Legal Pluralism

Book Review - Global legal pluralism and multipolar conflicts: A Review of Oren Perez: Sensitivity and Global Legal Pluralism: Rethinking the Trade and Environment Conflict

by Elena Cirkovic

Religious Pluralism in Recent African Constitutional Reform

by M. Christian Green

Journal of Law and Religion (accepted for publication, forthcoming Spring 2013)

Something unexpected has been happening in Africa—and not just Northern Africa, which, along with the Middle East, has... more Something unexpected has been happening in Africa—and not just Northern Africa, which, along with the Middle East, has seen a winter and spring of revolution in 2011. Over the last several years, several sub-Saharan African nations have managed to conduct elections, produce new constitutions, and even partition themselves in relative peace, despite the often dire predictions of foreign governments, media, and election-monitoring organizations. In each of these cases, religion and religious freedom were high-profile concerns, but despite conventional assumptions about the propensity for religious contestation to lead to conflict, the constitutional procedures seem, at least in the near term, to have unfolded peacefully and productively. While the specter of rising Islamist movements in North Africa has led some to view the specifically religious dimensions of the revolutions with caution, religious actors are playing important and often positive roles in the referenda and new constitutions. Even so, as detailed in this paper issues of religious freedom, sharia courts, Muslim-Christian relations, and the relation of religion and state have been key concerns in the new constitutionalism. Countries in focus include Kenya, Tanzania, and Zambia, with brief reference to developments in Nigeria and South Sudan.

Reasons to Ban? The Anti-Burqa Movement in Western Europe

by Prakash Shah

This MMG Working Paper 12-09 (Göttingen: Max Planck Institute for the Study of Religious and Ethnic Diversity) is Co-authored with Ralph Grillo, Emeritus Professor of Social Anthropology at the University of Sussex. Publications include: Pluralism and the Politics of Difference: State, Culture, and Ethnicity in Comparative Perspective, Clarendon Press (1998); editor of The Family in Question: Immigrant and Ethnic Minorities in Multicultural Europe, Amsterdam University Press (2008); co-editor of Legal Practice and Cultural Diversity, Ashgate (2009). Ralph Grillo is a member of the Advisory Group of the Department of Socio-Cultural Diversity of the Max Planck Institute for the Study of Religious and Ethnic Diversity at Göttingen.

During the 2000s, the dress of Muslim women in Muslim-minority countries in Europe and elsewhere became increasingly a... more During the 2000s, the dress of Muslim women in Muslim-minority countries in Europe and elsewhere became increasingly a matter for debate and, in several instances, the subject of legislation. In France, a ban on the wearing of the headscarf
in places of education (2004) was followed in 2010 by the law criminalizing the wearing of the face-veil (usually but inaccurately referred to as the ‘burqa’) in public space. Other countries have enacted similar legislation. Muslim women’s dress has historically been a controversial matter in Muslim-majority countries, too, most recently in North Africa following the Arab Spring, but the present paper concentrates on the movement against face-veiling in Western Europe, documenting what has been happening and analysing the arguments proposed to justify criminalizing this type of garment. In doing so, the paper explores the implications for our understanding of contemporary (ethnically and religiously) diverse societies and their governance.
Is anti-veiling legislation a protest against what is interpreted as an Islamic practice unacceptable in liberal democracies, a sign of a wider discomfort with non-European otherness, or an expression of an underlying racism articulated in cultural terms?
Whatever the reason, is criminalization an appropriate response? An Appendix notes some topics for further research.

Dooyeweerd's Conception of Societal Sphere Sovereignty (class paper)

by Gregory Baus

Abraham Kuyper's conception of societal sphere sovereignty has received various interpretations. Herman Dooyeweerd's... more Abraham Kuyper's conception of societal sphere sovereignty has received various interpretations. Herman Dooyeweerd's interpretation of sphere sovereignty develops Kuyper's conception in terms of its being rooted in and motivated from a distinctly Christian religious orientation, and results in a view of society that is neither individualistic, nor collectivistic. In this paper Dooyeweerd's philosophically elaborated account is examined in terms of his notions of a basic creational diversity; modality and individuality structures; societal communities; sovereignty over-against autonomy/decentralization, and subsidiarity; distinct inner structural principles, the intrinsic limit of state power.

La Soberania de las Esferas Sociales de Dooyeweerd (Spanish)

by Gregory Baus

translated by Eliel Morales

Dooyeweerd's Societal Sphere Sovereignty: A Theory Of Differentiated Responsibility

by Gregory Baus

published in 'Griffin's View: Journal of International and Comparative Law' 2006. Volume 7, number 2.

