Emmanuel Melissaris, Ubiquitous Law: Legal Theory and the Space for Legal Pluralism (2009) (Aldershot, UK: Ashgate, 2009) [ISBN 978-0-7546-2542-1] [Ubiquitous Law]. All page references in parenthesis are to this book.

2012 ◽  
Vol 25 (1) ◽  
pp. 177-182
Author(s):  
Seán Patrick Donlan
Keyword(s):  
Legal Theory ◽  
Legal Pluralism ◽  
The State ◽  
Social Structures ◽  
Substantial Contribution ◽  
Power Relationships ◽  
State Law ◽  
Descriptive Theory ◽  
In Parenthesis ◽  
Popular Control

A broad assortment of contemporary approaches to legal and normative complexity have challenged state law’s claim of dominance and exclusivity. In Ubiquitous law: Legal Theory and the Space for Legal Pluralism (2009), Emmanuel Melissaris similarly seeks to ground the ‘legal’ in what he calls ‘shared normative commitments’. As with much ‘legal pluralism’, his focus on normativity rejects long-established conventional concepts of law. Indeed, for Melissaris, state law may not even properly qualify as ‘law’. But understood as a descriptive theory of normativity, the dynamic legal-normative web he outlines has much to recommend it. It is certainly superior to the continuing narrow concentration of jurisprudes on state law and law-like regimes. Less convincing is Melissaris’ prescriptive suggestion, with ‘critical legal pluralists’, that illustrating the degree to which legal-normative reform occurs beyond the state and its laws promises liberation. Shared normative commitments do not necessarily result in popular control as existing social structures and power relationships remain. We may be ensnared rather than emancipated. On the whole, however, Melissaris has made a sophisticated and substantial contribution to our understanding of legal and normative plurality. His book deserves to be widely read.

Manifestations and Arguments

2020 ◽  
pp. 229-262
Author(s):  
Peer Zumbansen
Keyword(s):  
Social Order ◽  
Legal Theory ◽  
Competent Authority ◽  
Legal Pluralism ◽  
The State ◽  
Social Ordering ◽  
The Subject ◽  
Critical Legal Theory ◽  
Distinguishing Features ◽  
Legal Sociology

While the term “legal pluralism’ literally denotes a plurality of legal orders, it is their plurality of and the distinguishing features between them, which continues to make the subject matter a very charged and hotly debated one. Seen through the lens of legal sociology and anthropology, the plurality of coexisting, normative orders appears, above all, as a matter of description, as a fact of social ordering. Meanwhile, as some of these normative systems are being claimed as being “law,” while others are associated with nonlegal forms of social order, such as customary, traditional, or indigenous norms as well as, perhaps, sector-specific rules of professional or industry conduct, the categories used to draw the lines between legal and nonlegal norms become in themselves highly contentious. The chapter argues that to neglect the fundamental distinction between legal pluralism as “manifestation” and as “argument” perpetuates a troubling inability on the part of positivist and analytical legal theory to engage with law’s inherent instability. Especially at a time, where the actors, norms, and processes that together constitute and shape emerging transnational regulatory regimes are located and operating both within and beyond the state as the purportedly singularly competent authority of law creation and enforcement, the deconstruction of “legal pluralism” as “nonlaw” and threat to the state can serve as the foundation for a new, critical legal theory.

A Transnational Concept of Law

2005 ◽  
Author(s):  
H. Patrick Glenn
Keyword(s):  
Legal Theory ◽  
The State ◽  
Western World ◽  
State Law ◽  
Significant Development ◽  
State Laws ◽  
State Institutions ◽  
Western Law ◽  
Concept Of Law

Most of the legal theory of the last four centuries, in the Western world, has been state-centred. It has justified the existence of states, facilitated their expansion, conceptualized their sources and structures, sought to resolve their conflicts, and developed their law. The state has even been taken, in much of this writing, as the exclusive source of law. There are indications, however, that this theoretical preoccupation with state structures, state institutions, and state laws may now be in decline. This would be a significant development, a historical shift in emphasis in the conceptualization of Western law. It would not, however, mean the end of states or of state law, but rather their contextualization. States and state law would exist in a larger field of normativity. This would entail recognition of a wider range of sources of law and a wider range of relations between laws and between peoples. To attempt to understand these processes, and the extent of their progression, this article examines what we know, or think we know, of the relations between law and the state, before turning to current efforts to develop a transnational concept of law.

