Table Of Content

Applied Legal Pluralism This book ofers a comparative study of the management of legal pluralism. The authors describe and analyse the way State and non-State legal systems acknowledge legal pluralism – defned as the co-existence of State and non- State legal systems in the same space in respect of the same subject matter for the same population – and determine its consequences for their own purposes. The book sheds light on the management processes deployed by legal systems in Africa, Canada, Central Europe, and the South Pacifc, the multitudinous factors circumscribing the action of systems and individuals with respect to legal pluralism, and the efects of management strategies and processes on systems as well as on individuals. The book ofers fresh practical and analytical insight on applied legal pluralism, a fast-growing feld of scholarship and professional practice. Drawing from a wealth of original empirical data collected in several countries by a multilingual and multidisciplinary team, it provides a thorough account of the intricate patterns of State and non-State practices with respect to legal pluralism. As the book’s non-prescriptive approach helps to uncover and evaluate several biases or assumptions on the part of policy makers, scholars, and development agencies regarding the nature and the consequences of legal pluralism, it will appeal to a wide range of scholars and practitioners in law, development studies, political science, and social sciences. Ghislain Otis holds a PhD in law from the University of Cambridge. Professor Otis is currently at the Civil Law Section of the University of Ottawa where he holds the tier 1 Canada Research Chair on Legal Diversity of Indigenous Peoples. His most recent books include Kanak Aboriginal Title in New Caledonia (2021 French) The Intersection of Indigenous Law and State Law: Cooperation or Confrontation? (2019, bilingual); Contributions to the Study of Indigenous Legal Systems (2018 French) Jean Leclair – Full professor (Université de Montréal) since 2002; member of the Barreau du Québec since 1987. Pierre Elliott Trudeau Foundation fellow 2013. Prix André Morel 2016–2017 for excellence in teaching. Member of the consultative council of the Groupe international de travail sur les peuples autochtones (GITPA) (institutional member of IWGIA). Sophie Thériault is Full Professor of Law and Vice-Dean Academics, in the University of Ottawa, Faculty of Law (Civil Law Section). Applied Legal Pluralism Processes, Driving Forces and Effects Ghislain Otis, Jean Leclair and Sophie Thériault First published 2023 by Routledge 4 Park Square, Milton Park, Abingdon, Oxon OX14 4RN and by Routledge 605 Third Avenue, New York, NY 10158 Routledge is an imprint of the Taylor & Francis Group, an informa business © 2023 Ghislain Otis, Jean Leclair & Sophie Thériault The right of Ghislain Otis, Jean Leclair & Sophie Thériault to be identified as authors of this work has been asserted in accordance with sections 77 and 78 of the Copyright, Designs and Patents Act 1988. All rights reserved. No part of this book may be reprinted or reproduced or utilised in any form or by any electronic, mechanical, or other means, now known or hereafter invented, including photocopying and recording, or in any information storage or retrieval system, without permission in writing from the publishers. Trademark notice: Product or corporate names may be trademarks or registered trademarks, and are used only for identification and explanation without intent to infringe. British Library Cataloguing-in-Publication Data A catalogue record for this book is available from the British Library Library of Congress Cataloging-in-Publication Data A catalog record for this book has been requested ISBN: 978-1-032-26396-0 (hbk) ISBN: 978-1-032-26397-7 (pbk) ISBN: 978-1-003-28811-4 (ebk) DOI: 10.4324/9781003288114 Typeset in Bembo by Apex CoVantage, LLC For our beloved families Contents Acknowledgements xi