Manifestations and Arguments: The Everyday Operation of Transnational Legal Pluralism

Paul Schiff Berman ed., Oxford Handbook of Global Legal Pluralism (Oxford University Press, 2020, 226-257)

TLI Think! Paper 01/2020

47 Pages Posted: 3 Jan 2020 Last revised: 1 Jun 2020

See all articles by Peer C. Zumbansen

Peer C. Zumbansen

King's College London & Osgoode Hall Law School; King’s College London, Dickson Poon Transnational Law Institute

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Date Written: November 11, 2019

Abstract

While the term ‘legal pluralism’ literally denotes a plurality of legal orders, it is the plurality of and the distinguishing features between them, which continues to make the subject matter a very charged and hotly debated one. Seen through the lens of legal sociology and anthropology, the plurality of co-existing, normative orders appears, above all, as a matter of description, as a fact of social ordering. Meanwhile, as some of these normative systems are being claimed as being ‘law’ while others are associated with non-legal forms of social order, such as customary, traditional, or indigenous norms as well as, perhaps, sector-specific rules of professional or industry conduct, the categories used to draw the lines between legal and non-legal norms become in themselves highly contentious. The chapter argues that to neglect the fundamental distinction between legal pluralism as ‘manifestation’ and as ‘argument’ perpetuates a troubling inability on the part of positivist and analytical legal theory to engage with law’s inherent instability. Especially at a time, where the actors, norms and processes that together constitute and shape emerging transnational regulatory regimes are located and operating within and beyond the state as the purportedly singularly competent authority of law creation and enforcement, the deconstruction of ‘legal pluralism’ as ‘non-law’ and threat to the state can serve as the foundation for a new, critical legal theory.

Keywords: Legal Pluralism; Transnational Legal Pluralism; State; Legal Positivism; Interdisciplinarity; Postcolonial Legal Theory; Legal Sociology; Legal Anthropology; Transnational Law; Transnational Regulatory Governance

Suggested Citation

Zumbansen, Peer C., Manifestations and Arguments: The Everyday Operation of Transnational Legal Pluralism (November 11, 2019). Paul Schiff Berman ed., Oxford Handbook of Global Legal Pluralism (Oxford University Press, 2020, 226-257) , TLI Think! Paper 01/2020, Available at SSRN: https://ssrn.com/abstract=3502576 or http://dx.doi.org/10.2139/ssrn.3502576

Peer C. Zumbansen (Contact Author)

King's College London & Osgoode Hall Law School ( email )

Somerset House East Wing
Strand
London, WC2R 2LS
United Kingdom

King’s College London, Dickson Poon Transnational Law Institute ( email )

Somerset House East Wing
Strand
London, WC2R 2LS
United Kingdom

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