scholarly journals Normative and Legal Pluralism: A Global Perspective

Author(s):  
William Twining

This chapter sets out to demystify the topic of legal pluralism by examining the relationship between legal pluralism, normative pluralism, and general normative theory from a global perspective. The central theme is that treating legal pluralism as a species of normative pluralism decenters the state, links legal pluralism to a rich body of literature, and helps to show that some of the central puzzlements surrounding the topic can usefully be viewed as much broader issues in the general theory of norms and legal theory. A second theme is that so-called “global legal pluralism” is in several respects qualitatively different from the older anthropological and sociolegal accounts of legal pluralism and is largely based on a different set of concerns. Following the introduction in section I, section II considers normative pluralism. It explores the ambiguity of “pluralism” and some themes in general normative theory. Section III introduces the heritage of literature on legal pluralism. It presents an ideal type of social fact legal pluralism to which much, but by no means all, of the mainstream literature approximates. Some brief case studies illustrate some distinctions that are increasingly under attack. Section III suggests that social fact pluralism has achieved much in raising awareness of nonstate normative orders, but provides little guidance on issues of state policy and institutional design. Section IV considers the implications of adopting a global perspective in this context. It questions how far social fact legal pluralism is helpful in addressing a wide range of concerns raised by “globalization” and argues that the radically ambiguous idea of “global legal pluralism” is being applied to such a variety of phenomena and concerns as to be virtually meaningless.

Author(s):  
Paul Schiff Berman

This chapter offers a theoretical framework for the reconceptualization of jurisdiction, one which recognizes the extent to which contemporary social conditions—which are increasingly experienced across different jurisdictions—and changes in regulatory authority are visibly supplanting the exclusive notion of jurisdiction favoured by classical international law, with its preoccupation with sovereignty and territory. Viewing the concept of jurisdiction through the lens of legal pluralism opens up a wide range of inquiries that tend to be ignored or suppressed in most legal discussions of jurisdiction. Indeed, jurisdictional pluralism is both a descriptive reality, a theoretical framework, and a potentially productive institutional design choice. The chapter then argues that jurisdictional contestation is an inherent feature of living in a world with multiple overlapping communities.


