Doctoral Dissertation Research: Dispute Resolution within Specialized Judiciary Systems

Indiana University, Bloomington IN

Investigators

Abstract

Scholarly examinations of legal systems have established that their efficacy depends on widespread conviction in their fairness, but have struggled to understand what influence claims of indigenous rights and sovereignty have on the judicial process. States have developed various strategies for the resolution of legal conflicts, including the passage of special domestic laws protecting indigenous peoples, adherence to international norms pertaining to indigenous and community rights, and the establishment of special court bodies to incorporate indigenous notions of justice. This research project, which trains a student in the methods of empirical, scientific data collection and analysis, explores the rule-making capacities of special tribunals designed to resolve disputes between the state and indigenous communities. Specifically, by concentrating on cross-cultural disputes, the project considers what these tribunals do to establish an effectively functioning and trusted legal system. J. Christopher Upton, under the supervision of Dr. Sara Friedman of the Indiana University, will explore what strategies are used in special tribunals, as boundary organizations mediating distinct social contexts, to resolve legal disputes. This research will be conducted in Taiwan where indigenous issues have recently emerged at the forefront of a national conversation about multiculturalism and national sovereignty. Taiwan occupies an anomalous place in the international system as a democratic self-ruling state that does not enjoy formal recognition from most other countries. Indigenous issues have unique salience in this context insofar as visible compliance with international norms provides an opportunity for Taiwan to assert itself on the world platform. As a result, Taiwan has recently created a special set of indigenous courts. These ad hoc tribunals are integrated into the domestic court system and are designed to resolve disputes involving indigenous litigants with greater sensitivity to their cultural differences. Using ethnographic methods, the investigators will study how these courts craft rules about indigenous customary practices. The investigators will examine the interactions of judges, lawyers, and indigenous litigants as they resolve disputes about indigenous customary practices, exploring how judicial proceedings open a space for rule-making to be a co-constitutive process, rather than simply as legal rights granted in a top-down fashion by the state. The research will be focused on a particular tribunal, collecting data over 12 months through participant observation in judicial proceedings; interviewing judges, lawyers, and indigenous litigants; working with local lawyers handling cases involving contentious indigenous practices; and reviewing case decisions. In sum, this research project considers the dynamic process of creating rules about indigenous practices using a specialized judiciary and what these specialized courts do to advance indigenous legal protections and secure a functioning and trusted legal system.