The Politics of Legal Pluralism

“The Politics of Legal Pluralism: State Policies on Legal Pluralism and their Local Dynamics in Mozambique”, in Journal of Legal Pluralism, vol. 59 (2009).

What happens when legal pluralism becomes a policy concept? Or put differently: what are the consequences when legal pluralism enters national laws or policies and thereby ends being alone an analytical concept used by scholars to address the plurality of normative orders within a political organization?

This article by Helene Maria Kyed explores the consequences of legal pluralism as a policy concept. It argues that it is of outmost importance to acknowledge how policies on legal pluralism can give way to different layers of politics in practice. Such 'politics of legal pluralism' denote 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 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 these conclusions based on intensive fieldwork in rural as well as urban settings of Mozambique. Here legal pluralism has been recognised in the Constitution since 2004. Also a range of state efforts to recognise non-state justice and policing providers has taken place since the civil war ended in 1992. The case studies from Mozambique show that ‘the politics of legal pluralism’ can take the form of at least three layers of politics: 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.