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Custom Made—For a Non-chirographic Critical Legal Pluralism

Published online by Cambridge University Press:  02 January 2013

Roderick A. Macdonald
Roderick A. Macdonald
Affiliation:
Faculty of Law,McGill University, President, Royal Society ofCanada, [email protected]
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Abstract

Contemporary shifts in legal pluralism theory (from weak, intra-state pluralism to strong, extra-state pluralism and from socio-scientific to critical legal pluralism) have raised important new questions about law as a normative phenomenon. This article argues for the significance of implicit and inferential legal norms. It begins by considering a movement of thought—evangelicalism—that subordinates the implicit and informal to the explicit and authorized. The essay then outlines the principal features of a non-chirographic legal pluralism and explores how regimes of written rules are consistently made over by those whose conduct they are presumptively meant to govern.

Résumé

Les développements récents dans les théories du pluralisme juridique (le passage du pluralisme intra-étatique vers un pluralisme extra-étatique et le passage d'un pluralisme socio-scientifique vers un pluralisme juridique critique) posent de nouvelles questions concernant la nature du droit en tant que phénomène normatif. Cet essai prône l'importance de la normativité implicite et inférentielle. Il discute une tendance théorique moderne—évangélisme—selon laquelle l'implicite et l'informel doivent nécessairement être subordonnés à l'explicite et au formulé. L'essai se termine en élaborant une conception non-chirographaire du pluralisme juridique et démontre comment dont les normes écrites sont constamment modifiées par ceux et celles dont l'action est visée par ces normes.

Keywords

critical legal pluralismimplicit and inferential normschirographismcustomlegal agencypluralisme juridique critiquenormativité implicite et inférentiellechirographismecoutumelibre arbitre juridique
Type
Research Article
Information
Canadian Journal of Law and Society / La Revue Canadienne Droit et Société , Volume 26 , Issue 2 , August 2011 , pp. 301 - 327
Copyright
Copyright © Canadian Law and Society Association 2011

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References

1 I use the word chirographic to signal any approach to legal theory that holds that law is primarily (if not exclusively) about norms (policies, principles, rules, concepts) that can be, and usually are, fully expressible in written words arranged discursively. For further development of the idea see below at Part 2, text at notes 27 et seq., and Part 5.

2 I derive this particular formulation of the general contours of a pluralist epistemology from my colleague Victor Murñz-Fraticelli, for whose insight I am most grateful. I have slightly adapted the initial formulation for application to legal pluralism. On the initial framing of the distinction between “strong” and “weak” versions of legal pluralism (only the former of which I consider in this essay), see Griffiths, John, “What Is Legal Pluralism?” Journal of Legal Pluralism and Unofficial Law 24 (1986), 1CrossRefGoogle Scholar.

3 Simpson, James, Burning to Read: English Fundamentalism and Its Reformation Opponents (Cambridge, MA: Belknap Press, 2007)CrossRefGoogle Scholar. Kermode, Frank's review, “Wars over the Printed Word,” New York Review of Books 54, 19 (6 December 2007), 50Google Scholar, is the source of many ideas developed in the following paragraphs.

4 Of course, it was exactly this understanding that led to the work of William Tyndale and Thomas Cranmer in the early sixteenth century, prefiguring the “King James” version of the Bible in vernacular English in 1611. See Black, M.H., “The Printed Bible,” in The Cambridge History of the Bible, vol. 3, ed. Greenslade, S.L., 408–75 (Cambridge: Cambridge University Press, 1963), 429CrossRefGoogle Scholar.

5 This reframing of the source of secular authority was, of course, the ambition of Hobbes, Thomas, Leviathan (1651; reprint, Oxford: Clarendon, 1909)Google Scholar.

6 Luther, Martin, Three Treatises, trans. Jacobs, C.M., Steinhaeuser, A.T.W., and Lambert, W.A. (Philadelphia: Fortress Press, 1960), 193Google Scholar.

