Children in the Crossfire: Paternity, Law, and Survival in Nineteenth Century Transylvania

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.

Historically, legal pluralism was relied upon by members of a colonized nation or an oppressed minority to claim respect for human dignity from the colonizing nation or from the dominant majority. Today, legal pluralism has become part of the official orthodoxy of national and supra-national law. It is often invoked by leaders of large and powerful public and private organizations, who endorse “soft law” approaches to legal regulation (e.g. codes of conduct). In this context, respect for human dignity risks being marginalized or even denied to individuals as legal subjects within a global society dominated by impersonal corporations and entities. For legal pluralism to reinforce human dignity rather than human alienation, it is necessary to maintain a critical perspective on alternative forms of “soft law” regulation, rather than assuming that they are necessarily or always progressive.

Legal pluralism is a contemporary image of law that has been advanced by sociolegal scholars in response to the dominant monist image of law as derivative of the political state and its progeny. The pluralistic image redirects law and society research toward the myriad normative orders outside the circle of “the Law.” This essay considers the epistemological foundations of both legal pluralism and the legal monist image of law against which its proponents are reacting. It argues that contemporary pluralistic imaginations rest on the same impoverished view of law and its subjects that sustains the traditional claim that law comprises only the processes and institutions emanating from the modern political state. The authors propose an alternative image of law in an effort to redirect the sociolegal studies research agenda.Challenging the traditional social-scientific legal pluralism of reified cultures and communities, the idea of critical legal pluralism presented in this essay rests on the insight that it is knowledge that maintains and creates realities: a critical legal pluralism imagines legal subjects as “law inventing” and not merely “law abiding.” The authors argue that, once the constructive, creative capacities of legal subjects are recognized alongside the plurality of these same subjects, the relationship between laws and selves reveals its complexity. They acknowledge that their approach is only one of many possible critical legal pluralist approaches; but they maintain that any reconception of law within a framework of critical legal pluralism is a form of emancipatory prescription. As definitions of law are revised and rejected, new vistas are opened for sociolegal scholarship.

Legal pluralism involves the proposition that more than one manifestation of law exists in many social arenas. The legal pluralist paradigm is propagating across academic fields. In the 1970s, jurists and legal anthropologists working in colonial and post-colonial societies wrote about the coexistence of state law in various relationships with customary law, religious law, and indigenous law. The paradigm was taken in a different direction in the 1980s when a group of sociologically oriented jurists argued pervasive legal pluralism exists in all societies, now identifying law in terms of institutionalized rule systems and concrete patterns of normative ordering. An overview at the close of the decade declared, ‘Legal pluralism is a central theme in the reconceptualization of the law/society relation.’ Thereafter the notion continued to travel. In the past decade, ‘legal pluralism has become a standard fare in international and comparative law circles.’ Jurisprudence is the latest field to take up legal pluralism. In Pursuit of Pluralist Jurisprudence (2017), edited by Nicole Roughan and Andrew Halpin, is a collection of essays on the topic by a stellar cast of jurisprudents. A fresh breeze is sweeping through legal theory, shaking old verities, opening new vistas. The ‘exclusive concentration on state law was, it now turns out, never justified, and is even less justified today,’ Joseph Raz declared in this volume. Bringing theoretical attention to bear on multiple forms of law unsettles everything. ‘Instead of law we have laws, instead of methodology we have methodologies, and even plurality itself is observed and analyzed pluralistically,’ write Roughan and Halpin. The publication of In Pursuit of Pluralist Jurisprudence provides an occasion to convey key insights offered by legal pluralism and to expose confusions that threaten to impede fruitful engagement by jurisprudents. There are two major sources of confusion. First, legal pluralism encompasses three distinct clusters of ideas, blurred together by the same label and repeated narratives that portray them as continuous, though the differences are substantial. I label them manifest legal pluralism, sociological legal pluralism, and supranational legal pluralism. Second, analyses of legal pluralism have been dominated by theoretical groundwork articulated in ‘What is Legal Pluralism?’ by John Griffiths; though he later repudiated his core position owing to insurmountable conceptual flaws, it continues to shape and distort the discussion. Unpacking these sources of confusion will facilitate the jurisprudential analysis of legal pluralism. The topics covered in this essay are: Why Pursue Pluralism Jurisprudence?; Manifest Legal Pluralism; Sociological Legal Pluralism; Supranational Legal Pluralism; Promise and Conundrums of Pluralist Jurisprudence.

