Legal Pluralism Research Articles

The cunning of legal pluralism: negotiating monism and pluralism in Buddhist law

Arguments about normative unity and multiplicity dominate a great deal of scholarship on legal pluralism. Yet such arguments are not only advanced by academics, nor are they value-free descriptions of law. Notions of legal unity and multiplicity may also be deployed strategically by the legal actors that scholars study in order to advance their own interests, or criticize others. This article considers this fact, along with its methodological consequences, by highlighting conceits of unity and multiplicity as they operate within Buddhist monastic law in Sri Lanka. Drawing on Buddhist legal texts in Sri Lanka’s main vernacular language of Sinhala as well as the Theravāda Buddhist liturgical language of Pāli, this article illuminates competing theories of legal monism and pluralism operating within traditions of Theravāda Buddhist monastic law. In so doing, it explores the complex politics—of averring or critiquing the self-presentation of legal authorities—that necessarily accompanies the study of religious law and other forms of non-state law.

Ambiguous Outcomes of Returnees’ Land Dispute Resolution and Restitution in War-Torn Burundi

Redressing land dispossession in the aftermath of violent conflicts is daunting and complex. While land dispute resolution and restitution are expected to promote return migration, this outcome is contingent upon the changing social, economic and political conditions under which return takes place. Drawing on qualitative data from Makamba Province in southern Burundi, this case study highlights the politically and historically shaped challenges underlying the resolution of competing and overlapping claims on land following protracted displacement. These include the undocumented and fluid nature of customary land rights, institutional and legal pluralism and shifting land governance relations. This paper emphasises the centrality of the state in regulating returnees’ land dispute resolution and restitution processes. Violent conflicts and forced migration have enabled the state to expand its control over customary land tenure. The gradual exclusion or replacement of local authorities has shaped a competitive structure of jurisdictions and confused authority over land. National land restitution commissions have been used by the central government to shape land tenure and state–citizen relations and to exert pressure on land tenure institutions. Addressing competing claims on land following armed conflicts may fail if attendant struggles over public authority and changing political dynamics are insufficiently considered.

The Conceptual Problems Arising from Legal Pluralism

AbstractThis 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 and Science and Technology Studies: Exploring Sources of the Legal Pluriverse

In introducing the contributions to this special section, we explore the links between social and juridical concepts of normativity and science and technology. We follow the Legal Pluralism challenge to the notion of state law as the sole source of normative order and point to how technological transformation creates a pluralistic legal universe that takes on new shapes under conditions of globalization. We promote a science and technology studies (STS)-inspired reworking of Legal Pluralism and suggest expanding the portfolio of legally effective regimes of ordering to include the normativity generated by materiality and technology. This normativity is amply demonstrated in the case studies included in the papers which make up this special section. We conclude that the inclusion of approaches developed in STS research helps analytically to overcome what we view as an incomplete law project, one unable to deal with the technicized lifeworlds of a global modernity. The contributions to this special section illustrate that technomaterial change cannot be understood without recognition of the role of normative impacts, and conversely, the legal pluriverse cannot be understood without recognition of the normative role of techno-material arrangements.

The importance of addition, competition, collisions of law principles for enforcement and other types of legal activities

