Journal articles on the topic 'Legal pluralism'
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1
Kleinhans, Martha-Marie, and Roderick A. Macdonald. "What is a Critical Legal Pluralism?" Canadian journal of law and society 12, no. 02 (1997): 25–46. http://dx.doi.org/10.1017/s0829320100005342.
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AbstractLegal 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.
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Chiang, Cho Kiu. "Beyond Legal Pluralism: Chinese Customs and Customary Laws in Colonial Hong Kong (1841–1997)." Translocal Chinese: East Asian Perspectives 17, no. 1 (April 10, 2023): 58–82. http://dx.doi.org/10.1163/24522015-17010004.
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Abstract This article challenges the label of legal pluralism used in overseas Chinese studies. While legal pluralism has been the long-standing academic tradition of characterizing the law in overseas Chinese societies, the case of colonial Hong Kong, with its experience in rejecting, distorting, and manipulating Chinese customs and customary laws, illustrates that legal pluralism is an untenable position regarding the “plurality” of laws under a colonial regime and the “plurality” of social fields or legal orders with a “plurality” of sources of law. It is further argued that “legal pluralism” as academic jargon, a theory, and a framework, is intertwined with colonialism and therefore not useful as a descriptive category or as a normative ideal. We must go beyond legal pluralism to understand law in overseas Chinese studies.
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Shambura, Denis. "CONCEPT OF LEGAL PLURALISM AS THE BASIS OF THE RESEARCH OF NON-OFFICIAL LAW." Law Journal of Donbass 66, no. 1 (2019): 33–40. http://dx.doi.org/10.32366/2523-4269-2019-66-1-33-40.
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The article explores the concept of legal pluralism. According to this concept law is regarded as a complex and multifaceted system of social regulation. It is confirmed that legal pluralism in general is opposed to a monistic understanding of the world. It is proved that the concept of "legal pluralism" was formed in the framework of such areas of legal thought as the sociology of law (G. D. Gurvich, E. Ehrlich, L. I. Petrazhitsky, P. A. Sorokin, N. S. Timashev, etc.), legal ethnology and legal anthropology (B. Malinovsky, A. R. RadcliffeBrown, etc.). The author affirms that at present the principle of legal pluralism is moving from the field of scientific discussions toward legal life. It was stated that legal pluralism rejects definitions of law exclusively as a result of state activity, and presupposes the existence of an unofficial law as a fact of legal reality. State law in this perspective is considered in one phenomenological series with canonical law, law of corporations, international law, norms of other social institutions. Summarizing, the author supports the point of view that the legal reality is more diverse than standardized and unified state rules of conduct. It can be argued that legal pluralism, denying the definition of law exclusively as a result of state activity, implies the existence of an informal law as a legal reality. This follows from the fact of social relations that are legal by their very nature. In other words, the pluralist approach refutes the one-line evolution of law, confirms the plurality of its forms and allows us to prove the existence of unofficial law in the legal life.
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Pradhani, Sartika Intaning. "Pendekatan Pluralisme Hukum dalam Studi Hukum Adat: Interaksi Hukum Adat dengan Hukum Nasional dan Internasional." Undang: Jurnal Hukum 4, no. 1 (June 5, 2021): 81–124. http://dx.doi.org/10.22437/ujh.4.1.81-124.
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Scientific study on adat law starts from empirical research, which finds that adat law does not stand alone but works together with other legal orders. This paper is written based on normative legal research by collecting secondary data to answer (1) how legal pluralism explains adat law and adat law community; and (2) how the application of legal pluralism approach in adat law study. The legal pluralism approach explains adat law not as an isolated/marginalized legal order but as a dynamic legal order which interacts with national and international law. From the perspective of legal pluralism, the adat law community is a semi-autonomous social field that produces rules from the interplay between the adat law community and other legal communities/institutions. Categorization of legal pluralism approach application are as follow: first, weak legal pluralism where state law recognizes adat law either by law and regulation or court decision; second, strong legal pluralism which describes through the semi-autonomous social field, shopping forum, and forum shopping concept; third, legal pluralism multi-sited which explain the relationship between legal phenomena in local, national, and international level; and elaborate the role of information, communication, and technology which bridges legal phenomenon from one to another.
Abstrak
Kajian ilmiah terhadap hukum adat berangkat dari penelitian lapangan yang menemukan bahwa hukum adat tidak pernah berdiri sendiri dan selalu berinteraksi dengan tertib hukum yang lain. Artikel ini ditulis berdasarkan penelitian hukum normatif dengan mengumpulkan data sekunder berupa laporan-laporan penelitian dan artikel jurnal untuk untuk menjawab (1) bagaimana pendekatan pluralisme hukum menjelaskan hukum adat dan masyarakat hukum adat; dan (2) bagaiamana pendekatan pluralisme hukum digunakan dalam studi hukum adat hari ini. Pendekatan pluralisme hukum memahami hukum adat tidak sebagai suatu ketertiban hukum yang terpisah atau termarginalisasi dari ketertiban hukum yang lain, tetapi secara dinamis terus berinteraksi dengan hukum nasional maupun internasional. Dari perspektif pluralisme hukum, masyarakat hukum adat merupakan suatu wilayah sosial semi otonom yang melahirkan hukum berdasarkan hubungan saling memengaruhi dengan masyarakat hukum lain. Penerapan pendekatan pluralisme hukum dalam studi hukum adat dapat dikelompokkan dalam tiga kategori. Pertama, pluralisme hukum lemah di mana negara mengakui hukum adat baik melalui peraturan perundang-undangan maupun putusan pengadilan. Kedua, pluralisme hukum kuat yang dideskripsikan melalui konsep wilayah sosial semi-otonom, forum shopping, dan shopping forum. Terakhir, pluralisme hukum multi-sited yang digunakan untuk menjelaskan hubungan berbagai fenomena hukum antara hukum adat (lokal), nasional, dan internasional serta peran teknologi informasi dan komunikasi dalam menjembatani hubungan tersebut.
