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Citation: 20 J.L.

& Soc'y 192 1993


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JOURNAL OF LAW AND SOCIETY
VOLUME 20, NUMBER 2, SUMMER 1993
0263-323X
The Folly of the 'Social Scientific' Concept of Legal Pluralism
BRIAN Z. TAMANAHA*
Despite its relatively recent origin about two decades ago, the concept of legal
pluralism bears the marks of approaching ensconced establishment maturity.
There is the Commission on Folk Law and Legal Pluralism, with a registered
membership list that reads like the honour roll of living legal anthropologists;
there are biennial international conferences; there is a growing number of
published symposia; and, the ultimate sign of academic acceptance, there is
the Journal of Legal Pluralism, born out of a 1981 name-change of the old
Journal of African Law Studies. Consistent with these indicia, legal pluralism is
one of the dominant concepts in the field of legal anthropology. Moreover, it
has been claimed, 'legal pluralism can be seen as the key concept in a
postmodern view of law'.'
In this essay I will critically examine this precociously successful doctrine.
Thus far there has been scant detailed analysis of the concept of legal
pluralism, limited to a handful of articles written by a small circle of scholars.
Nonetheless, through the academic practice of repetitive citation and cross-
citation, a burgeoning body of legal pluralist works increasingly treats the
concept as if it were well established, its basic tenets worked out and now taken
for granted.
2
I will argue otherwise.
The thesis of this essay is that the concept of legal pluralism is constructed
upon an unstable analytical foundation which will ultimately lead to its
demise. I will begin with a review of the concept of legal pluralism,
emphasizing the implications of the inability of legal pluralists to locate an
agreed definition of 'law'. I will set out and evaluate the stated objectives of
legal pluralists. I will indicate why no attempt to formulate a single scientific or
cross-cultural definition of law can succeed. I will suggest an account of the
historical development of legal pluralism in order to offer an explanation of
how the concept originated and why it has thrived despite its flaws. Finally, I
will argue that legal pluralists have built a fundamental ambiguity into their
* Universitair Docent, University of Amsterdam, Cronenburg 13, 1081 GL
Amsterdam, Netherlands
I would like to thank the following for their critical comments on earlier drafts of this article: John
Griffiths, Gordon Woodman, Franz and Keebet von Benda-Beckmann, Andrew Ladley, Sally
Engle Merry, and Elizabeth van Schilfgaarde.
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notion of 'law', and that in important respects the concept of legal pluralism
cuts against legal pluralists' own expressed interests and concerns.
The concept must be entirely reconstructed, or retired.
THE THRESHOLD FLAW OF LEGAL PLURALISM
In a comprehensive review, Sally Engle Merry began by observing that legal
pluralism 'is generally defined as a situation in which two or more legal
systems coexist in the same social field'.
3
This unobjectionable definition was
only the starting-point. The first sign of an analytical problem appeared just
three sentences later, when Merry elaborated further: 'Recent work defines
"legal system" broadly to include the system of courts and judges supported
by the state as well as non-legal forms of normative ordering.'
4
The apparent contradiction (legal includes non-legal) in Merry's
formulation was not due to intellectual sloppiness - she was forced into it by
the fundamental assumption of legal pluralism. This assumption, as
prominent legal anthropologist Sally Falk Moore put it, is that 'not all the
phenomena related to law and not all that are law-like have their source in
government'.'
Legal pluralists insist that the state does not have a monopoly on law.
6
This
is the core credo of legal pluralism: there are all sorts of normative orders not
attached to the state which nevertheless are law. These non-state 'legal' orders
range from pockets within state legal systems where indigenous norms and
institutions continue to exert social control, to the rule-making and enforcing
power of social institutions like corporations or universities,
7
to the normative
order which exists within small social groups, from community associations to
little-league baseball,' down to and including even the family.
