Environmental Engineering Reference
In-Depth Information
legal justifi cation once and for all (Minda 1995). Instead, law should be
defi ned as something that offers an insight into the community that law
is to serve (Donovan and Anderson 2003). This links to the idea devel-
oped by De Sousa Santos (2002) that law and justice, so far, have only
recognized one time-space dimension but, as De Sousa Santos argues,
society is regulated by a plurality of legal orders. Therefore law and
justice need to be understood not so much within the context of norms
and rules, but rather as narratives or rhetorics. As Gewirtz (1996) argues,
law is not just a mechanism that draws up policies that shape culture;
on the contrary, law becomes almost like an “artifact” that reveals a
specifi c culture. The central inquiry is about the story of law and not the
rule of law. The attention should subsequently be focused on those who
are the subject or object of law and specifi cally on those who, as Wright
(2001) argues, have been kept subordinated by formal law.
The point we are making is that the concept of environmental justice
can only work when comparable weight is given to each stakeholder's
perspective and value system. This equity is the prerequisite to achieving
true conciliation between different cultures of praxis. Although it poses
a great challenge, we fi nd great inspiration in the work of Leon Sheleff
(2000), who argues that custom is an important source of law for all
legal systems. For Sheleff, custom exists in the present; it consists of the
standards, norms, and criteria that a community fi nds acceptable when
seeking justice. As such, custom exists in any legal system, whether
a judge needs to make a decision in the high court or an elder needs to
make a decision in the xhotla (traditional courthouse in Botswana).
At the end of the day judges and elders alike must consider the sentiments
of the people when justice is being sought.
Notes
1. For concise overviews see, for example, Lenzerini 2008; Anaya 2003; Blaser,
Feit, and McRae 2004; Ivison, Patton, and Sanders 2000; Keal 2003; Venne
1998; and Battiste and Henderson 2000.
2. For an overview of Cohen's work, see Mitchell 2007.
3. For more information see Stephenson 2003; Wynberg 2004a, 2004b; and
Wynberg, Schroeder, and Chennells, 2009.
4. Band societies consist of a small kin group, which is usually not larger than
an extended family. Two main characteristics of band societies are egalitarianism
and consensus-based decision making.
5. Interview with Andriesvale informant, June 21, 2007, translated from
Afrikaans to English.
