13 November 2009

Holbrook on ‘Legal hybridity’

Justin Holbrook recently posted ‘Legal hybridity in the Philippines: lessons in legal pluralism from Mindanao and the Sulu Archipelago’ in SSRN. This is the abstract:

From Kurds in Afghanistan to Muslims in the Philippines, we live in a world in which normative obligations do not always follow political boundaries. For a variety of political, economic, and social reasons, people sometimes find themselves residents of a state they neither helped create nor voluntarily joined. What allegiance do such people owe to the legal systems of the states to which they belong? Should they be permitted to adopt and follow proprietary legal codes that conform to cultural norms but exist distinct from national jurisprudential schemes? As nations throughout the world struggle to find plural solutions to normative conflict, these questions are of vital importance to subnational and supranational legal regimes.

In this Article, I explore these issues by drawing on legal pluralism as a methodology to analyze subnational normative conflict. I do so by engaging in a case study of the Philippines, a country which has been a hotbed of conflict for more than 400 years. I first address the mechanisms employed by Spanish and American colonizers in responding to normative conflict in Mindanao and the Sulu Archipelago. I then proceed to a discussion of the steps taken by the Philippine government to formally recognize Muslim normative obligations, including the adoption of Presidential Decree 1083, the Muslim Code of Personal Laws. Finally, I review the Philippine government’s approach to legal hybridity in the context of four practices identified by Paul Schiff Berman in Global Legal Pluralism: dialectical discourse, margins of appreciation, jurisdictional redundancy, and limited autonomy regimes. I conclude by suggesting that the Philippine government’s approach, though less than fully realized, models the possible benefits of pluralism in a normatively complex and contentious hybrid society.

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