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The Failure of Legal Pluralism

Published online by Cambridge University Press:  15 April 2016

Russell Sandberg
Russell Sandberg*
Affiliation:
Senior Lecturer in Law, Centre for Law and Religion, Cardiff University
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Abstract

Concerns about legal pluralism, the co-existence of more than one legal system within a state, have become pronounced in recent years, owing to fears about the operation of sharia law in Western societies. At the same time, the concept of legal pluralism has become ubiquitous within legal literature. Paradoxically, the concept is both politically controversial and academically banal. This article contends that a major failing of the concept of legal pluralism has been the inability to distinguish legal norms from other forms of social control. It is suggested that this failure can be overcome by developing the concept of a ‘legal order’ as found in the work of Maleiha Malik and the understanding of law as discourse in the work of the German theorists Niklas Luhmann and Robert Alexy. It is argued that developing these approaches provides a means by which legal norms can be distinguished without adopting either a wholly objective or a completely subjective approach and without focusing exclusively upon the legal norms generated by the state.

Keywords

legal pluralismdefinition of lawlegal ordersshariasocial control
Type
Articles
Information
Ecclesiastical Law Journal , Volume 18 , Issue 2 , May 2016 , pp. 137 - 157
Copyright
Copyright © Ecclesiastical Law Society 2016 

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References

2 For a renowned recognition of this, see the opening paragraph of N Luhmann, A Sociological Theory of Law, trans E King-Utz and M Albrow, second edition (Abingdon, 2014), p 1: ‘All collective life is directly or indirectly shaped by law. Law is, like knowledge, an essential and all-pervasive fact of the social condition. No area of life – whether it is the family or the religious community, scientific research or the internal networks of political parties – can find a lasting social order that it not based on law. Collective social life embodies normative rules which exclude other possibilities and lay claim to be binding with a degree of success. This is always so, although the degree of technical formulation and the extent to which behaviour is determined vary from area to area. However, a minimum amount of legal orientation is indispensible everywhere.’

3 The term ‘religious law’ describes both the rules found in sacred texts and also the more practical rules developed by religious groups themselves. For discussion of issues of definition, see R Sandberg, Law and Religion (Cambridge, 2011), ch 9.

4 For a useful account of the debate, see R Grillo, Muslim Families, Politics and the Law (Farnham, 2015).

5 R Williams, ‘Civil and religious law in England: a religious perspective’, (2008) 10 Ecc LJ 262–282. For an analysis of the media reaction to the archbishop's lecture, see N Kabir, Young British Muslims (Edinburgh, 2010), ch 7.

6 ‘Theresa May set to urge UK's Muslims to help fight extremism’, The Guardian, 23 March 2015, <http://www.theguardian.com/politics/2015/mar/23/theresa-may-muslims-fight-extremism-uk>, accessed 5 February 2016.

7 See the ‘Social Cohesion and Civil Law: Marriage, Divorce and Religious Courts’ Research Project at Cardiff University, funded by the AHRC/ESRC Religion and Society Programme, <http://www.law.cf.ac.uk/clr/research/cohesion.html>, accessed 5 February 2016; and studies of specific religious tribunals such as S Shah-Kazemi, Untying the Knot: Muslim women, divorce and the shariah (Nuffield Foundation, 2001), and S Bano, Muslim Women and Shari'ah Councils: transcending the boundaries of community and law (Basingstoke, 2012).

8 B Tamanaha, A General Jurisprudence of Law and Society (Oxford, 2001), 171. A number of different definitions and typologies of ‘legal pluralism’ have been suggested. See, eg, A Griffiths, ‘Legal pluralism’ in R Banakar and M Travers (eds), An Introduction to Law and Social Theory (Oxford, 2002), pp 289–310. The most important distinction, however, is between the ‘old’ colonial legal pluralism (epitomised by M Hooker, Legal Pluralism: an introduction to colonial and neo-colonial laws (Oxford, 1975)) and the ‘new’ legal scholarship (characterised by J Griffiths, ‘What is legal pluralism?’, (1986) 24 Journal of Legal Pluralism 1–55 at 1, which suggests that ‘there are many “legal” orders operative in society, of which State law is just one, and often not the most powerful one’). This article focuses on this newer understanding of legal pluralism. As V Muňiz-Fraticelli, The Structure of Pluralism (Oxford, 2014), p 118, argues convincingly, the concept does not require any opposition to positivism.