Toda Joia, Toda Beleza! Finding What is Left in the Margins or Regime Collisions: A Pluralist Take on Managerialism

by Luigi Russi

Co-authored with Alfonso Javier Encinas Escobar, published in the 'Westminster International Law and Theory Centre Online Paper Series', 2012

This paper has two authors, two titles and is written in the form of a dialogue, rather than conveying a unitary... more This paper has two authors, two titles and is written in the form of a dialogue, rather than conveying a unitary voice, as one would instead expect of a coauthored paper. The reason for this is that the articulation of the authors' disagreement, despite the identification of each of them with “the left”, is precisely the object of inquiry. After briefly introducing the problem on which
the authors’ discussion takes place, namely regime collisions, and the clash of approaches that are available to (decide whether to) deal with them, a dialogue follows, in which the  authors’ voices are clearly separated as they discuss the specific issue of the measurement of quality as a (managerialist)
proposal to “solve” regime collisions, and contrast that to more openly politicised views of approaching regime collisions. In the end, the main features of such discussion are examined in such a way as to bring forth the peculiar self-consciousness that pluralist spaces give rise to, weakening and downsizing every point of view that appoints itself as the “higher” vantage point from which to describe the world and enumerate problems, and
stimulating a constant oscillation between perspectives. This commitment to a pluralistic confrontation and the ensuing hybridization of perspectives is, we argue, at the heart of the idea of “the left” which we both identify with.

A Radical View of Legal Pluralism

by Jan Smits

Maastricht European Private Law Institute Working Paper No. 2012/1; to be published in: PLURALISM AND EUROPEAN PRIVATE LAW, Leone Niglia, ed., Oxford, 2012

Law is increasingly pluralist, meaning that different claims to legal authority exist at the same time on the same... more Law is increasingly pluralist, meaning that different claims to legal authority exist at the same time on the same territory. This pluralism raises important questions in the field of (European) private law. The main question discussed in this contribution is a normative one: to what extent can legal pluralism be accepted, or should it even be encouraged? The answer provided entails a radical view of legal pluralism in European private law. This view is based on the idea that people are never necessarily governed by the law of one State or by the norms of one societal group, but are instead allowed to opt out of their ‘own’ set of norms. This puts legal pluralism in a different perspective. While an argument often used against pluralism is that it may endanger the interests of a party being trapped in its own community, the view laid down in this paper avoids this problem: it allows a party to opt out of one community and opt in to another one. The limits of this enhanced principle of party autonomy are found in public policy as understood in the field of private international law.

Justice in many rooms since Galanter: de-romanticizing legal pluralism through the cultural defense

by Mitra Sharafi

Law and Contemporary Problems 71 (2008), 139-46

Marc Galanter's article, 'Justice in Many Rooms' (1981) was prescient in recognizing that nonstate law was not... more Marc Galanter's article, 'Justice in Many Rooms' (1981) was prescient in recognizing that nonstate law was not necessarily kinder and gentler than state law. While many writing in the 1970s and 80s celebrated nonstate law as more egalitarian and less coercive than state law, Galanter held back. Post-1980s critiques of the cultural defense, particularly by Asian American feminist lawyers, have also contributed to a shift in the scholarly perception of nonstate law. In the spirit of Galanter's piece, the cultural defense debate should be read not just as a discussion about multicultural tolerance, but also as an integral part of the legal pluralism literature.

Eugen Ehrlich's "Living Law" and its Legacy for Legal Pluralism

by Sahib Singh

Working Paper

Forthcoming perhaps in Journal of Legal Pluralism

This short comment paper evaluates Ehrlich's contribution to the modern and powerful legal theory of legal pluralism.... more This short comment paper evaluates Ehrlich's contribution to the modern and powerful legal theory of legal pluralism. With the theory finding stature in the current rhetoric of fragmentation in international legal relations, this paper explores the central tenet of one of the theory's founding fathers. It examines the value of Ehrlich's "living law" in the development of legal pluralism and in particular the role it plays in the modern conceptualisation of the theory.

