Does legal theory have a pluralism problem?

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Abstract

Legal theory has been criticised by legal pluralists on the grounds that it has a ‘pluralism problem’. In a nutshell, legal theory’s pluralism problem stems from the fact that it explicitly or implicitly assumes the model of state law whenever it refers to law. This is problematic both because such a state-based conception of law fails to capture myriad non-state forms of law existing in different contexts and because it supports oppression in post-colonial contexts where indigenous laws are pushed out by colonial laws conforming to the (state-based) legal theoretical paradigm. This paper focuses on the former, analytical, limb of legal theory’s pluralism problem by breaking the problem down into three specific claims; two which pluralists argue legal theory defends: a strong claim - that all law is necessarily state law; an intermediate claim - that state law is a paradigmatic or the ‘best’ form of law; and one made by pluralists about legal theory: a weak claim that legal theory has unwarrantedly neglected non-state forms of law. It analyses each claim in turn reviewing the relevant pluralist literature and linking this to a version of each claim in legal theory literature. It concludes that if legal theory does have a pluralism problem, and the analysis undertaken in this paper suggests that it might in some respects, it is not a particularly profound one. As such, much of the resources of legal theory can be adopted to capture a wide variety of both extant and new emergent forms of non-state law in the context of legal globalization and transnationalism.
Original languageEnglish
Title of host publicationThe Oxford Handbook of Global Legal Pluralism
EditorsPaul Schiff Berman
Place of PublicationNew York, NY
PublisherOxford University Press
Chapter8
ISBN (Print)9780197516744
Publication statusPublished - 16 Oct 2020

Publication series

NameOxford Handbooks

Keywords

  • legal theory
  • global legal pluralism
  • transnational law
  • non-state law
  • the nature of law
  • legal pluralism

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