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Biryukov, S. V. "National law and legal pluralism." Law Enforcement Review 6, no. 4 (December 22, 2022): 5–14. http://dx.doi.org/10.52468/2542-1514.2022.6(4).5-14.
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The subject of the article is correspondence and competition legal monism and legal pluralism. The purpose of the study is to confirm or refute the author's hypothesis that a peculiar dialectic of legal monism and legal pluralism is inherent in domestic law.The methodology. The methods of various sciences related to the study of social and legal pluralism are combined. In particular, the system approach, dialectical method, methods of formal logic, formal-legal and comparative-legal methods, theoretical-sociological and theoretical-cultural analysis are used.The main results, scopresue of application. Within the framework of various social sciences, types of legal understanding, both a monistic view of law and various opinions about its plurality are presented (natural and positive law; the law of various states; domestic and international law; official and unofficial law).Domestic law in developed countriesis unified, but it is a complex unity consisting of various subsystems (levels). The question of whether these subsystems can not only correspond to each other and complement each other, but also compete with each other, be used by various entities within the framework of choosing the optimal regime of legal regulation has always been ambiguousfor lawyers.Discussions about legal monism and legal pluralism contribute to the development of theoretical knowledge about law. Situations of more or less pronounced legal plurality undoubtedly influence the specifics of all the main types of legal activity: from legal education and criticism of law to law enforcement. For the latter, the problem of compatibility of the principles of legality, formal equality and various forms of legal plurality has always been one of the most important.Conclusions. The main manifestations of weak legal pluralism in modern domestic law can be considered as: (1) identification of subsystems of the law of the subjects of the federation and municipalities; (2) recognition of partial legal autonomy of various non-public organizations and autonomous communities (mainly in the field of private law). Each of these manifestations is considered separately. The problem of constitutionalization of legal pluralism is also touched upon. It is shown that a peculiar dialectic of legal monism and legal pluralism isinherent in domestic law.
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Menski, Werner. "Flying Kites in a Global Sky: New Models of Jurisprudence." Socio-Legal Review 7, no. 1 (January 2011): 1. http://dx.doi.org/10.55496/jzeo6754.
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Taking a legally pluralist stance which reflects global socio-legal reality, this article first identifies signficant mental blockages for legal scholars in theorising legal pluralism. It then argues that a socially responsible approach to law teaching, not only in India, cannot ignore society, culture and competing value systems. If law is everywhere dynamic and internally plural, even if not immediately visible, acknowledging pluralisms becomes necessarily a highly dynamic activity, comparable to the challenges of kiteflying. One wrong move, and the subtle structure crashes. Unless law teaching takes pluralism seriously, legal education will empower only a few privileged actors, capable to manipulate law and its multiple power-related uses. Socially conscious approaches to law teaching must problematise that while we need law to avoid chaos, everywhere it risks constant exploitation and misappropriation. Improved teaching about legalpluralism and choice making in Indian law schools offers hope, but many challenges remain.
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Merry, Sally Engle. "Legal Pluralism." Law & Society Review 22, no. 5 (1988): 869. http://dx.doi.org/10.2307/3053638.
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Thornhill, Chris. "Legal Pluralism." Social & Legal Studies 21, no. 3 (September 2012): 413–23. http://dx.doi.org/10.1177/0964663912439663.
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Harahap, Ikhwanuddin. "PLURALISME HUKUM PERKAWINAN DI TAPANULI SELATAN." MIQOT: Jurnal Ilmu-ilmu Keislaman 43, no. 1 (December 30, 2019): 64. http://dx.doi.org/10.30821/miqot.v43i1.656.
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<p><strong>Abstrak:</strong> Pluralisme hukum merupakan fenomena universal yang dialami oleh semua bangsa. Ia mencakup berbagai aspek kehidupan manusia seperti hukum, politik, dan ekonomi. Pluralisme hukum adalah keniscayaan yang harus diterima. Dalam bingkai pluralisme hukum, masyarakat dihadapkan pada berbagai pilihan hukum, yaitu hukum adat, hukum agama dan hukum negara, tidak terkecuali masyarakat Tapanuli Selatan Provinsi Sumatera Utara. Masyarakat di daerah ini juga mengalami pluralisme hukum dalam bidang perkawinan. Paling tidak, tiga sistem hukum bisa menjadi pilihan mereka atau bahkan dengan melakukan kombinasi antar hukum yang ada. Penelitian ini dilakukan dengan pendekatan kualitatif fenomenologis untuk melihat bentuk relasi antar hukum yang hidup di tengah-tengah masyarakat Tapanuli Selatan. Temuan penelitian ini mendeskripsikan bahwa pada level tertentu, secara umum, keragaman hukum perkawinan merupakan sebuah harmonisasi, di mana masyarakat menggunakan dua sistem hukum bahkan lebih pada saat yang bersamaan. Namun ada kalanya pada situasi tertentu, keragaman hukum ini berubah menjadi “ketegangan”.</p><p><strong>Abstract:</strong> Legal Pluralism on Marriage in South Tapanuli. Legal pluralism is an universal phenomenon experienced by all nations. He covers various aspects of human life, such as law, politics and economics. Legal pluralism is a necessity that must be accepted. In the framework of legal pluralism, people are faced with a variety of legal choices, namely customary law, religious law and state law. No exception is the South Tapanuli community of North Sumatra Province. Communities in this area also experience legal pluralism in the field of marriage. At least, there are three legal systems that can be choosed or by combining existing laws. This research was conducted with a phenomenological qualitative approach to see the form of inter-legal relations that lived in the midst of the community of South Tapanuli. The findings of this study describe that at a certain level, in general, the diversity of marital law is a harmonization, in which people use two legal systems even more at the same time. But sometimes in certain situations, the legal pluralism turns into “tension”.</p><p><strong>Kata Kunci:</strong> pluralisme hukum, perkawinan, Mandailing, Tapanuli Selatan</p>
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Blanch, Samuel. "Legal Pluralism and Islamic Law in Australia." Australian Journal of Law and Religion 3 (2023): 37–51. http://dx.doi.org/10.55803/b597p.
