Rethinking the Rethinking of Legal Pluralism: Toward a Manifesto for a Pluri-Legal Perspective

Abstract

The paper addresses the perpetual discontent evoked by the concept of legal pluralism, one which, in turn, brings about incessant efforts to “rethink” it. We suggest that one of the sources of this discontent is the erroneous view that legal pluralism is a theory, and the consequent misguided expectations that it should provide scholars of law and society with causal hypotheses and explanations. We argue that legal pluralism is not a theory but a research perspective, and, as such, is not meant to provide us with explanatory propositions, but rather to increase our awareness of the plurality and inter-relationality of socio-legal spheres and of the implications thereof. We further identify—and briefly discuss—the four core principles of a pluri-legal perspective: plurality, relationality, power, and agency. Taken together, these four premises constitute a manifesto of sorts for a pluri-legal perspective.

Legal pluralism is, without doubt, a “successful” academic concept. It made its entrance into the socio-legal discourse in the 1970s, and has gained momentum ever since.¹ Its burgeoning impact on law-and-society scholarship has been evident both in the sheer number of references to it in the academic literature² and in the broadening scope of its application.³ Yet despite—and perhaps because of—its palpable success, the concept has also attracted significant criticism and raised considerable discontent. Some critics, who were particularly hostile toward the concept and its proponents (the “legal pluralists”),⁴ sought “to pierce the legal pluralism balloon,” so that “the momentum of the doctrine will break.”⁵ Others were perhaps less hostile, but made sure to express their discontent with the conceptual and theoretical problems entailed by the concept, in their view.⁶ Many writers, including some who may be regarded as pertaining to the “legal pluralist camp,” have taken issue with the so-called “under-theorization” of legal pluralism, with its futility as a theoretical framework, and with its “lack of analytic rigor.”⁷

This continuous discontent with legal pluralism has yielded a ceaseless effort to “rethink” the concept, “revisit” it,⁸ “go beyond” it,⁹ or coin alternative, more appropriate terms. The literature on legal pluralism is thus replete with such alternative concepts as “legal polycentricity,”¹⁰ “interpolity law,”¹¹ “interstitial law,”¹² and “parallel legal systems,”¹³ which were designed to replace what many authors perceived as a flawed, or at least an unsatisfactory, term. This incessant uneasiness has been a double-edged sword for the study of legal pluralism: on the one hand, it has cast doubt on the validity and usefulness of the term, and on the other hand, it has kept the discourse surrounding it lively and inventive.

What is it, then, in legal pluralism—as a concept/notion/theory/perspective—that elicits such doubts and qualms? And, more importantly, is it possible to ease these doubts? Is it possible to establish legal pluralism as a sound, sustainable perspective, and moreover, to do so without sacrificing its vitality and innovative character? In this short essay, we aim to provide some preliminary answers to these questions. We argue that the discontent regarding legal pluralism stems from three different sources: first, the concept's “over-success,” which has turned it into a victim of its own popularity; second, some unsettled conceptual problems in the pluri-legal literature; and third, common misperceptions regarding the nature and purposes of the concept which have led to unrealistic expectations with regard to it.

In the next section we briefly discuss these three sources of discontent. We contend that while there is not much that can be done against the first concern (which is, obviously, not a genuine problem), and while the second concern has been addressed quite amply (and in our view, satisfactorily), the third concern has remained relatively unattended to thus far. Consequently, the literature on legal pluralism has been plagued with misperceptions and erroneous assumptions about this construct and about what we can do with it. Authors continue to misconstrue legal pluralism as a theory, and then complain—as a recent influential textbook on the anthropology of law has done—that “[legal pluralism] is surely too general to be particularly useful: the coexistence of plural legal or normative orders is a universal fact of the modern world, so the concept points to nothing distinctive.”¹⁴

Following such authors as Franz and Keebet von Benda-Beckmann and Sally Engle Merry, we contend that legal pluralism is a research perspective—nothing more, nothing less.¹⁵ As a research perspective, legal pluralism does not provide students of the socio-legal sphere with propositions, hypotheses, or explanations, and expecting it to do so is plainly misguided. As a research perspective, its purpose is first to draw our attention “to the possibility that within the same social order, or social or geographical space, more than one body of law, pertaining to more or less the same set of activities, may co-exist,” and, second, to provide law-and-society researchers with a set of basic premises about how to approach the study of this (omnipresent) reality of multiple legal orders.¹⁶ This is what a pluri-legal perspective should do, and this is what it does.