Author(s):  
Philipp Reimer

»L’ÉTAT, C’EST LE DROIT!« – SOBRE A ATUALIDADE DA TEORIA DO ESTADO DE HANS KELSEN EM FACE DA METAMORFOSE DO PODER ESTATAL*  »L’ÉTAT, C’EST LE DROIT!« - ZUR AKTUALITÄT DER STAATSLEHRE HANS KELSENS IM ANGESICHT SICH WANDELNDER STAATSGEWALT  »L’ÉTAT, C’EST LE DROIT!« - THE CURRENT IMPORTANCE OF HANS KELSEN'S STATE DOCTRINE IN LIGHT OF THE STATE POWER CHANGES   Philipp Reimer**  RESUMO: Confrontada com evidentes mutações na estruturação de instituições e atividades estatais, a teoria do direito pode nos dizer que aspectos deste processo de metamorfose devem ser considerados pelos estudos jurídicos – bem como quais aspectos não precisam ser levados em conta. Fazendo uso de uma abordagem kelseniana, este artigo demonstra como a teoria do direito (compreendida como disciplina normativa) não enfrenta quaisquer dificuldades ao lidar com fenômenos da ordem do dia tais quais „soft law“, „governo de múltiplos níveis“ ou „pluralismo jurídico“. A distinção entre normativo e empírico é a chave interpretativa, aqui, de tal forma que a investigação desta última esfera pertence ao domínio das ciências sociais e não da teoria do direito. PALAVRAS-CHAVE: Identidade entre Estado e direito. Hans Kelsen. Teoria pura do direito. Teoria normativa. Pluralismo jurídico. ABSTRACT: When facing eminent change of the way government institutions and activities are structured, legal theory can tell us in what respects legal scholarship needs to take account of such change - and also, in what respects is does not. Using a Kelsenian approach, this paper shows how legal theory (understood as a normative discipline) has no difficulty in coping with modern-day phenomena such as "soft law", "multi-level government", and "legal pluralism". The distinction of the normative and the empirical is key here, where the study of the latter falls into the domain of the social sciences, not legal theory. KEYWORDS: Identity of legal order and state. Hans Kelsen. Pure theory of law. Normative theory. Legal pluralism. SUMÁRIO: 1 Transformação do Estado – de que Estado? 1.1 Um Estado, duas dimensões, três elementos? 1.2 Diferenciação dos conceitos de Estado. 1.3 Conceito teórico-jurídico de Estado e transformação do Estado. 2 Transformações do conteúdo do direito. 2.1 Autorregulação. 2.2 »Soft law«. 3 Transformação da estrutura do direito: Substituição do Estado. 3.1 »Sistemas de múltiplos níveis« e »pluralismo jurídico« como (aparente) desafio a um teoria do direito centrada no Estado. 3.1.1 »Sistemas de múltiplos níveis«. 3.1.2 »Pluralismo jurídico«. 3.2 Substituição, não transformação do Estado. 3.2.1 A antiquada teoria do direito centrada no Estado como quimera. 3.2.2 A necessária unidade da perspectiva jurídica da ciência normativa. 3.2.2.1 Derrogação apenas internamente a uma ordem jurídica. 3.2.2.2 Construção do direito internacional público e do direito europeu. 3.2.3 O caráter arbitrário da escolha do ponto de partida da abordagem jurídica. Conclusão – perspectivas científico-normativas e científico-sociais sobre a “transformação do Estado”. Referências Bibliográficas. * Publicação original: REIMER, Philipp. »L’État, c’est le droit!« - Zur Aktualität der Staatslehre Hans Kelsens im Angesicht sich wandelnder Staatsgewalt. In: HESCHL, Lisa et seq (Eds.). L'État, c'est quoi? Staatsgewalt im Wandel. 54. Assistententagung Öffentliches Recht. Graz: Helbing & Lichtenhahn, 2014, p. 37-57. Traduzido por Rodrigo Garcia Cadore, doutorando em Teoria do Direito e Direito Público pela Universidade de Freiburg (Albert-Ludwigs-Universität Freiburg), Alemanha, com autorização do autor.** Livre-docente em Direito Público e Teoria do Direito pela Universidade de Freiburg (Albert-Ludwigs-Universität Freiburg), Alemanha. Professor Privatdozent na Faculdade de Direito da Universidade de Mainz (Johannes Gutenberg Universität Mainz), Alemanha.


Author(s):  
W. Bradley Wendel

This chapter assesses fiduciary law within the framework of private law theory. Fiduciary law and private law theory seem made for one another. Fiduciary law is centrally focused on the morally attractive end of maintaining relationships of trust and confidence among individuals. But it does so by bracketing highly abstract normative theory in favor of well-developed legal constructs such as duties of loyalty and care. It is comfortable with pluralism, complexity, and context-specificity. Moreover, it represents a rational structure that is not wholly dependent on external criteria yet does not aspire to strict independence from empirical considerations and normative values. Fiduciary law nevertheless poses some challenges for private law theory. As an evolving field, it may grow in unanticipated directions and risk the loss of its former coherence. The possibility of this loss of a coherent organizing structure has motivated considerable recent work in the theory of fiduciary law, and also in legal theory more generally, as scholars seek to understand how normative pluralism can coexist with stable, rational legal doctrine.


