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The Critique Of Legal Pluralism

Posted on:2012-02-24Degree:MasterType:Thesis
Country:ChinaCandidate:F CaiFull Text:PDF
GTID:2216330338974259Subject:Legal theory
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Legal pluralism is the hottest topic of the jurisprudence theorists in recent years. The study on the legal pluralism has been started in the 1970s. Because the Legal multivariate involves the Law philosophy, law anthropology, law sociology and several fields, so its definition is different from different perspectives. As a result, the currently only definition of legal multivariate also is not very clear. The legal multivariate caused extensive discussion and research after it entered our country, and there are researching achievements in multiple ranges, while the systematic carding on the legal pluralism is poor. This paper firstly states the concept, origin, and the forming reason of the legal multivariate, and then it takes analyses based on the two big research propositions of the legal multivariate. Finally, the function and meaning of the legal pluralism in our country'legal construction is discussed.The first chapter of this is paper an overview on legal pluralism. It mainly states this several problems, including the concept, the diverse origins and the formation reason of the legal multivariate, and the difference between the legal pluralism and the legal monism. The concept of legal multivariate from different angles can reach different conclusions, and this article from the legal multivariate definition of legal anthropology perspective. The thought of legal multivariate budded early, many law school germination early have had expounded, but system study, which started in the 1970s. Legal multiple reasons for the formation of legal transplant, are mainly cultural differences, the political structure and legislative system three reasons. Legal pluralism and legal monism difference is mainly four aspects:one is different; the background 2 it is the understanding of different to the national law; Three of the role of national law is a different perspective; The fourth is to international law and the different understanding of the relationship between state.The second chapter is to explain classical law pluralism, classical law pluralism is the study of the colonial countries after the colonies and indigenous law and foreign law relationship, this also is pluralism as the starting point of the research legal pluralism. This chapter is divided into colonial era of globalization of legal transplant and legal transplant. The colonial era of legal transplant is external factors promote, in India, for example expounds local law and foreign law is how to fusion between. In the modern era of globalization is the emergence of a new legal transplant changes is top-down legal transplant growth; 2 it is legal transplant to depend on the state sovereignty to centralized manner; Three is to legal transplant is still powers the suppressed product. The weak nationThe third chapter is about the new law pluralism, with the development of research, people gradually found a different cultural collisions within society also can appear legal diverse phenomenon, started officer method and the study between the unofficial. One is religious and the relationship between the method with American same-sex marriage, the legislative process to explain the influence of religion for official method. Then there is the relationship between race and officer method, through to the United States, Canada, UK and other racial policy analysis and explanation of the relationship between race and officer method. Finally the disadvantaged group and the relationship between the method, based on the protection of women's rights in the process, gay groups of each country of self-government and aboriginal protection status that mainstream group and the present situation of conflict. Mainstream groupChapter four is about legal pluralism and China are first analyzed the rule of law in China, the present situation of legal multiple foreign law system and traditional legal system and legal culture, which in a traditional culture and because China is a multi-ethnic country makes the situation is more complicated. In foreign law and local resource integration in three main areas to note:one is to enhance the ability to absorb reference indigenous law; The second is paying attention to the role of traditional Chinese legal culture; Three is the legal culture treat correctly foreign. Folk law and national law about the integration of the relationship between the two, reality is analyzed, would be interactive relationship, should how benign interaction has two aspects:one is to communicate in legislation should absorb the favorable factors other perfect ourselves; 2 it is judicial on civil mediation mechanism should pay more attention to the flexibility. Minority method and national integration of ethnic minorities are first analyzed the reason of the existence of the law:one is the minority areas the underdevelopment of economy; 2 it is minority nationalities'customary laws have stability and continuity; Three is simple easy-to-use minority nationalities' customary laws. How to reconcile of international law and minority nationalities' customary laws has three aspects:one is to absorb the advantageous parts of minority nationalities'customary laws and correct treatment; 2 it is both to ensure national judicial authorities also wanted to use the minority nationalities'customary laws mediation disputes; Three is re-structuring minority legal culture.The conclusion of the paper emphasizes law pluralism to modern civilization, has great influence on national centralism and western centralism puts forward the challenge, beginning to pay attention to other order form and national interaction. Legal pluralism introduced in China, people began to more rational after treat western legal transplant, pay attention to the use of local resources, folk customary law and minority method is studied. Treat legal pluralism, we should prevent the plurality of absolute rejection with legal applicability of state laws, also should avoid to use state law to negate the centrality of whether legal diversity exists. Sure, while a major position wie social rules recognize other importance and complementary role for the rule of law in our country at present, the construction of a huge positive role.
Keywords/Search Tags:legal pluralism, statsrecht, folk Law, minority nationalities' customary laws
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