DEGLOBALIZATION: FROM GLOBAL LEGAL NORMS TO GLOBAL LEGAL PLURALISM

2021 ◽  
pp. 160-167
Author(s):  
E.V. Skurko ◽  
Keyword(s):  
Legal Pluralism ◽  
Legal Norms ◽  
Legal Globalization

The review examines the current problems of globalization in the legal sphere: the issue of global legal norms, legal globalization, modern processes of de-globalization and their «normative project».

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.

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.

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.

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.

Transnational Legal Education

2021 ◽  
pp. 1152-1164
Author(s):  
Eve Darian-Smith
Keyword(s):  
Legal Education ◽  
Legal Pluralism ◽  
Law Firms ◽  
Legal Services ◽  
Global Flow ◽  
Legal Norms ◽  
Transnational Law ◽  
The Past ◽  
Legal Concepts ◽  
Global Law

Transnational legal education is increasingly understood as important to teaching law within the context of a global political economy and global flow of goods, people, services, and legal concepts. Transnational legal education has been driven by the need for primarily elite lawyers, often working in global law firms, to serve expanding capitalist needs. This shift in legal services has accompanied the decentralization of state power and correlative privatization and deregulation of legal norms over the past forty years. However, what is often not explicitly stated by those supporting transnational legal education is that its pedagogy, and the material practices of transnational law, intrinsically involve the concept of legal pluralism. This chapter strives to place the concept of legal pluralism front and center into the conversation on transnational legal education and in so doing highlight that all legal processes (at subnational, national, and transnational levels) are relational, dynamic, and deeply imbricated in culturally contingent contexts and diverse worldviews. The lessons learnt about legal pluralism in the teaching of transnational law are thus relevant and applicable to all kinds of legal education, be it explicitly engaged with legal practices operating beyond national borders or not.

Conclusion

2021 ◽  
pp. 209-214
Author(s):  
Brian Z. Tamanaha
Keyword(s):  
International Law ◽  
Legal Pluralism ◽  
State Law ◽  
Legal Systems ◽  
Multiple Forms ◽  
Legal Norms ◽  
Coexisting Forms ◽  
Religious Law ◽  
Two Sides

Legal pluralism in relation to state law falls on two sides of a permeable and shifting divide: (1) multiple forms of collectively recognized law coexist within social arenas (external pluralism), and (2) manifestations of law are internally pluralistic (internal pluralism). Systems of state law face coexisting external forms of collectively recognized law and are internally pluralistic. The divide is permeable and shifting because one of the factors contributing to internal pluralism is interaction with, influences from, and efforts to absorb or control other coexisting forms of law like customary and religious law and international law. An array of legal norms and institutions exist in society: outside, inside, and intertwined with state legal systems....

scholarly journals Intensifying the Incarceration of the Vulnerable Legal Subject: Correctional Treatment of Ashley Smith as a Source of Legal Norms

2017 ◽  
Vol 32 (02) ◽  
pp. 229-248
Author(s):  
Elspeth Kaiser-Derrick
Keyword(s):  
Legal Pluralism ◽  
Vulnerability Analysis ◽  
Correctional Treatment ◽  
Legal Subject ◽  
Legal Norms ◽  
Normative Systems ◽  
Correctional Policy ◽  
Legal Sanctions ◽  
Legal Subjects ◽  
As If

Abstract Ashley Smith lived and died at a confluence of legal sanctions and correctional policy, norms, decisions, and indifference. This article approaches her incarceration primarily through a particular articulation of legal pluralism. Martha-Marie Kleinhans and Roderick A. Macdonald argue legal subjects should be understood as creating law in relationship with laws/norms. The Correctional Service of Canada (CSC) treated Smith as an excluded legal subject through practices of isolation, but the correctional norms evolving in relationship with her resultant distress simultaneously indicate CSC treated Smith as if she were effectively a law-producer, capable of changing policy. However, treating her as a source of norm-creation assumes equality/power Smith did not have. The story leading to Smith’s death in custody illustrates two primary themes regarding the production of law/norms. First, the legal subject within a critical legal pluralism should be widened to encompass those who act within/against (and are acted upon by) legal/normative systems characterized by extreme power disparities. Drawing on Martha Fineman’s vulnerability analysis, I argue such legal subjects should be understood/treated as vulnerable, implicating an enlarged role for institutions. Second, I follow the broad dictates of a critical legal pluralism to demonstrate how the reciprocally constitutive (though unequal) relationship between the legal subject and legal/normative orders manifested in Smith’s incarceration and attendant changes to correctional norms.

The Irish Courts and the Administrative State

2021 ◽  
pp. 263-280
Author(s):  
Paul Daly
Keyword(s):  
Legal Pluralism ◽  
Public Law ◽  
Legal Interpretation ◽  
Administrative State ◽  
Legal Norms ◽  
The Law ◽  
The Relationship

Everyone in Ireland is affected by the administrative state. For the most part, the bodies involved are creatures of statute that are subject to the law, as set down by the superior courts. The focus in this chapter is on the constraints of public law, which is highly centralized, with legal interpretation firmly vested in the judicial branch. In addition, there is relatively little legal pluralism. Irish judges have adopted a traditionalist approach to the relationship between the judiciary and the administrative state. The courts control the articulation of legal norms, giving little or no weight to the views of non-lawyers about the meaning of law. They rely moreover on a formalistic distinction between questions of law, which are for the courts, and questions of fact or policy, which are for non-lawyers. Bringing comparative perspectives to bear allows us to observe how traditional Irish judges have been in this area.

Out of Site: Transnational Legal Culture(s)

2021 ◽  
pp. 88-112
Author(s):  
Helge Dedek
Keyword(s):  
Twentieth Century ◽  
Legal Pluralism ◽  
Legal Culture ◽  
Cultural Analysis ◽  
Theoretical Frameworks ◽  
Transnational Law ◽  
Social Fact ◽  
Legal Globalization ◽  
Cultural Turn ◽  
Blind Spots

Since the inadequacy of the traditional theoretical frameworks for the study of the “global transformation of modernity” (Beck) was becoming more and more evident in the last decades of the twentieth century, “culture” has figured prominently in many literatures that engage with the post-national condition. Yet in legal academia, despite studying similar phenomena of displacement, fragmentation and hybridization, cultural analysis perspectives have traditionally played a rather marginal role in the discourse on globalization and transnationalization. Although some authors have indeed attempted to operationalize the concept of culture in grappling with effects of legal globalization, the emerging field of “transnational law” never took a significant “cultural turn”. This chapter retraces this disciplinary development and reflects on the use of “culture” in transnational law discourse. While not advocating a more prominent role for the notoriously difficult concept of culture, this brief survey serves as a reminder that the same substantive and theoretical choices that kept transnational law from drawing more heavily on cultural analysis and traditional, “social fact” legal pluralism also may limit its scope and create theoretical blind spots. Not determined by a distinct “body of law” but rather understood as a developing discourse within a discipline in the process of coming into its own, transnational law and its gatekeepers have to decide just how methodologically and substantively inclusive, interdisciplinary, and critical they want it to be.

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