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Legal pluralism offers a critical and empirically sensitive way of thinking about justice in multicultural societies with a variety of legal traditions – Western, Indigenous, Islamic, or otherwise. Yet the critical theoretical potential of legal pluralism has not yet been properly utilised for understanding Islamic law in Australia. This article shows how studies of Islamic law in Australia have tended to reduce legal pluralism to a pluralism of rules or norms, or, in discussing its political implications, have failed to take seriously John Griffith’s now famous claim that legal pluralism is simply ‘the fact’. Against this, this article highlights some key theoretical insights of legal pluralism, focusing on its capacity to draw our socio-legal attention to the deeper normative, conceptual, and material processes that constitute a legal tradition. Based on ethnographic fieldwork in Western Sydney, it then offers an account of such processes as they appear in the Shia Muslim tradition of law in Australia. It shows material logics of hierarchy and plurality whose difference exceeds narrow rule-based approaches to law.
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ISIKSEL, TURKULER. "Global legal pluralism as fact and norm." Global Constitutionalism 2, no. 2 (June 28, 2013): 160–95. http://dx.doi.org/10.1017/s2045381713000130.
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AbstractThis article interrogates the intellectual foundations of global legal pluralism as a descriptive and normative position, and assesses its core claims with reference to the changing status of individuals in the postnational realm. In order to uncover the normative core of the pluralist position, the article turns to the rich tradition of value pluralism in political philosophy, particularly as articulated by Isaiah Berlin. It argues that as a normative position, pluralism – whether applied to the abstract sphere of values or the concrete realm of legal regimes – is normatively underdetermined, offering too little guidance as to how the conflicts endemic to a pluralistic world ought to be resolved. Unless it is supplemented by other, more substantive principles of political legitimacy such as democracy, freedom, equality, or justice, the principle of pluralism applied to the global legal realm is poised to reproduce, even exacerbate, existing inequalities of power and resources among those whom it affects.
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Backenköhler Casajús, Christian J. "Transplante jurídico = Legal trasplant." EUNOMÍA. Revista en Cultura de la Legalidad, no. 17 (September 27, 2019): 262. http://dx.doi.org/10.20318/eunomia.2019.5032.
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Resumen: El trasplante jurídico es una metáfora del derecho comparado creada para señalar el traspaso normativo que se produce entre diferentes ordenamientos jurídicos. En un primer momento, el trasplante jurídico sirvió para demostrar que, desde hace tiempo, el traspaso normativo fue un mecanismo frecuentemente utilizado para crear nuevos sistemas jurídicos o para la adaptación o renovación de muchos de ellos. Pero, con el tiempo, se ha ido configurando como un concepto que, aparte de describir el traslado de una norma de un sistema jurídico a otro, trata también de explicar las posibles consecuencias que puede sufrir el ordenamiento jurídico receptor. En la actualidad, el trasplante jurídico está sirviendo para explicar la transferencia normativa entre diferentes ordenamientos jurídicos en el contexto de la globalización y también como indicador de la existencia de un pluralismo jurídico en el espacio jurídico actual.Palabras clave: Trasplante jurídico, pluralismo jurídico, derecho comparado, préstamo jurídico, pluralismo cultural.Abstract: The legal transplant is a comparative law metaphor created to indicate the normative transfer that occurs between different legal systems. At first, the legal transplant served to demonstrate that, for a long time, the normative transfer was a mechanism frequently used to create new legal systems or, also, for the adaptation or renewal of many of them. Over time, however, it has developed into a concept which, apart from describing the transfer of a rule from one legal system to another, also seeks to explain the possible consequences that the receiving legal system may suffer. At present, legal transplant is serving to explain the normative transfer between different legal systems in the context of globalization and, also, as an indicator of the existence of legal pluralism in the current legal space.Keywords: Legal trasplant, legal pluralism, comparative law, legal borrowing, cultural pluralism.
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Cloots, Elke. "Germs of Pluralist Judicial Adjudication: Advocaten Voor de Wereld and Other References from the Belgian Constitutional Court." Common Market Law Review 47, Issue 3 (June 1, 2010): 645–72. http://dx.doi.org/10.54648/cola2010029.
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The relationship between Europe’s legal orders is frequently depicted in terms of “constitutional pluralism”. Constitutional pluralists maintain that the EU legal order and the legal orders of the Member States are distinct but interacting, and that they stand in a non-hierarchical relation to one another, allowing regional autonomy. The significance of the pluralist theoretical perspective for judicial adjudication, however, has not been sufficiently assessed. For instance, does constitutional pluralism accommodate or, rather, oppose the supremacy claims currently made by the ECJ and national constitutional courts respectively? And, in the latter case, what alternative decision-making techniques are available to courts facing constitutional issues with an aspect of EU law? What are the consequences for protection of nationally entrenched fundamental rights? Those are the major questions being addressed in this article. Building upon a detailed analysis of three preliminary ruling procedures initiated by the Belgian Constitutional Court, this article purports to formulate some general recommendations to judges who wish to adjudicate in a truly “pluralist” manner. The cases at issue are Advocaten voor de Wereld, Ordre des barreaux francophones et germanophone et al., and Government of the French Community and Walloon Government v. Flemish Government, each of which contains germs of pluralist judicial adjudication.
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Adi Surya, Faizal. "PLURALISME HUKUM DALAM PERSPEKTIF PANCASILA TANTANGAN DALAM ERA GLOBALISASI." Indonesian Journal of Legality of Law 6, no. 1 (December 5, 2023): 207–12. http://dx.doi.org/10.35965/ijlf.v6i1.3931.
