Explicit – Implicit Legal Pluralism
Comparazione e Diritto Civile, Volume in honor of Thanasis Papachristos, Forthcoming
8 Pages Posted: 2 Jul 2018
Date Written: June 14, 2018
The self-evidence of legal pluralism during the colonization, especially of the 18th and the 19th century, that had as its axis the unfettered application of the colonial rule – different rules of different groups of people, conceded power of interpretation and application of these rules, co-existence of multiple jurisdictions, often in conflict between them – was probably the reason for which governors, theoreticians of law, politically oriented explorers, to mention only a few, had not considered important to conceptualize what was happening (Burbank and Cooper). Legal pluralism was a habitus (P. Bourdieu) then.
There are various appearances of legal pluralism, none of which is absolutely similar to another. The fact that in some countries (as for example in African countries) this coexistence of a central legal governance and multiple indigenous laws is (commendably) officially recognized, while in other countries it is not, is a challenge worth facing and studying. “Law beyond the law” cannot really disappear, even when the implicit and informal is subordinated to the explicit and authorized (R. MacDonald). Legal transplants of the past but also of present times may (should) not suppress the right of the indigenous peoples to use and apply their own chthonic (P. Glenn), mostly oral, laws. When no one can really doubt the (usually latent) power of the cryptotypes in Western laws (R. Sacco), how can one deny to the indigenous peoples the right to apply their chthonic laws in which the cryptotypes seem to be more apparent.
Keywords: Legal pluralism, comparative law, legal transplants, indigenous peoples, indigenous laws, implicit law, explicit law
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