Federalism as Legal Pluralism

2020 ◽  
pp. 490-527
Author(s):  
Erin Ryan
Keyword(s):  
Good Governance ◽  
Legal Pluralism ◽  
Structural Features ◽  
Legal Authority ◽  
Multiple Sources ◽  
Legal Norms ◽  
Normative Authority ◽  
Nation States ◽  
Sources Of Authority ◽  
Sovereign Authority

This chapter uses the dynamic federalism model of constitutional dual sovereignty as an analytic window into the emerging legal pluralism discourse. Legal pluralism explores the significance of multiple sources of legal authority and identity with which individuals simultaneously engage. Overlapping sources of normative authority range from different levels institutions of government to private sources of “quasi-legal” norms generated by tribal, religious, commercial, professional, or other associations. Legal pluralism scholars challenge the tradition of legal monism—so entrenched that its presumptions often go unnoticed—which views legitimate legal authority as deriving only from an established source of sovereign or natural authority that unambiguously trumps all competing forces. Proponents contend that legal pluralism more accurately captures the scope of political contest in pluralist societies and the full array of normative forces operating on individual actors. Skeptics critique it for failing to distinguish between legitimate and illegitimately normative forces, and for threatening critical societal institutions by weakening the prerogatives of nation-states. Constitutional federalism, itself characterized by multiple sources of authority within a single geographical territory, provides a simple example of legal pluralism that sidesteps much of the controversy. Involving only sovereign authority, federalism avoids legal pluralism’s normative challenge to statism. Moreover, it resolves at least some of the heterarchical uncertainty unleashed by legal pluralism through the hierarchical ordering device of federal supremacy. Nonetheless, the structural features of dynamic federalism provide valuable platforms for cross-jurisdictional deliberation and dialogic policymaking that resonate with the good-governance proposals advocated by legal pluralists for more inclusive norm generation.

Whose Authority? Contesting and Negotiating the Idea of a Legitimate Interpretation of Islamic Law in Indonesia

2015 ◽  
Vol 10 (2) ◽  
pp. 191-212 ◽  
Author(s):  
Alfitri
Keyword(s):  
Islamic Law ◽  
Family Law ◽  
Law Reform ◽  
Synthetic Approach ◽  
Legal Authority ◽  
Legal Norms ◽  
Legal Principles ◽  
Continuity And Change ◽  
Sources Of Authority ◽  
History Of

AbstractThis article examines the history of the evolution of Islamic legal authority in Indonesia and provides an account of how it is contested and negotiated in contemporary Indonesia, using the history of family law reform as an example. There is a plurality of sources of authority for Islamic law as they operate within the domain of family law. The case studies reveal tensions between continuity and change in the development of Islamic legal principles and the strategies that different actors employ to advance their preferred version of Islamic legal norms: while the state has adopted a synthetic approach in order to accommodate these multiple legal authorities and increase the efficacy of its own statutes, the ulama persistently insist on the authority of fiqh as the immutable point of reference in resolving legal problems faced by Muslims. These conflicts ensure that the statutes will continue facing challenges as a legitimate interpretation of Islamic law in Indonesia.

Lex Mercatoria, Legal Pluralism, and the Modern State through the Lens of the East India Company, 1600–1757

2020 ◽  
Vol 40 (2) ◽  
pp. 277-290
Author(s):  
Neilesh Bose ◽  
Victor V. Ramraj
Keyword(s):  
Political Legitimacy ◽  
Legal Pluralism ◽  
East India Company ◽  
Modern State ◽  
Legal Authority ◽  
Global History ◽  
Multiple Sources ◽  
Lex Mercatoria ◽  
Historical Antecedents ◽  
The Way

Abstract As the debate over historical antecedents to contemporary forms of lex mercatoria suggests, the nature of legal authority appears to be changing into a less familiar, more pluralistic form, even as states struggle to reassert their power. In seeking to understand this transformation in—and decentering of—the modern state's authority, we consider the multiple sources of legal authority claimed by the East India Company (1600–1757) and the way in which it positioned its legal and political legitimacy in relation to multiple and often competing centers of power in India. This article proposes the notion that the hegemony of a centralized modern state belongs only to a narrow sliver of history, hiding a much deeper pluralism within global history. In so doing, this article sets the stage for a sustained consideration of the plural nature of authority in the waxing and waning phases of the modern state.

