Colleen Sheppard

Introduction: Human Rights Through Legal Pluralism

At first glance, human rights and legal pluralism make strange bedfellows. To begin with, they are not conceptual analogues: the first is normative in its essence, capturing a bundle of rights reflecting the interests most fundamental to any human being; the second is conceptual, offering a model of how to construct legal normativity in a society. There are, beyond this distinct nature, further layers of difference which separate rather than unite notions of human rights and legal pluralism, explaining the fact that studies on human rights rarely have embraced a legal pluralism approach and, conversely, that legal pluralistic analysis by and large focuses on norms other than human rights. This book interrogates the chasm that seems to exist between these two notions, to highlight the potential for legal pluralism to bring innovative perspectives to our understanding of human rights, which have become a critical component of modern legal systems. Human rights have experienced momentous growth during the post-World War II era. At the international, state, and local levels, human rights laws, declarations, charters, and covenants have multiplied and endorsed a recurring core of rights and obligations linked to the protection of fundamental human dignity, equality and justice. Nevertheless, there has been a growing concern that simply ratifying or legislating human rights conventions and laws does not lead to the effective enjoyment of human rights in the daily lives of millions of individuals. Legal pluralism offers an approach that translates abstract and broad human rights standards into the vernacular of everyday life, transplanting these norms into ordinary human relations where they can truly achieve their transformative potential.

Equality Through the Prism of Legal Pluralism

We live in a world characterized by multiple, overlapping and plural legal orders embracing formal and informal legal regimes, customs and practices. Legal protections for equality and protections against discrimination are found in a plurality of legal instruments, including international, regional, national, state and municipal human rights documents and institutional codes of conduct. Moreover, formal equality rights operate in social and cultural contexts that are deeply influenced by the customs, norms and social practices of everyday life. In assessing how law may be used to contest structural inequalities, therefore, it is critical to examine the interaction between different sources of formal human rights protection and diverse, overlapping and coexisting social and cultural orders – or regimes of informal law. Such an exploration provides important insights into systemic, structural and social obstacles to effective enforcement of formal anti-discrimination and equality rights protections – obstacles institutionalized and embedded in both official and unofficial law and custom. Moreover, an appreciation of the intersections and interactions between a plurality of legal orders (both formal and informal) illuminates how strategic reliance on different sources of protection may advance the effective enjoyment of the right to equality. In this chapter, I highlight how the plurality of law affects equality rights in institutional, community and global contexts, drawing on examples from the Canadian experience.