7 For a general discussion of the first and second great awakenings, see Carwardine, R.J., Evangelicals and Politics in Antebellum America (New Haven, CT: Yale University Press, 1993)CrossRefGoogle Scholar.

8 See Putman, J.H., Edgerton Ryerson and Education in Upper Canada (Toronto: Briggs, 1912)Google Scholar.

9 Newman, John Henry, Apologia pro vita sua (1864; reprint, New Haven, CT: Yale University Press, 2008)Google Scholar.

10 Carter, Jimmy, Our Endangered Values: America's Moral Crisis (New York: Simon & Shuster, 2005)Google Scholar.

11 The paradox, of course, is that fundamentalist evangelicals are among the Christians most reliant on preaching by official preachers (Pentecostalism) to guide their “literal” interpretation.

12 Perhaps the most ardent defender of the centrality of written constitutional text as self-sufficient at this point was Paine, Thomas, Common Sense, Rights of Man, and Other Essential Writings of Thomas Paine (New York: Signet Classics, 2003)Google Scholar. I do not discount the Magna Carta, the 1688 Bill of Rights, or the 1701 Act of Settlement in England as constitutional artefacts, but the precise words of these texts are no longer canonical. Alone among the states of western Europe and their colonial offspring, the United Kingdom has retained what can plausibly be called a “common law constitution.” For elaboration see Walters, Mark D., “Written Constitutions and Unwritten Constitutionalism,” in Expounding the Constitution: Essays in Constitutional Theory, ed. Huscroft, Grant, 245–76 (Cambridge: Cambridge University Press, 2008), 245CrossRefGoogle Scholar; Walters, Mark D., “The Common Law Constitution in Canada: Return of Lex Non Scripta as Fundamental Law,” University of Toronto Law Journal 51 (2001): 91–150CrossRefGoogle Scholar.

13 For a further examination of this development in the private law and its consequences see Macdonald, R.A., “European Private Law and the Challenge of Plural Legal Subjectivities,” The European Legacy 9 (2004): 55–66CrossRefGoogle Scholar.

14 I leave aside for the purposes of this paper whether Latin American liberation theology provides a counterpoint to legal evangelicalism in its explicit recognition of the power of rite, ritual, and action in the construction of normativity. After all, the central resources of liberation theology are those of the Church; the focus of legal evangelicalism on unmediated biblical contemplation denies a role to these institutional resources. See Lohfink, Norbert F., Option for the Poor: The Basic Principle of Liberation Theology in the Light of the Bible (Berkeley, CA: Bibal Press, 1987)Google Scholar.

15 For elaboration see Max Weber on Law in Economy and Society, trans. Rheinstein, M. and Shills, E. (Cambridge, MA: Harvard University Press, 1954), 64ff.Google Scholar

16 This characterization of Weber's concept of rationality is derived from Kronman, A., Max Weber (Palo Alto, CA: Stanford University Press, 1983), 72–95Google Scholar.

17 By “existing conceptual structure” I mean at once the internal logic of a piece of legislation (say a Bankruptcy Act), the internal logic of an entire field of private law (as represented, say, in a Civil Code), and the conceptual structure of the legislative enterprise (in the sense of Lon Fuller's eight canons of the internal morality of law). Hence, what I call statutory ukases pay little attention either to internal conceptual fit or to the idea of legislation as relatively stable norms meant to facilitate self-directed human action and interaction. For development, see Macdonald, R.A. and Kong, H., “Patchwork Law Reform: Your Idea Is Good in Practice, But It Won't Work in Theory,” Osgoode Hall Law Journal 44 (2006): 11–52Google Scholar.

18 Of course, I acknowledge that once an external metric has been incorporated into the common law (as in the Learned Hand test in the law of torts) or into the interpretive structure of a statute (the measure of a proceeds claim under the Personal Property Security Act) or a constitution (the Oakes test in Charter interpretation), this metric will be as constraining upon judges as such internally generated conceptual notions as “the reasonable person.”

