david pimental on legal pluralism and indigenous justice

30Nov10

David Pimental, ‘Legal Pluralism and the Rule of Law: Can Indigenous Justice Survive?’, Harvard International Review (2010).

Extract, in want of abstract:

“Legal pluralism” describes the situation in which different legal systems co-exist in the same geographic area, and it is not unique to the Dakota Territory of the 1880s. We continue to see clashes between state power and indigenous justice throughout the world, much of it exacerbated by the spread of Western law.    The challenge comes not with expressing the need for mutual respect, but in finding ways for the divergent legal systems to function simultaneously in the same world, in the same state, and even in the same community. Jurisdictional tensions are inevitable.


So how should Western law interact with traditional, customary, or other non-Western legal traditions? Historically, the indigenous law has usually been subordinate. Even in the case of Crow Dog, where the Supreme Court decreed that indigenous law controlled the case, Congress responded by passing the “Major Crimes Act” asserting exclusive federal jurisdiction over serious crimes committed in Indian Country. There would never be another Crow Dog. Tribal courts were relegated to adjudicating only petty crime, because—based on the Crow Dog experience—they could not be “trusted” to handle the serious crimes.
The history of legal pluralism—which has been a reality for millennia, undoubtedly dating back to the first examples of invasion and occupation—has usually been marked by a profound lack of respect for indigenous justice. In British colonial regimes, indigenous law was allowed to function only as long as it did not run afoul of now-notorious “repugnancy clauses,” which assumed the superiority of British legal and cultural norms and invalidated any indigenous law repugnant to those values. These themes show up in the New Testament, which confirms that Roman authority was asserted as superior to Jewish law in Israel—Jesus could be judged by the Sanhedrin, but the Jewish authorities had no authority to administer capital punishment. The Roman occupiers reserved to themselves exclusive authority to do that, so Jesus was executed by crucifixion, a Roman penalty, rather than by stoning, which would have been called for under indigenous law.
We like to think that since colonial times, we have moved into a state of greater enlightenment and sensitivity with respect to indigenous peoples and values. We even romanticize indigenous customs and values, as depicted so broadly in the recent hit movie Avatar. But can chthonic cultures maintain their separateness and their customary justice in an increasingly globalized world?



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