Pub Date : 2019-09-02DOI: 10.1080/07329113.2019.1683435
Dik Roth
Publication date: 2017 Document Version Publisher's PDF, also known as Version of record Citation for published version (APA): Lund, C., & Eilenberg, M. (2017). Rule and rupture: State formation through the production of property and citizenship. Department of Food and Resource Economics, Faculty of Science, University of Copenhagen. Policy Briefs (Copenhagen Centre for Development Research), No. 02/2017
出版日期:2017文档版本Publisher’s PDF，又称Version of record Citation for published Version (APA): Lund, C， & Eilenberg, M.(2017)。规则与断裂:通过生产财产和公民权形成的国家。哥本哈根大学理学院食品与资源经济系。政策简报(哥本哈根发展研究中心)，第02/2017期
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Pub Date : 2019-09-02DOI: 10.1080/07329113.2019.1678281
A. Diala
Abstract Over the past 600 years, African states have been subjected to powerful influences of globalisation such as the slave trade, colonialism, transcultural exchange, and the law and development movement. These influences, which reflect in transplanted European laws masquerading as state laws, are steadily eroding the identity of indigenous African laws. So, to what extent do customary courts in Nigeria reflect indigenous law identity? This unexplored question is significant for scholarly and policy perceptions of legal pluralism in post-colonial states. These perceptions tend to favour conflict of laws, rather than the dialogue occurring between indigenous laws and state laws in intersectional social fields. Informed by case analysis, interviews, and archival searches, this article presents Nigerian customary courts as Anglicised courts pretending to be indigenous courts. It argues that customary courts illustrate indigenous law’s adaptation to socioeconomic changes. In exposing state laws as a key component of these changes, the article highlights the ways customary court actors engender behavioural changes that reveal the adaptive nature of normative interaction in post-colonial societies. It suggests that the adaptive interface of state laws and indigenous laws offers a theoretical platform for legal integration in sub-Saharan Africa.
{"title":"A butterfly that thinks itself a bird: the identity of customary courts in Nigeria","authors":"A. Diala","doi":"10.1080/07329113.2019.1678281","DOIUrl":"https://doi.org/10.1080/07329113.2019.1678281","url":null,"abstract":"Abstract Over the past 600 years, African states have been subjected to powerful influences of globalisation such as the slave trade, colonialism, transcultural exchange, and the law and development movement. These influences, which reflect in transplanted European laws masquerading as state laws, are steadily eroding the identity of indigenous African laws. So, to what extent do customary courts in Nigeria reflect indigenous law identity? This unexplored question is significant for scholarly and policy perceptions of legal pluralism in post-colonial states. These perceptions tend to favour conflict of laws, rather than the dialogue occurring between indigenous laws and state laws in intersectional social fields. Informed by case analysis, interviews, and archival searches, this article presents Nigerian customary courts as Anglicised courts pretending to be indigenous courts. It argues that customary courts illustrate indigenous law’s adaptation to socioeconomic changes. In exposing state laws as a key component of these changes, the article highlights the ways customary court actors engender behavioural changes that reveal the adaptive nature of normative interaction in post-colonial societies. It suggests that the adaptive interface of state laws and indigenous laws offers a theoretical platform for legal integration in sub-Saharan Africa.","PeriodicalId":44432,"journal":{"name":"Journal of Legal Pluralism and Unofficial Law","volume":null,"pages":null},"PeriodicalIF":0.6,"publicationDate":"2019-09-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"83038125","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}
Pub Date : 2019-05-04DOI: 10.1080/07329113.2019.1596732
Martha F. Davis
Abstract This article situates the preceding contributions to this special section, all focused on aspects of urban or municipal human rights, within the larger context of the challenges raised by local human rights implementation. It discusses the ways in which the research themes presented are both interrelated and divergent. This closing article also identifies themes for additional future research, including particularly the challenge of accountability for human rights realization on the local level.