The subject of this research is the problem of combining (interrelation) of various principles of law used in the framework of law enforcement and other types of legal activity.The purpose of the study is to confirm or refute the hypothesis that the principles of law can not only complement each other, but also "collide" with each other when they are used in the framework of legal activity.The research methodology includes dialectics, systems approach, specific sociological methods, culturological and theoretical-sociological analysis, formal legal method. The author describes the degree of scientific elaboration of the problem in foreign and Russian studies, including works devoted to such related topics as the functions of the principles of law and the system of principles of law, as well as the opinions directly on the issue of R. Dworkin and A. Barak.The main results, scope of application. The author substantiates the presence of at least three ways of combining (interconnecting) the principles of law: (1) addition – the concerted action of several principles; (2) competition – limiting the operation of one principle to another; (3) collision – direct contradiction of one principle to another, their mutual exclusion. The definition of factual circumstances, the choice of applicable rules and their interpretation by court or other enforcement official can be influenced by ideology underlying the prevailing practice or the enforcer's own position. The specificity of a particular ideology is correlated by the author with the use of one or another combination of principles of law when making a law enforcement decision. It is shown in the article with specific examples of so-called "complex cases" from the practice of Russian higher courts. Complementing the principles of law is the predominant way of their relationship, used in law enforcement. It contributes to the preservation of the unity of the system of law. At the same time, the consistent implementation of one principle can limit the possibilities for the implementation of others. It leads to the fact in the process of law enforcement that it is often necessary to make a choice in favor of one of the principles within the framework of their competition. This choice is determined by several factors, including not only the established practice (law enforcement customs and precedents), but also the current social context, the position and interests of the law enforcement officer and the participants in the case. Finally, in some cases, situations are possible when the principles of law are mutually exclusive, come into conflict with each other. This, in particular, can occur when the principles of law belong to different systems (subsystems) of law or reflect the peculiarities of the legal ideology of different historical periods. The article identifies certain patterns of combining the principles of law, examines the importance of this topic for studying the issues of legal monism and legal pluralism, shows the importance of complementarity, competition and conflict of principles of law not only for the law enforcement process, but also for the knowledge of law, criticism of law, lawmaking, powerless implementation rights.Conclusions. Although within the framework of the traditional approach for domestic jurisprudence, the essence of law is associated with the interests and property relations reflected in the law, legal ideology has a relatively independent meaning nevertheless. A certain duality is inherent in legal activity, as a result of which the problems of combining interests are expressed precisely through various options for combining the principles and norms of law. It is proved that the system of principles of law is a complex system in which the same principles can be used in various combinations with each other.

Land access and conflict issues of tribal peoples in Bodoland territorial region of Assam, India

Inequitable land access and land disputes are commonly mentioned as major causes of instability in the Bodoland region. Land problems are frequently invoked as a more potent debating tactic in conflict. For tribals in the region, land reform, ownership, registry, legal pluralism, boundary difficulties, landlessness, insecure land usage, and other associated issues are all major concerns. Major land legislation has failed to significantly reduce the number of major land disputes in the region. The British Colonial rule in India created substantial disruptions to land practises and possessions, which are still felt today in various regions of the country and in Northeast India, notably Assam. It's clear that the land issue is still relevant and active.

Sharia, Legal Pluralism and Muslim Personal Law: Ethnographic Lessons from the Mahallu System of Malabar, India

Contemporary public as well as academic discourse on personal law in India has over the years engaged with the issues of its inadequacies, judicialisation and uniformity. This discourse has paid scant attention to the functioning of the law and the complexities of a multicultural nation-state committed to the idea of political secularism. This paper engages with the mahallu system of Malabar and sheds light on how decision-making in Muslim personal law is a process embedded in quotidian micro-politics, sectarian dynamics, social censure and affect. By tracing a triple talaq case in its ethnographic details we show that love (or lack of it), kinship expectations and community authority come together in resolving a conjugal dispute that does not lead to a straight path of legal interpretation but into a labyrinth of micro-politics of local religious factions and authority. The paper shows that the non-state quasi-legal institutions that come under the rubric of the mahallu system comprise of a particular kind of legal pluralism which is complex and replete with multilayered relations of power. This also brings to fore the binary and the play between what is considered to be legal and legitimate.

Muslim marriages, the South African state and the courts: between limbo, liberation, and the spaces for contestation in-between

ABSTRACT A central feature of South Africa's legal system under white minority rule was the state's institutionalisation of racist structures and a distinct Christian bias in religious matters. Muslim marriages were not recognised because they permitted polygamy. Majority rule in 1994 resulted in the adoption of a new constitution that recognised non-Christian and ‘non-European' beliefs and practices, and some Muslims lobbied for the legal recognition of Muslim marriages. While the new political context was sympathetic to accommodating multicultural practices, legislation stalled because of differences among Muslims over what constitutes Muslim Personal Law (MPL). This article focuses on debates in South Africa on state governance of Muslim family law and how, in the void created by the absence of legislation, the country’s courts have seized the initiative through ex-post facto recognition of the consequences of Muslim marriages. South Africa thus represents a peculiar case of the courts recognising the consequences of Islamic marriages, even while Parliament has failed to write this into law. As such, South Africa provides a stark contrast to many other countries where there is acrimonious debate over legal pluralism and, in particular, accommodating MPL.