19 For an interpretation of the historiography of legal pluralism see Kleinhans, and Macdonald, , “What is a critical legal pluralism,” 29–34Google Scholar. See also Merry, S.E., “Legal Pluralism,” Law and Society Review 32 (1988), 869CrossRefGoogle Scholar; Moore, Sally Falk, “Certainties Undone: Fifty Turbulent Years of Legal Anthropology, 1949–1999,” Journal of Royal Anthropology Institute 7 (2001), 107Google Scholar; Davies, Margaret, “The Ethos of Pluralism,” Sydney Law Review 4 (2005), 27Google Scholar; and Sharafi, Mitra, “Justice in Many Rooms since Galanter: Deromanticizing Legal Pluralism through the Cultural Defense,” Law and Contemporary Problems 71 (2008)Google Scholar.

20 Romano, Santi, L'ordre juridique (Paris: Dalloz, 1975)Google Scholar; Arthurs, H.W., Without the Law (Toronto: University of Toronto Press, 1985)Google Scholar.

21 Woodman, G., “Legal Pluralism and Justice,” Journal of African Law 40 (1996), 152CrossRefGoogle Scholar; de Sousa Santos, B., Toward a New Common Sense: Law, Science and Politics in Paradigmatic Transition (New York: Routledge, 1995)Google Scholar.

22 See, notably Tamanaha, B.Z., Realistic Sociolegal Theory (Oxford: Clarendon Press, 1997)Google Scholar; Tamanaha, B.Z., A General Jursiprudence of Law and Society (Oxford: Oxford University Press, 2001)CrossRefGoogle Scholar.

23 The point is nicely developed in Jutras, D., “Legal Dimensions of Everyday Life,” Canadian Journal of Law and Society 16, 1 (2001), 45CrossRefGoogle Scholar.

24 Macdonald, R.A., “Recognizing and Legitimating Aboriginal Justice: Implications for a Reconstruction of Non-Aboriginal Legal Systems in Canada,” in Aboriginal Peoples and the Justice System (Ottawa: Royal Commission on Aboriginal Peoples, 1993), 232Google Scholar.

25 Belley, J.-G., “Le pluralisme juridique de Roderick Macdonald: une analyse séquentielle,” in Théories et émergence du droit: pluralisme, surdétermination et effectivité, ed. Lajoie, A. et al. (Montreal: Thémis, 1998)Google Scholar; Coutu, M., “Juridicité et normativité dans la théorie sociojuridique de R.A. Macdonald,” Revue générale de droit 28 (1997), 337CrossRefGoogle Scholar.

26 In making this claim, I do not also mean to assert that those who hold to critical legal pluralist hypotheses do not ground their ideas in claims or assumptions about the “nature of human beings” as endowed with agency, or about the “nature of human society” as not being a war of all against all. See Kleinhans and Macdonald, “What is a critical legal pluralism?”; Macdonald, R.A., “Critical Legal Pluralism as a Construction of Normativity and the Emergence of Law,” in Théories et émergence du droit: pluralisme, surdetermination, effectivité, ed. Lajoie, A. et al. (Montreal: Thémis, 1998), 12Google Scholar; Macdonald, R.A., “Metaphors of Multiplicity: Civil Society, Regimes and Legal Pluralism,” Arizona Journal of International and Comparative Law 15 (1998): 69–91Google Scholar; Macdonald, R.A., “Here, There … and Everywhere: Theorizing Legal Pluralism; Theorizing Jacques Vanderlinden,” in Étudier et enseigner le droit: hier, aujourd'hui et demain—Études offertes à Jacques Vanderlinden, ed. Kasirer, N., 381–413 (Montreal: Yvon Blais, 2006)Google Scholar. In the past fifteen years other scholars have taken up similar approaches to legal pluralism, typically resting on similar assumptions about human agency and the possibilities of social life. See, notably, Vanderlinden, Jacques, “Return to Legal Pluralism—Twenty Years Later,” Journal of Legal Pluralism and Unofficial Law 28 (1991), 149Google Scholar; Vanderlinden, J., “Vers une nouvelle conception du pluralisme juridique,” Revue de recherche juridique (1993), 573Google Scholar; Vanderlinden, J., “Trente ans de longue marche sur la voie du pluralisme juridique,” Cahiers d'anthropologie du droit (2003), 21Google Scholar; Davies, Margaret, “Pluralism and Legal Philosophy,” Northern Ireland Legal Quarterly 57 (2006), 577Google Scholar; Melissaris, Emmanuel, “The More the Merrier? A New Take on Legal Pluralism,” Social and Legal Studies 13 (2004), 571CrossRefGoogle Scholar; Melissaris, E., Ubiquitous Law: Legal Theory and the Space for Legal Pluralism (Farnham, UK: Ashgate, 2009)Google Scholar.

