IIAS | IIAS Newsletter Online | No. 17 | General


July 1998
Williamsburg, VA, USA

Legal Pluralism and Folk Law: Fourteenth IUAES Congress

by Maarten Bavinck

The five-yearly congress of the International Union of Anthropological and Ethnological Sciences (IUAES), which took place during the last week of July 1998 in Williamsburg, Virginia, bore an immoderate title: 'The 21' Century: The Century of Anthropology'. It was not this surprising expression of complacency but the economic crisis in East and Southeast Asia, in combination with the high fees which probably depressed attendance in comparison with earlier events. Nonetheless, no less than eleven hundred social scientists from all parts of the world converged on the campus of the College of William and Mary to attend discussions and seminars spanning the breadth of anthropological interest. Surprisingly, a full ten percent of the panels was organized by scholars from India, far more than was initiated by any other country delegation from Asia, Africa or Latin America. Indeed, the sizable Indian delegation formed a conspicuous element in the congress.

By Maarten Bavinck

The Commission on Folk Law and Legal Pluralism is one of eighteen commissions recognized by IUAES. Members of this commission organized a symposium consisting of six well-attended topical sessions during the Williamsburg congress, and it is on this section of the mega-event that this article concentrates. The Commission on Folk Law and Legal Pluralism finds its origin in 1980 in a group of scholars centered around Gerard van Steenhoven of the Department of Law, University of Nijmegen, The Netherlands. Their purpose was to erect an intellectual platform for legal scholars and social scientists, as well as practitioners in the field of legal pluralism. To this end the commission organizes sessions at every IUAES congress, as well as own conferences, at an interval of an average of two years. It purposely strives to convene in various geographic settings, as this facilitates the involvement of local scholars and activists, and the discussion of a heterogeneity of legal and social situations. The 1997 conference thus took place in Moscow, whereas following conferences will be staged in Chile and in Nepal. The commission currently counts approximately 350 members.
In accordance with the tradition of devoting attention to the locality, the commission's sessions in Williamsburg highlighted the situation of native Americans in the United States and in Canada. The themes were of a general nature, however, and paper presentations dealt with a range of places and topics. Asia was represented through papers on India, Indonesia, Nepal and the Central Asian states.

Natural resources and property in rural legal systems
For the third time in its conference history, the commission in Williamsburg devoted special sessions to the topic of natural resources and property. The organizer, Melanie Wiber, motivating this initiative, points out the rich landscape of rights to natural resources which exists in society. According to her, this is an area in which international law, national law, and sets of local regulations interact in complex and scarcely undocumented ways. Moreover, it is a field in which important shifts are currently taking place.
It was striking to note that many of the papers in these sessions related to common pool resource activities such as fisheries, forestry and pastoralism, and document the contestation of property rights from different angles. The three papers on fisheries are a case in point. Bavinck analyses the conflicts in India's inshore fisheries as following from the emergence of new interest groups (trawler fishermen, the state) and the convergence of legal systems in inshore waters. Blakney focuses on a case of riverine fisheries in New Brunswick, Canada, and investigates the legal context for aboriginal management. Wiber finally looks into the potentially far-reaching -implications of international proposals on fishing property rights and local fishing industries, particularly along the east coast of Canada.
Others raised different topics. Franz and Keebet von Benda-Beckmann discuss the relation between land and water rights, as well as their gender aspects, in the context of Nepal. Kennedy looks into a contemporary logging dispute in New Brunswick, Canada, which involves the native American population, the logging industry, and the government's forestry law. Maronkar describes the depletion of common property resources in village India, and its effects on the poor. All of these papers emphasize the importance of property rights for the livelihood of substantial numbers of people. Carol Warren had a similar concern. Her paper discusses two cases of land appropriation in Bali which involved the Indonesian government. The local population protested these acts as violations of adat law. Here, a sanitized version of customary law proves to be used as political instrument.

'First nations' and legal pluralism
A second set of sessions focused on the position of so-called 'first nations', or indigenous peoples, in various parts of the world. One panel addressed the native american situation, taking up contemporary issues from Canada and the United States. Several authors addressed the hot topic of land rights. Another session concentrated on South Africa where, parallel to the drastic remodeling of social and political structure, the relation between customary and constitutional law has become an urgent concern. Three scholars in the law field highlighted different aspects hereof. Oomen's paper addresses the issue of group rights in post-apartheid South Africa, as well as the position of traditional leaders. Maithufi considers the complex connection between customary and constitutional law in the field of marriage and succession. De Kock finally discusses South Africa's need to allow for other kinds of marriage forms than monogamy, and the various legal problems involved.

Dispute resolution and folk law
Dispute resolution is one of legal pluralism's traditional concerns. Many scholars in time have investigated the ways in which people address and resolve social problems outside the official court circuit, and the interactions which take place between state and folk law. The papers presented during the session on this topic reflected this interest. Fernandes describes the system of social control among a native people of Brazil (the Kaingang), and focuses on the position of their leaders, who derive a large measure of authority from the state of Brazil. Westermark discusses the so-called community mediation program which developed in the United States as an alternative to the official judicial system, which is oriented more towards confrontation than towards a restoration of social relations. Renteln - who concentrates on criminal law cases involving marriage practices in the United States considers the question how cultural rights of ethnic minorities and indigenous peoples are dealt with. Woodman, finally, raises theoretical dust by arguing that legal anthropology should pay more attention to normative orders "which structure social life", rather than to the details of dispute processing. Several in the audience disagreed. One expressed the opinion that Woodman was actually "flogging a dead horse", as the current tendency is to consider the interrelation of rules and social practice, and not one element in isolation.
Conceptual studies A final set of papers in the symposium describe specific non-state legal systems or plural configurations. Here again the range of topics is large. Brusina highlights the position of Russian-speaking minorities in the post-Soviet constellation of the Central Asian states. Noceti zooms in on juvenile penal institutions in Argentina, whereas Toppo discusses the position of women in the Chotanagpur tribes of northwest India. Zips and Besson concluded the symposium with interesting papers on Jamaica. Besson describes the manner in which ex-slaves developed own land property institutions, and in the process shaped state law. Zips makes a historical analysis of chieftaincy in Jamaican maroon societies, and compares this institution to its primogenitor in Africa. One of his conclusions is that traditional authority is in fact highly dynamic.

Looking back on the symposium on legal pluralism and folk law, participants expressed satisfaction. Not only had the program been topically diverse and well attended. The symposium had also presented a new opportunity for intellectual exchange between social scientists, lawyers and social activists from many countries. The wide interest in legal pluralism was actually quite striking. Paper presenters in the symposium thus originated from no less than thirteen countries and six continents. However, Asia is still relatively feebly represented. For this reason, the commission plans to hold a following conference in South Asia. This hopefully will make it easier for persons from the region to participate.

Maarten Bavinck is attached to the University of Amsterdam. Email: bavinck@isg.frw.uva.nl

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