Beyond transplantation and hybridisation: the distinctiveness of the System of Case Guiding

ABSTRACT Two paradigms are dominant in the international discourse on the System of Case Guiding (‘SCG’). The first ‘transplantation’ paradigm posits that the SCG is a straightforward transplant of the Anglo-American system of common law. The second ‘hybridisation’ paradigm views the SCG as a distinct but inferior common law, held back by its ‘Chinese characteristics’. These paradigms are challenged as being partial, outdated and inaccurate accounts of the SCG on two tiers. On a comparative and theoretical tier, this article builds upon the foundations of three concepts to mount its sustained critique. First, preferring Teubner’s description of legal change and reform as proceeding by legal ‘irritation’, it is argued that the notion of ‘transplantation’ is too blunt an account of how contemporary legal reform within the People’s Republic of China (‘PRC’) has sought to learn from and build upon the experiences of other legal systems. Second, accepting Santos’s call for a decentred approach to globalisation, the development of the SCG is situated foremost within its local context, instead of by reference to foreign systems of precedent. In doing so, this article moves beyond the old paradigms of ‘transplantation’ and ‘hybridisation’ towards a recognition of the distinctiveness of the SCG as an autochthonous innovation of the Chinese legal community that has been precisely tailored to its unique conditions. Third and finally, applying the concept of legal plurality to the practice of using Guiding Cases and precedent more generally, it is recognised that the development of the SCG has been driven, not only by the top-down actions of the Supreme People’s Court (‘SPC’), but also by its synergistic interaction with the bottom-up use of precedent by the wider legal community of litigants and legal professionals. Freed from the conceptual burdens of these two paradigms, this article proceeds to advance this theoretical basis for understanding the SCG by reference to an empirical analysis of three Guiding Cases – Numbers 24, 15 and 9. The first two are the most highly cited Guiding Cases; the third was one of the most often cited Guiding Cases as well, before losing its guiding effect. By reference to these three case studies, which involved analysing 939 judicial decisions, this article constructs a pluralistic account of the evolving judicial practice of referencing Guiding Cases. First, it is found that the distinctiveness of the SCG stems from the referent function of Guiding Cases, which is at the core of its judicial practice. This referent function is evident from the vast majority of judicial decisions that cite or refer to one of the three Guiding Cases as a formal authority for reaching their conclusion, without more. Second, however, it is also found that while this function of Guiding Cases might be the dominant form of judicial practice at this moment, this practice is not monolithic and is in fact changing at the margins. A small minority of cases since 2016 are illustrative of the potential trajectories of evolution for the next ten years of the SCG and the judicial practice of referencing Guiding Cases. These cases have evinced a greater willingness by courts to engage more meaningfully with precedent-based forms of reasoning, such as arguing from the facts of a case and arguing from the principles stated therein. This greater engagement has not only been driven by top-down mandates to search for and reference a wider variety of cases beyond Guiding Cases, but has also been driven by the bottom-up use of precedents by litigants in presenting their legal arguments before the courts. While these marginal practices are still in their infancy, the empirical analysis provides evidence of a complex, complicated and pluralistic practice of greater and more substantial reliance on Guiding Cases within the PRC.

Legal Pluralism: Opportunities for Development from a Constitutional Perspective in Latin America

The recognition of legal pluralism by International Law on Human Rights, especially by Convention 169 of the ILO, as well as its positivization in the Constitutions of some Latin American states, allows us to affirm that this principle must move from its foundational phase to the phase of its consolidation. Through a qualitative and theoretical methodology that analyzes the state of the art proposed by recognized authors on the subject, this article aims to describe legal possibilities to overcome the current stagnation in the theoretical development of legal pluralism. With this, the author aims to describe the current perspective with which legal pluralism is studied, showing a problem of approach based on the lack of coordination and articulation between legal science, legal sociology and legal anthropology, causing a crisis and a stagnation in the development of the concept. Effectively, whit the recognition of indigenous normative systems in Latin American constitutions and their current development, it can be affirmed that the solution, of course, is that the study of legal pluralism must be carried out from the perspective of law. This is the only way to facilitate a normative and interjurisdictional dialogue between indigenous law and state law in the strict sense, which will make legal pluralism effective. In Colombia, the Special Jurisdiction for Peace is not only an example of this beginning of dialogue between jurisdictions, but also leads to the conclusion that legal pluralism is constituted as a core element in the new Latin American constitutionalism to guarantee the obligatory and binding nature of indigenous normative systems through dialogue between the civilized nations that make up a state.

