Thirty-six years on: revisiting People’s Law and State Law: The Bellagio Papers

ABSTRACT

This article considers the impact of the book People’s Law and State Law: the Bellagio Papers, edited by Anthony Allott and Gordon Woodman, published in 1985. It sets out why I consider this publication to be a seminal text in establishing and developing the field of legal pluralism, which had a great impact on both the development of the Journal of Legal Pluralism and on my own development as a young legal scholar. In looking beyond the text, I consider the ways in which scholars have engaged with the book’s call for legal and social science to “work from a new map”. In doing so I explore a recent arena of scholarship involving international intervention. The article highlights the important contribution that empirical studies can make to research on legal pluralism, by moving beyond the binaries of state and non-state actors, as well as through pursuing how scholars are adopting a more integrated and relational approach to law, one that may involve breaking down traditional disciplinary boundaries. In particular, I explore how concepts such as space and time contribute to a multi-dimensional, scalar perception of law at odds with a formalist, state-centred view of legal pluralism. This allows new insights to be generated into the operation of plural legal structures and constellations in which people operate allowing for a view of law that involves multiple networks of relations cutting across international, national and local boundaries.

KEYWORDS:

• Ethnography
• empirical studies
• international intervention
• space
• time
• land
• common law
• customary law
• Botswana

Introduction

People’s Law and State law: The Bellagio Papers represents a seminal text in my development as a young law lecturer at Edinburgh University in the 1980s. Published in 1985 by Foris Publications, it brings together a collection of papers edited by Anthony Allott and Gordon Woodman that created the foundation for underpinning legal pluralism as an important field of scholarship. It addressed engaging in research on and analysis of plural legal orders in a variety of settings. Bringing together leading scholars in law and the humanities across the globe, the book derived from the First Congress of the Commission on Folk Law and Legal Pluralism that took place in Bellagio, Italy in 1981. The Commission was established in 1978 by the Union of Anthropological and Ethnological Studies (IUAES) and affiliated with the International Association of Legal Science (IALS) on the initiative of Professor van den Steenhoven of the Institute of Folk Law, Nijmegen in the Netherlands.

The book is split into five parts titled Informal Social Control, Folk Law in State Courts, Competition between State and Unofficial Law, Neo-Marxist Interpretations of Folk Law in Pluralistic Legal Settings, and Legal Policy. This breakdown represented the sessions held at the Congress that, as the editors readily acknowledged, shared a number of overlapping features. Since then, the Commission has organised a further twenty international symposia across the global South and North in places such as Thailand, Indonesia, South Africa, India, Canada, the former Yugoslavia, Switzerland and the UK. Many of the proceedings of these meetings have subsequently been published in the Journal of Legal Pluralism and Unofficial Law.

Impact on my development as a scholar

The book was invaluable because it provided me with new approaches to the study of law that went beyond my formal legal training. Soon after joining the Faculty of Law at Edinburgh University, in 1981 I accompanied a colleague, Sandy McCall Smith, to set up a new law department at the University of Botswana, Lesotho and Swaziland (UBLS), now the University of Botswana. Prior to this a quota of law students from Botswana, Lesotho and Swaziland were affiliated with UBLS (then a predecessor to establishing individual law departments in these respective countries) that administered a five-year degree programme, two years of which were spent at Edinburgh University.

In creating key courses for the new law department in Botswana, including family law, I encountered “customary law” that represented an unwritten, oral source of law transmitted across generations that had a great impact on the way in which disputes were handled, especially in the realm of family negotiations. This was done in local forums referred to as dikgotla. Getting to grips with what customary law, referred to as mekgwe le melao ya Setswana, (roughly glossed as Tswana law and custom), presented a dilemma for me, as my legal training at Edinburgh had revolved around a formal, rigorous, doctrinal analysis of written texts, including legislation and cases. This was not sufficient for understanding customary law and I needed to adopt a new set of skills appropriate for carrying out fieldwork on the ground in Molepolole, the central village of the Kwena polity located in Kweneng District. Such skills derived from a social-scientific orientation and involved participant observation, interviews, extended case studies, life histories and archival research.¹

Focus of my research and analytical perspectives

My research initially focused on family disputes under customary law, generally dealing with support for unmarried women with children, divorce and distribution of property. It then extended beyond disputes to how families went about dealing with these matters in everyday life, through negotiations that rarely ended up in going to court. I acquired data on this through attending family deliberations, interviews and through engaging with life histories, particularly those of the Makokwe and Radipati families over several generations (Griffiths 1997, 2012a, 2012b).

