Accepted paper:

Legal Pluralism and Group Rights: States and the Devolution of Judicial Power

Author:

Emma Hayward (University of Pennsylvania)

Paper short abstract:

In the following paper, I examine six case studies to build a theory that explains when and how states choose to interact with non-state legal systems. I argue that varying levels of institutionalization and the outcomes of bargaining processes account for differences in state policy.

Paper long abstract:

When do states permit ethnic and religious groups to have their own courts and legal systems? Theoretically, we expect that states should seek to monopolize their coercive power and thus oppose potentially sovereignty-challenging devolutions of authority where state functions are delegated to sometimes-oppositional minority groups. Yet several states in Latin America have recently granted indigenous groups full control over their own courts, various African countries are considering the idea of giving traditional authorities the power of community adjudication, and European countries are debating whether and when Sharia law may govern family law matters in their Muslim communities. Are states experimenting with new ways to manage ethnic conflict, or have the civil societies in these states gained sufficient strength to successfully make these demands of the state? In the following paper, I examine six case studies to build a theory that explains when and how states choose to interact with non-state legal systems. I argue that where non-state adjudication mechanisms are particularly embedded and institutionalized, the state is more likely to recognize their authority and perhaps even enforce their decisions. Additionally, varying levels of recognition are the result of bargaining processes between political elites within ethnic and religious groups and the state, in which elites exchange support for parties or political coalitions in return for certain measures of group autonomy, such as the right to adjudicate their own disputes.

panel G46
State strategies for navigating plural legal orders (IUAES Commission on Legal Pluralism)