(2009) JLP 59: 87-120
Helene Maria Kyed
What happens when legal pluralism becomes a policy concept? Or put differently: what are the consequences when legal pluralism enters national laws and policies and thereby ceases to be solely an analytical concept used by scholars to address the plurality of normative orders and institutions that enforce order within a political organisation? This article explores the consequences of legal pluralism as a policy concept, and argues that it is of utmost importance to acknowledge how policies on legal pluralism can give way to different layers of politics in practice. Such ‘politics of legal pluralism’ denotes the, often covert, political interests behind legal pluralism policies and the political implications of how such policies are put into effect. Despite official discourse, the article argues, legal pluralism as a policy concept seldom alone implies a benign recognition of the empirical manifestations of socio-cultural diversity. It also implies a framework for state intervention, regulation and reform, which has political implications. Legal pluralism policies easily become subject to political manipulation or may be political tools in themselves to assert authority and manifest power by state and non-state actors. At the heart of the issue is the fact that justice enforcement, and by extension social ordering, are not neutral, apolitical activities, but political ones: they provide a route to authority and also often to an income.
The article draws on the case of Mozambique where legal pluralism has been recognised in the 2004 Constitution, and where a range of state efforts to recognise non-state justice and policing providers have taken place since the civil war ended in 1992. Based on extensive fieldwork since 2002, the article explores the state recognition of traditional authorities in rural areas and the more recent implementation of community policing in urban areas. With these examples, the article shows that the politics of legal pluralism can take the form of at least three layers of politics, but also recognises that these may vary according to context: i.e. the politics of asserting the superior authority of state institutions and law over other existing legal orders or through the establishment of new non-state institutions; the political party interests in controlling non-state legal orders to consolidate power; and local level contestations over power and 'clients' to sustain the authority of a given institution or of personal power positions. In Mozambique the result of these layers of politics is new forms of plurality, but these co-exist with, and are reshaped by, state and regime efforts to monopolise the legal domain, even to such an extent that the very notion of 'pluralism' itself is under constant attack