Concepts of Law by unknow

Author:unknow
Language: eng
Format: epub
Publisher: Taylor & Francis Group
Published: 2016-08-15T00:00:00+00:00

The Straw Man Syndrome

The form of the last argument alerts us to a second peril of legal pluralism_ the inclination to caricature competing visions so as to dismantle them more easily. We just saw this strategy at play in the reification objection, which erects a simplistic objective/subjective conception of the world so as to bring down the attendant (equally simplistic) conception of definitions. This strategy is commonly deployed by legal pluralists, though it is generally aimed at a different target. Our target of choice, of course, is legal monism (or “centrism”).

We are pluralists because we regard legal monism as incapable of accounting for the richly diverse forms of normativity operating on legal subjects. Legal monism, hypostatized as state law (“official law”, “lawyers’ law”, “the internal legal culture”) (Friedman 1977: ch. 7), is hegemonic, formal, unambiguous, unidimensional, whereas legal subjects are constantly exposed to complex, evolving, subtle if not elusive, interactive if not clashing, norms from a wide variety of sources: religious, cultural, social, moral, and so on. Yet it is an open question whether state law really is the monster we have made it out to be.

State law theorists have gone a long way towards accounting for the relation of state law to other forms of normativity. Natural lawyers have impregnated state law with strong moral content; legal realists have exposed the economic, social power struggles that feed into it; proponents of legal positivism have reduced state law to an institutional process through which can be funnelled just about any type of content. The disagreement among these groups of scholars, as well as within each group, is wide-ranging and profound, and not about to go away. One thing seems clear, however: their debate has reached very high levels of sophistication, and nowhere in it does state law appear as the stiff monster put up by legal pluralists. There accordingly is cause to ponder whether legal pluralism might not, as one critic claims, ‘rest upon misconceptions … as [it] purport[s] to counter theories that simply do not exist and that are artificially constructed for the purpose of denunciation’ (Pfersmann 2010: 138).

An illustration of the potential for such misconceptions might prove useful here. Legal pluralists commonly offer, as case studies in legal pluralism, instances of state courts bending rules or concepts of state law so as to accommodate other kinds of rules or concepts that point to a different outcome. Family disputes, which often stage conflicting religious and state law, offer a wealth of such examples. In many divorce cases, English and US courts have had to decide whether to enforce mahr payments owed under Sharia law but not under English or US law (for example, Ali v. Ali [London High Court, 2000], discussed in Menski 2013: 5; decisions of the New York and New Jersey courts, discussed in Edwards 2002). Other cases have turned on whether marriages valid under foreign law but technically invalid under municipal law can nonetheless be deemed “marriages” for municipal statutory purposes (for example, Westminster City Council v.

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