Implementation of the Principles of Good Governance on the National Level outside the EU

2019 ◽  
pp. 209-242
Author(s):  
Henk Addink
Keyword(s):  
South Africa ◽  
Rule Of Law ◽  
Good Governance ◽  
National Level ◽  
Historical Background ◽  
Fourth Power ◽  
Review Section ◽  
Legal Norms ◽  
Equality Rights ◽  
Good Government

In this chapter, the focus is on the implementation of good governance norms in three countries outside Europe: Australia, Canada, and South Africa. Relating to the implementation of the good governance principles in Australia, we start with the historical background and good governance approaches in the country. There is a classical rule of law and separation of powers but also new administrative law reforms and including the position of the fourth power. Important is the role of the Ombudsman and the relation between good governance and human rights. Especially the principles of participation, transparency and accountability have been worked out. The idea of integrity goes beyond matters of simple ‘legality’. Important is the influx of integrity commissions, ombudsmen and means of judicial and merit review. Although Canada does not have specific legislation that explicitly outlines good governance principles, it is clear that Canada has put them into practice. The Constitution guarantees Canadian citizens ‘peace, order, and good government’. The rule of law provides that every person must abide by the law and Section 15 guarantees equality rights to Canadian citizens. The judiciary is also a source for good governance. Finally, administrative officials are held accountable by judicial review, section 24 of the Charter, and with the ombudsmen. Nevertheless, there is still room for improvement. South Africa has extensively integrated good governance principles into its legal system, but faces the same problems that other developing countries in Africa have. Thus, although South Africa has a sound legal foundation for good governance, lessons can still be learned on how to translate these legal norms into practical application.

scholarly journals Islamic Ethos: Examining Sources of Authority

Humanities ◽  
2019 ◽  
Vol 8 (4) ◽  
pp. 170 ◽  
Author(s):  
Lana Oweidat
Keyword(s):  
Historical Narrative ◽  
Careful Examination ◽  
Islamic State ◽  
Religious Leaders ◽  
Multiple Sources ◽  
Islamic Period ◽  
Sources Of Authority ◽  
Guiding Principles ◽  
Racist Discourse ◽  
Early Islamic Period

This paper investigates the construction of Islamic ethos in the early Islamic period, highlighting what constitutes the guiding principles of its authority. As a religion that is currently subject to many ugly charges, a careful examination of its core historic values provides a counternarrative to the distorted ideology perpetuated by extremists such as The Islamic State of Iraq and Syria (ISIS), as well as to the Islamophobic and anti-Muslim racist discourse circulating in the West. The counternarrative presented here serves scholars of ethos whose expertise lies elsewhere than in religious studies. While providing this historical narrative, I highlight how Islamic ethos is derived from multiple sources of religious and cultural/communal authority, mainly from The Qur’an (the holy book of Muslims); the Sunnah (the Prophet Muḥammad’s example, deeds, and customs); and ijtihad (the interpretations and deductions of Muslim religious leaders). Tracing the construction of Islamic ethos through the creation of the Muslim community (Ummah) in 622 CE and the establishment of the Caliphate in 632 CE reveals guiding principles of conduct that are, in contrast to the discourses mentioned above, realistic, practical, and adaptable to current global needs and exigencies.

Custom Made—For a Non-chirographic Critical Legal Pluralism

2011 ◽  
Vol 26 (2) ◽  
pp. 301-327 ◽  
Author(s):  
Roderick A. Macdonald
Keyword(s):  
Legal Pluralism ◽  
Legal Norms ◽  
Custom Made ◽  
Extra State

AbstractContemporary shifts in legal pluralism theory (from weak, intra-state pluralism to strong, extra-state pluralism and from socio-scientific to critical legal pluralism) have raised important new questions about law as a normative phenomenon. This article argues for the significance of implicit and inferential legal norms. It begins by considering a movement of thought—evangelicalism—that subordinates the implicit and informal to the explicit and authorized. The essay then outlines the principal features of a non-chirographic legal pluralism and explores how regimes of written rules are consistently made over by those whose conduct they are presumptively meant to govern.

