Legal Pluralism: Theory, Phases & Living Law Explained

[00:00:00]paper is the philosophy of law the current module is on legal pluralism the objectives of this module are to understand what legal pluralism is and how it developed over time the module was written by Mustafa yayali from the seher University in Istanbul I'm Akash Singh rathore from Lewis University of Rome the idea of legal pluralism immediately confronts us with a conceptual problem there are two main difficulties in understanding it legal pluralism is a concept in its infancy and it needs to be developed it hasn't yet been systematically or fully developed by legal theorists this means that we have some inconsistencies and incoherences in the outlooks of the concept but given time these can be overcome the second problem is that legal pluralism is an anomaly that is it's a concept that is developed against the ruling conception of law what we actually mean by the concept of law gets challenged by the idea of legal pluralism and in that respect certain people see legal pluralism as representing a kind of paradigm shift in the conception of Law and jurisprudence one way to understand legal pluralism is that as defined in an article the Janus faced character of legal pluralism there it's suggested that legal pluralism has a double-faced character that's so this is what makes it attractive to postmodern jurists like the old Roman God Janus the guardian of gates and doors beginnings and ends with two faces one on the front and the other at the back of his head legal pluralism means that it is at the book both at the same time social norms and legal rules law and Society formal law and informal law rule-oriented and spontaneous and the relations between the legal and the social in legal pluralism are highly ambiguous almost paradoxical separate but intertwined autonomous but interdependent closed but open so as we see legal pluralism is known for a diffuse and complex amount of definitions which makes the concept ambiguous and therefore completely inappropriate at present to be employed normatively in other words as the dominant conception of the nature of law the reason for this hazy conceptual development is that the scientific inquiry into unofficial legal systems has changed over time the scientific Studies have reflected the political and institutional changes across primarily colonized country colonized countries but um more increasingly it's recognized also at the center for example the kind of plural systems that are experienced right in the heart of Europe we'll start to discuss all of these emerging conceptions through what we refer to as five different phases in the evolution of the concept of legal pluralism so let's begin with the first one we'll refer to this as malinowsky named after the Anthropologist malinowsky and the colonial discourse this is the first phase of the emergence of an idea of legal pluralism which occurs in the 1920s the first anthropological inquiry into the unofficial legal systems emerged with branislav malinowski's studies on the customs of certain tribes in Micronesia in this study obviously an anthropological study malinowski reflected on how systematized the customs of like of the tribes within Micronesia were how these Customs had been practiced and how you could find a self-emerging self-regulatory governance system in other words there were no imposed state laws regulating the activities of these of these tribes in Micronesia all of the governance was self-governance and this system of what we could call laws or Norms emerged from within the practices of the tribe itself despite this interesting Discovery it was nothing more than an anthropological observation which was difficult to put into any abstract theoretical far-reaching analytic or scientific conclusion after all these are just observations the first attempt to move into more General theoretical propositions about these observations are characterized as the second phase in the emergence of the concept of legal pluralism we refer to this as hybrid legal systems in colonized countries and the writings on this really emerged from the 1930s to the 1960s the second phase was characterized by exposing how Colonial legal systems intermingled with tribal or native or indigenous customary or religious law so you realize that as the colonizing countries went and colonized various countries in the global South all of the countries that they colonized had pre-existing systems of norms some legal systems some tribal customs and so on but the colonial rulers imposed their own set of laws and so here we see a hybrid legal system one of the colonizers colonial set of laws and the other what those Colonial laws were superimposed onto so this is an understanding of legal pluralism in the sense of the overlap of colonial law with the indigenous law anthropologists like possible herbal hooker and Jude Starr did their research on how customary religious law interacted with the colonized legal system so these studies finally led to certain theoretical conclusion in which legal systems were seen as legal levels possible called them legal levels and what these legal levels denoted was the gradation in the way that one legal system stands opposed to other legal systems another aspect of this second phase which still emerges out of this colonial period but the writing begins in the 70s and 80s is when the former colonizers realized that this tiered multi-level system wasn't something that simply happened abroad