Alexander Green and Jennifer Hendry
Journal of Comparative Law, forthcoming
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. Click here to download the paper from SSRN.
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