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"Ubiquitous Law" explores the possibility of understanding the law in dissociation from the State while, at the same time, establishing the conditions of meaningful communication between various legalities. This task is partly methodological and partly substantive. The book argues that the enquiry into the legal has been biased by the implicit or explicit presupposition of the State's exclusivity to a claim to legality as well as the tendency to make the enquiry into the law the task of experts, who purport to be able to represent the legal community's commitments in an authoritative manner. Very worryingly, the experts' point of view then becomes constitutive of the law and parasitic to and distortive of people's commitments. "Ubiquitous Law" counter-suggests a new methodology for legal theory, which will not be based on rigid epistemological and normative assumptions but rather on self-reflection and mutual understanding and critique, so as to establish acceptable differences on the basis of a commonality. Clearly, in order for this to be possible, a substantive theoretical basis is necessary. "Ubiquitous Law" goes on to establish the possibility of some degree of universal objectivity in relation to the law's existence and content, which will neither stifle and foreclose diversity nor radically under-prescribe and under-determine questions of law and rightness.
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Ubiquitous Law
Στην Αγγελική και τον Χάρη Μελισσάρη
Ubiquitous Law Legal Theory and the Space for Legal Pluralism
Emmanuel Melissaris London School of Economics, UK
© Emmanuel Melissaris 2009 All rights reserved. No part of this publication may be reproduced, stored in a retrieval system or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise without the prior permission of the publisher. Emmanuel Melissaris has asserted his right under the Copyright, Designs and Patents Act, 1988, to be identified as the author of this work. Published by Ashgate Publishing Limited Ashgate Publishing Company Wey Court East Suite 420 Union Road 101 Cherry Street Farnham Burlington Surrey, GU9 7PT VT 05401-4405 England USA www.ashgate.com British Library Cataloguing in Publication Data Melissaris, Emmanuel Ubiquitous law : legal theory and the space for legal pluralism. - (Law, justice and power series) 1. Legal polycentricity 2. Law - Methodology I. Title 340.1'1 Library of Congress Cataloging-in-Publication Data Melissaris, Emmanuel. Ubiquitous law : legal theory and the space for legal pluralism / by Emmanuel Melissaris. p. cm. -- (Law, justice, and power) Includes bibliographical references and index. ISBN 978-0-7546-2542-1 1. Legal polycentricity. 2. Law--Methodology. I. Title. K236.M45 2009 340'.11--dc22
09ANSHT ISBN 978 0 7546 2542 1
2008045428
Contents
Acknowledgements
vii
Introduction
1
1
7
Perspective, Critique and Pluralism in Legal Theory
2 Orthodoxies and Heterodoxies of Legal Pluralism
25
3
45
On the Theoretical Groundwork of Legal Pluralism
4 Interperspectival, Critical Legal Theory
61
5 The Contours of Institutionalized Legal Discourse
79
6 Shared Normative Experiences and the Space for Legal Pluralism 109 7 On the Chronology (and Topology) of the Legal
129
Conclusion
151
Bibliography Index
155 169
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Acknowledgements
Over the years, many colleagues and friends read various parts and versions of this book. I am particularly indebted to Emilios Christodoulidis for patiently and generously following and supporting my work from the very beginning; Neil Du