Engaging Legal Systems in Small-Scale Gold Mining Conflicts in Three South American Countries - Conflicts Over Natural Resources in the Global South - page 132

2009) or social, empirical legal pluralism (Hoekema 2005: 4). Official or formal ( de
jure ) legal pluralism indicates a situation whereby the existence of multiple legal orders
is reflected in national law. When looking at processes of engaging legal systems, the
distinction between de facto and de jure legal pluralism is essential. Hoekema argues
that “the moment local law is recognised formally as partner in the national legal
order, conditions for interlegality may change'' (2005: 4). When addressing questions
of interlegality the legal systems themselves become the focus of the research.
The concept of engaging legal systems fits in a social scientists' approach, which
understands law broadly as the cognitive and normative orders that are produced and
reproduced in a social field. Social scientists stress that in such fields, individuals and
groups can make use of more than one law to rationalise and legitimise their claims,
decisions or behaviours. 12 Falk Moore (1973:720) argues that such social fields are
semi-autonomous, by which she means that “it can generate rules and customs and
symbols internally, but it is also vulnerable to rules and decisions and other forces
emanating from the larger world by which it is surrounded'' (Moore 1973: 720). Legal
pluralism should therefore be understood “not as a plurality of separate and bounded
cultural systems, but rather as a plurality of continually evolving and interconnected
processes enmeshed in wider power relations'' (Sieder quoted in Simon Thomas 2009:
24). It implies that two or more legal systems operate in a social field at the same time,
and may appeal to people's values in different (sometimes conflictive) ways in similar
cases.
As our interest goes to the relationship between conflict and legal systems, we
will not exhaustively elaborate on the various ways in which one can classify legal
systems. Instead we turn to the question, when do law and rights become an issue
in conflicts about small-scale gold mining? Most of the time the root of the mining-
induced conflict has to do with claims for access and rights to the mineral or revenues
derived from its mining. Such claims are legitimised with reference to legal orders, be
they formal, customary or otherwise. The reigning mining rules are lived and created
by active agents who are constantly negotiating their own position within the social
field of small-scale mining. The conflicts arise when different actors base their claims
in different legal orders, or when legal orders clash or engage in conflicting ways. This
leads us to studying the engagement of different legal orders that operate in a mining
related conflict, how miners make use of these orders, and how engaging legal orders
either cause or mitigate conflict.
Other conceptual distinctions are insightful here, such as the distinction made
between illegal (prohibited by law) and illicit (socially perceived as unacceptable) prac-
tices (Van Schendel and Abraham 2005). Accordingly, for example, it is illegal to mine
gold without an exploitation concession in most countries, but in many countries it is
licit and socially accepted that many people do. The illicit is subject to change, in time,
place and between states. Some actors may be involved in the contestation of the illicit
practice, especially when the legal boundaries are fuzzy, as is often the case in weak
states who take no effort to enforce the mining law, or when a mining law is absent.
12 This notion of choice is often linked to the concept of “forum shopping'' in anthropological
studies of legal pluralism. “Forum shopping refers to the choice one of the parties makes between
two or more legal systems and their authorities that are empowered to consider the case at hand''
(Simon Thomas 2012: 93).