A Legal Pluralist Approach to the Use of Cultural Perspectives in the Implementation and Adjudication of Human Rights Norms

Abstract

The assertion that state law is the law is perhaps one of the greatest and most embedded creeds in Western legal cultures. 1 In practice, however, individuals coexist among multiple communities generating and enforcing norms. 2 Some of these norms are regarded as official law, while others are considered informal or customary law (or not even law at all). 3 While lawyers tend to focus on state-sanctioned law - the self-proclaimed only law - legal pluralist scholars have long studied legal hybridity in a given social field. 4 In this paper, we borrow some of their insights to analyze the operation of international human rights law. The state monopoly on the production and enforcement of law has not only sidelined infra-state normative orders, but also denied public international law (including human rights law) the quality of law. 5 In spite of its state-sanctioned character, human rights law retains its oddity among the law of states and unlike the latter, the former can hardly deny the normative power of the multiplicity of actors intervening in its operations. Moreover, and far from being self-contained, the different layers or sub-regimes of a fragmented human rights law are in constant overlap and exchange. 6 As such, we subscribe to the view of international human rights law as a multilayered architecture, whereby states, supranational organs, non-state as well as transnational and local actors, all generate, reconstruct, and contest normative postulates. We take a legal pluralist approach with the aim of better grasping the challenges ...