9 See, eg, Douglas-Scott's assessment that legal pluralism now provides the ‘most convincing and workable theory of law’ that best ‘captures the nature of law in the contemporary era’: S Douglas-Scott, Law after Modernity (Oxford, 2013), p 23.

10 This approach also extends to those who explicitly or implicitly ‘takes state law to represent the epitome of law: Tamanaha, General Jurisprudence, p 178. It includes the work of Jeremy Waldron (eg J Waldron, Law and Disagreement (Oxford, 2001), as discussed by Muňiz-Fraticelli, Structure of Pluralism, p 129.

11 H Kelsen, ‘The law as a specific social technique’, (1941) 9 University of Chicago Law Review 75–97 at 78, 79–80. See also H Kelsen, Pure Theory of Law (Berkeley, CA, 1967).

12 For discussion of ‘sociological jurisprudence’, see R Banakar, ‘Sociological jurisprudence’ in Banakar and Travers, Introduction to Law and Social Theory, pp 33–54 at p 34; R Banakar, Merging Law and Sociology: Beyond the Dichotomies in Socio-Legal Research (Berlin and Madison, WI, 2003) chs 7 and 8. For a slightly different list of thinkers within this field, see M Travers, Understanding Law and Society (New York, 2010), pp 25–29; AJ Treviño, ‘Sociological jurisprudence’ in R Banakar and M Travers, Law and Social Theory, second edition (Oxford, 2013), pp 35–52.

13 E Ehrlich, Fundamental Principles of the Sociology of Law, new edition (New Brunswick, 2002; first published 1936) 39; G Gurvitch, Sociology of Law (London, 1947); L Petrazycki, Law and Morality (Cambridge, CA, 1955) 6.

14 Tamanaha, General Jurisprudence, p 173, argues that an expansive definition of law ‘raises the imminent danger of sliding to the conclusion that all forms of social control are law’. This means that the term ‘law’ ceases to have any distinctive meaning as ‘other forms of normative order, like moral norms, or customs, habits, and even table manners are swallowed up to become law’ (ibid, p 174). For Tamanaha this is counter-productive, in that it actually ‘hinders a more acute analysis of the many different forms of social regulation involved’: see B Tamanaha, ‘Understanding legal pluralism: past to present, local to global’, (2008) 30 Sydney Law Review 375–411 at 393.

15 Tamanaha, General Jurisprudence, p 171.

16 Ibid, pp 171, 174. See, however, Muňiz-Fraticelli, Structure of Pluralism, pp 135–136. Muňiz-Fraticelli agrees that the legal pluralist tradition has ‘failed to provide criteria either for distinguishing legal from non-legal phenomena or for recommending for or against the recognition of a normative system as law’ (ibid, p 139).

17 Tamanaha ‘Understanding legal pluralism’, p 393.

18 J Griffiths, ‘The idea of sociology of law and its relation to law and to sociology’, (2005) 8 Current Legal Issues 49–68 at 63–64; S Falk Moore, ‘Certainties undone: fifty turbulent years of legal anthropology, 1949–1999’ in S Falk Moore (ed), Law and Anthropology: A Reader (Malden, MA, and Oxford, 2005), pp 346–367 at p 357.

19 This section draws upon R Sandberg, ‘The impossible compromise’ in R Sandberg (ed), Religion and Legal Pluralism (Farnham, 2015), pp 1–20.