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Tujuan penulisan ini adalah memberikan refleksi terhadap gagasan pluralism hukum dalam konteks globalisasi. Dialog antar nilai global dan Pancasila turut berpengaruh terhadap pengertian pluralism hukum. Menggunakan metode kepustakaan dan Analisa secara kualitatif, tulisan ini menghasilkan tiga kesimpulan, Pertama, pluralism hukum adalah model yang cocok di terapkan di Indonesia. Kedua, Pluralisme Hukum perlu diredefinisikan dalam konteks global dengan melihat lebih jauh relasi globalisasi dengan kapitalisme yang bisa mengancam nilai nilai lokal. Ketiga, perlunya elaborasi nilai nilai Pancasila khususnya kemanusiaan yang adil dan beradab dengan konsep pluralism hukum. Elaborasi ini menghasilkan tiga prinsip dalam pluralism hukum, yaitu prinsip kemanusiaan, prinsip selektif dan prinsip kesetaraan. This paper aimed to analyze the idea of legal pluralism in the context of Globalization. In order to achieve such goal, this paper utilized a conceptual analysis method with reference on qualitative data to reflect the dialogue between global values and Pancasila influence the understanding of legal Pluralism. The research found that first, legal Pluralism is a suitable model to be applied in Indonesia, second, it needs to be redefined in a global context by looking further at the relationship between globalization and capitalism which can threaten local values. Third, there is a need for elaboration of Pancasila values, especially 'Kemanusiaan Yang adil Dan Beradab' with the concept of legal pluralism. This elaboration produces three principles in legal pluralism; the principle of humanity, the principle of selectiveness and the principle of equality.
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Donlan, Seán Patrick. "Emmanuel Melissaris, Ubiquitous Law: Legal Theory and the Space for Legal Pluralism (2009) (Aldershot, UK: Ashgate, 2009) [ISBN 978-0-7546-2542-1] [Ubiquitous Law]. All page references in parenthesis are to this book." Canadian Journal of Law & Jurisprudence 25, no. 1 (January 2012): 177–82. http://dx.doi.org/10.1017/s0841820900005361.
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A broad assortment of contemporary approaches to legal and normative complexity have challenged state law’s claim of dominance and exclusivity. In Ubiquitous law: Legal Theory and the Space for Legal Pluralism (2009), Emmanuel Melissaris similarly seeks to ground the ‘legal’ in what he calls ‘shared normative commitments’. As with much ‘legal pluralism’, his focus on normativity rejects long-established conventional concepts of law. Indeed, for Melissaris, state law may not even properly qualify as ‘law’. But understood as a descriptive theory of normativity, the dynamic legal-normative web he outlines has much to recommend it. It is certainly superior to the continuing narrow concentration of jurisprudes on state law and law-like regimes. Less convincing is Melissaris’ prescriptive suggestion, with ‘critical legal pluralists’, that illustrating the degree to which legal-normative reform occurs beyond the state and its laws promises liberation. Shared normative commitments do not necessarily result in popular control as existing social structures and power relationships remain. We may be ensnared rather than emancipated. On the whole, however, Melissaris has made a sophisticated and substantial contribution to our understanding of legal and normative plurality. His book deserves to be widely read.
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Coutu, Michel, and Pierre Guibentif. "Introduction: The Disenchantment of Critical Legal Thought?" Canadian journal of law and society 26, no. 2 (August 2011): 227–36. http://dx.doi.org/10.3138/cjls.26.2.227.
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The topic of legal pluralism has puzzled the sociology of law since its origins. To quote an early example, the aim of Eugen Ehrlich was to grasp the “colourful diversity of living law.” Max Weber, too, made a distinction between law beyond the state, on the one hand, and state law, on the other, the latter being the formal object of normative legal science. The concept of legal pluralism, later formulated in order to capture this diversity, gave rise, as is well known, to a specific line of inquiry in the domain of law and society; it has found concrete expression particularly in the Journal of Legal Pluralism, published under this title since 1981, and has triggered energetic debates. Jean-Guy Belley has made a crucial contribution to these debates, in particular by writing the entry on “pluralisme juridique” for the Dictionnaire encyclopédique de théorie et de sociologie du droit, published 1988. Years before, he had begun an ambitious research undertaking centred on legal pluralism as a fundamental paradigm for jurisprudence, first with a doctoral dissertation under the supervision of Jean Carbonnier and later as a professor in contract law and sociology of law at McGill University. This scholarly relationship to legal pluralism developed first in the domain of sociology of law, through a comprehensive approach that culminated in 1998 with the publication of Le contrat entre droit, économie et société.
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Michaels, Ralf. "Global Legal Pluralism." Annual Review of Law and Social Science 5, no. 1 (December 2009): 243–62. http://dx.doi.org/10.1146/annurev.lawsocsci.4.110707.172311.
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Decock, Wim. "Collaborative Legal Pluralism." Rechtsgeschichte - Legal History 2017, no. 25 (2017): 103–14. http://dx.doi.org/10.12946/rg25/103-114.
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Zumbansen, Peer. "Transnational Legal Pluralism." Transnational Legal Theory 1, no. 2 (July 2010): 141–89. http://dx.doi.org/10.1080/20414005.2010.11424506.
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Roberts, Simon. "Against Legal Pluralism." Journal of Legal Pluralism and Unofficial Law 30, no. 42 (January 1998): 95–106. http://dx.doi.org/10.1080/07329113.1998.10756517.
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Wahyuni Sagala, Hairun Tri. "Kajian Teori Pluralisme Hukum terhadap Sistem Hukum di Aceh." INTERDISCIPLINARY JOURNAL ON LAW, SOCIAL SCIENCES AND HUMANITIES 3, no. 2 (November 30, 2022): 115. http://dx.doi.org/10.19184/idj.v3i2.35095.
