Pluralist Jurisprudence Research Articles

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 Analytical Jurisprudence: An Inapposite Contrast

The intellectual tradition of legal pluralism characterizes itself by way of a contrast to legal centralism or monism. Self-styled pluralists typically attribute centralist and monist views to mainstream theories of law, which I call here analytical jurisprudence. This article argues that the pluralist foundational contrast with analytical jurisprudence suffers from three recurrent defects. First, the pluralist opposition to analytical jurisprudence conflates conceptual questions with empirical, doctrinal, and politico-moral inquiries. Second, pluralists misattribute to analytical jurisprudents an equation between law and state that they do not hold and have the resources to reject. Third, pluralists address the conceptual problems of legal theory by relying on definitions and other reductive methodologies long rejected by analytical jurisprudents. My central claim is that this trio of recurrent defects, which has also been incorporated into the reconciliatory project termed “pluralist jurisprudence,” should be laid to rest.

The Promise and Conundrums of Pluralist Jurisprudence

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.

Representations of the ‘Kurds’ by the Turkish Judiciary

Although the tensions around Kurdish ethnic identity and the extent of human rights violations against Kurds throughout the history of the Turkish Republic are well-documented, little research exists about the role played by the Turkish judiciary in relation to the legal position, demands, and identity of the Kurds in Turkey. An analysis of the role of the judiciary is demanded especially given its position as one of the guardians of the foundational values of the Turkish state. This article analyzes how Turkey’s judiciary has navigated the demands of Kurdish people, how it has represented Kurds, and to what extent it has accommodated their alterity in its jurisprudence. Among its findings are that Turkish judges have participated in reproducing Turkish nationalism within their legal discourse, which continues to re-emerge in the case law at various points in time. Since the 1970s, the judiciary has represented Kurds as having no distinct existence and as being Turkish. Somewhat contradictorily, it has also acknowledged the Kurds while consistently rejecting Kurdism. Reproducing a legal orientalist discourse, the judiciary has constructed the Kurds as the ‘other’ to justify civilizing them by legal means. The lack of self-criticism of the dominant strain in the jurisprudence, based on the narrative of the Turkishness of the Kurds, indicates that the judiciary in Turkey has failed to produce a culturally pluralist jurisprudence which accommodates the demands of the Kurds. It has also produced an ethno-culturist jurisprudence with reference to the Turkish ethnie, and perpetuated the discourse of Turkish ethnic nationalism.

Globalization, Legal Pluralism, and the New Constitutionalism

This essay discusses questions raised in Gavin Anderson's 'Constitutional Rights after Globalization' (Oxford, Hart Publishing, 2005). The book argues that in conditions of economic globalization the role and nature of rights constitutionalism must be radically rethought and restructured if private market-based concerns are not to prevail over broader notions of the public interest that are nominally in the keeping of national governments. Economic globalization is said to challenge directly the ability of constitutions to structure and regulate the exercise of political power because such power now lies increasingly with constitutionally unaccountable actors such as MNCs. This essay suggests that there is some confusion in this analysis because the power of MNCs lies in both their economic and political influence, whereas ‘political power’ – the traditional subject of constitutional law – is best understood as the immediate power to take political decisions. Anderson argues also that economic globalization has led to an epistemological crisis in modern constitutionalism and he advocates a critical pluralist jurisprudence of ‘new constitutionalism’, which aims to make explicit an expanded concept of politics that reveals unconventional social relations of power. This essay invokes the sociological idea of ‘living law’ to suggest that Anderson’s claim that the commands and decisions of constitutional law are muted by the workings of other, multiple legal forms or sources is simply to acknowledge that courts generally do not attempt to change the traditional practices and attitudes of a community without there being any extra-judicial demand from any community source. Moreover, a nation-state can obviously have a constitution; less obviously, so too can a ‘transnational-state’; but the global economy, or any economy, on which institutions such as NAFTA or the WTO have been imposed, cannot have a constitution or even a ‘constitutional framework’. An economy is not a state or an institution; it is a trading order and not a self-referential legal order.