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Universiteit Leiden: Aantekeningen Law, Culture, and Development
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Aantekeningen voor het vak Law, Culture and Development voor gelijknamige minor aan de Universiteit Leiden.
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Notes on Law, Culture, andDevelopment
Week I:
Lecture 1A, 7th of September:
China has a lengthy symbolic preamble that stresses its history. Its constitution marks the
organisation of the state, but does not name its checks and balances. It is communist of nature,
but art. 15 brings back private economy. Human rights are included in the constitution, but
courts are not allowed to refer to the constitution, even if a case contradicts the constitution.
Hence, individual protection is still low. In China, the most powerful organ is the National
People’s Congress, which is interchangeable with the Communist Party of China.
Indonesia’s constitution stresses the importance of religion (six different ones that recognise
each other’s freedom to believe in their own gods) and the role of traditional communities
(right to customary law, as to make their own decisions on their own land).
South Africa’s constitution is foremost a response to apartheid and a political powershift, as
seen from emphasis on equality, diversity and human rights, and the protection of property (of
relatively more wealthy white people). Additionally, there is a Constitutional Court as
propagated by the whites of South Africa so that their rights would be constitutionally
protected. There is also customary law of traditional communities, but it ought to be in line
with the Constitution.
Lecture 1B, 10th of September:
A socio-legal approach looks at the interaction between law and society, how law is
formulated and how it works in practise, and the perspective on law of both the state and the
individual (as some legal systems like sharia have a very normative character, which may not
entirely be followed by those ruled by this legal system).
Formal rule of law are formal, procedural rules that the formulation of law has to meet, whilst
substantive rule of law also has normative considerations included. The distinction between
these two categories are not clear-cut, as it consists of a spectrum which adds on the
characteristics of previous categories. These categories can be viewed hereunder:
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,The following formal categories can be defined:
o The rule of law: law is the means by which the government conducts its affairs.
o Formal legality: law must be capable of guiding the behaviour of its subjects. Hence,
it needs to be prospective, general, clear, and certain. It works via the mechanisms like
an independent judiciary, review of officials and open and fair hearings.
Problem: the lack of morality; ex. the Apartheid regime in South Africa had a rule of
law created by a minority. However, law without formal legality creates a situation
where individuals may worsen off, as they can fight the moral character of laws
enacted via formulated procedures.
o Democracy and legality: the justice of law is guaranteed by the procedure by which it
comes about (Habermas). Law is created by a majority, but still may still lead to
misuse and abuse by a majority to suppress a minority.
Hereon there will be substantive versions of the rule of law, which include formal elements.
There will be underlying political principles that communities share, and which legislators
have encapsulated within laws. If these laws conflict, or if there are gaps, judges ought to be
able to apply the law consistent with these underlying political principles.
Problem: a society at large will never completely concur on underlying political principles
and are thus always contestable, as shown by the fierce disagreement over abortion in the US.
These principles will thus not be internally coherent for judges to refer to, leading to non-
decision or judges pushing their own preferences.
The substantive categories add individual rights, rights of divinity and/or justice (like
freedom of association, press, etc., which are for a broader group), and social welfare (which
adds a requirement for the government to actively improve the welfare of its citizens.
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, Week II:
Lecture 2A, 14 th of September:
Law may function as a tool to promote social and cultural change.
Female Genital Cutting is used as a more neutral term. Shell-Duncan et al (2013) wonder if
legislation will halt this practice. They present arguments about the case that legislation may
turn out to be counterproductive, such as moving it to secrecy that leads to health risks
(unintended negative consequences).
Female Genital Cutting knows no positive health benefits, but it does have many negative
health consequences.
The paper chooses Senegal because of the prevalence of FGM and regional/ethnic differences.
Laws can have a positive impact via the effect of enforcement, and via the
communicative/symbolic function of law.
The law and economics paradigm focuses on state law and has the assumption that this law is
known and understood, and that citizens will account for law in their individual choices. On
the other hand, the law and society paradigm starts from the reality of legal pluralism
(meaning that different laws coexist and affect individuals) and states that knowledge and
understanding of the law is an empirical question. Hence, there will be other factors that affect
individual decision-making, such as the legitimacy of the law and state, or other social norms.
Conclusion Shell-Duncan et al (2013): in communities were FGM was contested/change was
underway, law strengthened those in favour of abandonment: ‘an enabling environment’.
However, ardent FGM support did not deter from the practice, but moved it underground.
This created anxiety among practitioners, which allowed for community meetings to talk
about the practice.
Grijns & Horii (2018) see child marriage as a problem to human rights and as a development
issue. Religious groups in Indonesia saw a minimum age of 18 as too high, as they believed
maturity is reached when one is physically and mentally mature.
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