27 For a summary presentation of these tenets see Macdonald, R.A. and Sandomierski, D., “Against Nomopolies,” Northern Ireland Legal Quarterly 57 (2006), 610Google Scholar; and R.A. Macdonald, “Pluralistic Human Rights; Universal Human Wrongs” (conference paper delivered on 12 October 2006; on file with author).

28 Together they comprise the core of twentieth-century analytical jurisprudence as propounded by Hans Kelsen (see, e.g., Kelsen, H., The Pure Theory of Law (Berkeley, CA: Stanford University Press, 1967)Google Scholar, H.L.A. Hart (see Hart, H.L.A., The Concept of Law (Oxford: Clarendon, 1961; (2nd ed., 1994)Google Scholar, and Hart's followers (see, e.g., Gavison, R., Issues in Contemporary Legal Philosophy: The Influence of H.L.A. Hart (Oxford: Clarendon, 1987)Google Scholar). I acknowledge that there is nothing in Hart's version of analytical jurisprudence that requires acceptance of the first and second tenets, although invariably adherents do adopt them. For example, Hart never claimed that the normative regime of the Roman Catholic Church could not be a legal system; nor did he adopt Kelsen's normative monism. I also acknowledge that in recent years, many analytical jurists have seriously attenuated Hart's separation thesis, which purportedly serves as the positivist litmus test; see notably Raz, J., The Authority of Law: Essays on Law and Morality, 2nd ed. (Oxford: Oxford University Press, 2009)Google Scholar. In like fashion, it is not necessary for analytical jurists to hold to the chirographic commitment and to claim language as the exclusive (or even necessary) vehicle of legal normativity. Nonetheless, prescriptivism seems to be an essential feature of analytical orthodoxy. (It is, to be sure, an orthodoxy of other approaches as well. For example, social-scientific legal pluralists typically take this view of each of the competing legal orders they acknowledge, discounting the constitutive character of discrete human interaction and focusing on the role of “social norms.”) In the prescriptivist hypothesis there are authorized rules of the legal system exclusively enacted and administered by authorized officials, and there is the “rest of the world” upon which these authorized rules and these authorized officials operate: see Adams, W.A., “‘I Made a Promise to a Lady’: Critical Legal Pluralism as Improvised Law in Bitffy the Vampire Slayer” (unpublished essay, 2010)Google Scholar.

29 For further elaboration see Macdonald, R.A., “Unitary Law Re-form, Pluralistic Law Re-Substance: Illuminating Social Change,” Louisiana Law Review 67 (2007), 1113Google Scholar.

30 I acknowledge that legal theorists sometimes distinguish their differing positions by the content they give to the word “norm.” An analytical positivist, for example, might hold that law comprises rules and decisions, whereas a pragmatic positivist (legal realist) might hold that law comprises ex post predictive summaries of judicial decisions, and a sociological jurist might hold that law comprises rules, decisions, principles, policies, and practices. For present purposes, nothing turns on these definitional differences. My focus, rather, is on how jurists conceive the written word as expressive of norms, and not on the character or scope of the written norms that are to be considered as legal.

