Research Paper Number

36/2010

Derek McKee

Document Type

Article

Publication Date

2010

Keywords

critique; discourse; governance; law and society; Legal Pluralism; paradox; Theory

Abstract

Legal pluralism can be traced to early 20th century attempts to situate law in its social context. It later gained prominence as part of a moderate-left critique of the administrative-welfare state (and was echoed in right-wing economic critiques). In the last two decades, left and right visions of informality and pluralism have converged in a “governance” agenda, with a distinct global dimension. But the idea of making law respond to society, with which pluralism is closely associated, rests on a paradox. It presupposes the ability to identify something as law and something else as society. But each of these concepts is already an unstable compound of descriptive and normative elements. Emmanuel Melissaris’s book, Ubiquitous Law, represents a sustained attempt to engage with this paradox and to explore its theoretical consequences. Melissaris begins by showing how this paradox afflicts mainstream, state-centred legal theories, such as that of H.L.A. Hart. He then analyzes and classifies the leading theories of legal pluralism. Critical of these, Melissaris attempts to elaborate a new theory of legal pluralism based on discourse theory. He begins with the intuition that law has some meaning that can transcend particular systems or contexts, and argues that a thin, prima facie account of law is requiredto initiate a dialogue about the meaning of law. Next, recognizing that legal discourse requires a commitment to specific understandings of the relationship between facts and norms (the authorization as well as the evaluation of action), Melissaris suggests “shared normative experiences” as such a prima facie account of law. While Melissaris’s critical analysis is insightful, his relentless insistence on sustaining law’s paradox severely restrains his reconstructive efforts. “Shared normative experiences” is too vague to function as a theoretical starting point – albeit deliberately so.

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