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2 - Legal pluralism

Published online by Cambridge University Press:  09 November 2009

Werner F. Menski
Affiliation:
School of Oriental and African Studies, University of London
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Summary

In the postmodern age, lawyers are re-learning that it remains impossible to draw clear boundaries between the legal and the non-legal. Debates about globalisation have precipitated this realisation (Flood, 2002). Several pioneers of legal pluralism studies provided useful starting points for further plurality-conscious analysis. Hooker (1975: 1) highlighted that ‘[l]egal systems typically combine in themselves ideas, principles, rules, and procedures originating from a variety of sources’, adding that ‘[b]oth in the contemporary world and historically the law manifests itself in a variety of forms and a variety of levels’ (p. 1). We know that law is everywhere (Twining, 2000: 1) as a social phenomenon, based on cultural foundations (Chiba, 2002: v), which the dominant positivist approach has unsuccessfully tried to ignore in order to privilege the state and its laws. Studying legal pluralism clearly ‘raises important questions about power’ (Griffiths, 2002: 289) and thus challenges legal centralist perspectives about state law.

While legal uniformity represents a utopian dream of philosophers, it is therefore an exception in social reality. Questions have arisen about where law begins and where it ends, but perhaps these are misleading questions. It is a common daily experience that normative pluralism, the coexistence of different bodies of norms within the same social space, is a fact of life. While we may struggle to understand the elusive and dynamic nature of norms, Twining (2000: 246) suggests that pluralism goes much deeper, so that ‘to understand law and legal ordering, the study of norms is almost never enough.

Type
Chapter
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Comparative Law in a Global Context
The Legal Systems of Asia and Africa
, pp. 82 - 128
Publisher: Cambridge University Press
Print publication year: 2006

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  • Legal pluralism
  • Werner F. Menski, School of Oriental and African Studies, University of London
  • Book: Comparative Law in a Global Context
  • Online publication: 09 November 2009
  • Chapter DOI: https://doi.org/10.1017/CBO9780511606687.004
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  • Legal pluralism
  • Werner F. Menski, School of Oriental and African Studies, University of London
  • Book: Comparative Law in a Global Context
  • Online publication: 09 November 2009
  • Chapter DOI: https://doi.org/10.1017/CBO9780511606687.004
Available formats
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Save book to Google Drive

To save content items to your account, please confirm that you agree to abide by our usage policies. If this is the first time you use this feature, you will be asked to authorise Cambridge Core to connect with your account. Find out more about saving content to Google Drive.

  • Legal pluralism
  • Werner F. Menski, School of Oriental and African Studies, University of London
  • Book: Comparative Law in a Global Context
  • Online publication: 09 November 2009
  • Chapter DOI: https://doi.org/10.1017/CBO9780511606687.004
Available formats
×