Non-Positivist Legal Pluralism and Crises of Legitimacy in Settler-States

Journal of Comparative Law (Forthcoming)

University of Hong Kong Faculty of Law Research Paper No. 062

57 Pages Posted: 26 Sep 2019 Last revised: 11 Oct 2019

See all articles by Alex Green

Alex Green

Faculty of Law, University of Hong Kong

Jennifer Hendry

School of Law, University of Leeds

Date Written: May 24, 2019

Abstract

In this article we develop an original, non-positivist conception of legal pluralism, which we then deploy to identify and evaluate a particular type of legitimacy crisis. Such crises occur when settler-states attempt unilaterally to resolve conflicts between their own legal orders and indigenous legal orders, and thus treat the relevant indigenous communities unjustly. By identifying each legal order in terms of its morally valuable instantiation of the rule of law, we emphasise their equal normative status; the legitimacy crises we identify are typified by failures to acknowledge and respect this equality on the part of settler-states. Using case studies drawn from the United States of America and Australia, this article not only advances the first non-positivist theory of legal pluralism, but also demonstrates the utility of non-positivism as an analytical tool within socio-legal jurisprudence.

Keywords: law and social theory, political philosophy, legal pluralism, non-positivism, indigenous justice, Oliphant v. Suquamish Indian Nation

Suggested Citation

Green, Alex and Hendry, Jennifer, Non-Positivist Legal Pluralism and Crises of Legitimacy in Settler-States (May 24, 2019). Journal of Comparative Law (Forthcoming); University of Hong Kong Faculty of Law Research Paper No. 062. Available at SSRN: https://ssrn.com/abstract=3453251

Alex Green (Contact Author)

Faculty of Law, University of Hong Kong ( email )

Pokfulam Road
Hong Kong, Hong Kong
China

Jennifer Hendry

School of Law, University of Leeds ( email )

Leeds LS2 9JT
United Kingdom

HOME PAGE: http://www.law.leeds.ac.uk/about/staff/hendry.php

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