9
As should be immediately apparent, so generous a view of what law is
slippery slides to the conclusion that all forms of social control are law. Not
only does the term 'law' thereby lose any distinctive meaning - law in effect
becomes synonymous with normative order - other forms of normative order,
like moral or political norms, or customs, habits, rules of etiquette, and even
table manners are swallowed up to become law. The seriousness of this
problem is evidenced by Merry's plaintive plea:
Why is it so difficult to find a word for non-state law? It is clearly difficult to define and
circumscribe these forms of ordering. Where do we stop speaking of law and find ourselves
simply describing social life? Is it useful to call all of these forms of ordering law? In writing
about legal pluralism, I find that once legal centralism has been vanquished, calling all
forms of ordering that are not state law by the name law confounds the analysis."
0
At the very outset, then, legal pluralists stumble over their insistence that the
legal includes the non-legal (as Merry so aptly put it). The only apparent
solution to this problem is to come up with a definition of law independent of
the state, yet able to differentiate law from other forms of normative order.
None of these attempts, which I will canvass in a later section, have succeeded
in becoming a consensus favourite. Thus, legal pluralists are left with the
assertion that the legal includes the non-legal, while unable to provide a
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certain standard by which we are to identify the distinctively legal (now in the
broader legal pluralist sense) from the truly non-legal (those normative orders
even legal pluralists would not want to call law).
Adherents of legal pluralism readily concede this problem but march
onward undaunted, relying upon the intuitively attractive notion that even
with no test to distinguish law from non-law, we know it when we see it.
Gordon Woodman described this rather blithe attitude: legal pluralists 'have
generally been content to describe and analyse norms and activities which
seem to have a clearly legal character, without formulating a precise criterion
for borderline cases'." Although this is an accurate statement of their attitude,
his description is misleading in so far as it implies that the problem exists only
at the margins. Because it determines inclusion and exclusion at the outset, a
definition of law must be presupposed before there can even be a question of
borderline cases.
Almost nothing of what I have stated thus far would come as a revelation to
legal pluralists, for whom my recitation would be little more than an irritating
reminder of a flaw they have learned to live with. Their faith is that the concept
of legal pluralism works despite this flaw.
OBJECTIVES OF LEGAL PLURALISM: LEGAL CENTRALISM,
ETHNOCENTRISM, AND SCIENCE
The literature presents three basic objectives served by the concept of legal
pluralism. These objectives are contained in the seminal article 'What is Legal
Pluralism?"
2
written by John Griffiths, editor of the Journal of Legal Pluralism
and one of the leaders in the field. Griffiths's article is the only extant
comprehensive treatment of the concept of legal pluralism, and it is routinely
cited by legal pluralists for the basic postulates of legal pluralism. Thus, it will
be an important (though far from exclusive) source of my assertions about
legal pluralism, and it will be a primary target of my critique.'
3
The first objective is an instrumental one - to combat what Griffiths dubbed
the ideology of legal centralism:
According to what I shall call the ideology of legal centralism, law is and should be the law
of the state, uniform for all persons, exclusive of all other law, and administered by a single
set of state institutions. To the extent that other, lesser normative orderings, such as the
church, the family, the voluntary association, and the economic organization exist, they
ought to be and in fact are hierarchically subordinate to the law and institutions of the
state.
In the legal centralist conception, law is an exclusive, systematic, and unified hierarchial
ordering of normative propositions, which can be looked at either from the top
downwards as depending from a sovereign command or from the bottom upwards as
deriving their validity from ever more general layers of norms until one reaches some
ultimate norm.... It is the factual power of the state which is the keystone of an otherwise
normative system, which affords the empirical condition for the actual existence of 'law'.
Hence the necessary connection between the conception of law as a single, unified, and
exclusive hierarchial normative ordering and the conception of the state as the
fundamental unit of political organization."
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Griffiths believes that lawyers, legal theorists, and social scientists view law
in terms of this distorting ideology, to the detriment of their ability for
accurate observation and analysis:
A central objective of a descriptive conception of legal pluralism is therefore destructive: to
break the stranglehold of the idea that what law is, is a single, unified, and exclusive
hierarchial normative ordering depending from the power of the state, and of the illusion
that the legal world actually looks the way such conception requires it to look."