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Abstract
Legal pluralism is not a new concept that has emerged in the modern legal system, but an approach to analyzing the operation of various legal systems side by side in the system of government of a nation-state. Aceh is one of the provinces in Indonesia which has several legal systems. The province of Aceh is viewed as a province that has special autonomy status with a multicultural pattern, because of the plurality of regulatory systems in its society. The pluralism (pluralism) of the legal system in Aceh arises because of ethnic diversity and the application of Islamic religious values to every aspect of Acehnese life, especially in the field of upholding the legal system itself. The diversity (Pluralism) of the legal system that lives and applies in Aceh has the power of law and recognition from the Indonesian government with the passing of Law number 11 of 2006 concerning the Governance of Aceh, so in addition to the enactment of the state legal system (state law), de facto in Aceh to the legal system of procedures (adat law) applies, and the system of religious rules / Islamic law (religious law / Islamic law). The research method used is juridical sociology. The data were analyzed using a qualitative descriptive approach.
Keywords: Legal Pluralism, Legal System of Aceh, Islamic Law
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Fuller, Chris. "Legal Anthropology,: Legal Pluralism and Legal Thought." Anthropology Today 10, no. 3 (June 1994): 9. http://dx.doi.org/10.2307/2783478.
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Yang, Fenggang. "Oligopoly Dynamics: Consequences of Religious Regulation." Social Compass 57, no. 2 (June 2010): 194–205. http://dx.doi.org/10.1177/0037768610362417.
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In the first part of this article, the author tries to clarify a set of interconnected concepts—religious plurality (diversity), pluralization, and pluralism. As a descriptive concept for sociological theorizing, social pluralism is further differentiated into legal, civic and cultural arrangements. Modern pluralization may have started accidentally in the United States of America, but it has become a general trend in the world. In the second part, the author argues that the predominant type of Church—State relationship in the world today is neither monopoly nor pluralism, but oligopoly. More importantly, the theoretical propositions based on the studies of monopoly-pluralism are not applicable without substantial modification to explain oligopoly dynamics. The China case shows that in oligopoly, increased religious regulation leads not necessarily to religious decline, but to triple religious markets: the red market (legal), black market (illegal) and grey market (both legal and illegal or neither legal nor illegal).
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Nugroho, Jati. "A RECOGNITION MODEL OF NATIONAL LEGAL PLURALISM IN A UNITARY STATE THROUGH THE PRISMATIC THEORY APPROACH." HUMAYA: Jurnal Hukum, Humaniora, Masyarakat, dan Budaya 1, no. 2 (December 5, 2021): 107–15. http://dx.doi.org/10.33830/humaya.v1i2.1861.2021.
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The choice of a unitary state based on Article 1 Section 1 of the 1945 Constitution theoretically always relates to the factor of equality within the state. However, the choice of the Republic of Indonesia as a unitary state is based on the consideration of the pluralism aspects in terms of culture, language, customs, and ethnicity, which brings consequences for the recognition of applicable legal pluralism (Article 18B Section 2 of the 1945 Constitution). This study examines legal pluralism in a unitary state based on the prismatic theory approach to find out its legal recognition model.
This study aims at finding an ideal legal pluralism recognition model in a unitary state which has tended to be centralized, such as the implementation of the Basic Agrarian Law that ignores the customary laws. The results of the legal prismatic theory approach are expected to able to fulfill justice in a pluralistic society. In this study, the researcher employed a normative juridical method through a political-law approach to various laws and regulations. Furthermore, the researcher also used a qualitative analysis.
The results of this study showed as follows. (1) Politics of law as a guideline for legal development is inconsistent with Pancasila and legal systems that accommodate legal pluralism. As a result, customary law must comply with national law, which indicates the recognition of weak legal pluralism. (2) The recognition model of national legal pluralism through the prismatic theory approach by considering the plurality of the prevailing legal order may create certainty and benefit on the value of justice in society according to national ideology and Pancasila as the soul of the nation.
The recommendations of this study are as follows. (1) Legal development should use the recognition model of national legal pluralism through the prismatic theory approach so that certainty and benefit on the value of justice in society can be established according to national ideology and Pancasila as the soul of the nation. (2) The prismatic theory approach can be an alternative solution to the recognition model of legal pluralism in realizing Indonesian national law based on Pancasila as the ideology and spirit of the nation.
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Mohsi. "Hegemoni Pluralitas Hukum Terhadap UU No. 01 Tahun 1974 (Studi Supremasi dan Legalitas Hukum Perkawinan di Indonesia)." Mahakim: Journal of Islamic Family Law 5, no. 1 (June 14, 2022): 71–81. http://dx.doi.org/10.30762/mahakim.v5i1.132.
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Legal plurality is an indisputable part of the concept of Indonesian statehood, including the construction of marriage law. The pluralism of marriage law in Law No. 01 of 1974 is proof that the marriage law adhered to in the Indonesian legal system still refers to the pluralism and diversity system. This research will examine the plurality of marriage law from the legality aspect which has implications for its legal status, between imperative and facultative. This study uses a statute approach with an emphasis on the concept of law and legal legislation. This research concludes that the plurality of kwainan law in Law Number 01 of 1974 is a necessity in a multicultural country, because the existence of this law aims to accommodate and integrate existing laws on this Bhineka earth.
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Nascimento de Araujo, Luís Guilherme, and Clovis Gorczevski. "O PLURALISMO JURÍDICO SOB A ÓPTICA DA DEPENDÊNCIA E DA COLONIALIDADE." Ponto de Vista Jurídico 12, no. 1 (June 8, 2023): 41–55. http://dx.doi.org/10.33362/juridico.v12i1.3118.