Tribal Justice and State Law in Iraq

2021 ◽  
Vol 53 (3) ◽  
pp. 507-511
Author(s):  
Mélisande Genat
Keyword(s):  
Legal Pluralism ◽  
The State ◽  
Careful Examination ◽  
State Law ◽  
State Institutions ◽  
Social Fields ◽  
Tribal Areas

Literature on tribes in Iraq is scant and often falls prey to simplistic binary approaches to state-society relations. Scholars of legal pluralism provide tools to conceptualize interrelations between adjacent normative fields. Several legal specialists have talked about “a thin form of cooperation” between tribal “private orders” and the Iraqi state. By the same token, many scholars presuppose that the capacity of the tribes and the state to mediate and settle feuds covary in opposite directions and are correlated with the strength of state institutions (tribes step in to fill a vacuum during times of state weakness). However, careful examination of Iraqi penal legislation and its implementation in tribal areas invalidates this stereotypical paradigm. Already in her seminal 1973 article, Sally Moore drew the attention of scholars of legal pluralism to the idea that legal orders should be approached as partially discrete, overlapping social fields. The various arenas intersect and create meaning for each other.

A Practice Theory of Legal Pluralism: Hart’s (inadvertent) defence of the indistinctiveness of law

2014 ◽  
Vol 27 (1) ◽  
pp. 27-47 ◽  
Author(s):  
Mariano Croce
Keyword(s):  
Distinctive Feature ◽  
Theoretical Approach ◽  
Practice Theory ◽  
Legal Pluralism ◽  
The State ◽  
State Law ◽  
General Phenomenon ◽  
Contentious Issue ◽  
Hans Kelsen ◽  
Legal Normativity

This article claims that H.L.A. Hart’s theory may be regarded as a sound vindication of what today is known as legal pluralism. In short, Hart’s practice theory of norms attests to the fact that state law is only one system of rules among many others, and that it does not exhibit any distinctive feature that may distinguish it from those others. I will depict this as an inadvertent but extremely valuable outcome of the practice theory. Indeed, Hart’s battle against the claimed connection between law and coercion and his firm conviction that legal normativity should be understood in light of the broader phenomenon of social normativity make his practice theory of rules a sound and fertile vindication of legal pluralism as atheoretical approachto legal phenomena. As a result, even though Hart was a legal centralist and a legal monist, his theorizing ends up dismantling the identity between thegeneral phenomenon of lawand thelaw of the state. I will proceed as follows: I will first look at the contentious issue of the relation between law and coercion by examining how two prominent legal scholars, Hans Kelsen and E. Adamson Hoebel, came to the conclusion that the distinguishing mark of law is coercion (sec. 1). This analysis will be instrumental in demonstrating that Hart failed to grasp the relevance and salience of the relation between law and coercion, and in particular, the peculiar role Kelsen and Hoebel attributed to the latter (sec. 2). I will argue that Hart’s discomfort with the emphasis on the notion of coercion was due not to the nature of this notion as such, but to the distortive effect its overemphasis had exerted on positivist legal theorizing. I will claim that Hart’s most insidious adversaries were two (at the time prominent) philosophical and jurisprudential streams, namely, behaviourism and emotivism (sec. 3). I will go on to say that Hart’s arguments against these adversaries are well addressed but inadequate, and will try to reinforce them by drawing on a Wittgensteinian view of practices (sec. 4). I will conclude by showing that the consistent outcome of a “reinforced” practice theory is a highly pluralist view of law (sec. 5).

scholarly journals State Recognition of Customary Law in the South Pacific

2021 ◽  
Author(s):  
◽  
Campbell McLachlan
Keyword(s):  
Human Rights ◽  
Group Identity ◽  
South Pacific ◽  
Legal Pluralism ◽  
The State ◽  
Colonial Period ◽  
Customary Law ◽  
State Law ◽  
The Pacific ◽  
Fresh Impetus

