Legal Pluralism – A Primer

A number of my previous blog postings made extensive reference to the buzzword “legal pluralism” which one finds abound in contemporary legal literature. Instances of legal pluralism can be found in the recent debate on faith-based arbitration in Ontario, in the Beth Din courts of New York, and in the family law structure of the Philippines.[1] A discussion on the very term “legal pluralism” is important so that its underlying assumptions can be uncovered and scrutinized rather than passing the relevant discussion unnoticed.

I. Defining Legal Pluralism

At its core, the concept of legal pluralism serves two purposes. The first purpose is to discredit the doctrine of legal centralism. Griffith’s seminal paper on legal pluralism defined the ideology of legal centralism as a claim that “law is and should be the law of the state, uniform for all persons, exclusive of all other law, and administered by a single set of state institutions”.[2] The state thus holds a monopoly over the administration of law, and is the sole source of legitimizing authority as to what constitutes “law”. Legal centralism follows a liberal conception where “state institutions operate according to strict principles of equality and neutrality”,[3] based on the assumption that state law is logically coherent.[4] According to legal pluralists, legal centralism is conceptually parasitic to the development of descriptive theories of the law, since it establishes an a priori notion of the desirable state of affairs.[5] As its second purpose, legal pluralism, by casting a shadow of skepticism on the deeply held centralist ideology, can then step in to offer an alternate paradigm that suggests the existence of several overlapping normative legal systems with exist in tandem with the state legal system. As Griffith famously wrote, “Legal pluralism is the fact. Legal centralism is a myth, an ideal, a claim, an illusion”.[6]

Legal pluralism generally describes a situation where two or more legal systems or legal orders coexist in the same social setting.[7] Legal systems include those beyond the state system, such as religious or customary legal systems.[8] Legal pluralism also recognizes that legal mechanisms can also be found in other social settings, such as villages, families or churches, where rules and conventions exist, inducing compliance.[9] This leads to a definition of legal pluralism as “the normative heterogeneity attendant upon the fact that social action always takes place in a context of multiple, overlapping ‘semi-autonomous social fields”.[10] This definition is not without its numerous criticisms and variations, as will be explored in more detail shortly. Nonetheless, by identifying the existence of ‘overlapping semi-autonomous social fields’, the definition breaks away from the legal centralism ideology, and opens up the possibility for other normative legal orders to stake a claim to authority.

II. Separating State Legal Pluralism and Deep Legal Pluralism

In attempting to more carefully craft out a meaningful definition of legal pluralism, some legal pluralism scholarship has found it useful to separate the notions of “state” legal pluralism and “deep” legal pluralism.[11] State legal pluralism is a direct product of colonialism, in which setting colonialist states attempted to accommodate customary law with the state system.[12] Under such a conception, the sovereign still commands authority through a unitary state legal system. Non-state laws exist insofar as they are ‘recognized’ by the state authority. Such a state system exhibits a level of internal plurality, as some of the laws contained within the overall system trace their origins to non-state legal normative orders, notwithstanding the fact that they are specifically state approved. State legal pluralism is not inconsistent with the notion of legal centralism. Rather, it represents “a particular arrangement in a system whose basic ideology is centralist”.[13] Such an arrangement is able to persist, due in part to the treatment of non-state law as imperfect, and thus in need of a centralizing authority’s supervision.[14]

The shortcomings of state legal pluralism are threefold. First, it is destructive to the aspirations of groups genuinely seeking to assert their own laws. Hinz frames this as the right to one’s own right – the right of individuals to be governed by that legal order they most closely associate with and thereby view as authoritative.[15] Second, and tied closely to the first point, is that state legal pluralism prejudices an individual’s standing before the law. An individual adhering to non-state laws will be perceived as adhering to imperfect, albeit acceptable, laws.[16] Third, as a pragmatic objection, state legal pluralism usually entails a high level of complexity.[17] While on one level, non-state laws are circumscribed to the extent that they will be recognized by the state, on another level, the very presence of multiple laws will necessitate that a choice of law rule be instituted. Such a rule may be necessary in instances where state and non-state laws apply to a given situation and the court must decide between the two.

Deep legal pluralism breaks free from the paradigm of state legal system, and posits that for any social group, two or more legal orders may coexist and not belong to a single unified system.[18] Deep legal pluralism is an attempt by legal scholars and anthropologists to chart the empirical reality of people’s state of affairs. It is sharply critical of the legal centralist dogma that social affairs, or even principles, are solely a function of state law. Rather, multiple and overlapping normative legal orders exert authority on social life. These multiple systems or orders are not unified under any single legal system. Rather multiple sets of laws may emanate from multiple sources.

Concluding Remarks

The present surge of interest in “legal pluralism” in the global legal domain calls for a deep exploration on what the term hope to bring into any particular discussion. Readers must be acutely aware that the term brings with it an eclectic of meanings and criticisms, and thus they would do themselves much justice by attempt to situation any particular discussion accordingly.

[2] John Griffiths, “What is Legal Pluralism?” (1986) 24 J. Legal Pluralism 1 at 3.

[3] T. W. Bennett, “Comparative Law and African Customary Law” in Mathias Reimann & Reinhard Zimmerman, eds., The Oxford Handbook of Comparative law (Oxford University Press: 2006) 641 at 666.

[4] Ibid.

[5] Griffiths, supra note 2 at 3.

[6] Ibid. at 4.

[7] S. E. Merry, “Legal Pluralism” (1988) L. & Society Rev. 869 at 870.

[8] Legal systems would also rise in such setting as to family, church, business, etc. See Griffiths, supra note 2.

[9] Bennett, supra note 3 at  667

[10] Griffiths, supra note 2.

[11] Merry, supra note 7. Also see Griffiths, supra note 1.

[12] Griffith refers to this as “weak” legal pluralism. It has since been referred to as “state” legal pluralism by Merry, Woodman and others. The term state legal pluralism seems more desirable given the potentially polemical connotations connected with “weak” legal pluralism.

[13] Griffiths, supra note 2 at 8.

[14] Ibid.

[15] Manfred O. Hinz, “Legal Pluralism in Jurisprudential Perspective” in Manfred O. Hinz, ed., The Shade of New Leaves – Governance in Traditional Authority: A South African Perspective (Berlin: Lit Verlag, 2006) 29 at 35.

[16] Woodman, however, he disagrees with the validity of this criticism. See Gordon R. Woodman, “Legal Pluralism and the Search for Justice” (1996) 40 J. African L. 152 at 160.

[17] Ibid. at 161.

[18] Griffith, supra note 2 at 8. Griffiths refers to this as “strong” legal pluralism.

Share/Bookmark