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Brian Z. Tamanaha - One of the best experts on this subject based on the ideXlab platform.
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A Reconstruction of Transnational Legal Pluralism and Law's Foundations
2021Co-Authors: Brian Z. TamanahaAbstract:This essay addresses core theoretical issues surrounding global/transnational Legal Pluralism, taking up the work of leading theorists. First, I demonstrate that global Legal Pluralism is very different from earlier versions of Legal Pluralism (postcolonial and sociological). Next, I expose the flaw of over-inclusive conceptions of Legal Pluralism, which appears in the global Legal Pluralism of Paul Berman, and I explain why theoretical concepts of law cannot solve this flaw. I then address the profusion of private and hybrid regulatory forms on the domestic and transnational levels, and I mark the line between theory and practice. Thereafter, I expose problems with the relational concept of law formulated for global Legal Pluralism by Ralf Michaels, showing why it is unsuitable for many situations of Legal Pluralism. The approach to transnational Legal Pluralism I articulate avoids these conceptual problems. It centers on conventionally identified forms of law that vary and change over time, which can be grouped in terms of three categories: community law, regime law, and cross-polity law. Finally, I set forth a handful of specific lessons for a reconstructed transnational Legal Pluralism.
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National to Transnational Legal Pluralism
Legal Pluralism Explained, 2021Co-Authors: Brian Z. TamanahaAbstract:This chapter studies state law within the United States Legal system(s), showing that law is not fully unified and hierarchically organized, a condition that also exists within highly developed national Legal systems across Europe. It looks at Pluralism internal to national Legal systems before considering constitutional Pluralism in the European Union, as well as global Legal Pluralism. Flowing through preceding chapters is the movement from decentralized community law to the consolidation of law within the territorial state—with regime law absorbing or trying to suppress or recognizing or accommodating or turning a blind eye to resilient forms of lived community law. The chapter leaves aside community law to center on the state Legal system itself, and thereafter on manifestations of cross-polity laws. As with previous chapters, the focus is on Legal Pluralism while questioning the image of the monist law state. Unlike previous chapters, which have been largely descriptive, the last part of the chapter is more analytical and critical in discussing global Legal Pluralism.
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Legal Pluralism in Historical Context
Legal Pluralism Explained, 2021Co-Authors: Brian Z. TamanahaAbstract:This chapter presents a historical context of Legal Pluralism. A pivotal shift of the past several centuries has been from law attached to a person's community toward territorial states that claim a monopoly over law—a long-term project that has always been marked by major exceptions and has never been fully completed. Prior to this shift, the widely held view, now largely forgotten, is that everyone was entitled to be judged by the law of their community, called “personal law” at the time because it attaches to each person, though the chapter descriptively labels this “community law” to enable comparisons to other contexts. The first step is to understand empires, which are cauldrons of Legal Pluralism, using the Roman Empire as an example. The chapter then covers Legal Pluralism during the High Middle Ages, followed by the slow process by which the state gradually crystallized, absorbing other forms of law within its ambit, though not entirely. It also addresses three Legally plural contexts in the early modern period into the twentieth century: the millet system in the Ottoman Empire, extraterritoriality, and the plural Legal system entrenched in India by the British East India Company.