This thesis examines the recognition by the state of the customary law of indigenous peoples by reference to a comparative study of Commonwealth South Pacific Jurisdictions. It aims both to Illuminate the process of recognition as a contribution to the comparative theory of legal pluralism and to describe distinctive elements of the experience with recognition In the Pacific.<br><br>The Pacific case shares many of the features of the Introduction of Western law into non-Western societies generally, but the absence of complex plural legal systems during the colonial period and the contemporary vitality of traditionalism have required a reworking of the policy basis and techniques for recognition.<br><br>This task is approached from four propositions. 'The persistent fact of pluralism' envisages recognition as informed by an acknowledgement that legal pluralism exists and persists as a factual phenomenon, regardless of the extent of accommodation afforded to custom in the state legal system. The nature of this phenomenon and the options open to the state are explored in Chapter 'Legal pluralism and legal theory'. 'A legacy of colonial misconceptions' argues that the dominant paradigm for recognition is colonial and therefore requires critical re-examination. Chapter 11 'The colonial experience and the idea of customary law' discusses the status de jure of customary law in the Pacific during the colonial period and evaluates the impact of colonialism on custom and approaches to its recognition.<br><br>Independence and the reassertion of the indigenous identity of Pacific peoples has created a fresh impetus for recognition. 'The implications of a reassertion of autochthonous values' are explored in three chapters on contemporary reforms: Chapter III, 'custom as a source of underlying law' on the general incorporation of custom; Chapter V, 'Disputes: custom as process' on local-level 'customary courts'; and Chapter VI on 'Land: custom as title'. <br><br>Finally, the fourth proposition, 'justice and group identity', sees recognition as justified by the requirements of justice in relation to Indigenous groups within the nation state. Chapter IV, 'Human rights and cultural relativism', evaluates the scope for group Identity within a framework of non-discrimination and the protection of individuals' human rights.<br><br>The thesis concludes by contrasting the changing ideological role of custom with the realities of recognition and by contrasting recognition by the incorporation of custom into state law with recognition by the adjustment of state law to acknowledge the separate sphere of custom.

Die deutschsprachige Rechtswissenschaft seit 1800 und der Rechtspluralismus

2020 ◽  
Vol 137 (1) ◽  
pp. 272-363
Author(s):  
Ralf Seinecke
Keyword(s):  
Legal Theory ◽  
Legal Pluralism ◽  
The State ◽  
German Language ◽  
German Speaking ◽  
History Of ◽  
Continuous Presence ◽  
German Reich

AbstractGerman-Language Jurisprudence since 1800 and Legal Pluralism. This paper examines the history of legal pluralism in German-speaking jurisprudence since 1800 using the topoi of law without the state, alternative law, interlegality and nomos. It shows the continuous presence of these topics in the classical debates of German jurisprudence until the concept of legal pluralism was invented in the second half of the 20th century. The end of the Old Reich in 1806, the foundation of the German Reich in 1871 and the BGB from 1900 are important caesuras in this story. They indicate the assumption of a “delayed sattelzeit” in German legal theory during this period.

scholarly journals State Recognition of Customary Law in the South Pacific

2021 ◽  
Author(s):  
◽  
Campbell McLachlan
Keyword(s):  
Human Rights ◽  
Group Identity ◽  
South Pacific ◽  
Legal Pluralism ◽  
The State ◽  
Colonial Period ◽  
Customary Law ◽  
State Law ◽  
The Pacific ◽  
Fresh Impetus

This thesis examines the recognition by the state of the customary law of indigenous peoples by reference to a comparative study of Commonwealth South Pacific Jurisdictions. It aims both to Illuminate the process of recognition as a contribution to the comparative theory of legal pluralism and to describe distinctive elements of the experience with recognition In the Pacific.<br><br>The Pacific case shares many of the features of the Introduction of Western law into non-Western societies generally, but the absence of complex plural legal systems during the colonial period and the contemporary vitality of traditionalism have required a reworking of the policy basis and techniques for recognition.<br><br>This task is approached from four propositions. 'The persistent fact of pluralism' envisages recognition as informed by an acknowledgement that legal pluralism exists and persists as a factual phenomenon, regardless of the extent of accommodation afforded to custom in the state legal system. The nature of this phenomenon and the options open to the state are explored in Chapter 'Legal pluralism and legal theory'. 'A legacy of colonial misconceptions' argues that the dominant paradigm for recognition is colonial and therefore requires critical re-examination. Chapter 11 'The colonial experience and the idea of customary law' discusses the status de jure of customary law in the Pacific during the colonial period and evaluates the impact of colonialism on custom and approaches to its recognition.<br><br>Independence and the reassertion of the indigenous identity of Pacific peoples has created a fresh impetus for recognition. 'The implications of a reassertion of autochthonous values' are explored in three chapters on contemporary reforms: Chapter III, 'custom as a source of underlying law' on the general incorporation of custom; Chapter V, 'Disputes: custom as process' on local-level 'customary courts'; and Chapter VI on 'Land: custom as title'. <br><br>Finally, the fourth proposition, 'justice and group identity', sees recognition as justified by the requirements of justice in relation to Indigenous groups within the nation state. Chapter IV, 'Human rights and cultural relativism', evaluates the scope for group Identity within a framework of non-discrimination and the protection of individuals' human rights.<br><br>The thesis concludes by contrasting the changing ideological role of custom with the realities of recognition and by contrasting recognition by the incorporation of custom into state law with recognition by the adjustment of state law to acknowledge the separate sphere of custom.

