The Promises and Pursuits of Pluralist Jurisprudence

Abstract

Preliminary Expectations: The expectations we entertained for a pluralist jurisprudence in Chapter 1 were threefold: to be given an explanation of the relationship between pluralist jurisprudence and its monist predecessor; to be provided with clarification of the precise role of pluralism within a pluralist jurisprudence; and, to be offered understanding of the part played by normative or aspirational agendas within a pluralist jurisprudence. We are now in a position to reconsider these expectations, having benefited from the detailed acquaintance with Chapters 2–13. An obvious point to make is that the different authors do not each meet all of these expectations in their contributions, nor engage with them in quite the same way. To take the relationship between pluralist jurisprudence and monist jurisprudence first, some authors show little interest in examining this relationship. There are those who take the state of legal pluralism to be a self-evident fact and their interest lies in exploring that condition, at the most noticing in passing that a monist perspective on law is no longer adequate (Del Mar, Mac Amhlaigh, Taekema, von Daniels, Walker, Davies and Anker). Others specifically address the inadequacies of certain approaches to monist jurisprudence within a pluralist setting. Both Cotterrell and Krygier remark on the inadequacies of analytical or philosophical approaches, on the one hand, and social-science or sociological approaches on the other hand, within monist jurisprudence, and encourage a fusion between these often opposed intellectual preferences in order to deal effectively with the challenges of a legal plurality. By contrast, Sciaraffa employs the pluralist setting to re-run a contest between positivist and non-positivist approaches from monist jurisprudence, using that setting to at least enhance the credentials of a non-positivist approach. Michaels suggests the need for a particular addition to the standard (Hartian) monist jurisprudence in order to cope with pluralist law. More radically, Taekema uses pluralist phenomena to encourage embracing an interactionist understanding of law across any monist-pluralist divide. Raz, while acknowledging the need for some revision to take account of pluralist legal phenomena, nevertheless, maintains the conventional framework of monist jurisprudence in considering the credentials of global law.