PANEL SESSIONS II TUESDAY JUNE 26 2018 9.00 AM – 10.30 AM

Room: CYTT 3.10

  • NEW PERSPECTIVES ON CONSTITUTIONAL AND LEGAL PLURALISM
    Constitutional monism and legal monism – the idea that there is a clear hierarchy of institutions and rules within a constitutional or legal order – have proved to be inadequate theories for conceptualizing contemporary constitutional and legal orders. This panel explores pluralism, an alternative to monism, from the descriptive, normative and explanatory angles. It examines both constitutional and legal pluralism, exposes variations within the concept of pluralism itself, and draws on the experiences in Europe, Southeast Asia, and China and Hong Kong. Neo and Bui‘s paper proposes the concept of “state constitutional pluralism“. Barber and Chan‘s paper argues that the form of legal pluralism found within the European Union can and should be transposed to conceptualize the China-Hong Kong relationship. Petersen‘s paper analyzes why courts may be more cooperative or isolationist in some instances than others, accounting for why legal pluralism may or may not emerge.
  • What role for pluralism in inter-court relationships? – An explanatory framework
    It has been observed in recent years that the relationship between domestic and international courts typically does not follow hierarchical patterns. Therefore, some legal scholars have coined the term ‘pluralism‘ to describe relationships between domestic and international courts in which neither Court accepts the absolute supremacy of another court, but still seeks to establish a cooperative relationship. However, not all relationships between courts can be described as cooperative. Instead, we sometimes observe that domestic or regional courts deny paying respect to the rulings of an international court. Whether judges cooperate or show isolationist tendencies does not only vary between courts, but may also differ within one court. The paper tries to explain these differences. It argues that courts cooperate when they are dependent on each other in order to preserve their institutional position and establishes conditions under which such mutual dependency emerges.
  • State Constitutional Pluralism
    The complexity of engagement among multiple legal systems is now an increasingly studied subject. However, despite a broad range of legal pluralism scholarship examining the presence and engagement of state/non-state as well as state/state legal systems, much constitutional law scholarship tends towards a monist perspective in examining state constitutions. While constitutional pluralism has emerged as a subject of study, it remains largely in the supra-national context in relation to the European Union. In this paper, we argue that constitutional pluralism can be applied to better comprehend some state constitutions, and propose the concept of “state constitutional pluralism“, which refers to heterarchical constitutional authorities arising from divergent constitutional norms, ideas, and values that coexist and conflict within the state. Using examples from Asia, we examine three sources of constitutional pluralism: secular-religious, local-central, and ideational.
  • Legal pluralism: a means of sustaining liberal constitutionalism within authoritarianism? The case of China and Hong Kong
    In this paper, legal pluralism is defined as the existence of conflicting rules within a legal system on an institution‘s legal power, with no other institution possessing the legal power to resolve that conflict. An example of such pluralism is found in the interaction between European law and member state law: the ECJ claims that EU law trumps national constitutions and that it has the final say in case of conflict, while some national courts claim otherwise. We argue that legal pluralism provides a refreshing perspective for conceptualizing the relationship between the legal orders of China and Hong Kong. It explains how that relationship could be understood as pluralist and why it would be desirable for the relationship to develop in a pluralist direction. The case of China/Hong Kong suggests that pluralism can be a means of sustaining a subnational legal system that respects liberal values within a larger, Leninist legal system.