Intercultural Justice and the Public Sphere Accommodating legal pluralism in the democratic polity
Francisco Colom González
The Spanish National Research Council – Centre for Human and Social Sciences (Madrid,
Spain)
***
The term multiculturalism is frequently used to describe the effects of ethnic minorities on the structure of host societies. This is however a vague descriptor, since it highlights the cultural element in the interaction of minority groups with mainstream society without really explaining how the public sphere may be affected by a process of ethnic segmentation. This paper focuses on the demands of legal self- regulation by minority groups and on the cultural rootedness of legal norms. Both issues are indirectly connected: from a liberal point of view, the recognition of multicultural jurisdictions can only be granted as a well justified exception under the control of a deliberative public sphere; on the other hand, the reasonability of cultural immunities, and therefore their political legitimacy, greatly depends on the intercultural understanding and the normative translation of the social goods and principles implied by them. After considering several experiences of aboriginal justice in Latin America, of religious arbitration in Canada and Great Britain, and the discourse of Islamic feminism, this paper concludes that the accommodation of legal pluralism under the rule of law still depends on an intercultural, i.e. post-liberal, public sphere as a testing ground for its deliberative legitimation.
***
-The normative analysis of culture.
John Rawls’ work on the theory of justice is considered to be largely responsible for the revival of political philosophy in the English-speaking world. His philosophical method, which he labelled moral constructivism, basically established a suitable connection between a particular conception of the person as an autonomous, rational agent and a series of principles of justice which are agreed upon by means of a public reasonable deliberation (Rawls 1980: 516).
Rawls’ purpose was therefore not to identify the ideas of justice held by a recognisable social group, nor to extricate the roots of moral reasoning and motivation, but rather to establish a set of valid and defensible criteria about justice. The subsequent philosophical debate in the North-American academia between the so called liberals and communitarians developed as a disagreement on the foundation of the principles of justice and on the ontological priority between the ideas of the good and the right. Again, the question here was not so much about the freedom of the individuals to determine and pursue their moral goals as to the shared meanings that confer sense to a particular set of social norms and to human action in general.
The discussion on multiculturalism and on the moral duty to recognize the differences which are deemed central to the dignity of the person relied on the same basic terms as the liberal-communitarian debate, but it introduced a new element, namely the consideration of culture as a precondition for moral agency. By replicating the Hegelian critique of Kantian philosophy, communitarians and multiculturalists alike emphasized the experiences provided by socialisation within concrete and stable cultural structures as a prerequisite for the
individuals to develop the judgement and autonomy needed to become responsible moral agents (Kymlicka 1989). However, submitting our identity references to moral scrutiny is very different from the task of allocating goods and life opportunities. As is known, the notion of distributive justice stems from the Aristotelian tradition, and its regulative principles are devised so as to allocate scarce resources, i.e. goods whose availability is less than their social demand. Different principles of justice, like achievement, necessity or equality, are thus applied depending on the nature of the goods to be distributed, the recipient subjects and the allocating criteria. Many goods are obviously not of a distributive kind, as they are not consumable, but this does not make them normatively less sensitive to the effects of distribution. This is typically the case of the conflicts related to moral recognition, like discrimination, marginalization and prejudice, or of those dealing with memory, historical reparation and moral damage in general. A broad movement in current legal philosophy has resorted to the notion of restorative, compensatory or transitional justice in order to deal with the normative structure of these kinds of conflicts. The main concern here is with the moral and material restoration of injured dignity, not with the allocation of goods (Taylor 1992, Honneth 1994, Mate 1991).
Even if the liberal-communitarian debate mainly took place within the theories of justice and multiculturalism originally dealt with the dynamics of moral recognition, we can easily recognise the relevance of these topics when reconsidering the role of the public sphere in diverse societies and the implied risks of its ethnic segmentation. Their inner complexity of these societies derives from the proliferation of social cleavages and the effect of globalisation on them. The mounting pressure for the political recognition of minority groups, and more concretely for their legal autonomy, not only stems nowadays from corporate bodies and autochthonous territorial minorities, but also from the new ethnic and religious groups sedimented by the global circulation of persons. The normative discourse in favour of the legal self-regulation of such groups has found its way into the public sphere and can nowadays be heard more frequently. However, the implementation of some sort of jurisdictional pluralism seems to run against the liberal idea of the public sphere as a testing ground for the reasonability of public argument. The problem is not only of legal coherence and coordination, nor is it the cultural traditionalism of many of the groups demanding legal autonomy, but rather that it places beyond the control of public deliberation the legal frame for recognising and protecting the individual rights of the group members. Legal pluralism thus implies an unavoidable tension between three different normative references: the sovereignty of state, the recognition of minority cultures and the rights of the individuals.