In analysing the results of my field studies I found that People’s Law and State Law provided me with fresh perspectives on law and methodology. At its core, the book raised questions about the relationship between state and other kinds of law. It is clear from the Introduction that there was a heated discussion among the participants about what to call law other than state law and how to identify its characteristics (Allott and Woodman 1985, 13–20). There was no consensus on what constituted “folk law”. Terms such as “local”, “customary”, “informal”, “people’s law” and “indigenous law” were proposed but the point was made that there is no characterization that consistently follows any supposed distinction between state and folk law. Participants did agree, however, that what was needed was a broad conception of law that did not necessarily follow “the axiom of western legal theory which confines the concept of ‘law’ to ‘state’ law” (Allott and Woodman 1985, 2). Indeed, questions were raised “about how far Western legal theory applies outside the West?” (7). What was clear was that there was no singular way of approaching theoretical and methodological questions about law. Indeed, discussions got quite impassioned at times, especially when dealing with neo-marxist interpretations of folk law. This led Franz von Benda-Beckmann (von Benda-Beckmann 1985, 241) to report in his introduction to this session that he found the discussion to be “an utterly disappointing and frustrating experience”, punctuated by statements such as “I am no Marxist, in fact I am anti-Marxist”, or, “You are no real Marxists, you should not call yourselves Marxists”.

Reorienting my perspective on law

Nonetheless, other debates foregrounded in the book helped me to place my research in context and to recognise that scholarship on legal pluralism is multi-faceted and covers a very broad church. More generally, the discussion in the book assisted me in addressing the relationship between what is formally recognised in Botswana as “customary law”² – unwritten law transmitted orally across generations – and “common law”³— a written form of Western or colonial law, generally derived from legislation and cases. While the formal legal system of Botswana acknowledges the existence of both forms of law, the problem I faced was how to characterize the relationship between the two.

This was because my training as a lawyer was one geared towards analysing different forms of law as separate, parallel and distinct legal regimes existing in a hierarchical power relationship to one another. The formal structure of courts underpinning the legal system placed common law above customary law, and, in keeping with a state centred perspective, empowered common law courts to overrule customary courts. This is the case, as, for example, in relation to the repugnancy clause hat allows for the negation of customary law if, in the view of common law courts, it is contrary to morality, humanity and natural justice.

Yet my research on the ground did not support this state-centred, vertically oriented view of law promoted by conventional legal discourse. Instead, my empirical studies provided a very different account of law that derived from a contextual standpoint, going beyond formal courts and formal legal texts. This was because my research not only engaged with courts but also engaged with other bodies and agencies that construct social relations, such as families and households as well as economic and political institutions. This approach acknowledges how social norms are integrated within law, revealing their mutually constituent nature, that in the case of common and customary law operated to the detriment of women in Botswana in the 1980s because of these systems gendered orientation (Griffiths 1997), that have since then undergone some transformations (Griffiths 2012a, 2012b). My approach was one that sought to follow through on the book’s call “to integrate empirical analysis and doctrinal analysis and further contribute to pressing political issues by way of theory, tactical appraisal and advocacy” (Allott and Woodman 1985, 7).

Social-scientific perspectives on law and empirical data

This more social-scientific approach to law has been achieved, in part, through a methodological approach based on empirical data. As a result a large, diverse ethnography has developed out of fieldwork involving what Geertz (1973, 3–30) referred to as “thick description” arising from immersion in the field and participant observation. By engaging with methods that allow for a different theoretical orientation towards law, that do not treat law as a given, an end in itself, it became possible to acknowledge law from a variety of standpoints (von Benda-Beckmann et al. 2005). These are based on questions about a) who the actors are that are engaging with law at any one moment in time; b) the purposes for which law is being invoked, that is the context in which it arises; and c) an explicit recognition of the sources on which legal claims to legitimacy and authority are based.

