a1 Associate Professor, Faculty of Law, McGill University. Canada Research Chair in the Law of Human Rights and Legal Pluralism (email: [email protected]).
This article explores the possibility of elaborating a strong rights foundation for ‘weak’ legal pluralist arrangements, consisting of the recognition by the state of a degree of autonomy for the legal practices of minorities. It finds unhelpful and reductionist those arguments based merely on whether certain aspects of minority law are in violation of human rights or are more effective at protecting rights than state law. Instead, the article seeks to tackle the central issue of whether there is more generally a human rights case for legal pluralism, despite the modern rights movement's strong historical association with state monism and egalitarian universalism. Traditional rights bases for minority protection, both group and individual based, are envisaged specifically from the point of view of recognition of minority legal traditions. Both are found to raise difficulties that are magnified by the entry into play of legal considerations. When it comes to collective rights, there is a fear that endowing certain communities with legal autonomy will increase their ability to oppress the minority within; when it comes to individual rights, the idea of a ‘right to one's law’ misses the degree to which law is an institutional construct which requires a new division of power within the state that goes far beyond what are generally understood as basic freedoms. Rather than assessing the problem merely from an individual or group point of view, the rights validity of legal pluralist arrangements is seen as dependent on how they relate to society at large. Specifically, a case is made that legal pluralism can be part of a beneficial coming to terms by societies with their diversity, a reinforcement of democratic forms and, in some cases, a type of transitional justice that recognises the extent to which the deprivation of law has been a traditional means of subjugation of minorities. The article concludes with an effort to recast the entire debate from the point of view of international human rights law and to critique its somewhat arbitrary focus on the state as the only locus of significant legal diversity.
(Online publication March 05 2012)
I am grateful to Anna Shea and Annamaria Enenajor for invaluable research assistance.