20 M Malik, Minority Legal Orders in the UK: minorities, pluralism and the law (London, 2012), p 22. Malik has favoured the term ‘minority legal orders’ but the word ‘minority’ here is problematic. She seems to use the term to describe all religious groups, observing that ‘Jews, Christians and Muslims are the three religious groups most commonly assumed to have a legal order’ (ibid, p 16). However, the focus exclusively upon religious minorities is flawed because religious majorities also have their own legal orders and this is also true of non-religious cultural groups (see A Hussain, ‘Legal pluralism, religious conservatism’ in Sandberg, Religion and Legal Pluralism, pp 151–160). It would therefore be preferable simply to refer to ‘legal orders’.

21 Malik, Minority Legal Orders, p 23.

22 Ibid, p 23.

23 Ibid, pp 23–24.

24 Ibid, p 24.

25 An obvious candidate for the objective criterion would be the ‘five basic techniques’ by which law discharges social functions identified by Robert S Summers in ‘The technique element in law’, (1971) 59 Californian Law Review 733–751: it could be said that enforcement by law consists of actions that remedy grievances, prohibit forms of anti-social behaviour, regulate socially desirable activities, regulate the provision of services and provide for the private arranging of affairs. Similarly, Karl Llewellyn's four ‘law-jobs’ or basic functions of law could be evoked: a legal order could be defined as providing the orderly resolution of disputes, the preventive channelling and reorientation of conduct and expectations to avoid conflict, the allocation of authority in the group and what Llewellyn called the ‘net drive’: that is, the organisation and harmonisation of group activity to provide direction and incentive to group members. See K Llewellyn, ‘The normative, the legal and the law jobs: the problem of juristic method’, (1940) 49 Yale Law Journal 1355–1400. L Murphy, What Makes Law: an introduction to the philosophy of law (New York, 2014), p 168, comments that it is ‘obvious that the various institutional criteria (courts, legislatures, enforcement agencies) … are not helpful’ in terms of distinguishing law.

26 Malik, Minority Legal Orders, p 24.

27 Compare ibid, p 23: ‘If there is some mechanism, albeit informal, for resolving disputes about validity, interpretation and enforcement, then this institutional aspect will make it more likely that there is a minority legal order’.

28 Murphy, What Makes Law, p 5.

29 Compare M Weber, ‘Politics as a vocation’ in The Vocation Lectures, trans R Livingstone, ed D Owen and T Strong (Indianapolis, IN, 2004), p 33.

30 Murphy, What Makes Law, p 163.

31 Ibid, p 170, emphasis in original.

32 Ibid, p 171.

33 Malik, Minority Legal Orders, p 22.

34 H Hart, The Concept of Law, second edition (Oxford, 1994), p 94.

35 B Tamanaha, Realistic Socio-legal Theory (Oxford, 1997) chs 5 and 6; Tamanaha, General Jurisprudence, p 162.

36 Tamanaha, General Jurisprudence, pp 163, 166.

37 Ibid, p 167.

38 M Kleinhans and R Macdonald, ‘What is a critical legal pluralism?’, (1997) 12:2 Canadian Journal of International Law and Society 25–46 at 39; A Codling, ‘A critical pluralist analysis of R. (on the application of Begum) v Headteacher and Governors of Denbigh High School’, (2012) 169 Law & Justice 224–245; A Codling, ‘What do you believe? Taxonomy of a subjective legal pluralism’, in Sandberg, Religion and Legal Pluralism, pp 199–212.

39 Lord Nicholls of Birkenhead, R v Secretary of State for Education and Employment and others ex parte Williamson [2005] UKHL 15 at para 22.

40 This criticism is forcefully made by A Shachar, Multicultural Jurisdictions: cultural differences and women's rights (Cambridge, 2001), though ironically the solution she proposes succumbs to the same problem: R Sandberg et al, ‘Britain's religious tribunals: “joint governance” in practice’, (2013) 33:2 Oxford Journal of Legal Studies 263–291.

41 This is part of the ‘subjective turn’, on which see P Heelas and L Woodhead, The Spiritual Revolution (Malden, MA, and Oxford, 2005), and R Sandberg, Religion, Law and Society (Cambridge, 2014), p 161.