Since the publication of Jürgen Habermas Structural transformation of the Public Sphere in the late sixties, the notion of Öffentlichkeit and its connection with political rationality and democratic accountability has unremittingly occupied a central stage in contemporary
theoretical discussion. The public sphere is a normatively built concept which tries to identify the social and cultural profiles of a space of public deliberation that in Western societies was coupled to and emerged with the development of the democratic polity, thereby submitting political argument to a test of discursive rationality (Habermas 1969). The Habermasian idea of publicity has ever since been submitted to the subsequent critique of Marxist, feminist, post- modern and, more recently, multicultural detractors (Dahlberg 2005). The core of the critique maintains that Habermas’ utterly formal and rationalistic conception of social communication and political agency excludes certain groups and topics from the public domain, uncouples deliberation from power relations, and is wholeheartedly driven by a consensual bias. Other views have been less critical, merely classifying Habermas’ notion as one of the conceivable ways of understanding the public sphere, namely the closest to the discursive or deliberative theory of democracy (Marx Ferree et al. 2002).
In either case, as a normative construct a theory of the public sphere must give response to a series of key issues: who and when should someone be entitled to participate in it? Which should be the contents admitted for discussion and the patterns of political communication? What would be the desirable outcome? In the classical liberal version the public sphere was closely connected to the cultural identity of the demos and presupposed a high degree of cultural homogeneity regarding linguistic competence and religious affiliation.
Legal and linguistic uniformity were supposed to facilitate political communication and help develop the political judgment of free and equal citizens. Monolingualism and secularisation were therefore not only perceived as the standard path to be followed by modern societies, but also as a structural prerequisite for a successful democratic process. The separation of church and state was aimed at securing freedom of belief and association by segregating religious conviction, which together with the patriarchal family was held as an essentially private realm, from the quintessential public domain: the political.
Modern complex societies are very different from those that first witnessed the emergence of the liberal public sphere. The claims for the cultural, legal and political recognition of minority groups are nowadays stronger than ever. The naïve and blind universalism envisioned by the Enlightenment has given place to new forms of moral particularism which are advocated in terms of social fairness and compensation for past abuses. Aboriginal movements, for instance, are reminding us of the compulsory processes of acculturation to which their peoples were submitted (like the boarding schools of the lost generation in Canada and Australia) and whose legitimacy relied on the purported benefits that membership to a national society, the private tenure of land and the acquisition of citizenship rights would bring to their members. As known, such processes very often resulted in the social and cultural disintegration of many native communities and in multiple forms of anomic behaviour among their members. These examples call for a broader explanation of
the reasons why the relationship between subjects and culture is not a contingent or fortuitous one, of how moral and political learning takes place, and to which degree the normative exchange across cultural boundaries is possible. The idea of a multicultural public sphere is therefore critical for the democratic accommodation of cultural difference. Federal arrangements and special representation rights have been devices frequently used for the political management of national and ethnic minorities. Whereas the first case implies a toning down of the principle that declares the territorial indivisibility of state sovereignty, the second one somehow replicates the normative core of affirmative action and is devised to compensate political handicaps originating in ethnic ascription. On the contrary, the cultural entrenchment of legal difference, as enshrined in some theories of legal pluralism, is usually claimed by ethno-religious groups and aboriginal communities in order to control and reproduce their group identity. Even if there are good reasons for granting this kind of self- regulation, it often implies the risk of some sort of discrimination against specific members of the group, particularly women, it tends to produce a jurisdictional segmentation of the demos, and in its extreme form it certainly runs against the principle of deliberative legitimation that has traditionally inspired the whole liberal conception of the public sphere.
In this paper I will deal with two related issues stemming from this question, namely the extent to which the experiences of legal pluralism challenge the liberal conception of the public sphere and the possibilities open for an intercultural understanding of the principles of justice. Both issues are more closely connected than it might seem at first sight, since from a liberal point of view the recognition of multicultural jurisdictions can only be granted as a well justified exception under the control of an open and dynamic public sphere; while on the other hand, the reasonability of cultural immunities, i.e. their rational legitimation in an open space of political discussion, greatly depends on the possibility of understanding social goods and principles of justice beyond their original frame of cultural reference. This task is one for which moral constructivism and legal positivism are not well suited. Both perspectives refuse to consider social ways of life as a source of normative authority. They also share a hierarchical conception of the system of norms, either understood as a qualitative gradation of possible consensus – from a constitutional one to a mere modus vivendi (Rawls 1993)-or by distinguishing between primary and secondary rules (Hart 1961). On the contrary, the communitarian conviction that regulative norms must count on the compliance of those involved with them and that moral injures can to some extent be healed, opens up the possibility to explore the cultural rootedness of justice. As the argument goes, individuals develop their moral judgment, self-esteem and identity by competently exercising their social capabilities within a network of shared cultural meanings. Moral and social competences presuppose a familiarity with the symbols, norms and values that define a boundary of social action. The relation between norms, cultural meanings and moral competence points us to the regulatory function of normative systems in general and to the possibility of cultural
equivalences in their performance. We certainly cannot assume that all normative systems are naturally compatible or that they fulfil exactly the same functions, but we must recognise that all of them have to respond to certain regulative inputs, especially to those concerning matters of distributive and compensatory justice.
