Research Seminar in Sociology of Law with Janine Ubink

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Governing Legal Pluralism in Contemporary Capitalist Democracies

Recent decades have demonstrated the continued relevance of traditional rule systems and customary law for the regulation of the lives of citizens in the Global South. Most of these citizens navigate family relations, access to natural resources, and settlement of disputes through customary law as administered by family heads, elders and traditional leaders. The state legal system is often a much less direct instrument of governance in their lives. Statutory laws are less well known, state courts harder to access, and attempts to enhance knowledge, access and preeminence of state law institutions have often had limited impact. Customary systems, with tribal leaders and unwritten customary laws, were supposed to disappear with modernity, but are undergoing a resurgence in various regions of the world. The continued relevance and prevalence of non-state justice systems poses serious governance challenges to sovereign states, which are further complicated by the distortions wrought on traditional rule systems during the colonial and postcolonial period that have impacted negatively on traditional rule systems’ legitimacy.

While it is now quite commonly accepted that customary law and traditional rulers are here to stay, customary justice systems are now to function in very different contexts. They are part of broader nation-states with democratically elected leaders and often democratically elected local governments, ostensibly committed to inclusiveness, such as regarding women. These nation-states are characterized by capitalist economies instead of subsistence economies and operate in a strongly globalized world. Many of the globe’s most valuable resources and most vulnerable communities are governed by traditional rule systems. This confluence of tradition and modernity leads to all kinds of pertinent questions: How do non-elected traditional authority structures relate to and coexist with elected, decentralized local government structures? Can male-elderly leadership based on ethnicity – which is still the norm in most traditional rule systems – be reconciled with the idea of inclusive democracy? How do customary justice systems that used to regulate communal resources in pre-capitalist societies operate in capitalist societies where access to land and natural resources provide huge money-making opportunities? This presentation explores these questions through a study of the functioning of traditional authority structures and customary justice systems in capitalist, liberal democracies in Africa, with special reference to the case of South Africa.

Janine Ubink is a professor of law, governance, and development at the University of Leiden, the Netherlands. Her research examines the interaction of state law and government with customary law and traditional leadership, in the context of large-scale changes in an increasingly globalized world. Colonialism, land commodification, changing gender roles, conflict and post-conflict situations, and the activities of large foreign companies are all examples of significant societal and economic transitions that impact customary justice systems and their relation with state legal systems. She studies these processes through comparative qualitative and quantitative methods across the African continent, particularly in Ghana, Namibia, Malawi, Somalia, South Sudan and South Africa.