Having more
than one legal system within a certain geographic area is referred to as Legal
pluralism. Plural legal systems are very common in countries
that were colonized at one time in their history. Here, you find that the law
of a former colonial authority still co-exists side by side with traditional
legal systems. The idea behind having these multiple systems was so that
certain issues for example commercial transactions, would be handled by
colonial law, whereas other issues for such as family and marriage, would be
covered by traditional law.
These distinctions however, broke down over time and people would opt to bring their legal claims under the system that they felt would grant them the upper hand. When a situation occurs that there are different laws to govern different groups within a country that is also called legal pluralism. For example, in countries with majority of Muslims, there are special Islamic courts that deal with concerns in Muslim communities by following Islamic law principles. The secular courts address the issues of other communities. To a certain extent, legal pluralism also exists in societies where the legal systems of the native inhabitants have been recognized. For example, in Australia, a decision the Mabo gave acknowledgment to indigenous title and hence, rudiments of customary Aboriginal rule. Some parts of traditional native criminal law have also been accepted, more so in sentencing. In effect two parallel sentencing systems were set up (Galanter, 1981).
These distinctions however, broke down over time and people would opt to bring their legal claims under the system that they felt would grant them the upper hand. When a situation occurs that there are different laws to govern different groups within a country that is also called legal pluralism. For example, in countries with majority of Muslims, there are special Islamic courts that deal with concerns in Muslim communities by following Islamic law principles. The secular courts address the issues of other communities. To a certain extent, legal pluralism also exists in societies where the legal systems of the native inhabitants have been recognized. For example, in Australia, a decision the Mabo gave acknowledgment to indigenous title and hence, rudiments of customary Aboriginal rule. Some parts of traditional native criminal law have also been accepted, more so in sentencing. In effect two parallel sentencing systems were set up (Galanter, 1981).
Legal pluralism is to be found is all
parts of the globe. In all social arenas that one may look at, there is seemingly
a variety of legal orders, be it from the lowest local level to the most open
global level. There exists village, town, or municipal, as well as, state,
district or regional laws of various types. There are also national,
transnational and international diverse laws. In most communities, there are also
foreign forms of law, like customary law, indigenous law, religious law, or law
connected to distinct ethnic or cultural groups within a society in addition to
these familiar bodies of law. Quasi-legal activities have evidently been on the
increase, be it the private policing and judging or the privately run prisons, or
even the ongoing formation of the new lex mercatoria. This is an organization
of international commercial law that is entirely the creation of private
law-making activities (Galanter, 1981).
Pluralism is not just that there are
multiple uncoordinated, coexisting or overlapping bodies of law. It is the fact
that there is diversity amongst them. These bodies may make challenging claims
of authority or they may inflict conflicting burdens or norms or they could
have dissimilar styles and orientations. This possible clash can cause
uncertainty for persons and groups in society who cannot be definite in advance
which legal regime will be practiced in their situation. Some persons and
groups within society use this state of conflict to opportunistically pick from
among coexisting legal authorities to advance their aims. Additionally, this
state of conflict presents a challenge to the legal authorities themselves
because it means that they have rivals. Characteristically, law claims to regulate
whatever it addresses. But the actuality of legal pluralism challenges this
claim. There exists another sense in which legal pluralism is all over the
place. In the precedent two decades, the idea of legal pluralism has turned
into a chief topic in legal anthropology and sociology, comparative and
international law, and socio-legal studies.
Legal pluralism started to be popular in
the academic world in legal anthropology in the 1970s. This was through studies
of law in colonial and post-colonial situations. Legal pluralism in that perspective
referred principally to the integration of traditional law norms or institutions
within state law. Else, it was defined as the independent coexistence of
indigenous norms and institutions alongside state law, whether or not formally recognized.
Legal pluralism became popular in socio-legal studies in the late 1980s, when well-known
scholars referred to it as ‘a core idea in the re-conceptualization of the
law/society relation.’ They also said it was the ‘key concept in a post-modern
view of law.’ Its popularity has since
then spread, getting into comparative law, political science, international
law, and legal philosophy (Griffiths, 1986).
However, in spite this clear success,
the concept of legal pluralism has been bombarded by profound conceptual
confusion and a strangely heated disagreement. The disagreement is due to many
factors, one of them being the fact that participants come from several
disciplines and bring diverse concepts and orientations to the topic. For
instance, an international lawyer who cites legal pluralism has something totally
different in mind from a legal anthropologist who talks about legal pluralism. Individuals
utilizing the concept also have diverse motivations and intent. It could be,
for example that, some are socio-legal theorists involved in developing a complicated
systematic approach to modern legal forms or maybe social scientists devoted to
developing a social scientific approach to law or even critical theorists who cite
the idea as a means to delegitimize state law, and some may be in search of a
useful way of framing complex situations for their own political purposes. The
literature citing the issue of legal pluralism is very broad, covering from
postmodernism issues, to auto poiesis, to human rights, to feminist approaches,
to customary law and international trade. Under these circumstances, its study
is inevitable for the development and modernization of legal systems (Moore,
1973).
