Home About us Contact | |||
Legal Pluralism (legal + pluralism)
Selected AbstractsLegal Pluralism and the European UnionEUROPEAN LAW JOURNAL, Issue 3 2006N. W. Barber It claims that a legal system is pluralist when it contains inconsistent rules of recognition that cannot be legally resolved from within the system. The first part of the article sets out the model, demonstrating why it requires a departure from the classical accounts of law advanced by writers such as Hart and Kelsen. The second half applies this model to actual legal orders: first, to Rhodesia during the crisis of 1965, and then to the legal orders of the European Union. It is argued that there are interesting and important points of similarity between the two. [source] A Non-Essentialist Version of Legal PluralismJOURNAL OF LAW AND SOCIETY, Issue 2 2000Brian Z. Tamanha The concept of legal pluralism has been touted by many socio-legal scholars as a key concept in the analysis of law. Yet, after almost twenty years of such claims, there has been little progress in the development of the concept. This article will argue that the underlying cause of this lack progress lies in the fact that promoters of the concept have relied upon function-based, essentialist concepts of law. It will describe the problems generated by such concepts and, following this general analysis, will review the versions of legal pluralism articulated by Boaventura de Sousa Santos and Gunther Teubner. The critique of their versions of legal pluralism will lead into the posing of a non-essentialist alternative which avoids the conceptual problems of prevailing versions of legal pluralism, and provides a better tool for purposes of research and analysis of the relationship between law and society. [source] The Heterogeneous State and Legal Pluralism in MozambiqueLAW & SOCIETY REVIEW, Issue 1 2006Boaventura de Sousa Santos This article analyzes some of the most salient features of the state and the legal system in Mozambique. I propose the concept of the heterogeneous state to highlight the breakdown of the modern equation between the unity of the state, on the one hand, and the unity of its legal and administrative operation, on the other. The centrality of legal pluralism is analyzed in light of an empirical research focused on community courts and traditional authorities. I use the concept of legal hybridization with the purpose of showing the porosity of the boundaries of the different legal orders and cultures in Mozambique and the deep cross-fertilizations or cross-contaminations among them. Special attention is given to the multicultural plurality resulting from the interaction between modern law and traditional law, the latter conceived here as an alternative modernity. [source] Land Tenure and Legal Pluralism in the Peace ProcessPEACE & CHANGE, Issue 3 2003Jon D. Unruh Land tenure has proven to be one of the most vexing issues in a peace process. The disintegration of land and property rights institutions during armed conflict yet the importance of land and property to the conduct of conflict present particular dilemmas for a peace process attempting to reconfigure aspects of societal relations important to recovery. In this regard understanding what happens to land tenure as a set of social relations during and subsequent to armed conflict is important to the derivation of useful tools for managing tenure issues in a peace process. This article examines the development of multiple, informal "normative orders" regarding land tenure during armed conflict and how these are brought together in problematic form in a peace process. While there can be significant development of tenurial legal pluralism during armed conflict, it is during a peace process that problems associated with different approaches to land claim, access, use, and disputing become especially acute, because an end to hostilities drives land issues to the fore for large numbers of people over a short time frame. [source] National Judges, Community Judges: Invitation to a Journey through the Looking-glass,On the Need for Jurisdictions to Rethink the Inter-systemic Relations beyond the Hierarchical PrincipleEUROPEAN LAW JOURNAL, Issue 6 2008Florence Giorgi The historical conflict between the European Court of Justice (ECJ) and the national constitutional courts regarding primacy is a misunderstanding. In going through the looking-glass, we can understand that, on the contrary, the ECJ and the national constitutional courts adopt comparable solutions in their treatment of legal pluralism, and that they see the negation of pluralism as essential for the survival of their own legal orders. Therefore, these judges must be offered a new theoretical context to help them reconcile their role as supreme guardian with the taking into account of the pluralist context. Finally, practical proposals must be made to give judges the instruments and techniques that are capable of reflecting this plural