Laws Locations: Textures of Legality in Developing and Transitional Societies Abstracts of Papers and Presentations Marriages of Choice: Articulation of Agency, State Interventions and Feminist Locations

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Laws Locations: Textures of Legality in Developing

and Transitional Societies
Abstracts of Papers and Presentations

Marriages of Choice: Articulation of Agency, State Interventions and Feminist Locations Flavia Agnes
The paper attempts to examine how penal provisions of rape, kidnapping and abduction are used in cases of young girls who challenge parental authority and exercise their choice in marriage. Despite being aware of the fact that it is a marriage of choice and voluntary elopement, the police collude with the girl’s family to protect patriarchal interests and community honor. The situation becomes precarious when an upper caste girl elopes with a lower caste boy or when a Hindu girl falls in love with a Muslim boy, crossing boundaries of Hindu upper caste dictates of purity and pollution. In a society ridden with prejudices against lower castes and strife with communal conflicts, young couples who dare to cross community dictates are severely punished. The notion of women as sexual property of their communities is deeply internalized. At times, the price for choosing a partner would be a gruesome murder or public humiliation.
The use (and abuse) of police power at the instance of the parents, is in direct contrast to women’s autonomy, agency and free will. Judges have commented that many of the habeas corpus petitions filed by either the young husband or father for production of the girl in court are in fact cases concerning “elopement marriages.” In the context of the theme, “Rule of Law and Role of Lawyers,” the paper will examine the complex power equations that are played out during litigation and how provisions of Child Marriage Restraint Act are invoked to curb the freedom of choice of young girls.
The “Stubborn Persistence of Patriarchy”? Gender Equality and Cultural Diversity

