法律多元主义对跨学科研究者的影响

S. Larcom
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Conversely, legal pluralism may lead to legal dissonance, where different legal orders undermine each other, leading to a low-enforcement-high-crime situation that may be most detrimental to the weakest and most marginalised in society (Larcom and Swanson 2015). While the economic analysis of law has many limitations, it is particularly useful for focusing the essence of the legal circumstance and the consequences. Perhaps legal pluralism scholars could benefit from more interaction with the law and economics, empirical legal studies and institutions literatures, where the focus of enquiry is often centred on the consequences of legal arrangements – and how they can be improved. It is also hoped that authors from these literatures will engage more with the rich legal pluralism literature. There is much to learn from all sides. Finally, it is worth reflecting on the fact that, even if after 40 years, the illusion of legal centralism has been destroyed. 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引用次数: 0

摘要

它很少被实践或欣赏。在某种程度上,这是可以理解的,因为不同的学科有自己的术语、方法、隐含的假设、惯例和价值和重要性的衡量标准。尽管存在这些障碍,对法律多元主义的研究为真正的跨学科研究提供了持续的机会。许多法律上的多重情况非常复杂,有争议,超出了现有分析工具的掌握范围。然而,重要的是,分析上的混乱并不一定意味着在评估它们在提供正义、尊严、补救和个人安全方面的有效性时不能作出规范性判断。例如,法律多元化可能允许在单一法律体系中根本不可能实现的制衡(Berman 1983)。相反,法律多元化可能导致法律不和谐,不同的法律秩序相互破坏,导致低执行率高犯罪率的情况,这可能对社会中最弱势和最边缘化的人最不利(Larcom和Swanson 2015)。虽然法律的经济分析有许多局限性,但它在集中法律环境的本质和后果方面特别有用。也许法律多元主义学者可以从与法律和经济学、实证法律研究和机构文献的更多互动中受益,这些文献的调查重点往往集中在法律安排的后果上- -以及如何改进这些安排。同时也希望来自这些文献的作者能够更多地接触到丰富的法律多元主义文献。从各个方面都可以学到很多东西。最后,值得反思的是,即使在40年后,法律集中制的幻觉已经被摧毁。对某些人来说,确实如此,毫无疑问,这个词在这段时间里变得越来越重要。例如,根据谷歌Books Ngram Viewer(2021)旨在测量单词和短语使用频率的研究,“法律多元主义”一词在20世纪80年代中期取代了“社会-法律”,在21世纪初取代了“法律与社会”,在21世纪初取代了“法律与经济”然而,尽管这个词越来越受欢迎,但对于不同的人、不同的学科和不同的时代,它的含义却有所不同。我希望它的核心意义仍然是,法律可以从国家以外的来源获得合法性。因为正是这种关键的洞察力,尽管它具有破坏性,也可能使事物变得混乱不堪,但它使我们能够更好地看到现实的本来面目,从而取得描述性、分析性和规范性的进步。
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The consequences of legal pluralism for an interdisciplinary researcher
it is less often practiced or appreciated. In part, this is understandable, as different disciplines have their own terminology, methods, implicit assumptions, conventions and measures of worth and importance. Despite these hurdles, the study of legal pluralism provides a continuing opportunity for truly interdisciplinary research. Many legally plural circumstances are highly complex, contested and beyond the grasp of existing analytical tools. However, importantly, analytical messiness does not necessarily mean that normative judgements cannot be made in assessing their effectiveness in delivering justice, dignity, redress and personal security. For instance, legal pluralism may allow for checks and balances that are simply not possible within a unitary legal system (Berman 1983). Conversely, legal pluralism may lead to legal dissonance, where different legal orders undermine each other, leading to a low-enforcement-high-crime situation that may be most detrimental to the weakest and most marginalised in society (Larcom and Swanson 2015). While the economic analysis of law has many limitations, it is particularly useful for focusing the essence of the legal circumstance and the consequences. Perhaps legal pluralism scholars could benefit from more interaction with the law and economics, empirical legal studies and institutions literatures, where the focus of enquiry is often centred on the consequences of legal arrangements – and how they can be improved. It is also hoped that authors from these literatures will engage more with the rich legal pluralism literature. There is much to learn from all sides. Finally, it is worth reflecting on the fact that, even if after 40 years, the illusion of legal centralism has been destroyed. For some it certainly has, and there is no doubt that the term has grown in prominence over this period. For instance, according to Google Books Ngram Viewer (2021) that aims to measure the frequency of use of words and phrases, the term “legal pluralism” overtook “socio-legal” in the mid-1980s, “law and society” in the mid-2000s, and “law and economics” in the early-2010s.2 However, despite having grown in prominence, the term means different things to different people, disciplines and generations. I hope that at the heart of its meaning remains the idea that law can derive legitimacy from sources other than the state. For it is this key insight, as destructive as it is and as antically messy as it can make things, that allows us to better see reality as it is, and to therefore make descriptive, analytical and normative advances.
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期刊介绍: As the pioneering journal in this field The Journal of Legal Pluralism and Unofficial Law (JLP) has a long history of publishing leading scholarship in the area of legal anthropology and legal pluralism and is the only international journal dedicated to the analysis of legal pluralism. It is a refereed scholarly journal with a genuinely global reach, publishing both empirical and theoretical contributions from a variety of disciplines, including (but not restricted to) Anthropology, Legal Studies, Development Studies and interdisciplinary studies. The JLP is devoted to scholarly writing and works that further current debates in the field of legal pluralism and to disseminating new and emerging findings from fieldwork. The Journal welcomes papers that make original contributions to understanding any aspect of legal pluralism and unofficial law, anywhere in the world, both in historic and contemporary contexts. We invite high-quality, original submissions that engage with this purpose.
期刊最新文献
Construing the transformed property paradigm of South Africa’s water law: new opportunities presented by legal pluralism? Wait, what are we fighting about? – Kelsen, Ehrlich and the reconciliation of normative jurisprudence and sociology of law Interview article: water movements’ defense of the right to water. From the European arena to the Dutch exception Scientific versus folk legal pluralism An exploration of legal pluralism, power and custom in South Africa. A conversation with Aninka Claassens
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