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In Search of Law's Residence: Towards the Creation of a Mosaic Health-Care State
Published online by Cambridge University Press: 18 July 2014
Abstract
The legal pluralism debate attempts to locate law beyond the traditional precincts of the nation-state. This essay is about locating law; its aim is to examine the extent to which legal pluralism can serve as a valid theory for grounding self-governance for indigenous/alternative medical systems. The author contends that the pursuit of legitimacy for indigenous health systems must begin from within the state system, understood as a malleable and contestable system of laws, and goes on to argue that the hegemony and centrality of the state can be deployed in fostering an integrated pluralistic health-care system in which orthodox and indigenous health systems have equal recognition.
Résumé
Le débat qui porte sur le pluralisme juridique tente de situer le droit au-delà des frontières traditionnelles de l'État nation. Cet article cherche à repérer le droit. Le but est de déterminer à quel point le pluralisme juridique peut agir en tant que théorie valide capable de servir à fonder l'autorégulation des systèmes médicaux indigènes/alternatifs. L'article avance l'hypothèse que la légitimation des systèmes de santé indigènes doit prendre naissance à l'intérieur même du système étatique, compris comme un système normes malléable et contestable. De plus, cet article soutient que l'hégémonie et la centralité de l'État peuvent agir favorablement dans le sens d'un système de santé pluraliste et intégré où les systèmes de santé orthodoxes et indigènes jouissent d'une égale reconnaissance.
Keywords
- Type
- Research Article
- Information
- Canadian Journal of Law and Society / La Revue Canadienne Droit et Société , Volume 24 , Issue 2 , August 2009 , pp. 251 - 276
- Copyright
- Copyright © Canadian Law and Society Association 2009
References
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51 Ibid.
52 Ibid.
53 Ibid., 86–87.
54 Santos' hypothesis is that “the higher the level of bureaucratic institutionalization of juridical production, the smaller the rhetorical space of the legal discourse, and vice versa; and the more powerful the instruments of violence in the service of juridical production, the smaller the rhetorical space of the legal discourse, and vice versa.” Ibid., 87.
55 Santos' “rhetoric” and “diatopical hermeneutics” enunciate the importance of cultural discourse between opposing knowledge systems based on the incompleteness of cultures. Standing astride two cultures creates a bridge across diversities. This, he contends, can be achieved through convivial discourse. See generally Santos, Boaventura de Sousa, “Towards a Multicultural Human Rights,” in Moral Imperialism: A Critical Anthology, ed. Hemandez-Truyol, Berta (New York: New York University Press, 2002)Google Scholar. See also Santos, , Toward a New Legal Common Sense, 474Google Scholar.
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76 Kleinhans and Macdonald, “Critical Legal Pluralism.” The emphasis on “critical” is the authors'.
77 Ibid., 29 (emphasis added).
78 Ibid., 34.
79 Ibid., 4–35.
80 Ibid., 35 (emphasis added).
81 Ibid., 38 (emphasis added).
82 Ibid.
83 Ibid.
84 Ibid., 36.
85 Ibid., 39.
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104 This understanding is perceived to be achieved through the acceptance of the different standards (legal and otherwise) operating within indigenous health care, since the acceptance of the latter into the National Health Service is presently premised on its amenability to scientific standards.
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107 Ibid., (emphasis mine).
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109 Otto, Dianne, “Subalternity and International Law: The Problems of Global Community and the Incommensurability of Difference,” in Laws of the Postcolonial, ed. Darian-Smith, Eve and Fitzpatrick, Peter (Ann Arbor: University of Michigan Press, 1999), 173Google Scholar.
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111 Ibid.
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118 Ibid.
119 Ibid., 104.
120 Ibid.
121 See generally Irehobhude O. Iyioha, “Deregulation of Complementary Medicine.”