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Understanding Legal Pluralism: Past to Present, Local to global†
Legal Theory and the Social Sciences, 2017Co-Authors: Brian Z. TamanahaAbstract:Although it has not yet penetrated mainstream Legal academia, the notion of Legal Pluralism is gaining momentum across a range of law-related fields. It has been a major topic in Legal anthropology and Legal sociology for about two decades, and is now getting attention in comparative law and international law. This recent convergence on the notion of Legal Pluralism is fueled by the apparent multiplicity of Legal orders, from the local level to global level. There are village, town, or municipal laws of various types; there are state, district or regional laws of various types; there are national, transnational, and international laws of various types. In addition to these familiar bodies of law, in many societies there are more exotic forms of law, like customary law, indigenous law, religious law, or law connected to distinct ethnic or cultural groups. There is also an evident increase in quasi-Legal forms, from private policing and private judging, to privately run prisons, to the ongoing creation of the new lex mercatoria, a body of transnational commercial law that is almost entirely the product of private law making activities. These multiple, often uncoordinated, coexisting or overlapping bodies of law may make competing claims of authority; they may impose conflicting demands or norms; and they may have different styles and orientations. This potential conflict generates uncertainty or jeopardy for individuals and groups in society, who cannot be certain in advance which Legal regime will be applied to their situation. It also creates opportunities for individuals and groups to strategically invoke or pit one Legal order against another. This article will lay out a framework to help examine and understand the pluralistic form that law increasingly takes today. Legal Pluralism, it turns out, is a common historical condition. Part I of this article will portray the rich Legal Pluralism that characterized the medieval period, and it will describe how this Pluralism was reduced in the course of the consolidation of state power. The article will then elaborate on new forms of Legal Pluralism that were produced in the course of colonization. These historical contexts will set the stage for contemporary Legal Pluralism, which combines the legacy of this past with more recent developments connected to the processes of globalization. Part II of the article will focus on the academic discussion of Legal Pluralism. Although the notion of Legal Pluralism is gaining popularity, from its very inception it has been plagued by a fundamental conceptual problem: the difficulty of defining "law." Debates over this conceptual problem have continued unabated for three decades. Moreover, just as the notion of Legal Pluralism has begun to take off, the theorist who contributed the most to its development announced that, owing to its insoluble conceptual problems, Legal Pluralism should be discarded. This turnabout is a fascinating intellectual story in itself. Part II will lay out a brief account of the conceptual problem that plagues Legal Pluralism and will indicate why it cannot be resolved. Scholars who invoke Legal Pluralism without an awareness of this conceptual problem and its implications risk building upon an incoherent and unstable foundation. Finally, Part III will articulate an approach to contemporary Legal Pluralism that avoids the conceptual problems suffered by most current approaches, while framing the important features of Legal Pluralism. It is drawn from and combines the insights produced in Legal anthropology, comparative law, international law, and globalization studies, in the hope that the framework can provide common ground for a cross-disciplinary focus on Legal Pluralism. This article was delivered as the 2007 Julius Stone Address at the University of Sydney School of Law.
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Legal Pluralism and Development: Scholars And Practitioners In Dialogue
2013Co-Authors: Brian Z. Tamanaha, Caroline Sage, Michael WoolcockAbstract:Part I. Origins and Contours: 1. Historical perspectives on Legal Pluralism Lauren Benton 2. The rule of law and Legal Pluralism in development Brian Z. Tamanaha 3. Bendable rules: the development implications of human rights Pluralism David Kinley 4. Legal Pluralism and Legal culture: mapping the terrain Sally Engle Merry 5. Towards equity in development when the law is not the law: reflections on Legal Pluralism in practice Daniel Adler and So Sokbunthouen Part II. Theoretical Foundations and Conceptual Debates: 6. Sustainable diversity in law H. Patrick Glenn 7. Legal Pluralism 101 William Twining 8. The development 'problem' of Legal Pluralism: an analysis and steps towards solutions Gordon R. Woodman 9. Institutional hybrids and the rule of law as a regulatory project Kanishka Jayasuriya 10. Some implications of the application of Legal Pluralism to development practice Doug J. Porter Part III. From Theory to Practice: 11. Legal Pluralism and international development agencies: state building or Legal reform Julio Faundez 12. Access to property and citizenship: marginalization in a context of Legal Pluralism Christian Lund 13. The publicity 'defect' of customary law Varun Gauri 14. Unearthing Pluralism: mining, multilaterals and the state Meg Taylor and Nicholas Menzies 15. The problem with problematizing Legal Pluralism: lessons from the field Deborah H. Isser.
Joyeeta Gupta - One of the best experts on this subject based on the ideXlab platform.
