Legal Pluralism and Normative Transfer

SSRN Electronic Journal, 2013

Law is on the move." 1 States transplant foreign rules or procedures to improve commercial activity or as part efforts to harmonize political and legal systems. 2 Foreign laws are also used as instruments in development projects, where increasingly these projects emphasize legal norms such as transparency or accountability as ends in themselves. 3 This is the case in projects that promote the Rule of Law or democratic freedom as the key to progress 4 but also with the rise of constitutionalism as an organizing concept or archetype in legal thought. 5 Yet scholars have historically described deep connections between legal institutions and national * JSD Candidate, Cornell University. Much of the thinking in this paper follows on research and ensuing conversations with Peter Katzenstein and Benjamin Brake and I am grateful to them for their insights and ideas. Any errors are solely my own. Thank you to Odette Lienau and Mariana Mota Prado for helpful comments and suggestions on this early draft.

2019

The Oxford Handbook of Transnational Law

This chapter sets out to demystify the topic of legal pluralism by examining the relationship between legal pluralism, normative pluralism, and general normative theory from a global perspective. The central theme is that treating legal pluralism as a species of normative pluralism decenters the state, links legal pluralism to a rich body of literature, and helps to show that some of the central puzzlements surrounding the topic can usefully be viewed as much broader issues in the general theory of norms and legal theory. A second theme is that so-called “global legal pluralism” is in several respects qualitatively different from the older anthropological and sociolegal accounts of legal pluralism and is largely based on a different set of concerns. Following the introduction in section I, section II considers normative pluralism. It explores the ambiguity of “pluralism” and some themes in general normative theory. Section III introduces the heritage of literature on legal pluralism...

University of Toronto Law Journal, 2018

The Oxford Handbook of Global Legal Pluralism, 2020

Since the turn of the century, the term "legal pluralism" has seen a remarkable rise in interest. It is now widely accepted, although it was long rejected in legal studies. When legal anthropologists began to refer to "legal pluralism" in the 1970s, this marked a crucial change in anthropological thinking about law. Since then, not only have political and economic developments profoundly changed constellations of legal pluralism but also the term itself has followed a variety of trajectories and accrued multiple meanings in the process. In particular, in the trajectory of global legal pluralism, it has acquired a norma-tive meaning that is quite distinct from its use in anthropology as a tool of analysis. This chapter discusses how the anthropological study of law and legal pluralism developed from the study of law in colonial societies toward empirical studies in postcolonial settings and in nation-states around the globe under conditions of ever-increasing global connectedness and complexity. Global legal pluralism is analyzed in relation to topics that include law and development, religion, human rights, minorities, indigeneity, and politics of global legal pluralism. At the end the chapter offers an outlook into future anthropolog-ical research on global legal pluralism. Insights were developed not only in response to sociopolitical developments but also to changing theoretical perspectives.

Law and Anthropology, 2009

Transnational Legal Theory, 2010

This paper draws out the analogies and connections between long-standing legal sociological insights into pluralistic legal orders and present concerns regarding the fragmentation of law outside of the nation state. Within the nation state, the discovery of legal pluralism inspired a larger contestation of concepts of legal formalism, of the alleged unity of the legal order and of the hierarchy of norms against the background of a constantly advancing process of constitutionalisation. This research heightened regulators' sensitivity to blind spots and exclusionary dynamics in the design of rights, leading inter alia to wide-ranging efforts to render more effective access to justice, legal aid and legal representation. Another important consequence concerned an increased awareness of different levels and sites of norm creation in various societal areas. Much of this is mirrored by today's quest for a just, democratic and equitable global legal order, for

Cambridge University Press eBooks, 2021

An outpouring of writings on global or transnational legal pluralism has occurred in the past two decades. Despite its apparent popularity, however, it suffers from deep conceptual problems. After reviewing two decades of this proliferating literature, jurisprudent William Twining remarked, 'I have come away feeling that it is little better than a morass'. 1 This chapter is an attempt to clear up the morass. Three complicating factors bear mention at the outset. First, 'pluralism' is a capacious term that simply means two or more and can be applied to law in a multitude of ways. Second, 'law' is a contested notion that has been conceived of in numerous ways. Third, legal pluralism has been invoked in a variety of fields with very different orientations and objectives, including legal anthropology, legal sociology, postcolonial studies, law and development, human rights, comparative law, international law, transnational law and jurisprudence. The confluence of these factors has resulted in a tangled conceptual mess. With these preliminary comments in mind, I address a series of central issues bearing on global/transnational legal pluralism (labels used interchangeably). The first several parts of this chapter critically examine certain prominent positions in global legal pluralism, showing why they are problematic, after which I construct an alternative account that avoids these problems. First, I demonstrate that, contrary to current accounts, global legal pluralism is not continuous with earlier versions of (postcolonial and sociological) legal pluralism; these are three completely distinct paradigms. Next, I expose the flaw of overinclusiveness that has plagued theoretical conceptions of legal pluralism from the For their helpful critical comments on earlier drafts, I thank

Legal pluralism has seen a marked rise in interest since the turn of the century. While long rejected in legal studies, legal pluralism is now widely accepted, not least in light of the broad range of perspectives on the state it has sought to interpret and it has produced. A crucial change could be noted in the 1970s, when legal anthropologists began to demonstrate the applicability of this term, and not just in anthropological thinking about law. Political and economic developments also profoundly changed constellations of legal pluralism, following diverse trajectories in which the concept obtained multiple meanings. While highlighting significant stages of this process, this chapter discusses how anthropological insights in law and legal pluralism metamorphosed from the study of law in colonial societies towards law of a widely varying scope under conditions of ever-increasing global connectedness. The epistemological insights drawn from the diverse trajectories reflect and shape the social theories of the time, where intersections of state and law represent a central theme, albeit to a greater extent in some periods, and virtually absent in others.