Against Nomopolies
![handle is hein.journals/nilq57 and id is 622 raw text is: 610 Northern Ireland Legal Quarterly [Vol. 57, No. 4]
AGAINST NOMOPOLIES'
Roderick A. Macdonald, F.R. Scott Professor of Constitutional and
Public Law, McGill University, Canada and David Sandomierski,
McGill University, Canada
ABSTRACT
Legal pluralism stands in counterpoint to conceptions of law
that sharply distinguish the legal from the non-legal. This
essay considers a neglected feature of classical legal theory -
prescriptivism - that sustains this binary ambition.
Prescriptivists assert that legal artefacts such as norms are
distinct from the human world upon which they operate. Each
of centralism, monism, positivism and prescriptivism subsumes
diverse associational nomoi into the nomos of a given
community, often the State, thereby creating a nomopoly. To
the prescriptivist, human beings are subjects under an external
sphere of law. The anti-prescriptivist perspective invites legal
subjects to imagine themselves as legal agents and to discover
the normative potential of their own actions. In so doing, these
legal agents are staking a position -against nomopolies
however constituted.
I. Beyond Legal Subjectivity
Legal Pluralism need not be understood as a revolutionary or even as an
oppositional project. After all, rejection and resistance are only two of many
strategies for affirmation in the face of dogma. Better to acknowledge
openly the contingency of one's own position and, in doing so, to call upon
those who offer competing symbolizations to justify positions previously
asserted dogmatically. Still, such a reconstructive strategy is risky given the
enthusiasm of legal theorists for exclusionary definitions parading as truth
claims.
The desire to propound a single conceptual test for catechizing orthodoxy
and extirpating heresies rests, at bottom, on a more general intellectual
This text is the fourth in a series of articles exploring different theoretical
dimensions of legal pluralism. It elaborates upon themes developed in Macdonald,
Here, There and Everywhere... Theorizing Legal Pluralism; Theorizing Jacques
Vanderlinden. in Kasirer (ed), Mlanges Jacques Vanderlinden (2006)
[hereinafter Macdonald, Here, There and Everywhere]; Macdonald, Metaphors
of Multiplicity: Civil Society, Regimes and Legal Pluralism (1998) 15 Ariz.JInt'l
& Comp.L. 69 [hereinafter Macdonald Metaphors of Multiplicity]; and,
Kleinhans and Macdonald, -What is a Critical Legal Pluralism? (1997) 12
Can.J.L. & Soc'y 25. We are grateful to Jeremy Webber, who shared with us his
essay Legal Pluralism and Human Agency (2006) 43 Osgoode Hall L.J. I I and
critically commented on several themes raised in this paper. Blaine Baker,
Nicholas Kasirer, Desmond Manderson and Shauna Van Praagh also offered a
close read of the text that helped us identif, unstated assumptions and clarify our
critique of prescriptivism.](ViewImageLocal?handle=hein.journals/nilq57&div=40&collection=&method=preview&ext=.png&size=3)
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