Jump to content

Legal pluralism

From Wikipedia, the free encyclopedia
This article is about the concept of legal pluralism. For other uses of the term, see Pluralism (disambiguation).

Legal pluralism is the existence of multiple legal systems within one society and/or geographical area.

History

[edit]

Church and State

[edit]

The notion of "parallel sovereignty"[1] between premodern States and the Catholic Church was an accepted situation in medieval and early modern Europe to such an extent that it was considered as the ADN of the occidental society.[2] Even if this authorities were often in conflicts, Church and State were habitually supportive for each other et it's possible to called it a "legal collaborative pluralism".[3]

The theologians and jurists of the School of Salamanca like Domingo de Soto and Tomás de Mercado stimulated thus the interplay between canon and civil laws[4] · .[5] The latest considered for example the confessor, judge of the conscience, as a veritable agent for the application of civil law.[6]

Colonial societies

[edit]

Plural legal systems are particularly prevalent in former colonies, where the law of a former colonial authority may exist alongside more traditional legal systems (customary law). In postcolonial societies a recognition of pluralism may be viewed as a roadblock to nation-building and development. Anthropologists view legal pluralism in the light of historical struggles over sovereignty, nationhood and legitimacy.[7]

When the systems developed, the idea was that certain issues (such as commercial transactions) would be covered by colonial law, and other issues (family and marriage) would be covered by traditional law.[8] Over time, those distinctions tended to break down, and individuals would choose to bring their legal claims under the system that they thought would offer them the best advantage.

Current practice

[edit]

Legal pluralism also occurs when different laws govern different groups within a country. For example, in India and Tanzania, there are special Islamic courts that address concerns in Muslim communities by following Islamic law principles. Secular courts deal with the issues of other communities.

Since modern Western legal systems can also be pluralistic,[9] it is misleading to discuss legal pluralism only in relation to non-Western legal systems. Legal pluralism may even be found in settings that might initially appear legally homogenous. For example, there are dual ideologies of law within courthouses in the US, as the formal ideology of law as it is written exists alongside the informal ideology of law as it is used.[10] The discussion on the internal and external plurality of legal systems is called sociology of law.

Sources of Islamic law include the Koran, Sunnah and Ijma, but most modern Western nation-states take the basis of their legal system from the Christian superpowers of old (Britain, France etc.). That is also why moral laws found in the Bible have actually been made full-fledged laws, with the initial grundnorm set far back in legal history, hence fulfilling the priority of both the positivists and the naturalists. The policy analyst Hamed Kazemzadeh writes, "In spite of the levelling off of many present differences under the impact of science, technology, and increased intercommunication, we cannot in any reasonably near future envisage any substantial lessening of the differences in our basic value systems, either philosophical or cultural".[11]

Legal pluralism also exists to an extent in societies where the legal systems of the indigenous population have been given some recognition. In Australia, for example, the Mabo decision gave recognition to native title and thus elements of traditional Aboriginal law. Elements of traditional aboriginal criminal law have also been recognised, especially in sentencing.[12] That has, in effect, set up two parallel sentencing systems. Another example is the Philippines whose customary ways of indigenous peoples in the Cordilleras are recognized by the Philippine government and in Kalinga, Bodong is the means used by the people to settle disputes: since it had been very effective for them, it is still widely practiced.

There is some concern that traditional legal systems and Muslim legal systems fail to promote women's rights. As a consequence, members of the Committee on the Elimination of Discrimination against Women (CEDAW) have called for a unification of legal systems within countries.

In the Theory of Law

[edit]

In legal anthropology and sociology, following research that noted that much social interaction is determined by rules outside of the law and that several such "legal orders" could exist in one country, John Griffiths, made a strong argument for the study of these social systems of rules and how they interact with the law itself, which came to be known as legal pluralism.[13]: 39 [14]

This concept of legal pluralism where the law is seen as one of many legal orders has been criticized. Roberts argued that the concept of law was intrinsically linked to the notion of the state so these legal orders should not be considered similar to law.[13]: 41 [15] On the other hand, Tamanaha and Griffiths have argued that law should only be studied as a particular form of social order together with other rules that govern social systems, abandoning the concept of law as something worth studying.[13]: 45 [16]

See also

[edit]

