Problematic legal pluralism: causes and some potential ‘cures’

Larcom, Shaun

doi:10.1080/07329113.2014.892335

Cited by 6 publications

(1 citation statement)

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“…The SAT framework also recognizes that the content of moral rules that guide acceptable behaviour varies between legal systems and between cultures, as well as across historical time periods (Curra, 2014; Goode, 2015; Haidt et al, 1993; Larcom, 2014; Phillipson, 1971; Wikström et al, 2012). Homosexual acts and acts of marital rape are often cited as examples of behaviours that have varied, and continue to vary, in their criminal status across jurisdictions (both within and between countries), as well as throughout history (see, for example, McGuire, 2004; Wikström et al, 2012).…”

Section: Underlying Assumptions About Human Nature: Self-interest Vs ...mentioning

confidence: 99%

The nature and role of morality in situational action theory

Barton-Crosby

2020

European Journal of Criminology

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For situational action theory (SAT), morality is key to the definition of crime and the explanation for why and how acts of crime happen: acts of crime are acts of moral rule-breaking and personal morality guides individuals’ perception of moral rule-breaking as an option before controls become relevant. However, the nature and role of morality in SAT can be misread. Within this article I respond to misinterpretations of the theory by elaborating and adding further context to the concept of morality in SAT. I contend that the root of misunderstanding is grounded in alternative assumptions regarding human nature: SAT assumes a fundamentally rule-guided human nature, whereas the prevailing view within criminology is that people are primarily self-interested. In this article I delineate SAT’s assumption of a rule-guided human nature and set out how this assumption informs the definition of crime and personal morality in the theory. I further specify the nature and role of morality in the perception of action alternatives, and in so doing distinguish SAT from theories that view constraint as the measure of morality. Finally, I develop and clarify SAT’s position on the relationship between morality and the law.

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Section: Underlying Assumptions About Human Nature: Self-interest Vs ...mentioning

confidence: 99%

The nature and role of morality in situational action theory

Barton-Crosby

2020

European Journal of Criminology

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Tribal Justice and State Law in Iraq

Genat

2021

Int. J. Middle East Stud.

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Literature on tribes in Iraq is scant and often falls prey to simplistic binary approaches to state-society relations. Scholars of legal pluralism provide tools to conceptualize interrelations between adjacent normative fields. Several legal specialists have talked about “a thin form of cooperation” between tribal “private orders” and the Iraqi state. By the same token, many scholars presuppose that the capacity of the tribes and the state to mediate and settle feuds covary in opposite directions and are correlated with the strength of state institutions (tribes step in to fill a vacuum during times of state weakness). However, careful examination of Iraqi penal legislation and its implementation in tribal areas invalidates this stereotypical paradigm. Already in her seminal 1973 article, Sally Moore drew the attention of scholars of legal pluralism to the idea that legal orders should be approached as partially discrete, overlapping social fields. The various arenas intersect and create meaning for each other.

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Constitutional recognition of aboriginal and treaty rights: a new framework for managing legal pluralism in Canada?

Otis

2014

The Journal of Legal Pluralism and Unofficial Law

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In Canada, section 35 of the Constitution Act, 1982 states that "The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed". It was expected that section 35 would be the foundation for a new approach to managing the coexistence of indigenous and non-indigenous law as a key element of legal pluralism in Canada. This paper assesses the extent to which the implementation of section 35 by courts, governments and indigenous peoples has so far actually fostered the constitutional recognition and protection of indigenous legal orders in a way that departs from the colonial approach. After a detailed survey of aboriginal rights jurisprudence and recent treaty-making practice, the author concludes that the advent of section 35 has not fundamentally altered the state's traditional unwillingness to let non-state indigenous law settle inter-societal distributive issues that are deemed fundamental to the political and economic orders put in place as a result of the assertion of Crown sovereignty over indigenous peoples and their land.

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Problematic legal pluralism: causes and some potential ‘cures’

Cited by 6 publications

References 88 publications

The nature and role of morality in situational action theory

The nature and role of morality in situational action theory

Tribal Justice and State Law in Iraq

Constitutional recognition of aboriginal and treaty rights: a new framework for managing legal pluralism in Canada?

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