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Law and multiculturalism: When law crosses borders

Anne Hellum. Photo: Kristina Jullum Hagen, Kilden

- This is one of the major projects in legal anthropology today. The discipline arose as a part of legal science in the early phase of colonialism with Sir Henry Maine’s theory on the development of law. It expanded in the 1930s and 40s in response to the colonial administration’s need for clarity in the customary laws of the different tribes. Malinowski broke new ground: He was interested in both social and cultural aspects of law and saw law as embedded in social relationships(not timeless tradition). This position was further developed by Radcliffe-Brown who linked the study of law to kinship. Max Gluckman emphasized the similarites between principles of western and tribal law - for example the reasonable man standard. The “My Tribe” tradition of, among others, anthropologists who mapped out different ethnic groups’ customary laws, was in high demand by the colonial court administration. Anthroplogists have often been spokespersons defended indigenous peoples’ rights. Postmodern criticism, contrastingly, sees legal systems as hybrid products, as an interplay of local, national and global processes.

A gender perspective on different interpretations of the law

- What is your project within the program, Cultural Complexity in the new Norway?

- I am going to look at Norwegian law in relation to different groups’ interpretations of the law, especially where religion, gender and law intersect. A central question is: How can we secure people with different religious and cultural backgrounds the same legal status as Norwegian citizens, something we are obliged to do in accordance with human rights. Is a unitary legal system the way to go? Should we acknowledge different systems of the law? We have little systematic knowledge of how the “immigrant” norms and values are taken into account in legal and administrative practice. I want to establish a gender perspective on these problems because it epitomizes the conflicts both within human rights and within the different groups .

An important field is how the relationship between the majority and minority groups is communicated through the law, thinks Hellum.

- A theory is that some of the laws that are passed in Norway that are aimed at immigrants are unnecessary. Circumcision, for example, is already forbidden under the criminal code. Forced marriage is forbidden, both by Norwegian law and by Islamic Law, where marriage is seen as a civil contract between two voluntary parties. New laws are continually being passed in order to clarify our position towards immigrants and not because they’re strictly necessary. Many of these changes in the law have taken place without significant dialogue with those affected. We know little about how these processes are regarded in various immigrant communities.

“Not much difference between Norwegian and Islamic law ?”

A related question is what methods are utilised to give immigrants information on their rights in Norway. To what degree are their norms included in the communication process? In some respect there are, for example, not such a great difference between Norwegian and Islamic law. Forced marriage, for example, is not acceptable within Islam. My point is that we can make use of experiences with legal communication in pluralistic legal cultures both in Africa and Pakistan.

- Moreover, it is important to remember that we already have legal pluralism in Norway, event though formally speaking we have one uniform legal system. Informal local norms have always existed side by side interacting with formal law.

Ethnic Norwegian women’s de facto legal position has often been influenced by patricarchal customs and practices.

- One example is “kårkontrakter” (retirement maintenance contracts). These contracts give a previous owner right of housing, subsitance and care in old age from the new farm owner, often the oldest son. The new farmowner’s wife are not a party to the contract, but nevertheless in practice it imposes many duties upon them. Another example of legal pluralism is the Norwegian church which practices its own rules in areas where Norwegian law is applicable. The Norwegian church constitutes what Sally Falk Moore calls a semi-autonomous legal space. In this case semi-autonomous means that national law is not the only form of regulation. Social groups often have the capacity to generate their own norms. These groups are often so strong that their norms prevail over national law. For example, many church parishes do not follow the Gender equality act when filling vacant positions. In the same vein religious private schools often follow their own religious beliefs as opposed to the equality ideal embedded in Norwegian state law.

- How do you intend to proceed?

- I have started to build up a research environment at the Faculty of Law. A number of Masters’ and PhD students are conducting research on how the position of women is constituted in the intersction between human rights, national law and social, religious and customary norms. Most of these projects involve field work. Further, at the Department of Public and International Law we have recruited Shaheen Sadar Ali to strengthen our expertise within the field of women, human rights and Islam. Her lectures include a series on International Women’s Law each Spring semester. She is currently Professor of Law at The School of Law, University of Warwick, and previously Professor of Law and ex-Health Minister in a Province of Pakistan. She is one of the World’s leading researcher on the relationship between international women’s rights and Islam.

- Are Muslim student s also involved?

- Yes, one student has started a preliminary project with an eye on a Doctorate. She is herself a Muslim and moved to Norway from Pakistan several years ago. We have a number of Muslim students at the Faculty. I encourage students with this background to take part. It’s an advantage to have one foot in each camp.

Wishes for greater understanding for the importance of law in multicultural Norway

- Where does interdisciplinarity enter the picture?

- I encourage my students to do fieldwork. They also teach legal pluralism. Additionally, I have invited international lecturers with different cultural and professional backgrounds to teach our students. Within the Cultural Complexity project I am concerned with creating greater understanding and interest for legal questions and the meaning of law in multicultural Norway. Moreover, I am involved in a big interdisciplinary research project on democracy, human rights and religion with Professor Hege Skjeie. This project, which is financed by The Research Council of Norway’s (NFR) Women and Gender research program, will be conducted in close collaboration with the University of Oslo’s work on Cultural Complexity. Within this project we have recruited a research fellow who will immerse themself in the relationship between religion and equal opportunities within Norwegian and International law.

- What do you associate with cultural complexity?

- Neither law nor culture is unitary. We find different conceptions and understandings within different social, ethnic and religious groups. A single individual within a group is also complex and composite. This is reflected in composite identities, values and conceptions of norms. Women have a gender, a sexual orientation, a class and a religion. Local conceptions of norms and laws are created in the intersection of norms and expectations that become relevant in the various social contexts in which they arise. With such a point of departure the development of local norms can be understood as relational positionality.

- What blind spots are their in your field? What should there be more research into?

- The daily practice of Islam: In Norway we have focused upon high traditions, but not on lower traditions, for example how Islam is practised in the mosque and in daily life. We know little of how conflicts are resolved - only a very few cases come to court. It is an area where legal anthropology can contribute to knowledge of local norms and legal conceptions.

- A related topic is the practice of Islam in the diaspora. As Saima Bano has written in her doctoral thesis new traditions have emerged among Pakistani Muslims in England. In Pakistan marriage is a civil contract, but Pakistanis in England have established a tradition for religious wedding services and divorces. Some imams claim that according to Islam this is required. Yet in Pakistan where Islam is a state religion weddings are conducted in the homes. We can therefore talk of the “reinvention of religius law”. There is a great need for empirical studies of what is happening in Norway. We do not know about what political and religious networks different mosques are a part of and what influence they have on women’s situation.

- This brings us to transnationalism and its implications for continuity and change in gender relations.


Interview: Lorenz Khazaleh. Translation: Matthew Whiting