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Legal Pluralism

Legal Pluralism

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Published by Lye Yuan Jun
Comparative law and legal pluralism
Comparative law and legal pluralism

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Published by: Lye Yuan Jun on Oct 07, 2013
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CLT SEMINAR 2: COMPARATIVE LAW AND LEGAL PLURALISMSyllabus
 
“Thematic overview” of the course: where we find law, different types of law
 
 
State law, sub-national law, transnational and international law
 
Legal pluralism, families, tradition, transplant, and their comparison
A Concept of Legal Tradition (Glenn, 2008)
Thesis
The proliferation of a variety of unofficial laws (in distinction to state law) has demanded a solutionthat encompasses these laws. The traditional conception of law as positivist law is unduly restrictive.A more inclusive, tradition-based conception of law enhances the possibility of conciliation of laws.
Need for new conceptual framework
 
Expanding sources of law: Law of the state and law beyond the state
 
Law is becoming more inclusive
Theoretical construction of national legal system hasbecome inadequate
 
Which organising concept allows us to conceptualise the many different types of law nowbeing resorted to and their relations with one another?
What is tradition?
 
“Repetitive behaviour” is much too narrow a definition. Contemporary Western thinkingignores the fact that what is termed ‘modernity’ could not itself have sprung from nowhere:
there must have been a tradition of modernity first.
 
The Western concept of “custom” as re
petitive behaviour under a sense of obligation(Supreme Court definition) strips the notion of custom of its meaning.
 
Presentist notion
 
Cannot merely look at people’s conduct and their present attitude toward the normative
form of custom. Must look beyond observable physical manifestation to see
why 
theyshould engage in a particular behaviour.
 
Legal scholarship looks upon law as the
object 
of transmission. Tradition is information that
meets the Eliot’s test of “pastness”.
 
 
* The limiting of the definition of custom to observable forms of conduct (i.e. custom asmerely factual in character) has successfully eliminated it as a source of law. It has to beaccepted as such by state authority first before it becomes law.
 
Process-based notion
 
Must also look at the transmission of the information.
 
How does tradition operate over time?
 
Point of origination
 
Capture of information
 
Subsequent use or application of information
 
Capture of the application, which is in turn added to the information base
Distinctions between three
different types of ‘lost’ traditions
 
 
Dead: information is irretrievably lost
impossible to revive tradition
 
Submerged/suspended: information is retrievable but does not live despite being availablebecause no resonance with any modern human group
 
Revived:
 
Canada Supreme Court has held that the going “underground” of Metis people for more
than a century did not prevent their re-emergence and affirmation of rights to hunt and fish.
 
Contra HCA ruling that Yorta Yorta people had ceased to exist as a people through non-adherence to Yorta Yorta tradition
rights flowing from such unwritten law expireddefinitively with the loss of identity.
 
Consistent with positivist thought
 
Conceiving law in terms of tradition, however, means that revival is always possible
 
What is legal tradition? [pg 10]
 
A legal tradition contains
normative information
that has been captured over a long time.
 
Process of capture, access and application is well exemplified by the common law process of deciding a case and using it to decide (or applying it to) new cases. In civil law, the codes and
reforms made to them also exemplify the process of a tradition’s development.
 
 
Example: Trespass to land in the common law. Existed before the age of state law, but is sowell-established that no legislator can add any useful gloss on it and no judge would dare sayit is not part of the law.
 
Essential question is not “what is law” but, rather, “what do we take as law, normatively and
for good reason, in thi
s particular society at this particular time for this particular case?”
 
 
How, and to what extent, is legal tradition
inclusive
? [pg 13]
Two ways in which legal traditions provide a more inclusive concept of law:
 
Allowing us to think of non-state law as law
 
E.g. Canada’s aboriginal or chthonic law (aboriginal legal tradition accepted as law by SCC in
Calder v British Columbia
)
 –
 
rejected government’s claim that aboriginal claims were “sogeneral and undefined” that it is “not realistic” to think of them
as specific claims capable of remedy. Author argues that there is now more justice in Canada due to the resultant
expansion of Canada’s legal world.
 
 
Reconciling state and religious law, especially in the field of family law. SCC in
Bruker v Markovitz
enforced a contract for the execution of a Jewish divorce.

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