Theoretical Challenges Posed by an Alternative Practice of Law

Within the context of the "Interafrican Meeting on Alternative Legal Practices" (Cotonou, Benin, October 1992), Manuel Jacques, director of QUERCUM (Development and Legal Studies Center)in Chile, presented the Latin-American experience regarding legal services. The South-South dialogue produced a shared observation: the existing law does not help to solve the Third World’s problems. With the African participants, Mr. Jacques contributed to a debate on the search for new ways of thinking, imagining, and creating law.

Theoretical challenges arise from the practice, the main ones being:

1)Putting an end to the myth of law. This myth has to be unveiled by means of a theoretical discussion aiming at developing critical awareness.

2)Law and social transformation. The time has now come to distinguish between a logic of consolidation of the system by the means of law on the one hand, and another logic according to which law would be a strategic resource for transformation on the other. The first logic stems from a legalistic conception of law, in which law is a defense mechanism and only a court verdict can settle a conflict. In the second logic, one of transformation, the concept of law is associated more with the idea of the "juridical", which differs from the "legal"; it is closely akin to what one could call the "rights of everyday life": namely, all these unsatisfied needs which the underprivileged population is not yet able to identify as juridical problems. From this point of view, to defend doesn’t mean any more to represent a client in a law case, but to give a legal education, and it is linked with organizing, training, proposing pluralist norms and striving towards alternative solutions to conflicts.

3)A critical questioning of generally accepted ideas.

Legalism, or legal formalism, an ideological consequence of Kelsen’s "pure theory of law", consists in liking laws for their form, without consideration for their content. Various beliefs originate from this attitude:

- law is a monopoly, an oracle of legal knowledge, with the effect of marginalizing any other legal knowledge not written down in the law;

- law is a synonym for truth, although laws can be false, which shows the necessity of confronting knowledge and understanding, and the artificial separation between the subject and the object of law; - a traditional conception of law, in which it acts as a social discipline, within the framework of the "control-correct-punish" trilogy, the creative, socializing and liberating roles being excluded.

4)Legal pluralism and normativeness. Several legal systems can converge in a given society, as they answer to social diversity. The most evident case is that of societies with ethnic minorities. The idea of minorities’ law should not be understood as a normative prescription imposed on everybody, but as a harmonious, pluralistic convergence. A broader conception of legal pluralism also exists, which takes into account not only customary law, but also situations of social self-regulation, such as certain mechanisms of the grassroots or of the hidden economy, which until now have remained excluded from the sources of normativeness.

5)Material validity of the law. In the case of the formal validity of the law, its effectiveness is understood as its passive application, whereas in the case of its material validity, the effectiveness of the law implies an active application, with the community itself implementing its own laws, as a subject able to formulate its own propositions.

6)Tension between the legal and the legitimate. This problem cannot be solved without including in the discussion the notion of "power", as the "capability of having an influence on decisions by one’s own proposal". Without the capability of influencing, there is no power. How can grassroots exert this capability, in order to create a genuine legitimacy?