This objective is an article of faith for many legal pluralists, repeated so
often it has become a truism. Marc Galanter charged that' "Legal centralism"
has impaired our consciousness of "indigenous law".".
6
Franz von Benda-
Beckmann claimed that 'Legalistic ideology has not yet been fully banned
from the research methodology of sociolegal studies."
7
Boaventura De Sousa
Santos asserted that legal pluralist studies have served the important purpose
of revealing that 'the claim of the state to the monopoly of the production and
distribution of law is absurd'.
8
Peter Sack recently stated:
Lawyers and non-lawyers must accept the plurality of 'law' and learn to handle it
constructively - in theory as well as practice - instead of trying to define it away to the
detriment of all of us. This implies, of course, a switch from legal positivism and its bias in
favour of an increasing centralization, unification, and uniformization of 'law' to legal
pluralism.
9
Legal pluralist works are filled with uncompromising assertions of this sort -
that legal centralism is bad, a pervasive false ideology, and the concept of legal
pluralism will rescue us from its deluding effects.
One problem with evaluating these contentions is that legal pluralists
engage in almost no discussion about the nature of this supposed ideology,
and they offer no support to show that it exists and has the effects they claim.
Apparently, legal pluralists either believe it to be self-evident or they believe
Griffiths's brief treatment, set out above, to be enough. As I will show, the
notion of the ideology of legal centralism is, to put it bluntly, dubious.
First I must separate the first paragraph from the second in Griffiths's quote
above on page 194 and, within the first paragraph, the first sentence from the
second. The first sentence of the first paragraph - 'the law is and should be the
law of the state.., exclusive of all other law'- is part of a standard widely-used
definition of law, one developed out of the Austinian positivist legal tradition
which identified the law as a product of the sovereign. Usually this definition is
supplemented by additional criteria that indicate which commands of the
sovereign are law as opposed to something else.
2
" As a definition, it is not a
falsifiable ideology subject to disproof but rather a shared convention, though
of course we can discard this convention for another we find preferable.
Indeed, legal pluralists are attempting to do just that - substitute their view of
law for the currently dominant one. To call the competing definition they wish
to supplant an ideology is merely rhetorical stone-throwing.
Keeping in mind its definitional element, legal pluralists are correct in so far
as they mean this (and any) definition of law has ideological implications or
effects. It will shape what people see as law and how they think about law. If
one holds to a different definition of law - the 'really true' definition of law -
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Basil Blackwell Ltd. 1993
from this perspective any competing definition will have the ideological
consequence of perpetuating a falsehood. Thus, by branding the definition of
law as deriving from the state to be an ideology, legal pluralists are saying their
version of 'law' underlying legal pluralism is the objective or correct one, a
claim I will take up in detail in the discussion of science below.
The critical point here is that what is or is not ideological often depends
upon the perspective from which one speaks. Presumably legal pluralists
would concede that. lawyers and legal theorists can legitimately operate from
within the internal perspective to see law exclusively in terms of the state. If a
judge asks a lawyer to cite the law in a case, the lawyer is in no sense deluded
when responding by referring solely to statutes and court decisions.
Furthermore, from within this internal state law perspective, it would be
entirely justifiable to argue that legal pluralism is an ideological construct
foisted upon us by legal pluralists who want to bring down state law or raise up
the prestige of their version of non-state 'law'.
The assertion contained in the second sentence of the first paragraph - that
normative orderings such as those of church and family are subordinate to
state law - does describe a belief, but whether this belief is widely held as a
blanket matter is highly debatable. Certainly it depends upon which particular
normative ordering one is talking about and which particular state system. In
the Republic of Ireland it is unlikely that most people believe the normative
ordering of the church to be beneath the law (or even look at the relationship
between state law and religious norms in these terms). And few people inside
or outside the country believe that in Iran church canon is beneath state law.
Even in the United States of America, many people (including lawyers) would
say that the normative ordering of the church and the normative ordering of
the family are outside the purview of the authority of state law.