31 Admittedly, the rites and practices in local Catholic churches (the congregation or collegium) can generate or facilitate interactive normativity, and do not necessarily yield coercion. Even highly prescribed rituals such as the sacraments have different normative saliencies when practiced in Mary Queen of the World Cathedral in Montreal and in a slum in Managua. The distinction I am drawing relates to the “necessity” of official Church practice—of whatever political or social extroversion—for salvation.

32 For an application of this idea to the judicial function, see Solum, L., “Virtue Jurisprudence: An Aretaic Theory of Law” (unpublished essay, October 2004)Google Scholar. In a legal pluralistic conception, everyone is a law-maker and a law-applier, but some actually are in authority by virtue of their wisdom. The manifestly foolish human being, interacting with others, is a law-maker and a law-applier, but no one accepts her or his actions as authoritative; by contrast, the wise human being, engaged in the same activities, can be taken to be an authority, and other human beings—even as agents—will defer to her or his understandings. See also Macdonald, R.A., “Triangulating Social Law Reform,” in Dessiner la société par le droit, ed. Gendreau, Y., 119–52 (Montreal: Thémis, 2004)Google Scholar.

33 Macdonald, R.A., Lessons of Everyday Law (Montreal: McGill- Queen's University Press, 2002)Google Scholar.

34 I have attempted to explore how these diverse symbols play a complementary role to language in Macdonald, R.A., “Legal Bilingualism,” McGill Law Journal 52 (1997), 119Google Scholar, and in Macdonald, R.A. and Kehler-Siebert, C., “Orchestrating Legal Multilingualism,” in Jurilinguistics: Between Law and Language, ed. Kasirer, N. and Gémar, J.-C. (Montreal: Thémis, 2005), 377Google Scholar. The central point is that human beings have a rich array of artefacts for inter-subjective communication, each of which (assuming that we have sufficiently developed our capacity to deploy them) is capable of the same expressive nuance as words.

35 Oxford English Dictionary [OED], s.v. “chirographic.” In civil law states, a “chirographic creditor” is a creditor whose claim is witnessed by an informal writing as opposed to, for example, a notarial deed. In both cases, the writing stands for the claim, although the informal writing of the parties bears a closer relationship to “law-creating” agency than the state-imposed formalism of the latter.

36 Govier, T., Dilemmas of Trust (Montreal: McGill-Queen's University Press, 1997)Google Scholar.

37 I do not claim that in human affairs there is likely to be a stable state in which each of us can confidently go about or activities confident both about our own behaviour and motivations and about the behaviour an d motivations of others. We all constantly seek reassurance against the unknown. Moreover, the aversion to uncertainty manifests itself in numerous other mechanisms by which human beings seek security in relationships: a financial bond, the offering of a hostage, the surrender of arms, self-denial in the mob, and, in the Hobbesian universe, deference to a sovereign. Seen in this light, the use of a text as a surrogate for security is not to be disparaged.

38 I use the words “the ambition to …” advisedly. Lon Fuller once characterized law as the “enterprise of subjecting huma n conduct to the governance of rules” (The Morality of Law (New Haven, CT: Yale University Press, 1964), 106)Google Scholar. In my view this characterization could be improved were it framed as the “enterprise of symbolizing human conduct as governed by rules” (Macdonald, , “Here, There and Everywhere,” 393Google Scholar.) While Fuller could be read as acknowledging that the central “subjection” in his understanding is self-imposed, the claim has usually been understood as prescriptivist, a position that directly contravenes his basic epistemology (Fuller, , “Human Interaction and the Law,” American Journal of Jurisprudence 1 (1969), 3Google Scholar; Fuller, , “Law as a Means of Social Control and Law as a Facilitation of Human Interaction,” Brigham Young University Law Review (1975), 85.Google Scholar)