-The sources of legal obligation.
Legal pluralism can be understood either as a social fact or as a stream of thought in contemporary legal theory. In the first sense it simply refers to the inexistence of a unified and homogeneous source of law in a given society, be it for the political inability of the state to impose it –as is the case in many Third World societies where aboriginal customary law coexists with positive law-or for the organized cohabitation of two or more legal systems –as for instance in Canada, where English common law and French civil law have been preserved on a territorial basis, or in many Muslim countries, where we usually can find a jurisdictional articulation of Islamic and positive law (Dupret et al. 1999). The actual extent to which these different legal orders can be mutually recognised depends on manifold circumstances.
As a theoretical approach, legal pluralism assumes the parallel and often contradictory types of legitimation beneath existing legal norms. Its basic premise is that the notion of law must not be solely confined to public, international and transnational law, but enlarged to include all the cognitive and normatively objectified conceptions whose validity is authoritatively enacted within a given social formation (Von Benda-Beckmann 2006). If we come to admit that a legal order is nothing more than the political and juridical systematization of moral practices and that justice is not an abstract code of legal statements, but what entitled legal practitioners perform, we will be able to recognize the polycentric character of most legal systems and the uneven scale of their normative efficacy.
This theoretical scope can facilitate the interpretation of legal norms beyond their original systems of moral and cultural reference, but it also entails the risk of weakening the guarantees provided by the rule of law. In any case, it reflects a general development that is being pressed by the globalisation of legal processes. As Klaus Günther has put it, “most academic as well as political debates about the law are still directed to the concept of a national legal order with a centralised and public legislation, with a legally bound executive power that is responsible to the sovereign people, and with a relatively autonomous judiciary that is committed to a coherent adjudication of a legitimate legal system”. However, with the proliferation of private and public actors in legal processes of an intra-inter and supranational character, “a uniform concept of law can no longer be maintained. Instead of it, legal theory has to deal with many different normative systems. The positivist concept of one legal system that is logically ordered and hierarchically differentiated turns into a plurality of legal regimes.
The fact of legal pluralism seems to turn the idea of a unified legal system into a mere fiction”.
Its place is being increasingly taken by “fragmented areas of self-regulation, practised by norm giving actors who have empowered themselves and who enact norms with different degrees of generality and scope” (Günther 2003, 1-3).
What Günther had in mind when he sketched this diagnosis were supranational organisations with de iure or de facto legal capacity, like the European Union, the World Trade Organisation, the World Bank or the International Monetary Fund, but also non-governmental organisations like Amnesty International, Greenpeace or Human Rights Watch. According to him, it is precisely non-state agencies, lacking therefore public authority and political legitimation, which are best fitted to exercise their influence in the emergent field of transnational law. These very same phenomena of legal dissemination have also favoured the recognition of several forms of legal pluralism for some ethnic and religious minorities. The relevance of the cultural substratum for the performance of the law was already pointed out at the beginning of the twentieth century by Eugen Ehrlich, one of the founders of legal sociology. A witness to the inextricable diversity of the Habsburg Empire, Ehrlich introduced the concept of living law (lebendes Recht) to criticize the conventional approach of the jurisprudence of his time for only studying the written laws laid down in the Austrian legal code and ignoring the richness of the legal traditions in which it was embedded. As he tried to show in his empirical work on the legal customs regulating marriage and inheritance in his native Bukovina region, beneath state norms there existed a customary law that was at least as important, if not more, than statutory law. This customary law was socially accepted, stemmed from continued practice and worked in a parallel but not necessarily opposite fashion to state law. Ehrlich noticed that there was an intimate connection between social and legal norms and that legal obligation was mostly induced by sedimented patterns of behaviour rather than by an abstract abidance to the law: “The rules that, by themselves, people living together consider binding, are the living law. They constitute a legal order just like those included in legal codes. The difference is that the former become valid by the voluntary action of the parties involved, whereas the latter must, to a great extent, be enforced by the courts and the public authority” (Ehrlich, 1986: 233). To achieve a historical understanding of a legal system, the hermeneutic duty of the jurist was therefore to search for the roots of present laws in the laws of the past.
Ehrlich’s theses were heftily criticized by Hans Kelsen and the positive law school, whose theoretical hegemony he could never really challenge. From the positivistic perception of the legal system as a unified hierarchy of norms, a custom can only become law if it can be traced back to a basic norm or to a rule of recognition about its origin and formation. However, Ehrlich’s theory was rediscovered in the seventies by legal anthropologists, who applied it to the study of the legal systems of both primitive and advanced societies (Pospisil 1972). This
approach ignited a debate about the nature of the different kinds of norms and the interaction of the normative systems coexisting within the same society. From a pluralist perspective, the state legal order is just one among several other normative systems and it is permanently pressed to negotiate the validity of its norms, their ways of application and their possible assimilation to other systems (Falk Moore 1978).
