Evolving humanity, emerging worlds
Manchester, UK; 5th-10th August 2013
Makers, brokers, breakers: children and young people in legally plural worlds (IUAES Commission on Legal Pluralism)
Location University Place 4.213
Date and Start Time 07 Aug, 2013 at 09:00
Children and young people are increasingly claiming and exercising rights in various forms and fora. How do their rights conceptions differ in various cultural contexts? How do they act as makers, brokers or breakers of certain norms? What is the role and potential of 'children's rights'?
This panel focuses on children and young people as (relatively) new actors with norm-generating capacity. Children and young people are increasingly claiming and exercising rights in various forms and fora, the working children's movements being among the best-known examples. Questions that can be addressed in the papers include: How do children and young people engage with the plurality of normative orders impacting on their daily life and well-being? What are rights conceptions of children and young people in different cultural contexts? How and why do they act as makers, brokers or breakers of certain norms? What is the role and potential of 'children's rights', understood as the human rights of children, in relation to other (state and non-state) bodies of law? The panel aims to bring together theoretical and empirical contributions on under-researched issues in the relationship between children, children's rights and legal pluralism.
This panel is closed to new paper proposals.
Family dispute and plural legal practices involving young people with a migrant background: A case study in Belgium
This presentation looks at the ways families with a migrant background in Belgium resort to non-state normative frameworks and mechanisms of dispute settlement in the domain of family law, with a special focus on children and young people.
Unofficial legal pluralism in multicultural western liberal democracies, although a source of popular controversy, remains a largely under researched topic in socio-legal field studies, especially with regard to young people and/or children. This presentation explores the ways families with a migrant background in Belgium resort to non-state normative frameworks and mechanisms of dispute settlement in the domain of family law, a domain where minority values and practices may not always coincide with those of the state. In particular, the paper focusses on children and young people in family dispute resolution processes, both as potential 'right holders at risk' and as transformative actors navigating through and constructing socio-legal fields and norms. Examples of family dispute contexts involving young people include disputes regarding partner choice, dating and sexual behaviour, educational choices and values, as well as (other) situations where differing perspectives of the best interest of the child may enter into conflict, possibly in conjunction with (non-voluntary) state intervention.
Papers, families and conflicts: everyday life stories of Congolese children and young people in Belgium
This papers focuses on the daily negotiations of Congolese children and young people in a fragmented and plural normative framework.
Based on an ongoing empirical research conducted in Belgium, the paper will present how children and young people with a Congolese background experience and conceive the tensions between different normative constraints in their daily lives. Through their narratives, the paper will present the contested meanings family values are attached to in a plural and transnational setting. The paper will especially address the ways administrative procedures and residence permits impinge on family relationships, affects and duties in the trajectories of those children and young people.
The Best Interests of the Child in a Multicultural Context
This paper studies the open legal concept of ‘The Best Interests of the Child’ that is now massively referred to by family justice and assesses the impact of cultural diversity in the definition of this concept by Belgian judges when dealing with children and families from a migrant background.
The notion of 'The Best Interests of the Child' is one of the most mobilized concepts in family law and family justice. Cliché for some, key role for others, it still remains an open legal concept with fuzzy outlines that need to be shaped and delineated by the judges. If its vagueness certainly gives an influent power to the judges that have to fill the content of this general norm, it also leaves more room for considering the circumstances at stake in a multicultural family context and therefore to take the cultural background of the child into account when dealing with the case.
The aim of this work is then to define, by means of an empirical methodology, how judges apprehend the notion of 'The Best Interests of the Child' in a situation of legal pluralism and to assess if they consider the cultural diversity as a relevant feature in their interpretation of the notion, and under which circumstances. To answer theses questions, I am developing my fieldwork in local court ('Justice de paix') and the youth section of civil court ('Tribunal de première instance, section jeunesse') in Belgium. I am also conducting numerous semi-structured interviews with family judges in order to evaluate the potential and the limits of the general concept of 'The Best Interests of the Child' when facing cultural diversity and families from a migrant background.
State Recognition of Indigenous Customary Adoption in Canada: its Impact on Children's Normative Agency and Rights
This paper will use the case of the proposed recognition by the State of indigenous customary adoption in Quebec (Canada) to illustrate the impact of recognition of indigenous normative orders on the ability of indigenous children to be “internormative” actors and on their status as specific right-holders.
Following several years of consultation and debate, the government of Quebec has tabled a formal legislative proposal to recognize the legal validity and effect of indigenous customary law regarding adoption. The paper will explain how official recognition may somewhat paradoxically restrict the capacity of indigenous children to influence the choice of law regarding their adoption. The paper will also explore the complex implications of official recognition on the issue of determining children's rights and best interests. It will seek to demonstrate that cooperative legal pluralism based on a dialogue between western and indigenous legal traditions will be required in order to balance conflicting definitions of the role and status of children within the family.
African children in a legal vacuum
The legal and policy frameworks to protect the rights of vulnerable children in the family context will be discussed.
Since customary marriages are formalised in terms of the Recognition of Customary Marriages Act 120 of 1998 there is, on paper at least, no problem about the status of children in such marriages. There is a father and mother (the latter no longer inferior to the father) from whom they derive their status and rights and duties. Likewise, in civil marriages the status of the children is cut and dried.
Traditionally the legal status of children was regulated in the finest detail always from the point of departure that a child invariably belongs to a family. In Eurocentric language one could say that each and every child was under the guardianship and custody of a family head, mostly a male. However, as a result of urbanisation and disintegration of family life, things have fallen apart. The number of children left without parents nor belonging to a family is staggering. It has been reported that in 2009 two million school children lost both parents. About three million receive social grants.
I propose to discuss the legal status of these children in view of the conflicting predominant common (Roman-Dutch) law and customary law, pointing out that the dichotomy between the two systems has left many children in a legal void. The South African case will be compared with the situation in Namibia, Botswana and Swaziland, where Roman-Dutch law was also inherited alongside of customary law.
Contested norms, contested discourses: body piercing among the Czech youth
Using the example of body piercing among the Czech youth attending high school, this paper deals with youth perspective on cultural practices perceived as counter-normative by the dominant society. It will focus on how norms are shaped by contesting discourses and how the youth use their agency in transgressing, negotiating and re-establishing these norms.
Many cultural practices of the youth are often interpreted as transgressive or counter-normative, particularly by the dominant society. Using the example of body piercing among the Czech youth attending high school, I will try to show how these practices are interpreted by the piercees themselves emphasizing the difference of norms established by these two discourses.
I will argue that to understand youth cultural practices like body piercing which are seen as counter-normative, it is necessary to understand how these practices are interpreted in different and contesting discourses. Only then it is possible to see and acknowledge the agency of youth in transgressing, negotiating and re-establishing the norms. I will furthermore argue that these interpretations are significantly shaped by the concept of youth prevalent in different discourses, which to some extent, however, influence each other.
Assessing the interaction between (scholarship on) children's rights and legal pluralism
This paper critically assesses to what extent and how law and scholarship on children's rights and legal pluralism have engaged with each other.
This paper takes a two-pronged approach. On the one hand, legal anthropology has deepened our understanding of the dynamics at play between various legal orders. From a legal pluralism perspective, it is assessed how children and their rights have been considered in (legal) anthropological scholarship. On the other, children's rights have gained considerable leverage at the international level, particularly since the adoption of the United Nations Convention on the Rights of the Child in 1989. Questions arise as to the relevance and impact of children's rights in legally plural settings, and to what extent this has been taken up in research.
This panel is closed to new paper proposals.