CLT SEMINAR 2: COMPARATIVE LAW AND LEGAL PLURALISM Syllabus
“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 solution that 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 has become inadequate Which organising concept allows us to conceptualise the many different types of law now being resorted to and their relations with one another?
What is tradition? “Repetitive behaviour” is much too narrow a definition. Contemporary Western thinking ignores 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 repetitive 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 they should 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 as merely factual in character) has successfully eliminated it as a source of law. It has to be accepted 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 available because 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 nonadherence to Yorta Yorta tradition rights flowing from such unwritten law expired definitively with the loss of identity. Consistent with positivist thought Conceiving law in terms of tradition, however, means that revival is always possible [pg 10]
What is legal tradition?
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 so well-established that no legislator can add any useful gloss on it and no judge would dare say it 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 this particular society at this particular time for this particular case?” [pg 13]
How, and to what extent, is legal tradition inclusive? 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 “so general 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.
Being inclusive of state law No binary choice between a concept of legal tradition and a concept of state law or a national legal system See state law as a manifestation of a tradition of positivist law (from Hart, Kelsen, etc) Envisage both the historical, normative foundations of states and their present, institutional structures
Since legal tradition is inclusive, how is it necessarily conciliatory of that which is included? Dominant notion of conflict: Legal systems each claim superiority within their territory and are thus irreconcilable with one another in the sense that there cannot be two legal systems operating in the same space. This has given rise to the discipline of the conflict of laws to deal with cases that are connected with two or more legal systems. Conflict of laws does not involve any mutual dialogue of laws or even any inquiry into the degree of normativity of different laws. This has given rise to the lack of any idea of the conciliation of laws.
Utility of the concept of law as tradition Law conceived as system yields fact, silent and conflict Whereas law conceived as tradition yields normative claims, discussion and dialogue, and thus the possibility of reconciliation Legal traditions speak to one another and all legal traditions say much about their relations with one another Normative engagement is enabled, as opposed to hierarchical dominance Use of multivalent logic which refuses to regard the world as an endless series of dichotomies or binary choices (although Canadian and English common laws are different, they are both identifiable as common law jurisdictions) Instead should adopt continuum of values No sharp edges: Understanding that the categories in the real world are fuzzy, no sharp separations Example: range of national solutions more or less compatible with the ECHR, taken not as dictating a single, uniform solution but rather as allowing a continuum of solutions and a corresponding margin of appreciation of them
A General View of “Legal Families” and of “Mixing Systems” (Orucu, 2007)