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O pluralismo jurídico enfrenta questões delimitativas notórias e bastante conhecidas no plano do debate científico acerca do conceito de direito. Objetiva-se, neste artigo, desenvolver uma concepção de direito que se afasta do essencialismo, a partir da obra do jurista Tamanaha. Além disso, tem-se como intento desenvolver as categorias da totalidade, da colonialidade e da dependência como ferramentas teóricas propícias para uma acepção crítica e descolonial do pluralismo jurídico desde a realidade da América Latina. Utilizou-se da técnica de pesquisa bibliográfica teórico-conceitual. PALAVRAS CHAVE: Colonialidade. Dependência. Pluralismo jurídico. ABSTRACT Legal pluralism faces notorious and well-known delimiting issues in terms of the scientific debate on the concept of law. The aim of this article is to develop a conception of law that moves away from essentialism, based on the work of the jurist Tamanaha. In addition, the aim is also to develop the categories of totality, coloniality and dependency as propitious theoretical tools for a critical and decolonial understanding of legal pluralism from the perspective of the Latin America. We used the theoretical-conceptual bibliographical technique of research. Keywords: Coloniality. Dependency. Legal Pluralism.
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Davies, Margaret. "Pluralism and legal philosophy." Northern Ireland Legal Quarterly 57, no. 4 (August 11, 2020): 577–96. http://dx.doi.org/10.53386/nilq.v57i4.848.
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Hee-Ho Pak. "Legal Pluralism in Indonesia." HUFS Law Review 36, no. 1 (March 2012): 114–32. http://dx.doi.org/10.17257/hufslr.2012.36.1.114.
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Berman, Paul Schiff. "The New Legal Pluralism." Annual Review of Law and Social Science 5, no. 1 (December 2009): 225–42. http://dx.doi.org/10.1146/annurev.lawsocsci.093008.131539.
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Griffiths, John. "What is Legal Pluralism?" Journal of Legal Pluralism and Unofficial Law 18, no. 24 (January 1986): 1–55. http://dx.doi.org/10.1080/07329113.1986.10756387.
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Vanderlinden, Jacques. "Return to Legal Pluralism." Journal of Legal Pluralism and Unofficial Law 21, no. 28 (January 1989): 149–57. http://dx.doi.org/10.1080/07329113.1989.10756411.
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Griffiths, Anne. "Legal Pluralism in Botswana." Journal of Legal Pluralism and Unofficial Law 30, no. 42 (January 1998): 123–38. http://dx.doi.org/10.1080/07329113.1998.10756519.
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Muhtamar, Syafruddin, Maskawati Maskawati, Arqam Azikin, Andriani M, and A. Pangerang Moenta. "LEGAL PLURALISM AND COMMUNITY CHANGES: A REVIEW OF LEGAL PLURALISM INTEGRATION SYSTEM." TANJUNGPURA LAW JOURNAL 1, no. 1 (January 28, 2017): 38. http://dx.doi.org/10.26418/tlj.v1i1.18330.
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The system of Eastern nations’ people lives is characteristic of Eastern cultures. Indonesia is a nation that also reflects these characteristics, in social and legal systems. Pre-colonization, the Indonesian people has been living in a pluralistic legal system, both in religious or customcharacterized systems. Until now, the both characteristic being a living law system inherited in history. The presence of colonization changed the model and the basic characteristics of the nation into a modern society with the west-styled colonial legal system. These western-modern systems continued post-independence and became the main pillar of development to change people lives. Therein the basic problem of the national legal system, that is legal pluralistic of society to be helpless in front of the hegemonic system of state law. Community changes in legal pluralism can occur if the contribution of living law systems (religion and customs) extends, without being sub-system or supporting or complementary of state law system. Hegemonic dominance of state law must continue to loosened, so that a free space of contribution for nation culturebased people legal system increasingly wider. Therefore, the legal pluralism integration system is important to establish in the national life. The paradigm of this system is a legal pluralism and its operation is integration of living law system with state law within the spirit and scope of legal pluralism. Thus, the purpose of this article are to analyze and determine the extent of relevance the concept of legal pluralism in the national development process concerned with a diversity of Indonesian culture.
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Nugroho, Jati. "Restore Recognition Of Legal Pluralism As A National Law Development Model That Is Justice." Law & Justice Review Journal 1, no. 1 (June 21, 2021): 32–36. http://dx.doi.org/10.11594/lrjj.01.01.05.
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Article 18 B paragraph (2) of the 1945 Constitution explains that the state recognizes and respects the customary law community and their traditional rights as long as they are still alive. The purpose of macro-legal politics that accommodates written and unwritten laws is implemented in a variety of messo (intermediate) legal politics through various laws.
During this time the recognition of the existence of customary law as a manifestation of recognition of legal pluralism for example in Agrarian Law is often ignored. Then it takes recognition of strong legal pluralism in supporting legal development in Indonesia regulated in Law no. 17 of 2007 concerning the National Long-Term Development Plan of 2005. with due regard to the plurality of applicable legal arrangements.
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Tamanaha, Brian Z. "Ubiquity of Legal Pluralism and its Consequences." Victoria University of Wellington Law Review 54, no. 4 (March 24, 2024): 895–918. http://dx.doi.org/10.26686/vuwlr.v54i4.9371.
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This article is a lightly edited version of the keynote address delivered at the 2023 ICON•S Annual Conference, held at Victoria University of Wellington—Te Herenga Waka, on 5 July 2023. I provide an overview of legal pluralism and its implications, addressing why legal pluralism heretofore has been overlooked by jurists, the historical roots of legal pluralism, how to identify what qualifies as law, internal and external legal pluralism, three categories of law that help frame legal pluralism, why customary law is difficult to incorporate within state law, the implications of legal pluralism for legal development and human rights, and much more.
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Ribeiro, Valéria Da Silva Lima. "A Mediação Virtual como expressão do Pluralismo Jurídico e da efetivação dos Direitos Humanos em tempos de Covid-19 / Virtual Mediation as an expression of Legal Pluralism and the effectiveness of Human Rights in times of Covid-19." ID on line. Revista de psicologia 16, no. 62 (August 5, 2022): 67–78. http://dx.doi.org/10.14295/idonline.v16i62.3492.