{"title":"Scoping the new urban human rights agenda","authors":"Martha F. Davis","doi":"10.1080/07329113.2019.1596732","DOIUrl":"https://doi.org/10.1080/07329113.2019.1596732","url":null,"abstract":"Abstract This article situates the preceding contributions to this special section, all focused on aspects of urban or municipal human rights, within the larger context of the challenges raised by local human rights implementation. It discusses the ways in which the research themes presented are both interrelated and divergent. This closing article also identifies themes for additional future research, including particularly the challenge of accountability for human rights realization on the local level.","PeriodicalId":44432,"journal":{"name":"Journal of Legal Pluralism and Unofficial Law","volume":null,"pages":null},"PeriodicalIF":0.6,"publicationDate":"2019-05-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"77298070","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}
Pub Date : 2019-05-04DOI: 10.1080/07329113.2019.1596731
B. Oomen, E. Durmuş
Abstract This introduction sets out key aspects of the relationship between human rights and legal pluralism in cities and towns. Over the years, such localities have come to engage with human rights in many ways that contribute to the pluralization of understandings of human rights. For one, cities and towns are agents, or norm entrepreneurs rather than the passive receivers of human rights as international law and politics. In addition, local governments are actors, bringing into question to what extent they could become subjects rather than mere objects of international law, with their own international competences and obligations, making and enforcing law. Thirdly, localities serve as arenas, far from homogenous entities but rather spaces which bring different local actors and positions together, in which plural understandings of human rights clash and are produced, questioned, contested, and re-negotiated. These forms of urban engagement bring about a rich pluralization of human rights, ranging from the actors involved in its contestation, to the specific rights prioritized by localities; from the ways in which human rights debates can play out in certain spaces, to how human rights norms are transported between the global and the local becoming vernacularized. In setting out this interrelationship between urban activity, human rights and legal pluralism, this introduction also serves as an outline of how the different perspectives in the articles in this Special Issue contribute to a better understanding of the role of local governments in putting forward plural understandings of human rights.
{"title":"Cities and plural understandings of human rights: agents, actors, arenas","authors":"B. Oomen, E. Durmuş","doi":"10.1080/07329113.2019.1596731","DOIUrl":"https://doi.org/10.1080/07329113.2019.1596731","url":null,"abstract":"Abstract This introduction sets out key aspects of the relationship between human rights and legal pluralism in cities and towns. Over the years, such localities have come to engage with human rights in many ways that contribute to the pluralization of understandings of human rights. For one, cities and towns are agents, or norm entrepreneurs rather than the passive receivers of human rights as international law and politics. In addition, local governments are actors, bringing into question to what extent they could become subjects rather than mere objects of international law, with their own international competences and obligations, making and enforcing law. Thirdly, localities serve as arenas, far from homogenous entities but rather spaces which bring different local actors and positions together, in which plural understandings of human rights clash and are produced, questioned, contested, and re-negotiated. These forms of urban engagement bring about a rich pluralization of human rights, ranging from the actors involved in its contestation, to the specific rights prioritized by localities; from the ways in which human rights debates can play out in certain spaces, to how human rights norms are transported between the global and the local becoming vernacularized. In setting out this interrelationship between urban activity, human rights and legal pluralism, this introduction also serves as an outline of how the different perspectives in the articles in this Special Issue contribute to a better understanding of the role of local governments in putting forward plural understandings of human rights.","PeriodicalId":44432,"journal":{"name":"Journal of Legal Pluralism and Unofficial Law","volume":null,"pages":null},"PeriodicalIF":0.6,"publicationDate":"2019-05-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"90822055","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}
Pub Date : 2019-05-04DOI: 10.1080/07329113.2019.1625699
S. Miellet
Abstract This article investigates engagements of local authorities with human rights in the field of irregular migration in a small town, medium-sized city and a rural municipality in the Netherlands. Although scholarship on human rights cities constitutes an important point of departure for this study, this article challenges the urban bias in this emerging body of research on the role of local authorities in processes of human rights localization. Drawing from theories of legal pluralism, scholarship on human rights practice and encounters and finally geographical insights, the article examines spatial dimensions of human rights practices of municipal actors in these three municipalities. More specifically, it investigates how in these municipalities the presence of and encounters with irregular migrants in local institutional spaces contribute to a local contestation of human rights responsibilities and examines how this process of contesting human rights responsibilities differs between these municipalities. The article draws on and develops scholarship on human rights encounters, by extending the scope beyond encounters at high seas and by explicating how power dynamics, temporalities and the sites of encounters can give rise to perceptions of duties that set these encounters apart from everyday sociabilities or encounters with difference. On the basis of a qualitative content analysis of municipal council documents and proceedings this study moreover found considerable differences with regard to how human rights responsibilities are contested locally by municipal actors. This study observed both differences among municipalities and differences among municipal actors within a single municipality in relation to these local understandings of human rights and perceptions of human rights responsibilities.
