Thursday, April 08, 2021

"United States Legal System" is a misnomer

Brian Tamanaha

A common belief, at least in advanced capitalist societies, is that state law is the supreme, unified, hierarchical, and exclusive legal order in society. This is the image of the monistic law state. As I demonstrate in Legal Pluralism Explained: History, Theory, Consequences, this widely held image is descriptively false, theoretically unsound, and normatively problematic. State legal systems are internally pluralistic and coexist with other forms of law that often are more immediately influential in relation to social behavior within communities. This is true across the Global South as well as in the United States and the European Union. Among various implications that bear on widely held beliefs about law, this analysis suggests that "United States legal system," when used to refer to a singular, organized whole, is a misnomer. 

Here is the book description: Legal pluralism involves the coexistence of multiple forms of law. This involves state law, international law, transnational law, customary law, religious law, indigenous law, and the law of distinct ethnic or cultural communities. Legal pluralism is a subject of discussion today in legal anthropology, legal sociology, legal history, postcolonial legal studies, women's rights and human rights, comparative law, international law, transnational law, European Union law, jurisprudence, and law and development scholarship. 

A great deal of confusion and theoretical disagreement surrounds discussions of legal pluralism—which this book aims to clarify and help resolve. Drawing on historical and contemporary studies—including the Medieval period, the Ottoman Empire, postcolonial societies, Native peoples, Jewish and Islamic law, Western state legal systems, transnational law, as well as others—it shows that the dominant image of the state with a unified legal system exercising a monopoly over law is, and has always been, false and misleading. State legal systems are internally pluralistic in various ways and multiple manifestations of law coexist in every society. This book explains the underlying reasons for and sources of legal pluralism, identifies its various consequences, uncovers its conceptual and normative implications, and resolves current theoretical disputes in ways that are useful for social scientists, theorists, and law and development scholars and practitioners.

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