Introductory Remarks
“Legal Pluralism is a fact. Legal centralism is a myth, an ideal, a claim, an illusion”.1 John Griffiths’s statement in the mid-1980s has stimulated the longstanding[486] [487] legal debate on how to deal with the discrepancy between legal claims and legal reality, a debate that has lost none of its relevance. The question of whether legal pluralism is an appropriate analytical category to reflect legal realities seems thus to be answered: The central term legal pluralism permits the analysis of the interrelations and interdependencies between different normative orders.[488] A legal pluralist perspective takes into consideration the development of semi-independent networks and authorities of governance and their respective normativities.[489] It allows for analysing the complex governance-actor constellations and their diverse regulative legal practices and structures in order to better understand changing modes of governance.[490] Accordingly, this perspective acknowledges the fact that local and religious authority structures have long been “agents of governance in many states”,[491] and that they have been constructed and utilised in the context of various colonial rules of social control.[492] In dealing with legal realities in which religious, local and state normative orders co-exist as well as with the inherent potential for social and legal conflicts when the various interacting normative orders rely on plural sources of law and different bases of legitimacy,[493] contemporary state actors pursue different approaches. The Ethiopian context provides thoughtprovoking insights for theorizing legal pluralism in terms of pluralist state policies and implementation efforts. As a result of centuries of coexistence, cooperation and conflict between the different ‘semi-autonomous’[494] normative orders, partly overlapping permeable normative structures have evolved. Normative pluralism becomes especially visible in the arena of family law where the local laws of the more than eighty local communities[495] [496] [497] [498] and the religious laws of diverse Christian and Muslim communitiesn are the predominant regulating normative tools. This chapter seeks to sketch how Ethiopian governmental actors attempt to deal with the legal realities of the highly contested family arena. The focus is on the Ethiopian version of Islamic family law applied by the Sharita courts. These religious courts have existed on the territory of contemporary Ethiopia for centuries and have always played a significant role in the life of Muslim communities - which constitute at least one-third of Ethiopia’s populationi2 - regardless of their recognition by the state. In order to regulate the legal pluralities and to mediate the relations of diverse normative orders, Ethiopia has developed its own mode of state-recognised legal pluralism. Ethiopian governments, including the current one, have acknowledged local and religious normative orders to different degrees, depending on their respective devide et impera policies. As early as 1942, Emperor Haile Selassie I (1892-1975), in an attempt to regulate plurality, proclaimed that “[...] when we established Kadis’ Courts by law we did it in order to achieve national unity”?3 Upon first glance it seems paradoxical to achieve ‘national unity’ through the recognition of pluralism. One may ask to what extent this political claim could be attained in light of the legal realities. Assuming it is possible, how could a legal framework be constructed to reflect Ethiopian legal pluralities and to create space for their different normative orders? Moreover, how could the space where Islamic, local and state normative perceptions overlap be designed institutionally? With the adoption of the Constitution of the Federal Democratic Republic of Ethiopia of 1995 (fdre Constitution) a pluralist legal frame was established: Changing socio-political realities[499] [500] [501] [502] [503] [504] have led to a paradigm shift in thinking about law - from a rather monist to a pluralist approach - which becomes visible in the state legal system since the 1990s: Currently, ethno-linguis- tic and religious diversity have become de Jure co-organising principles. For the first time in Ethiopian’s legal history the application of Islamic Family law by Sharita courts was accorded constitutional recognition?5 The central hypothesis of this studyi6 is that a constitutional recognition of Islamic law can create space and a forum for negotiation processes between the various (institutional) actors involved. The fdre Constitution defines the general conditions and areas of jurisdiction of the Sharita courts, while the concrete, substantive definition is in the hands of the federal and regional legislators. In order not to relinquish authority over co-regulating the ‘private sphere’, governmental actors follow a double strategy. Alongside the introduction of a comprehensive state family law reform, religious and ‘customary’ laws have been constitutionally recognised. Thus, the Ethiopian Muslim population has been de Jure given the choice to be adjudicated by Sharita courts and Islamic law. This chapter seeks to show that state-recognised legal pluralism (called ‘weak legal pluralism’ by Griffithsi7) inherently leads to tensions between normative concepts of Islamic law and state law. Taking into account that “multiple networks of legal orders are forcing us to constant transitions and trespassings”?8 such pluralism also fosters (re-)negotiations and mutual adaptation processes as reactions to divergent normative values and concepts. Accordingly, the focus on the intersections of different normative orders, or on the ‘interlegality’19 to use a term coined by Boaventura de Sousa Santos’s, takes into account the proces- sual nature of constant transformations which constitute an inherently uncertain, unstable and uneven intermingling of different normative orders. Before focussing on the Ethiopian state-recognised legal pluralist arrangement and showing how Ethiopian state actors position themselves as ‘wardens’ of plurality, it is important to briefly sketch the political history of the current plural legal arrangement by retracing some key dynamics and events which contributed to the changing legal status of Ethiopian Sharita courts. 2
More on the topic Introductory Remarks:
- Introductory Remarks
- INTRODUCTORY NOTES
- Introductory Note
- Introductory Note
- Introductory Note
- INTRODUCTORY QUOTES
- CHAPTER 1 INTRODUCTORY NOTES
- Concluding remarks
- Concluding remarks
- Concluding remarks
- Concluding remarks
- Concluding remarks