Social scientists who flaunt the notion
of legal pluralism ardently assert that law is not constrained to official
state legal institutions. Quite the opposite, they are adamant that law is
found in the grouping of social groups of all kind. By taking this position the
legal pluralists are required to give some basis by which to establish or restrict
what is and what isn’t law. However, the question ‘what is law?’ has never been
resolved, regardless of countless efforts by legal theorists and social
scientists.
‘What
is Legal Pluralism?’ an article written in 1986 by John Griffiths is the influential piece in this
field. He introduced the concept of law that is accepted by nearly all legal
pluralists. Griffiths considered and dismissed several alternatives as insufficient.
He concluded that Sally Falk Moore’s idea of the semi-autonomous social field,
that is, social fields that contain the ability to create and implement rules,
is the most appropriate way to classify and restrict law for the purpose of
legal pluralism. There exists numerous rule creating fields in society. Therefore
there are many legal orders in society which include the family, corporations, factories,
sports leagues, and any social arena with social regulation. In a different significant
early hypothetical study of legal pluralism, published in 1983, Marc Galanter wrote:
‘By indigenous law I refer not to some diffuse folk consciousness, but to
concrete patterns of social ordering to be found in a variety of institutional
settings like in universities, sports
leagues, housing developments, hospitals.’
The study of legal pluralism in the
development and modernization of legal systems helps to distinguish between
social life and what should be law. The problem with the above approach, is
that calling all forms of ordering that are not state law by the term law
confounds the analysis. It is not clear when we stop speaking of law and start
describing social life. Social life is comprised of overlapping and reinforcing
rules. Hence it becomes a problem to distinguish indigenous law from social
life generally. Legal pluralists have struggled courageously but ineffectively
to conquer this dilemma. Gordon Woodman, the co-editor of the Journal of Legal Pluralism, wrote an
article covering almost twenty years of debate over the theoretical
underpinnings of legal pluralism, and concluded that legal pluralists are
unable to come up with a definite border to divide legal from non-legal
normative orders. Finally, Woodman concluded that law covers a scale which runs
from the clearest form of state law through to the vaguest forms of informal
social control. Likewise, Johns Griffiths also concluded that all social
control is more or less legal. A recent theorist
on legal pluralism has also suggested that law can be found in daily human activities
such as interacting with strangers on a public street, waiting in lines, and
communicating with subordinates or superiors at the workplace. This is
consistent with the previous conclusions of older legal pluralists. Although it
goes against common sense, nothing prohibits legal pluralists from interpreting
law in this unusually expansive, distinctive way. This is because, when interpreted
in these terms, almost all forms of norms governed by social interaction are
law.
An argument could be put forward against
this approach to legal pluralism; that law is just one form of normative or
regulatory ordering, while this approach reverses the relationship to suggest
that all normative or regulatory orders are types of law. This remark brings the notion that the new
discovery of legal pluralism is just putting a new label on the old idea. This
idea is that society is composed of a diversity of normative or regulatory
orders. The question then arises as to why should we call this legal pluralism rather than,
what appears to be more appropriate, normative
pluralism or regulatory pluralism.
A brief answer is that to view law in this way is perplexing,
counter-intuitive, and prevents a more keen analysis of the numerous diverse
forms of social rules involved. There are many more complexities to the idea of
legal pluralism, but those are the basic issues which have been known for
decades (Galanter, 1981).
In the most commonly referred article in
legal pluralist literature, ‘What is Legal Pluralism?’ Griffiths concluded with
finality that Legal pluralism is the fact. Legal pluralism is a trait which can
be predicated for a social group. It is a social state of affairs, not the name
of a doctrine or a theory or an ideology. Even so, the concept of legal
pluralism continues to broaden. Hence, when developing a legal system for a
society or a community, it has to be considered in detail.
Despite
its irresolvable conceptual issues, the concept of legal pluralism is enticing.
This is due to the fact that varied, opposing and overlapping legal guidelines
in diverse types and forms appear to be all over and multiplying. It then
implies that Griffiths was right in concluding that legal pluralism is a fact.
Where Griffiths was mistaken, however, was in thinking that law could be
formulated as a scientific group. Law can be termed as a ‘folk concept’. That
is, law is what citizens comprising social groups have come to observe and term
as ‘law’. Law could not be created in terms of one scientific group because in
the course of time and in diverse places individuals have seen law in dissimilar
conditions. A good example of law is the state law, but at various times and
places, including today, people have considered other forms of law. These other
forms may be international law, customary law, religious law, the lex
mercatoria, the ius commune, natural law and more. These different representations
of law do not all share the same fundamental characteristics except the claim
to stand for rightful normative authority. This implies they cannot be classified
to one set of rudiments for social scientific purposes (Griffiths, 1986).
References
Galanter,
M. (1981) Justice in many rooms: courts, private ordering, and indigenous law. Journal of Legal Pluralism, 19, 17-8.
Griffiths,
J. (1986) What is legal pluralism? Journal of Legal Pluralism, 24, 1-55.
Moore,
S F. (1973) Law and social change: the semi-autonomous social field as an
appropriate subject of study. Law & Society Review, 719, 23-6.
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