42 This means that Tamanaha's criticism can be turned back onto itself: his approach ‘does not provide sufficient guidance for distinguishing legal and non-legal phenomena’ (Muňiz-Fraticelli, Structure of Pluralism, p 149).

43 Muňiz-Fraticelli, Structure of Pluralism, p 150.

44 Ibid 153.

45 See, especially Luhmann, Sociological Theory of Law; N Luhmann, Law as a Social System, trans K Ziegert (Oxford, 2004); and R Alexy, A Theory of Legal Argumentation (Oxford, 1989). For Alexy's discussion of the compatibility of his theory with that of Luhmann, see Alexy, Theory of Legal Argumentation, pp 28, 125 and 216.

46 See, for example, G Teubner, ‘The two faces of Janus: rethinking legal pluralism’, (1991) 13 Cardozo Law Review 1443–1462; G Teubner, ‘“Global Bukowina”: legal pluralism in the world society’, in G Teubner (ed), Global Law Without a State (Aldershot, 1997), pp 3–28; E Melissaris, Ubiquitous Law: legal theory and the space for legal pluralism (Farnham, 2009), pp 35–37; R Nobles and D Schiff, ‘Using systems theory to understand legal pluralism: what could be gained?’, (2012) 46:2 Law and Society Review 265–296; R Nobles and D Schiff, Observing Law Through Systems Theory (Oxford, 2013), ch 4.

47 M La Torre, ‘Theories of legal argumentation and concepts of law’, (2002) 15:4 Ratio Juris 377–402 at 396.

48 This concept of differentiation is much discussed in sociological theories of secularisation: see Sandberg, Religion, Law and Society, p 64. This section draws upon R Sandberg, ‘Religious law as a social system’, in Sandberg, Religion and Legal Pluralism, pp 249–272, and R Sandberg, ‘A sociological theory of law and religion’, in F Cranmer, M Hill, C Kenny and R Sandberg (eds), The Confluence of Law and Religion (Cambridge, 2016), pp 66–78.

49 M King and C Thornhill, Niklas Luhmann's Theory of Politics and Law (Basingstoke, 2003), p 11.

50 Luhmann, Sociological Theory of Law, p 281. Social systems are operationally closed because they are self-referential; their individual operations ‘are identified as such by themselves’: Luhmann, Law as a Social System, p 86. However, they are ‘cognitively open’ in that they require ‘the exchange of information between system and environment’: N Luhmann, Essays on Self-Reference (New York, 1990), p 229.

51 Teubner, ‘Global Bukowina’, pp 14–15.

52 King and Thornhill, Niklas Luhmann's Theory of Politics and Law, p 35.

53 Ibid, p 42.

54 Ibid, p 38.

55 That is, ‘a guiding distinction by which a system identifies itself and its own relationship to the world’: N Luhmann, A Systems Theory of Religion, trans D Brenner and A Hermann (Stanford, CA, 2013), p 45. For Moeller, a code is ‘the basic distinction that a social system applies in order to communicate’: H Moeller, Luhmann Explained: from souls to systems (New York, 2006), p 216.

56 Luhmann, Law as a Social System, pp 98–99, 147–148.

57 Teubner, ‘Two faces of Janus’, p 1451.

58 Several critics, however, point out that Luhmann's concept of law is ‘openly parasitic upon the state law model’ given that the operation of the binary code rests upon common legal centralist ideas about the notion of law: Tamanaha, General Jurisprudence, p 103. See also Kleinhans and Macdonald, ‘What is a critical legal pluralism?’, p 39.

59 For Luhmann's work on religion, see Luhmann, Systems Theory of Religion.

60 Nobles and Schiff, Observing Law Through Systems Theory, p 130. It is difficult to disagree with their conclusion that ‘the approach of systems theory, which concentrates on coding, has more potential to extend the study of what is legal beyond a focus on formal sources than does an approach that identifies as “law” only what a significant number of participants, if questioned, would describe as “law”’: Nobles and Schiff, ‘Using systems theory’, pp 275–276.

