Is There Any Place for Legal Theory Today? The Distinctiveness of Law in the Age of Pluralism

Abstract:     
This article questions if and how legal theory and its conceptual framework allow to understand a social reality that today is undergoing several key transformations. The phenomena denoted by the generic label of ‘globalization’ seem to be so radical that many scholars are tempted to dispose of the whole set of conceptual tools developed in the last centuries, in which the pre-eminence of state law was a taken-for-granted point of reference. In the last decades many theoreticians and practitioners in various areas of the legal domain have felt the need to distance themselves from any state-centred, Western-oriented, neo-colonial and neo-imperialist vision of law in order to embrace sounder and open-minded conceptual schemes. In their view, these new schemes have to capture the dynamics of a social reality that is characterized by the rise of alternative normative sources and hybrid regulatory phenomena. What a few decades ago would have been simply regarded as a non-legal normative entity hierarchically subjected to the normative pre-eminence of state law nowadays is regarded as a kind of non-state law that brings into question all normative hierarchies. As a result, the legal domain is noticeably expanding and the borders separating the legal from the social are progressively disappearing. This new state of affairs seems to make the traditional instruments of legal theory incapable of understanding how the legal domain is changing. This is why, as I will show below, some authors have even claimed that legal theory should be seen as but a branch of social analysis, which in turn should be based on empirical data more than on speculative reason.

In the present work I aim to question two basic assumptions that underlie this broad shift. On the one hand, I will show that the issue of pluralism did not emerge out of recent changes, but rather is a state of things that can potentially take place in any geo-historical context. On the other hand, I will contend that today, more than ever before, we need theoretical guidelines precisely because the pluralism of normative orders is increasingly challenging the configuration of law along with our perception of it.

Number of Pages in PDF File: 26

Keywords: Legal theory, legal positivism, legal pluralism, legal institutionalism, globalization

Accepted Paper Series