Such an approach to law is critical in today’s world where the increasing proliferation of international and transnational regulatory frameworks, norms and legal rules have given rise to “the epochal transformation we call globalization” (Sassen 2008, 2). The ways in which these intersect, mutate or conflict with one another in local, national and international regulatory domains reconfigure law both within the nation-state and beyond its boundaries so that there is now a growing acceptance “that there may be sources of law other than that of the nation state” (von Benda-Beckmann, von Benda-Beckmann, and Griffiths 2009a, 1).

New arenas for research

The editors of People’s Law, State Law were ahead of their time in raising questions about “whether one can truthfully say that the world of legal and social science must now take in and work from a new map, linking institutions and processes formerly conceived of as distinct?” (Allott and Woodman 1985, 1). A recent arena of scholarship in which a new map is emerging is that of international intervention. As Wilson and Bakker (2016, 290) observe, we now live in an “age of security” that not only engages with “violence meted upon people in the name of national and global security” but also encompasses “efforts to secure individuals and communities from “fear” or “want” in the name of “human security’’. Thus international intervention revolves around notions of security and insecurity, involving both military engagement (Smith 2014) and processes of peace-building (Selby 2013), as well as the management of crisis relief for those in need (Mascarenhas 2017).

In examining the US led intervention in Afghanistan, Smith (2014, 144) highlights the actions of an assemblage of different actors connected to differing spheres of activity where intervention represents “a condition of polylegality in which the transplantation or imposition of law produces spaces and places crosscut by multiple, overlapping legal orders”. Under these conditions of multiple assemblages, what emerges is the extent to which multidimensional peace keeping missions “are increasingly hybrid affairs that manifest novel linkages between, and even the fusing of, security and development programs, military and civil functions, public and private entities, state officials and private contractors” (151). In exploring peace building as a reconstructive exercise, framed on notions of justice and security, Selby (2013, 80) observes, that the liberal narrative upon which it proceeds “is only sustained by the abstraction of peace-building from its broader war-ending contexts, which are not explicable solely in terms of liberalism”. In analyzing contemporary peace interventions Selby (2013, 81) notes that they” are not normatively consistent, and are not essentially liberal” so that “the myth of a liberal peace-building discourse……is just that, a myth”. In addressing charity and humanitarian aid Mascarenhas (2017, 3) documents how this “aid” has been acquired and circulated through “the unprecedented rise in non-governmental organizations (NGO’s) and their interconnected response with donor (Northern) governments and the business sector”.

Reconceiving a paradigm of law

By emphasizing the linkages between differing sets of actors in humanitarian intervention, the above studies undermine, in different ways, any form of analysis of law that is based on a paradigm of the nation-state and its sovereignty or on the assumption that clear distinctions can be drawn between state and non-state actors. As Wilson and Bakker (2016, 291) observe, “Western notions of a clear separation of powers are not easily transferable or even appropriate in contexts in which multiple actors, state as well as others, provide justice and security”. In doing so, they argue that there is a need to “move beyond simple state non-state binaries in the analysis of complex networks of actors working in security spaces” (293). This is because, as Mascarenhas (2017, 139) notes, “the overlapping and active participation of state, market and civil society in the implementation of new humanitarianism under neoliberal logics has all but made these traditional institutions of modernity indistinguishable from one another”.

In following the interconnections or relational aspects of the production of security, all these scholars highlight the need for empirical research. Thus Wilson and Bakker (2016, 291) draw attention to the need for “empirically grounded studies” that will attend to “the everyday practices of security arrangements in the contemporary world” (289) in order to “address the need for a more nuanced analysis of security as a decentered and distinctly contextualized practice” (291). From the perspective of peace-building, Selby (2013, 81) argues for a methodological shift from the established, familiar narratives associated with it “to contextualized studies that attend more fully to heterogeneity and inconsistency of contemporary war-endings and peace processes”.