wasn't something that simply happened in the colonies but was something that was happening within Europe itself so there's a transitionary period represented by Sally Falk Moore that's referred to as the semi-autonomous social field and I'll read what more has to say about this semi-autonomous social field is a social unit that can generate rules and customs and symbols internally but that it is also vulnerable to rules and decisions and other forces emanating from the larger World by which it is surrounded the semi-autonomous social field has rule-making capacities and the means to induce or coerce compliance but is simultaneously set in a larger social Matrix which can and does affect and invade it sometimes at the invitation of persons inside it sometimes at its own instance the analytic problem of fields of autonomy exists in tribal Society but it is an even more Central analytic issue in the social anthropology of complex societies all the nation states of the world knew and old are complex Societies in that sense what we see happening in the 1970s and 80s as a result of this sort of position that Sally Moore takes is that this intermingling this hybridity of semi-autonomous social fields is universal in other words we've always been thinking in terms of the colonizer colonized as being the way that legal systems get overlapped but the fact remains that even in the center the colonizing countries uh internal to those countries themselves like uh France or the UK there's already been a process of state law imposing itself and pushing out the customary practices of Village communities and other sorts of social organization inter-social movements lead to a process of social integration whereby different social structures try to integrate in the existing urbanized social structure so her argument is that in the urban uh urbanized colonizing countries like the UK or France the process of integrating customary and religious practices occurred at the same time as the process of urbanizing those communities so whereas in a country like India at the period that we're talking about 90 percent of the population lived in outlying rural areas in countries like the UK or France that number was far far less and decreased radically over time in the process of the urbanization of the population we witnessed the process of the assimilation of customary religious and Alternative forms of law to the the main normative order of state law the norm or state law progressively assimilates various social Alternatives so what this gives us is a picture of legal pluralism that is vertical in other words all of the other forms of law assimilate upwards or under the umbrella of this notion of state law there is however another way of viewing legal pluralism and we'll get into that in phase three so throughout the early phases phase one and phase two the majority of research related to legal pluralism arose not from jurisprudence political science or law rather it began in malinowsky and anthropology and for many decades it existed within the realm of anthropological and sociological research it's only with phase three in the 80s and 90s when political scientists political theorists and legal theorists begin to take up this concept of legal pluralism Francis Snyder was one of the first who realized that legal pluralism is quite a relevant concept considering that the European Union was in a process of operating simultaneous rival legal systems so in the largest sense you could think of the way that the EU comprised two fundamental opposite ways of doing law the common law system of the UK and Ireland and the civil law system of Continental Europe that which was promulgated by Napoleon and spread through Europe with the Napoleonic invasions and Wars so Europe is predominantly a civil law system the UK is and the English-speaking world is predominantly a common law system but the European Union was supposed to be one uniform giant legal structure so it's already merging two different kinds of conceptions of law in addition to this merging of two kinds of exceptions internally there is also the layered approach in the sense that the European Union itself the commission and the parliament make EU law and that EU law has to be adopted by each of the member states so in the 1980s we can say there were there was a transition from six to ultimately in the 90s and later 15 and now of course 25 more States but at this time what we're seeing is Major countries like France Germany Holland Italy the UK major members of the European Union have to adopt EU legislation and integrate it into their own nation-state law so once again we see another element of a kind of pluralism at home in other words in the center not in the colonized world in addition to this European perspective what we found was that all of the world's country countries the all of the nations of the world were in undergoing a similar process with respect to the WTO World Trade Organization and other international trade regulations international criminal court and the production of jurisdictions that transcended the nation-state so with globalization and the international order in what are called the Bretton Woods institutions for example the IMF the international monetary fund the World Bank and so on all of these Global institutions or transnational institutions impose their own Norms standards and eventually law that have to be integrated into nation-state law of all of the countries of the world so we see in the 