Legal Pluralism Research Paper

The concept has two related but distinct meanings (Griffiths 1986); ‘Juridical legal pluralism,’ refers to a particular sort of legal arrangement, a way in which a legal system that is in principle unitary can deal with cultural and other sorts of diversity in its population by providing (or recognizing) distinct rules and procedures for specific groups (indigenous peoples, ethnic and religious groups, local communities, merchants and other economic groups, etc.). ‘Empirical legal pluralism’ refers to a social state of affairs in which an actor is confronted by different and possibly conflicting behavioral expectations (as when the norms among the participants in a particular economic Activity differ from the applicable legal norms). Since in the case of juridical legal pluralism there are different legal rules for different situations, but only one rule for a given actor in a particular situation, empirical legal pluralism is not entailed; nor does empirical legal pluralism entail juridical legal pluralism, since the competing systems may themselves be monistic. The remainder of this research paper is devoted largely to legal pluralism in the empirical sense.

1. History Of The Concept

Part of the ideological baggage of the modern nationstate is the idea that the state is the source of all law, properly so-called, and that law is (or at least ought to be) exclusive of other forms of regulation and is uniform for all persons. When Western European expansion began to take the form of colonization, this conception of law confronted the existence of indigenous peoples whose existing law could not be ignored. Whether for reasons of international law (the right of conquered peoples to retain their own law) or of administrative convenience (‘indirect rule’), the idea of legal pluralism as a form of governance was born: colonial law (q.v.) incorporated by reference (some parts of ) the pre-existing ‘laws and customs’ of subjected peoples, rejecting others as ‘repugnant’ to morality and public order. Colonial legal pluralism brought forth a considerable body of law (legislation, case law, legal doctrine) and an extensive legal literature (Hooker 1975). See Van den Bergh (1986) for the prehistory of the concept of legal pluralism in Roman law, medieval and canon law, and early colonial law.

Attention to legal pluralism in the empirical sense was for a long time restricted largely to legal anthropologists. Anthropology of law (q.v.) arose under the wings of colonial administrations, producing a number of early classics on ‘the law of the …,’ conceived of in the first place as contributions to colonial administration. On the whole, until the second half of the twentieth century legal anthropology treated the ‘law’ of the societies with which it dealt as an autarkic phenomenon, ‘recognized’ but not influenced by, or interacting with, the colonial state and its ‘law.’ The emancipation of legal anthropology from its subservience to the concerns of colonial administration led to a fresh start in which the legal order of a society, at all levels, is seen as a dynamic and complex whole.

The intellectual roots of modern, empirical legal pluralism can be traced back to Ehrlich (1913) who insisted that the ‘rules for behavior’ that actually govern social interaction are the norms that constitute the ‘inner order of the associations’ of which a society consists, whereas the law of the state consists of ‘rules for decisions’ addressed to courts and other legal decision-makers. But it was only in the second half of the twentieth century that the fact that the behavior of social actors is generally subject not just to one set of more or less binding rules (‘law’), but to a variety of them, came to be generally accepted among sociolegal scholars as an essential theoretical and methodological insight. Scholars made sensitive by the colonial experience and the process of decolonization to the possibility of legal diversity began to treat the idea as fundamental in sociolegal theory and research.

In the 1960s, the concept of legal pluralism served as the rallying cry for a new approach to the study of law in society. Vanderlinden’s essay ‘Le pluralisme juri-dique: essai de synthese’ marked the transition from preoccupation with the relationship between colonial law and local customary law to the realization that legal pluralism is characteristic of modern, industrialized societies too. Vanderlinden defined legal pluralism as ‘L’existence, au sein d’une societe determinee, de mechanismes juridiques differents s’appliquant a des situations identiques’ (1971, p. 19). Armed with such a definition, and with an increasingly loose, encompassing conception of ‘law,’ legal pluralism came to seem ubiquitous. If one looked carefully it could be found in the business world, bureaucratic organizations, schools, neighborhoods, and so forth. Recently, the supranational arena (the European Union, international organizations, international trade and economic globalization) has also come to be recognized as an important locus of legal pluralism.