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Towards an elaborated theory of Legal Pluralism and aquatic resources
Current Opinion in Environmental Sustainability, 2014Co-Authors: Joyeeta Gupta, Maarten BavinckAbstract:There is incoherence in governance rules for aquatic resources at multiple levels of governance. Legal Pluralism tries to make sense of such incoherence, highlighting the tensions between concurrent rule systems and identifying their impacts. This review paper synthesizes the contributions to this special issue and examines the value of the Legal Pluralism approach for the governance of aquatic resources. It reveals a diversity of causes for Legal Pluralism and its social and ecological impacts. Drawing on theories of Legal fragmentation, administrative law, and public–private partnerships, this paper enhances the scope of the Legal Pluralism approach for engaging with ecological and economic sustainability and contributing to governance.
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Legal Pluralism in aquatic regimes: a challenge for governance
Current Opinion in Environmental Sustainability, 2014Co-Authors: Maarten Bavinck, Joyeeta GuptaAbstract:A key challenge of governance architecture is dealing with Legal Pluralism, defined as multiple systems of rules that apply to the same situation (or jurisdiction). However, while there is considerable literature that diagnoses the existence of Pluralism, there is very little that explores how pluralist norms and rules arise and can be dealt with. Against this background, this review paper is innovative in that it analyses (a) the rise of Legal Pluralism in the fresh water regime and in the marine system, (b) presents a state of the art assessment of the theory of Legal Pluralism and (c) designs a theoretical framework for analyzing and addressing it. This paper presents the theoretical framework that will be used in the other papers of this special issue.
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Legal Pluralism in the area of human rights: water and sanitation
Current Opinion in Environmental Sustainability, 2014Co-Authors: Pedi Obani, Joyeeta GuptaAbstract:Access to clean drinking water and adequate sanitation and hygiene facilities is crucial to achieving social and environmental sustainability. We examine the global human water and sanitation right from a Legal Pluralism perspective to see if it is indifferent to, competes with, accommodates, or is mutually supportive of national laws and local customs. The paper concludes that Legal Pluralism in the area of human rights is a multilevel process operating at different levels of governance. Therefore, the effective implementation of international human rights depends on the nature of the relationship with existing regional, national and customary laws. After a Legal Pluralism diagnosis has been conducted for a specific region, there may be specific tools to deal with the related challenges.
Patrick Macklem - One of the best experts on this subject based on the ideXlab platform.
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Indigenous Peoples and the Ethos of Legal Pluralism in Canada
SSRN Electronic Journal, 2014Co-Authors: Patrick MacklemAbstract:In a luminous book entitled Shadow Nations, Bruce Duthu reconstructs relations between Indian nations and the United States according to a founding ”ethos of Legal Pluralism.” In its afterglow, many scholars will be inspired to approach their jurisdictions with a similar objective in mind. Writing from Canada, with its strong ties to Legal Pluralism in theory if not in practice, Shadow Nations led me to ask the following questions. How receptive is the Canadian constitutional environment to conceiving of Indigenous-Canadian relations in accordance with similar ethos of Legal Pluralism? Are there institutional and doctrinal openings for such a reconstruction to take root? What forms of structural and political resistance might act as impediments? This chapter offers some preliminary reflections on these questions. It first outlines Legal Pluralism’s promise in early encounters between Indigenous peoples and colonists in New France and British North America and offer reasons why Legal Pluralism thus far fails to characterize Indigenous-Canadian relations. It then identifies three developments that could form a foundation for its resurgence. Two are occurring inside Canadian law, looking out to Indigenous Legal norms. The third is occurring beyond Canadian law, and is not necessarily looking in to Canadian Legal norms. My reflections on these developments provide little more than a foundation from which answers to these questions might flow. But I hope they shed some light on the receptivity of relations between Indigenous peoples and the Canadian state to an ethos of Legal Pluralism.