{"title":"Human rights encounters in small places: the contestation of human rights responsibilities in three Dutch municipalities","authors":"S. Miellet","doi":"10.1080/07329113.2019.1625699","DOIUrl":"https://doi.org/10.1080/07329113.2019.1625699","url":null,"abstract":"Abstract This article investigates engagements of local authorities with human rights in the field of irregular migration in a small town, medium-sized city and a rural municipality in the Netherlands. Although scholarship on human rights cities constitutes an important point of departure for this study, this article challenges the urban bias in this emerging body of research on the role of local authorities in processes of human rights localization. Drawing from theories of legal pluralism, scholarship on human rights practice and encounters and finally geographical insights, the article examines spatial dimensions of human rights practices of municipal actors in these three municipalities. More specifically, it investigates how in these municipalities the presence of and encounters with irregular migrants in local institutional spaces contribute to a local contestation of human rights responsibilities and examines how this process of contesting human rights responsibilities differs between these municipalities. The article draws on and develops scholarship on human rights encounters, by extending the scope beyond encounters at high seas and by explicating how power dynamics, temporalities and the sites of encounters can give rise to perceptions of duties that set these encounters apart from everyday sociabilities or encounters with difference. On the basis of a qualitative content analysis of municipal council documents and proceedings this study moreover found considerable differences with regard to how human rights responsibilities are contested locally by municipal actors. This study observed both differences among municipalities and differences among municipal actors within a single municipality in relation to these local understandings of human rights and perceptions of human rights responsibilities.","PeriodicalId":44432,"journal":{"name":"Journal of Legal Pluralism and Unofficial Law","volume":null,"pages":null},"PeriodicalIF":0.6,"publicationDate":"2019-05-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"86463532","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}
Pub Date : 2019-05-04DOI: 10.1080/07329113.2019.1639318
Miha Marčenko
Abstract The article approaches the development of security of tenure as a core component of the international human right to adequate housing through the assemblage theory. The concept of security of tenure has been assembled through institutional processes led by UN-Habitat, UN Special Rapporteur for the Right to Adequate Housing, the World Bank and others. These international institutions have developed a plurality of approaches to the tenure security. In addition, through international regime interaction these different approaches eventually became linked and started influencing each other. In such a way, the security of tenure developed from underdeveloped and separated human rights norm, developmental goal, and attribute of freehold title to a house or land, to a complex and pluralistic concept. Furthermore, the recognition of the complexity and the plurality of forms of tenure security have been related to the semiformal nature of international processes led by UN-Habitat and others, which connected the international level with the local conditions around the world. Through these processes, a pallet of actors with local experiences made international institutions recognize the uniqueness and complexity of the urban/local space as crucial for approaching the tenure security. Acknowledging the specificity and the pluralism of local – urban – socio-political spaces by international institutions shows how interlinked international and urban levels of policy-making have become.
