ for human rights actors to
evaluate the impact of a particular plural legal order on both access to justice and
human rights. It is written for human rights advocates and policy makers,
assuming an audience who largely don’t contest the worth or primacy of such
endeavors.
The Report consciously sets out to counter some of the heated rhetoric that
permeates the legal pluralism debate, and to a large extent achieves this. It opens
by rebutting popular generalizations about non-state legal orders, and clearly
makes one of the easiest rebuttals of ‘non-state skeptics’ by stating that "virtually
every criticism leveled at non-state orders for failing to match the characteristics of
an ‘ideal’ justice system has also been leveled against formal state legal
systems..." (145). It could, however, have gone a step further to ask whether the
assumption of an ‘ideal’ justice system is part of the problem. Whose ideal? How
do ideal systems come about and how do we get from here to there? And how
might human rights advocates themselves contribute to the construction of such an
assumption and any problems that flow from it?
The Report then continues with an examination of the human rights impact of legal
pluralism, focusing on issues of discrimination and inequality in law, freedom of
religion and belief, jurisdictional confusion, impunity and lack of accountability,
access to justice, protection of minority rights, socio-economic inequalities, and
politics. It further explores three key areas of policy change – the recognition of
non-state legal orders; the recognition of cultural particularities in law; and justice
sector reform. One of the major strengths of the Report is that it doesn’t shrink
from acknowledging the complexity of the issues at hand. In unraveling the
variegated relationships between plural legal orders, it recognizes throughout its
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BOOK REVIEW
____________________________________________________________________
analysis that issues in this area are not straightforward and no simple solutions
exist. The Report is also clear about the lack of watertight analytical boundaries,
as well as the dynamism of processes involved and indeed the limitations of law
when it comes to addressing issues of justice and human rights. It is to be
commended for its emphasis on in-depth understanding of the local context to
guide the design of reform efforts – but it does beg the question of what to do
when the local context sits uncomfortably with human rights norms.
Admirably, the Report does not confine itself to academic discourse, but takes an
extra step to offer practical tools to human rights practitioners, concluding with
guiding principles and a framework of questions to assist them in evaluating the
human rights impact of existing or proposed plural legal orders. While the
framework covers the breadth and depth of human rights concerns, the reader is
left wondering about its utility. It might have been more compelling to illustrate
the results of an empirical testing of the framework, which would also have served
to demonstrate the Report’s proclaimed commitment to context-based solutions.
The Report’s recognition that “plural legal orders exist in every part of the world”
is important as it avoids stigmatizing pluralism as a ‘poor country problem’. And it
backs this up with a wealth of examples from north and south, east and west, high
and low consumption countries. However, for these reviewers it left us if anything
wanting fewer examples and a lengthier in-depth exploration of a select few. As
the Report itself states, it is the complex, unique and dynamic relationships in
specific contexts that influence outcomes, so it could have been of benefit to delve
into some of these in a piece such as this.
A Look from Within
One of the most common and unfortunate misunderstandings

today involves the notion that the Declaration [UNDHR] was
meant to impose a single model of right conduct rather than
provide a common standard that can be brought to life in
different cultures in a legitimate variety of ways (Glendon 2002).
A look from within the pantheon of human rights and the practice of development
suggests, we’d contend, the adoption of a broad conceptual understanding of legal
pluralism. In three main ways, the Report embraces what we would characterize as
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2010 – nr. 60
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a narrower approach.
Firstly, perhaps understandably given the report’s primary target audience (rights
advocates) human rights are framed as separate from or above other systems of
regulation in a particular context. In our view, a drawing of human rights as a
strand of pluralism more accurately reflects the conception and impact of rights in
the contexts where we work. This respect for inter-subjectivity ultimately offers a
better possibility for the shaping of behaviors that respect human rights norms.
What is needed is a look at plurality from the inside, not from the outside.
An analysis grounded in legal pluralism can be instructive to human rights