2015 ◽  
Vol 60 (4) ◽  
pp. 839-881
Author(s):  
Kate Glover

Dominant narratives about the institutional life of the Supreme Court of Canada pay too little attention to the empirical and theoretical insights of legal pluralism. They do not say enough about the Court’s place in a world in which the nature and experience of law are often understood without reference to state sources or institutions. As a result, the prevailing narratives do not speak to many social realities, fail to build on rich pluralist critiques of the Court’s jurisprudence, and disregard the aims and promise of doing legal theory. Relying on the Reference Re Senate Reform as a case study, this article points to shortcomings of contemporary understandings of the Court and proposes a way to overcome them. Part I presents four readings of the Supreme Court’s opinion in the Reference. Each focuses on a different dimension of the case—the doctrinal, the metaphorical, the institutional and the contextual. The readings are an invitation to notice the assumptions embedded in interpretations of the Reference and to explore the larger narratives of which they are a part. Part II takes up that invitation. It shows that the dominant narratives often reflect state-centric traditions of legal theory and impede inquiries into the Court’s place in a legally and institutionally plural world. It then presents a research agenda that maps a route toward filling this gap. Drawing on lessons of legal pluralism, the agenda encourages us to confront what we think we know—and what we tend to ignore—about the morality of the Court’s institutional design, about the Court’s place in Canada’s constitutional imagination, and about the significance of the Court in light of the myriad ways in which we access and pursue justice.


This thoroughly updated seventh edition is a comprehensive, clearly written, and practical textbook that includes information on both occupational health and environmental health, providing the necessary foundation for recognizing and preventing work-related and environmentally induced diseases and injuries. National and international experts share their knowledge and practical experience in addressing a wide range of issues and evolving challenges in their fields. A multidisciplinary approach makes this an ideal textbook for students and practitioners in public health, occupational and environmental medicine, occupational health nursing, epidemiology, toxicology, occupational and environmental hygiene, safety, ergonomics, environmental sciences, and other fields. Comprehensive coverage provides a clear understanding of occupational and environmental health and its relationships to public health, environmental sciences, and government policy. Practical case studies demonstrate how to apply the basic principles of occupational and environmental health to real-world challenges. Numerous tables, graphs, and photographs reinforce key concepts. Annotated Further Reading sections at the end of chapters provide avenues for obtaining further infomation. This new edition of the book is thoroughly updated and also contains new chapters on climate change, children’s environmental health, liver disorders, kidney disorders, and a global perspective on occupational health and safety.


Diabetologia ◽  
2021 ◽  
Author(s):  
David Beran ◽  
Maria Lazo-Porras ◽  
Camille M. Mba ◽  
Jean Claude Mbanya

AbstractThe discovery of insulin in 1921 changed the prognosis for people with type 1 diabetes. A century later, availability and affordability of insulin remain a challenge in many parts of the globe. Using the WHO’s framework on understanding the life cycle of medicines, this review details the global and national challenges that affect patients’ abilities to access and afford insulin. Current research and development in diabetes has seen some innovations, but none of these have truly been game-changing. Currently, three multinational companies control over 95% of global insulin supply. The inclusion of insulin on the WHO’s Prequalification Programme is an opportunity to facilitate entry of new companies into the market. Many governments lack policies on the selection, procurement, supply, pricing and reimbursement of insulin. Moreover, mark-ups in the supply chain also affect the final price to the consumer. Whilst expenses related to diabetes are mostly covered by insurance in high-income countries, many patients from low- and middle-income countries have to pay out of their own pockets. The organisation of diabetes management within the healthcare system also affects patient access to insulin. The challenges affecting access to insulin are complex and require a wide range of solutions. Given that 2021 marks the centenary of the discovery of insulin, there is need for global advocacy to ensure that the benefits of insulin and innovations in diabetes care reach all individuals living with diabetes. Graphical abstract


2015 ◽  
Vol 7 (4) ◽  
pp. 421-445 ◽  
Author(s):  
James R. Barth ◽  
Tong Li ◽  
Wen Shi ◽  
Pei Xu