-Legal pluralism and ethnic minorities.
The experiences of legal pluralism, especially as they have been driven by some ethnic and religious minorities, offer a practical view of the theoretical and practical dilemmas involved in them. Canada has become fertile ground for the demands of aboriginal and ethno-religious groups attempting to introduce some degree of legal pluralism in its judicial system. For instance, the multicultural tenets of the Charter of Rights and Freedoms added to the Canadian Constitution in 1982 have been used by some groups to press for the expansion of faith-based arbitration boards. The fact is that since the nineteenth century there existed in some anglophone provinces the possibility of resorting to private religious arbitration - Christian and Jewish-in family matters. In October 2003 a local religious lobby, the Islamic Institute of Civil Justice, declared its purpose to create a Sharia court in Ontario that would apply the traditional Islamic law in marriage and other private disputes within the Muslim community on a voluntary basis. As a reaction to the public concern expressed in the media, in June 2004 the Ontario Attorney General asked Marion Boyd, an independent legal consultant, to conduct a review of the use of arbitration in the province. The worry was that this device might become a judicial ghetto for the most vulnerable members of society -mainly women who had recently migrated into the country and affiliates of marginalized ethno- religious groups-and that it would actually deprive them of the right and possibility of leaving their communities and progress in other social and cultural environments. The official report produced for the provincial authority recognised that “Canada is a multicultural society and the fundamental tension that must be addressed is between respect for the minority group and protection of a person’s individual rights within that minority”, but it did not exclude the possibility of arbitration using religious law in family and inheritance cases, provided that the promotion of alternative ways of dispute resolution for minority groups was balanced against
“a firm commitment to individual autonomy” (Boyd 2004). The Ontario Parliament -and the Quebec National Assembly soon thereafter nevertheless voted against the maintenance or the introduction of religious arbitration. The defeat of this initiative was therefore a political, not a legal one, and it mainly developed in the public sphere, since it could not overcome the fears and prejudices associated with Islamic law.
In a similar way, some declarations of the Archbishop of Canterbury in 2007 concerning the purported inevitability of accommodating the Sharia in the British legislation
also raised media and political upheaval. As is the case in other western countries, there are in Great Britain a number of ethnic and religious subcultures whose members have voluntarily chosen to regulate their behaviour in matters concerning diet, marital status and inheritance according to a series of self-imposed norms that conspicuously differ from those of mainstream society. It is mainly through these practices that the identity of the group is controlled and maintained, but they also tend to impose a subordinate role to women, who as biological reproducers of the group must bear a disproportionate share in the task of transmitting tradition (Shachar 2001). In this case, what the Archbishop suggested was the possibility of recognising a plural jurisdiction so that Muslims could freely decide to resort to a British court or to religious institutions in order to settle some of their intra-communitarian disputes. As the Muslim Council of Great Britain hurried to remark, such possibility would just put British Muslims on the same level as other religious communities, like the Jewish, which for centuries have had at their disposal institutions like the battei din or rabbinic tribunals for arbitrating family matters and interpreting religious rules and rituals. However, taking advantage of a grey zone in the British legal system, the fact is that during the last years there has been a proliferation of informal practices of Islamic arbitration in the United Kingdom that are used by many Muslims as an authoritative reference for the resolution of divorce, inheritance conflicts and family disputes in general. The peculiarity of the English case is that its common law system, and more concretely the Arbitration Act of 1996, admits the possibility of having two parties delegating their resolution power to a third one, which in this case would be a religious board. The only prerequisite is that the parties involved, freely and voluntarily agree to submit to such jurisdiction and commit themselves to manage the whole procedure in a fair and adequate manner. Although these practises were not initially recognised as officially binding, since August 2007 the British government has sanctioned the authority of several Islamic arbitration boards throughout the country.
The case for aboriginal justice is much more advanced, both at the legal and political level, than that of ethno-religious minorities. In less than two decades, aboriginal peoples throughout the Americas, from Chile to Canada, have shown an impressive capacity to organize and to emerge on the global arena as new and legitimised political actors. Just to mention a few examples, native movements have become main actors of constitutional reform in Mexico, have bargained for devolution policies in Canada and have been able to bring down and set up new national governments in Bolivia (Lazarte Rojas 2009). Legal strategies have been part of this process, as is obvious if we consider the evolution of international law and the use that aboriginal peoples have made of the language of rights to frame their claims (Thornberry 2002). There is for instance a considerable difference of tone between the abstract individualism of the Universal Declaration of Human Rights of 1948 and the right to collective self-determination and cultural survival recognised in the Declaration on the Rights of Indigenous Peoples passed by the United Nations in 2007. In a clear breach of their legal
tradition, the majority of the Latin American countries –plus Canada-have constitutionally recognized the pluriethnic and multicultural character of their societies (Van Cott 2000; Cairns 2000). Such recognition has resulted in the consolidation of several forms of legal pluralism that reflect what in many cases was a social fact: the survival of customary law and traditional procedures of conflict resolution in many indigenous communities. In Latin America, the movement in favour of aboriginal justice has usually been pressed by the desire of native peoples to exercise a closer control on local disputes and in order to compensate what is perceived as state negligence in the management of their internal affairs. The issue in Canada is not so much the political competence of the state as it is internal decolonisation, the overcoming of the social and economic marginalization that haunts native communities and the wave of aboriginal nationalism that has risen since the patriation of the Constitution in 19821.
