The Oxford Handbook of Global Legal Pluralism最新文献

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Global Legal Pluralism and Conflict of Laws 全球法律多元化与法律冲突
The Oxford Handbook of Global Legal Pluralism Pub Date : 2020-09-10 DOI: 10.1093/OXFORDHB/9780197516744.013.39
R. Michaels
{"title":"Global Legal Pluralism and Conflict of Laws","authors":"R. Michaels","doi":"10.1093/OXFORDHB/9780197516744.013.39","DOIUrl":"https://doi.org/10.1093/OXFORDHB/9780197516744.013.39","url":null,"abstract":"Global legal pluralism makes three claims about law: (1) law includes both state law and nonstate law; (2) there is a plurality of laws; (3) laws overlap and interact in certain ways. Among these, the third one is the most difficult one and at the same time the one least theorized. Pluralists lack the instruments to deal with them. The main reason is that they, with rare exceptions, ignore conflict of laws as the discipline that deals with such overlaps and interactions. As a consequence, discussions have stalled: global legal pluralism is widely accepted as a helpful description of law in the world, but because a more precise conceptualization and theorization is lacking, that description has little impact for further analysis. This chapter introduces conflict of laws as a technique and as a discipline to scholars of global pluralists. And it makes the case for why conflict of laws is the adequate discipline, doctrinally and epistemologically, to deal with overlaps and interactions of laws in global legal pluralism. Conflict of laws is superior to other techniques of dealing with diversity due to its experience. Moreover, it is superior to other epistemologies due to a number of its characteristics, in particular its decentralized nature, its technical character, and its ethical position. Scholars working in global legal pluralism would do well to engage with it in a more comprehensive fashion.","PeriodicalId":193728,"journal":{"name":"The Oxford Handbook of Global Legal Pluralism","volume":"7 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-09-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"114931774","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
引用次数: 4
Theorizing Justice under Conditions of Global Legal Pluralism 全球法律多元化条件下的正义理论化
The Oxford Handbook of Global Legal Pluralism Pub Date : 2020-09-10 DOI: 10.1093/oxfordhb/9780197516744.013.25
Víctor M. Muñiz-Fraticelli
{"title":"Theorizing Justice under Conditions of Global Legal Pluralism","authors":"Víctor M. Muñiz-Fraticelli","doi":"10.1093/oxfordhb/9780197516744.013.25","DOIUrl":"https://doi.org/10.1093/oxfordhb/9780197516744.013.25","url":null,"abstract":"There are distinct challenges to the construction of a theory of justice, in both the national and transnational sphere, under conditions of global legal pluralism. Pluralism shapes theories of global and domestic justice not so much by proposing new normative principles but by challenging prevailing methodological assumptions. Taking John Rawls’s theory of justice as a case study, this chapter illustrates how global legal pluralism complicates Rawls’s idealization of a well-ordered society as requiring the full and effective compliance of citizens with a shared and public conception of justice. Ultimately, the most important way in which global legal pluralism contributes to normative moral theory is by calling into question the ideal that the subject of justice can ever be fixed, that a political society can ever be bounded, or that there is a set of principles or a court of appeal that can order, with some degree of finality, the conflicting jurisdictional claims that bear on moral persons.","PeriodicalId":193728,"journal":{"name":"The Oxford Handbook of Global Legal Pluralism","volume":"58 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-09-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"126256134","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
引用次数: 1
Federalism as Legal Pluralism 作为法律多元主义的联邦制
The Oxford Handbook of Global Legal Pluralism Pub Date : 2020-09-10 DOI: 10.1093/OXFORDHB/9780197516744.013.34
Erin Ryan
{"title":"Federalism as Legal Pluralism","authors":"Erin Ryan","doi":"10.1093/OXFORDHB/9780197516744.013.34","DOIUrl":"https://doi.org/10.1093/OXFORDHB/9780197516744.013.34","url":null,"abstract":"This chapter uses the dynamic federalism model of constitutional dual sovereignty as an analytic window into the emerging legal pluralism discourse. Legal pluralism explores the significance of multiple sources of legal authority and identity with which individuals simultaneously engage. Overlapping sources of normative authority range from different levels institutions of government to private sources of “quasi-legal” norms generated by tribal, religious, commercial, professional, or other associations. Legal pluralism scholars challenge the tradition of legal monism—so entrenched that its presumptions often go unnoticed—which views legitimate legal authority as deriving only from an established source of sovereign or natural authority that unambiguously trumps all competing forces. Proponents contend that legal pluralism more accurately captures the scope of political contest in pluralist societies and the full array of normative forces operating on individual actors. Skeptics critique it for failing to distinguish between legitimate and illegitimately normative forces, and for threatening critical societal institutions by weakening the prerogatives of nation-states. Constitutional federalism, itself characterized by multiple sources of authority within a single geographical territory, provides a simple example of legal pluralism that sidesteps much of the controversy. Involving only sovereign authority, federalism avoids legal pluralism’s normative challenge to statism. Moreover, it resolves at least some of the heterarchical uncertainty unleashed by legal pluralism through the hierarchical ordering device of federal supremacy. Nonetheless, the structural features of dynamic federalism provide valuable platforms for cross-jurisdictional deliberation and dialogic policymaking that resonate with the good-governance proposals advocated by legal pluralists for more inclusive norm generation.","PeriodicalId":193728,"journal":{"name":"The Oxford Handbook of Global Legal Pluralism","volume":"29 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-09-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"133926420","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
引用次数: 0
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