This engaging article is motivated by the complexity of framing (forget resolving) concepts of culture, by concerns that at least some feminists have become bogged down in their efforts to theorize veiling, clitoridectomy, and polygamy, among myriad other issues, and by a commitment to reasoning from law. In addition, deep into the piece, the authors explicitly state that they chose the direction of the piece in part to highlight that feminists tend to prioritize culture and leave unaddressed the role of economics in constructing tensions, identities, and concerns. Even if the article wasn’t so nicely written, even if it didn’t hold hints of something very interesting and hopeful, I would have been captivated by these motivations.
The authors drive the piece in surprising directions. Part I outlines feminism’s engagement with culture as concept. Part II situates a specific dispute (although in stylized form) that gives rise to a “clash” of cultures. Part III illustrates how the technique of conflict of laws assists in reasoning through the particular dispute. Part IV addresses possible objections and in Part V the authors argue that the approach delineated provides an intellectual style that might be adopted by feminists or cultural theorists.
Four reasons to read the piece… Continue reading "No Conflict About this Non-Essentialist Reading"
Jurisprudence usually changes gradually and imperceptibly, with large-scale shifts recognizable only with the benefit of hindsight. Seldom does it occur that a single piece signals a dramatic turn in the field. A prime example of a transformation-signaling piece is Karl Llewellyn’s A Realistic Jurisprudence—the Next Stop, announcing the emergence of legal realism. Llewellyn’s article did not itself produce the transformation; rather, he identified a generational shift in jurisprudential thought that was already taking place, and he sought to bring attention to this shift and the themes around which it revolved. The article (and its follow-up, Some Realism About Realism: Responding to Dean Pound) served to crystallize and give a label to what theretofore had been an inchoate development. Following this article, legal realism would be criticized, debated, and elaborated. A new school of jurisprudential thought thus was born.
In Pursuit of Pluralist Jurisprudence (2017), edited by Nicole Roughan and Andrew Halpin, might turn out to be another transformation-signaling piece in jurisprudence, though its impact will not be known until a generation has passed. There are several reasons to think it might achieve this stature. For one, like Llewellyn’s piece, this book has a catchy descriptive title that dubs the nascent field “pluralist jurisprudence.” Furthermore, the volume contains ambitious original essays by established, as well as rising, jurisprudential figures from different parts of the world: Nicole Roughan and Andrew Halpin (Introduction and The Promises and Pursuits of Pluralist Jurisprudence), Roger Cotterrell (Do Lawyers Need a Theory of Legal Pluralism?), Maksymilian Del Mar (Legal Reasoning in Pluralist Jurisprudence), Cormac Mac Amhlaigh (Pluralising Constitutional Pluralism), Ralf Michaels (Law and Recognition—Toward a Relational Concept of Law), Sanne Takema (The Many Uses of Law), Joseph Raz (Why the State?), Detlef von Daniels (A Genealogical Perspective on Pluralist Jurisprudence), Stefan Sciaraffa (Two Conceptions of Pluralist Jurisprudence), Neil Walker (The Gap Between Global Law and Global Justice), Margaret Davies (Plural Pluralities of Law), Kirsten Anker (Postcolonial Jurisprudence and the Pluralist Turn), and Martin Krygier (Legal Pluralism and the Value of the Rule of Law). As their titles indicate, the essays cover a range of topics in relation to legal pluralism. Continue reading "The Turn to Pluralist Jurisprudence"