We suggest that the erroneous views about legal pluralism and its purposes stand at the core of the perpetual discontent surrounding this concept. Thus, after briefly discussing the sources of the pervasive uneasiness with regard to legal pluralism, we move on to specify the four premises that stand at the foundation of the pluri-legal perspective, in our view. By stating these four premises, we aim to draft a manifesto of sorts for a pluri-legal perspective.

Three Sources of Discontent with Legal Pluralism

A victim of its own success

As mentioned earlier, legal pluralism is a remarkably successful concept. Because of its relevance to diverse subject matters and contexts, and because of its appropriation by scholars from a plentitude of disciplines—legal anthropology, legal history, comparative law, jurisprudence, sociology, political science, development studies, management, and so on—the literature that employs it is vast and variegated.¹⁷ As noted by Franz von Benda-Beckmann, one cannot (and should not) expect, for example, that an anthropologist, a political scientist, a legal academic, and a judge will all share the same understanding of what law is, what it does or should do, and how we should study it.¹⁸ The same is true for legal pluralism. The marked heterogeneity of the pluri-legal scholarship brings about, almost inevitably, conceptual confusions, incongruities, and sometimes even contradictions, which—in turn—naturally yield criticism.

Hence, legal pluralism is a victim of its own success: had it remained within the confines of a single discipline or a single research topic, it would have probably been much easier to maintain its thematic and analytic coherence. Yet, in our view, it would be inadvisable, and probably also impossible, to endeavor to delimit the meanings of the term for the purpose of attaining conceptual unity and coherence. Indeed, the concept's elasticity and its “interpretative viability” are among its core strengths.¹⁹ A remedy for the uneasiness surrounding the notion of legal pluralism should therefore be sought elsewhere.

Conceptual and definitional concerns

The appropriation and application of legal pluralism in diverse disciplines and fields of research has led to many conceptual confusions. Debates on this notion have therefore focused mainly on issues of definition and conceptualization: how do we distinguish the legal from the non-legal? Is it admissible to talk about “non-state law?” What types of legal complexity are covered by the term “legal pluralism?” Can one speak of legal pluralism within a single legal order? And what does the “coexistence” of laws or legal orders mean? We will not partake in these hairsplitting yet foundational analytical discussions here—on the one hand, because other scholars have already taken this task upon themselves, and have provided what we believe to be quite satisfactory conceptual solutions;²⁰ on the other hand, because our purpose here—namely, the drafting of a brief manifesto for a pluri-legal perspective—does not necessitate our engagement in such discussions.

Instead, at the conceptual level, we choose to follow in the footsteps of such scholars as Gordon Woodman, Franz and Keebet von Benda-Beckmann, Baudouin Dupret, and Brian Z. Tamanaha. These scholars of law and society—despite some noticeable differences in their approaches to legal pluralism—have all opted for broad and encompassing conceptualizations of the term, which are based either on wide-ranging definitions of law (e.g., Woodman and the Benda-Beckmanns),²¹ or on viewing law as a folk concept (Dupret and Tamanaha).²² These and like-minded authors promote a “user theory of law,” whose conceptualizations of legal terms draw heavily on the meanings attributed to these terms by the social actors themselves.²³ As Woodman put it, since “law covers a continuum which runs from the clearest form of state law through to the vaguest forms of informal social control,”²⁴ it remains for scholars of law and society to determine, operationally and for the specific context and purpose under hand, whether the phenomenon they are observing falls under the banner of “law” and of “legal pluralism.”²⁵ It goes without saying that this “user theory of law” also applies to the readers, who must evaluate whether or not the description of a social phenomenon in terms of legal pluralism is persuasive.

