The Conceptual Problems Arising from Legal Pluralism

This paper argues that analytical jurisprudence has been insufficiently attentive to three significant puzzles highlighted by the legal pluralist tradition: the existence of commonalities between different types of law, the possibility of a distinction between law and non-law, and the explanatory centrality of the state. I further argue that the resolution of these questions sets the stage for a renewed agenda of analytical jurisprudence and has to be considered in attempts for reconciliation between the academic traditions of analytical jurisprudence and legal pluralism, often called “pluralist jurisprudence.” I also argue that the resolution of these problems affects the empirical, doctrinal, and politico-moral inquiries about legal pluralism.

Legal Pluralism, Human Rights and the Right to Vote: The Case of the Noken System in Papua

The goal of this article is to explore the clash between international human rights law and a legal pluralist framework in the case of the noken system and also to investigate potential solutions to the clash. Elections in Indonesia are generally founded on the principle of direct, universal, free, secret, honest and fair voting. There is a notable exception in the Province of Papua, where tribes in the Central Mountains area are following the noken system. Under this system, votes are allocated to the candidate(s) based on the decision of the big man or the consensus of the tribe. The Indonesian Constitutional Court has accepted this practice as reflecting the customs of the local population. However, this form of voting seems to be contrary to the right to vote under international human rights law, since article 25(b) of the International Covenant on Civil and Political Rights stipulates that elections shall be held genuinely by universal suffrage and secret ballot to guarantee the free will of the electors. Consequently, the case of the noken system in Papua reflects an uneasy clash between a legal pluralist approach and universal human rights.

Dynamics of Reasonableness and Fairness in a Pluralistic Legal System: Perspectives from Adat, Islamic and Civil Inheritance Law

Reasonableness and fairness are keystones of law. They are implemented broadly and important doctrine for civil law. However, the open nature of reasonableness and fairness allow various interpretations, influenced by the legal system, legal tradition, jurisprudence or measured on a case per case basis. Indonesia recognizes more than one kind of a legal system, making it a legal pluralist State. This article aims to describe the dynamics of the reasonableness and fairness principle within a pluralistic legal system. Indonesian inheritance laws use three different legal systems: Adat, Islam, and civil law, each provides distinctive perspectives of reasonableness and fairness. These differences may lead to a clash of interpretation or it may leave a wide room of discretion for the judges. Court judgments are analyzed to examine the implementation of such dynamics in practice. Finally, the outcome of the paper concludes whether the differences shall be embraced or whether there is a need to agree upon what is ‘reasonable’ and ‘fair’.

More Normativity

This chapter presents a second case study, focusing on standardisation. Standardisation is defined as a process of private regulation whereby private actors engage in the development of standardised norms for particular sectors of industry or for particular types of contract. Standards, which are widely used in European markets, can also serve as a case study for determining whether the substance of norms created through private regulation can fulfil the instrumental-normative aims of a legal pluralist theory of lawmaking in European contract and consumer law. Here, the enquiry is delimited to harmonised standards in EU law. Harmonised standards are developed by European standard-setting organisations (ESOs) at the instigation of the European legislator.

Membership and Global Legal Pluralism

Community is the building block of global legal pluralism. The state has been the dominant normative community in a global perspective. That reflected sociological realities on the ground. Global legal pluralism understands that the state no longer preempts other forms of community. Much of the legal pluralist literature considers the complex dynamic interaction of normative communities, state and nonstate. But it does little to consider from a normative perspective how those communities are constituted. This chapter maps a global legal pluralist approach to membership. It addresses questions relating to entry, exit, and expulsion. It does so with respect to membership in the state as well as membership in nonstate communities. It also considers issues relating to multiple membership. The chapter closes with some speculations on global citizenship, suggesting that membership in a global community has become meaningfully supplemental to membership in other communities. The chapter deploys archetypal cases, some real, some hypothetical, to illustrate membership’s consequence.

Legal Pluralism and the Problem of Evil

This chapter argues that the problem of evil is a way to reflect upon three underlying problems that pertain to legal pluralism as a critical, self-reflective theory. First, legal pluralism is prone to be absorbed by its “saved subjects.” Second, there is no theoretical space outside or above political contestation. Third, the legal pluralist herself potentially exerts influence on the observed through her observations. By analyzing the debate between Eugen Ehrlich and Hans Kelsen, the chapter demonstrates how these three issues accompany the development of the debate on legal pluralism and how the problem of evil emerges as its underlying enigma.

Pluralism in European Private Law

This chapter examines the further contours of an instrumental-normative approach, focusing on how the question ‘who does what, and at what level of regulation’ is answered by existing theories of legal pluralism in European private law. It has been said that most theories of legal pluralism in European private law, even if they proclaim to adopt a strong legal pluralist perspective, still fall back on an ordering of some sort. The chapter tests this assumption by analysing how the market rationality of EU law interacts with the juridical rationality of national private laws in relation to three aspects of lawmaking: actors, norms, and processes. It concludes that many theories of legal pluralism in European private law lean towards an ordering of some kind. Yet, at the same time the chapter reveals several instances in which inroads are made on the ordered conception of legal pluralism, which could provide the premises for the further development of a strong legal pluralist theory for European private law.

Legitimating global trade governance: constitutional and legal pluralist approaches

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A typology of local governments’ engagement with human rights: Legal pluralist contributions to international law and human rights

Local governments around the world have been engaging with international law and policy at an exponential intensity, with prominent engagement in climate change, migration and more recently human rights. This engagement cannot be adequately understood within the terms and framework of positive international law alone. This contribution aims to map and create a grounded typology of local government engagement with human rights, encompassing both activities within their localities and outside - at national, international or transnational scales. The article introduces local governments’ engagement in the Formation of Human Rights, Implementation of Human Rights, Defence of Human Rights, Coordination of Human Rights, Dissemination of Human Rights and the Contestation of Human Rights as empirical ideal types that have emerged from data through grounded theory. Analysing this engagement from the perspectives of both positive international law as well as legal pluralism, with specific focus on the New Haven School of Law, the article argues that local governments are now at the core of a newly formed norm-generating community. Local governments engage with local and international actors and processes both within the rules of inclusion of contemporary international law-making - seeking to expand these norms to include local governments themselves - but they also contest and challenge the very rules of the game in the first place, and resort to creating “human rights in the city” as a body of norms parallel to international human rights law. Whether we accept a pluralist understanding of international law to include local governments and their human rights engagement, or whether we consider these developments to be outside international law, forming a parallel normative order in the legal pluralist sense, local government engagement with human rights has already succeeded in reaching and influencing many established international actors and has already infiltrated recent instruments of positive international law.