An Agent-Based Approach[607] [608] to Legal Pluralism
For a concept of law and legal pluralism that is useful in a comparative context we first have to acknowlege that it is impossible to sharply differentiate between law on the one hand and mere social norms on the other.
Any concept that equates law to state legislation appears artificial in settings of weak or failed states where non-state institutions fulfil the functions of state justice and non-state normative bodies are regarded as law. Concepts that define law by its function are not capable to distinguish law from other social norms: Concepts such as the one of the living law by Eugen Ehrlich, according to which law is “ordering and upholding every human association”^ or the concept by John Griffiths who equates law with the “self-regulation of a ‘semi-autonomous field’[609] [610]” make the terms law and social control or social norms interchangeable. Applied to all kinds of social norms, the term law thus becomes detached from the respective concepts of law in society. Without an equivalent of the term in society there is no value added in the use of the term legal as opposed to normative. Baudouin Dupret argues for a concept of law and legal pluralism solely based on the perception of the respective people. He states: “law is what people consider as law [...] occurrences of legal pluralism are limited to these situations where people explicitly orient themselves to the fragmented spectrum of law”.i3 So while we are not able to distinguish between law and other norms according to function, we may do this on the base of prevalent concepts in the respective societies. As most societies are strongly impacted by the concept of the modern nation state so are their concepts of law: Sets of norms are often considered as law, when they meet some degree of systematisation, enforceability or institutionalisation. Legal pluralism is perceived as such when other sets of norms challenge state legislation in certain fields and hence if agents are able to choose or combine between different legal orders.In the Palestinian society of the West Bank and the Gaza Strip people differentiate between three main legal systems with respectively distinct foundations: the formal justice system of the Palestinian Authority, clan-based informal justice (as-sulh wa-’l-qada’ al-asha’irt) and religious justice, which is mainly Sharfa-justice. In addition, different Christian church-laws are applied in Christian communities and Israel applies Israeli military laws on Palestinians in the occupied territories. For the question of the constitution of legal pluralism in the West Bank, we take state law applied in the West Bank as a reference for what is law: State law is highly systematic and institutionalised. It has considerable means of implementation and it is clearly considered as law (qanun) in Palestinian society. Other terms used in the formal legal field are haqq,u referring to legally grounded rights or claims and qada’,[611] [612] [613] [614] meaning judiciary. Regarding the other legal systems, namely clan-based justice and religious-justice^6 we can see that people refer to them as law for example by describing Islamic SharVa as law of God (qanun allah) or referring to clan-based justice as customary law (qanun curfi). The legal terms haqq and qada’ are also used in all legal systems?7 There is no local Arabic term for legal pluralism. However, people do refer to this concept indirectly by for example explaining that besides official law, the Islamic SharVa and clan-based justice (al-qada, al- asha’irV) are applied in Palestine, so they equate these systems in their role or function. All systems have considerable means of implementation with state authority in the case of state law, mechanisms of personal guarantee and a possible sanctions ranging from social exclusion to the exercise of violence in the case of clan-based justice, and a combination of the two by Shaπ⅛-justice depending on its respective localisation. Moreover, all three meet a minimum degree of systematisation within their own institutions and the ability to subsume particular questions under superior norms. On this basis, we assume for our analysis of legal pluralism in the Palestinian West Bank the parallel existence of three different legal systems, each having its own fundamental principles and sources of legitimisation. Institutionally, these legal systems are partly integrated and interwoven: like in most Arab countries personal status law is regulated by denomination-specific legislation with separate Sharia-courts in charge of the family affairs of Muslims; the oath is an important instrument of state justice that refers to religious law; the Islamic SharVa is referred to as the main source of legislation by the Palestinian basic law of 2002[615] [616] and SharTa is frequently referred to as a source for legitimizing claims or rulings by all legal systems. People differentiate between these different justice systems, however, and mostly agree on the type of justice that is being used at any given moment. For our analysis we use an agent-based approach that focusses on the rationalities of the different agents involved. This is based on the assumption that in the legal field people tend to act strategically rather than according to a rigid set of norms or to mere habits. Reasons for this assumption are the potentially high gains and losses involved in this field, the existence of structures that promote rational reasoning (such as counselling and defence by legal experts), and the fact that the members of the conflicting parties usually find themselves in an exceptional situation which makes it impossible for them to act according to habits. Of course this strategic behaviour does not happen in a vacuum separate from social norms or values: choices need to be justified, so they are taken within a given normative framework, which is pluralistic and influenced by further factors. Agents choose according to their respective interests between socially acceptable options that are provided by different normative systems. 2