This is a study of some contemporary anti-authoritarian movements in Britain, specifically that concerned with social centres. It considers their interactions with the law, and the forms of their own law. Making use of unstructured interviews with members of the squatting and social centre community in British cities, alongside members of a number of collectives, the paper gives an account of the way in which these communities autonomously run their activities and manage conflicts. It is argued that the social centre movement uses a mish-mash of both illegal and legal forms, labelled illegitimate by the law and yet incorporating and manifesting new forms of law at the same time. Squatting bases itself upon the reclamation of social space, the reclamation of the forsaken land that has been gobbled up by capital. It harks back to an era when there were no fences, no borders, nothing enclosed. Autonomy is a reaction to this dispossession, and the memory that it ignites is that of the commons. Social centres may be seen as embodying spaces of resistance, that are created through the navigation of alternative normative fields, in parallel with the influence of the state order. However, the movement in practice benefits from provisions in British law which are seen as giving ‘squatters’ rights’ and creating ‘licensed squatters’.These innately anti-authoritarian forms of resistance in practice operate in a law-making fashion, creating ‘hidden law’. This law evades the spotlight of the system, is non-hierarchical, non-representative and non-coercive. This study seeks to highlight the legal/illegal processes and forms of hidden law as instances of resistance to social injustice through the aegis of legal pluralism. It shows that the relationship of the movement to the law of the state is varied and ambiguous, and discusses how literature on legal pluralism may assist in the understanding of how far it embodies a ‘strong’ or ‘weak’ pluralistic nature.

There were tens of thousands of different local law-courts in late-medieval England, providing the most common forums for the working out of disputes and the making of decisions about local governance. While historians have long studied these institutions, there have been very few attempts to understand this complex institutional form of ‘legal pluralism’. Law in Common provides a way of apprehending this complexity by drawing out broader patterns of legal engagement. The first half of the book explores four ‘local legal cultures’ – in the countryside, towns and cities, the maritime world, and Forests – that grew up around legal institutions, landscapes, and forms of socio-economic practice in these places, and produced distinctive senses of law. The second half of the book turns to examine ‘common legalities’, widespread forms of social practice that emerge across these different localities, through which people aimed to invoke the power of law. Through studies of the physical landscape, the production of legitimate knowledge, the emergence of English as a legal vernacular, and the proliferation of legal documents, it offers a new way to understand how common people engaged with law in the course of their everyday lives. Drawing on a huge body of archival research from the plenitude of different local institutions, Law in Common offers a new social history of law that aims to explain how common people negotiated the transformational changes of the long fifteenth century through legality.

Does Legal Theory Have a Pluralism Problem?

PurposeThe purpose of this paper is to explore how accountability practices are affected and potentially transformed when mediated by translation. Adopting a postcolonial lens, the authors consider the ways in which translation functions and how intermediaries act as cultural translators in the context of microfinance.Design/methodology/approachThe authors take a qualitative approach to a case study of a microfinance organization based in South Africa. Fieldwork allowed for the collection of data by means of direct observations, interviews, documents and a fieldwork diary.FindingsThe study demonstrates the presence of spaces of hybridity that co-exist within the same organizational context (Bhabha, 1994). Two spaces of hybridity are highlighted, in which translation processes were possible because of the proximity between borrowers and fieldworkers. The first space of hybridity was found locally and here translation shaped an accountability that aimed at leveraging local cultures and favoring cultural framing. The second space of hybridity was characterized by the interaction between oral and written cultures and the translation of responsibilities and expectations was predominantly unidirectional, prioritizing accountability practices consistent with organizational requirements.Originality/valueThis research offers in-depth insights into the links between intermediation, translation and accountability practices. It differs from prior research in considering intermediaries as active translators of accountability practices who act in-between cultures. The authors contend that the translation process reinscribes culture allowing dominant accountability practices to prevail and local cultural traditions to merely contextualize accountability practices.