In line with this approach, we submit that there is no point in providing a positive definition of “law,” or even of “legal pluralism,” as we believe that such definitions should be operational, context-dependent, and content-specific. Let researchers embracing a pluri-legal perspective choose the definitions that they deem appropriate and useful for their particular topic and purpose. However, we strongly advise fellow scholars of law and society to embrace broad definitions of law that expand the scope of legal pluralism rather than narrow its boundaries. Such definitions should, in our view, allow for the recognition of “non-state law”; allow for the application of the term to “non-modern” and stateless settings; and acknowledge the existence of legal pluralism within a single system (e.g., within state law or within a religious/indigenous law).

The problem of unrealistic expectations

Is legal pluralism a descriptive or a normative concept? Is it a theory? A paradigm? A movement? An ideology? If legal pluralism is a theory, we should expect it to provide us with concrete and testable propositions, hypotheses, and explanations of the studied social phenomenon. If it is an “ideology” or a “movement,” we should expect its proponents to openly declare what their normative purposes are. We contend that at least some of the discontent surrounding legal pluralism emanates from misconceptions about the nature and status of this concept. These misconceptions, in turn, lead to unrealistic expectations with regard to legal pluralism which are bound to be frustrated.

We argue that legal pluralism is not an ideology. It has no normative purpose, nor does it tell us how things should be.²⁶ It is also not a theory: it has no pretense to predict or explain social actors’ behavior under particular circumstances of legal pluralism, nor to predict or explain the emergence of particular constellations of coexisting legal orders. Accordingly, it does not present us with sets of propositions or hypotheses.

What is legal pluralism, then? As briefly stated earlier, we believe—like other legal pluralists such as the Benda-Beckmanns and Sally Engle Merry—that legal pluralism should be viewed as a research perspective. It is, in our view, a well-articulated and internally coherent research perspective, which has matured and consolidated over the last half-century. It offers scholars who adopt it a set of underlying premises, as well as a cluster of useful concepts, distinctions, and analytical categories that can assist them in their efforts to make sense of the phenomenon of multiple socio-legal orders. Thus, such analytical concepts as “semi-autonomous social field,”²⁷ “forum shopping,”²⁸ “interlegality,”²⁹ and many others, which were all developed and elaborated in the pluri-legal literature, are a considerable aid to students of law-and-society as they struggle to gain an understanding of the complexities of pluralistic legal realities.

Beyond these analytical constructs—which, again, do not comprise a “theory” of legal pluralism—what is sorely missing from the literature on legal pluralism at this point is a concise and informed “statement of purpose” or “credo” pertaining to the pluri-legal research perspective. While seminal works on legal pluralism do offer some programmatic framing, they tend to focus on problems of conceptualization and definition.³⁰ Indeed, a manifesto for legal pluralism has not been put forward since John Griffiths published “What is Legal Pluralism?” in the mid-1980s.³¹ Griffiths’ piece was exceedingly influential, and certainly helpful in elucidating some conceptual issues, yet it was also highly problematic as it introduced its own conceptual and methodological problems.³² Furthermore, Griffiths articulated his pluri-legal statement of purpose in negative terms, claiming that “[a] central objective of a descriptive conception of legal pluralism is […] destructive: to break the stranglehold of the idea that what law is, is a single, unified, and exclusive hierarchical normative ordering depending from the power of the state…”³³

We believe that the time is ripe for drafting an up-to-date manifesto for a pluri-legal perspective, which clearly stipulates its basic premises. In what follows, we briefly present four premises that, in our view, make up the core of a pluri-legal perspective: (a) a plurality of legal orders is omnipresent, and may be found wherever and whenever one looks; (b) coexisting legal orders interact and influence one another profoundly, to such an extent that they may often be said to constitute one another; (c) power relations are part and parcel of these interactions between legal orders; and (d) the agency of social actors, too, is part and parcel of these interactions. Taken together, these four premises—plurality, relationality, power, and agency—comprise a coherent pluri-legal perspective.