advocates because ‘pluralism’ fosters an interrogation of the different actors at
play in a particular context, and the ‘legal’ aspect encourages us to see the way in
which law, regulations, rules and norms are used to frame and legitimate ‘truth-
making’ claims of various actors. We believe that if such an approach is to be
truly revealing, it should start (but not necessarily end) with a view that each of
the claim makers is equal and legitimate - as this puts one in the shoes of the
claim-makers themselves. Legal pluralism can thus serve human rights advocates
well, as it helps them to understand the perspective of those who see the world
otherwise - and, we contend, it is from this point that you are most likely to be
able to effect change. Rule systems (human rights being one of them) are only
meaningful if they are socially embedded and seen as legitimate by all actors. Even
though respect for political, economic and social rights could be introduced with
human-rights based approaches to reform, real change is unlikely to occur without
a broader understanding and engagement with the underlying social norms and
dynamics that establish and legitimize appropriate behavior. Such an approach,
however, is not easy for human rights advocates, as one of the most powerful tools
in their arsenal is the claim (if not backed up by law) that human rights norms are
somehow qualitatively ‘different’ and ‘more special’ than others.
Nevertheless, the Report itself provides a foothold for such a view, by offering
insights into pluralism within human rights. This is evidenced in human rights texts
by limitations and opt out clauses, and in judicial terms such as ‘margin of
appreciation’, the ‘subsidiarity principle’ and ‘exhaustion of domestic remedies’.
This lens on the pluralism within human rights permits a more humble engagement
with the reality of pluralism (both within and without) and opens spaces for
iterative courses of reform responding to locally specific capacity and needs.
Secondly, in considering the implications of ‘non-state law’ for human rights, the
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BOOK REVIEW
____________________________________________________________________
Report has a tendency to focus on ‘traditional’ ‘customary’ and ‘religious’

systems, rather than other regulatory orders (such as those driven by global
capital, development agencies and neo-patrimonial structures) that in many
contexts have an even greater impact upon citizen’s rights. For example,
multinational resource extraction companies introduce rules of engagement and
benefit sharing mechanisms that have significant impact on citizens’ rights, not to
mention their influence upon state actions and regulation. Development agencies
themselves are the source of non-state regulation around projects that regularly
have significant rights implications.
Thirdly, the report conflates purported problems within non-state orders with the
challenges of pluralism itself. While the authors contend that "plural legal orders
are neither intrinsically good nor bad for human rights" (147), they proceed to
unearth cases in which non-state legal orders are problematic for human rights.
This is disconcerting for a number of reasons, but the one we wish to focus on
here is a not uncommon conflation of ‘non-state legal orders’, or even worse ‘non-
human rights compliant customary and religious systems’ with ‘pluralism’. That
certain non-state orders may be contiguous with breaches of human rights is
merely a sub-set of the issues at hand when multiple legal orders interact. Legal
pluralism is the condition of having multiple, contrasting, conflicting, overlapping
and intermingling regulatory orders within a given context. The question around
which the Report could usefully have been framed is what it is about these contexts
of pluralism that make approaching human rights more exigent or troublesome.
And an adjoining question could be - in what circumstances do plural legal
contexts promote human rights - as there are plenty of examples of strong, unitary
and hierarchical systems that have abused citizen’s rights. Rather than focusing on
legal pluralism as only a problem that needs to be solved, the opportunity aspect
should also be considered. If the dominant rules system under which one lives is
inaccessible, costly and unfair, it may be highly beneficial for the realization of
human rights to have other options available.
The Importance of Process v. Form
In contrast to the dominant view, it can be argued that protecting human rights in
the context of legal pluralism is less of a technical issue awaiting the advice of
human rights experts than a process that could be managed in less or more
equitable ways. One of the main challenges associated with human rights
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2010 – nr. 60
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approaches to reform is their focus on a pre-determined ideal that is articulated in

