The Practical Application of the Kite Model
The inevitably interconnected nature of the kite calls for constant alert, responsible action for what one may call ‘public interest’, rather than pushing for narrower forms of ‘private interest’.
Naturally such competitive situations will often cause tensions. In India we have seen these manifested in vociferous debates, in the general public and not just in courtrooms, about personal laws, specifically Muslim law, and many other highly contested topics, including the role of media and the law.What is most importantly revealed about law-related decision making when imagined as a kite is that none of these competing elements can ever be entirely ignored. Because, literally, if we cut out any one of the corners, the kite is bound to crash. Any law-related decision, by whichever agent, is therefore likely to be unsustainable if it seeks to ignore any of the four major sources of law as identified by the four kite corners. The Indian state, whatever its precise nature as a ‘secular state’, thus has to consider its decisions in the contexts of religious laws, personal law matters and everyday practices (riti-riwaz) all the time. It cannot pretend that ‘religion’ is irrelevant in a secular framework of reference, or that it can be completely isolated behind some imagined wall of separation. But how does one achieve such balancing acts in a structured and sensible way?
Taking the analysis of the kite model to a slightly deeper level, we need to add to the considerations a focused understanding of the importance of power in decision making before moving on to the next section. Specifically the power to make decisions at any moment locates a decision maker primarily in one of the four corners, for example as a judge in corner 3 of the kite, or a pious Muslim individual in corner 1. To make things a little more complex, as is the reality, looking at the kite carefully we then realise that every corner of the kite actually comprises of elements from each of the other four corners in greater or smaller proportions.
This slightly more complicated image now depicts every kite corner not as an end point, but as another kite structure, in which again the four corners are present and demand consideration. This results in a superdiverse ‘plurality of pluralties’, in which four types of power aligned to the four kite corners move into focus and compete. Corner 1 represents now a set of power from within — convictions, we might say, more or less strongly held values and beliefs, such as experienced by a pious Muslim individual located in corner 1. Corner 2 denotes a set of powers shared with others, exercised as a group rather than individually. These would be the views and perceptions of any specific Muslim family or section of the community, for example. Corner 3 represents the power over others, either because one was elected or appointed to be a legal or political office holder. Here is where we find the judge, who could of course be a Muslim. Significantly, in training programmes for judges at the European level, but also in India and Bangladesh, we have seen how these judicial actors realised within seconds that their power derives from such official appointments, anchoring them in corner 3, irrespective of their individual identity. Finally, corner 4 manifests the dual power of modern convictions from within and power over others, most evidently displayed when human rights activists, but also many law teachers now, co-opt the structures and powers of international law to promote their agenda through various legal actions or simply in the process of teaching.VI.
More on the topic The Practical Application of the Kite Model:
- The Kite Model of Law in Principle
- Some Thoughts on the Kite Model and Muslim Personal Law
- PRACTICAL CONSEQUENCES OF LEGAL DUALISM AND MONISM IN THE APPLICATION OF SHARI’AH FAMILY LAW TODAY IN AUSTRALIA AND SINGAPORE
- In the last chapter, we argued that there are two and only two plausible models of legal reasoning, the natural model and the rule model.
- The Practical Side of Philosophy
- In our view, there are only two plausible methods available to judges when they decide cases as a matter of common law, the ‘natural' model of decision-making and the ‘rule' model of decision-making.
- Practical Implications of the Decision in Grains
- 4 Application for tenancy
- 2 More than one application
- Theoretical and Practical DSL
- 7 Dismissal of application