Legal pluralism? indigenous rights as legal constructs

Chris Thornhill, Carina Calabria, Rodrigo Cespedes, Dominic Dagbanja, Elizabeth O'Loughlin

Research output: Contribution to journalReview article

1 Citation (Scopus)

Abstract

This article sets out a sociological critique of the theories of legal pluralism that underpin contemporary constructions of Indigenous rights. It argues that pluralistic theories of Indigenous rights, which see Indigenous rights as challenging the legal orders of nation-states, are based in simplified analyses of the construction of such rights, and they fail to account for the subjects that lay claim to indigeneity and the relation between such subjects and national legal systems. To explain this, the article reconstructs primary patterns of Indigenous rights law in global international law, regional international law, and municipal law in Latin America and Africa. Against standard pluralistic approaches, this article argues that we need to adopt a sociological model based in world citizenship, which depends on relatively autonomous legal functions, to understand the growth of Indigenous rights. Central to this model is the claim that the imputation of Indigenous rights extends the reach of domestic legal systems and that it is closely linked to a process in which the national legal system, supported by global legal norms, penetrates more deeply and more inclusively into national society.

Original languageEnglish
Pages (from-to)440-493
Number of pages54
JournalUniversity of Toronto Law Journal
Volume68
Issue number3
DOIs
Publication statusPublished - 1 Jun 2018

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