The Rule of Law and the Quest for Constitutional Substitutes in International Law

2014 ◽  
Vol 83 (2) ◽  
pp. 87-127 ◽  
Author(s):  
Richard Collins
Keyword(s):  
International Law ◽  
Rule Of Law ◽  
International Institutions ◽  
Institutional Structure ◽  
International Affairs ◽  
The Rule Of Law ◽  
Normative Authority ◽  
International Legal Order ◽  
Sovereign Authority ◽  
Second World

The practice of modern international law seems inherently bound up with the quest for a rule of law in international affairs. This commitment to the rule of law at the international level finds expression not merely in academic literature, but has been regularly endorsed by states themselves, particularly in the context of the United Nations. Nevertheless, the pursuit of an international rule of law is an ambition which is constantly frustrated. The institutional structure of the international legal order seems incompatible with this vision, resulting in a constant sense of frustration about the apparently ‘primitive’ or otherwise constitutionally deficient institutional structure of modern international law. In fact, despite the intensification of ‘governance’ through international institutions in the years since the end of the Second World War, it seems like the proliferation and growing normative authority of international institutions more often than not gives rise to more concerns from a rule of law perspective. In this article I not only seek to understand the nature of this rule of law commitment and the reasons for this constant frustration, but in doing so I will argue that the institutional context implicit in the ideal of the rule of law is incompatible with the nature and functioning of international law. I seek to show, in fact, how the perpetual sense of frustration felt in international law’s failure to live up to this ideal stems from the fact that the rule of law is a notion which is implicitly bound up with the political context of sovereign authority within states. To attempt to impose the rule of law outside of this context will not only result in distortion and mischaracterisation, but runs the risk also of legitimising precisely the kind of arbitrary authority which is the main target of the rule of law itself.

scholarly journals Legal Pluralism and the Rule of Law in Timor Leste

2006 ◽  
Vol 19 (2) ◽  
pp. 305-337 ◽  
Author(s):  
LAURA GRENFELL
Keyword(s):  
Rule Of Law ◽  
Legal Pluralism ◽  
The State ◽  
East Timor ◽  
The Rule Of Law ◽  
Legal Norms ◽  
Informal System ◽  
Transitional Countries ◽  
Timor Leste

Many transitional countries face the problem of establishing the rule of law in a weak justice sector where a gulf separates local legal norms from national, constitutional norms that are drawn largely from the international sphere. As a case study of East Timor this article challenges simplistic positivist notions about the normative hierarchy of laws within a constitutionally bounded polity. It argues that in transitional countries such as East Timor legal pluralism is important but must be properly tuned to serve the rule of law. Legal pluralism poses certain dangers when it operates without any of the checks or balances that ensure accountability and the promotion of constitutional values such as equality. The rule of law is not served by an informal system where there are no formal avenues of appeal and thus minimal accountability and transparency. A more promising version of legal pluralism that comports with the rule of law is one that empowers the state to monitor local decisions to ensure that they observe the norms set out in East Timor's Constitution.

Reformulating the Madhhab in Cyberspace

2015 ◽  
Vol 22 (4) ◽  
pp. 413-435 ◽  
Author(s):  
Fachrizal A. Halim
Keyword(s):  
New Media ◽  
Communication Technology ◽  
Islamic Law ◽  
Legal Authority ◽  
Legal Tradition ◽  
Media Technology ◽  
Communications Media ◽  
Nation States ◽  
Zero Sum ◽  
Media And Technology

