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- 저자 : Brian Z. Tamanaha, 이상진(Lee, Sang - Jin) (검색결과 2 건)
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Brian Z. Tamanaha, 이상진(Lee, Sang - Jin) 원광대학교 법학연구소 2010 圓光法學 Vol.26 No.3
This article, an abridged Korean translation of “Understanding Legal Pluralism: Past to Present, Local to Global” by Brian Z. Tamanaha, explains about the conceptual problem plaguing legal pluralism and introduces a probable solution. Based on this conclusion, it devises a framework which categorizes the legal pluralism phenomena and further explores how these categories clash to what results. Legal pluralism has been heralded by scholars of legal anthropology, legal sociology, comparative law and international law as the theory elucidating the daunting multiplicity of legal orders. But despite all this attention, legal pluralism was marked by conceptual confusion from the very beginning. Participants of legal pluralism come from different disciplines, bringing different concepts and orientations to the subject. Also theorists were not able to agree on a single definition of law for social scientific purposes. If law is defined too broadly, it becomes impossible to discern from other social relationships. This article suggests a solution by regarding law as a “folk concept”; in other words law is what people think of as law. This simple approach can be expanded into a framework that divides the phenomena of legal pluralism into the following six categories: Official legalsystems; Customary/Cultural normative systems; Religious/Cultural normative systems; Economic/Capitalist normative systems; Functional normative systems; Community/Cultural normative systems. A single social arena can have one or more of these legal orders; co-existing legal orders tend to clash with each other for supremacy in redundant areas. Most often official legal systems tend to clash with the other five normative systems mentioned above. In such situations, the official legal system copes with the conflict in either of three ways. First, the official legal system might disallow the competing system but take no action to repress it. Second, the official legal system might absorb the competing system. Third, the official legal system might denounce the competing system, and then actively execute that claim. But if the competing system is more prominent in the social arena than the official legal system, the above methods might not operate as expected. Other from the prior systematic approach, the conflict between normative systems can be viewed from the perspective of individuals and groups. Strategic actors resort to the legal system that aligns with their cause and in making this decision they consider the barriers that exist in connection with each system. The forgoing framework brings on the same plane much of what is discussed by scholars interested in legal pluralism. Now with the conceptual problem of legal pluralism resolved, this framework will work as a practical tool in handling the plurality of law in all societies.
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