Protection of Sacred Sites – Between Legal Pluralism and Cultural Ecology

My background is in philosophy of law but I work with different academic disciplines: law, philosophy, anthropology, theology, history and economics. My approach to protection of sacred sites is interdisciplinary, multidisciplinary and cross-disciplinary. Generally, my aim is to present different theories concerning law and cultural ecology and apply these to case studies on protection of sacred sites.

Law of the Forest: Early Legal Governance in Bosnia-Herzegovina during the Inter-Imperial Transition between Ottoman and Austro-Hungarian Rule, 1878–1901

This article investigates the capacity and quality of governance through the prism of forest use regulation in Bosnia-Herzegovina during the inter-imperial transition between Ottoman and Austro-Hungarian rule. It does so by bringing the question of access to natural resources into the frame of imperial governance formation, which is analyzed from the perspective of legal regulation of ownership and usage rights of forests. The analytical focus is set on the early phase of Austro-Hungarian occupation in Bosnia-Herzegovina, which was marked by political uncertainties and a legal arena where multiple and often conflicting norms coexisted. It shows how the consolidation process of legal arrangements and administration apparatuses did not follow any linear, teleological development towards a strong imperial state or homogenous Rechtsstaat that simply arrived and set up its governing institutions. Instead, governing bodies soon found their interests clashing with those of other local parties. Bureaucracy developed through time- and place-bound practices, which often had to adjust to complex social and environmental realities. During this process multiple attempts failed, while certain practices were implemented unevenly. In the process of asserting its own interests, the imperial administration relied on Ottoman legislation, which gradually became modified, resulting in legal pluralism and entangled imperial legacies.

ПРИНЦИПИ ЗДІЙСНЕННЯ ГРОМАДСЬКОГО КОНТРОЛЮ ЗА ДІЯЛЬНІСТЮ ПУБЛІЧНОЇ АДМІНІСТРАЦІЇ В ЗАКОНОДАВСТВІ УКРАЇНИ

The article analyzes the legal relations of the realization of the rights of natural persons united in public associations to exercise public control over the activities of state authorities and local self-government bodies, their officials and officials as subjects of public administration. The doctrinal positions of individual domestic scientists regarding the peculiarities of legal regulation of public control relations in our country are characterized. It has been established that the state policy in the field of organization and implementation of public control over objects of public control represents the state's reaction to specific issues of socio-political relations, which is designed to reconcile the interests of all layers of society, to find a consensus necessary for the stability of Ukrainian society and the maintenance of interstate social - political balance of relations. The concept of the author's definition of "state behavior" is proposed as the exact and unwavering observance by the objects of public control of the rules of behavior, activity, relations, and official duties established by law, as well as the timely and full performance of state tasks and obligations by them. As a result of the study of the identified issues, the introduction of changes and additions to the Law of Ukraine "On Public Associations" of the following content is substantiated. In particular, article 3 is proposed to be called "Principles of the formation of public associations and the procedure for their control activities according to the statesmanlike behavior of public servants" and to be supplemented with the principles of democracy and legal pluralism. Section III ("Rights and activities of public associations" should be supplemented with the article "Grounds for the exercise of public control over the state behavior of public servants" and include the author's list of the specified grounds. The author's generalizations on the issues of the research were formed and the prospects for further scientific investigations regarding the improvement of tasks were determined, functions and powers of public associations as independent subjects of implementation of state policy regarding the transparency and legality of activities of subjects of public administration.

