Law and Diaspora

A dominant positivist assumption of law would emphasise its derivation from the state as the source of authority, with the neutral boundaries of the nation-state authorised by law and in turn, the nation-state authorising the extent and limits of the law. In this context, it can be argued globalisation and increased migration troubles these legislative borders by calling into question legal subjectivities as they exist ‘outside’ the state, leading to the question: where do boundaries lie when different and alternative normative communities are recognised? However, it has been argued that to perceive of globalisation (and thus, diaspora) as a contemporary threat to the nation-state is to emphasise a linear narrative of law based on positivist and natural-rights assumptions which ignores historical evidence of legal pluralism, and that, indeed, “legal norms have always migrated across territorial boundaries” (Berman, 2007: 1185). Colonialism called for the development of a means of dealing with multiple jurisdictions across multiple spaces, necessitating the recognition of a legally pluralistic system - where a dispute resolution process, for example, could operate locally at a metaphysical distance from a colonial courthouse hierarchy (Karsten, 2002). These “layered constructions of sovereignty” recognised the authority of religious and culturally diverse communities as well as the reality that “conflicts continually shifted jurisdictional boundaries” (Benton, 2011: 58,60). This complex arrangement also ensured that settlers moving to establish a ‘new world’ abroad could make and remake legal orders linking them to their place of origin. In this sense, diaspora laws have a long history of plurality – or, as Santos would term it, ‘interlegality’ – and can be conceived of as a network of jurisdictions and the negotiation of legal subjectivities linked to a point of origin. On the one hand, this can perhaps be read as a reification of the centrist dogma which presents dispersal and diffusion as a concretization of nation-state legal practices, but if regarded from a constructivist point of view, it is perhaps more interesting to consider  the means in which diasporic communities negotiated (and contested) socio-legal constructions of their legal subjectivities.

Legal diaspora studies as a newly emergent field - within critical legal studies - draws on aspects of critical postcolonial theory to examine “challenges to law with respect to questions of power, hierarchy, wealth, poverty, diversity, equality, and justice” (Otto, 1999: vii). This theoretical and methodological approach calls for a re-examination of legal discourse, particularly as it relates to hierarchical colonial expansionism, decolonisation, and the ideological construction of legitimated systems of power (Said, 1993). A postcolonial perspective also necessitates a critique of positivist assumptions that situate law as neutral and objective, and emphasises its inherent inequalities and privileging of Western European knowledge (Fitzpatrick and Darian-Smith, 1999). As Roy argues, this approach:

has challenged the static monolithic categories constructed by liberal positivist law, and in doing so … insisted upon the necessity of recognising partial realities, subjugated knowledges, and subaltern positions (Roy,2008:320).

Within this framework, the dynamic contemporary effects of the interrelationship between colonized and coloniser and attendant systems of power, between territories and a supposed ‘centre’, provides a useful starting point from which to conceptualise the manifestations of diasporia laws. The idea of this discursive interrelationship as productive in the diasporic context is evident when considered in terms of remittances, for example. However, there is always the potential danger of being drawn back into colonial dichotomies, which may promote a restrictive framework for considering contemporary diasporic communities and their legal status.

So far, diaspora laws can be said to reinforce a sense of dualism – even if that dualism is dynamic, and interactive, or dialogic and fluid – in which the centre, or point of origin, remains a site of authority. A diasporan model of law has been proposed as a means of accommodating this dualism, paying due attention to the homeland- hostland dichotomy (Chander, 2001). This goes beyond the provision of dual citizenship, which reflects the dominant statist paradigm, to a more ‘hybrid’ model which “seeks to enfranchise diasporas as recognized legal subjects in the transnational legal process” (Chander, 2001: 1049).  Dual citizenship is, indeed, just one part of this model, which also suggests incorporating a ‘choice of law’, so that the diaspora could apply either legislation from their homeland or from their adopted land in the private sphere, and advocates a choice of fora for dispute resolution, for example. This is already practiced in certain minority communities, where the development of “hybrid adaptive strategies” through, for example, the establishment of religious courts or self-regulating family law councils to account for legal acts/rituals of ethnic minorities, observing spiritual codes and canon law outside the state legal system, so that within a diasporic community “multiple rule systems are complied with” (Shah, 2005:161). In addition, the diasporan model would allow diasporic communities to have the right to political representation in the homeland, as well as maintaining liberal immigration and free movement policies to ensure permeable borders to diasporic citizens. This can be seen in the case of the Indian diaspora, who have access to dual nationality through a system which recognises not only NRIs (Non-Resident Indians), but also PIOs (Persons of Indian Origin) to consolidate ‘bonds of solidarity’ with the diaspora and is provided for by Article 8 of the Indian Constitution (MOIA, 2001: 510). The diasporic link is similarly emphasised in the case of Israel’s Law of Return (1950), which entitles those from the diaspora to Israeli citizenship and the right of return and settlement.