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Militant democracy, Legal Pluralism, and the paradox of self-determination
International Journal of Constitutional Law, 2006Co-Authors: Patrick MacklemAbstract:The Legality of militant democracy—Can a constitutional democracy act Legally in an antidemocratic manner to combat threats to its existence?—is far from clear. The Legality of Legal Pluralism—the extent to which international law authorizes political agendas that seek to implement various forms of autonomy—is also unclear. The elusive Legality of these developments creates conditions for the abuse of power both by states defending democracy and by religious, cultural, and national communities seeking a measure of independence. Marked by a shared normative commitment to the paradox of self-determination, the relationship between Legal Pluralism and militant democracy provides insight into the Legality of both developments in ways that might be overlooked by viewing each in isolation. This is revealed dramatically by the recent decision of the European Court of Human Rights in Refah Partisi v. Turkey, in which the Court upheld the banning of a political party that was advocating a form of Legal Pluralism that would introduce elements of Islamic law into the Turkish Legal order. Refah establishes a Legal site in which contestations over the constitutional boundaries of Legal Pluralism and militant democracy will take place in the future.
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militant democracy Legal Pluralism and the paradox of self determination
2005Co-Authors: Patrick MacklemAbstract:The international Legality of militant democracy - when and how a constitutional democracy can Legally act in an antidemocratic manner to combat threats to its democratic existence - is far from clear. The Legality of Legal Pluralism - the extent to which international law authorizes transformative political agendas that seek to implement forms of religious, cultural or national autonomy - is also unclear. The elusive Legality of these political developments creates conditions for the abuse of power both by states acting in defense of democracy, and by religious, cultural and national communities seeking a measure of Legal autonomy. Marked by a shared normative commitment to the paradoxical principle of self-determination, the relationship between Legal Pluralism and militant democracy provides insight into the Legality of both developments in ways that might be overlooked by viewing each in isolation. That this is the case is revealed dramatically by the recent decision of the European Court of Human Rights in Refah v. Turkey, in which the Court upheld the banning of a political party that advocated a form of Legal Pluralism which would introduce elements of Islamic law into the Turkish Legal order. Refah v. Turkey establishes a Legal site in which contestations over the boundaries of Legal Pluralism and militant democracy will take place in the future, and reveals how European human rights law seeks to realize the democratic potential of self-determination.
Paul Schiff Berman - One of the best experts on this subject based on the ideXlab platform.
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Understanding Global Legal Pluralism
The Oxford Handbook of Global Legal Pluralism, 2020Co-Authors: Paul Schiff BermanAbstract:As a scholarly project, global Legal Pluralism has been extraordinarily successful, and it is not difficult to see why. Legal pluralists had long observed that, in any given social context, people are regulated by multiple different Legal and quasi-Legal regimes and that these regimes are sometimes associated with formal state law, but sometimes they are not. Global Legal Pluralism took that insight and applied it to the post–Cold War international and transnational arena at just the right moment. Circa 1998, international and transnational institutions were proliferating, industry standard-setting bodies and corporate codes of conduct were taking on new prominence, and the rise of online interaction meant that social life was increasingly deterritorialized and that almost any piece of electronic data or any online interaction could implicate multiple regulatory regimes. This complex web of regulatory bodies included some regimes that were state-based, some that were built and maintained by nonstate actors, some that fell within the purview of local authorities and jurisdictional entities, and some that involved international courts, tribunals, arbitral bodies, and regulatory organizations.Global Legal Pluralism provided scholars with a theoretical lens for conceptualizing the complex interactions among these various Legal and quasi-Legal entities. If authority and jurisdiction are never absolute but are instead always relative and contested, then global Legal Pluralism studies that contestation, sees how regulatory norms move across territorial borders, analyzes networks of influence, and tries to tease out changes in Legal consciousness over time—the often unnoticed and subtle shifts in people’s taken-for-granted sense of the way things are or have to be. And, moving from the descriptive to the normative, communities drawing on the insights of global Legal Pluralism might sometimes affirmatively seek to create or preserve spaces for productive interaction among multiple, overlapping communities and Legal systems by developing procedural mechanisms, institutions, and practices that aim to bring those communities and systems into dialogue rather than dictating norms hierarchically. Such an approach is not derived from any overarching universal set of substantive truths and does not require a commitment to particular substantive values. They only require a pragmatic willingness to engage with other possible normative systems and potentially to restrain one’s own voice for the sake of forging more workable, longer-lasting relationships and harmony among multiple communities. In this way, law becomes a forum for dialogue across difference. Thus, global Legal Pluralism provides a useful framework for both designing and evaluating Legal institutions and procedures, separate from their substantive aims.This introductory chapter outlines the main themes of this extraordinary body of scholarly work and seeks to encourage scholars studying different substantive areas of law to use global Legal Pluralism as a theoretical framework that might help them to conceptualize both the descriptive and normative issues they face.
