Law Undone: De-humanizing, Queering, and Dis-abling the Law – Further Arguments for Law’s Pluralities (original) (raw)

The Limits of Legal Pluralism

Sionaidh Douglas-Scott's book, Law after Modernity (Hart, 2013), outlines a sophisticated theory of legal pluralism. The book makes extensive use of artworks and other cultural images to draw out law's social meanings. I explore Douglas-Scott's comments on the relationship between art and law through reference to Michèle Le Doeuff's work on the philosophical imaginary. I then address her views on legal pluralism. Douglas-Scott argues that legal positivism's failure to adequately capture the complexity of contemporary legal orders makes legal pluralism preferable as a descriptive theory of law. However, she distances herself from claims that legal pluralism also offers a normatively desirable view of law, arguing that it needs to be supplemented by a theory of critical legal justice. Douglas-Scott shows a commendable awareness of legal pluralism's descriptive insights and its normative limits, but her account of critical legal justice remains highly tentative. What, then, lies in the unmapped terrain beyond the limits of legal pluralism? I suggest the answer lies in overcoming the central assumption shared by both legal positivism and legal pluralism: the idea of law as a product of human authority.

Legality and Affect Left and Right -Queering Legal Orders' Normative Force with Feeling

Legality and Affect Left and Right -Queering Legal Orders' Normative Force with Feeling, 2023

In her book From Law and Literature to Legality and Affect, Greta Olson argues for an expansive view of the legal, which encompasses both one's Rechtsgefühl and the sociocultural normative settings one is surrounded by. Acknowledging the existence of "a variety of competing nomoi" (Olson, From Law and Literature, p.7), i.e., diverse normative environments within a given legal order, notions of law as legality, and affect as law's new Other are conceptualized as projects fostering legal pluralism. Yet, is such a pluralistic, diversified notion of legality able to challenge those normative legalcultural conditions which still privilege cis, male, heterosexual, White, able-bodied, propertied non-immigrants? Agreeing with Roger Cotterrell that "[l]aw's interpretive communities now reflect the patterned differentiation of the social" (Law, p.100), and Olson's claim that "ideas about law are negotiated outside of the courtroom, the parliament, or even the governmental office where law and legal ordinances are directly translated into everyday life experience" (From Law and Literature, p. 20), this article examines how legality may speak back to law, in its professionalized, dogmatic sense, and to legal orders, and analyzes in which ways an understanding of law as legality may affect LGBTQIAP* rights activism. This critical queer theoretical perspective thus challenges Olson's nomoi by approaching the limitations of legal affects for trans and queer legal subjects. By analyzing the design and logic behind two recent cases of anti-trans bills in the U.S., Arkansas' HB 1570 ('Save Adolescents from Experimentation Act') and Idaho's HB 500 ('Fairness in Women's Sports Act') from a cultural studies perspective, this article examines how an expanded understanding of law as legality may affect the gendered, cis-ed, and heteronormative nature of the U.S.'s dominant legal order(s).

Legal Pluralism’s Other: Mythologizing Modern Law

Law and History Review, Special Edition "Rethinking Legal Pluralism" edited by Mark Letteney and Jessica Marglin, 2024

This article interrogates the concept of legal pluralism, as it currently tends to function within contemporary legal and historical scholarship. It argues that the concept of legal pluralism cannot ‘liberate’ positivist analytical legal theory from monist (municipal, state-centric etc.) straight-jackets. Rather the concept of legal pluralism itself presumes the primacy of centralized state-issued law - at the same time as masking that primacy within a pluralist discourse. The concept of legal pluralism should be properly understood – and analyzed – as part of the mythology of modern law, not as an alternative to it. Parts I and II of the article develop this argument via a critical tour of legal-pluralist historiography, focused on 1986 to the present-day. Part III then moves on to explore what is at stake for the pre-modern historian when they apply (modern) concept(s) of legal pluralism to try to explain the multiplicity of legal orders that they invariably encounter in their own source material. Keywords: legal pluralism; legal centralism; modern law’s mythologies; sociolegal positivism; Farroxmard i Wahrāmān; Junillus Africanus.

Inside and outside legality: A pluralistic and social construction of law

Soft Power, 2016

What is inside and what is outside the law? A question that is not easy to answer and that forces legal theory to ask itself about which are today the forms of normative production and which are the boundaries of law. Through the analysis of the deep transformations of the global legal order and of the issues related to the boundaries of law and to the forms of hybrid legality, the essay offers a pluralist and dynamic interpretation of the social genesis of law.

Rethinking Legal Ideals after Deconstruction

In this essay I seek to challenge a reading of "deconstruction," and postmodernism more generally, that has been proposed by its friends and its foes in legal circles. Deconstruction and postmodern genealo- gies inspired by Nietzsche are often read to expose the nakedness of power struggles and indeed of violence masquerading as the rule of law. With this exposure, the jurisprudential intervention of these philo- sophical positions supposedly comes to an end.1 The enemies of decon- struction challenge this exposure as itself an act of ethical irresponsibil- ity that leaves in its stead only the "right" of force, which, as a result, levels the moral differences between legal systems and blurs the all- too-real distinctions between different kinds of violent acts within legal systems. But I will also argue that even friends of deconstruction or postmodernism reach mistaken conclusions about what kinds of pro- grams of legal, political, and ethical reform can still ...

Justice in many rooms since Galanter: de-romanticizing legal pluralism through the cultural defense

Law & Contemp. Probs., 2008

Marc Galanter's article, 'Justice in Many Rooms' (1981) was prescient in recognizing that nonstate law was not necessarily kinder and gentler than state law. While many writing in the 1970s and 80s celebrated nonstate law as more egalitarian and less coercive than state law, Galanter held back. Post-1980s critiques of the cultural defense, particularly by Asian American feminist lawyers, have also contributed to a shift in the scholarly perception of nonstate law. In the spirit of Galanter's piece, the cultural defense debate should be read not just as a discussion about multicultural tolerance, but also as an integral part of the legal pluralism literature.