39 See http://www.lords.org/laws-and-spirit/laws-of-cricket/laws/

40 See ibid.

41 James, C.L.R., Beyond a Boundary (Durham, NC: Duke University Press, 1993)Google Scholar.

42 I am aware, of course, that debate about the Spirit of the Game long antedated James's novel. Indeed, perhaps the most egregious example of pushing the limits of fair play was not a colonial contrivance but was indigenous to England. The bowlers on the English team touring Australia for the “Ashes” competition in 1932–1933 were ordered by their upper-class captain to deploy a technique called “bodyline bowling” in order to intimidate Australia's superb batsman, Donald Bradman. This episode produced, in 1935, a substantive amendment to Law #42, which thereafter stated, “The bowling of fast short pitched balls is dangerous and unfair if the umpire at the bowler's end considers that by their repetition and taking into account their length, height and direction they are likely to inflict physical injury on the striker …” For an account of the controversy, and its class implications for the “lower-class” English bowler who refused to recant and apologize, see Frith, D., Bodyline Autopsy (Canberra: ABC Books, 2002)Google Scholar.

43 See http://www.youtube.com/watch?v=s-QT191J7nI. This documentary at no point contains a voice-over narrative explaining the game. The viewer unfamiliar with the object of the game, its strategy, and its tactics would have little understanding either of what was going on or of why any of the particular scenes included in the documentary were deemed to be worthy “highlights.”

44 See http://www.youtube.com/watch?v=FbyiPs53nJw. In this film, an isolated fishing community on the Gulf of St. Lawrence attempts to induce a doctor to open a practice by pretendin g that cricket (of which the doctor is a fanatic partisan) is popular with residents. Having studied the rules of cricket an d watched the game on the Internet, the residents are able to put on a mock game, dressed to the nines, which from a distance looks like cricket, even though the village players have no understanding of the motions they are performing.

45 See http://www.youtube.com/watch?v=7aZsHRLlsWE. Here the setting is indigenous resistance to British colonialism in late-nineteenth-century India, an d features the appropriation of the colonizer's game (and its cultural subtext) as a vehicle for an alternative cultural assertion. The recent film Invictus is of the same genre. Although played within the rules and the spirit of the rules, the game depicted is less about the spirit of rugby than about the politics of reconciliation in South Africa.

46 See http://www.youtube.com/watch?v=0jTP7a9I0dU. This 1950s documentary shows how the spirit of a game (perhaps particularly a team sport) can be detached from the spirit of its rules and incorporated into the performance of a cognate team activity. The Spirit of Cricket is abstracted from any particular rules or the spirit of these rules and transcends any particular practices, however remotely connected to the primal game.

47 See, e.g., Petersen, H. and Zahle, H., eds., Legal Polycentricity: Consequences of Pluralism in Law (Aldershot, UK: Ashgate, 1995)Google Scholar.

48 Melissaris, “The More the Merrier”; Melissaris, Ubiquitous Law; Davies, “Pluralism and Legal Philosophy.”

49 Compare Macdonald, “Triangulating Social Law Reform,” with Roberts, S., “After Government—On Representing Law without the State,” Modern Law Review 68 (2005), 1CrossRefGoogle Scholar.

50 In much of what follows the influence of Fuller, “Human Interaction and the Law”; Postema, G., “Implicit Law,” Law and Philosophy 13 (1993), 47Google Scholar; and Webber, J., “The Grammar of Customary Law,” McGill Law Journal 54 (2009), 579CrossRefGoogle Scholar, and “Legal Pluralism and Human Agency,” Osgoode Hall Law Journal 44 (2006), 167Google Scholar, is apparent.

51 In two previous essays I have considered the relationship between typologies of norms and typologies of institutions. See Macdonald, R.A., “Vers la reconnaissance d'une normativité implicite et inférentielle,” Sociologie et sociétés 18 (1986), 42CrossRefGoogle Scholar, and Macdonald, , “Les Vieilles Gardes,” 233Google Scholar. For an application of these typologies to the ongoing normative dimensions of a micro legal system see Macdonald, R.A., “Office Politics,” University of Toronto Law Journal 40 (1990), 385CrossRefGoogle Scholar.

52 On the relationship of customary practice to legislated law, and the remaking of legislative law by customary practice, see Macdonald, R.A., “The Fridge-Door Statute” McGill Law Journal 47 (2001), 13Google Scholar.

