Nicole Roughan (University of Auckland - Faculty of Law) has posted Plurality of Laws and Conflict of Laws: Reconciling Through Recognition? (This is a draft of a chapter that has been accepted for publication by Oxford University Press in the forthcoming book Philosophical Foundations of Private International Law edited by Roxana Banu, Michael Green, and Ralf Michaels due for publication in 2023) on SSRN. Here is the abstract:
Advocates of the flexibility and adaptability of conflict of laws models have articulated renewed potential for its institutions, methods, doctrines to be part of the toolkit for operating relations between state and Indigenous legal orders. However, at a time when pluralist jurisprudence grapples with new ways of realizing inter-sovereign or at least inter-authority relationships between Indigenous and state orders,, such a relational turn in conflicts theory, away from sovereigntist and statist orientations, may (perhaps perversely, put it on the wrong side of efforts to realise legitimate relative authority.
When private claims to Indigenous legalities invoke the very public character that the state also claims, then the demand made to the state differs from those of the foreigner as well as from others within the state. Treating them together risks reducing claims to Indigenous legalities to claims of private persons within a monistic public (state) authority, rather than as challenges to the state’s authority in ways that reveal its interdependence with the Indigenous legal order. These are not mere representations of inside/outside dualities in the person or in our social/political institutions. They are positions claimed, held, and defended at the expense of the other. If conflict of laws is to be redrawn to offer a mode of recognition and relating legal orders to another, then it needs to be redrawn so as to institutionally recognise the interaction and interdependence of legitimate authorities.
Highly recommended.