{"title":"International assemblage of the security of tenure and the interaction of city politics with the international normative discourse","authors":"Miha Marčenko","doi":"10.1080/07329113.2019.1639318","DOIUrl":"https://doi.org/10.1080/07329113.2019.1639318","url":null,"abstract":"Abstract The article approaches the development of security of tenure as a core component of the international human right to adequate housing through the assemblage theory. The concept of security of tenure has been assembled through institutional processes led by UN-Habitat, UN Special Rapporteur for the Right to Adequate Housing, the World Bank and others. These international institutions have developed a plurality of approaches to the tenure security. In addition, through international regime interaction these different approaches eventually became linked and started influencing each other. In such a way, the security of tenure developed from underdeveloped and separated human rights norm, developmental goal, and attribute of freehold title to a house or land, to a complex and pluralistic concept. Furthermore, the recognition of the complexity and the plurality of forms of tenure security have been related to the semiformal nature of international processes led by UN-Habitat and others, which connected the international level with the local conditions around the world. Through these processes, a pallet of actors with local experiences made international institutions recognize the uniqueness and complexity of the urban/local space as crucial for approaching the tenure security. Acknowledging the specificity and the pluralism of local – urban – socio-political spaces by international institutions shows how interlinked international and urban levels of policy-making have become.","PeriodicalId":44432,"journal":{"name":"Journal of Legal Pluralism and Unofficial Law","volume":null,"pages":null},"PeriodicalIF":0.6,"publicationDate":"2019-05-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"79551000","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}
Pub Date : 2019-05-04DOI: 10.1080/07329113.2019.1624942
Moritz Baumgärtel, B. Oomen
Abstract The category of the ‘irregular’ migrant is usually seen as the quintessential non-status under international law, offering states plenty of discretion while providing few practically accessible rights for migrants. At the same time, certain local authorities have struggled to justify more pragmatic responses when dealing with the reception of irregular immigrants. This article explores a recent trend that potentially holds the key to both conundrums: the invocation of international human rights law, in their defence, by local authorities. More specifically, their engagement of human rights can force international institutions to apply and develop norms in this area. Within this story of legal pluralism, nation states are under increasing pressure to live up to the standards that they had previously avoided. Two examples of ‘frontier cities’ operating in very different constitutional and discursive environments will be used to substantiate the argument. The first concerns support by the city of Utrecht of a case concerning emergency social assistance for undocumented migrants before the European Committee of Social Rights. The second example concerns San Francisco as a sanctuary city in the US and a place with a long history of localization of international human rights law. The article closes with a critical reflection on the potential trajectories that this trend might take and what this means for understandings of legal pluralism as well as future research.
{"title":"Pulling human rights back in? local authorities, international law and the reception of undocumented migrants","authors":"Moritz Baumgärtel, B. Oomen","doi":"10.1080/07329113.2019.1624942","DOIUrl":"https://doi.org/10.1080/07329113.2019.1624942","url":null,"abstract":"Abstract The category of the ‘irregular’ migrant is usually seen as the quintessential non-status under international law, offering states plenty of discretion while providing few practically accessible rights for migrants. At the same time, certain local authorities have struggled to justify more pragmatic responses when dealing with the reception of irregular immigrants. This article explores a recent trend that potentially holds the key to both conundrums: the invocation of international human rights law, in their defence, by local authorities. More specifically, their engagement of human rights can force international institutions to apply and develop norms in this area. Within this story of legal pluralism, nation states are under increasing pressure to live up to the standards that they had previously avoided. Two examples of ‘frontier cities’ operating in very different constitutional and discursive environments will be used to substantiate the argument. The first concerns support by the city of Utrecht of a case concerning emergency social assistance for undocumented migrants before the European Committee of Social Rights. The second example concerns San Francisco as a sanctuary city in the US and a place with a long history of localization of international human rights law. The article closes with a critical reflection on the potential trajectories that this trend might take and what this means for understandings of legal pluralism as well as future research.","PeriodicalId":44432,"journal":{"name":"Journal of Legal Pluralism and Unofficial Law","volume":null,"pages":null},"PeriodicalIF":0.6,"publicationDate":"2019-05-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"87039370","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}
Pub Date : 2019-05-04DOI: 10.1080/07329113.2019.1639309
T. Heirwegh, Cathérine Van de Graaf
Abstract The authors aim to explore how human rights are implemented and interpreted in the context of ‘burkini’ policies in local public swimming pools. They will analyse four case studies in Flanders based on the involved actors, factors that influence the process, and the actors’ human rights understanding. It will be found that external actors mainly play a role in initiating discussions on the ‘burkini’. Occasionally, their requests seem to be inspired by or couched in human rights terms. During the decision-making phase, local politicians and civil servants are the ones involved. One of the factors that seem crucial for the interpretation of human rights are the personal beliefs of an individual. It will be argued that a human rights framework, whether in the legal or moral sense, may not necessarily offer much concrete guidance to local authorities on how to determine desirable outcomes regarding this issue. Nevertheless, applying a human rights approach could lead to more inclusion of Muslim women’s voices in the discussion, thereby limiting the impact of personal convictions on human rights interpretation. Lastly, it will be noted that lifeguards may impact human rights implementation in practice by deviating from official policy due to its apparent unfairness.
