Legal Pluralism

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).

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).