80s and 90s a far wider way of understanding how legal pluralism which first arose just from an anthropologist studying a tribe in in Micronesia where he realized that there were many different ways to organize law and some of them were in contradiction to the main conception of nation-state law like the austinian conception which we'll discuss momentarily what started out as merely an anthropological exercise with one Anthropologist in the early part of the 20th century observing a tribe in Micronesia and realizing that there were many ways that laws could be arranged and could be organized not just nation-state law according to the dominant conception which we call austinian which we'll be discussing shortly from that small empirical study over the next several decades it it became it became clear to lawyers Juris political philosophers that the entire world was undergoing processes of the pluralization of its legal systems whether these were at the merge merging of civil and common law jurisdictions whether it was at the regional level with European institutions making law that needed to be implemented and made consistent or harmonized with nation-state laws within the European order or whether it was transnational international law like the laws of the WTO or the IMF that need to be integrated into the nation-state law of every nation that participates in the United Nations organizations so we've gone from a little village observation to seeing that the whole world can be explained as undergoing processes of the pluralization of its legal systems so as we continue realizing all of these new ways that we can understand pluralism from Center to periphery periphery to Center transnational to nation state Regional to nation state and civil and common so there are numerous ways to understand that the plurality of our legal norms all of this sort of hybridity that we can see now as operating as what we call law tells us that Norms do not only derive in some hierarchical structure top down but there are also alternative ways of seeing the production of norms in other words we can see the vertical plane we can also see a horizontal plane so we see two directions of conceiving this issue one is horizontal where there are several simultaneous sources of law each operating at the same plane so now we move on to the fourth phase which again is under undergoing in the 1980s 1990s and we're going to come to the fifth stage is where we find ourselves today but the fourth stage elements of the fourth stage are still important because these ideas from the 1980s and 1990s still influence a great number of people today one of the most articulate spokesman on the side of legal pluralism in the 1980s 1990s was John Griffiths and let's hear what he has to say he what his concept of legal pluralism is in the legal centralist conception law is an exclusive systematic and unified hierarchical ordering of normative propositions which can be looked at either from the top downwards as depending from a sovereign command or from the bottom upwards as deriving validity from ever more General layers of norms until one reaches some ultimate norms so what we see here in Griffith's articulation is the vertical conception of course he's challenging the austinian prerogative by the bottom-up law but he's still associating the legal system on the vertical level um the alternative would of course be to see the floor the manifestations of plural sources of law on an equal plane but Griffith doesn't um doesn't accept or present that as his model of legal pluralism Griffith's model of legal pluralism has been criticized very uh astutely by a philosopher of law who represents the fifth and in some sense the Final Phase that we're going to be discussing today the fifth phase of legal pluralism his name is tamanaha now Griffiths established his conception of legal pluralism against legal centralism in order to counterbalance the Monopoly of legal thought by legal centralism in the western world as we know the austinian conception of law state law occupying all the sources of law within society and any rival is eventually either assimilated or illegalized pushed out this is the dominant conception of law in most of the world not just the Western World in the modern world Griffiths wants to fight against this centralization conception and that's why he introduced the bottom-up sources of law however tamanaha's problem is not with with his attempt to fight against the central conception of law tabernacle's problem is that in adopting this vertical conception Griffiths is in a way giving in to the central conception of law so tamanaha wants to introduce a completely different way of understanding the sources of Law and in that respect a different way of understanding legal pluralism altogether according to tamanaha Griffith's account is based on a romanticized and retrieved theory of law which defines law as a framework of rules informal and hierarchical settings in other words somewhat of an austinian conception what tamanaha proposes is what we know of as the malinowsky problem the malinowski problem is a problem that is named after the Anthropologist malinowsky who was the first to investigate these issues that we now see as foundational to understanding legal pluralism the malinowski problem basically suggests that if we see the sources of law as being socially organized Behavior then we completely blur law and society and we make it indistinguishable to understand what the difference