This is an important book by a significant young scholar. In it, Mariano Croce draws on a wide array of thinkers and disciplines to create a work deeply engaged with contemporary debates about legal philosophy and legal pluralism. The book is novel, too, in its sources, reminding us of sophisticated analyses of which many Anglophones are not aware. In it, the author “tackle[s] four main issues: the nature of law, the nature of normativity, the relation between law and society, [and] the borders between legal and non-legal normativity” (p. xvii). To achieve this modest aim, the book has three movements: an engagement with the work of H. L. A. Hart, a review of different types of legal pluralism, and the analysis of “law as a special practice.” Croce's overview of Hart is a preliminary step to his wider discussion of legal pluralism and legal institutionalism. Hart remains, of course, the most influential Anglophone legal philosopher of the last century. Croce both critiques the limits of Hart's rule-centered thought and reveals its openness to a more pluralist interpretation. In doing so, he is following a number of modern jurisprudes—Brian Tamanaha, William Twining, and Detlef von Daniels, among others—who have sought to bring legal positivists and legal pluralists into a closer dialogue.
In the second part of the book, Croce notes the difficulty identifying the thread that unites the various advocates of (so-called) legal pluralism. He considers several varieties of legal pluralist thought. Eugen Ehrlich and Santi Romano, for example, both described law as an organization preceding or beyond the state. Roles and functions, rather than rules, are central. A second pluralism—Croce discusses Sally Falk Moore and Marc Galanter—emphasizes the “artificial character of law,” its historicity and contested character. A third pluralism, here associated with Sally Engle Merry and Tamanaha, threatens to dissolve legal pluralism entirely. It is well known that Tamanaha has suggested that “Law is whatever we attached the label law to” (p. 91). But as Croce writes, this praxiological and paradoxical move “confuses social practices with the reflection about them” (p. 94). Instead, Croce adopts the “thin functionalism” of E. Adamson Hoebel and Karl Llewellyn. On this understanding, law serves several critical functions: defining relationships, allocating power, resolving trouble cases, and handling social change.
Croce suggests that there exists widespread confusion among such thinkers between social pluralism and legal pluralism and seeks to adjust for the overinclusiveness of many legal pluralists. In doing so, the author stresses both formal structure—with Galanter and Romano—and “the role that law plays in social life” (p. 104). Indeed, his most novel addition to the dominant discourses on legal pluralism is the inclusion of the classic legal institutionalism associated with Romano and Widar Cesarini Sforza (preferred to the “new” institutionalism of, e.g., Neil McCormick). Drawing on this classic institutionalism, Croce writes “that social reality is always—with a nod to Werner Menski—a ‘plurality of pluralities’ ” (p. 130) or “a continuum of interrelated practices” (p. 131). He sketches an institutional continuum from social-jural relations to an official legal order that transforms some of these relationships into “legal standards, which are valid for the generality of a given social collectivity” (p. 120). This shift from the jural to the legal, rooted in formalization of rules and specialization of roles, distinguishes his thought from many modern pluralists.
In the final third of the book, Croce argues that “[t]he legal field is a battleground in which people are engaged in an ongoing struggle for meaning” (p. 148). Indeed, “what really differentiates law from any other rule-governed context is law's being a trans-sectional and insulated venue, neatly separate from everyday life, in which everyday reality can be renegotiated and rephrased by means of a special knowledge (usually mastered by legal experts) and a rigid set of conceptual categories” (p. 151). Croce attempts to strengthen his argument on trans-sectionality—to be distinguished, it appears, from any claim to supremacy vis-à-vis other institutions—with two examples divided across space and time: the Romans and the Tswana. As he acknowledges, Croce draws on the argument of Aldo Schiavone, who credits the Romans for affecting a shift from nonlegal to legal forms of normativity. While the historian's conclusions are limited, however, Croce makes cross-cultural comparisons to Africa and to “the mekgwa le melao ya Setswana, i.e., the stated rules found in Tswana communities … extend[ing] from … etiquette to … major crimes” (p. 163). There, he finds law also. Indeed, he identifies this as a distinctive “legal field” in spite of the possible distortions it may provoke when applied to non-Western realities (p. 165). The book ends with a rich discussion of the ritual of law, its discursive and non-discursive dimensions, and a short but powerful Epilogue.
In summary, Croce's analysis is expansive, but dexterous. In particular, the work deftly sorts out recurring confusions about social and legal normativity. If it is difficult to see the book generally as a “vindication” (p. xii) of legal theory, the author's clarity and easy interdisciplinarity is an example of contemporary legal philosophy at its best. That said, while Croce insists on the importance of both “conceptual analysis and empirical investigation” (p. 195), the book is overwhelmingly the former. It cannot be faulted, of course, merely for being a work of philosophy, but the result is that the relationship between real contexts—specific, lived forms of normativity and legality of the past or the present—and Croce's concept is not entirely clear. The cart sometimes seems to be before the horse. Indeed, the analysis can appear bloodless, the few examples drained of their local significance. And when the term “law” appears, as here, to stand in for both (i) a Western folk concept (and presumably its diverse conventions) and (ii) a more general conception of normativity, the argument can appear Eurocentric or academic. For my part, I hope Croce takes up the challenge of disentanglement and empirical investigation and elaboration. This is no small assignment, but based on his excellent book, he may be up to it.