Purpose – The purpose of this paper is to examine recent developments pertaining to China’s shadow banking sector. Shadow banking has the potential not only to be a beneficial contributor to continued economic growth, but also to contribute to systematic instability if not properly monitored and regulated. An assessment is made in this paper as to whether shadow banking is beneficial or harmful to China’s economic growth. Design/methodology/approach – The authors start with providing an overview of shadow banking from a global perspective, with information on its recent growth and importance in selected countries. The authors then focus directly on China’s shadow banking sector, with information on the various entities and activities that comprise the sector. Specifically, the authors examine the interconnections between shadow banking and regular banking in China and the growth in shadow banking to overall economic growth, the growth in the money supply and the growth in commercial bank assets. Findings – Despite the wide range in the estimates, the trend in the size of shadow banking in China has been upward over the examined period. There are significant interconnections between the shadow banking sector and the commercial banking sector. Low deposit rate and high reserve requirement ratios have been the major factors driving its growth. Shadow banking has been a contributor, along with money growth, to economic growth. Practical implications – The authors argue that shadow banking may prove useful by diversifying China’s financial sector and providing greater investments and savings opportunities to consumers and businesses throughout the country, if the risks of shadow banking are adequately monitored and controlled. Originality/value – To the authors’ knowledge, this paper is among the few to systematically evaluate the influence of shadow banking on China’s economic growth.


Author(s):  
Tomasz Widłak

This article focuses on the issue of applicability of virtue theory to legal theory in civil-law (statutory) jurisdictions and suggests research areas and problems in that respect. The author starts with an assumption that the notion of “virtue” and virtue ethics should be used for the purposes of legal theory starting from references to judicial ethics and normative theory of judicial decision-making. This approach looks especially promising for the purpose of systematizing the chaotic moral language that is being currently used in Poland in reference to judges, their skills, and qualities of their character, which in turn may lead to formulating an explanatory and normative theory of the judicial role that better addresses the observable deficiencies of legal deontology. The author suggests research that could proceed from interpretatively uncovering what are believed to be specific judicial virtues and vices, considering different aspects of the wider Polish and European legal culture of civil law countries (included but not limited to legal and ethical standards, public discourse, legal and other literature, historical and fictional examples, and role models). With respect to judicial ethics, existing virtue theories, including non-eudaimonistic ones, may be examined for the purpose of identifying the model of virtue best suited to the particular nature of the judicial profession. The aretaic (rather than deontological or consequentialist) perspective may enable legal scholarship to take a new path in the debate on the status and qualities of the judiciary, including the problems relating to judicial independence and the selection of candidates for judicial offices.


Author(s):  
Linda Tvrdíková

If we look at the literature about judicial decision-making and interpretation of law, we can find many texts which are dedicated to legal arguments, logic and legal reasoning – in those texts the rationality, analytical and logical thinking is glorified and an interpretation seems ‘just’ as a logical operation where judges subsume certain facts under general legal norm or norms, those norms are formulated linguistically, so it seems that the whole job of judges is to analyze texts. What we can see more rarely are discussions and texts exploring the role of intuitions, feelings and emotions and their role in judicial decision-making – at least in the Czech Republic. Those of our faculties are seen as the source of bias and distortion. Even if we look to the past, those themes are not so common among legal theorists and philosophers – especially in our tradition where we are still influenced by Hans Kelsen and František Weyr and their normative theory – but we can find exceptions and those are the American legal realists. In this paper, we will show that their observations and insights seem to be right. How can we know it? Because in last decades cognitive scientists have made big progress in the area of decision-making and it seems that we are not so rational as we thought us to be. They have explored that our thinking does not take place only through the deliberative system but, surprisingly, there is also another one system which influences our decisions. This system is automatic, fast, and intuitive – some call this system S1, Seymour Epstein an experiential system. This automatic system is more influential than our deliberative system because it is always heard – we can use Jonathan Haidt’s metaphor of an elephant and a rider. S1, the intuitive, experiential system, is an elephant and S2, the deliberative, analytical system is the rider – in legal theory, we have talked about the rider a lot but we do not explore the elephant sufficiently. This paper will try to uncover the nature of the elephant.


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