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This book offers a comparative study of the management of legal pluralism.
The authors describe and analyse the way state and non-state legal systems acknowledge legal pluralism - defined as the coexistence of a state and non-state legal systems in the same space in respect of the same subject matter for the same population - and determine its consequences for their own purposes. The book sheds light on the management processes deployed by legal systems in Africa, Canada, Central Europe and the South Pacific, the multitudinous factors circumscribing the action of systems and individuals with respect to legal pluralism, and the effects of management strategies and processes on systems as well as on individuals. The book offers fresh practical and analytical insight on applied legal pluralism, a fast-growing field of scholarship and professional practice. Drawing from a wealth of original empirical data collected in several countries by a multilingual and multidisciplinary team, it provides a thorough account of the intricate patterns of state and non-state practices with respect to legal pluralism.
As the book's non-prescriptive approach helps to uncover and evaluate several biases or assumptions on the part of policy makers, scholars and development agencies regarding the nature and the consequences of legal pluralism, it will appeal to a wide range of scholars and practitioners in law, development studies, political science and social sciences.
Sommario
The management of legal pluralism: processes, parameters for action, and effects
Introduction
1.Definitions and terminological consideration
. Legal
. Pluralism
2.A descriptive and exegetical approach
3.Normative relevance
Chapter 1
Processes of legal pluralism management
Introduction
1.Management through the articulation of systems
1.1. Articulation by reception
1.1.1.Constitutional and legislative reception of non-State law
1.1.1.1. Africa
1.1.1.2. South Pacific
1.1.1.3. Canada
1.1.2. Low-intensity reception of non-State law
1.1.3.Reception of State law by non-State systems
1.1.3.1 The general rule of non-reception
1.1.3.2. Some cases of reception
1.2. Articulation by withdrawal
1.2.1. Withdrawal by non-State systems
1.2.1.1. Roma law in Romania
1.2.1.2. Customary law in Burundi
1.2.1.3 Kanak law in the South Pacific
1.2.1.4. Indigenous law in Canada
1.2.2. Withdrawal by the State
1.2.2.1. Romania
1.2.2.2. Africa
1.2.2.3. South Pacific
1.2.2.4. Canada
1.2.3. Pragmatism, informality and discretion
2.Management through the adaptation of systems
2.1. Adaptation by imitation
2.1.1The imitating State
2.1.2..State law as purveyor of solutions for non-State law
2.2. Adaptation by endogenous modulation of non-State systems
Conclusion
Chapter 2
Parameters of action in a context of legal pluralism
Introduction
1.Factors structuring action in a context of legal pluralism
1.1 The instability and mutability factor: The influence of intersystemic relationships on the actors
1.2The cognitive factor: the actors' perceptions of the legal systems at play
1.3The capacity factor: the spatial dimension of the authority of legal systems
1.3.1The effectiveness of the co-existing legal systems
1.3.The legitimacy of co-existing legal systems
2.The influence of the vitality of legal systems on State and Non-State Actors
2.1. State system agents
2.1.1 The problem of contingency
2.1.2.Objectives shared by all States
2.1.3.The preference of strong States for non-management
2.1.4The preference of weak States for articulation by reception or withdrawal
2.1.5.Actions of State agents
2.2 Agents of non-State legal systems
2.2.1. Objectives shared by all non-State legal systems
2.2.2.Strong non-State legal systems: wavering between official and unofficial articulations
2.2.3.Weak non-State legal systems: a (mandatory?) preference for official articulation
2.2.4.Actions of non-State agents
2.3. Individuals in a pluralist context
Conclusion
Chapter 3
The effects of legal pluralism management
Introduction
1.The effects of non-management
1.1 Effects on systems
1.2. Effects on individuals
1.2.1. The benefits and perils of unmanaged plurality
1.2.2. Legal relativity and individual inter-systemic migrations
1.2.3. Individual action as a definitional feature of legal pluralism?
2. The effects of management processes on managing systems
2.1. Articulation
2.1.1 Articulation by reception
2.1.1.1 Legal hybridization
. Canada
. The South Pacific
. Africa
2.1.1.2. The dualization and personalization of the law
2.1.1.3. A choice of law within the State system
2.1.2. Articulation by withdrawal
2.1.2.1. The suspension of the articulating system
2.1.2.2. The suspension of competition and conflict
2.1.2.3. The personlization of the law
2.2. Adaptation
2.2.1 The reduction of normative conflict
2.2.2. The intensification of competition
3. The effects of management processes on individuals
3.1. Articulation by reception
3.1.1. A more complex set of legal options
3.1.2. The shield and lever effect within State law
3.1.3. The legal capture of identity
3.2. Articulation by withdrawal
3.2.1. The benefits and perils of withdrawal
3.2.2. The legal capture of identity
3.3. Adaptation
3.3.1 Imitation
3.3.2 Endogenous modulation
4. The effects of management processes on the system of reference
4.1. Legal internality and the autonomy of the system of reference
4.2 The competition effect
4.3. The channelling effect
4.4. The defensive adaptation effect
4.5. The incidental re-invigoration effect
4.6. The externalisation effect
Conclusion
Realities and myths of legal pluralism management
1. Free pluralism and managed pluralism
2. The limits of "do-it-yourself" pluralism
3. The State's ordering capacity defused by the autonomy of systems
4. The pluralist management of pluralism
5. Beyond legal pluralism
Bibliography
Info autore
Ghislain Otis holds a PhD in law from the University of Cambridge. Professor Otis is currently at the Civil Law Section of the University of Ottawa where he holds the tier 1 Canada Research Chair on Legal Diversity of Indigenous Peoples. He is a fellow of the Royal Society of Canada and leads major international research initiatives with indigenous peoples and traditional communities on legal pluralism. He has directed and co-authored several books and articles on indigenous peoples, human rights and legal pluralism. His most recent books include Kanak Aboriginal Title in New Caledonia (2021 French) The Intersection of Indigenous Law and State Law: Cooperation or Confrontation? (2019, bilingual); Contributions to the Study of Indigenous Legal Systems (2018 French)
Jean Leclair - LL.B. Montreal 1985; LL. M. Montréal 1990 (recipient of the Duff-Rinfret Scholarship). Full professor (Université de Montréal) since 2002; member of the Bar of Quebec since 1987. Pierre Elliott Trudeau Foundation fellow 2013. Prix André Morel 2016-2017 for excellence in teaching. Member of the consultative council of the Groupe international de travail sur les peuples autochtones (GITPA) (institutional member of IWGIA).
Sophie Thériault is Full Professor of Law and Vice-Dean Academics, in the University of Ottawa, Faculty of Law (Civil Law Section).
Riassunto
This book offers fresh comparative and analytical perspective on applied legal pluralism.
Relazione
"Ghislain Otis, Jean LeClair, and Sophie Thériault open up possibilities for moving from the 'is' to the 'ought', even while they themselves eschew a strongly normative stance. True to the word 'applied' in the title, the authors train their sights specifically on the question of how different legal systems attempt to confront and actually manage a pluralist reality." Paul Schiff Berman, The George Washington University Law School, USA.
