Using the concept of hybridity to guide social change through legal means

Abstract

This paper discusses the potential of the concept of hybridity to be used to guide or inform law reform or regulatory reform in legally plural contexts. It argues such an approach starts with the conception of multiple fluid legal orders that spill over into each other and at any one time have the potential to go in multiple different directions. Taking this understanding as a starting point leads to potentially useful ways to consider difficult issues of social regulation through law, and this is explored through an exploration of gender-based violence in Vanuatu and Papua New Guinea. The paper sets out five design principles when considering a law reform project based on the insights of hybridity.

Keywords:

• Hybridity
• legal pluralism
• Vanuatu
• customary law
• gender-based violence

Notes

1. See Jayasuriya for an example of a focus upon institutional form.

2. Shachar, 388.

3. The results are published in Miranda Forsyth, A Bird that Flies with Two Wings (2009).

4. See Trubek, “Towards a Social Theory of Law, particularly,” 19, 20.

5. Krygier, “Legal Pluralism and the Value of the Rule of Law,” 22.

6. Goodale, Anthropology and Law, 28.

7. Petersen, “A Conceptual Unpacking of Hybridity,” 13.

8. Geertz, Works and Lives, 148.

9. Cover, “The Supreme Court, 1982 Term," 45.

10. See a useful summary by Ralf Michaels in Michaels, “Global Legal Pluralism,” 12–14.

11. World Development Report 2017, 84.

12. Cover, 47.

13. Van der Burgh, The Dynamics of law and Morality, 77.

14. Ibid.

15. De Sousa Santos, Toward a New Legal Common Sense, 473.

16. Fulu et al., Why do Some Men Use Violence Against Women and How Can we Prevent it? 2.

17. 2009 Vanuatu National Survey on Women’s Lives and Gender based Relationships, National Statistics Office.

18. Papua New Guinea National Strategy to Prevent and Respond to Gender Based Violence 2016–2025, 38.

19. The sexual offences laws were revised in Vanuatu in 2006 (Penal Code (Amendment) Act 2006, sections 3–16). For a comprehensive discussion of legal changes see Aletta Biersack, Human Rights Work in Papua New Guinea, Fiji and Vanuatu.

20. The Family Protection Act, was passed in 2008 although it was not gazetted and so in force until 2009. This legislative focus is widely shared across the Pacific: see Farran, “Gender, Equality and Pacific Island Countries with a particular focus on domestic violence.”

21. UNWomen, Women and Children’s Access to the Formal Justice System in Vanuatu. Some of the difficulties in gathering data in relation to these issues are provided in Lakhani and William (2016) who note that for example arrest were only made in 27.5% of cases reported in 2004 (17).

22. Biersack and Macintyre, “Introduction,” 34.

23. See e.g. Forsyth, A Bird that Flies with Two Wings; Policing and Justice Support program (Vanuatu), Conflict Management and access to Justice in Rural Vanuatu (2016); Dinnen, Law and order in a Weak State; Corrin Care, “Reconciling Customary Law and Human Rights in Melanesia”; Randall, Awareness Raising on Court Rules relating to Domestic Violence in Vanuatu.

24. John Griffiths, Is Law Important? 54 (1979) New York University Law Review 339, 345–51; William Twining, Normative and Legal Pluralism: A Global Perspective (2010) 20 Duke Journal of Comparative and International Law 473–517.

25. Gunningham and Sinclair, “Designing Smart Regulation.”

26. Brian Tamanaha argues

If a state legal system is stuck in a dysfunctional state, viewed negatively by the populace, with reform efforts persistently failing, it is sensible to explore alternatives that might satisfy legal functions. But the development community has been slow in coming to this realization.’

Tamanaha, “The Rule of Law and legal Pluralism in Development,” 4.

27. Cover, 66.

28. See Bal, “Kumo Koimbo.”

29. Gibbs, “Practical Church Interventions on Sorcery and Witchcraft Violence in the Papua New Guinea Highlands,” 312, 313.

30. The difference between constructivist and a rationalist accountings of law has been well explored by Trubek et al., “‘Soft Law,’ ‘Hard Law,’ and European Integration,” 8, 9.

