Historical Perspectives on Legal Pluralism

Abstract

Historical research represents our richest vein of information about the workings of legal pluralism. Before the long nineteenth century, all legal orders featured jurisdictional tensions without strong claims of legal hegemony by states. In a world in which plural legal orders were the norm, multicentric jurisdictional orders created continuities across diverse regions and polities. What can we learn from the history of legal pluralism in considering its relation to economic development today? To begin, legal history can provide an analytic guide to grasping the complexities of current legal patterns and behavior. A particularly helpful rubric emerges out of studies of the legal history of empires. A second relevant finding confirmed by historical studies of plural legal orders, including and especially empires, consists in the observation that legal actors – again, at all levels – tended to show a preference over time for adjudication in forums that seemed to provide a greater possibility of enforcement of rulings. This paper examines these phenomena in early modern societies in order to lay the groundwork for analyzing legal pluralism in the nineteenth and twentieth centuries. By keeping in view the jurisdictional jockeying of imperial legal orders, we gain new perspective on the role of legal pluralism at major turning points in the development of international law. In particular, it becomes possible to understand nineteenth century prohibition regimes as forming through jurisdictional restructuring within and across global empires – a view that contrasts with traditional narratives of the rise of international law. Similarly, understanding the pervasiveness and persistence of strategies of appealing to imperial legal authority allows us to appreciate the effects on legal behavior of robust claims to the dominance of state law over subordinate jurisdictions in the twentieth century.