The problem with this model, in some respects, is that it still emphasises a binary system which would neither be relevant nor productive for some diasporic communities. It could also be said to privilege a connection with a homeland over that of negotiating an active legal subjectivity that is, itself, diasporic (rather than an extension of the entitlements resulting from an expansive definition of dual nationality). POI recognition and the right of return also do not give indication of how a diasporic subject must negotiate multiple systems of law when in their adopted country, as their focus is instead on strengthening the link to homeland, rather than the effect a diasporic status might have on nation-state legislative structures abroad.

An alternative analysis of diaspora laws could be read through the perspective of postmodernism or poststructuralism, which moves away from a genealogical legal subjectivity to an emphasis on disconnection, or decentralisation. Contemporary legal theory is inherently pluralistic and interdisciplinary in this sense, in order to promote alternative and disparate readings of law. Whilst the current system of international law is mandated by states, by its nature it is an interlocking and plural legal system incorporating state, international and non-state normative communities, thus  denoting “jurisdictional complexity” (Benton, 2011: 64), so could be said to lend itself to readings which avowedly emphasise ‘troubled’ spaces and multiple narratives. For example, the recognition of ethnic minorities has increasingly become a major issue in international law as the delineation of borders fluctuates, and transnational activities operate across multiple jurisdictions; diasporic communities are now more visible than ever and thus the demand for representation and legitimacy is much higher. Within this context, legal pluralism – rather than transnational practices and the management of bi-state negotiations – should be the main focus of critique within diaspora legal studies: recognition of “multiple normative communities” (Berman, 2007: 1157) and hybrid legal spaces, and a challenge to territorial sovereignty as a singular source of authority. This could be enacted in, for example, the creation of pluralist mechanisms and institutions such as  “a hybrid domestic-international tribunal” or “subsidiarity regimes” (ibid,1167) as a set of discursive forms which recognise hybridity in diasporic communities. Such overlapping legal and quasi-legal forms is already recognisable in the adaptation procedures generated through interactions between the European Court of Human Rights and domestic courts and the ‘margin of appreciation’ doctrine, which allows for flexibility of transposition (Krisch, 2008). It is difficult to see, however, how autonomy (of the nation-state, and of the diasporic community) would be adequately protected, and how a jurisdictional hierarchy would be avoided. There is also the risk of splitting legal subjectivity to such an extent that any legal norm is automatically met with contestation, (as well as the possibility that, for example, the domain of family law may be considered a viable area for a pluralistic approach (see above) and thus is categorised as outside the state, just as criminal law remains within less permeable jurisdictional boundaries) and thus – particularly in the diasporic case – few delineations of legally protected stasis remain notably transparent. Yet, as has been made clear, this is not a new area of consideration: firstly, in the colonial context, as Berman notes, “the relationship between state and personal law frequently arose in colonial settings where western legal systems were layered on top of the personal laws and customs of indigenous communities” (1205) and secondly, most legal processes involve judgments based on concepts of (sometimes distantly inherited) citizenship and nationality, rather than contemporary physical links to location, and thus already betray a non-linear and fluid conception of legal identity. Berman observes that in many countries, such as Canada, there is “space for personal law within a nominally Westphalian legal structure” through the recognition of “parallel civil and religious legal systems, often with their own separate courts” (1206). The adoption of diaspora laws in post-communist regions can be said to be similarly situated on the basis of ethno-cultural recognition, and “have alternately been called a return to the medieval pre-Westphalian world of overlapping authority and multiple loyalties, a creation of “transsovereign nations,” and a creation of “fuzzy citizenship.”” (Shevel, 2010 : 162).