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Global Legal Pluralism as a Normative Project
SSRN Electronic Journal, 2018Co-Authors: Paul Schiff BermanAbstract:Legal pluralists have long recognized that societies consist of such multiple overlapping normative communities. These communities are sometimes state based but sometimes not, and they are sometimes formal, official, and governmental, but again sometimes they are not. Scholars studying interactions among these multiple communities have often used the term “Legal Pluralism” to describe the inevitable intermingling of these normative systems. In recent decades, a new application of pluralist insights has emerged in the international and transnational realm. This new Legal Pluralism research was born in the decades following the collapse of the bipolar Cold War order in 1989. During this period, it became clear that a single-minded focus on state-to-state relations or universal overarching norms was inadequate to describe the reality of the emerging global Legal system, with its web of jurisdictional assertions by state, international, and non-state normative communities. Traditionally, Legal Pluralism has been primarily a descriptive enterprise. Anthropologists, historians, and other social scientists have generally seen Legal Pluralism as simply a reality, neither good nor bad, neither desirable nor undesirable. Instead, they have defined their task principally as an exercise in thick description: cataloging the inevitable hybridity that arises when two Legal or quasi-Legal systems occupy the same social space, as well as the resulting strategic interactions that occur among those navigating the multiple regimes. This is not to say, of course, that Legal Pluralism as a scholarly project was (or ever could be) devoid of implicit values and normative biases. Indeed, one might say that two strong normative undercurrents have always animated Legal Pluralism. First, Legal Pluralism was an attack on Legal centralism, the idea that law was the sole province of the state and its formal institutions. Pluralists sought to undermine the assumption of state power, discovering agency and subversive opportunities among those presumed to be marginalized. As such, Legal Pluralism was a way of critiquing the power of the state and even at times celebrating resistance to state hegemony. Second, Legal Pluralism often had an implicit pro-local bias, particularly in its emphasis on forms of resistance to colonial state hegemony. Perhaps echoing cultural anthropology’s more general celebration of the local, Legal pluralists tended to make the local, the indigenous, and the anti-colonial the heroes of the narrative. Nevertheless, even if we grant these implicit value preferences, Legal pluralists, following most social scientists, generally have eschewed the sorts of strong normative arguments law professors routinely make: because of such-and-such research, we should now change Legal or governmental systems in these particular ways. And there are surely virtues in focusing on thick description rather than normative prescription. Among other things, the constant pressure to produce “useful” work that will appeal to judges and policy-makers often forces Legal academics into overly strong normative claims based on little evidence or an incomplete understanding of the complexity at work in social forces. One yearns for more effort to comprehend reality before switching to how best to reform it. And yet in this Essay, I conduct a thought experiment. What might it mean for Legal pluralists to play out some of the normative implications of their work for theories of law, policy, and governmental institutional design? Do Legal pluralists have something distinctive to add to contemporary law and governance debates? Or would asking such questions ultimately undermine the core insights of Legal Pluralism by committing scholars to particular modes of governance hierarchy? And if it did, is that a trade-off we can bear as scholars in exchange for policy relevance? And even if we were willing to make such a trade-off, is a Legal pluralist position inherently in tension with any effort at systemic reform because Legal Pluralism recognizes that any system will always be partial, contested, and contingent? Or might systemic reform that is partial, contested, and contingent nevertheless be better than no reform at all? Most fundamentally, I believe Legal pluralists might be able to mount a clear-throated defense of Legal rules and governance institutions that foster interaction and dialogue among those multiple norm-generating communities rather than dissolving diversity either into universalism, on the one hand, or tribalism, on the other. And we need that defense right now, if only to name the values of diversity, dialogue, and communication across difference that are at the core of the world we might be on the brink of losing.