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O artigo em epígrafe elaborou uma reflexão sobre a mediação na modalidade virtual, como expressão contemporânea do pluralismo jurídico e da efetivação dos Direitos Humanos, a partir do referencial teórico de Boaventura de Sousa Santos. Realizou-se uma abordagem sobre os conceitos de monismo e de pluralismo jurídico, seguindo-se de um sucinto panorama sobre os rumos da Política Judiciária Nacional de tratamento adequado dos conflitos de interesses no âmbito do Poder Judiciário. E após, efetuado um exame da mediação na modalidade on-line e de seus desdobramentos como expressão do pluralismo jurídico e como ferramenta de efetivação dos Direitos Humanos, notadamente, em tempos de pandemia da Covid-19. -- Abstract: The above article elaborated a reflection on mediation in the virtual modality as a contemporary expression of legal pluralism and the realization of Human Rights, based on the theorectical framework of Boaventura de Sousa Santos. An approach was carried out on the concepts of monism and legal pluralism, followed by a brief overview of the directions of the National Judicial Policy for the adequate treatment of conflicts of interest within the Judiciary. And after, an examination of mediation in the online modality and its consequences as an expression of legal pluralism and as a tool for the realization of Human Rights, notably, in times of the Covid-19 pandemic.
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Turégano Mansilla, Isabel. "Notas sobre pluralismo jurídico. Revisitando a Mario Ruiz | Some Notes about Juridical Pluralism. Revisiting Mario Ruiz’s Works." Cuadernos Electrónicos de Filosofía del Derecho, no. 40 (June 27, 2019): 367. http://dx.doi.org/10.7203/cefd.40.15341.
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Biryukov, S. V. "Local (Corporate) Legal Regulation and Legal Pluralism." Herald of Omsk University. Series Law 18, no. 2 (2021): 26–34. http://dx.doi.org/10.24147/1990-5173.2021.18(2).26-34.
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Shahar, Ido. "Legal Pluralism and the Study of Shari'a Courts." Islamic Law and Society 15, no. 1 (2008): 112–41. http://dx.doi.org/10.1163/156851908x287280.
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AbstractLegal pluralism has emerged in the last few decades as a prominent theoretical perspective in socio-legal research. Recently, scholars of Islamic law have begun to employ analytical concepts and theoretical insights drawn from this theoretical framework in their studies of Islamic law and shari'a courts. In this article I argue that the time has come for a systematic assessment of the relevancy of a legal-pluralist perspective for the study of shari'a courts. Specifically, I discuss its potential contribution for understanding relations between shari'a courts and other tribunals, and between qadis affiliated with different madhhabs.
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Al-Hakim, Ali. "Navigating Legal Pluralism: A Socio-Anthropological Analysis of Governance and Law in Multicultural Societies." Journal of Judikaltura 1, no. 2 (July 17, 2023): 23–27. http://dx.doi.org/10.61963/jkt.v1i2.35.
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This study examines the socio-anthropological consequences of legal pluralism for governance and law in multicultural countries. The study explores the coexistence of many legal systems, including formal state law, religious law, customary law, and community-based norms. It draws on anthropological research, interviews, and document analysis. The findings illustrate the difficulties and possibilities various legal systems bring by revealing intricate connections and tensions between them. The fundamental tactics used by people and communities to handle legal plurality are negotiation and adaptation. The study emphasizes how crucial it is to create inclusive governance frameworks that respect various legal systems and advance social justice. Critical areas of concern include expanding access to justice and resolving inequities among disadvantaged populations within the judicial system. The research contributes to our understanding of legal pluralism, offering insights for policymakers, legal practitioners, and stakeholders working in multicultural contexts.
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Бирюков, Сергей, and Sergey Biryukov. "To a Question of Legal Pluralism." Journal of Russian Law 4, no. 2 (February 5, 2016): 0. http://dx.doi.org/10.12737/17640.
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The causes and necessity of use of the notion “legal pluralism” in interbranch disciplines (in connection to jurisprudence) including sociology of law, anthropology of law, scientific direction “law and society” are disclosed in this article. This notion is fully formed way of reflection in law including a key contradiction between law in juridical meaning and other social law in non-juridical humanity sciences. In this article the pluralism in strong and weak meaning is analyzed as well as the opportunity of pluralism in juridical law (poliyuridizm), pluralism in juridical and other social law, pluralism in social law, meaning of appropriate facts for person and juridical practice. The attention is also paid to distinctive particulars of primary social law and its influence on juridical law.
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Corrin, Jennifer. "Exploring the Deep: Looking for Deep Legal Pluralism in the South Pacific." Victoria University of Wellington Law Review 48, no. 2 (October 2, 2017): 305. http://dx.doi.org/10.26686/vuwlr.v48i2.4738.
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Over the past 40 years, the concept of legal pluralism has gradually gained broader recognition. However, the depth of this pluralism, in the sense of the degree of recognition given to non-state systems of law, varies dramatically from place to place. This article looks at legal pluralism in South Pacific. Commencing with a brief explanation of the different ways in which legal pluralism can be conceptualised, it gives a general overview of the way in which it is manifested in South Pacific legal systems. Selected South Pacific statutes that acknowledge customary laws or institutions are then examined to assess whether this equates with deep legal pluralism, or whether, in reality, it amounts only to state legal pluralism.
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Paulsson, Jan. "ARBITRATION IN THREE DIMENSIONS." International and Comparative Law Quarterly 60, no. 2 (April 2011): 291–323. http://dx.doi.org/10.1017/s0020589311000054.
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AbstractThe law applicable to arbitration is not the law applicable in arbitration. The latter determines arbitrators' decisions. The former refers to the source of their authority: the legal order that governs arbitration. According to the territorialist thesis, an arbitration can have no foundation other than that of the legal order of the particular State in which the arbitration takes place. This outdated conception is disproved by the simple factual observation that a plurality of legal orders may give effect to arbitration. Some French scholars promote the notion of an autonomous arbitral order. Inasmuch as they ultimately seek to establish this order by positing its recognition by the very State orders from which they claim autonomy, their idea is circular and in effect no more than a dressed-up variant of ordinary horizontal pluralism. But the model of horizontal pluralism fails to account for important orderings of arbitral activity. Arbitration in modern society is accurately perceived as a complex, three-dimensional form of pluralism, in which legal orders (i) are not exclusively those of States and (ii) frequently overlap.