Sanskrit Law: Excavating Vedic Legal Pluralism

ABSTRACTStudies in legal pluralism have contributed to the framing and understanding of legal systems in the developing world. This article utilizes the conceptual framework of legal pluralism as an all embracing field in which the inter-connectedness of state and non-state laws can be more deeply explored, and through which grassroots realities including local actors’ internalisation of international human rights laws can be analysed. In terms of “pluralism” this article examines some of the numerous units of non-state law or regulation operating on the ground in addition to or instead of formal state law. In this way, the role and contribution of studies in legal pluralism within the global North/global South debate becomes one that elucidates the resilience of non-state laws and norms in the face of contemporary global changes and state legal reforms. Working from a grounded theory paradigm, and drawing on the discourse of women victims of violence, accused and their families in eight states of India, the data presented here highlight various aspects of the limits of law's capabilities, the power of informal laws operating on the ground and the relationship of formal law with family and community non-state laws and norms. They further highlight how through the lens of legal pluralism, we can more clearly assess not only the actual workings of transnational human rights laws and domestic laws in compliance, but also the impact and internalisation of these laws by those whom they are designed to protect.

El feminismo ilustrado ha sido la condicion necesaria para que haya democracia, y, a su vez, la democracia es el unico sistema politico que puede garantizar la igual dignidad humana de cada persona y su igualdad en derechos para desarrollar libremente su personalidad. Este logro inserto en la normativa internacional, de la Union Europea y las Constituciones democraticas, que necesita de la accion de los poderes publicos para crear las condiciones de igualdad, se ve amenazado por las resistencias del patriarcado bajo la forma del multiculturalismo comunitarista y la defensa de la identidad cultural del grupo, que sacrifica a mujeres, ninas y ninos La existencia del pluralismo democratico a traves del ordenamiento juridico comun del Estado es la unica garantia de proteccion de cualquier persona, incluso frente a su propia familia. No puede admitirse, por eso, el pluralismo juridico, que agrupa a las personas segun su sexo, etnia o religion. Hay que pasar de un modelo social dominador a uno solidario.

This chapter presents a historical context of legal pluralism. A pivotal shift of the past several centuries has been from law attached to a person's community toward territorial states that claim a monopoly over law—a long-term project that has always been marked by major exceptions and has never been fully completed. Prior to this shift, the widely held view, now largely forgotten, is that everyone was entitled to be judged by the law of their community, called “personal law” at the time because it attaches to each person, though the chapter descriptively labels this “community law” to enable comparisons to other contexts. The first step is to understand empires, which are cauldrons of legal pluralism, using the Roman Empire as an example. The chapter then covers legal pluralism during the High Middle Ages, followed by the slow process by which the state gradually crystallized, absorbing other forms of law within its ambit, though not entirely. It also addresses three legally plural contexts in the early modern period into the twentieth century: the millet system in the Ottoman Empire, extraterritoriality, and the plural legal system entrenched in India by the British East India Company.

Legal theory has been criticized by legal pluralists on the grounds that it has a “pluralism problem.” In a nutshell, legal theory’s pluralism problem stems from the fact that it explicitly or implicitly assumes the model of state law whenever it refers to law. This is problematic both because such a state-based conception of law fails to capture myriad nonstate forms of law existing in different contexts and because it runs the risk of supporting oppression in postcolonial contexts where indigenous laws are pushed out by colonial laws which conform to the (state-based) legal theoretical paradigm. This chapter focuses on the former, analytical, limb of legal theory’s pluralism problem by breaking the problem down into three specific claims; two which pluralists argue legal theory defends: a strong claim—that all law is necessarily state law; an intermediate claim—that state law is a paradigmatic or the “best” form of law; and one made by pluralists about legal theory: a weak claim that legal theory has unwarrantedly neglected nonstate forms of law. It analyzes each claim in turn reviewing the relevant claims in legal theory. It concludes that if legal theory does have a pluralism problem, and the analysis undertaken in this chapter suggests that it might in some respects, it is not a particularly profound one. As such, much of the resources of legal theory can be adopted to capture a wide variety of both extant and new emergent forms of nonstate law.

