Legal pluralism

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As legal pluralism refers to the coexistence of two or more systems of law or law traditions within a social field.

Legal pluralism differs from comparative jurisprudence in particular in that it focuses on non-standardized, but nonetheless binding rules of conduct in a society, while comparative jurisprudence deals with an international comparison of positive law .

Typical cases of legal pluralism can be found particularly in states in which religious norm systems such as the Sharia play a strong role and in (former) colonies in which the law introduced by the colonial power has never really supplanted traditional norm systems. Legal anthropologists therefore point out that in post-colonial African states, for example, state law only has a limited scope because it is based on European legal traditions such as English common lawbased - shows a lack of fit with common ideas about life and socio-cultural social structures. Large parts of the population tend to seek neo-traditional legal institutions there to resolve their conflicts or legal disputes, whereby the competition also results in local forms of mutual control between state and informal legal institutions.

More recently, in connection with globalization, the coexistence of state legal systems and new types of international or transnational legal regimes such as the Lex mercatoria have been assumed to be a kind of legal pluralism.

A distinction is made between a strong legal pluralism in which the legal systems that exist side by side do not have to enjoy state recognition, but can be purely social phenomena. In addition, weak legal pluralism denotes the coexistence of nationally recognized - or universalistic norms corresponding - legal systems.

The theory of legal pluralism is traced back to the legal sociologist Eugen Ehrlich , who dealt with the “living law” of Bukovina , a kind of rural customary law within Austria-Hungary . It was further developed by the legal anthropologist Leopold Pospisil and by Gunther Teubner .

Even within a legal system, the fact that individual legal norms do not form a coherent unit together can lead to legal uncertainty. The rule of law therefore obliges legislative bodies to coordinate their regulations in such a way that “the normal addressees do not reach contradicting regulations that make the legal order contradictory”.

Introduction literature

  • Thomas Duve: What is “multinormativity”? - Introductory remarks . In: Rechtsgeschichte - Legal History . tape 2017 , no. 25 , 2017, ISSN  2195-9617 , p. 88-101 , doi : 10.12946 / rg25 / 088-101 ( mpg.de [accessed February 27, 2018]).
  • Andreas Fischer-Lescano, Lars viellechner: Global legal pluralism . In: From Politics and Contemporary History . tape 60 , no. 34/35 , August 16, 2010, p. 20–26 ( bpb.de [accessed February 28, 2018]).
  • Peter Gailhofer: Legal pluralism and legal validity . In: Studies on Legal Philosophy and Legal Theory . No. 66 . Nomos, Baden-Baden 2016, ISBN 978-3-8487-2065-1 , doi : 10.5771 / 9783845262734 (dissertation, University of Zurich, 2014).
  • Gunnar Folke Schuppert: The right of legal pluralism . In: Archives of Public Law . tape 142 , no. 4 , October 1, 2017, p. 614–631 , doi : 10.1628 / 000389117x15151513970373 ( mohrsiebeck.com [accessed June 16, 2019]).
  • Ralf Seinecke: The right of legal pluralism . In: Foundations of Law . No. 29 . Mohr Siebeck, Tübingen 2015, ISBN 978-3-16-153563-5 (additional dissertation, University of Frankfurt am Main, 2013).

See also

Individual evidence

  1. ^ Following on from John Griffiths: What is Legal Pluralism? Journal of Legal Pluralism 24 (1986), p. 2, passim .; see. with further evidence such as Wieland Lehnert: African customary law and the South African constitution: the African legal tradition in the area of ​​tension between the right to culture and other human rights , LIT Verlag: Berlin-Hamburg-Münster, 2006, p. 87
  2. ↑ Emo Gotsbachner: Informal law. Politics and Conflict of Normative Orders . Lang: Frankfurt / M., 1995, pp. 121-126
  3. ↑ ibid., 102 ff.
  4. ^ Lars viellechner: constitution as a cipher. On the convergence of constitutionalist and pluralist perspectives on the globalization of law ZaöRV 2015, pp. 233-258
  5. ^ Lars viellechner: transnationalization of law . Velbrück Wissenschaft, Weilerswist 2013
  6. ^ John Griffiths: What is Legal Pluralism? Journal of Legal Pluralism 24 (1986) pp. 1-55
  7. ^ Wieland Lehnert: African customary law and the South African constitution: the African legal tradition in the field of tension between the right to culture and other human rights , LIT Verlag: Berlin-Hamburg-Münster, 2006, p. 87
  8. ↑ Eugen Ehrlich: Foundation of the sociology of law . Duncker & Humblot, Munich, Leipzig 1913, p. 393 ff . ( archive.org [accessed February 28, 2018]).
  9. ^ Gunther Teubner: Globale Bukowina: To the emergence of a transnational legal pluralism. Rechtshistorisches Journal 15 (1996), pp. 253–255, also from publications.ub.uni-frankfurt.de , 2005 (accessed on February 26, 2018).
  10. ↑ Quote: "The rule of law obliges [...] all legislative bodies of the federal and state governments to coordinate the regulations so that the normal addressees do not reach contradicting regulations that make the legal system contradictory. Which of the regulations giving rise to an objection has to give way is basically determined by the rank, the chronological order and the specialty of the regulations ”, BVerfGE 98, 106 [118 f.]. Quoted from: Mike Wienbracke , Staatsorganisationsrecht , Springer, ISBN 978-3-658-17199-5 , p. 13 .