Oppgrader til nyeste versjon av Internet eksplorer for best mulig visning av siden. Klikk her for for å skjule denne meldingen
Ikke pålogget
{{session.user.firstName}} {{session.user.lastName}}
Du har tilgang til Idunn gjennom , & {{sessionPartyGroup.name}}
Open access
Vitenskapelig publikasjon
(side 176-199)
av Alain Zysset
Sammendrag

Sociologically and normatively, the concept of legal pluralism presupposes a ‘legal system’ or a ‘law-like’ normative order displaying a distinctive structure (eg an institutionalised system of rules and sanctions) whose boundaries can be determined and distinguished from others (or from non-law). Legal pluralism thereby presupposes that the boundaries between those entities are cognisable (descriptively or normatively) and distinguish large-scale entities (‘system’, ‘order’, ‘layer’, etc).

In this article, I argue that this overlapping concept of legal pluralism is inapplicable to human rights law either descriptively or normatively (with particular emphasis on the European Convention on Human Rights (ECHR). Normatively, recent philosophical literature suggests that human rights (law) may be endorsed by a variety of moralities (eg collectivistic) that make it safe from the critique of parochialism, legal or moral. Descriptively, European human rights law has never been legally depicted as an autonomous and complete legal order in the vein of EU law as held by the European Court of Justice in Van Gend en Loos. This is explained by the structural principle of subsidiarity shaping the complementing roles of the European Court of Human Rights (ECtHR) in reviewing state practices and national courts in applying the ECHR.

How shall we then understand the point (if any) of legal pluralism in the context of European human rights law? I argue that one first needs to uncover the link between legal and moral pluralism and therefore ‘pierce’ the large-scale boundaries premised in the conventional concept of legal pluralism. I show how pluralism is used in the reasoning of the ECtHR to justify its authority over national courts, so that the distinction between legal ‘orders’ or ‘systems’ is contingent upon the normative role that moral pluralism plays in justifying the duties correlative to human rights.

Open access
Vitenskapelig publikasjon
(side 200-224)
av Aled Dilwyn Fisher
Sammendrag

State-centric law appears ill equipped to meet human rights’ emancipatory promise in an increasingly pluralistic, unequal world facing climate change. ‘Climate justice’ has become a counterpoint to hegemonic statist, neoliberal climate approaches. However, few studies address the confluence of competing norms (including rights), power relations and multiple actors in shaping, contesting and reinterpreting climate justice in specific contexts, despite burgeoning human rights and legal pluralism research. This article explores legal pluralism’s potential for understanding rights’ roles in climate justice through examining Norway. Legal pluralism reveals how Norwegian ‘translators’ vernacularise transnational climate justice aspects, including international climate law and policy, into relevant movement frames, but within unequal power relations and hegemonic processes. These translators balance encouragement and critique of Norway’s high-profile international climate positioning, finding spaces within hegemonic discourses where movements can turn prevalent global, statist frames inward, decentering climate discourses by highlighting Norway’s structural links to climate injustice, particularly its petroleum industry. Rights are used in varying ways in both disaggregating diagnostic frames and stressing more prognostic, transformative visions. Increasingly, climate justice and Norwegian ‘klimarettferdighet’ [climate justice] discourses move from a focus on countering international, statist discourses to domestic distribution and economic transitions. This combines climate justice with Norwegian civic participatory and social democratic norms of active civil society and social movement involvement in socioeconomic transformations, providing potentially resonant frames for tackling climate change.

Open access
Vitenskapelig publikasjon
(side 225-240)
av Vikram Kolmannskog
Sammendrag

Every year millions of people are forced to flee their homes in the context of climate change and disasters. Their needs and rights are unclear. This paper presents and discusses some findings from a socio-legal case study exploring the rights of disaster-affected Somalis and Ethiopians in Yemen. The first main findings relate to the challenges that Ethiopians faced in accessing, and succeeding with, the formal asylum process. This is discussed in light of legal aid theory and research as well as research on credibility assessments. Another category of findings relates to interactions of local, religious law and international law. This is discussed in light of legal pluralism, which helps in identifying an emancipatory potential. While complex, dynamic and dependant on regional politics and other factors, the way Islamic law was applied — and influenced other bodies of law — seemed to ensure better protection than the 1951 Refugee Convention alone. This potential should be further explored and possibly expanded in order to strengthen the rights of people displaced in the context of climate change and disasters more generally.

Open access
Vitenskapelig publikasjon
(side 241-262)
av İlker Tsavousoglou
Sammendrag

The treatment of women in the frame of Islam has become subject to lively debate, lately concentrated in domains of the West where Islamic law seeks recognition without Islam being the prevailing creed. The discussions often are focused on concerns whether Muslim women are confronted with discriminative treatment and impediments to their access to justice. In this context, Greece occupies a unique position. Greece constitutes the only European State that recognises officially a special Islamic jurisdiction. In Thrace, Mufti tribunals are considered the cornerstone of application of Islamic law and administration of Islamic justice. However, this regime has been repeatedly criticised for failing to safeguard Muslim women’s rights. This article engages with the legal treatment of the women who belong to the Muslim Minority of Western Thrace. It examines the ways in which this religious normative regime affects their access to justice and the potential impacts that are generated from their subjection to the authority of the system thereof. The analysis is based on a methodology that combines the study of domestic and international legal scholarship with insights that were drawn from the study on representative case law of the local Sharia courts and of the competent civil courts.

Idunn bruker informasjonskapsler (cookies). Ved å fortsette å bruke nettsiden godtar du dette. Klikk her for mer informasjon