Toward a Manifesto for a Pluri-Legal Perspective: Four Premises

Plurality

To paraphrase the poet John Donne, “no society is an island entire of itself.” Indeed, and as noted by countless thinkers, in the contemporary global world no society is detached from other societies or untouched by them.³⁴ Moreover, contemporary societies are complex and comprise many “semi-autonomous social fields,” that is, many social groupings that maintain “rule-making capacities and the means to induce and coerce compliance” while also being “set in a larger social matrix which can, and does, affect and invade them.”³⁵ In the words of Brian Tamanaha, a former “heretic” who repented and became a devout legal pluralist, “In every social arena one examines, a seeming multiplicity of legal orders exists. There are village, municipal, and county laws of various types; there are state, district, or regional laws of various types; there are national, transnational, and international laws of various types. In many societies there are additional forms of law, like indigenous law, customary law, religious law, and the law of distinct ethnic or cultural communities.”³⁶ Thus, a pluri-legal perspective's point of departure is that a plurality of legal orders is an omnipresent fact of life, characterizing any society and any social group in the modern and pre-modern worlds. While this statement may seem trivial, taking the plurality of co-existing legal orders as the primary lens through which a legal system is studied is far from banal, as demonstrated by the many works that examine legal systems—whether explicitly or implicitly—as singular, self-sustaining, and internally coherent.

Relationality

The second premise of a pluri-legal perspective is that the interrelations between coexisting legal orders should not be understood as encounters between well-defined, sealed systems (say, like billiard balls hitting one another), but rather as encounters between elastic, “porous,” constantly transforming, and easily affected systems.³⁷ In other words, these interrelations are constitutive: interacting legal orders/bodies of law/legal institutions affect one another so profoundly that they shape and define one another. Regardless of whether legal systems contradict, compete, complement, or even merge, their interrelations define them and render them what they are.³⁸

Thus, the premise of relationality directs the researcher's attention to the mutually constitutive relationships between legal systems/bodies of law—both as primary objects of study and as an explanatory force.³⁹ In this respect, the pluri-legal perspective is akin to the tradition of relational sociology, and entails a non-essentialist and constructivist understanding of the studied legal systems.⁴⁰ A good illustration of the utility of the premise of relationality can be found in the influential works of Martin Chanock (1985) and Sally Falk-Moore (1986), who wrote meticulous ethno-historical monographs focusing on the interrelations between colonial regimes in Africa and various indigenous/customary legal systems.⁴¹ Instead of studying “customary laws” as ahistorical, pristine entities conveying indigenous cultures and values—as earlier works in legal anthropology had done⁴²—these authors convincingly argued that what came to be known as “customary laws” in Africa were by no means authentic or original remnants of undisturbed indigenous cultures, but rather new creations, which took shape in the context of asymmetric power relations between colonizers and colonized.

According to Chanock, for example, processes of state-sponsored legalization combined with economic and social transformations led to the dominance of a new version of customary law that suited the white administrators who ruled colonial society and the African male elders who assisted them. His analysis thus highlights the constitutive nature of the interrelations between legal orders, and moreover, it helps us escape the false dichotomies of essentialist, ahistorical, and power-blind conceptualizations.

Power

As argued by Michel Foucault, power is ubiquitous in human interactions: it “is, always already there,” and one cannot be outside of it.⁴³ Since law and legal orders are human-made, as most students of law-and-society would probably agree, they are shot through with power relations. This truism applies to the study of law in general, but it is all the more significant when one studies the interrelations between legal systems or bodies of law, as students of legal pluralism do.

An influential, yet misguided, criticism that has been leveled against the pluri-legal perspective is that it purportedly tends to “misrepresent the asymmetrical power relations that inhere in the coexistence of multiple legal orders.”⁴⁴ In sharp contradiction to this criticism, we contend that the pluri-legal perspective, as a perspective that focuses on relations, is also particularly attentive to power relations. Indeed, the pluri-legal literature of recent decades has been replete with studies of “power and legal pluralism,” tackling power relations both between legal orders and within them.⁴⁵ Boelens, Bustamante, and De Vos's study of water-rights contestations in the Andes presents a compelling example of this emphasis on power relations in pluri-legal research.⁴⁶ According to these authors, water—which is, of course, a vital resource in the Andes’ rural communities—is managed by “a dynamic and complex set of hybrid rules, rights and organizational forms: a tremendous diversity of context-defined ‘sociolegal repertoires’ or ‘normative systems’ can be found that generally combine non-local rule-making patterns with local organizational arrangements, frameworks of rights and rules for water distribution, system operation and maintenance.”⁴⁷ Yet Boelens et al. do not stop at identifying this multiplicity of normative orders—they also show how these orders are shaped by ongoing power struggles between a diverse set of actors, which include international and local corporations, national governments, human rights and indigenous rights organizations, and local interest groups. These interested parties not only struggle over concrete water rights, but also over the interpretative framework under which water rights should be decided: modernizing-national, global-neoliberal, or multicultural-traditional. Boelens et al.'s research is thus anything but oblivious to power relations. On the contrary, power constitutes the main axis of their pluri-legal analysis, which fleshes out conflicts of interest both within and between socio-legal domains—the local, the regional, the national, and the international. Their power-centered analysis proves to be particularly insightful and illuminating.

