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Positivism and Plural Legal Systems
Author(s) -
Eekelaar John
Publication year - 2012
Publication title -
ratio juris
Language(s) - English
Resource type - Journals
SCImago Journal Rank - 0.344
H-Index - 10
eISSN - 1467-9337
pISSN - 0952-1917
DOI - 10.1111/j.1467-9337.2012.00525.x
Subject(s) - positivism , plural , relevance (law) , jurisdiction , legal positivism , law , political science , resolution (logic) , sociology , law and economics , epistemology , legal realism , legal profession , philosophy , computer science , linguistics , artificial intelligence
This paper considers whether the positivist account of law is useful in guiding states in how they should deal with religious or customary legal orders followed by minority groups within their jurisdiction. It argues, first, that such orders can be said to exist despite the prevalence of disagreement about the grounds of law. It then argues, contrary to views advanced by S cott S hapiro and J oseph R az, that there are good reasons for perceiving that the resolution of legal disputes by reference to moral principle involves the application of pre‐existing law. However, the paper concludes by arguing that the S ocial T hesis has an important role in supplying the basis upon which the application of law can be deemed to be legitimate, and that this has relevance to the way states might respond to minority legal orders.