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From Legal Pluralism to Global Legal Pluralism
SSRN Electronic Journal, 2014Co-Authors: Paul Schiff BermanAbstract:Legal pluralists have long recognized that societies consist of multiple overlapping normative communities. These communities are sometimes state-based but sometimes not, and they are sometimes formal, official, and governmental, but again sometimes they are not. Scholars studying interactions among these multiple communities have often used the term “Legal Pluralism” to describe the inevitable intermingling of these normative systemsIn the past decade or so, a new application of pluralist insights has emerged in the international and transnational realm. This new Legal Pluralism research was born in the decades following the collapse of the bi-polar Cold War order in 1989. During this period, it became clear that a single-minded focus on state-to-state relations or universal overarching norms was inadequate to describe the reality of the emerging global Legal system, with its web of jurisdictional assertions by state, international, and non-state normative communities. Legal Pluralism provided a useful alternative framework because Pluralism had always sought to identify hybrid Legal spaces, where multiple normative systems occupied the same social field. And though pluralists had often focused on clashes within one geographical area, where formal bureaucracies encountered indigenous ethnic, tribal, institutional or religious norms, the pluralist framework proved highly adaptive to analysis of the hybrid Legal spaces created by a different set of overlapping jurisdictional assertions (state v. state; state v. international body; state v. non-state entity) in the global arena. This book chapter summarizes and further refines the move from Legal Pluralism to global Legal Pluralism by discussing each component of the inquiry further: in what way is global Legal Pluralism “global”; in what way “Legal”; and in what way “pluralist”? This analysis prompts investigation both of challenges to the global Legal pluralist project as well as possible responses to those challenges.
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The New Legal Pluralism
Annual Review of Law and Social Science, 2009Co-Authors: Paul Schiff BermanAbstract:Scholars studying interactions among multiple communities have often used the term Legal Pluralism to describe the inevitable intermingling of normative systems that results from these interactions. In recent years, a new application of pluralist insights has emerged in the international and transnational realm. This review aims to survey and help define this emerging field of global Legal Pluralism. I begin by briefly describing sites for Pluralism research, both old and new. Then I discuss how Pluralism has come to be seen as an attractive analytical framework for those interested in studying law on the world stage. Finally, I identify advantages of a pluralist approach and respond to criticisms, and I suggest ways in which Pluralism can help both in reframing old conceptual debates and in generating useful normative insights for designing procedural mechanisms, institutions, and discursive practices for managing hybrid Legal/cultural spaces.
