25 February 2010

BOOK REVIEW: Cotterrell on legal pluralism

Check out Roger Cotterrell (Queen Mary University of London, School of Law)'s 'Does Legal Pluralism Need a Concept of Law?' available on the Social Science Research Network (SSRN). The abstract reads:

This paper, reviewing Emmanuel Melissaris' Ubiquitous Law, argues that the book's project – that of seeking a 'thin' concept of law to underpin legal pluralist theory, together with a highly flexible and open approach to institutional characteristics of law – is problematic from a sociolegal viewpoint. Melissaris seeks to preserve legal philosophy's concern with the question 'What is law?' while recognising that this question can receive only vague and open answers if legal pluralism is to be taken seriously in legal theory. His discussion is sophisticated and thoughtful, but he is wrong to imply that sociology of law depends ultimately on legal philosophy's conceptual inquiries. Sociolegal studies need rich and provocative, but only provisional, flexible and endlessly revisable specifications of 'the legal' as a guide for research practice. Legal philosophy's conceptual inquiries may help to shape these specifications, but are not prerequisites for the task.

1 comment:

jacques said...

Cotterrell's comment on Melissaris raises a fundamental point for anyone interested, among others, in the anthropology, comparison, history. sociology (and it broaches on lingusitcs as well) of societies where "law" (and the adjective legal) or a very clear equivalemt of it does not appear to exist, the current case under discussion being "legal" pluralism (my latest credentials on this are, directly, "Les pluralismes juridiques" in Anthropologies et droits, Paris, Dalloz, 2009, 25-76 and,indirectly through R.A. Macdonald, "Here, there ... and everywhere - Theorizing Legal Pluralism, Theorizing Jacques Vanderlinden" in Étudier et enseigner le droit, Montréal, Éditions Yvon Blais,2006, 381-413). Although what I have written in the above-mentioned fields of law coincides with Cotterrell's conclusion, I wonder if, when tackling quite different societies, e.g. the Community of believers in the Church (ius canonicum but not conceived as the law of the institutionalized Church) or dharma or shari'a, or so-called "primitive soiceties" including many contemporary societies still governed by "custom" as in Hoebel's Law of primitive man, or early European societies before the reception of Roman law (all this, of course, I can substantiate with decent references), it would not be much better and clearer to do away with the the adjective legal whenever moving into fields where there is no concept of law in a strict sense, i.e. contemporay State inspired Western European (and its scions around the world). That kind of law is familiar only to a limited number of people and only a reflection of a stromg belief that normative systems can only be appreciated ans studied from that huighly ethnocentric point of view. This has non pretention to originality and is only raised by the reading of the comment in Juris diversitas.Thank you for your patience and apologies for my broken English. Jacques

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