Research project TA/00/38 (Research action TA)
Problem to be Researched
The increasingly multicultural make up of the Belgian society confronts the state and its institutions with the challenge of unofficial legal pluralism, i.e. the co-existence, alongside state justice, of non-state normative frameworks and mechanisms of dispute resolution that are based on cultural and/or religious traditions. However, the nature and the forms of this kind of unofficial legal pluralism are not or not sufficiently documented yet. In order to fill in the current empirical knowledge gap regarding unofficial legal practices of significant migrant minorities, the research seeks to describe their actual extent and nature but also the potential importance taken by non-state norms in families of migrant background. On this basis, the research will offer a comparative framework in which to assess the extent to which these communities resort to Belgian state justice, to non-state fora, and to the state justice from the countries of origin. The research will seek to understand migrant communities’ ‘pathways to non state justice’, as well as consider these legal practices against the backdrop of the framework of human rights laws and norms. Based on this, it will investigate how possible areas of tension between non-state justice and human rights can be addressed and if and how legal diversity can be incorporated as a dimension of integration policies.
Goals and Objectives of the Research
The research aims to generate solid empirical knowledge on unofficial legal practices in the field of family law amongst relevant migrant communities in Belgium, and on the basis of this data, to identify policy options for Belgian policy makers to deal with unofficial legal pluralism, including both the protection of the individual rights of the members of these communities as well as minority group rights, e.g. the accommodation of legal diversity resulting from migration.
Its objectives are first, to map migrant communities’ unofficial legal practices, including: a) the Moroccan, Turkish, Congolese, Roma and Pakistani communities in Brussels; b) the Moroccan, Turkish and Roma community in Antwerp; c) the Turkish and Roma community in Ghent; d) the Congolese and Moroccan community in Liege. Secondly, to understand the perspectives of the users of these non-state legal frameworks and the stakes they have in them and to allow for an informed discussion of the possibility to accommodate legal diversity in Belgium. And finally, to identify potential areas of tension between unofficial legal practices and human rights and to analyze how they can be harmonized: a) in the context of the protection of the rights of individual community members and b) in the context of the protection of minority rights.
Methodology
Besides a desk-based literature review, the methodology of the research mainly consists in a field research. In order to understand migrant communities’ non-state pathways to justice from an ‘emic’ or insiders point of view, a variety of legal anthropological techniques will be combined, as follows: (1) Semi-structured interviews with representatives from migrant communities, religious and community leaders, social workers, and individual members of these communities which have experienced familial or conjugal conflicts. (2) Semi-structured interviews with key state actors about current policies and practices of the state towards unofficial legal pluralism. (3) A first round of individual semi-structured interviews and focus group discussions with members of these communities and non-state justice providers, in combination with the observation of non-state dispute resolution and the tracing of relevant cases (the extended case method), will serve the purpose of understanding the unofficial legal practices of these communities and the relationship between these practices and human rights. (4) In a second phase of semi-structured interviews and focus group discussions, the researchers will explore non-state justice users’ perspectives on the areas of tension with human rights that have been identified as well as the users’ perspectives on the need for accommodation of legal diversity. (5) A mid-term conference with state and non-state stakeholders will follow after the analysis of the data collected.
Expected results and products
The empirical data and the theoretical discussions that are generated in the course of the research feed the drafting of the final report which will include: (1) a mapping of unofficial legal practices per community, (2) a comparative analysis of the findings across the different migrant groups, (3) an exploratory analysis of the findings in order to situate the importance of the resort to non-state fora in comparison with the resort to Belgian family justice and other national state justice systems for each community (4) a discussion of human rights challenges and possible strategies to address them, (5) a discussion of current policies and practices of the state towards unofficial legal pluralism, (6) a discussion of alternative options to accommodate legal diversity in Belgium. An international closing conference will be held in Brussels, where the results of the final report will be presented in combination with academic presentations from other scholars studying legal pluralism in other European countries.
The products include a mid-term national conference, where preliminary results will be discussed with key stakeholders and a final international conference, where the research results will be presented to a broad audience of academics and policy makers.