its form, instead of being perceived as a process of social transformation. Rather
than starting from a perfect human rights model from which deviations are being
considered, it might be more useful to start with “what actually is” (as disarrayed
as it may be). This requires a commitment to in-depth understanding of local
perceptions of justice and human rights and ongoing dialogue and negotiation
between conflicting perceptions. Since the legitimacy of the human rights rules and
norms at the local level depends on them being developed through a process of
equitable contestation (‘good struggles’), their form is largely unknowable ex ante.
It would therefore help human rights practitioners to approach the reform with a
mindset less concerned with what the end-state of this process will look like and
avoid jumping to an idealized human rights order (Sage, Menzies and Woolcock
2009). In this sense, it may be useful to focus on ‘interim’ and ‘hybrid’ approaches
to furthering the rights, interests and aspirations of the marginalized rather than on
technical approaches that seek to make plural legal orders compatible with an
‘ideal’ human rights order (Adler, et al 2009).
Human rights are often much more meaningful when linked to everyday livelihood
issues (e.g. access to land for food security, access to education, access to health)
and this is why a focus on process which is developed, understood and
appropriated from within is key. Rather than introducing human rights from
above, internal principles of equity and fairness could be identified and used as a
basis for dialogue and social change in the context of strong customary authority.
To this end, the role of intermediaries in translating human rights into local terms
and using local stories to give life and power to global human rights movements is
crucial (Merry 2006).
This is particularly relevant in tackling issues of gender discrimination within

customary systems. In such cases, taking measures to enforce formal laws of non-
discrimination might exacerbate the marginalization and social exclusion of
women. Instead, innovative solutions that can transform local practices from
within should be found. A powerful example by the Kenya National Human Rights
Commission in challenging discriminatory inheritance practices illustrates that a
process of negotiation and dialogue with local power structures can yield positive
outcomes (Chopra 2007). The Commission’s project facilitated a debate among
Luo elders about the community’s values with respect to women. Facilitators
challenged elders who held the traditional belief that ‘Luo culture protects
women’, by confronting them with cases in which women had been relegated to
extreme poverty through denial of their right to inherit. They were also confronted
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BOOK REVIEW
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with the effects of discriminatory practices on the spread of HIV. It became clear
to the local leaders that because of new social threats, Luo inheritance rules
required a different implementation from that of the past. Instead of widows being
inherited by their brothers-in-law upon their husbands’ death, the elders agreed to
install the widows as legal trustees of the communal land. This allowed women to
remain on their land and protect it for future generations without having to marry
their brothers-in-law. However, the land would remain within the lineage of the
husband. This approach allowed for the traditional patrilineal principles of land
management to be preserved, while at the same time offering greater protection to
women’s land rights.
The ultimate success of this project in transforming local gender perspectives lies
in the promotion of socially embedded dialogue through which competing interests
and aspirations were reconciled. Rather than focusing on the replication of
universal gender equality standards, it adopted an interim ‘solution’ which enabled
greater realization of women’s inheritance rights.
Conclusion
Most development practitioners and human rights advocates can’t but help engage
with non-state legal orders given the contexts in which they work. To do this
effectively, it is useful for practitioners to start from the perspective of ‘legal
pluralism’– that is a view that takes into account all relevant ordering systems and
the ways in which they interplay. From such a perspective it quickly becomes
apparent that non-state justice systems are merely one strand of this plural context,
with the rules governing international capital and development projects, as well as
human rights themselves, all having an important impact on the fulfillment of
rights and the realization of development goals. It is also useful for human rights
advocates to understand human rights as a process, which permits a more faithful
engagement with the reality of legally plural contexts and allows the charting of
iterative courses for greater protection of human rights within locally specific
capacity and needs. When Legal Worlds Overlap: Human Rights, State and Non-
State Law provides a wealth of data to inform such practice with a wide range of
country and thematic examples from across the globe.
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2010 – nr. 60
___________________________________________________________________
References
ADLER, Daniel, Caroline SAGE, and Michael WOOLCOCK

2009 ‘Interim Institutions and the Development Process: Opening Spaces for
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CHOPRA, Tanja
2007 ‘Promoting Women’s Rights by Indigenous Means: An Innovative Project
in Kenya.’ J4P Briefing Notes 1, Issue 2. World Bank.
GLENDON, Mary Ann
2002 A World Made New: Eleanor Roosevelt and the Universal Declaration of
Human Rights. Random House Inc.
MERRY, Sally Engle
2006 ‘Transnational Human Rights and Local Activism: Mapping the Middle.’
In Caroline Mary Sage and Michael Woolcock (eds.), The World Bank
Legal Review Volume 2: Law, Equity and Development. World Bank:
Martinus Nijhoff Publishers.
SAGE Caroline, Nicholas MENZIES and Michael WOOLCOCK
2009 ‘Taking the Rules of the Game Seriously: Mainstreaming Justice in
Development, the World Bank Justice for the Poor Program.’ In Stephen
Golub (ed.) Legal Empowerment: Practitioners’ Perspectives.
International Development Law Organization.
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60 Journal of Legal Pluralism

