What is legality?

One of the tasks of researchers and practitioners working on informal mining and ASM is to reconsider what is generally seen and described as illegality or illegal use of mineral resources. Here it is important to draw on the body of literature by social scientists who suggest that law itself is not just time and context-specific, but also socially constructed and is intimately associated with sovereign power. Until the medieval period, different written and unwritten laws, inhabited the same public space, and some of them could even be conflicting. However, from late medieval period onwards, law became the monopoly of the state. Some customs, moral values were turned into law but they did not necessarily always reflect the actual customs because they were moulded to suit the requirements and interests of the officials and the legal systems.

As the private and public domains emerged during the 17th and 18th centuries, some aspects of customs were banished. The monopolisation of law by states in Western Europe reduced the many and pluralistic ways human lives were ruled. In many colonial countries, new sets of laws were produced through colonial domination. These scholars suggest that the legal systems were used as an institutionalised apparatus of power; for example, Walter Benjamin (1978: 295) suggests law-making is power-making, and to an extent an immediate manifestation of violence. Seen from this perspective, what is commonly seen as illegal mining in ASM would appear different. Most Asian countries, for example, have a very long history of mining, but colonial rule has obscured the tradition of mineral-extraction or demonised these communities.

A broad rethinking of illegal mining involves understanding first the diversity of the context: that makes it imperative to understand the mineral governance framework in each country, how mining developed historically, and what the current environmental situation and social fabrics are in these areas. It is also essential to understand the contemporary economic policies in individual countries to contextualise the nature of illegality in mining. Secondly, a rethinking would involve thinking about the specific nature and the materiality of individual minerals. Different minerals and metals occur in nature in different manners, are extracted in different ways, and their different material specificity gives rise to different political economies, specific political ecologies, and specific historical trajectories of mining in local contexts.

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