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 language | English |
|---|---|
| Pages (from-to) | 440-493 |
| Number of pages | 54 |
| Journal | University of Toronto Law Journal |
| Volume | 68 |
| Issue number | 3 |
| DOIs | |
| Publication status | Published - 1 Jun 2018 |
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Legal pluralism? indigenous rights as legal constructs. / Thornhill, Chris; Calabria, Carina; Cespedes, Rodrigo; Dagbanja, Dominic; O'Loughlin, Elizabeth.
In: University of Toronto Law Journal, Vol. 68, No. 3, 01.06.2018, p. 440-493.Research output: Contribution to journal › Review article
TY - JOUR
T1 - Legal pluralism? indigenous rights as legal constructs
AU - Thornhill, Chris
AU - Calabria, Carina
AU - Cespedes, Rodrigo
AU - Dagbanja, Dominic
AU - O'Loughlin, Elizabeth
PY - 2018/6/1
Y1 - 2018/6/1
N2 - 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.
AB - 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.
KW - Citizenship
KW - Indigenous rights
KW - International human rights law
KW - Legal pluralism
KW - Sociology of law
UR - http://www.scopus.com/inward/record.url?scp=85052101344&partnerID=8YFLogxK
U2 - 10.3138/utlj.2017-0062
DO - 10.3138/utlj.2017-0062
M3 - Review article
VL - 68
SP - 440
EP - 493
JO - University of Toronto Law Journal
JF - University of Toronto Law Journal
SN - 0042-0220
IS - 3
ER -