Positivism and Plural Legal Systems

Abstract

This paper considers whether the positivist account of law is useful in guiding states in how they should deal with religious or customary legal orders followed by minority groups within their jurisdiction. It argues, first, that such orders can be said to exist despite the prevalence of disagreement about the grounds of law. It then argues, contrary to views advanced by Scott Shapiro and Joseph Raz, that there are good reasons for perceiving that the resolution of legal disputes by reference to moral principle involves the application of pre‐existing law. However, the paper concludes by arguing that the Social Thesis has an important role in supplying the basis upon which the application of law can be deemed to be legitimate, and that this has relevance to the way states might respond to minority legal orders.

Legal Pluralism and the Future of Personal Family Laws in Africa

“…As Eekelaar noted, 'exclusive positivism had difficulty in attributing the character of law to the norms of religious and customary legal orders.' 34 Under the influence of legal positivism, many colonial jurists dismissed indigenous customs. 35 For example, Lord Sumner declared that '[s]ome tribes are so low in the scale of social organization that their usages and conceptions of rights and duties are not to be reconciled with the institutions or the legal ideas of civilized society.'…”