| Subject: |
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Re: Legality in intercultural encounters |
| Name: |
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Wim van Binsbergen |
| Date Posted: |
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Feb 5, 05 - 2:06 PM |
| Email: |
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binsbergen@fsw.leidenuniv.nl |
| Message: |
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dear joanna
thank you for your letter.(...)
the question of legality scarcely inters the argument of Intercultural encounters, the book is only 610 pp anyway. legality however, has been very much on my mind the last few years (and before), for instance in my edited collection The dynamics of power and the rule of law (2003), and in my edited collection on the Truth and Reconciliation COmmission of South Africa (2004: Truth in Politics). Much of this can be found in my webpages, if you would use the internal search engine. Also my argument on Reconciliation in Intercultural encounters is very relevant.
coming to your question, I think that the painstaking reconstruction of original rights and land claims as could result from anthropologically enlightened historical research, could reveal facts that otherwise would not have entered legal deliberations, and could serve at the subject matter of academic advocacy. however, two problems arise.
a. how can the academic advocate or historian make a convincing claim to objectivity?
b. usually, the original legal title, land claim etc. is made within the context of a legal system that is no longer that under which that claim is now voiced today, in a legal system that is eroded, plural, enforced by the postcolonial nation state and international treaties in stead of by a local chief, king or paramount; the plurality of the legal systems at hand makes that there is a conflict of relevance, applicability, proof, testimony, context, implication, jurisprudence etc. this cannot be overcome just by pretending that the past is the present, and that today's pluralism is really the heir to past local legality.
i would therefore advocate a two-pronged approach:
a. in the first place, painstaking state-of-the-art historical research in legal anthropology, so as to get the facts right and restate the ancient claims within a reconstruction of the original context, its legal and cultural implications etc,.
b. an inspired attempt at reconciliation (see my piece on that topic in Interc. Enc), i.e. creative sleight-of-hand, where the realities and contradictions of today are not dissimulated, but inspire the adjudicator or arbitrator to find a noval solution that is a creative and acceptable compromise between the old rights, and the new realities.
perhaps, in the TRC collection, Salazar's piece on SA land rights is an example of what could be done here. his rhetoric is really close to my reconcliation as an innovative way out of otherwise irresolvable conflict
trusting this answers your question, and with best wishes for your studies |
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