Catherine Albertyn
The tension between claims to culture and claims to gender equality has persisted in South Africa’s constitutional democracy, especially in relation to the cultures, traditions and customary law of black South Africans. Traditional leaders failed to insulate the cultural domain from constitutional scrutiny in the 1993 Constitution, and a series of laws and court judgments have secured important equality rights for women living under customary law. Yet even as parliament and courts have granted women equal rights within the family and to inheritance and recognition as traditional leaders; a ‘stubborn persistence of patriarchy’ means that these rights remain contested in the public and private spheres. Women’s rights of access to communal land and within customary courts remain sites of struggle between the claims of traditional leaders and those of community members, including women. Much of this currently centers on the nature and extent of traditional (male) power over land, property and community.
Although traditional leaders and their representative organization, the Congress of Traditional Leaders of South Africa (CONTRALESA), have been the major advocates for enhancing the status and power of traditional leaders and for limiting women’s rights in the name of traditional power and culture in policy and law reform processes, the accession to power of President Jacob Zuma has coincided with a more visible public expression of the importance of culture within the South African social fabric. This assertion of culture is a positive recognition of its importance in making sense of the world. However, the form that it takes suggests the persistence of a chauvinist and bounded view of culture, protected in a private sphere that tolerates little internal or external dissent. It has thus enabled the (re-)emergence of patriarchal views of women, defined in terms of their reproductive and sexual roles, and as objects to enhance the status of men, rather than human beings with equality and dignity. In a political and social sense, this approach reinforces a patriarchal worldview inimical to the idea of gender equality and women’s human rights.
In contrast to traditional leaders’ early attempt to exclude customary law and culture from the operation of the Bill of Rights (and thus to exclude the cultural sphere from constitutional rights), the language of rights has often formed the basis of traditional leaders’ objections to women’s rights and of the invocation of culture by public figures to justify particular norms and practices. This suggests that, at least in the realm of politics, a conflictual relationship persists between claims to culture and claims to gender equality in which the assertion of the former as a right, directly or by implication, undermines, marginalizes and overrides the value of the latter.
In a constitutional sense, it is not difficult to argue that this is impermissible – at least in the sense of culture or cultural rights ‘trumping’ equality or equality rights. The 1996 Constitution addresses the apparent conflict between culture and equality by recognizing the importance of cultural identity and cultural diversity and embracing legal pluralism, at the same time as it renders these subject to the values and rights of a supreme Constitution. These include a strong commitment to equality as one of the foundational values and substantive rights of the Constitution. The text suggests, at minimum, a liberal approach to multiculturalism that accommodates religious and cultural diversity as long as this is exercised consistently with fundamental rights. Any claim to defend a cultural or religious rule, norm or practice that discriminates against women must be justified in terms of the Constitution and its democratic values of equality, as well as human dignity and freedom.
Of course, the interpretation of the Constitution is contested, producing competing narratives about the nature of democracy and South African society. Different ideas of multiculturalism generate divergent views on the interpretation of, and relationship between, cultural identity/affiliation/ diversity and gender equality/patriarchy. Underlying these are deeper disagreements over the nature of culture, gender relations, the place of the individual in the group, the form of the public/private divide and the significance and meaning of rights and values, such as equality, dignity and freedom. If some of these approaches have – by accident or design – fallen on the side of a cultural or equality trump, a growing body of critical scholarship has sought to value, and reconcile, both cultural diversity and gender equality. Drawing on the notion that culture is fluid and contested rather than bound and static, and on ideas of deliberative engagement within and across cultural difference, this work enables the best interpretation of South Africa’s Constitution as committed to cultural diversity and gender equality, and the best way of dealing justly with claims relating to culture and gender equality under the common normative platform of the Constitution.
The starting point for this is a discussion, in part 2, about the nature of culture. This section identifies two opposing views of culture: a bounded, monolithic and privatized view and a more fluid, contested and porous conception. Each of these generates a different approach to patriarchy and gender equality. The paper explores the assumptions, relevance and application of both approaches in South Africa and suggests that the latter meaning better captures the manner in which people live, and the particular nature of culture and customary law in South Africa. A dynamic approach to culture also underlies a form of cultural diversity and legal pluralism that is open-ended and allows an active engagement with, and development of, constitutional norms and values. By contrast, a bounded and static notion of culture inhibits change, forecloses deliberation and tends to reinforce hierarchies and inequalities.
Although there is a degree of academic consensus on the open and contingent nature of culture amongst ‘multiculturalists’, there is less work on what this means for legal understandings of culture and equality, and the manner in which the law should address intra-cultural inequalities. In South Africa, legal academics have tended to concentrate on inter-group inequalities, and how various religious and cultural practices might be accommodated under our Constitution, rather than competing equality claims within a group. Part 3 of the paper focuses on South Africa’s equality jurisprudence, suggesting how this might be developed to address matters that raise competing claims to gender equality and culture. I argue that a contested view of culture underlies a context-sensitive approach and requires a detailed elaboration of the values underlying the equality right and a proper consideration of the cultural purposes of the alleged discrimination. Much of this approach is already present or implicit in the jurisprudence. The jurisprudence also enables a deliberative approach – permitting multiple voices, including those of women, community members and traditional leaders. Such an approach, however, raises challenges for courts in terms of process and remedies. It also acknowledges the importance of deliberation beyond the courtroom, and thus of engaging law and politics, the state and society/community on cultural rules, norms and practices.
Part 4 then develops these arguments in relation to claims of unfair discrimination based on sex/gender, not only in relation to relatively easy claims of legal status and recognition in family, but also in relation to claims to public power and resources (courts, leadership, land) that have generated significant resistance from traditional leaders, as well as socially contested cultural practices such as polygamy or virginity testing. This section considers the 2008 Constitutional Court case of Gumede v President of the RSA (concerning gender discrimination in customary marriage). Part 5 then addresses the alternative claims of unfair discrimination based on culture. Using MEC for Education, Kwazulu Natal v Pillay (concerning cultural discrimination) I argue that issues of intra-group inequality (and the intersection of gender and culture) need to be built into the adjudication of the claims so that courts may avoid the protection of discriminatory cultures. Part 6 addresses the idea of deliberation and the role of courts in fostering this. It briefly considers Shilubana v Nwamitwa (concerning the position of women as traditional leaders).
Social Policy and the New Development State: The Case of Colombia

Helena Alviar

In this paper, I argue that the adoption of new social policies, even if consistent with regional best practices, does not necessarily co-relate with positive developmental outcomes. More specifically, I argue that the success of new social policies is not only path dependent but also seems to depend on the specific political choices that made the adoptions of these policies possible. Conditional cash transfers adopted in the context of a political choice to reduce structural and historical inequality are incomparable to ones adopted as a measure to help families in moments of crisis, reduce the burden on the government’s budget, treat poverty as a localized phenomenon ultimately linked to individual/household fortunes, or strengthened in order to enhance the political capital of a very powerful executive.

