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Legal Pluralism and International Human Rights Law: Inherently Incompatible, Mutually Reinforcing or Something in Between?

Legal Pluralism and International Human Rights Law: Inherently Incompatible, Mutually Reinforcing... The relationship between legal pluralism and international human rights law is a complex and multi-faceted one. To fully appreciate the nature of this relationship, one has to desegregate the various forms of legal pluralism and analyse whether in their existence or operation they are compatible with international human rights law. This article undertakes such an exercise drawing on the jurisprudence of global and regional human rights bodies. In doing so, it goes beyond a mechanical audit of legal pluralism in the light of specific human rights and explores more foundational issues such as the nature and extent of a States human rights obligations when legal pluralism exists within its borders, the possibility of waiving human rights and questions of cultural relativism which hover over any discussion of legal pluralism. What emerges from this analysis is that a tentative conceptual framework exists to regulate the relationship between legal pluralism and international human rights law. It is one that not only requires the State to render legal pluralism compatible with human rights but also stipulates the process by which this should be done. Effectively implemented, it can achieve this objective and harness the pull of religious and customary law to ensure the more effective protection of human rights. http://www.deepdyve.com/assets/images/DeepDyve-Logo-lg.png Oxford Journal of Legal Studies Oxford University Press

Legal Pluralism and International Human Rights Law: Inherently Incompatible, Mutually Reinforcing or Something in Between?

Quane, Helen
Oxford Journal of Legal Studies , Volume 33 (4) – Dec 10, 2013
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Publisher
Oxford University Press
Copyright
The Author 2013. Published by Oxford University Press. All rights reserved. For permissions, please e-mail: journals.permissions@oup.com
ISSN
0143-6503
eISSN
1464-3820
DOI
10.1093/ojls/gqt018
Publisher site
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Abstract

The relationship between legal pluralism and international human rights law is a complex and multi-faceted one. To fully appreciate the nature of this relationship, one has to desegregate the various forms of legal pluralism and analyse whether in their existence or operation they are compatible with international human rights law. This article undertakes such an exercise drawing on the jurisprudence of global and regional human rights bodies. In doing so, it goes beyond a mechanical audit of legal pluralism in the light of specific human rights and explores more foundational issues such as the nature and extent of a States human rights obligations when legal pluralism exists within its borders, the possibility of waiving human rights and questions of cultural relativism which hover over any discussion of legal pluralism. What emerges from this analysis is that a tentative conceptual framework exists to regulate the relationship between legal pluralism and international human rights law. It is one that not only requires the State to render legal pluralism compatible with human rights but also stipulates the process by which this should be done. Effectively implemented, it can achieve this objective and harness the pull of religious and customary law to ensure the more effective protection of human rights.

Journal

Oxford Journal of Legal Studies – Oxford University Press

Published: Dec 10, 2013

Keywords: legal pluralism international human rights law religious law customary law

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