The legal autonomy of aboriginal peoples was already recognized by the Convention No. 169 of the International Labour Organization (I.L.O. 1989). Article 8.2 of the Convention declares that indigenous peoples must 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 internationally recognised human rights”. Article 9.1 goes further to stipulate that whenever such compatibility is assumed, the procedures traditionally used by the indigenous peoples to sanction the offences committed by their members should be respected. More recently, Article 34 of the United Nations Declaration on the Rights of Indigenous Peoples has openly sanctioned the right of native peoples to preserve their legal customs and systems in accordance with the international norms on human rights. In most cases, however, the conciliation between positive law and aboriginal legal custom has not been fully achieved. The rejection of the principle of selfdetermination and redress is one of the reasons why the Declaration had to wait for more than ten years at the UN Commission for Human Rights to be passed and was finally voted against by some countries with the largest number of aboriginal groups (Australia, Canada, United States and New Zealand) or with the abstention of other nations, like Colombia, which have gone quite far in the jurisdictional recognition of indigenous rights.
We have to bear in mind that aboriginal law is essentially constituted of a series of socially endorsed customs within a given community. It usually works like an arbitration procedure administered by the local authorities. In the Andean area of Latin America the judicial authority is typically the Cabildo or indigenous council (a local institution stemming from the colonial times), which deliberates in an open assembly. In the Amazon region, native
1 The situation of native peoples in Canada was thoroughly studied by a Royal Commission on Aboriginal Peoples, which issued its Report in 1996. The Report recommended initiating anew relationship between Canada and the native peoples based on their recognition as autonomous nations
authority is often represented by the curaca or cacique (chief). In Canada, minor offences are sometimes tried on a voluntary basis through sentencing circles, in which a professional judge is assisted by members of the community in finding the proper sanction for the offender (Green 1998). In some African countries, like Gabon, we can also find neighbourhood chiefs (chefs du quartier) who administer justice according to the traditional laws of their circumscription (Bé-Nkogho Bé 2006). In this case, indigenous justice stems from the system of tribunaux coutumiers set up by French colonial authorities to deal with native litigation. As was recognized in Article 75 of the Government Decree of November 10th, 1903, “the indigenous justice [la justice indigène] will apply local customs in all matters, as far as they are not contradictory with the principles of French civilisation. When physical punishment is involved, it will be replaced by imprisonment”.
Given their predominantly organic way of understanding life in common, the consequences of personal actions in traditional communities are not always perceived in strictly individualistic terms, but as involved in an extended network of family connections.
More important still is the fact that juridical customs are not formally differentiated from the social structure of the group, but enmeshed into it. Binding norms respond in this case to what has been described as a compensatory or conciliatory model of social control. It is basically a material legal order built upon substantive assumptions about the character of the community which basically seeks to re-establish what is perceived as harmony among its members. Guilt is therefore not as important as restoring the harm done. The procedures are usually oral and priority is given to achieving a rapid and exemplary sanction, which usually consists of a pecuniary fine, compulsory communal work, corporal punishment or several forms of ostracism. As expected, compatibility between native customary law and positive law is not always easy. The tensions often have to do with jurisdictional boundaries, particularly when the offenders are not aboriginal or the offence took place outside of the community, as there is a tendency among native peoples to understand their jurisdiction as an ethnic attribute and not strictly in terms of political self-government. But whereas in places like Ecuador aboriginal justice has often tried to displace positive law and to prevent the access of natives to the national legal system (García 2002), there are countries, like Colombia, in which an interesting jurisprudence has developed so as to conciliate both legal spheres (Arbeláez 2004). Here I will just refer to a couple of significant examples. The sentence T-349/1996 of the Supreme Court of Colombia tried to establish the limits of the aboriginal jurisdiction in the country. It dealt with an appeal against the General Assembly of Indigenous Councils (Cabildos) and the United Major Council of the Risaralda region by a native of the Embera-Chamí group who had been accused of murder in his community. He had been tried, in absence, by means of the procedure of customary law and was condemned to twenty years in a white prison. The plaintiff asked for the protection of the Court considering that his constitutional rights to due
with a unique place in the country (Canada 1996).
process, to legal defence, to life and to physical integrity had been encroached on. In the consideration of the constitutional principles that protect cultural diversity and individual rights, the magistrate who issued the sentence chose to apply a version of the maximin rule: to maximize the autonomy of the indigenous communities and to minimize the restrictions to it right down to the point where they are deemed indispensable for the safeguard of interests of a higher hierarchy. Such interests were identified by the judge as the right to life, the prohibition of slavery and torture and the preservation of due process, since “it is only about them that we can presume the existence of a real intercultural consensus” (Gaviria Díaz 2002:
355).
