lecture 7 Flashcards
what is legal pluralism
key idea of law
a concept that lawyers have had to adjust to— being awayre that there is more than just state law
what is The myth of natural homogeneity
idea that the state is going to be the source of national unity and above all the source of legitimate jurisdictions
but this isnt what it is
who came up with The myth of natural homogeneity
John Jay
what does Klaus Gunther say on infranational legal norms
“Legal pluralism or uniform concept of law? Globalisation as a problem of legal theory” No Foundations. April 2008.
Most academic as well as political debates about the law are still directed at the concept of a national legal order with a centralised and public legislation, with a legally bound executive power that is responsible to the sovereign people, and with a relatively autonomous judiciary that is committed to a coherent adjudication of a legitimate legal system (5)
what does legal pluralism bring to light
idea that there is a possibility that within the sam order/social/geographical space will coexist
we do not just have state jurisdiction and sovereignty
plural legal orders that over lap
what emerges out of this is the idea that the state is people are caught up in not just one system, but caught up in multiple legal systems sometimes— people navigate multiple plural orders sometimes to find one that suits their interest best
what does Gunther say on legal pluralism
[W]hen there are many different public and private legislators or different kinds of private and public actors participating in different legislations in different areas and on different local, infra-, inter- or supranational levels, then a uniform concept of law can no longer be maintained. Instead, legal theory has to deal with many different normative systems. The positivist concept of one legal system that is logically ordered and hierarchically differentiated turns into a plurality of legal regimes
basically; cannot maintain the idea of a uniform legal system, it has to draw upon many
what does Griffiths say on legal pluralism
“Strong,” “deep,” “new” legal pluralism:
[T]he social science approach to legal pluralism, provides for a more far-reaching and open-ended concept of law that does not necessarily depend on state recognition for its validity. Under this model, state law may be only one of a number of elements that give rise to a state of legal pluralism. For some scholars it has come to represent a more encompassing view of law that provides a broader, more inclusive platform for participation and recognition” (168).
basically; every legal system has rival jurisdictions— or co-existing juristictions (but there will always be a competitions)
systems of plural legal orders that arise simply out of the demands people have and what they bring (colonialism for example)
does not necessarily depend on state law, or things that look like state structures, for validity
this is a more encompassing vision of law that includes legal orders (the plurality)
what are some sources of legal pluralism
Development agencies and NGOs that are sources of legal pluralism
what is interlegality
We live in a time of porous legality or legal porosity, multiple networks of legal orders forcing us to constant transitions and tresspassings. Our legal life is constituted by an intersection of different legal orders, that is, by interlegality. Interlegality is the phenomenological counterpart of legal pluralism, and a key concept in a post-modern conception of law (15)
(de sousa santos, cited in Gunther)
basically; the legal orders overlap
what is The “Open” meaning of legal pluralism:
“Increasing awareness in the west of the traditional character of western thought now places western thought beside, and not above, other forms of thought” (31).
basically
idea of when we look at legal traditions in a comparative perspective we see that there isnt just a western tradition, there are other legal traditions that can be found and the idea of looking at legal pluralism from the perspective is that legal traditions and thoughts in western areas should be put above others
what are Gunther’s problems
Problem 1, Process
Problem 2, Legitimacy
what is Problem 1, Process
“How is it possible to adjudicate legal cases according to the minimum requirement of justice, i.e. to treat like cases alike and to treat people with equal concern and respect if there is no coherent legal system?”
so one of the foundational principles of the kinds of judiciaries that have arisen in the wet in common and civil law traditions is treating people and cases equally — like cases are treated like
you have to make reference to precedent and provide specific reasons why the facts of a new case are different from judicial decisions made in the past
this is a principle of fairness in most state legal systsems— yet if conditions of legal pluralisms arise with different jurisdictions making differed decisions than how do we maintain fairness
what is Problem 2, Legitimacy
“How is legitimate law possible then? . . . How can equal rights to access and participation be granted? Can procedures of self-regulation be transparent enough to guarantee imputability of decision makers and responsibility for decisions and their consequences?
what is legal pluralism in the canadian context
legal pluralism in canadian context:
emerged out of the commission of residential schools reconciliation
there was this idea that laws schools take course of aboriginal people
also an encouragement of law schools to teach indigenous legal traditions
this kind of legal pluralism is being institutionalized in canada— an obligation of states with indigenous people to understand and incorporate them ; these people had their own legal traditions and such, human rights have developed in such a way that it is recognized that their traditional legal systems should be recognized side by side with the state law
what does Borrows, John say
has made argument for recognition of aboriginal traditions in this particular case
recognizing the territorial rights of these people
he is arguing here is the way the crown framed rights of the people was unjust because it assumed that the crown was higher up and the most determining law
it isnt ligitamate for settler states to override our traditions and have most legal authority
he is arguing that the settler states cannot simply move them and their legal traditions aside and claim most authority
