Jennifer Hendry, 'Legal pluralism and normative transfer' in
G. Frankenberg (ed),
Order
from Transfer: Projects and Problems of Comparative Constitutional
Studies (2013, forthcoming)
Legal norms have always crossed borders, be these national, cultural or functional, but recent legal and social changes have made the study of the circumstances under which law and norms are transferred from one context or locus to another more important than ever before. Post-colonial, supranational and global processes have not only drawn attention to this legal 'movement' or transfer but have also raised challenges to conventional conceptions of legal spaces and borders, and these feature alongside legal pluralism at the forefront of contemporary comparative legal studies debates. These two concepts - transfer and pluralism - find themselves inextricably linked by their conceptual relevance to different legal orders and to issues of conflict, contestation and interaction in terms of law, society, culture and legal culture, but are rarely (if ever) conceptualized with relation to each other. This paper submits that framing normative transfer in terms of legal pluralism adds another dimension to each concept, and attempts to illustrate this with reference to the example of nation state-internal normative pluralism in post-colonial societies with indigenous communities.
At http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2200117
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