Does Legal Theory Have a Pluralism Problem?

2020 ◽  
pp. 266-298
Author(s):  
Cormac Mac Amhlaigh
Keyword(s):  
Legal Theory ◽  
The State ◽  
State Law ◽  
Weak Claim ◽  
Strong Claim

Legal theory has been criticized by legal pluralists on the grounds that it has a “pluralism problem.” In a nutshell, legal theory’s pluralism problem stems from the fact that it explicitly or implicitly assumes the model of state law whenever it refers to law. This is problematic both because such a state-based conception of law fails to capture myriad nonstate forms of law existing in different contexts and because it runs the risk of supporting oppression in postcolonial contexts where indigenous laws are pushed out by colonial laws which conform to the (state-based) legal theoretical paradigm. This chapter focuses on the former, analytical, limb of legal theory’s pluralism problem by breaking the problem down into three specific claims; two which pluralists argue legal theory defends: a strong claim—that all law is necessarily state law; an intermediate claim—that state law is a paradigmatic or the “best” form of law; and one made by pluralists about legal theory: a weak claim that legal theory has unwarrantedly neglected nonstate forms of law. It analyzes each claim in turn reviewing the relevant claims in legal theory. It concludes that if legal theory does have a pluralism problem, and the analysis undertaken in this chapter suggests that it might in some respects, it is not a particularly profound one. As such, much of the resources of legal theory can be adopted to capture a wide variety of both extant and new emergent forms of nonstate law.

scholarly journals La superación del paradigma territorial y sus efectos en el Derecho Administrativo. Bases normativas del Derecho Administrativo transnacional // The overcoming of territorial paradigm and its effects in Administrative Law. Normative Basis of Transnational Administrative Law

2018 ◽  
Vol 1 (103) ◽  
pp. 155
Author(s):  
Jorge Agudo González
Keyword(s):  
General Theory ◽  
International Law ◽  
Legal Status ◽  
Legal Theory ◽  
Administrative Law ◽  
The State ◽  
Private International Law ◽  
State Law ◽  
Public Power ◽  
Normative Basis