I will pursue these arguments in three steps. I briefly describe the set of social policies that crystallized in Colombia during the 1990s. What characterizes this new regime is a combination of the enforcement of constitutionally protected economic, social and cultural rights with conditional cash transfer programs as the most effective way for the state to channel social services to marginal segments of society (e.g., informal workers, or marginalized identity groups). I then propose an analytical framework to understand the design and content of social policies generally and how it can be used to describe the historical evolution of social policy in Colombia in order to highlight the transformations that were set in place after 1990. Finally I propose some conclusions in terms of the success and failure of the New Law and Development Social Policy: Familias en Acción.
The Role of Human Rights Law in Protecting Environmental Rights in South Asia

Sumudu Atapattu
The convergence between the human rights movement and the environment movement is an important feature of recent times. This convergence can be seen at the national level, regional level and, to a lesser extent, at the international level. The relationship between environmental issues and the enjoyment of protected rights needs no emphasis as it is obvious that many of the protected rights, if not all, can be jeopardized as a result of environmental problems. Contemporary international law does not recognize a specific right to a healthy environment although some contend that such a right is emerging. Environmental regime lacks the sophisticated redress mechanisms that the human rights framework has and, not surprisingly, victims of environmental harm have begun to use this framework to seek redress. Thus, both civil and political rights and economic, social and cultural rights as well as procedural rights have been invoked to seek redress for damage caused by environmental harm.
My presentation looks at the link between human rights and environmental issues as articulated by the Superior courts in South Asia, particularly, the Indian Supreme Court. The trend set by this court in Subash Kumar v. State of Bihar in 1991 where the court observed that the right to life enshrined in Article 21 (of the Indian Constitution) includes the right to enjoyment of pollution-free water and air for the full enjoyment of life has been followed by courts in other South Asian countries. The paper will discuss some of these cases and the influence that both international human rights law and international environmental law had in these cases. In addition, another development seems to be emerging – an aspect that has not been fully explored in literature: using the human rights framework to prevent environmental damage. Human Rights law is generally used as a tool to seek redress for violations of rights by state authorities. However, in some instances this framework can be used to seek redress for an imminent violation of rights so that actual environmental damage would be prevented. I hope to discuss the preventive aspect of the human rights framework through a discussion of the case Bulankulama and others v. Secretary, Ministry of Industrial Development and Others (generally referred to as the Eppawala Phosphate Mining case) decided by the Supreme Court of Sri Lanka in 2000.
Legal Process of Outsourcing and the Rise of the Global Indian Lawyer

Swethaa Ballakrishnen
Over the last few years, in response to an overbearing international call for legal cost cutting, general counsels and firms alike have begun looking to India for their legal outsourcing solutions. Though somewhat hesitant at first, this reliance has gained increasing momentum and earlier this year, research revealed that all of the top 30 UK law firms used the services of Indian Legal Process Outsourcing units (“LPOs”). This sudden market evolution has transformed not only the amount and nature of work that is being exported to the desi lawyer but also the way these services (and, by extension, the opportunities of the global legal profession) are perceived. Drawing from comprehensive ground interviews with the actors in India and in the US, this paper elaborates on the sudden growth of this very recent LPO phenomenon and the effects of such dependence on its Western counterparts with a focus on the following issues: (a) the fast-track growth of this industry and the change in sector perception following such growth by industry and prospective career aspirants alike; (b) the role of training in these centers as a plug for the country’s largely disparate legal training systems; and (c) the efficiency of the clinical, corporate structure of this model (transparent growth tangents, competitive admissions etc.) in contrast to the other forms of legal association and practice in the country and the particular appeal of this industry to the Indian female lawyer.
The attempt is to not only show the signs of and increasingly sustainable dependence but also raise concerns of this relationship in light of the sociology of the Indian legal profession and the translating concerns of professional responsibility and ethics that this reflects on the outsourcing of Western legal profession. For, while it is interesting that the industry has quickly evolved from a back-end, technical support service to a substantive global solution (which one Senior Training Executive called the “training of the Indian Global in-house Counsel”), it remains to be evaluated if such evolution, if possible, is symbiotically sustainable.
Rights of the Ruled: Legal Activism in Imperial Russia

Jane Burbank
Although Russia is represented as a lawless place, law has been a vital part of Russian governance for centuries. This paper sketches out the characteristics of legal rule in imperial Russia, with an emphasis on subjects' exercise of their rights to litigate and the functioning of the lower courts. The pluralistic legal system enabled humble subjects to attain legal judgments that corresponded to distinctive social environments, while ladders of appeal and reporting connected lower-level courts to supervisory instances, ultimately to the supreme court (the Senate) of the empire and to the emperor. Contrary to the much publicized "anti-law" tendencies of Russian intellectuals, ordinary subjects of the empire used the law proactively in their interests. Rule of law in imperial Russia corresponded to ingrained assumptions about rights and sovereignty that differ from those held to be "universal" by many theorists today, but the law was nonetheless a powerful and self-evident presence in the lives of imperial subjects.
Taxation in a Time of Crisis: Policy Leadership from the OECD to the G20

Allison Christians
After decades of directing global economic policy standards alone, the United States and Europe publicly extended leadership power to some developing countries in response to the economic crisis of 2008-2009. But an entrenched international architecture of tax policy expertise ensures that a small group of established players continue to shape tax norms and practices throughout the world. This architecture is based on historical international power relationships and institutional history. For diplomatic restructuring on the world stage to usher in a new age of inclusion for previously marginalized states and peoples, systemic changes must also take place in these entrenched institutions and processes.