The Potential of International Law: Fragmentation and Ethics

by Sahib Singh

published in Leiden Journal of International Law (2011)

Fragmentation discourse provides a rare opportunity for international lawyers to review what has gone and what is to... more Fragmentation discourse provides a rare opportunity for international lawyers to review what has gone and what is to come: it is in short, a chance to learn lessons of the past. The subjects and the looking-glass, so to speak, is the International Law Commission’s Report on the Fragmentation of International Law and its author, Martti Koskenniemi. It is the conclusion of this paper that the legal world’s approaches to fragmentation, reflected in the ILC Report, represent a deficiency in ethical responsibility. The author considers the Report not only to be naturally inhibited by the institutional environment in which it was constructed, but furthermore finds that the Report’s advocation for a rule-centric approach to a polarized discourse results only in the propagation of ethical deficiencies which define the classical approaches to fragmentation: constitutionalism and legal pluralism. The Report’s formalistic approach is one which attempts to find a middle ground between the stated polarities and in doing so it not only advances the myths of a system and of coherence in international law, but enables the preferences which define proliferating tribunals. The very same preferences which continue to disable the ethical and political emancipation of the legal professional. The author conceives the future of international law can no longer remain chained to rule centrism against political preferences, but rather lies in the study of the legal professional. International law is a project which requires the Kantian moral politician or Kierkegaard’s man of faith, the consciously enlightened professional. In the view of the author, international law’s endeavor should first be the development of a professional pluralism. Engaging in this struggle requires the understanding that professional existentialism is not a reward, but rather the transpiring mindset of noble objectives.

Preliminary Reflections on Teaching about Ethnic Minorities in Law

by Prakash Shah

This paper is published in (2003) Vol. 37, No. 1 The Law Teacher, pp. 18-35.

Attitudes to polygamy in English law

by Prakash Shah

This paper is published in (2003) Vol. 52 International and Comparative Law Quarterly, pp. 359-400.

Thinking Beyond Religion: Legal Pluralism In Britain's South Asian Diaspora

by Prakash Shah

This paper is published in (2006) Vol. 8, No. 3 Australian Journal of Asian law, pp. 237-260.

Ethnic Minorities and the European Convention on Human Rights: A View From the UK.

by Prakash Shah

This paper is published in Ian Edge (ed.) (2000): Comparative law in global perspective. Ardsley, New York: Transnational Publishers, pp. 387-410.

When South Asians marry trans-jurisdictionally: Some reflections on immigration cases by an ‘expert’

by Prakash Shah

This paper is published as a chapter in Livia Holden (ed.) (2011): Cultural Expertise and Litigation: Patterns, Conflicts, Narratives. London: Routledge, pp. 35-52
http://www.routledge.com/books/details/9780415601566/

Legal Pluralism In Conflict: Coping With Cultural Diversity In Law

by Prakash Shah

This book is published as Prakash Shah (2005): Legal Pluralism In Conflict: Coping With Cultural Diversity In Law. London: Glass House.

Legal Pluralism —British Law and Possibilities With Muslim Ethnic Minorities

by Prakash Shah

This paper is published in (1994) Vol. 17, No. 66/67 Retfærd (Nordisk jurdisk tidsskrift), pp. 18-33.

Reflections on the Shari'a Debate In Britain

by Prakash Shah

A final version of this paper was published in (2010) Vol. 13 Studia z Prawa Wyznaniowego (Studies of Ecclesiastical Law), pp. 71-98.
(http://www.kul.pl/11824.html)

The Archbishop of Canterbury’s speech on Civil and Religious Law in England in February 2008 provoked and range of... more The Archbishop of Canterbury’s speech on Civil and Religious Law in England in February 2008 provoked and range of responses from outrage to sympathy. The speech aimed to delineate the contours of a new relationship between the ‘law of the land’ and religious law, particularly Muslim law or shari’a. This article aims to explore the extent to which the Archbishop’s ideas can bear fruit under current conditions of thinking and teaching about law. It places the Archbishop’s speech in the context of historical and existing regimes of legal plurality whereby states recognise more than one legal order. It then goes on to examine some of the detail in the Archbishop’s speech and examines the responses to it. Finally, the article examines the constraints and opportunities in achieving the greater level of attention to religious law which the Archbishop advocated within the framework of British legal systems.

Cross-Cultural Conflicts of Marriage and Divorce Involving South Asians In Britain

by Prakash Shah

This paper is co-authored with Werner F. Menski and published in Fons Strijbosch and Marie-Claire Foblets (eds.) (1999): Relations familiales Interculturelles/Cross cultural family relations. Oñati papers no. 8, Oñati, Spain: International Institute for the Sociology of Law, pp. 167-184.