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Legal Pluralism and International Human Rights Law: Inherently Incompatible, Mutually Reinforcing or Something in Between? / H. Quane, Helen Quane

Oxford Journal of Legal Studies, Volume: 33, Issue: 4, Pages: 675 - 702

Swansea University Author: Helen Quane

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DOI (Published version): 10.1093/ojls/gqt018

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 wit...

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Published in: Oxford Journal of Legal Studies
ISSN: 0143-6503 1464-3820
Published: 2013
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URI: https://cronfa.swan.ac.uk/Record/cronfa14392
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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 State’s 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.
Keywords: legal pluralism – international human rights law - religious law – customary law
College: Hillary Rodham Clinton School of Law
Issue: 4
Start Page: 675
End Page: 702