Learning to Dispute: Repeat Participation, Expertise and Reputation at the World Trade Center

Joe Conti
The mixed method analysis examines the effects of repeat participation on disputing at the World Trade Organization (WTO). Differences between disputants in terms of their experience with WTO disputing processes affect the likelihood of a dispute transitioning to a panel review, depending upon the configuration of the parties. More experienced complaints tend to achieve settlements while more experienced respondents tend to refuse conciliation. The strategy of experienced respondents is derived from the expertise generated from repeated, direct participation, the normalcy of disputing for repeat players, as well as the perceived benefits accruing from a reputation as being unlikely to settle. Repeat players also seek to avoid disputes expected to produce unfavorable jurisprudence, but do not actively try to create new case law through the selection of disputes. This research demonstrates a dynamic learning process in how parties’ use international legal forums and thus extends socio-legal scholarship beyond the nation-state.
Trying Democracy in the Shadow of an Authoritarian Legality: Chile’s Transition to Democracy and Pinochet’s Constitution of 1980 

Javier Couso


Chile’s transition to democracy was marked by the fact that the fundamental law governing the process (the Constitution of 1980) was explicitly designed by the military regime to ensure that the fundamental features of its ‘conservative revolution’ would be protected from what was seen as the inevitable return to democracy. Although the 1980 charter were later amended (1989, 1998 & 2005), the fact is that Chile’s transition to democracy was conducted in the shadow of the authoritarian legal framework elaborated by Pinochet’s constitutional advisers, which was deeply distrustful of democratic politics. After analyzing the role that the Constitution of 1980 played in the transitional politics of the country, the paper examines possible ways out of Chile’s constitutional conundrum, in particular, the role that International Human Rights Law can play in that process.

Losing Mazibuko: (Re) Considering the Campaign Following Judicial Defeat

Jackie Dugard 
In October 2009 the South African Constitutional Court handed down its first water rights-related judgment, in the case of Mazibuko and Others v City of Johannesburg and Others. The case concerned the imposition of prepayment water meters, as well as the sufficiency of the government’s Free Basic Water Policy in large, multi-dwelling households, in a very poor suburb of Soweto, Phiri. Despite two previous courts (the Johannesburg High Court and the Supreme Court of Appeal) finding prepayment water meters to be unlawful and the City’s Free Basic Water Policy to be unreasonable, and following a complex and lengthy legal battle, the Constitutional Court found against the applicants on all grounds – the first time since its first socio-economic rights case – Soobramoney (1997) – that the Court has found against applicants in a socio-economic rights case. This paper will attempt to analyze the impact of this judicial defeat on the relevant social movement – the Anti Privatisation Forum – the community and the jurisprudence, asking the questions: if legal mobilization is about more than winning cases, how does one assess the impact of a losing case on a rights-based campaign, and how does one determine what a strategic case is (the latter question is a response to post-judgment criticisms of Mazibuko that it was an un-strategic case, and relates to the broader question of what is the role of law in a transitional democracy?).

The African Lawyer as Political Insider/Outsider

Rachel Ellett
This paper begins from the assumption that in order to understand political development in sub-Saharan Africa we must locate our analysis at the intersection of the state and civil society. One way to do this is through the lens of a profession. Analyzing the internal dynamics of a profession allows us to cut-across conceptual spaces. One profession that captures the inside-outside state tension particularly well is the law. At the collective level lawyers simultaneously constitute and oppose the state. At the individual level a single lawyer may move back and forth between the state and the private sector several times over the course of his or her career. This paper examines the internal dynamics of the legal profession and lawyers’ engagement with the African state in two southern African countries: Botswana and Malawi. African lawyers have played a central role in building and sustaining the African state since the colonial period. But what role does the contemporary lawyer have in democratizing the African state? How is the African lawyer able to maintain autonomy, engage in collective action, manipulate informal networks and protect civic space while maintaining the sense of apolitical morality so essential to their legal authority? Based on qualitative field research in Botswana and Malawi, this paper finds that historical patterns of elite lawyer movement in and out of the state, law society’s pathways of activism, and evolving trends in the legal marketplace shape the relationship between the African lawyer and the state.

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