The role of recognition: persons, institutions and plurality

An emphasis in jurisprudence on the rule of recognition drives a wedge between the recognition of institutions and persons, and seeks to limit the normative significance of law's recognitive practices. This article argues, against that position, that law's recognitive practices unavoidably engage the recognition of persons, by persons, and that legal theory must attend to the interaction between recognition of institutions and persons. Those matters become core concerns in contexts of claims to legal plurality, amidst the challenges of recognition posed by the interaction of legal orders and the persons subject to them. Drawing upon theories of recognition beyond jurisprudence, this work offers an account of ‘institutional recognition of persons’ to harness the normative potential of both law's institutions and persons, in order to respond to claims that legal plurality enables persons to be recognized by institutions and to recognize themselves in institutions.

Legal Pluralism and Fragmented Sovereignty in Iraq

Legal Pluralism and Fragmented Sovereignty in Iraq

Rights of Nature, Globalization and Legal Pluralism: The Netherlands Country Report

Rights of Nature, Globalization and Legal Pluralism: The Netherlands Country Report

A Theory of a State? How Civil Law Ended Legal Pluralism in Modern Egypt

AbstractʿAbd al-Razzāq al-Sanhūrī (d. 1971), the father of the Egyptian legal code, theorized a relationship between dīn (religion) and dawla (state) that was key to his project. In this relationship, al-Sanhūrī posited a delineation between the spheres of dīn and dawla that allowed him to map these categories onto the existing distinction between matters of ʿibādāt (acts of worship) and muʾāmalāt (transactions) in Islamic law (fiqh). I propose that Islamic jurisprudential distinctions between ʿibādāt and muʿāmalāt—for al-Sanhūrī—was the ideal medium to maintain and police the borderlines between religion and state in the postcolonial Egyptian state. Al-Sanhūrī's objective was to keep the domain of dīn outside of state sanction and to facilitate a transition whereby the state's legal institutions assumed exclusive lawmaking powers based on its own independent legal reasoning in Islamic law (ijtihād). I argue that al-Sanhūrī was a committed comparatist, not a reformer of Islamic law. Al-Sanhūrī's legal project should be viewed as a faithful commitment to French comparative law as a method of legal inquiry and a reflection of his nationalist agenda of creating a unified legal order that cannot exist without relying upon indigenous forms of law and culture. Al-Sanhūrī saw Khedival legal pluralism as an obstacle for national sovereignty. As a result of the institutional and legal readjustments from the 1920s through 1950s in Egypt, al-Sanhūrī did not see a future for Islamic law in the emerging legal state apparatus outside of civil law strictures and insisted that Islamic courts and religious tribunals for Jews and Christians must be subsumed under nationalized secular state courts.

From Legal Pluralism to Dual State: Evolution of the Relationship between the Chinese and Hong Kong Legal Orders

From Legal Pluralism to Dual State: Evolution of the Relationship between the Chinese and Hong Kong Legal Orders

Value Preference for “Norms” in the Context of Legal Pluralism: by the Example of Chechnya

Value Preference for “Norms” in the Context of Legal Pluralism: by the Example of Chechnya

Legal pluralism, indigenous rights and the Inter-American corpus iuris

The permeability between state, regional and universal legal systems for the protection of human rights is increasingly evident, materialising a trend of legal pluralism in a multilevel universe of human rights protection. Therefore, it is important to interpret the norms contained in national constitutions and international treaties – that is, the different systems for the protection of human rights – in light of the pro persona principle. In this context, the indigenous issue stands out for its complexity and urgent safeguard, given the past and current scenarios of numerous violations. The indigenous cosmovision must permeate any application of the mechanisms for protecting the human rights of indigenous peoples. In order to better understand this pluralism from the perspective of safeguarding indigenous rights, a brief study was carried out on the constitutionalization of these rights in Latin America and their interpretation in the Inter-American system for the protection of human rights. The question is: what are the main indigenous rights contained in Latin American constitutions? How does the Inter-American system interpret these rights in light of the American Declaration and Convention? What are the protective standards for indigenous rights in the region? For that, the method of approach used was the deductive one and the methodological procedures were in the juridical and systematic dogmatic study. As a result of this research, it was found that there is an entire Inter-American corpus iuris that must be protected, based on the duty of harmonisation imposed by the American Convention, and carried out through the control of conventionality