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Spinieli, André Luiz Pereira. "PLURALISMO JURÍDICO COMO ALTERNATIVA EPISTEMOLÓGICA PARA A CULTURA DE DIREITOS HUMANOS DESDE O CONTEXTO LATINO-AMERICANO." Revista de Políticas Públicas 24, no. 2 (December 27, 2020): 653. http://dx.doi.org/10.18764/2178-2865.v24n2p653-671.
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O debate sobre o pluralismo jurídico no contexto político e social latino-americano não é recente, de modo que suas percepções foram renovadas a partir do movimento neoconstitucionalista operado no continente, responsável por desencadear alternativas epistêmicas para se pensar a efetividade dos direitos humanos e dos direitos de cidadania, tudo a partir da lógica de emancipação social e descolonialidade, como possibilidade de rompimento com o constitucionalismo tradicional, de cunho conservador, hegemônico e colonialista. Em termos gerais, como uma das respostas à concepção juspositivista, o pluralismo jurídico surge como modelo de pensamento para a práxis dos direitos humanos, em face de uma sociedade na qual impera a lógica das exclusões concretas em contrariedade às inclusões abstratas. Dessa forma, tomando por base a abordagem bibliográfica, este trabalho propõe oferecer reflexões a respeito do atual estado da cultura de direitos humanos instalada na América Latina, com enfoque nas contribuições epistemológicas advindas da teoria críticados direitos humanos e do pluralismo jurídico wolkmeriano.Palavras-chave: Pluralismo jurídico. Direitos humanos. Cultura constitucional. América Latina. Teoria crítica dos direitos humanos.LEGAL PLURALISM AS AN EPISTEMOLOGICAL ALTERNATIVE FOR THE CULTURE OF HUMAN RIGHTS SINCE THE LATIN AMERICAN CONTEXTAbstractThe debate on legal pluralism in the Latin American political and social context is not recent, so that their perceptions were renewed from the neo-constitutionalist movement operated on the continent, responsible for triggering epistemic alternatives to think about the effectiveness of human rights and human rights of citizenship, all based on the logic of social emancipation and decoloniality, as a possibility of breaking with traditional constitutionalism, of a conservative, hegemonic and colonialist nature. In general terms, as one of the answers to the juspositivist conception, legal pluralism emerges as a model of thoughtfor the practice of human rights, in the face of a society in which the logic of concrete exclusions prevails in opposition to abstract inclusions. Thus, based on the bibliographic approach, this work proposes to offer reflections on the current state of human rights culture in Latin America, focusing on the epistemological contributions arising from the critical theory of human rights and legal Wolkmer’s pluralism.Keywords: Legal Pluralism. Human rights. Constitutional culture. Latin America. Critical theory of human rights.
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Hofri-Winogradow, Adam S. "A Plurality of Discontent: Legal Pluralism, Religious Adjudication and the State." Journal of Law and Religion 26, no. 1 (2010): 57–89. http://dx.doi.org/10.1017/s0748081400000916.
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The norms that the official legal systems of North American and European states apply do not derive directly from any religion. While some of those norms, such as some of the norms governing marriage, do originate, historically, in religion and religious law, no norms are today enforced by those legal systems because the norms are part of a specific religious legal order. And yet, adjudication according to religious norms is commonplace. In North America and Europe, the legal systems applying norms associated with specific religions to adherents of those religions are principally nonstate community tribunals. Outside this Northwestern world, state legal systems, particularly those of Muslim-majority jurisdictions, often permit religious normative materials to be applied to adherents of the relevant religions as a matter of state law. Both situations are examples of legal pluralism.The popularity of the application of religious norms by state legal systems throughout much of the contemporary world raises a challenge for the Western assumption that state-enforced legality and expressly religious norms should stay apart. Can a modern state provide its citizens, residents and others subject to its power with ajustandstablelegal order by referring them to norms associated with their several religions and enforced by state courts?
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Mastura, Michael O. "Legal Pluralism in the Philippines." Law & Society Review 28, no. 3 (1994): 461. http://dx.doi.org/10.2307/3054065.
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Stone, Christopher D. "Legal Rights and Moral Pluralism." Environmental Ethics 9, no. 3 (1987): 281–84. http://dx.doi.org/10.5840/enviroethics1987936.
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Richard White. "Legal Pluralism and Native Sovereignty." William and Mary Quarterly 68, no. 4 (2011): 720. http://dx.doi.org/10.5309/willmaryquar.68.4.0720.
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Tamanaha, Brian Z. "Scientific versus folk legal pluralism." Journal of Legal Pluralism and Unofficial Law 53, no. 3 (September 2, 2021): 427–37. http://dx.doi.org/10.1080/07329113.2021.2004843.
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Amaral, Murilo Naves. "Pluralism Legal, Legality And Capitalism." Revista de Teorias da Democracia e Direitos Políticos 1, no. 1 (December 6, 2015): 1. http://dx.doi.org/10.26668/indexlawjournals/2525-9660/2015.v1i1.736.
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The development of legality has intrinsic relationship with the capitalist system, so that it is essential to reconcile the analysis of the current economic model with standards from state law. It happens that, as it turns out the frustration of the applicability of the right post, a crisis arises in statist legal hegemony, which in turn, can only be overcome by expanding collective participation and consequently the implementation of an alternative right that with the consolidation of legal pluralism your mind, be able to establish appropriate channels to meet the social demands.Therefore, it is crucial that the resourcefulness of law expands the participatory way in order to extend, in a democratic way, the recognition of alternative sources of law and the constitution of the legal mosaic to all those who represent the true popular demands, for example, the collective actors.