In the 1980s, scholarly interest in legal pluralism became institutionalized. The Commission on Folk Law and Legal Pluralism of the International Union of Anthropological and Ethnological Sciences was founded in 1978. It organizes regular international symposia, and publishes books, proceedings, and a Newsletter. There are two international scholarly journals devoted to the field: the Journal of Legal Pluralism and Unofficial Law, founded in 1981 as a continuation of African Law Studies, and Law and Anthropology.

The usual variety of approaches can be found among those who use the concept of legal pluralism in the empirical sense. These include Marxism (e.g., Fitzpatrick 1980, Santos 1977, Snyder 1981a), feminism (e.g., Griffiths 1997), interpretive, constructivist and ‘postmodern’ approaches, and eclecticism that straddles the line between social science and a normative, legal approach. Historians have made some important contributions (e.g., Thompson 1991). Most writing on legal pluralism has been from a Western perspective, but Chiba (1989) is a notable exception.

2. Critique Of The Empirical Concept Of Legal Pluralism

The juridical concept of legal pluralism is generally accepted and has never given rise to any significant disagreement. The empirical concept, by contrast, despite the fruitful role it has played in social scientific research and theory, has given rise to some controversy (Tamanaha 1993, Woodman 1998). The objection is in particular to use of the word ‘legal,’ which, it has been argued, is irredeemably normative, carrying with it etymological associations (with ‘legality’ and, in languages such as German and Dutch, with the idea of justice) that inevitably give rise to confusion.

While well-taken as far as it goes, the criticism seems to require us to formulate the interaction captured in the concept of legal pluralism as one between two different things: ‘law’ and non-‘legal’ social control. Such an opposition entails just the misleading legalpositivist (q.v.) assumption that invention of the unifying concept of legal pluralism was intended to overcome: that ‘law’ can be considered as theoretically and empirically distinct from other forms of social control. Use of the concept of legal pluralism reflects the conviction that the differences between ‘legal’ and other forms of social control are matters of continuous variation and that the factors that affect the impact of rules on behavior are the same in both cases. To accomodate the criticism of the concept of legal pluralism without returning to a sterile opposition between ‘law’ and other social control, one could choose, for empirical purposes, to speak of normative pluralism or ‘rule-system pluralism’ (Tamanaha 2000, p. 306). Another line of criticism, that the concept of legal pluralism ignores the importance of differences in power (see Starr and Collier 1989), seems in light of the literature plainly mistaken.

3. Use Of The Empirical Concept In Empirical Theory And Research

From the outset, the most active area of empirical research and theory in which legal pluralism plays a central role has concerned dispute processes. Holleman’s (1973) insistence that the social scientific study of law must concern itself not only with ‘trouble cases’ but also with ‘trouble-less cases’ of law use, together with the interest in the 1970s in ‘law and development’ (q.v.), led to the growth of a second major area of interest: the social working of law under circumstances of legal pluralism. The effects of a situation of legal pluralism on the functioning of state and nonstate institutions such as courts, is a third area of interest. Finally, attention had been paid to the ecclectic and opportunistic way that people make use of a situation of plural legal resources in constructing relationships and complex social institutions such as ‘property,’ ‘social security,’ and ‘international trade.’

3.1 Dispute Processes (Litigation And Adjudication)

Legal pluralism is an important factor in understanding what people have disputes about, how disputes emerge in social life, what choices are made about how to deal with them, how they progress, what ultimately happens with them, and how the disposition of a particular dispute affects the way other people deal with similar problems. At all stages of a (potentially) ‘legal’ dispute, the existence of non-‘legal’ norms, procedures, and institutions profoundly influences what happens. Building on the general literature on dispute processes, or litigation (q.v.), a number of scholars have devoted particular attention to the normatively plural context in which disputes often take place. Exemplary studies are Ellickson (1991) on cattle-trespass disputes between neighbors in rural California; Todd 1978, on disputing relationships and social status in a Bavarian village; Santos (1977) on informal law and disputing in a Brazilian squatter settlement; and Abel (1979) on the introduction of Western courts in the non-Western setting of British Africa. The ways in which adjudicatory institutions adjust to the choices their clientele make has attracted particular interest K. von Benda-Beckmann (1984), in particular, has used the ‘extended case’ method of legal anthropology to good effect, showing how ‘forum-shopping’ litigants make differential use of state and nonstate law in different phases of a dispute, so that the execution of a court judgment, for example, may be regulated in practice by nonstate norms. Galanter (1981) and Griffiths (1983) have sought to integrate the perspective of legal pluralism into general formulations of litigation theory.