The theoretical and methodological approaches promoted by these scholars allow for a move away from a standpoint that treats groups of actors and social entities as reflections of an internally coherent and bounded set of domains that are geared to address pre-determined objects such as security, justice, or poverty. Instead, they explore relations between actors, entities or domains. They foreground the interactive dynamics that are at work in mutually constituting, reconstituting or reconfiguring such entities in an ongoing process that engages with law. Comprehending the dimensions of what this entails offers a “better perspective on the realities of security provision…in which forms of legitimacy, authority, moral and legal accountability are ambiguous, overlapping and contested” (Wilson and Bakker 2016, 295). This type of orientation is one that has been applied to research in other areas involving the dissolution of disciplinary boundaries. For an example of this type of scholarship see Bens and Vetters (2018) on reconnecting anthropological and sociological traditions through transgressing disciplinary boundaries between legal anthropology, legal sociology and the anthropology of the state in the ethnographic investigation of official law. Their article forms part of a special issue of the Journal of Legal Pluralism and Unofficial Law titled “Who is afraid of official law? Reconnecting anthropological and sociological traditions in ethnographic legal studies”.

Rethinking legal pluralism through concepts of space and time

In my own work, involving research carried out on and off in Botswana over thirty years, I have moved towards engaging with legal pluralism through the use of concepts such as space and time. This is reflected in my recent book Transformations on the Ground: Space and the Power of Land in Botswana published by Indiana University Press in 2019. The book formed part of an international project on Framing the Global at Indiana University’s Centre for the Study of Global Change, funded by Indiana University Press and the Mellon Foundation (USA). As part of our engagement the fifteen fellows were asked to pick a topic through which to frame the global and I chose land in Botswana. I did so because the pressure on access to and control over land and the uses to which it is put not only transcends nation-states, forming a core component of macro-perspectives engaging with war, famine, economic migration, sustainable development and trade and commerce in the global market place. It also, at the other end of the scale, forms a critical component at the micro-level of individual, family and household provision for shelter, livelihoods and processes of capital accumulation.

The legal landscape in Botswana relating to land

Approaches to land in Botswana are shaped by the country’s encounter with colonialism. Known as the Bechuanaland Protectorate, it was under British indirect rule from 1885 to 1966, when it acquired independence. It inherited a framework within which the use, control over and allocation of land was regulated according to how it was classified. As a result three types of land tenure exist. The first involves tribal land held in customary land tenure under the Tribal Land Act (Cap 32.02) enacted in 1968, repealed and re-enacted in 2018. This Act recognised the communal forms of tenure that are the basis of Africans relationship to land. The second type is state land, previously crown land administered by the Bechuanaland Protectorate. Most of this type of land is found in the urban areas. The third type of land is freehold land, created for settlers during the colonial era. This type of tenure recognised individual ownership in land with a right to free and undisturbed possession, largely in relation to agricultural land.

The different types of land tenure have different legal rules governing them. They are the product of different spatial and temporal logics that reveal how social and property relations are maintained at any given historical moment, providing scope for differing and contested claims to land today. Among these systems a major distinction is drawn between tribal land, that is communal land (which is 70% of the land in Botswana), and state or freehold land.

The former, tribal land, while enshrined in statute, derives from understandings about oral, unwritten customary law as compared to the written statutory laws that apply to state and freehold land. All three systems have their roots in the colonial past. As Chanock (1985, 5) has noted, law was the “cutting edge of colonialism” and it continues to play a major role today in the way that land is handled. It combines aspects of unwritten customary law that apply to “tribal” land as well as statutory law (involving registration of title) derived from European and Cape Colonial law. Indeed Morolong and Ng’ong’ola (2007, 143) observe, in relation to Botswana, that “the unique features of contemporary tribal or customary land tenure in Botswana can be retraced to the manner in which the country’s plural land tenure system was constructed during the first few decades of colonial rule”.

The power of law in regulating access to and control over land

This land tenure system was one that promoted a particular colonial vision of social order and property rights that has come to reflect traditional legal orthodoxy when it comes to property rights. It reflected an ideological quest for power through the inscription of law on territory. For as von Benda-Beckmann, von Benda-Beckmann, and Wiber (2006, 2) observe, property regimes” cannot be captured in one-dimensional political, economic or legal models”.