What is interesting about this sentence is the effort to search for equivalence in customary law for the juridical goods protected by positive law. According to the Colombian magistrate, the notion of due process, which is alien to the Embera-Chamí mentality, has an equivalent in the community’s rejection of arbitrary authority and in the obligation of aboriginal officials to behave as they had done in the past, namely by referring to the established traditions. The same can be said about the right to legal defence, since the offender, although being absent, had his interests represented by his relatives. It must be pointed out that two magistrates of the Court Committee declared in their vote of dissent that the plaintiff’s right to an adequate defence had not been sufficiently guaranteed. In fact, the Court accepted the part of the demand concerning the legality of the punishment applied to him and urged the General Assembly of Indigenous Councils to try him again according to their traditions or to remit him to the ordinary judicial system. In any case, the Colombian Supreme Court was able to recognize some of the social goods contained in aboriginal customary law, even if criminal law does not assume the preservation of collective identity or the restoration of a substantive social order among its objectives.
-Intercultural justice and deliberative legitimation.
The examples brought under consideration here may help us to understand the legitimating function that the public sphere plays when it comes to the possible segmentation of the demos for cultural reasons. In fact, the political effect of public deliberation is not different here from other cases of cultural accommodation that may alter the basic structure of society, like opting for a federal system of territorial organisation or granting special representation or group rights to some of its members. The crucial difference with legal pluralism is that it not merely protects cultural difference by legal means, as is usually the case of multicultural arrangements, but entrenches legal differentiation by adducing cultural reasons, and it does so by multiplying the sources of legal authority. The risk of turning difference into inequality and placing it beyond the protective shield of the rule of law then increases exponentially. The interplay between the external protections and the internal restrictions (Kymlicka 1996)
granted to minority groups can perhaps escape the dilemma of having to choose between your culture or your rights. Ayelet Shachar, for instance, believes that promoting the joint governance of different sources of authority, which therefore increases the competition between the different loyalties of the individuals, may help achieve a transformative accommodation of the traditional identity groups or nomoi communities (Shachar 2001).
However, this perspective seems to underestimate the traditionalist core of the cultures and groups that typically plea for these kinds of arrangements and that are by definition hostile to change. On the other hand, even if pluralist theories probably reflect the dynamics of legal processes in a more accurate and realistic fashion than positivism, they offer no clues as to how the coordination of the different normative jurisdictions should be carried out.
The ethnic segmentation of a legal system does not rest on a compensatory or restorative conception of justice. It is rather the contingent outcome of a local process of political legitimation. As the cases of the Sharia courts in Ontario and the legal reasoning on aboriginal justice by the Colombian Supreme Court demonstrate, the implementation of a system of multicultural jurisdictions strongly depends on the deliberative rationalization of its purpose and meaning in the public sphere, which somehow presupposes an intercultural understanding or pedagogy on the social goods and principles that are at stake. The moral hermeneutics developed by Michael Walzer in his works on pluralism and equality provide an insightful theoretical approach to the cultural rootedness of justice (Walzer 1983). As is known, Walzer understands justice as a social construct produced by the institutions, practices and beliefs of the members of a given community. The efficacy of a scheme of justice therefore depends on a set of common understandings without which the adjudication of goods becomes unintelligible or can be perceived as arbitrary by those involved in it. In other words, the attempt to apply principles of justice that are alien to the lifeworld in which they must operate turns them sterile and unable to perform the regulative functions that are expected of them. Walzer goes as far as to assert the conceptual connectedness of certain social goods and their regulative principles. Love, Godly grace and solidarity would be extreme examples of goods whose allocation according to criteria that are alien to them, like money or power, would constitute an oxymoron. In other cases he comes to accept that the link between goods and principles is contingent, and that in some societies certain goods are simply associated in a predominant way with specific distributive criteria. Following his own terminology, the normative realm defined by each kind of social good constitutes a sphere of justice.
