Search Results

This chapter focuses on the complexities that emerge in the system of global governance following the acceptance that indigenous peoples are ‘peoples’ with a right to self-government through (indigenous) law. The chapter proceeds as follows. It first provides an overview of the adoption of the UN Declaration and its status in international law, before examining the provisions on shared government and self-government. The Declaration reflects a condition of legal pluralism, and the chapter examines the meaning of the idea before considering its relevance beyond the state. It concludes on the need for a distinction to be made between normative pluralism and legal pluralism, and in doing so, develops a concept of law that applies to state law, international law, and the laws of indigenous peoples. The chapter then returns to the question of the conflict of law norms in conditions of global legal pluralism, complexity, uncertainty, and reasonable disagreement. It argues that legal orders should approach the question of the conflicts of laws from the perspective of democratic legitimacy. It questions whether it is appropriate to apply this ‘meta-perspective’ to the position of indigenous peoples, and concludes with a number of observations on the right of political participation for persons belonging to indigenous peoples in the fragmented system of global governance.

This chapter draws upon debates about the concepts of ‘interlegality’ and ‘multicultural interlegality’, to analyze the ways in which Muslim legal pluralism in matters of family law are negotiated and renegotiated between and within the limits of state and community laws. It begins with a brief discussion on the limits of traditional legal pluralist scholarship and considers why the concept of interlegality may be useful to better understand the multiplicity in matters of Muslim family law. It then analyzes the emergence of Muslim legal pluralism in Britain and asks whether Shariah Councils and the Muslim Arbitration Tribunal constitute new socio-legal formations and ‘multicultural interlegality’.

This chapter advances a modest account of legal pluralism and its significance for states. It argues that a legal order can contain multiple rules of recognition that lead to the order containing multiple, unranked, legal sources. These rules of recognition are inconsistent, and there is the possibility that they will, in turn, identify inconsistent rules addressed to individuals. In addition, pluralist orders lack a legal mechanism able to resolve the inconsistency; there is no higher constitutional body that can resolve this dispute through adjudication or legislation. Consequently, pluralist legal orders contain a risk, which need not be realized, of constitutional crisis; of officials being compelled to choose between their loyalties to different public institutions.

This chapter presents case studies that illuminate how different actors make and maintain law in various settings that represent very diverse constellations of power. They explore the ways in which law constitutes and legitimates power by analyzing different activities through which it is exercised, including its decisional, regulatory, and discursive properties. For law plays an important part in creating, producing, and enforcing meanings of concepts such as ‘justice’, ‘authority’, and ‘rights’; and in instantiating notions of ‘legality’ that may be invoked by different social actors in their construction of hegemonic and counter-hegemonic discourses.

Separation of legality from the state is what enables our view to better explain without distortion the various forms of non-state prima facie legality whose emergence is too pervasive to leave outside the scope of a balanced general jurisprudence. This chapter returns to the prima facie legalities identified in Chapter 1, and shows fully how freedom from the ideas of legal official, legal system, and hierarchy (and so in general the idea of “chains of validity”) is crucial to responsive descriptive-explanation of legality broadly.

This chapter builds upon the conventionalist approach to law to develop a non-essentialist version of legal pluralism. The analysis proceeds largely in relation to sociological dimensions of legal pluralism, thereby complementing the predominantly legal theory discussed earlier. This and the previous chapter together present a new way of understanding the kinds of legal phenomena operative in society today, and of how they should be studied, in ways that depart from but are also continuous with legal positivism as well as sociological approaches to law.

This chapter contends that diversity should be welcomed rather than disdained within the contract law frame, not simply because it is politically expedient to do so but because diversity is seen to offer a number of important advantages. Moreover, diversity is not antagonistic to the notion of Europeanization and may even provide a new paradigm for legal integration. Legal pluralism is offered as a useful theoretical construct from which the normative appeal of diversity can be evaluated. Drawing on the literature on global and constitutional legal pluralism, the chapter demonstrates that pluralism can create opportunity for experimentation, innovation and mutual learning. However, for its benefits to be maximised and its disadvantages minimised, pluralism should be managed within a framework of coordination. With this aim, the chapter advances a number of soft law governance mechanisms and institutions for coordinating the various sites at which contract law operates.

Indigenous, and also religious, legal codes can be and have been incorporated into the legal systems of states in a number of ways. These include common‐law incorporation, which recognizes culturally distinct ways of establishing rights that are known to the general law, such as marriage and property rights; customary incorporation, which directly applies and enforces the customary rights, privileges, and duties associated with the relevant legal tradition; and self‐government, which grants legal status to the group to make, and revise, its laws on a territorial basis. Hybrid forms have often represented hypocrisy on the states’ part, according to indigenous peoples, the burdens of all these and the benefits of none. The inalienability of indigenous land against a generally common‐law background is such a hypocrisy.