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global Legal Pluralism
2007Co-Authors: Paul Schiff BermanAbstract:This Article grapples with the complexities of law in a world of hybrid Legal spaces, where a single act or actor is potentially regulated by multiple Legal or quasi-Legal regimes. In order to conceptualize this world, I introduce literature on Legal Pluralism, and I suggest that, following its insights, we need to realize that normative conflict among multiple, overlapping Legal systems is unavoidable and might even sometimes be desirable, both as a source of alternative ideas and as a site for discourse among multiple community affiliations. Thus, instead of trying to stifle conflict either through an imposition of sovereigntist, territorially-based, prerogative or through universalist harmonization schemes, communities might sometimes seek (and increasingly are creating) a wide variety of procedural mechanisms, institutions, and practices for managing, without eliminating, hybridity. Such mechanisms, institutions, and practices can help mediate conflicts by recognizing that multiple communities may legitimately wish to assert their norms over a given act or actor, by seeking ways of reconciling competing norms, and by deferring to other approaches if possible. Moreover, when deference is impossible (because some instances of Legal Pluralism are repressive, violent, and/or profoundly illiberal), procedures for managing hybridity can at least require an explanation of why a decisionmaker cannot defer. In sum, Pluralism offers not only a more comprehensive descriptive account of the world we live in, but also suggests a potentially useful alternative approach to the design of procedural mechanisms, institutions, and practices. The Article proceeds in three parts. First, I summarize the literature on Legal Pluralism and suggest ways in which this literature helps us understand the global Legal environment. Second, drawing on pluralist insights, I offer an analytical framework for addressing normative conflicts, one that provides an alternative both to territorially-based sovereigntism and to universalism, and instead opens space for the jurisgenerative interplay of multiple normative communities and commitments. This framework generates a series of values and principles that can be used to evaluate the efficacy of procedural mechanisms, institutional designs, and discursive practices for managing hybridity. Third, I survey a series of such mechanisms, institutions, and practices already in use in a wide variety of doctrinal contexts, and I discuss how they work (or sometimes fail to work) in actual practice. And though each of these mechanisms, institutions, and practices has been discussed individually in the scholarly literature, they have not generally been considered together through a pluralist lens, nor have they been evaluated based on their ability to manage and preserve hybridity. Thus, my analysis offers a significantly different approach, one that injects a distinct set of concerns into debates about global Legal interactions. Indeed, although many of these mechanisms, institutions, and practices are often viewed as second-best accommodations between hardline sovereigntist and universalist positions, I argue that they might at least sometimes be preferable to either. In the conclusion, I suggest implications of this approach for more general thinking about the potential role of law in identifying and negotiating social and cultural difference.
Maarten Bavinck - One of the best experts on this subject based on the ideXlab platform.
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Towards an elaborated theory of Legal Pluralism and aquatic resources
Current Opinion in Environmental Sustainability, 2014Co-Authors: Joyeeta Gupta, Maarten BavinckAbstract:There is incoherence in governance rules for aquatic resources at multiple levels of governance. Legal Pluralism tries to make sense of such incoherence, highlighting the tensions between concurrent rule systems and identifying their impacts. This review paper synthesizes the contributions to this special issue and examines the value of the Legal Pluralism approach for the governance of aquatic resources. It reveals a diversity of causes for Legal Pluralism and its social and ecological impacts. Drawing on theories of Legal fragmentation, administrative law, and public–private partnerships, this paper enhances the scope of the Legal Pluralism approach for engaging with ecological and economic sustainability and contributing to governance.
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Interactive governance for sustainable fisheries: dealing with Legal Pluralism
Current Opinion in Environmental Sustainability, 2014Co-Authors: Svein Jentoft, Maarten BavinckAbstract:Legal Pluralism creates problems as well as opportunities for the governance of capture fisheries. As there are important variations in the manifestation of Legal Pluralism as well as in the governability of individual fisheries, their assessment is of importance. This review paper asks how such a governability assessment may be carried out. For this purpose we make use of the interactive governance framework, pioneered by Jan Kooiman and the typology of Legal Pluralism relations brought forward by Bavinck and Gupta (2014). One conclusion is that because of the many variations between fisheries systems, one-size-fits-all governance solutions are likely to fail.
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Legal Pluralism in aquatic regimes: a challenge for governance
Current Opinion in Environmental Sustainability, 2014Co-Authors: Maarten Bavinck, Joyeeta GuptaAbstract:A key challenge of governance architecture is dealing with Legal Pluralism, defined as multiple systems of rules that apply to the same situation (or jurisdiction). However, while there is considerable literature that diagnoses the existence of Pluralism, there is very little that explores how pluralist norms and rules arise and can be dealt with. Against this background, this review paper is innovative in that it analyses (a) the rise of Legal Pluralism in the fresh water regime and in the marine system, (b) presents a state of the art assessment of the theory of Legal Pluralism and (c) designs a theoretical framework for analyzing and addressing it. This paper presents the theoretical framework that will be used in the other papers of this special issue.
