Abstract

http://ssrn.com/abstract=2477181
 


 



Reconstructing Early Modern Notions of Legal Pluralism


Richard J. Ross


University of Illinois College of Law; University of Illinois at Urbana-Champaign - Department of History

Philip J. Stern


Duke History Department

July 22, 2013

Legal Pluralism and Empires, 1500-1850, ed. Lauren Benton and Richard J. Ross (New York: New York University Press, 2013), 109-41.

Abstract:     
Legal pluralism occurs when two or more legal orders exert control within a given territory or over a particular social group and yet are not part of a single hierarchical “system” under a coordinating authority. Most historical scholarship on legal pluralism concentrates on its shifting structures in local contexts and on its political and economic implications. By contrast, our essay probes historical actors’ uses of political and religious thought to justify or undermine plural legal regimes in the late sixteenth through early eighteenth centuries. Historians of early modern political thought preoccupied with the rise of the modern state have lavished attention on ‘centralizing’ discourses, particularly theorists such as Bodin, Hobbes, and Pufendorf represented as champions of sovereignty. Against this tendency, we emphasize how ideological support for plural legal orders could be found in a wide range of intellectual projects. These ranged from debates over the right of resistance and the divine right of rulers, through historical work on the ancient Jewish commonwealth and theological disputes over which precepts “bound conscience,” and finally to writings on political economy and the place of family.

Social scientific and jurisprudential work on legal pluralism has focused a set of canonical problems. Should we focus on jurisdictional or normative accounts of pluralism? How can we distinguish the “legal” from the “non-legal,” a dispute that centers on whether to include in pluralist models the norms of families and civil society organizations? How can we model the complex dialectic relation of state and nonstate systems of order? To the extent that this work relies on a historical account spanning the sixteenth through eighteenth centuries, it assumes that a once rich medieval legal pluralism withered as European statebuilding consolidated crown control of law with the ideological support of theories of sovereignty. The intellectual foundation for — if not the practice of — legal centralism arose in this period. The frequent invocation of Bodin, Suarez, Grotius, Hobbes, and Pufendorf as the founding theorists of sovereignty and legal centralism creates the impression that pluralistic thinking was impoverished or on the wane. The central ambition of our article is to provide an alternative historical genealogy for legal scholars of pluralism. Workaday legal pluralism did not struggle against a predominantly hostile intellectual climate. Many discourses supported pluralism. And the most emphatic theorists of a powerful singular sovereign were often responding to intellectual projects that valorized pluralism.

Number of Pages in PDF File: 34

Keywords: legal history; legal pluralism; intellectual history; custom; family; law and religion; political economy

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Date posted: August 9, 2014  

Suggested Citation

Ross, Richard J. and Stern, Philip J., Reconstructing Early Modern Notions of Legal Pluralism (July 22, 2013). Legal Pluralism and Empires, 1500-1850, ed. Lauren Benton and Richard J. Ross (New York: New York University Press, 2013), 109-41. . Available at SSRN: http://ssrn.com/abstract=2477181

Contact Information

Richard J. Ross (Contact Author)
University of Illinois College of Law ( email )
504 E. Pennsylvania Avenue
Champaign, IL 61820
United States
217-244-7890 (Phone)
University of Illinois at Urbana-Champaign - Department of History
United States
Philip J. Stern
Duke History Department ( email )
226 Carr Building (East Campus)
Box 90719
Durham, NC 27708
United States
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