{"title":"The local swimming pool as a space of rights contestation – an analysis of ‘burkini’ policies in Belgian local public swimming pools","authors":"T. Heirwegh, Cathérine Van de Graaf","doi":"10.1080/07329113.2019.1639309","DOIUrl":"https://doi.org/10.1080/07329113.2019.1639309","url":null,"abstract":"Abstract The authors aim to explore how human rights are implemented and interpreted in the context of ‘burkini’ policies in local public swimming pools. They will analyse four case studies in Flanders based on the involved actors, factors that influence the process, and the actors’ human rights understanding. It will be found that external actors mainly play a role in initiating discussions on the ‘burkini’. Occasionally, their requests seem to be inspired by or couched in human rights terms. During the decision-making phase, local politicians and civil servants are the ones involved. One of the factors that seem crucial for the interpretation of human rights are the personal beliefs of an individual. It will be argued that a human rights framework, whether in the legal or moral sense, may not necessarily offer much concrete guidance to local authorities on how to determine desirable outcomes regarding this issue. Nevertheless, applying a human rights approach could lead to more inclusion of Muslim women’s voices in the discussion, thereby limiting the impact of personal convictions on human rights interpretation. Lastly, it will be noted that lifeguards may impact human rights implementation in practice by deviating from official policy due to its apparent unfairness.","PeriodicalId":44432,"journal":{"name":"Journal of Legal Pluralism and Unofficial Law","volume":null,"pages":null},"PeriodicalIF":0.6,"publicationDate":"2019-05-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"83152867","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}
Pub Date : 2019-05-03DOI: 10.1080/07329113.2019.1601826
L. Roodenburg
Abstract This paper discusses local engagements with human rights norms in Amsterdam, in the context of responses to irregular migration. Specifically, the article studies the local government’s development of a human rights agenda and reflects how this aligns with or contradicts (1) the local government’s program for irregular migrants and (2) NGO initiatives in the realm of human rights and irregular migrants. In 2016 the municipality of Amsterdam launched an “Amsterdam Human Rights Agenda” and (irregular) migration is not mentioned, while the local government does have a progressive program for irregular migrants. Simultaneously, several NGOs contest the municipality for their approach towards irregular migrants, at times using human rights language. Analysis of stakeholder interviews, city council meetings and policy documents reveal the conflicting approaches that urban actors have towards human rights. The language of rights gives weight to claims of NGOs, precisely because of its legal dimension. Contrastingly, in the human rights agenda the municipality mainly refers to rights in their moral sense and refrains from legal language. Concrete issues that are already on the political agenda become labelled as human rights problems. Therefore, this article deliberates whether this undermines the possible strength of human rights as an urban governance framework.
