Non-Positivist Legal Pluralism and Crises of Legitimacy in Settler-States

Speakers

Alex Green and Jennifer Hendry

About the Abstract

In this article we develop an original, non-positivist conception of legal pluralism, which we then deploy to identify and evaluate a particular type of legitimacy crisis. Such crises occur when settler-states attempt unilaterally to resolve conflicts between their own legal orders and indigenous legal orders, and thus treat the relevant indigenous communities unjustly. By identifying each legal order in terms of its morally valuable instantiation of the rule of law, we emphasise their equal normative status; the legitimacy crises we identify are typified by failures to acknowledge and respect this equality on the part of settler-states. Using case studies drawn from the United States of America and Australia, this article not only advances the first non-positivist theory of legal pluralism, but also demonstrates the utility of non-positivism as an analytical tool within socio-legal jurisprudence.

About the Authors

Alex Green is an Assistant Professor at the Faculty of Law, University of Hong Kong. He studied at University College London Faculty of Laws for Bachelors (LLB Hons 2009), Masters (LLM 2010), and PhD (under examination). Alex is interested in legal and political theory, moral philosophy, private law, public international law and human rights. His current research concerns the moral nature of legal statehood and its role in determining the content of public international law.

Jennifer (Jen) Hendry is an Associate Professor in Law and Social Justice at the University of Leeds School of Law, and a graduate of the Universities of Glasgow (LLB Hons 2002) and Edinburgh (LLM 2003), and the European University Institute (PhD 2009). Her research covers social and legal theory, socio-legal studies, and comparative legal studies. She is currently writing on issues of Indigenous justice and legal pluralism. Jen is Director of the School’s Centre for Law and Social Justice, member of the ESRC peer review college, and currently a Visiting Fellow at the Centre for Comparative & Public Law at the University of Hong Kong.

Book your place at this event