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Human Rights and Legal Pluralism

Book · January 2010

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HUMAN RIGHTS AND LEGAL

GUEST EDITOR: YÜKSEL SEZGIN

HOW TO INTEGRATE HUMAN RIGHTS INTO

A ‘TRIBAL’ WOMEN’S FORUM IN SOUTH

HUMAN RIGHTS PROMOTION IN POST-

INDIGENOUS JUSTICE SYSTEMS IN

DEEP LEGAL PLURALISM IN SOUTH AFRICA

INDEXES AND DATABASES

GORDON R. WOODMAN, Law, University of Birmingham

RICHARD L. ABEL, Law, University of California, Los Angeles

EDITORIAL ADVISORY BOARD

ELS BAERENDS SALLY ENGLE MERRY

FROM THE EDITORS vii

ABOUT THE CONTRIBUTORS xiii

INTRODUCTION TO THE SPECIAL ISSUE

HOW TO INTEGRATE UNIVERSAL HUMAN RIGHTS

WOMEN ENTERING THE LEGAL LANDSCAPE:

HUMAN RIGHTS PROMOTION IN POST CONFLICT SIERRA LEONE:

TRANSFORMATIVE JURICULTURAL PLURALISM:

DEEP LEGAL PLURALISM IN SOUTH AFRICA:

International Council on Human Rights Policy, When Legal Worlds Overlap:

JLP 60: 5-40

HOW TO INTEGRATE UNIVERSAL HUMAN RIGHTS INTO

JLP 60: 41-70

WOMEN ENTERING THE LEGAL LANDSCAPE:

Mengia Hong Tschalaer

JLP 60: 71-100

HUMAN RIGHTS PROMOTION IN POST CONFLICT

JLP 60: 101-137

TRANSFORMATIVE JURICULTURAL PLURALISM:

The author proposes an approach to legal pluralism, termed transformative

cultural difference and cultural incompleteness and the existence of a cross

JLP 59: 139-172

DEEP LEGAL PLURALISM IN SOUTH AFRICA:

Giselle CORRADI is a Ph.D. candidate at the Human Rights Centre, Ghent

Mengia HONG TSCHALAER was born 1978 in Zürich, Switzerland. She is

Kimberly INKSATER, a Canadian, has studied in the Social Sciences (gaining a

Nicholas MENZIES is a Justice Reform Specialist at the World Bank. He has

Christa RAUTENBACH is a professor at the faculty of law, North-West

Yüksel SEZGIN is a visiting assistant professor of women’s studies, religion, and

Despite its prevalence in academic circles both as a sociological and political

comprehensive approach to economic growth, poverty reduction and human

Lastly I should avail myself of this opportunity to thank Prof. Gordon R.

© Copyright 2010 – Yüksel Sezgin

status2 system can be defined as a system in which members of various ethno-

Plural systems of personal status have been historically employed by imperial

and social forces on the other.

Historical and Political Roots of Modern Personal Status Systems

In contrast, exclusionary or theocratically-oriented regimes, which propagate the

Unlike these ideologically motivated regimes, some postcolonial governments have

(especially religious and traditional authorities) from becoming strongholds of

In brief, postcolonial governments have often viewed personal status systems

A Comparative Analysis of Israeli, Egyptian and Indian Personal

imperial authorities granted juridical autonomy over matters of personal status

hierarchically stratified form of subjectivity that would fully correspond to their

The process of homogenization among Israeli Jews logically necessitated the

code throughout the territory of India.”

Impact of Personal Status Systems on Individual Rights and Liberties

As they exercise their jurisdiction, communal courts also function as status-

For a number of reasons, legislative tactics seem to be heavily favored by