Agency

Finally, an obvious conclusion arising from the three premises outlined earlier is that a pluri-legal perspective must pay heed to agency. If the plurality of laws is a given feature of human societies, and if this plurality is constituted through ongoing power-embedded interactions and interrelations, then the agency of social actors—their (legal) actions and the understandings, motives, and choices that lead to these actions—is of prime interest to a pluri-legal perspective.⁴⁸

Keebet von Benda-Beckmann offers an insightful analysis of agency in a pluri-legal situation in her classic piece “Forum shopping and shopping forums: Dispute processing in a Minangkabau village in West Sumatra.”⁴⁹ This paper dwells upon agency as a key factor in shaping the pluri-legal domain of dispute resolution in Minangkabau, West Sumatra. It shows that the plurality of normative orders and dispute resolution forums in this social setting allows actors to exercise their agency by choosing among forums and maneuvering between them. Moreover, it is not only disputing parties who exert their agency by “shopping” for forums that best serve their interests; it is also third-party functionaries—engaged in dispute-resolution through formal or informal, communal or statal institutions—who may exert agency by “shopping for disputants” and by manipulating disputes and framing them in a manner that serves their own goals, be they political, economic, or otherwise.

Keebet von Benda-Beckmann's agency-centered analysis is thus a conspicuous example of the action-theory (or praxis perspective) that came to dominate pluri-legal research in recent decades.⁵⁰ She demonstrated that in order to understand a concrete situation of legal pluralism, one cannot settle for an abstract, structural macro-analysis of “coexisting” legal/normative orders devoid of actors and their choices; rather, one must direct attention to agents, their worldview, and their actions.

Conclusion

The four premises briefly outlined and exemplified earlier make up the core of a pluri-legal perspective. It is, of course, a pluri-legal perspective as we see it, and other legal pluralists would undoubtedly draft a different manifesto. Yet we would like to believe that most contemporary legal pluralists would find our framing agreeable. Having said that, many works in the field of legal pluralism are not built on the premises outlined above. In particular, works dating from the first decades of research into legal pluralism, between the 1970s and the 1990s, were especially prone to adopting essentialist conceptualizations of legal systems or bodies of law (e.g., of customary or indigenous laws) or to disregard power relations and agency. Such faulty applications of the pluri-legal perspective have indeed subsided over the years, but one cannot say that they have disappeared altogether.

We hope that our outline of a pluri-legal perspective helps to promote the ongoing debate on legal pluralism. We ourselves embrace in our studies broad and encompassing conceptualizations of law and of legal pluralism that extend the scope of this field of research, and we encourage others to do the same. By all means, employ the term “legal pluralism” for studying both contemporary societies and ancient ones, for examining plurality both within legal systems and between them, for exploring semi-autonomous social fields in both colonial and post-colonial contexts, and for studying the manifestations of legal plurality in local communities, nation states, and regional systems within a transnational context. Surely, the “Law” in each of these contexts, however defined, would be fundamentally distinct from the “Law” in other contexts. Yet, as long as we base our examination of the plurality of social regulation(s) on the four premises outlined earlier—plurality, relationality, power, and agency—we are in fact approaching the subject matter from a pluri-legal perspective. Certainly, we should continue to “rethink” and “revisit” legal pluralism. We should carry on innovative and pathbreaking research into uncharted territories of legal pluralism—undoubtedly, even after 50 years of extensive research into legal pluralism, such uncharted domains still abound—and we should continue to create new analytical tools that prove useful for analyzing the intricacies of the interrelations between legal orders. But we should do all that from the vantage point of a well-established, self-assured research perspective, without feeling the need to reinvent the wheel or to substitute an allegedly flawed theory with a new and better one.