The previous chapter argued that it was possible for a form of legal pluralism to arise within a legal order and, furthermore, that this was, or may become, a characteristic of a number of the legal orders that are connected to the European Union. This chapter reflects on a second type of pluralism, constitutional pluralism. It contends that this is distinguishable from legal pluralism, and that, additionally, constitutional pluralism also casts some light upon the nature of the European Union. This requires us to address a question which has often been raised in European scholarship: that is, whether the European Union is, or may become, a state, and what the implications would be for its citizens and Member States if the Union were to gain statehood. The chapter starts by considering two forms of constitutional ordering — the federation and the confederation — and compares those with the model of the state provided in earlier chapters. It then turns to the European Union, and contrasts that polity against these orderings, concluding that the Union stands somewhere between a federation and a confederation. It is the location of the Union in this conceptual borderland which generates a special, perhaps unique, form of constitutional pluralism.

This chapter begins with a personal anecdote that has sustained the author's scepticism about narrowly individualistic or excessively culturalist conceptions of democracy, as well as of the view of a uniquely better kind of democracy these conceptions lead to. In addition, it acknowledges that the conception of agency and its grounding of democracy generates complex issues in terms of both the extensive globalization of the present world and of the subsistence of legal pluralism. Although the chapter is unable to propose clear cut solutions to such issues (including the ones raised under the banner of the ‘war on terrorism’), it takes side, not without some important caveats, with authors who argue for the universalism of the rights entailed by human agency, including gender ones. As to globalization, after noting significant pros and cons, especially in relation to countries outside the Northwest, the argument is that, even though deeply transformed in several respects, the state continues to be of crucial importance. The chapter concludes with a statement of the minimal standards that despite their diversity, any democracy should be expected to meet.

This chapter explores the extent to which modern recognition of an ‘ international community’ influences the relationship between international and national law. It shows that domestic courts do not regard the ‘international community’ as a repository of moral values or laws superior to their own. International law, as the law of the international community, will be regarded as formal authority only in the instance domestic law renders it binding for the court in question. Domestic law, not international law continues to determine the breadth of the influence of international law in the domestic legal order. International community values may however inform the understanding of principles and values enshrined in domestic law. In this respect, the ‘international community’ is not regarded as a higher authority, but as one of several influences that weigh on the decision of an actual case, and often not the controlling one.

Because there is a need to study further how legal orders are able to run simultaneously parallel, intersect, and compete with each other, the recognition of such aspects of legal pluralism and informal rules should be extended to economic and business organizations, non-government organizations, the family, sporting clubs and other collective bodies as potential legal orders. This chapter introduces the notion of extended legal pluralism to refer to rule-governed entities that could and should be classified as legal orders. However, a concept referred to as legal centralism asserts that the law should be a single set of laws that governs all people and is exclusive of other laws. This chapter also includes explanations of other such hindrances to extended legal pluralism to include such ideas as the relationships among other informal legal orders and how other legal orders are not given as much focus as they deserve.

This book explores the changing structures and processes of legal pluralism as well as the many different ways of imagining and describing legal pluralism in empires. It considers the complex and contingent configuration of imperial law as a set of fluid institutional and cultural practices rather than a structure of command. It discusses imperial sovereignty as well as the legal strategies of conquered subjects, slaves, and religious minorities and examines the connection between legal pluralism and inter-imperial law and between legal pluralism and jurisdictional politics. It also investigates how political and religious thought were used to structure, justify, or undermine plural legal regimes and how jurisdictional conflicts and the strategic manipulation of ideas and information about legal pluralism have shaped the history of empires. This introductory chapter assesses some of the problems that have hampered the dominant approaches to the subject of legal pluralism and proposes an alternative perspective that defines legal pluralism as a formation of historically occurring patterns of jurisdictional complexity and conflict.

This chapter contends that the problem of normative conflicts is not a genuine one and that this teaches us a great deal about European law, and fundamental rights in Europe. In particular, it challenges an argument whose structure goes like this: legal pluralism is an empirical fact, which generates problems of normative conflicts that in turn can be solved through some process of judicial dialogue. It is argued that, as a matter of law, there are no normative conflicts of fundamental rights in Europe. The chapter does not aim to offer a solution to the problem of pluralism, say via some harmonization or dialogue theory, nor to make conflicts disappear by stipulation, but rather to debunk it. It provides an account of law and fundamental rights that both explains why such conflicts do not exist and offers some normative guidance to how European judges should decide cases. Legal philosophy should seek to contribute not only to the understanding of European law but also to its sound development.