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Article: Non-Positivist Legal Pluralism and Crises of Legitimacy in Settler-States
Title | Non-Positivist Legal Pluralism and Crises of Legitimacy in Settler-States |
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Authors | |
Issue Date | 2019 |
Publisher | Wildy, Simmonds and Hill Publishing. The Journal's web site is located at http://www.wildy.com/isbn/1477-0814/journal-of-comparative-law-annual-subscription |
Citation | The Journal of Comparative Law, 2019, v. 14 n. 2, p. 267-289 How to Cite? |
Abstract | In this article we develop an original, non-positivist conception of legal pluralism, which we then deploy to identify and evaluate a particular type of legitimacy crisis. Such crises occur when settler-states attempt unilaterally to resolve conflicts between their own legal orders and indigenous legal orders, and thus treat the relevant indigenous communities unjustly. By identifying each legal order in terms of its morally valuable instantiation of the rule of law, we emphasise their equal normative status; the legitimacy crises we identify are typified by failures to acknowledge and respect this equality on the part of settler-states. Using case studies drawn from the United States of America and Australia, this article not only advances the first non-positivist theory of legal pluralism, but also demonstrates the utility of non-positivism as an analytical tool within socio-legal jurisprudence. |
Persistent Identifier | http://hdl.handle.net/10722/278516 |
ISSN | |
SSRN |
DC Field | Value | Language |
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dc.contributor.author | Green, A | - |
dc.contributor.author | Hendry, J | - |
dc.date.accessioned | 2019-10-10T03:49:32Z | - |
dc.date.available | 2019-10-10T03:49:32Z | - |
dc.date.issued | 2019 | - |
dc.identifier.citation | The Journal of Comparative Law, 2019, v. 14 n. 2, p. 267-289 | - |
dc.identifier.issn | 1477-0814 | - |
dc.identifier.uri | http://hdl.handle.net/10722/278516 | - |
dc.description.abstract | In this article we develop an original, non-positivist conception of legal pluralism, which we then deploy to identify and evaluate a particular type of legitimacy crisis. Such crises occur when settler-states attempt unilaterally to resolve conflicts between their own legal orders and indigenous legal orders, and thus treat the relevant indigenous communities unjustly. By identifying each legal order in terms of its morally valuable instantiation of the rule of law, we emphasise their equal normative status; the legitimacy crises we identify are typified by failures to acknowledge and respect this equality on the part of settler-states. Using case studies drawn from the United States of America and Australia, this article not only advances the first non-positivist theory of legal pluralism, but also demonstrates the utility of non-positivism as an analytical tool within socio-legal jurisprudence. | - |
dc.language | eng | - |
dc.publisher | Wildy, Simmonds and Hill Publishing. The Journal's web site is located at http://www.wildy.com/isbn/1477-0814/journal-of-comparative-law-annual-subscription | - |
dc.relation.ispartof | The Journal of Comparative Law | - |
dc.title | Non-Positivist Legal Pluralism and Crises of Legitimacy in Settler-States | - |
dc.type | Article | - |
dc.identifier.email | Green, A: aggreen@hku.hk | - |
dc.identifier.authority | Green, A=rp02288 | - |
dc.identifier.volume | 14 | - |
dc.identifier.issue | 2 | - |
dc.identifier.spage | 267 | - |
dc.identifier.epage | 289 | - |
dc.publisher.place | United Kingdom | - |
dc.identifier.ssrn | 3453251 | - |
dc.identifier.hkulrp | 2019/062 | - |
dc.identifier.issnl | 1477-0814 | - |