Artificial intelligence (AI) systems are set to assume a growing number of tasks that have been the traditional domain of human rulemaking and rule-enforcing agencies. However, the world into which AI will be deployed is one of legal pluralism and hybrid property governance. Building on legal pluralist scholarship and on parallel developments in the US, UK, Ukraine, China, and India, this article provides an exploratory analysis of how AI systems may fit with plural property rulemaking and enforcement regimes that encompass both formal law and informal social norms. We also use Elinor Ostrom’s Institutional Analysis and Development (IAD) framework to analyze how AI systems may operate in a plural legal environment where local, community-specific, informal “rules-in-use” may depart from stated, formal “rules in books” to produce a system of hybrid property governance. AI has the potential to bring higher levels of efficiency and consistency to such administrative tasks. At the same time, we find that if AI systems are designed to ignore the social and legal pluralism in which they are embedded, they may well erode public trust, legitimacy, and justice in highly socially complex contexts that are too variable or local to be treated as standardized or to have rule-of-law principles uniformly imposed on them. We therefore argue that the operational design details of AI systems and their use in hybrid governance arrangements matter, that rule enforcement algorithms that are context-blind or context-oblivious are likely to have distributive impacts that increase conflict and injustice, and that the context matters because local governance arrangements do. Cases of socially contextualized AI property governance systems, from automated traffic cameras in India to predictive policing in the UK to mortgage fraud detection in the US, illustrate a tension between a desire to automate the standardized enforcement of rules using AI and people’s desire for relational social norms. The article presents a framework and some concrete design considerations to help guide the participatory design of AI in plural property governance contexts that surfaces, engages, and accounts for stakeholders, local norms, and legitimacy criteria. In so doing, we aim to contribute to and expand the normative and institutional AI governance literature as well as the literatures on legal pluralism and institutional design.

Legal pluralism provides an alternative and very useful way of thinking about the legal as well as about discourses about the legal, as it sets itself the multiple task of looking at the law and theory both from an internal and an external point of view. This article distinguishes between two main theoretical strands of legal pluralism. Empiricism-positivism includes early sociological endeavours that trace selfregulating social groups and point out that the formal law of the state is not and cannot be responsive enough to those legal orders. Anthropological legal pluralism, which studies the ways peoples living within a congruent State regulate themselves despite the existence of a central law, also belongs here. Empiricism-positivism commits the fallacy of trying to define the law criterially, thus importing in that pluralistic law the knowledge of a dominant legality. This is what the ‘other’ legal pluralism is anxious to avoid. It turns to new ways of understanding the legal and seeks to make sense of and also facilitate the interpenetration of dispersed legalities. In particular, I refer to the work of three theorists. Günther Teubner and his systemstheoretical legal pluralism, Boaventura de Sousa Santos and his suggestion that new subjectivities emerge, and Robert Cover and his account of jurisgenerative commitments and the violence committed by state law. I argue that, although they too suffer from various shortcomings, these three approaches to legal pluralism can be fruitfully combined. From that combination a new understanding of legal pluralism will emerge as the radicalization of the way we think about the legal, an understanding that collapses observation into participation and thus leaves it up to regulatory discourses themselves to organize their communication. Finally, I argue that this legal pluralistic knowledge cannot be achieved by an already established and institutionalized legal order. At a first stage it is academic legal studies that must provide a forum, in which the dispersed legal discourses and theories can reveal themselves and communicate with each other.