Theory of law. Legal ethnography, or the theoretical fruits of inquiries into folkways

2010 ◽  
pp. 81-101
Author(s):  
Csaba Varga

Encounters - Disciplines -The lawyerly interest - Law and/or laws - Conclusion. Rechtliche Volkskunde is distinguished from legal anthropology, and the latter from both legal ethnology and legal pluralism, as well as from research on aboriginal law, claiming the first three to be law-related parts of non-legal disciplines, in contrast to Ethnologischer Jurisprudenz and anthropology of law, taken as directions within the field of jurisprudence. For the time being, none of the first has erected its own theories, nor has socio-ethnography interfered with legal theorising. Since Ehrlich and Weber realised that laws may prevail independently of the states' "Westphalian duo", a number of attempts at both extending and narrowing the law's usual remit has been tested. Considering the pendulum movement between monism and pluralism in a historical perspective, renaming what is at stake by altering the terminology is not and should not be a primary issue. As formulated by the author a quarter of a century ago, "Law is (1) a global phenomenon embracing society as a whole, (2) able to settle conflicts of inter- ests that emerge in social practice as fundamental, while (3) prevailing as the supreme controlling factor in society".

2010 ◽  
Vol 3 (2) ◽  
Author(s):  
Jose R. Rodriguez

Formalism persists everywhere despite 100 years of critical legal theory. The reasons for that are sociological and political and include the persistence of the separation of powers idea as a central concept for the theory of law. In Brazil, this phenomenon manifests itself acutely for two supplementary reasons: (1) the lack of a real differentiation between academic research and professional lawyering and (2) the influence of neo-liberal economic thought.The persistence of formalism is a serious problem for Brazilian development since it naturalizes the existing institutions and their related power positions, creating an obstacle to any project of development that proposes something new. It blocks the development of a critical and reflexive knowledge on institutions, shortening institutional imagination to projects that could transform Brazilian reality.The main objective of this article is to develop a critique of formalism useful both as a general method to criticize formalism and as a tool to criticize its Brazilian manifestation. It will be argued here that the critique of formalism fails when it is only theoretical. An efficient critique must also grasp the ideas and the social relations responsible to reproduce formalism as a conceptual idea that informs social practices.To do that, this article will first propose a characterization of Brazilian formalism that does not fit in the Formalism X Instrumentalism dichotomy and is more adequate to grasp how law rationality works in countries from the Continental Law tradition. Afterwards, it will identify the power positions and the respective ideologies responsible to reproduce formalism in Brazil, giving criticism a sociological basis. Finally, it will show that only a positive view of what law should be will able to overcome formalism, both as a philosophical idea and as a social practice. In its final part, a sketch of such a view will be presented.


2020 ◽  
pp. 1-32
Author(s):  
Nurfadzilah Yahaya

This introductory chapter flips the more common historical perspective that European imperialism led to new patterns of legal pluralism across empires that spawned possibilities for interpolity contact and trade, acting as catalysts for the emergence of global legal regimes. It demonstrates how British and Dutch territorial jurisdictions expressed very specific relationships between territory, authority, and forms of law, and it simultaneously puts into stark relief the preponderance of diasporic Arab merchants generating their own jurisdictions across the Indian Ocean in tandem with those of the European colonist. Not only were these Arabs attuned to legal pluralism being the operative condition of law, they were also acutely aware of jurisdictional ordering and the concentration of power across time and space. The chapter proposes a spatial repositioning of the Indian Ocean from the perspective of Southeast Asia outward toward Hadramawt, a region located in present-day Yemen from which most Arabs in Southeast Asia originated. Ultimately, it presents the result of the legislation after members of the Hadhrami diaspora attempted to bring their own regulation with them, inscribing territorial lines across the Indian Ocean through law.


Author(s):  
Reginaldo Souza Vieira

Resumo: Este artigo, a partir de reflexões da Teoria do Direito, tem por objetivo o estudo do Pluralismo Jurídico Clássico. A pesquisa restou delimitada pela construção teórica de Eugen Ehrlich, Santi Romano e Georges Gurvitch. Na primeira seção do texto, trata-se da concepção de direito vivo de Ehrlich, fulcrado na negação do Estado como única fonte do direito. Na seção seguinte, tendo por base Romano, analisa-se o seu conceito de instituição e da teoria da pluralidade dos ordenamentos jurídicos. Por fim, na última seção, discorre-se sobre o pluralismo jurídico de Gurvitch, com destaque para a teoria dos fatos normativos; a construção de direito social; e o direito social condensado.Palavras-chave: Pluralismo jurídico; Direito vivo; Teoria da pluralidade dos ordenamentos jurídicos; Direito social condensado.Abstract: This article, based on reflections of the Theory of Law, aims to study the Legal Pluralism Classic. The research remains bounded in the theoretical construction of Eugen Ehrlich, Santi Romano and Georges Gurvitch. In the first section of the text, it is the conception of living law Ehrlich, fulcrado in denial of the State as the sole source of law . In the following section, with the Roman basis, we analyze the concept of institution and the theory of plurality of legal systems. Finally, the last section, it talks about the legal pluralism of Gurvitch , especially the theory of normative facts , the construction of social law , social law and condensate.Keywords: Legal Pluralism; living law; Theory of the plurality of legal systems; condensed social law.