53 The observations of Glenn, H.P., “The Capture, Reconstruction and Marginalization of ‘Custom,’” American Journal of Comparative Law 45 (1997), 613CrossRefGoogle Scholar, are especially pertinent.

54 For exemplary expositions see Ghestin, J. and Goubeaux, G., Traité de droit civil: introduction générale, 4th ed. (Paris: LGDJ, 1994)Google Scholar, and Fitzgerald, P., ed. Salmond on Jurisprudence, 12th ed. (London: Sweet & Maxwell, 1966)Google Scholar.

55 Eskridge, W., Frickey, P., and Garrett, E., Legislation and Statutory Interpretation, 2nd ed. (New York: Foundation Press, 2006)Google Scholar.

56 To put it slightly differently, just as a set of conventions for interaction arises through individual actions over time, legislation aimed at the same goal arises through individual actions compressed in time, but is no less a collective project for that. For development of this point see Waldron, J., The Dignity of Legislation (Cambridge: Cambridge University Press, 1999)CrossRefGoogle Scholar.

57 Consider Austin's position in Austin, J., Lectures on Jurisprudence, vol. 1, 4th ed. (London: John Murray, 1879), 100f.Google Scholar, explaining customary rules as merely proto-law.

58 See Fuller, , “Freedom—A Suggested Analysis,” Harvard Law Review 68 (1955), 1302CrossRefGoogle Scholar.

59 Macdonald, R.A., “Unitary Law Re-form,” 1114Google Scholar.

60 See OED, s.v. “custom” #5.

61 This idea is implicit in the film La grande séduction. The game of cricket played by the villagers is not exactly cricket, but is a customary game emerging from purposive interaction. Whether the game is cricket matters little; what matters is that there are players, each contributing to the community endeavour.

62 I do not argue that this is the only function of legislation. Often, legislative rules are meant to establish general patterns that regroup a diversity of particular practices. The great Chalmers statutes of the late nineteenth century—Bills of Exchange, Insurance, Sale of Goods—are an excellent example of the reverse use of legislation.

63 This point is developed in Macdonald, and Kong, , “Patchwork Law Reform,” 11Google Scholar. That is, not only do formal institutions remake the informal practices of informal groups, informal groups can also remake the informal rules of formal institutions into formal rules.

64 See OED, s.v. “custom” #2.

65 This idea is implicit in the film Lagaan. The competition for normative authority in the interaction between indigenous colonized peoples and the colonizer does not end with its transformation into a cricket match; rather, the commitment to displaying authority through performance according to the rules of cricket signals the beginning of a new set of practices.

66 While this thesis found its first jurisprudential expression in Holmes, O.W., “The Path of the Law,” Harvard Law Review 10 (1897), 457Google Scholar, and Gray, J.C., The Nature and Sources of Law (1909; reprint, Boston: Beacon, 1963)Google Scholar, it became canonical with the rise of realism in the United States in the 1930s. See, notably, Llewellyn, K., “A Realistic Jurisprudence—The Next Step,” Columbia Law Review 30 (1930), 431CrossRefGoogle Scholar.

67 For more detailed elaboration see Macdonald, R.A., “Call-Centre Governance: For the Rule of Law, Press #,” University of Toronto Law Journal 55 (2005), 449CrossRefGoogle Scholar.

68 See OED, s.v. “custom” #1.

69 Here, of course, we see the point of the film Trobriand Island Cricket. Lon Fuller discusses the interaction of made and implicit elements of law in Part 2 of his Anatomy of the Law (New York: Praeger, 1968)Google Scholar.

70 See Belley, J.-G., Le contrat entre droit, économie et société (Cowansville: Yvon Blais, 1998)Google Scholar; Reisman, M., Law in Brief Encounters (New Haven, CT: Yale University Press, 1999)Google Scholar; and Macdonald, R.A., Lessons of Everyday Law (Montreal: McGill-Queen's University Press, 2003)Google Scholar. Daniel Jutras provides an excellent discussion of these three examples in “Law in Small Spaces,” Canadian Journal of Law and Society 16 (2002), 45Google Scholar.

