The Kite Model of Law in Principle

While devising a comparative law model that accounts for different types of law interacting in various forms of competition, at first a triangular structure was developed, inspired by the earlier writings of the Japanese socio-legal scholar Masaji Chiba.¹¹ However, once it was understood that Chiba’s ‘legal postulates’¹² as his term of art for ethics and values of all kinds included both ‘traditional’ and ‘modern’, and even ‘global’ values, the kite as a four-cornered structure appeared like a bright new moon.

The law-focused methodology of flying kites as a balancing exercise is reflected in the form of a diagram. This is not a box-like structure, but a kite with four corners, now the basis of a globally known theory to understand legal pluralism and how it works. Intriguingly, one can apply this highly dynamic model to all kinds of different scenarios of decision making, especially as a tool to understand the position of any ‘other’, thus also in efforts to manage conflicts and competi­tions through dispute resolution. The kite model itself is quite simple, almost commonsensical. Its depiction of different competing types of law reflects a kind of global legal realism. The kite model incorporates what lawyers have been studying in different classes, yet have not been taught to relate to ‘law and life’, simply because ‘doctrinal’ legal scholarship remains too impressed with its own sense of power, rather than engaging in more democratic balancing of competing and overlapping claims.

The basic kite model, a quite subtle structure that connects the four differ­ent corner points, is easily explained, as indicated earlier. At the top, kite corner 1 represents various forms of traditional natural law, ethics and values, includ­ing religion. In traditional contexts, including Islamic scenarios, this corner also makes religiously grounded claims to globalising universality and then incorpo­rates significant elements of corner 4 of the kite. Connected to corner 1, on the kite’s right-hand side, corner 2 signifies various social normativities as well as economic sustainability. On the left-hand side, kite corner 3 represents the vari­ous familiar forms and manifestations of state law. These were often not made by the state, but were adopted from other sources. Lastly, kite corner 4 at the bottom signifies the new natural law of human rights and various forms of international law regulation, potentially a kind of new global legal positivism. One can also depict the four interconnected kite corners by using a different graphic structure, namely four overlapping circles. This image further reinforces the realisation that all these intersecting types of laws inevitably co-exist in multiple competitions and mixities.

Depicting law as a kite and analysing the operation of law as the skilful bal­ancing of this kite structure in the air, while seeking to avoid crashes, has the advantage of concentrating the mind on important components of this kind of legal game theory. This is not fun on the beach, or Indian patangbazi, but illus­trates seriously how law actually works in practice.

Significantly, non-Western legal orders understand this well and tend to inter­nalise such basic characteristics of law and life without succumbing to almost obsessive modernist fears of slipping into theocracy. In rather pragmatic ways, local people in India, also today, use such balancing techniques to avoid that smaller, local conflicts escalate into bigger formal cases.¹³ They do so in awareness of the presence of state law, but avoid recourse to it. Consequently, it appears to be a core element of non-Western approaches to law that one seeks to look for the specific justice of any particular scenario at any specific moment or in any given context. One does not, as tends to be presumed in the ‘modern’ West, measure justice against a fixed code of law or judicial decisions as precedents. The radi­cal situation-specificity of non-Western legal reasoning, which envisages a new, indeed unique scenario in every split-second moment, gives the kite model a relentless and potentially precarious volatility, but also adds to its practical rel­evance. It empowers the skilled kite-flyer, the legally conscious individual as a law-related agent, to adjust instantly to any challenges. Observing this, one con­stantly measures split-second decisions while various legal actors, often silently, apply this model. That one may not expect total agreement about these processes is evident, in all cultures and legal orders.

This highly dynamic scenario shows that the kite structure can also be employed as depicting four kinds of law-related individuals in action.

The kite structure thus depicts the competing manifestations of law as irre­vocably interconnected, so that no component could claim to be truly and fully autonomous. The various actors are all responsible, to some extent, for each other. This mutual multilateral co-ordination and agile cross-supervision also protects the whole structure from the constant risk of total abuse of power and/or chaotic destruction, leading to a crashing kite. This requires an alert individual or shared, and hence often negotiated, efforts to navigate any tensions between the various competing elements. Since it appears that the right balance makes a kite fly safely, the central, often ideologically contested, question always remains what is the right balance in any particular scenario.

