Legal Syncretism as a Theoretical Framework for African Constitutionalism

This chapter presents legal syncretism as a new theoretical framework for African constitutionalism. After providing reasons for needing a new theoretical framework the chapter proceeds to explore the existing theoretical frameworks of law in general—legal centralism and legal pluralism—and examines their relevance to African constitutionalism. After demonstrating both the potential and limits of these frameworks, the chapter then proposes legal syncretism as a new and better theoretical framework with which to capture and explain the transformation of African constitutionalism from precolonial times to the present, as well as all the attendant constitutional designs and practices.

Conclusion

This concluding chapter explores why and how legal syncretism offers a better theoretical framework than both legal centralism and legal pluralism for understanding the processes and dynamics of African constitutional change and transformation from precolonial times to the present, and for capturing and explaining the identity, nature, and structure of the attendant constitutional designs and practices across time and place. The chapter demonstrates how legal syncretism offers key theoretical tools and practical insights for diagnosing, improving, and evaluating African constitutionalism. The chapter also indicates how future research can be directed towards examining and understanding the various aspects of constitutional designs and practices through the lens of legal syncretism—both within African states and beyond.

State Legal Pluralism and Religious Courts

In a seminal 1986 article, John Griffiths argues that state legal pluralism, as opposed to state/nonstate legal pluralism, is “weak” legal pluralism. State legal pluralism refers to the coexistence of and interaction of distinctive legal systems which are nonetheless administered by the state; that is, the coexistence of state-state laws or official-official laws. It is juxtaposed against “strong” legal pluralism, which involves the coexistence within a social group of legal orders which do not belong to a single “system.” It has been argued that state legal pluralism is “weak” because it ultimately adheres to the basic ideology of legal centralism. This suggests that state legal pluralism is ultimately controlled by the dynamics of unification and subordination. This chapter suggests that the reality may be far more complex. While institutions such as religious courts operate within the context of state legal pluralism and could indeed be co-opted into the state system, once they are formalized as state bodies, they attain normative and institutional resources to operate according to norms that are not always and not exhaustively derived from state law. Furthermore, empirically speaking, even where conceived as functioning within a setup of legal uniformity under the state, religious courts can retain and even develop their own social logic, such that the relationship between the two forums becomes more fluid and contingent. Accordingly, there is good reason to examine and theorize state legal pluralism more deeply. This chapter uses the context of plurinational courts, involving religious and nonreligious courts, to show how institutions within state legal pluralism are able to resist the legal centralist impetus of monism, statism, and positivism. Indeed, it is argued that, contrary to what is sometimes assumed, such state religious courts can and do operate “semi-autonomously.” Lastly, having provided a (hopefully) credible defense for stronger engagement with state legal pluralism, the chapter examines two jurisdictional schemes to manage jurisdictional overlap.

A Constitution for Israel According to the Torah

This chapter describes the new legal centralism that Herzog brought to religious Zionism in Palestine and Israel. He composed the draft of a constitution for Israel that was based on traditional Jewish law (halakha). To allow halakha to be more suited to the needs of a modern democracy, he used inventive interpretations of precedent to make halakha more egalitarian and more acceptable to people who were not Orthodox Jews. He also created a vision of halakha that conformed to the theoretical framework of modern European legal centralism. These changes are understood against the backdrop of European colonialism. Herzog’s adoption of European jurisprudence was similar to the intellectual strategies of many nationalist leaders, who resorted to European modes of thought in their struggle against European colonial rule.

Introduction

The introduction to The Invention of Jewish Theocracy introduces the idea of the halakhic state, which is the belief that the State of Israel should be governed by traditional Jewish law (halakha). It offers a definition and history of the religious Zionist community, whose leaders are the main proponents of this belief, and provides an overview of the idea’s origins and development. The chapter proposes a framework and methodology, which is based on legal and political thought, and especially the ideas of legal centralism and legal pluralism. It lays out some of the main arguments of the book and its implications for Israeli society today, as well as for key debates in the fields of history and religious studies, particularly debates over theories of secularization in the modern world.

The Choice of Norms in Courtroom Adjudication in Vietnam: In Search of Legitimacy in a Socialist Regulatory Context

Notwithstanding its defining feature of normative pluralism, the socialist state of Vietnam basically adopts a legal centralist approach to regulation. The judiciary is arguably the most illustrative of this approach, since it is the main forum where legal centralism encounters normative pluralism. Our research examines the choice of norms in judicial adjudication in Vietnam to check the effectiveness of its legal centralist approach. It finds that, despite lacking institutional support, judges managed to apply customary norms at their discretion against the state’s emphasis on top-down legal rules. A legitimacy-based analysis explains this phenomenon. It points out that judges conceptualized their legitimacy under the influence of both legal and extra-legal rules, thus making it apart from the legality. Judges attempt to bridge the gap between legitimacy and legality enabled de factor normative pluralism. In looking at the influence of customary norms over judicial adjudication, the article aims to make both theoretical and practical contributions. Theoretically, it enriches the scholarship of normative pluralism by showing how legitimacy-building keeps normative pluralism effective, irrespective of the dominating legal centralism. Practically, it proffers insightful implications for the ongoing court reforms in Vietnam based upon the findings.

Indian Forest Rights Legislation: Significance of Recognizing the Legal Pluralism for Indigenous Peoples Rights

Indigenous people’s traditional customary claim over the forest land was not accepted by the formal legal mechanism in India for a long period of time. The underlying rationale for the claim is livelihood, religious, and cultural reasons. The indigenous people’s claims remained as informal norm, which were not accepted by the formal state legal system in India. Discriminating legal centralism was existing in the area of forest governance and policy till the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act was enacted in 2006. The Forest Rights Act, 2006 has brought a paradigm shift in the entire approach of law towards the indigenous people and acknowledged the rights of the indigenous people. This article makes an attempt to understand the significance of recognition of legal pluralistic norms through legislation.

The Drawbacks of Judicial Pluralism in the Administration of Justice

Legal pluralism in Malaysia has been traditionally a colonial legacy. Legal pluralism not only posits the existence of multiple legal spheres in the same social field but develops certain suppositions concerning the relationships and interaction between them. One area in which there is apparently interesting interaction is in the administration of justice. Whilst legal pluralism may be celebrated because it moves away from the pre-occupation with legal centralism, society cannot afford to have a justice system that is in disarray. This is indeed the case in Malaysia where a common law tradition and civil justice system seem to be at odds with the strong element of religion in the constitution. For more than 50 years, the Malaysian legal system has had to grapple with the ongoing and seemingly endless conflict of judicial authority between the civil and Syariah courts. Syariah courts in Malaysia are exclusively empowered to hear and dispose of cases among Muslims on subject matters enumerated in the first item of List II of the Ninth Schedule of the Federal Constitution.