71 1 John 1:1 (KJV).

72 Évangile selon Jean I, 1 (Colombe version).

73 See text at notes 30–37 above.

74 Ong, W.J., Orality and Literacy: Technologizing the World (New York: Routledge, 2002)Google Scholar.

75 I derive this thought from Langer, S.K., Philosophy in a New Key, 3rd ed. (Cambridge, MA: Harvard University Press, 1957)Google Scholar.

76 I acknowledge the inherent paradox of this essay. I am using discursive prose (the chirographic form) to make an argument that normative human interaction exists independently of its possible expression in words. Yet much human communication is initiated through language, and many of our social resources are devoted to generating the capacity of citizens to express themselves through language. Still, had I been somewhat more certain of the audience for this essay, I would have been less reluctant to use film, art, and music to such effect. What fascinates is that musicians have a rich vocabulary of signs and symbols to express ideas that lawyers do not. How is it possible to deploy music normatively without words? And how much more is required of a listener to gauge the normativity of Beethoven's 32nd Piano Sonata than to gauge the normativity of the soundtrack of a popular movie, or of “muzak” in an elevator?

77 This is a phenomenon which has affected all our social institutions as churches become exclusively concerned with religion—having abandoned education, poor relief, orphanages, and so on. The uses of pot-luck suppers, barn raisings, rummage sales, and similar social endeavours to achieve economic redistribution have been lost in the professionalization of religion. Likewise, playgrounds as sites of multigenerational interaction and community building have been transformed into sports facilities.

78 See Part 2 above. The catch-phrase is from Derrida, Jacques, Of Grammatology, trans. Spivak, G.C. (Baltimore: Johns Hopkins University Press, 1998)Google Scholar.

79 Macdonald, R.A., The Governance of Human Agency (Background document prepared for the Senate Committee on Illegal Drugs, 2002), 19Google Scholar. On the way in which internalized processes are capable of generating effective international law without “teeth” or coercive sanctions see Berman, P.S., “Seeing Beyond the Limits of International Law,” Texas Law Review 84 (2006), 1265Google Scholar.

80 Consider Merry, SE., Getting Justice and Getting Even: Legal Consciousness among Working-Class Americans (Chicago: University of Chicago Press, 1990), 5Google Scholar: the law “consists of a complex repertoire of meanings and categories understood differently by people depending on their experience with and knowledge of the law.”

81 Berman, P.S., “The New Legal Pluralism,” Annual Review of Law and Social Sciences 5 (2009), 225CrossRefGoogle Scholar; Macdonald, R.A., “Three Metaphors of Norm Migration in International Context,” Brooklyn Journal of International Law 34 (2009), 603Google Scholar.

82 Macdonald, , “Unitary Law Re-form,” 1144Google Scholar.

83 See the extended discussion in Macdonald, R.A., “The Legal Mediation of Social Diversity,” in The Conditions of Diversity in Multinational Democracies, ed. Gagnon, A. et al. (Montreal: IRPP, 2003), 85Google Scholar.

84 Macdonald, R.A., “L'hypothèse du pluralisme juridique dans les sociétés dé avancées,” Revue du droit Université de Sherbrooke 33 (2003), 143CrossRefGoogle Scholar.

85 Sampford, C., The Disorder of Law (Oxford: Blackwell, 1989)Google Scholar. Let me emphasize that I do not claim that the transformation of custom into text is never liberating or empowering. Often revolutions are driven by the desire to break implicit structures of domination by imposing a textual basis for authority. But in the same way that practice can customize rules, sometimes the recognition of normative plurality is a strategy of resistance to official written law and a mechanism for popular construction of law. For example, just as the printing press served to decentre the control of text and the authority of scribes and official interpreters, the Internet acts to decentre the control of information and commentary. The Internet has spawned a number of creations such as Wikipedia that, because they are being edited from multiple directions, dilute the canonical nature of the written form.