Comparative Constitutional Design and Legal Culture
Edited by Günter Frankenberg
Chapter 7: Legal pluralism and normative transfer
The transfer, transplant and translation of legal norms from one locus, context or culture to another is a topic with which comparative legal scholars are well-acquainted, it having been one of the issues central to the fledgling discipline at its inaugural Paris congress in 1900. Although in the intervening period it could be said that these concerns receded somewhat from the academic limelight, the past thirty years have seen a resurgence of interest, no doubt due to the particular questions raised by a patent increase in globalization, Europeanization and governance operations, as well as by the recognition, reconciliation and “decolonization” processes occurring in many post-colonial societies. While legal norms have always crossed borders, be these national, cultural or functional ones, recent legal and social changes and developments have served to make the study of this transfer of law more important than ever before. It is not only issues of legal transfer that global, supranational, and post-colonial developments in society and society’s law have brought to the forefront of the debates among proponents of comparative legal studies, however, but also the similarly topical matter of legal pluralism. Legal pluralism introduces the idea of there being spaces of normativity that may or may not be congruent with the recognized boundaries of specific legal orders, promoting a fragmentation of “law” within and across jurisdictions formerly understood as monist or even monolithic.
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