References

[edit]
  1. ^ Prodi, Paolo (2011). "Peccato e reato nella teologia morale post-tridentina". Inaugurazione. Anno Accademico 2011-2012 (PDF) (in Italian). Rome: Pontifica Università Lateranense. Accademia Alfonsiana. Istituto Superiore di Teologia Morale. p. 24.
  2. ^ Fukuyama, Francis (2011). The Origins of Political Order: From Prehuman Times to the French Revolution. New York: Farrar, Straus and Giroux. p. 271.
  3. ^ Decock 2017, p. 104.
  4. ^ Decock 2017, p. 105-106.
  5. ^ Decock, Wim (2023). "Salamanca Meets Secularism. Clerics' Role in the Administration of Justice and Charity". In T. Rasmussen; J. Øyrehagen Sunde (eds.). Protestants Legacies in Nordic Law. The Early Modern Period. Brill Schöningh. pp. 57–77.
  6. ^ Decock 2017, p. 110.
  7. ^ Barnard, Alan; Spencer, Jonathan (2009-12-04). The Routledge Encyclopedia of Social and Cultural Anthropology. Routledge. p. 422. ISBN 978-1-135-23640-3.
  8. ^ Griffiths, Anne (November 1996). "Legal Pluralism in Africa: The Role of Gender and Women's Access to Law". PoLAR. 19 (2): 93–108. doi:10.1525/pol.1996.19.2.93.
  9. ^ See Griffiths, John (1986) "What is Legal Pluralism" in Journal of Legal Pluralism 24: 1-55.
  10. ^ Merry, Sally (May 1986). "Everyday Understandings of the Law in Working-class America". American Ethnologist. 13 (2): 253–270. doi:10.1525/ae.1986.13.2.02a00040.
  11. ^ Kazemzadeh, Hamed (January 2018). "Hamed Kazemzadeh: Pluralism in Ideological Peacebuilding". Internal Journal of Acpcs.
  12. ^
  13. ^ a b c Pirie, Fernanda (2013). The anthropology of law. Oxford, United Kingdom. ISBN 978-0-19-969684-0. OCLC 812686211.{{cite book}}: CS1 maint: location missing publisher (link)
  14. ^ Griffiths, John (January 1986). "What is Legal Pluralism?". The Journal of Legal Pluralism and Unofficial Law. 18 (24): 1–55. doi:10.1080/07329113.1986.10756387. ISSN 0732-9113.
  15. ^ Roberts, Simon (1998-01-01). "Against Legal Pluralism". The Journal of Legal Pluralism and Unofficial Law. 30 (42): 95–106. doi:10.1080/07329113.1998.10756517. ISSN 0732-9113.
  16. ^ Tamanaha, Brian Z. (2000). "A Non-Essentialist Version of Legal Pluralism". Journal of Law and Society. 27 (2): 296–321. doi:10.1111/1467-6478.00155. ISSN 1467-6478.

Further reading

[edit]
  • Barzilai, Gad. 2003. Communities and Law: Politics and Cultures of Legal Identities. University of Michigan Press ISBN 0-472-11315-1
  • Benda-Beckmann, K. von. 1981. "Forum Shopping and Shopping Forums: Dispute Processing in Minangkabau Village". Journal of Legal Pluralism 19: 117-159.
  • Chanock, Martin. 1985. Law, Custom, and Social Order: The Colonial Experience in Malawi and Zambia. New York: Cambridge University Press.
  • Merry, Sally Engle. 1988. "Legal Pluralism". Law & Society Review 22: 869-896
  • Sierra, Maria Teresa. 1995. "Indian Rights and Customary Law in Mexico: A Study of the Nahuas in the Sierra de Puebla". Law & Society Review 29(2):227-254.
  • Speelman, G. 1995. "Muslim Minorities and Shari'ah in Europe". Pp. 70–77 in Tarek Mitri (Ed.), Religion, Law and Society. Geneva, Switzerland: World Council of Churches.
  • Kazemzadeh, Hamed. 2018. "Pluralism in Ideological Peacebuilding", Kazemzadeh, Hamed (January 2018). "Internal Journal of ACPCS"..
  • Starr, June, and Jonathan Pool. 1974. "The Impact of a Legal Revolution in Rural Turkey". Law & Society Review: 533-560.
  • Tamanaha, Brian Z., Caroline Sage, and Michael Woolcock, eds. 2012. Legal Pluralism and Development: Scholars and Practitioners in Dialogue. Cambridge, UK: Cambridge University Press. ISBN 9781107019409
  • Tamanaha, Brian Z. 2021. Legal Pluralism Explained: History, Theory, Consequences. New York: Oxford University Press. ISBN 9780190861551
  • Decock, Wim (2018). "Collaborative Legal Pluralism. Confessors as Law Enforcers in Mercado's Advices on Economic Governance (1571)". Zeitschrift des Max-Planck-Instituts für europaïsche Rechtsgeschichte. 25: 103–114.
[edit]
Retrieved from "https://en.wikipedia.org/w/index.php?title=Legal_pluralism&oldid=1250279428"