In this essay, I examine the networks and activities of transnational Shāfiʿī scholars in reformulating the madhhab and reviving the legal tradition of the Shāfiʿī school of law for contemporary Muslims. The discussion builds on recent debates in two overlapping fields. The first field argues that new modern communications media and technology have greatly fragmented the authority relationship in Islamic law; the second field centers on the perceived dissolution of the madhhab as a result of the widespread rejection of the authority of classical jurists. I argue that the same new media technology also provides a rationale and an instrument that enable Muslims to reformulate legal doctrines and revive the structure of legal authority as reflected in the school’s tradition. By shifting the operation of the madhhab into cyberspace, these Shāfiʿī scholars have creatively responded to changes in communication technology and have effectively reformulated and refashioned the legal tradition of the madhhab as a practical reference for present-day Muslims. The ongoing presence of the madhhab, in this case, does not necessarily represent a zero sum game in the encounter with the legal reality of the modern nation-states.


scholarly journals Transnational Economic Constitutionalism in the Varieties of Capitalism

2020 ◽  
Vol 1 (1) ◽  
Author(s):  
Gunther Teubner
Keyword(s):  
Codes Of Conduct ◽  
State Intervention ◽  
Western Hemisphere ◽  
Economic Democracy ◽  
Protest Movements ◽  
Legal Norms ◽  
Nation States ◽  
Societal Actors ◽  
Corporate Codes Of Conduct ◽  
Anglo American

Among the remarkable results of globalization are economic constitutions, which have emerged independently from the political constitutions of the nation-states. Against ordoliberal as well as critical theorists, who expected a uniform economic world-constitution, a fragmented meta-constitution dealing with massive constitutional conflicts has emerged. Moreover, the conflicting economic constitutions are no longer delineated by the boundaries of nation-states but by different boundaries of various transnational production regimes. The constitutional alternative for the national economies—ordoliberal economic constitution versus social-democratic economic democracy—which had been formulated by the classics of economic constitutionalism, Franz Böhm and Hugo Sinzheimer, has been replaced by the opposition in the Western Hemisphere between neocorporatist production regimes in Northern Europe and the financial-capitalist production regimes of the Anglo-American world. Against all predictions of their failure, the neocorporatist constitutions of European economies, after the financial crisis, have undergone a reorganization that resulted in their remarkable resilience. Moreover, they have developed a potential for strengthening economic democracy. In particular, public good–oriented corporate codes of conduct, which emerged in large numbers in the sweep of globalization, have contributed considerably to this potential. The codes opened, beyond the protection of workers’ rights, a new opportunity for societal actors. The oppositional power of civil society—the media, public debate, spontaneous protest, protest movements, NGOs, labor unions, intellectuals, and the professions—as well as the legal norms created by state intervention exercise such massive pressure on corporations that the latter are compelled to enact binding self-restrictions oriented to the public interest: environmental protection, antidiscrimination, human rights, product quality, consumer protection, data protection, freedom of the internet, and fair trade.

Value Pluralism and Legal Pluralism

2020 ◽  
pp. 403-423
Author(s):  
Sanne Taekema
Keyword(s):  
Legal Pluralism ◽  
Theoretical Explanation ◽  
Value Pluralism ◽  
Relative Importance ◽  
Life Choices ◽  
Legal Norms ◽  
Core Feature ◽  
Variable Content ◽  
Normative Considerations

In this chapter, the focus is on the question how different ideas of pluralism, legal pluralism, and value pluralism, relate. The background to the question is the observation that in normative theories of global legal pluralism liberal principles are a core feature. The liberal emphasis on the need to respect the life choices of individuals shows affinity to the philosophical idea of value pluralism, but then the question arises how a liberal idea of value pluralism relates to legal pluralism. Moreover, we may ask whether there are alternative accounts of value pluralism that can be linked to legal pluralism in a more productive way. This chapter explores one such account: that of German legal philosopher Gustav Radbruch. The chapter sees the existence of various legal orders and value-laden practices as a phenomenon in need of conceptual clarification and theoretical explanation, which involves normative considerations. Both legal and value pluralism are issues on which a theoretical explanation of the phenomenon almost inevitably gives rise to the normative question how to deal with conflicting legal norms or values. Radbruch’s theory of legal values provides a different perspective on the role of values in global legal pluralism than implied by the more commonly used liberal outlook. Radbruch’s work yields a criterion to distinguish law from other normative orders, it accounts for variable content of global legal orders, and it makes sense of the tensions between the basic values of law and the relative importance they have in different legal orders.

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