The potential of constitutional recognition of religious and local normative and judicial orders: Insights from Ethiopia and South Sudan
(Max Planck Institute for Social Anthropology)
Paper short abstract:
State-recognition of local and religious laws offers a flexible normative frame that may contribute to ‘harmonizing society’. How could the ‘space’ in which normative perceptions overlap be institutionally shaped and what effects does the de jure legal pluralism have on the normative orders?
Paper long abstract:
State-recognition or incorporation of local and religious legal orders into an overarching state judicial structure may be described as challenging processes of conflict and accommodation between 'state identity' and self-regulation claims of social groups. A state-recognized legal pluralism offers a normative frame that may contribute to 'harmonizing' society through participation and continuous negotiations of the involved social actors. The question arises how the 'space' in which religious, local and state normative perceptions overlap could be institutionally shaped. The paper examines how the pluralistic legal realities of Ethiopia and South Sudan are translated into constitutional frameworks, in particular in pluralistic judicial bodies. How does the state acknowledge diverse local legal institutions and represents itself ideologically and organizationally in relation to them? What effects do the de jure legal pluralist arrangements have on the normative orders? It will be shown that a constitutional recognition of religious and local law may grant space and forum for continuous negotiation processes between various actors. However, ambitions of state actors to maintain "national unity" or internal cohesion merely by formal recognition of legal plurality appear to be misleading. Who and how the 'spaces' are utilized depends essentially on existing power relations. In order to identify mutual values in light of and respect for the different moral beliefs, the various actors need to make not only situational concessions as precondition.
State strategies for navigating plural legal orders (IUAES Commission on Legal Pluralism)