31. Cover, 4.

32. Cover, 12.

33. Berman, “The New Legal Pluralism,” 228.

34. Engle Merry, “Legal Pluralism,” 869–896, at 889.

35. Shearing and Ericson, “Culture as Figurative Action.”

36. Zorn, “Translating and Internalising International Human Rights Law,” 263.

37. Melissaris, 76.

38. De Sousa Santos, Toward a New Legal Common Sense, 472.

39. Cover, 8.

40. Bakhtin, The Dialogic Imagination, 360.

41. Fiona Hukula, Village Courts in PNG, presentation at the ANU 7 December 2016.

42. Green, How Change Happens, 17, 18.

43. The 2016 study of access to justice in rural Vanuatu found that 67% of the communities on one island (Malekula) had bylaws. See, 97.

44. In other words not seeking them as part of the focus of a dedicated research project but being alive to the possibility of their existence during the course of other research.

45. Lowonbu, “Blacksands ‘deportation’ bylaw could be introduced,” 3.

46. Michaels, “Global Legal Pluralism,” 23.

47. Lowonbu, “Blacksands ‘deportation’ bylaw could be introduced,” 3.

48. Pettit, “A Republican law of Peoples,” 82.

49. See Amar Acheraiou who like many others criticises an overly optimistic view of hybridity: Acheraiou, Questioning Hybridity, Postcolonialism and Globalization.

50. Petersen, “A Conceptual Unpacking of Hybridity,” 19.

51. Anker, A Declaration of Interdependence, 23. See the discussion in Richmond and Wallis this volume.

52. Anker paraphrasing Hans-Georg Gadmer, 23.

53. An-Na’im, “Towards a Cross-Cultural Approach to Defining International Standards of Human Rights,” 68–85, 70.

54. See Richmond and Wallsi this volume.

55. Ibid., 83.

56. Gavetna, “Finding the Spaces for Change,” 27.

57. Forsyth, A Bird that Flies with Two Wings. The Vanuatu Women’s Lives also Survey (2011) found: ‘the majority of women condone or sanction some level of physical violence by a husband/partner (Table 4.18 and Chart 4.26). Almost 2 in 5 women (38%) believe that violence is justified if the wife is unfaithful. More than 1 in 3 (34%) believe that violence is justified in cases of disobedience, and 28% that it is justified if her husband thinks that ‘she needs to be disciplined, taught a lesson or educated.’ Vanuatu Women’s Centre and Vanuatu National Bureau of Statistics, Vanuatu National Survey on Women’s Lives and Family Relationships (2011), 82.

58. Marian Valverde, Chrontopoes of Law: Jurisdiction, Scale and Governance, 11. Routledge, 2015.

59. See Valverde, Chronotopes of Law, 26. Even the constructs of ‘classical civilization’ have been exposed to show non-European foundations, including the contributions of Egypt and Africa, Semitic and Phonecian civilizations, Mesopotamia and Persia, India and China, regarding language, arts, knowledge, religion and material culture: see de Sousa Santos, 280.

60. Iris Marion Young, The Ideal of Community and the Politics of Difference. Social Theory and Practice 12, no. 1 (1986): 1–26, 17.

61. Cover, 39.

62. Melissaris, 72.

63. Melissaris, “The More the Merrier?” 58.

64. Ibid., 59.

65. Ibid., 60.

66. See Melissaris’ criticism, 71.

67. Berman, “Towards a Jurisprudence of Hybridity,” 18.

68. Ibid., 13.

69. Ibid., 15.

70. This is my take away message from the debate between Berman and Patterson.

71. De Sousa Santos, 474.

72. Ibid., 273.

73. Ibid., 289.

74. UN Report, 20.

75. Iyengar, “Does the Certainty of Arrest Reduce Domestic Violence?”; Leigh Goodmark, Should Domestic Violence be DeCriminalised? (forthcoming 2017); Sherman and Harris, “Increased Death Rates of Domestic Violence Victims from Arresting vs. Warning Suspects in the Milwaukee Domestic Violence Experiment.”

76. This phenomenon has also been noted as occurring in developed countries, See Ford, “Prosecution as a Victim Power Resource.”

77. Shell-Duncan et al., “Legislating Change?” 832.