Resumen:El Derecho Administrativo aborda con creciente frecuencia fenómenos jurídicos que podemos denominar como «transnacionales». Esta calificación se debe a que no son susceptibles de una ordenación integral por el Derecho Administrativo estatal. En este estudio abordamos el análisis de esos fenómenos jurídicos desde la perspectiva del principio de territorialidad. El objetivo es mostrar los efectos de la incompatibilidad de fenómenos inherentes a la globalización con el paradigma de la territorialidad del Derecho Administrativo y su concepción estatutaria como Derecho del Estado. El estudio comienza con una exposición sobre la trascendencia del principio de territorialidad en la Teoría General del Estado y en la Teoría jurídica; esta parte analiza la relevancia del territorio como base y límite del poder público, y en las relaciones con otros ordenamientos. A continuación, el estudio aborda los fenómenos jurídicos alumbrados en el contexto actual de fragmentación y pluralismo jurídico, para mostrar una realidad jurídica que condiciona la capacidad explicativa del principio de territorialidad. La constatación de la superación del paradigma territorial del Derecho Administrativo provoca la necesidad de afrontar las consecuencias de ese panorama jurídico transformador. El estudio muestra cómo la desterritorialización del Derecho tiene implicaciones directas no sólo en las relaciones entre órdenes normativos, sino también en la summa divisio, al igual que en la vis autoritaria que tradicionalmente ha caracterizado al Derecho Administrativo. Estas transformaciones abren paso a un Derecho Administrativo no exclusivamente estatal, basado en relaciones interordinamentales y focalizado en relaciones jurídicas dinámicas. SummaryI. Introduction. II. The Territoriality Principle in the State General Theory and in the Legal Theory. 1. The territoriality and exclusivity principles of sovereign power. 2. State law «toward outward». 2.1. Foundations of international law. 2.2. Conflicts of laws and private international Law. III. The Loss of Centrality of the Territoriality Principle. 1. The overcoming of the exclusivity of State law. 1.1. Legal fragmentation and international (private) «norms». 1.2. Administrativelaw is international law and vice versa. 1.3. Relations between State legal orders. 2. The overcoming of the division public law versus private law. IV. Final Remarks: the «Relational Character» of the Transnational Administrative Law. 1. From the exclusivity and the completness of the State Administrative Law to the relations between legal orders and conflicts of law. 2. From an authoritarian conception centered in static legal status, to a conception ex parte civium and focused on dynamic legal relationships. Abstract:Administrative Law is increasingly tackling with legal phenomena that can be named as «transnational». This denomination is due to the fact that cannot be embraced entirely by State Administrative Law. In this paper we approach the analysis of these legal phenomena from the perspective of the territoriality principle. The objective of this paper is to show the effects of the incompatibility of a legal phenomenon inherent to globalization, with the paradigm of the territoriality of Administrative Law and its statutory conception as State law. The study begins with an exposition on the relevance of the territoriality principle in the State General Theory and in the Legal Theory; for this reason, we analyze the relevance of the territory as the basis and limit of public power, but also in the relations other legal orders. Then the study deals with the current context of fragmentation and legal pluralism to show a legal reality that undermines the explanatory capacity of the territoriality principle. The verification of the overcoming of the territorial paradigm of Administrative Law causes the need to face the consequences of this transforming legal reality. The paper shows to what extent the deterritorialization of law has direct implications not only in the relations between legal orders, but also in the «summa divisio» and in the traditional authoritarian characterization of Administrative Law. These changes open the scene to a non-statist legal regime, based on relations between legal orders and focused on dynamic legal relations.

scholarly journals POLITIK PLURALISME HUKUM DALAM HUKUM UNDANG-UNDANG KEKUASAAN KEHAKIMAN : KAJIAN TERHADAP PENGAKUAN HUKUM TIDAK TERTULIS DALAM UNDANG-UNDANG NOMOR 48 TAHUN 2009 TENTANG KEKUASAAN KEHAKIMAN

2012 ◽  
Vol 1 (2) ◽  
Author(s):  
Mohammad Jamin
Keyword(s):  
Key Words ◽  
Legal Pluralism ◽  
The State ◽  
Judicial Power ◽  
The Political ◽  
State Law ◽  
Political Unity ◽  
Written Law ◽  
Power Code ◽  
Unwritten Law

<p align="center"><strong>Abstract</strong></p><p><em>It is empirical fact in Indonesia not only has written  law which imposed by state power ( state law). Beside written law there is also unwritten law  which often called the non state law. Political of law to  uniting as one political unity and enforce the legal sentralism has disregarded the  fact of legal pluralism ( the political of ignorance). Political of law  of the Judicial Power Code  which imposed during the time does not clearly arrange the state recognation to unwritten law, even unwritten law is recognnized, but still very sumir and floating. Although  Code No. 48/2009 about Judicial Power adopt the politics of legal pluralism and recognizes the existence unwritten law, but it is still sham (weak legal pluralism), causing that in fact predominate the state law still happened and unwritten law only becoming complement to state law. Political forwards legal pluralism in   Judicial Power Code ideally is not made conditional. The   political legal  pluralism of Judicial Power Code must to adopt strong legal pluralism,  so can accommodate pluralism in society.</em></p><p><em>Key Words</em><em> : </em><em>Legal Pluralism</em><em>, </em><em>Judicial Power</em><em>, </em><em>Unwritten Law</em><em>.</em></p>

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