3.2 Social Working

Research, in both Western and non-Western settings has shown repeatedly that legal pluralism can be the key to understanding the effectiveness of a legal rule. Moore (1973) argued that the ways in which legal rules do or do not influence behavior can only be understood if one considers them from the perspective of the actors to whom they are addressed. These actors are generally exposed not only to the behavioral expectations expressed in legal rules but also to the often quite different expectations of more immediate sources of regulation to which they are exposed (‘semiautonomous social fields’).

The idea that the relationship between local law and state law is that the former frustrates the effectiveness of the latter is, however, too simple. In the first place, as Moore observes, when external law is effective in a social field this is often thanks not to the enforcement capacities of the state but to the support legal rules receive from local social control (see Kagan and Skolnick 1993 for the example of rules regulating smoking). In the second place, state law often adapts and builds upon forms of regulation that have earlier emerged in, and are enforced by, local social fields. The Dutch experience with regulation of medical practice surrounding death (Griffiths 2000) is a good example of the process by which such self-regulation (in this case, by the medical profession) can later be adopted by legal institutions and enforced as ‘law.’

3.3 Interaction Of State And Nonstate Law And Institutions

A phenomenon of special interest concerns the ‘creation of customary law’: the fact that when local law is ‘recognized’ by state law (as in the case of colonial legal pluralism), it must be ascertained and applied by noncustomary tribunals. In the process, a great deal of transformation takes place, so that the ‘customary law’ applied in state courts may have only a distant relationship to its supposed sources (Snyder 1981a, Woodman 1988).

A related phenomenon is the effect on local political authority when it is incorporated into a (post) colonial system of government. Such incorporation brings with it notorious errors in the identification of indigenous authorities, the witting or unwitting attribution to them of various nonindigenous powers, the manipulation of indigenous processes of succession to high office, and so forth. The fundamental bases of legitimacy tend to be corrupted and indigenous mechanisms of control over political authority eroded. This is a central theme in a number of studies of local political authority (e.g., Holleman 1969, Owusu 1970). The more recent literature emphasizes that legal pluralism can be the idiom in terms of which political struggles are fought. Asserting or rejecting the validity of a rule of particular provenance, or attributing particular virtues or defects to particular sorts of law (customary, religious, or state law), can be ways of claiming political authority (e.g., Benda-Beckmann 1989).

3.4 Eclectic Use Of Normative Resources

Colonial legal pluralism was characterized by a ‘choice of law’ approach: either state law or customary law applied to a given case, and if customary law was applicable, then it was either the law of group A or that of group B. It took some time before scholars working with the newer empirical conception of legal pluralism came to appreciate that social reality is generally not either/or but both/and: actors with access to multiple sources of law construct legal relationships ecclectically, fashioning a patchwork composed of bits and pieces of local law, religious law, state law, and international law. Thus property and inheritance relationships in Minangkabau combine elements of Indonesian law, local adat law, and Islamic law (cf. Benda-Beckman 1979).

Eclecticism in the choice and promotion of legal sources is a well-known phenomenon in the case of dispute processes (see Sect. 3.1 above). A good example of eclecticism in the structuring of relationships concerns social security. The social security arrangements that people in developing countries construct for themselves include elements of state law and elements of customary and religious law, and if they migrate to a Western country its formal social security arrangements get included in the mixture (Benda-Beckman et al. 1988). Since intra-family income transfers continue to be very important in industrialized countries, it seems safe to assume that here, too, normative eclecticism is a crucial feature of the actual social security many people depend on.

In the area of economic globalization, Snyder has argued that ‘global economic networks are governed by the totality of strategically determined, situationally specific, and often episodic conjunctions of a multiplicity of institutional, normative, and processual sites throughout the world.’ A patchwork of what he calls ‘global legal pluralism’ results from the behavior of ‘strategic actors [whose choices have] been absolutely fundamental in determining which … sites have seen the light of day, which have flourished and developed, and which have withered and even died for lack of clients’ (Snyder 1999, p. 371).

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