61 For discussion of the literature, see eg R Cotterrell, ‘The representation of law's autonomy in autopoiesis theory’ in J Priban and D Nelken (eds), Law's New Boundaries: The Consequences of Legal Autopoiesis (Aldershot, 2001), pp 80–103 at pp 95–98.

62 M King, ‘The radical sociology of Niklas Luhmann’, in Banakar and Travers, Law and Social Theory, pp 59–74 at p 62.

63 Maitland's major contribution to the topic can be found in F Pollock and F Maitland, The History of English Law, second edition reissued (Cambridge, 1968; first published 1898) and F Maitland, The Forms of Action at Common Law (Cambridge, 1965; first published 1909). Milsom's ‘pious heresy’ can be found in S Milsom, The Legal Framework of English Feudalism (Cambridge, 1976); S Milsom, ‘Introduction’ in Pollock and Maitland, History of English Law, pp xxiii–cviii; and integrated within S Milsom, Historical Foundations of the Common Law, second edition (London, 1981). For a discussion of the differences of opinion see, eg, R Turner, ‘Henry II's aims in reforming England's land law: feudal or royalist’ in E King and S Ridyard (eds), Law in Medieval Life and Thought (Sewanee Medieval Studies, 1990), pp 121–135.

64 Milsom, Historical Foundations, p 36.

65 There were some procedures without writ: see H Richardson and G Sayles, Select Cases of Procedure Without Writ under Henry III, Selden Society vol 60 (London, 1941).

66 This is not to deny, however, that Luhmann's work needs to be integrated with approaches that stress the role of agency and micro-sociological approaches, but that is true of structuralist accounts generally. The debate as to the relationship between structure and agency runs throughout social theory, on which see R Banakar and M Travers, ‘Introduction’ in Banakar and Travers, Law and Social Theory, pp 1–12 at p 6.

67 T Watkin, The Nature of Law (Amsterdam and Oxford, 1980), p 108, correctly asserts: ‘for without such human beings there could not be legal systems’.

68 Ibid, p 88.

69 Ibid, p 117.

70 That is, the ‘stabilisation of normative expectations’.

71 Watkin, p 6.

72 As Nobles and Schiff, ‘Using systems theory’, pp 266–267, note, this means that: ‘Its hermeneutics are rooted not in the intentions of human actors, but in the meanings generated by those actors through their participation as communicators within subsystems of communication such as law, the economy, science, politics, and education.’

73 Watkin, Nature of Law, p 123.

74 Ibid, p 124. In the English common law this development occurred when the creation of new writs was prevented by the Provisions of Oxford 1258, meaning that only identical claims would be dealt with, as amended by chapter 24 of the Statute of Westminster II 1285, which allowed new writs to be created that were ‘very similar’ (in consimili casu) to existing writs, which created the system of precedent. See, further, T Watkin, ‘The significance of “in consimili casu”’, (1979) 23 American Journal of Legal History 283–311.

75 Watkin, Nature of Law, p 124.

76 Ibid, p 232. For discussion of the general risks of interdisciplinary approaches to law, see Sandberg, Religion, Law and Society, ch 6.

77 S Bertea, ‘Legal argumentation theory and the concept of law’ in F van Eemeren et al (eds), Anyone Who Has a View: theoretical contributions to the study of argumentation (Dordrecht and Boston, MA, 2003), pp 213–226 at p 220.

78 According to legal argumentation theory, ‘legal reasoning too (and not just the rules) can be argued to contribute significantly to shaping the contents, structures and boundaries of legal orders. This is to say that reasoning, in addition to affecting specific stages in the development of a legal system, impacts incisively on the features of law as a whole’ (ibid).

79 T Gordon, The Pleadings Game (Dordrecht, 1995), p 53; Alexy, Theory of Legal Argumentation, pp 212–213. For Alexy, this ‘inextricable link of legal to general practical discourse’ has four aspects: ‘(1) the need for legal discourse in view of the nature of general practical discourse, (2) the partial correspondence in the claim to correctness, (3) the structural correspondence between rules and forms of legal discourse and those of general practical discourse, and (4) the need for general practical reasoning in the framework of legal reasoning’ (ibid, p 287).