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):  
Brian Z. Tamanaha

Legal pluralism involves the coexistence of multiple forms of law. This includes state law, international law, transnational law, customary law, religious law, indigenous law, and the law of distinct ethnic or cultural communities. Legal pluralism is a subject of discussion today in legal anthropology, legal sociology, legal history, comparative law, international law, transnational law, jurisprudence, and law and development scholarship. This book places legal pluralism in historical context going back to the Medieval period, describes the origins of legal pluralism in postcolonial countries and its implications today, identifies manifestations of legal pluralism within Western societies, discusses contemporary transnational legal pluralism, identifies problems with current theoretical accounts of legal pluralism, and articulates an approach to legal pluralism that avoids theoretical problems and is useful for social scientists, theorists, and law and development scholars and practitioners.


Author(s):  
Bertram Turner ◽  
Melanie G. Wiber

Over the past twenty years, scholars in both anthropology and law (L) have found the approaches and concepts in Science and Technology Studies (STS) useful to understand techno-scientific transformations of the world. Legal scholars recognized that new scientific discoveries and technology interfered in the processes of routinization of social practices, creating new norms and influencing law. In the legal approach to STS, however, the focus has been on the law of the state and/or law deriving from the production of global governance institutions. Meanwhile, the encounter between anthropology and law has always had to take into consideration normatively effective mechanisms of social ordering that were not conventionally identified as law. Thus, the adoption of an STS perspective in legal anthropology was more open to exploring the normative power invested in other domains, such as the built environment, technologies, and inventories of knowledge and convictions such as religion. While L and STS are viewed as mutually constitutive of modernity, anthropological studies of legal pluralism (LP) have focused in recent years on multiple normative orders generated by world-making initiatives, including the normative power of technology under the influence of neoliberalism. In this contribution, then, we bring together law, science and technology studies, and legal pluralism to explore how normative orders are affected by materiality, technology, and scientific knowledge. In discussing the intersection of these three knowledge regimes, we find particularly useful concepts coming out of Actor Network Theory such as co-production, translation, boundary objects, and infrastructure.


Author(s):  
Paul Gragl

This chapter discusses and critically analyses legal monism and its main theoretical competitors (legal dualism and legal pluralism) from a philosophical, historical, and legal viewpoint. Legal monism will only be described in rather broad strokes and brushes here, since the remainder of this book is dedicated to its defence anyway. This rough overview will only serve to give an outline of the different versions of monism, which will then help make the case for the epistemological-normative version of monism as envisaged by the pure theory of law. Furthermore dualism, its main characteristics, and a critical appraisal, and legal pluralism and its most prominent varieties will be scrutinized and critiqued. A conclusion on the theoretical approaches discussed here eventually paves the way for the subsequent main parts of this book.


Author(s):  
Eve Darian-Smith

Since the nineteenth century anthropologists have been fascinated by law and legal practices in far-off cultures and lands. Legal anthropology, as a subfield of the discipline, has contributed enormously to contemporary sociolegal analyses of legal pluralism across the academy. Be that as it may, this chapter suggests that anthropology’s contribution is ultimately limited by the enduring analytical framing of legal pluralism within colonial/postcolonial contexts. Moreover, this analytical constraint prevents scholars from seeing other forms of legal pluralism of immense importance in analysing contemporary societies in which genealogies of colonialism and modernist units of analysis and assumptions of state power are not so evident or significant. The essay calls for anthropologists to think about legal pluralism in terms, and along lines of inquiry, that move beyond the discipline’s colonial legacies and conventional sites of research and to appreciate the global contexts in which all legal pluralism should be analysed.


Author(s):  
Nicholas Kasirer

Why has Quebec proved such a fertile ground for the study of legal pluralism over the last generation? It is not that formalism in law is any less tenacious in Quebec than elsewhere, or that the state-made law is held in lower esteem. If anything, the fabled cult of enactment that characterizes modern civilian methodology has been exacerbated in the run-up to the adoption of the Civil Code of Québec and the twenty years since that moment. The mixed nature of Quebec legal sources, given that mixité is seen as much as a historical fact as the basis for a way of knowing law, cannot explain the wealth of scholarly attention devoted to diversity in law. Whether Quebec's brand of pluralism for law comes from factors such as linguistic and cultural diversity, an ongoing contact with Aboriginal law, or a special experience with religious law is a matter of ongoing speculation. But in the final analysis, it is not unfair to think that legal pluralism has flourished in Quebec because of the work of a handful of imaginative scholars who have invested their talent in this intellectual project.Professor Jean-Guy Belley is plainly one of their number. His work as a theorist of legal pluralism is celebrated in Quebec and well read in France. Yet his prodigious scholarly output is less well known elsewhere in Canada, where that work would likely be understood to have special relevance. Indeed, over the past ten or so years, Professor Belley has placed increasing emphasis on Anglo-American legal scholarship and common-law sources in his teaching and thinking about law. The translation of the foregoing essay has therefore been prepared at once as a respectful homage to a friend and colleague and in the hope that, in a modest way, it might encourage a wider readership for his important work.


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