is between a state legal norm and a social custom or Norm in fact as tamanaha points out if we ground law as socialized organized Behavior then even a handshake is law after all we all do it we're all compelled to do it we're internally compelled but still we're compelled in order to practice good behavior to shake hands and so on so the malinowski pro Paradox is that if you take that approach then even a handshake is lost so we've blurred all of our understandings of law through the attempt to pluralize our conception of the sources of law in legal pluralism so now we move on to the corrective approach that tamanaha intends to take and he refers to it as a non-essentialist version of Law and he thinks that this non-essentialist version of law will solve some of the problems of the previous conceptions of law and the attack against the central law that is the Paradigm Shift represented by legal pluralism so this gets us into the fifth and as I said Final Phase of legal pluralism to the acknowledgment that legal pluralism can't be defined as a concept another attempt is made by tamanaha to solve the problem of legal pluralism the the problem that legal pluralism exposes and tries to explain so tamanahas proposes an entirely alt alternate method of approaching this problem he says that until now all the conceptions of law have been understanding law from the perspective of the state in other words what is the law according to lawmakers and according to the institutions that generate law his his contribution is to suggest why don't we turn to the perspective of the individual how does the individual experience various Norms irrespective of where they arise and at which moment does the individual refer to those Norms as law so what does a family or a person refer to as law and what does a family or a person refer to as custom irrespective of what the state calls law because obviously we know what the state does and wants to call law the state wants to monopolize colonize the entire life world of social life by its laws but people don't necessarily experience the law the same way that the state does so how does this non-essentialist version of law play out let me quote from tamanaha the approach I suggest draws from the existing social views of law so such conflicts will not routinely arise under my account the normative relations within the family will be considered law only if the people within the social Arena conventionally characterize them in terms of law this approach is based upon the recent interpretative turn in social theory and the social sciences which insists that greater attention and respect be paid to the meaningful orientations and categories of ordinary social actors tamanaha's innovation by accepting the recent change in social theory more broadly in the way to solve the dilemmas of the ambiguous definitions of legal pluralism and the malinowsky Paradox and so on that has led to recent renewed interest in Eugene erlich's idea that's referred to as living law now the concept of living law denotes the fact that Norms are derived from certain social institutions like marriage contracts divorce a number of Institutions that we routinely engage in that's where we get an experience normative orders in the operation of things if we're acting without resistance or without some felt need to conform to certain standards the individual doesn't really have experience of the law it's only in such organized social behavior like marriage and so on when we come face to face with the law any legal Norm that constitutes a determinant factor in the establishment of such an institution has to be considered as a law or a valid Norm now realize that we can easily conceive of normative orders without state law in fact historically the nation-state arose somewhere between the 16th and in the colonized world the 20th centuries so over the last 400 years but we've had normative orders we've had legal communities we've had human life for a hundred thousand years before this period now obviously the last hundred thousand years of human prehistory and history has been organized social life so there have been what we can call normative orders and we could even refer to them as legal systems if we don't adopt the status view the austinian view that the legal system is only pumped out by the state apparatus the state apparatus has only been around for a few hundred years so let's sum up all of these different phases of legal pluralism and what we get to as a result at the end of the fifth phase which is the phase where the research on legal pluralism stands today legal pluralism is a theory founded by anthropologists basically with the aim of analyzing the normative orders of merely tribal communities however legal pluralism isn't really suitable to be adopted as a strong normative concept since it lacks analytical and an Institutional framework it's not as though any institution is in the process of creating plural legislation rather each institution produces law so legal pluralism is one step removed noticing that several competing or rival institutions are producing competing or rival conceptions of the law legal pluralism does exemplify the existence of alternative normal CIS normative systems but not through the institutional framework that accommodates and maintains the normative system therefore in order to adopt a more comprehensive theory of legal pluralism it might be necessary and more adequate to apply the concept that is known as living law thank you