Globally we find that this constant four-cornered contest gives rise to only three basic types of state-centric legal management, and it appears that all law- related action takes place within that broader framework of these three types of law-centric management already introduced earlier. Where a legal order explic­itly recognises the co-existence of a general law, such as the country’s constitu­tion, common contract laws, procedural and evidence laws, and so on, with a set of so-called ‘personal laws’ that reflects the demographic and socio-religious realities of specific communities of citizens, we are back in South Asia.

This country-specific scenario of intercultural and plurilegal conflict is a truly global predicament, as law and religion always co-exist and compete. Pluri-legal scholars will not be surprised about these kinds ofintercultural conflicts. However, since the ‘modern West’ privileges secular state laws as the supreme power, and state-building processes are built on presumptions that citizens have given the state authority to act on their behalf, individual citizens are now deemed to be only indirectly, through voting rights and democratic representation, a law-mak­ing entity. However, in non-Western legal orders and worldviews, the state and its laws seem to have a different role, with huge impacts everywhere on debates about the place of Muslims with regard to personal laws. Of course, notions of state power, even a strong state, are also present in Islamic law and in Hindu law.¹⁴ But as primarily global religious and legal orders, with their own polysemic ter­minologies for various types of law in the corners of their respective kites of law and life, such legal orders do not simply uncritically accept that the state power holds supreme authority. In various culture-specific forms, such ‘traditional’ legal orders also envisage that individuals as law-related entities and actors may be connected to a believed-in dominant divine authority. Hence problems between state-centric legal orders and ‘religious’ systems arise specifically for monotheistic visions of religion. Where religious adherents connect into a complex giant web of wide-ranging responsibilities, as Rankin¹⁵ has recently shown for the ancient, small religious community ofJains, such problems of authority may still arise, but are not normally politicised in the same manner as for Islam.

Being faced with such visions of order, even of a Global Order, from which there is simply no escape, does not mean that this completely controls all individ­ual agency and imposes a fatalistic approach. But it expects and demands respon­sible action, now in new contexts interpreted as subtle forms of environmental consciousness. Hence the legal traditions of Islam, Hinduism and Jainism all hold the respective state authorities accountable for ‘good governance’, in the sense of protecting this believed-in higher order, but do so in quite different ways. The state and its office holders, then, become potentially servants of that higher order, rather than exercising (in their own understanding) dominant legal authority. Such a state system can still claim wide-ranging powers, but there is perhaps some latent awareness that somehow there is some higher entity than human law, embodied in ethical or religious principles. Notably, common people living in and under such legal orders display, in our experience, far less reluctance to accept the kite model of law as a realistic depiction of the intersectionality of law and life, compared to modern, ‘progressive’ scholars, who tend to privilege state law and international norms.

It is evident that old and new conflicts and tensions of ‘law’ and ‘religion’ continue to exist, in various contexts, so that skilful balancing of competing expectations has to be learnt by all stakeholders. Arguing with the help of the kite model that we always need alert navigation suggests, as noted earlier, that the problems to be debated have to be seen as a complex interdisciplinary field of academic as well as practical analyses. This results in many hybrid forms of managing diversity at various levels and in different domains. Recent academic work about kite flying warns against ‘quick fixes’, but recognises that the vari­ous challenges can be overcome in efforts to harmonise normative pluralism and human rights.¹⁶ What is required is goodwill and a constructive predisposition on all sides. However, if there are bad intentions and a destructive agenda takes over, then reasoned debate and calm balancing become impossible, and terror and chaos may be the result. This article thus warns states and lawmakers, but also representatives of religion, that ignoring the existing plurality of percep­tions and voices, pushing through any particular narrow perspective, may result in violence and destruction. Such disaster scenarios show that legal pluralism cannot per se resolve conflicts, but is nevertheless a useful tool to understand, analyse and manage conflict.

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