80 Hart, Concept of Law, p 100.

81 Alexy, Theory of Legal Argumentation, pp 214, 220.

82 As Alexy noted, ‘legal reasoning is characterized by its relationship with valid law, however this is to be determined’ (ibid, p 212).

83 Ibid, p 292. This is shown by his listing of six groups of argument forms: interpretation; dogmatic argumentation (that is, legal science in the narrower and proper sense); the use of precedents; general practical reasoning; empirical reasoning; and the so-called special legal argument forms (that is those particular argument forms dealt with in legal methodology such as analogy): ibid, pp 231–232, 250, 279.

84 Ibid, pp 14–15.

85 Bertea, ‘Legal argumentation theory’, p 220.

86 R Alexy, The Argument from Injustice: a reply to legal pluralism, trans B Paulson and S Paulson (Oxford, 2002), p 125.

87 For Bertea, ‘Legal argumentation theory’, pp 224–225, this attempt does not go far enough in that it fails ‘to break with traditional jurisprudence and so fall[s] short of paying the attention due to the thesis that argumentation is central to legal practice’. He calls instead for ‘an idea of law as a slippery activity, as it were, which consists in evaluating reasons and confronting arguments’. Under such an approach ‘law is a dynamic interplay of reasons, a set of reconstructive activities by which theorists and practitioners jointly determine contents and applicative scope of norms’.

88 It is not the only such attempt. Bertea (ibid, 223) also mentions the work of Dworkin and his statement that ‘Law's empire is defined by attitude, not territory or power or process … It is an interpretive, self-reflective attitude addressed to politics in the broadest sense’: R Dworkin, Law's Empire (Oxford, 1986), p 413.

89 Alexy, Argument from Injustice, p 36.

90 This invokes Watkin's notion of law as promoting the survival and social coherence of groups: Watkin, Nature of Law, p 117.

91 Gordon, Pleadings Game, pp 53, x.

92 Bertea, ‘Legal argumentation theory’, p 217.

93 Alexy, Theory of Legal Argumentation, p 16. This does not mean that the statement must ‘include a claim to the effect that the speaker him or herself is capable of giving a justification. It is quite sufficient for the speaker to refer to some other determinate or determinable person as capable of justifying what has been said’ (ibid, pp 191–192).

94 Law becomes ‘the outcome of reasoning, as an argumentative social practice aimed at finding reasonable solutions to legal cases in a number of ways and not necessarily only by following posited rules that are general and abstract’, meaning that ‘it is a flux of reconstructive processes by which we manipulate, transform and determine the contents, reciprocal relationships, and applicative scope of norms’: Bertea, ‘Legal argumentation theory’, p 220.

95 Ibid, p 221.

96 Ibid, p 220. He notes that this means that law ‘cannot be conceived of as an autonomous system which can be identified on the basis of various elaborate formal criteria of recognition’. This would reject caricatured versions of social systems theory, though Luhmann's account does not see the autonomy of law as being complete so as to exclude external stimuli: ibid, p 221.

97 Alexy, Theory of Legal Argumentation, p 9.

98 Ibid, p 178.

99 Muňiz-Fraticelli, Structure of Pluralism.

100 As Tamanaha, General Jurisprudence, p 172, argued convincingly, whereas ‘conventional accounts of legal pluralism began with an often State-centric concept of law and then sought to find variations of this single phenomenon in society at large’, there is a need to begin instead with the notion that ‘often different kinds and manifestations of law co-exist in the same social field’.

101 Williams, ‘Civil and religious law in England’, p 275.

102 R Cotterrell, ‘Does legal pluralism need a concept of law?’, (2009) 19:10 Law and Politics Book Review 774–779. The exception in question was Melissaris, Ubiquitous Law.

103 Malik, Minority Legal Orders, pp 22–24.