The management of legal pluralism: processes, parameters for action, and efects 1 GHISLAIN OTIS 1 Defnitions and terminological considerations 2 1.1 Legal 3 1.2 Pluralism 14 2 A descriptive and exegetical approach 19 3 Normative relevance 21 1 Processes of legal pluralism management 24 GHISLAIN OTIS AND SOPHIE THÉRIAULT Introduction 24 1 Management through the articulation of systems 26 1.1 Articulation by reception 27 1.1.1 Constitutional and legislative reception of non-State law 28 1.1.1.1 Africa 28 1.1.1.2 South Pacifc 33 1.1.1.3 Canada 35 1.1.2 Low-intensity reception of non-State law 38 1.1.3 Reception of State law by non-State systems 41 1.1.3.1 The general rule of non-reception 41 1.1.3.2 Some cases of reception 43 1.2 Articulation by withdrawal 44 1.2.1 Withdrawal by non-State systems 45 1.2.1.1 Roma law in Romania 45 1.2.1.2 Customary law in Burundi 46 1.2.1.3 Kanak law in the South Pacifc 46 1.2.1.4 Indigenous law in Canada 47 viii Contents 1.2.2 Withdrawal by the State 48 1.2.2.1 Romania 48 1.2.2.2 Africa 51 1.2.2.3 South Pacifc 52 1.2.2.4 Canada 53 1.2.3 Pragmatism, informality and discretion 54 2 Management through the adaptation of systems 55 2.1 Adaptation by imitation 55 2.1.1 The imitating State 56 2.1.2 State law as purveyor of solutions for non-State law 58 2.2 Adaptation by endogenous modulation of non-State systems 60 Conclusion 62 2 Parameters of action in a context of legal pluralism 64 JEAN LECLAIR Introduction 64 1 Factors structuring action in a context of legal pluralism 70 1.1 The instability and mutability factor: the infuence of intersystemic relationships on the actors 71 1.2 The cognitive factor: the actors’ perceptions of the legal systems at play 74 1.3 The capacity factor: the spatial dimension of the authority of legal systems 78 1.3.1 The efectiveness of the co-existing legal systems 79 1.3.2 The legitimacy of co-existing legal systems 90 2 The infuence of the vitality of legal systems on State and non-State actors 98 2.1 State system agents 98 2.1.1 The problem of contingency 99 2.1.2 Objectives shared by all States 106 2.1.3 The preference of strong States for non-management 111 2.1.4 T he preference of weak States for articulation by reception or withdrawal 114 2.1.5 Actions of State agents 122 2.2 Agents of non-State legal systems 133 2.2.1 Objectives shared by all non-State legal systems 134 2.2.2 S trong non-State legal systems: wavering between ofcial and unofcial articulations 140 2.2.3 Weak non-State legal systems: a (mandatory?) preference for ofcial articulation 142 Contents ix 2.2.4 Actions of non-State agents 145 2.3 Individuals in a pluralist context 150 Conclusion 160 3 The efects of legal pluralism management 161 GHISLAIN OTIS Introduction 161 1 The efects of non-management 161 1.1 Efects on systems 162 1.2 Efects on individuals 164 1.2.1 The benefts and perils of unmanaged plurality 164 1.2.2 Legal relativity and individual inter-systemic migrations 168 1.2.3 Individual action as a defnitional feature of legal pluralism? 173 2 The efects of management processes on managing systems 177 2.1 Articulation 177 2.1.1 Articulation by reception 177 2.1.1.1 Legal hybridization 177 • Canada 179 • The South Pacifc 186 • Africa 191 2.1.1.2 The dualization and personalization of the law 196 2.1.1.3 A choice of law within the State system 198 2.1.2 Articulation by withdrawal 202 2.1.2.1 The suspension of the articulating system 202 2.1.2.2 The suspension of competition and confict 203 2.1.2.3 The personalization of the law 203 2.2 Adaptation 204 2.2.1 The reduction of normative confict 204 2.2.2 The intensifcation of competition 204 3 The efects of management processes on individuals 205 3.1 Articulation by reception 205 3.1.1 A more complex set of legal options 205 3.1.2 The shield and lever efect within State law 207 3.1.3 The legal capture of identity 209 3.2 Articulation by withdrawal 209 3.2.1 The benefts and perils of withdrawal 210 3.2.2 The legal capture of identity 210