As Ford points out, “the lines don’t pre-exist the practices” (Ford, 2001: 202) : nation-state connections and the boundaries between them are lines which as “constantly being made real” (ibid) through the practices of jurisdiction, and thus a form of legal plurality (or transjurisdictionalism) in the study of diaspora laws or diaspora legal studies would reflect this discursive construction of jurisdictional authority. It is thus worth considering how legal discourse responds to diaspora, when examined in the context of the recognition that “jurisdictional presence is not physical but metaphysical” (212).

 

References

·         Lauren Benton. (2011). ‘Historical Perspectives on Legal Pluralism’. Hague Journal on the Rule of Law 3.1: 57-69.

·         Paul Schiff Berman. (2007). ‘Global Legal Pluralism’. Southern California Law Review 80: 1155 – 1238.

·         Anupam Chander. (2001). ‘Diaspora Bonds’. N.Y.U Law Review 76: 1005-1098.

·         Peter Fitzpatrick and Eve Darian-Smith. (1999) 'Laws of the Postcolonial: an Insistent Introduction' in Fitzpatrick and Darian-Smith (eds), Laws of the Postcolonial. University of Michigan Press : 1-15.

·         Richard T. Ford. (2001). ‘Law’s Territory (A History of Jurisdiction)’. In Blomley, Delaney and Ford (eds) The Legal Geographies Reader- Law, Power, Space. Oxford: Blackwell: 200- 217.

·         Peter Karsten. (2002). Between Law and Custom: “High” and “Low” Legal Cultures in the Lands of the British Diaspora. Cambridge University Press.

·         Nico Krisch. (2008). ‘The Open Architecture of European Human Rights Law’. Modern Law Review 71. 2: 183–216.

·         Ministry of Overseas Indian Affairs (MOIA). (2001). Report of the High Level Committee on Indian Diaspora(HLCID). Available at: http://moia.gov.in/services.aspx?ID1=63&id=m8&idp=59&mainid=23.

·         Dianne Otto. (1999). ‘Postcolonialism and Law?’. Third World Legal Studies 5.1: vii-xviii.

·         Alpana Roy. (2008). ‘Postcolonial Theory and Law: A Critical Introduction’. Adelaide Law Review 29: 315- 358.

·         Edward Said. (1993). Culture and Imperialism. New York: Vintage.

·         Prakash Shah. (2005). ‘Diasporas as legal actors: Implications for established legal boundaries’. Non-State Actors and International Law 5: 153-165.

·         Oxana Shevel. (2010). ‘The Post-Communist Diaspora Laws : Beyond the ''Good Civic versus Bad Ethnic'' Nationalism Dichotomy’. East European Politics and Societies 24: 159 – 187. [quoting Stephen Deets, “Pulling Back from Neo-Medievalism: The Domestic and International Politics of the Hungarian Status Law,” in Beyond Sovereignty, ed. Ieda and Majtényi, 17–36; Stephen Deets, “The Hungarian Status Law and the Specter of Neo-Medievalism in Europe,” Ethnopolitics 7, no. 2-3 (2008): 195–215. Zsuzsa Csergõ and James Goldgeier, “Nationalist Strategies and European Integration,” Perspectives on Politics 2, no. 1 (2004): 21–37. Brigid Fowler, “Fuzzing Citizenship, Nationalizing Political Space: A Framework for Interpreting the Hungarian ‘Status Law’ as a New Form of Kin-State Policy in Central and Eastern Europe,” in The Hungarian Status Law: Nation Building and/or Minority Protection, ed. Zoltán Kántor, Balázs Majtenyi, Osamu Ieda, Balázs Vizi, and Iván Halász (Sapporo, Japan: Slavic Research Center Hokkaido University, 2004), 177–238.]