structure. [source] From Boundary Drawing to Transitions: the Creation of Normativity under the EU Directive on Integrated Pollution Prevention and ControlEUROPEAN LAW JOURNAL, Issue 2 2002Bettina Lange This article aims to make a contribution to debates about how to conceptualise normativity. It argues that normativity can not be just understood through defining it and in particular through identifying conceptual boundaries around the normative and the non-normative. Instead the article suggests that it is important to explore how transitions between the non-normative and the normative occur in practice. This argument is developed through a critical examination of literature on legal pluralism and an analysis of qualitative empirical data on the drafting of technical guidance documents under the European Union Directive on Integrated Pollution Prevention and Control (96/61/EC). [source] A Non-Essentialist Version of Legal PluralismJOURNAL OF LAW AND SOCIETY, Issue 2 2000Brian Z. Tamanha The concept of legal pluralism has been touted by many socio-legal scholars as a key concept in the analysis of law. Yet, after almost twenty years of such claims, there has been little progress in the development of the concept. This article will argue that the underlying cause of this lack progress lies in the fact that promoters of the concept have relied upon function-based, essentialist concepts of law. It will describe the problems generated by such concepts and, following this general analysis, will review the versions of legal pluralism articulated by Boaventura de Sousa Santos and Gunther Teubner. The critique of their versions of legal pluralism will lead into the posing of a non-essentialist alternative which avoids the conceptual problems of prevailing versions of legal pluralism, and provides a better tool for purposes of research and analysis of the relationship between law and society. [source] The Heterogeneous State and Legal Pluralism in MozambiqueLAW & SOCIETY REVIEW, Issue 1 2006Boaventura de Sousa Santos This article analyzes some of the most salient features of the state and the legal system in Mozambique. I propose the concept of the heterogeneous state to highlight the breakdown of the modern equation between the unity of the state, on the one hand, and the unity of its legal and administrative operation, on the other. The centrality of legal pluralism is analyzed in light of an empirical research focused on community courts and traditional authorities. I use the concept of legal hybridization with the purpose of showing the porosity of the boundaries of the different legal orders and cultures in Mozambique and the deep cross-fertilizations or cross-contaminations among them. Special attention is given to the multicultural plurality resulting from the interaction between modern law and traditional law, the latter conceived here as an alternative modernity. [source] Water rights and legal pluralism: four contexts for negotiationNATURAL RESOURCES FORUM, Issue 1 2001Bryan Randolph Bruns Abstract Increasing water scarcity is increasing pressure on water management institutions, particularly in the area of water rights. A common response is to formalise water tenure, one of several options for securing access and resolving conflicts concerning water allocation. This article looks at four contexts where negotiation, self-governance and concepts of legal pluralism may help improve water resource management. Existing users and potential new users need to negotiate before water resources are developed. Users can participate in forums with authority to solve basin management problems through self-governance. Negotiated water transfers offer an alternative to water acquisition by expropriation. [source] Land Tenure and Legal Pluralism in the Peace ProcessPEACE & CHANGE, Issue 3 2003Jon D. Unruh Land tenure has proven to be one of the most vexing issues in a peace process. The disintegration of land and property rights institutions during armed conflict yet the importance of land and property to the conduct of conflict present particular dilemmas for a peace process attempting to reconfigure aspects of societal relations important to recovery. In this regard understanding what happens to land tenure as a set of social relations during and subsequent to armed conflict is important to the derivation of useful tools for managing tenure issues in a peace process. This article examines the development of multiple, informal "normative orders" regarding land tenure during armed conflict and how these are brought together in problematic form in a peace process. While there can be significant development of tenurial legal pluralism during armed conflict, it is during a peace process that problems associated with different approaches to land claim, access, use, and disputing become especially acute, because an end to hostilities drives land issues to the fore for large numbers of people over a short time frame. [source] |