Walzer’s assumptions have been widely criticised. However, the idea that the spheres of justice are not only defined by the character of the goods, but first and foremost by the social and cultural contexts in which they are applied, remains a suggestive one. It is obvious nowadays that universalistic values cannot be taken for granted anymore in the naïve way of
the Enlightenment. They must gain their legitimacy by showing that they can adapt to changing social circumstances and accept moral interpellations from other cultural environments. The public sphere is still the main testing ground for this, but it can no longer rely on the premise of cultural homogeneity. The post-liberal public sphere must open itself to new processes of intercultural deliberation and exchange, so that traditionalist groups and nomoi communities gain the chance to defend, to update or to translate and adapt the moral meaning of their most cherished social goods beyond their original frame of cultural reference.
The evolution of some women’s rights movements in the Islamic world offers an interesting example of this possibility. What can loosely be defined as Islamic feminism is basically an intellectual movement that displays a modern discourse about women’s rights and has some militant ramifications in groups like Sisters in Islam2. Like many other reform movements in modern Islam, the innovative efforts of Muslim feminists run through the core of its cultural tradition and make use of what is its typical tool: the interpretation of the sacred texts. The reason for this is that even if Islamic religion relies on a revealed text, the Koran mainly contains principles, not the details on how to develop them in a full-fledged way of life. Islamic feminists have therefore had to fight on two fronts: against gender biased interpretations of the Koran and against what many of them consider a neo-colonial discourse by Western feminists, who understandably are not ready to see any emancipating potential in a religion that, at least in its conventional version, reinforces gender inequality (Fernea 1998, Moghissi 1999, Safi 2003).
The main objective of these Islamic feminists is to reinterpret the sacred texts and to participate in an ideological process that has been traditionally reserved to men. They understand their feminism as an inherent part of their religious commitment, to which they wish to incorporate their own personal experiences as women. In order to articulate this double vocation they have resorted to a critique of the established Islamic epistemology and to a particular combination of traditional hermeneutic instruments (like the tafsir, an explanation and commentary of the Koran, and the ijtihad, normative reasoning based on the autonomous interpretation of legal sources), and post-modern techniques (like linguistics, deconstructionism and historical analysis of texts). The core idea is that gender equality is essentially contained in the koranic texts, but it was subsequently subverted by interpretative practices that rather reflected the personal interests of the narrators and the patriarchal prejudices of the societies to which they belonged (Mernissi 2003). Classical jurisprudence and the interpretation of the hadith (the sayings and deeds attributed to the Prophet) thus consolidated the prevalence of misogyny in the Sharia. We face here then the peculiar case of a social movement that advocates typically modern principles (like gender equality) and
2 The self-declared mission of Sisters in Islam is “to promote an awareness of the true principles of Islam, principles that enshrine the concept of equality between women and men, and to strive towards creating a society that upholds the Islamic principles of equality, justice, freedom and dignity within a
makes use of sophisticated hermeneutic instruments with a post-modern purpose (the deconstruction of Islamic patriarchalism) in order to assert what is after all a traditionalist position: the consolidation of Islamic texts as a source of moral authority.
Aboriginal customary law and Islamic feminism reflect different experiences of cultural learning and moral innovation: on one hand, positive law trying to interpret legal custom; on the other hand, religious traditionalism trying to advance egalitarian ideas. The cultural background of both perspectives is without doubt a traditional one, but it contains universalistic values that can be formally assimilated to modern views on human rights:
human dignity and due process in one case, and gender equality in the other. What is relevant here is not that they are traditional practices and discourses which have incorporated elements alien to their original frame of reference, but the fact that they have done so to reinterpret the meaning of their own traditions.
Although the politics of difference has been frequently framed in the terms of moral particularism, the normative references of their collective actors are not encapsulated in time.
For instance, all of them make use of the language of rights to put forward their claims, even if they often do it in order to restrict or to tone down the alleged universality of the rights proclaimed in the name of humanity. The permeation of the post-liberal public sphere with the arguments of cultural diversity and with culturally diverse arguments should help to envisage something like what Klaus Günther has termed a universal code of legality. This code would be a sort of legal meta-language imbibed with historical experience and containing the basic legal concepts and rules, like rights, due process, sanction and competence (Günther 2003:
13). Its formal character could permit a substantial degree of flexibility and adaptation, thus facilitating a hypothetical process of intercultural understanding and normative translation, but it certainly could not replace the deliberative role of the public sphere as the main legitimating device in democratic societies.
-Bibliography:
Arbeláez de Tobón, L. (2004), La Jurisdicción Especial Indígena en Colombia y los mecanismos de coordinación con el sistema judicial nacional, Consejo Superior de la Judicatura de Colombia
http://www.dplf.org/AINDG/span/gt_aindg04/gt_aindg04_Tobon.pdf
Bé-Nkogho Bé, J. R. (2006), “La persistance de la justice traditionnelle au Gabon : quelques réflexions”, Ethno-web, http://www.ethnoweb.com/articles.php?action=show&numart=90
Boyd, Marion (2004), Dispute Resolution in Family Law: Protecting Choice, Promoting Inclusion – Executive Summary
http://www.attorneygeneral.jus.gov.on.ca/english/about/pubs/boyd/executivesummary.pdf
democratic state”. Sisters in Islam, http://www.sistersinislam.org.my/
Canada. Royal Commission on Aboriginal Peoples (1996), Report of the Royal Commission on Aboriginal Peoples (5 Vols.), Ottawa, The Commission.