Nonetheless, the colonial model of law sought to make them so by creating separate legal regimes that distinguished between, and that were applicable to, the colonizers and the colonized. This approach that embodied separate and parallel systems of law (Hooker 1975), was one in which one land regime applied to the colonizers while another applied to the colonized assigned to “tribal areas” by their colonial overlords.⁴ As a result colonialism “created and maintained boundaries through dualistic or pluralistic legal structures, boundaries in physical space defined and managed by laws and regulations” (Home 2012, 9). This resulted in complex relations to land through spaces embodying territorial, political, economic, and social relations. These underpin contemporary dilemmas that transformations over time have brought about with regard to pursuing policies on land and legal reform.

The spaces of law and its temporality

What is at work here are multiple networks of relations that cross bounded domains. In these circumstances it is necessary to spatialize law, or to perceive of law as inhabiting multiple spaces. The advantage in adopting this approach to law in terms of space, is that it not only denotes a physical, territorial place, but also represents a more intangible domain of social relations. For legal geographers law is inscribed in both domains so that it is always “worlded” (Braverman et al. 2014, 1). Thus law and space cannot be treated as separate domains but are “conjoined or co-constituted” (Braverman et al. 2014: 1). The dynamics of space in this context make it clear that such spaces cannot be divorced from ideology or politics (Lefebvre [1974] 1991).

Time is also of importance, for as Blomley (1994, 24) observes, all “social and political life occurs in time and space”. While space is “the domain of things being, existing at the same time” (Massey 2013) it is clear that space and time “are intimately connected” (Massey 2013) and that space “cannot be divorced from time” (Crang and Thrift 2000:3). As Valverde (2019, 219) observes, “while legal temporalities and spaces or spatializations are often discussed separately, in large part due to disciplinary barriers…it is more appropriate to think about ‘spacetime’ of law and legal processes rather than engage only with either temporality or space”. The temporal and spatial dimensions of law are such that they involve a synchronic as well as a diachronic element, for the spaces within which social relations to land are created exist in a particular moment, that is simultaneously, as well as through time. This adds a significant dimension to the understanding of space that takes on a multi-dimensional aspect that undercuts linear notions of time and space.

Rejecting a linear model of space and time

While all law is situated in space and time, the ways in which formal, state-centered models of law and social-scientific models are configured by these concepts varies, with important consequences. For how space and time are conceived has an impact on how law is perceived and on its power to make claims to authority and legitimacy. The formal, state-centered model of law is one that is underpinned by a hierarchical and linear logic that drives its operation. The space that it occupies is singular, enabling it to lay claim to the power to deny any legitimacy or authority to any other co-existing spaces embodying forms of law or temporality that do not follow its template. Yet, as Massey (2013) observes, space is not a pre-determined, fixed entity, but is flexible and multi-faceted. She notes that where “space represents that dimension of the world in which we live”, it is one “within which distinct trajectories co-exist”. This perception of space is one that is in keeping with a view of legal pluralism that acknowledges the intersections of transnational, regional, and local norms that are constantly being negotiated at multiple levels in the production and reproduction of law. It represents an approach to space that scholars, such as Seidel and Elliesie (2020), have adopted in their edited collection on Normative Spaces and Legal Dynamics in Africa. Nonetheless, however, the formal, state-centered model of law continues to undermine this approach by endorsing one particular perspective on the space that its form of law embodies, which operates to the exclusion of all others.

At the same time, this state-centered model lays claim to a universality that is predicated upon a form of timelessness (Greenhouse 1989, 1650). This assumption is at the heart of what Fitzpatrick (1992) calls the ‘mythology of modern law’. It means that a particular type of law can be presented as neutral and “capable of balancing competing interests and engaging in value-free discourse” (Greenhouse 1989, 1462). Massey (2013), however, notes that a site in space “isn’t so much about physical locality as much as relations between human beings”. Understanding how these come together to constitute law is in keeping with a world beyond the nation-state, where more far-reaching forms of governance are at work, engaging with a whole range of transnational forms of law and ordering. These include a diverse range of actors involved in global, regional, and local networks of activity, institutions, and regimes of governance, as well as transnational social movements and associations. In these contexts, it is clear that legal claims cover many arenas and that the spaces they inhabit, engaging with the physical, territorial, imagined, and symbolic, are multi-layered. I use this perspective on space to highlight how the relationship between law and land in Botswana is constituted in ways that may vary, complement, overlap, or even come into conflict with one another at any moment in time.

