Does Legal Theory Have a Pluralism Problem?
Schiff Berman (ed.), The Oxford Handbook of Legal Pluralism (Oxford University Press, 2019)
31 Pages Posted: 26 Mar 2018
Date Written: March 23, 2018
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.
Keywords: legal theory, legal pluralism, the nature of law, non-state law, transnational law, global legal pluralism
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