Cairns, Alan (2000), Citizens plus: aboriginal Peoples and the Canadian State,Vancouver, University of British Columbia Press
Dahlberg, Lincoln, “The Habermasian Public Sphere: Taking Difference Seriously?” Theory and Society, Vol. 34, No. 2 (Apr., 2005): 111-136
Dupret, B. Berger, M. Al-Zwaini, L. (1999), Legal pluralism in the Arab World, The Hague, Kluwer Law International.
Ehrlich, Eugen (1986): Gesetz und lebendes Recht. Vermischte kleinere Schriften (ed. by Manfred Rehbinder), Berlin, Duncker & Humblot (Schriftenreihe zur Rechtssoziologie und Rechtstatsachenforschung; Bd. 61)
Falk Moore, S. (1978): Law as Process: an Anthropological Approach, London, Routledge &
Kegan Paul.
Fernea, E. W. (1998), In search of Islamic Feminism: one Woman's Global Journey, New York, Doubleday
García, F. (2002), Formas indígenas de administrar justicia. Estudios de caso de la nacionalidad quichua ecuatoriana, Quito, FLACSO
Gaviria Díaz, C. (2002), Sentencia de Tutela T-349 de 1996, in: Sentencias. Herejías constitucionales, México, Fondo de Cultura Económica-Colombia: 351-367
Green, R. G. (1998), Justice in Aboriginal Communities. Sentencing Alternatives, Saskatoon, Purich Publishers
Günther, Klaus (2003): “Legal Pluralism and the Universal Code of Legality:Globalisation as a Problem of Legal Theory”. New York University. School of Law, Colloquium in Legal, Political and Social Philosophy,
http://www1.law.nyu.edu/clppt/program2003/readings/gunther.pdf
Habermas, Jürgen (1969), Strukturwandel der Öffentlichkeit. Untersuchungen zu einer Kategorie der bürgerlichen Gesellschaft, Berlin, Luchterhand
Hart, H. L. A. (1961), The Concept of Law, Oxford, Clarendon Press
International Labour Organisation (1989), Convention 169 concerning Indigenous and Tribal Peoples in Independent Countries,
Kymlicka, W. (1989): Liberalism, Community and Culture. Oxford, Clarendon Press-New York, Oxford University Press.
Kymlicka, W. (1996), Multicultural Citizenship, New York, Oxford University Press.
Lazarte Rojas, Jorge, “Plurinacionalismo y multiculturalismo en la AsambleaConstituyente de Bolivia”, Revista Internacional de Filosofía Política, No. 33(June 2009): 71-102
Marx Ferree, Myra et al., “Four Models of the Public Sphere in Modern Democracies”, Theory and Society, Vol. 31, No. 3 (June, 2002): 289-324
Mate, Reyes (1991), La razón de los vencidos, Barcelona, Anthropos
Mernissi, Fatima (2003), Beyond the Veil: male-female Dynamics in Modern Muslim World, London, Saqi Books.
Moghissi, H. (1999): Feminism and Islamic fundamentalism: the limits of postmodern analysis.
London-New York, Zed Books.
Pospisil, L. (1972): Anthropology of Law: a Comparative Theory. New Haven, Harper & Row
Rawls, John (1980): “Kantian Constructivism in Moral Theory: The Dewey Lectures”, en Journal of Philosophy, Vol. 77, No. 9: 515-572
Rawls, John (1993), Political Liberalism, New York, Columbia University Press
Safi, O. (ed.) (2003): Progressive Muslims: on justice, gender and pluralism. Oxford, Oneworld.
Shachar, Ayelet (2001), Multicultural jurisdictions. Cultural differences and Women’s Rights, Cambridge, Cambridge University Press.
Taylor, Charles (1992): Multiculturalism and "the politics of recognition". Princeton, Princeton University Press.
Thornberry, P. (2002): Indigenous Peoples and Human Rights. Manchester, Manchester University Press.
Van Cott, D. L., (2000), The friendly liquidation of the past: the politics of diversity in Latin America, Pittsburgh, University of Pittsburgh Press
Von Benda-Beckmann, F.: “Who is afraid of legal pluralism?” en The Journal of Legal Pluralism and Unofficial Law, Nr. 47 (2002): 37-83
Von Benda-Beckmann, F and K.: “The Dynamics of Change and Continuity in Plural Legal Orders”, en The Journal of Legal Pluralism and Unofficial Law, Nr. 53-54 (2006): 1-41
Walzer, Michael (1983), Spheres of Justice: a defence of pluralism and equality.Oxford, Basil Blackwell.