Víctor M Muñiz-Fraticelli
- Published in print:
- 2014
- Published Online:
- April 2014
- ISBN:
- 9780199673889
- eISBN:
- 9780191752148
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199673889.003.0007
- Subject:
- Law, Constitutional and Administrative Law, Public International Law
Social-scientific legal pluralists have failed to provide criteria either for distinguishing legal from non-legal phenomena or for recommending for or against the recognition of a normative system as ...
More
Social-scientific legal pluralists have failed to provide criteria either for distinguishing legal from non-legal phenomena or for recommending for or against the recognition of a normative system as law. However, legal positivists approaching the concept of law from a more philosophical perspective have emphasized institutionality and the presence of self-proclaimed legal officials as a distinctive feature of law. These institutionalist criteria also figure prominently in the work of normative legal pluralists issued from legal theory and jurisprudence. Brian Tamanaha argues that legal pluralism should abandon any conceptual explanation of law, and default instead to a purely conventional definition. But as Kenneth Himma objects, this leaves us with a category too thin to be of use. I propose that law is most readily identified in confrontation with other legal systems. The intelligibility of one legal system to another presupposes certain conceptual criteria, but allows for conventional variability and development.Less
Social-scientific legal pluralists have failed to provide criteria either for distinguishing legal from non-legal phenomena or for recommending for or against the recognition of a normative system as law. However, legal positivists approaching the concept of law from a more philosophical perspective have emphasized institutionality and the presence of self-proclaimed legal officials as a distinctive feature of law. These institutionalist criteria also figure prominently in the work of normative legal pluralists issued from legal theory and jurisprudence. Brian Tamanaha argues that legal pluralism should abandon any conceptual explanation of law, and default instead to a purely conventional definition. But as Kenneth Himma objects, this leaves us with a category too thin to be of use. I propose that law is most readily identified in confrontation with other legal systems. The intelligibility of one legal system to another presupposes certain conceptual criteria, but allows for conventional variability and development.
