Alexia Stainer, Grenoble, July 2010
The heterogeneous state is one with different systems (informal or customary systems alongside formal state institutions) operating side by side, usually in disjunction with each other.
The growing importance of international organisations, and the perceived crisis of the state that this has created can be considered to have reduced the centrality of the nation-state according to de Santos. The author makes no reference to states were centrality has never existed, but I think that the following statement can probably be applied to these as well. This perceived crisis of the state has created the space for the re-emergence of traditional authorities within some states: “These combined pressures have led to the combined decentering of the state, at an infra - and suprastate level. This does not mean that the state has ceased to be a key political factor. However, the ways in which the state is being contested and reformed transform it into a an increasingly complex social field in which state and nonstate, local and transnational relations interact, merge and confront each other in dynamic and even volatile combinations, making the nature of legal plurality even more complex.” (1)
The result of this reframing of state capacity and action has an impact on the official legal system, not only through the existence of competing systems but in perceptions of politics and legality. Different spheres of the state will be affected and transformed in different ways and at different speeds leading to heterogeneity of state action. The heterogeneous state is characterized by: “uncontrolled coexistence of starkly different political cultures and regulatory logics in different sectors… or levels …of state action.” (2) For example unlike economic regulation family law is not of global importance, but can be a matter of debate at the national level so these two sectors will undergo radically different pressures and the result is fragmentation.
The most significant factors in a heterogeneous state are:
A disjunction between political and administrative control over the territory and its people;
A lack of integration between different political and legal cultures governing state action and the official legal system;
Political and institutional upheavals caused by multiple ruptures occurring in rapid succession.
In terms of legal plurality, if we take this as an example of a sector that can undergo this phenomenon; it can occur at all levels, from the local to the global. In post-colonial systems the different orders are not so clearly demarcated from one another and therefore have higher tensions and conflict; but are also more likely to exert influence over one another: “the boundaries between the different orders become more porous and each one looses its “pure”, “autonomous” identity and can only be defined in relation to the legal constellation of which it is a part.” (3) The result of this is hybrid legal systems. The pressures that bring about this plurality have their origin in financial agencies and donors (economic), and in the NGOs that work on the ground (social).
There is debate on how to articulate the duality between the ‘modern’ and the ‘customary’ (if we accept that this distinction is valid); do these legitimacies need to be kept separate even if they are invested in the same person? Or should we just assume that hybridization between them is inevitable.
An example of legal heterogeneity in Mozambique is the functioning of the community courts. Community courts in Mozambique, though recognized by law are not regulated by it. They were removed from the legal system as this was perceived to be in accord with the idea of law that came in with structural adjustment policies in the 1990s though they are mandated to promote reconciliation and deal with minor disputes, and were designed to replace the popular courts of the revolutionary period. Many of the judges from these previous courts were integrated into the community court system, which has led to a strong association of the community courts with their predecessor and with Frelimo. These courts are under-resourced and in competition with other modes of conflict resolution (going from the police to traditional authorities and the church) and their success depends on the skill and innovation of a particular court: “Some courts function predominantly within an official, formal atmosphere whilst others assume and unofficial, formal atmosphere whilst others assume an unofficial, informal character. Some operate within a revolutionary logic, placing political loyalty above everything else, while others have fully accepted new times and the pragmatism demanded by communities mainly interested in peaceful survival. Some seek to affirm their autonomy in relation to the local administrative authorities… the religious authorities, and the traditional authorities, while others are totally subordinate to the administrative authorities and assume a multicultural character, resorting to traditional authorities in many cases, such as when dealing with witchcraft or family problems.” (4) The police often take a case to the court that they think is the most appropriate to deal with the matter in question.
The community courts technically operate outside the law, giving them a fairly open hand with which to operate, and how they use the legal traditions which are open to them depends upon their particular context and the pressures that operate on their functioning.
A concept that is closely related to that of the heterogeneous state is that of state hybridity. One possible distinction could be that within the concept of heterogeneity different systems (formal and informal) seem to operate separately, and it is when they start to interact and form a more unified system that they can be considered to belong to a hybrid political order.
Santos, B. (2006) ‘The Heterogeneous State and Legal Pluralism in Mozambique’ in Law and Society Review 40:1.
Clements, K., Boege, V., Brown, A., Foley, W., and A. Nolan (2007) ‘State Building Reconsidered: The Role of Hybridity in the formation of Political Order’ in Political Science 59:1 45-56.
(1) : p44, Santos (2006) The Heterogeneous State and Legal Pluralism in Mozambique.
(2) : p44, Santos (2006) The Heterogeneous State and Legal Pluralism in Mozambique.
(3) : p46, Santos (2006) The Heterogeneous State and Legal Pluralism in Mozambique.
(4) : p58-59 Santos (2006) The Heterogeneous State and Legal Pluralism in Mozambique.
This concept definition was developed as a result of the work carried out in the international conference Post-crisis state transformation: Rethinking the foundations of the state in Linköping, Sweden held 1-5 May 2009. This conference was run by Modus Operandi in collaboration with the Université Pierre Mendès France (Grenoble, France) and the European Science Foundation.