{"title":"Urban approaches to human rights: tracking networks of engagement in Amsterdam’s debate on irregular migration","authors":"L. Roodenburg","doi":"10.1080/07329113.2019.1601826","DOIUrl":"https://doi.org/10.1080/07329113.2019.1601826","url":null,"abstract":"Abstract This paper discusses local engagements with human rights norms in Amsterdam, in the context of responses to irregular migration. Specifically, the article studies the local government’s development of a human rights agenda and reflects how this aligns with or contradicts (1) the local government’s program for irregular migrants and (2) NGO initiatives in the realm of human rights and irregular migrants. In 2016 the municipality of Amsterdam launched an “Amsterdam Human Rights Agenda” and (irregular) migration is not mentioned, while the local government does have a progressive program for irregular migrants. Simultaneously, several NGOs contest the municipality for their approach towards irregular migrants, at times using human rights language. Analysis of stakeholder interviews, city council meetings and policy documents reveal the conflicting approaches that urban actors have towards human rights. The language of rights gives weight to claims of NGOs, precisely because of its legal dimension. Contrastingly, in the human rights agenda the municipality mainly refers to rights in their moral sense and refrains from legal language. Concrete issues that are already on the political agenda become labelled as human rights problems. Therefore, this article deliberates whether this undermines the possible strength of human rights as an urban governance framework.","PeriodicalId":44432,"journal":{"name":"Journal of Legal Pluralism and Unofficial Law","volume":null,"pages":null},"PeriodicalIF":0.6,"publicationDate":"2019-05-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"89524174","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}
Pub Date : 2019-01-02DOI: 10.1080/07329113.2018.1557971
Lando Kirchmair
Abstract In [almost all of the analyses of global legal pluralism], which I have hitherto met with, I have always remark’d, that the author proceeds for some time in the ordinary ways of reasoning, and establishes [the existence of “global legal pluralism”], or makes observations concerning [the “global Bukowina” regarding international] human affairs; when of a sudden I am surpriz’d to find, that instead of the usual copulations of propositions, is, and is not, I meet with no proposition that is not connected with an ought, or an ought not. This change is imperceptible; but is however, of the last consequence. (Hume 1738, book III, part I, ch. I) Pointing at David Hume’s powerful insight, this article aims to remind us of the necessity of sharply distinguishing between global legal pluralism as the description of recent factual developments, drawing attention for example, towards the massive increase in international actors, norms and tribunals as well as adjudicators on the one hand. And, on the other hand, as a different issue, the question of how we ought to deal with or even solve those legal conflicts (based on a (common) framework) resulting from these plural, overlapping legal claims. The “normative move” in the global legal pluralism debate asks for sufficient justification for its normative claims. This article concludes that the is – ought divide is respected at best if prescriptive proposals to solve legal conflicts are not termed “pluralistic.” Instead, I shall suggest, it is more precise to refer to a necessarily common framework which addresses the question as to how those conflicts should be resolved together or at least in a way acceptable to all parties. Finally, this article holds that this common framework depends hugely on the context. Thus, solutions are more likely to be found if we focus on specific contexts instead of drawing on universal solutions for different situations.
{"title":"Descriptive vs. prescriptive global legal pluralism: a gentle reminder of David Hume’s is–ought divide","authors":"Lando Kirchmair","doi":"10.1080/07329113.2018.1557971","DOIUrl":"https://doi.org/10.1080/07329113.2018.1557971","url":null,"abstract":"Abstract In [almost all of the analyses of global legal pluralism], which I have hitherto met with, I have always remark’d, that the author proceeds for some time in the ordinary ways of reasoning, and establishes [the existence of “global legal pluralism”], or makes observations concerning [the “global Bukowina” regarding international] human affairs; when of a sudden I am surpriz’d to find, that instead of the usual copulations of propositions, is, and is not, I meet with no proposition that is not connected with an ought, or an ought not. This change is imperceptible; but is however, of the last consequence. (Hume 1738, book III, part I, ch. I) Pointing at David Hume’s powerful insight, this article aims to remind us of the necessity of sharply distinguishing between global legal pluralism as the description of recent factual developments, drawing attention for example, towards the massive increase in international actors, norms and tribunals as well as adjudicators on the one hand. And, on the other hand, as a different issue, the question of how we ought to deal with or even solve those legal conflicts (based on a (common) framework) resulting from these plural, overlapping legal claims. The “normative move” in the global legal pluralism debate asks for sufficient justification for its normative claims. This article concludes that the is – ought divide is respected at best if prescriptive proposals to solve legal conflicts are not termed “pluralistic.” Instead, I shall suggest, it is more precise to refer to a necessarily common framework which addresses the question as to how those conflicts should be resolved together or at least in a way acceptable to all parties. Finally, this article holds that this common framework depends hugely on the context. Thus, solutions are more likely to be found if we focus on specific contexts instead of drawing on universal solutions for different situations.","PeriodicalId":44432,"journal":{"name":"Journal of Legal Pluralism and Unofficial Law","volume":null,"pages":null},"PeriodicalIF":0.6,"publicationDate":"2019-01-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"88987924","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}
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