However, The formal, state-centered model of law based on a linear concept of space and time continues to dominate conventional legal discourse. Its singular vision has a global reach. In the context of international development aid and intervention, for example, it promotes itself by classifying countries as “developed” or “undeveloped”, according to a number of prescribed indices that are taken for granted as setting standards for countries worldwide. The effect of this classification, according to Massey (2013), is to create a disjunction between countries. For in classifying a country as developing, the country is no longer viewed as being on par with developed countries, and thus, even though it exists at the same time in space as a developed country, its temporal location is as “a country which is following our path to becoming a developed country like us” (Massey 2013). What this form of categorization does, through a linear trajectory of time, is to deny “the simultaneity, the multiplicity of space” that would acknowledge the coexistence of such countries or states. For it effectively turns all these differences between countries into “a single historical trajectory” (Massey 2013) that follows an evolutionary, hierarchical course.

My research on land in Botswana rejects such a linear model of law in relation to space and time (Griffiths 2019). Instead, my research treats land as a site of action involving social relations that are embedded in space and time. This allows for a multi-dimensional, scalar perception of law that allows for the co-existence of differing perceptions. As von Benda-Beckmann and Turner (2020, 129) observe, “engagement with time, space and scale has generated new insights into plural legal structures and constellations in which people must operate”. In my research these perceptions are derived from a number of domains that range in scale from international agencies, such as the UN and the World Bank, to national institutions, such as the Ministry of Land and Housing, to district administration in the form of Kweneng Land Board and Bakwena Tribal Administration, through to more circumscribed units involving families and households located in Molepolole village. Understanding the range of factors that are at work here depends on where the focus is located and the different dimensions that come into play when it shifts. My analysis, therefore, explores the differential yet overlapping dimensions that are at work in governments’, institutions’, communities’, or individual households’ relationships with land because they involve questions of scale and projection. Thus the horizons they embody range along a continuum from more micromanaged and circumscribed parameters, to a more macro and wide range of considerations. As a result, the importance of certain elements will have a differential impact depending on the lens through which they are viewed. This is because the constellation of interests that operate in relation to land may differ considerably when addressed from a variety of standpoints. However, although these arenas vary in range and scope, they nonetheless have connective threads operating through the numerous forms of access, control and management of land. These embody a nexus of relations that take shape between families, communities, the state and the globe. Acquiring an understanding of the spaces they inhabit is important because it brings into view the ways in which differential access to land may occur among Botswana’s citizens that give rise to social inequality and exclusion. It also makes visible the ways in which actors seek to reinvent or revitalize the legal landscape by restructuring the legal spaces to which they have access.

Concluding observations

Law embodies a complex constellation of relations that create fluid and shifting domains for action. Its multifaceted nature underlines the extent to which legal spaces are embedded in broader social and political claims involving intricate negotiations which cannot be ignored (von Benda-Beckmann, von Benda-Beckmann, and Griffiths 2009b). It represents an arena in which the politics of space in relation to land is enacted and negotiated because, when engaging with the complexity and uncertainty of social life, "legal agents—whether judges, legal theorists, administrative officers or ordinary people—represent and evaluate space in various ways" (Blomley 1994, xi). Taking account of this requires the legal representation of space and temporality to be seen "as constituted by—and in turn constitutive of—complex, normatively charged, and often competing visions of social and political life under law" (Blomley 1994, xi). It is these connections, involving legal plurality, that I have explored in my research on law in order to present a picture of continuity and transformation in dealing with land over time and the dilemmas that this presents in Botswana today. In doing so, I hope I have contributed to the further development of legal pluralism that the editors of People’s Law and State Law envisaged.

Disclosure statement

No potential conflict of interest was reported by the authors.

Notes

Notes

1 For a more detailed discussion of what this entailed see Griffiths (2017).

2 This is defined as being “in relation to any tribe or tribal community so far as it is not incompatible with the provision of any written law or contrary to morality, humanity or natural justice’ under s. 2 of the Customary law (Application and Ascertainment Act) 51 of 1969.

3 Under s. 2 of the above Act, this is defined as “any law whether written or unwritten, in force in Botswana, other than customary law”.

4 In reality these systems were not were not separate and distinct from one another did not stand in isolation to one another but did interact. For a discussion on this see Griffiths (1997).