Semi-Autonomy and Jurisdictional Allocations in Pluri-Legal Arrangements
in The Oxford Handbook of Global Legal Pluralism (Paul Schiff Berman ed.) (OUP, 2020)
This chapter makes the case that "state legal pluralism" is, in practice, not always controlled by the dynamics of unification and subordination. While institutions such as religious courts operate within the context of state legal pluralism and could indeed be co-opted into the state system, once they are formalized as state bodies, they attain normative and institutional resources to operate according to norms that are not always and not exhaustively derived from state law. Furthermore, empirically speaking, even where conceived as functioning within a setup of legal uniformity under the state, religious courts can retain and even develop their own social logic, such that the relationship between the two forums becomes more fluid and contingent. Accordingly, there is good reason to examine and theorize state legal pluralism more deeply. This chapter uses the context of plurinational courts, involving religious and nonreligious courts, to show how institutions within state legal pluralism are able to resist the legal centralist impetus of monism, statism, and positivism. Indeed, it is argued that, contrary to what is sometimes assumed, such state religious courts can and do operate “semi-autonomously.” Lastly, having provided a (hopefully) credible defense for stronger engagement with state legal pluralism, the chapter examines two jurisdictional schemes to manage jurisdictional overlap.