2
Many people
believe - consistent with the philosophy and culture of liberalism - that these
are realms of private normative ordering, prior to state law and not beneath it.
Griffiths and other legal pluralists have not accounted for these common
beliefs or how they square with their assertions about the nature of the
ideology of legal centralism.
22
Griffiths's least credible assertions are those contained in the second
paragraph. His description of law seen as 'a unified hierarchial ordering of
normative propositions' leading up to an 'ultimate norm' comes straight out
of the long defunct formalist perspective of law. Following the devastating
realist attack on these beliefs more than fifty years ago, few lawyers today
would describe the law in such terms.
2 3
But even assuming, for the sake of
argument, that lawyers do see law in this way, legal pluralism is barely if at all
relevant to this formalistic body of beliefs because they comprise a purely
internal description of the state legal system which legal pluralism does not
touch. The internal battle is fought within the field ofjurisprudence, carried on
by debunkers like adherents of critical legal studies, not by legal pluralists who
claim their 'law' is also law.
Finally, again assuming his neo-formalism accurately describes the lawyers'
view of law, Griffiths's assertion (also made by other legal pluralists) that social
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scientists are blinded by this ideology is especially implausible. One of the self-
professed characteristics of legal sociology is the external perspective on law
which its practitioners assume by way of contrast to the lawyers' internal
perspective.
4
This distinction is reflected in their work, which seldom
addresses law or legal institutions in terms of the ordering of legal norms.
Legal sociologists often study the actual functioning of state legal institutions,
the background ofjudges and its effect on their legal decisions, the nature and
influence of the legal profession, lay attitudes toward state law, or other
aspects of the state law system. These studies have significantly contributed
towards demystifying the law because legal sociologists directly cltallenge the
presuppositions which underlie the lawyers' internal understanding. The fact
that they take state law or some aspect of it to be their object of study (as
opposed to legal pluralism's version of 'law') cannot in any way be called the
product of ideological delusion. The legal pluralist charge - that 'many legal
sociologists submitted to, and inevitably romanticized the dominant legal
system
'
- is unsupportable.
This perfunctory testing of the supposed ideology of legal centralism reveals
much fluff surrounding one core point. Remember that Griffiths and other legal
pluralists claim that legal pluralism must defeat legal centralism because it is a
dominant set of false beliefs which distort how we see law. If in fact these
beliefs are not false (at least with regard to lawyers), are not widely held, or do
not have the deluding influence claimed (at least with regard to social
scientists), then one of the 'central objectives of the descriptive conception of
legal pluralism' is to combat a non-existent enemy. It would appear that legal
pluralists have created a fearsome, hegemonic opponent- legal centralism - in
order to inflate the significance of their conception of legal pluralism.
Blowing away the fluff, however, still leaves a core point - the dominant
(definitional) conception of the law sees the law as a product of the state. From
an anthropological point of view, this linkage of law to the state is
problematic. It implies that those societies without a state have no law. Since
law has for the past several centuries been seen by the West as the singular
characteristic of a civilized society, the ethnocentric implication of this linkage
is that pre-state societies were uncivilized. The second objective of legal
pluralism - referred to implicitly by Griffiths, but a more prominent concern of
earlier generations of legal anthropologists - is to combat this ethno-
centricity.1
6
While opposition to ethnocentrism is laudable, that in itself does not supply
a persuasive reason for adopting legal pluralism. Today state law is
ubiquitous. Thus use of the state law definition would not condemn any
existing society as uncivilized. Moreover, a more effective strategy would be to
identify state law for what it is - a contingent development which occured
initially in the West- and to suggest more appropriate cross-cultural measures
of the civilization of a society, such as how generously it treats its least well off
members. In any case, the attempt to measure civilization is now widely
condemned as an inevitably enthnocentric, useless exercise, and has been
largely abandoned.
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Adoption of the concept of legal pluralism is therefore neither necessary nor
the most effective way to counter ethnocentrism. If legal pluralism is to seize
the day, it must do so on its own merits. That is what the. argument from
science - the third objective - attempts to accomplish.
Griffiths's attack on legal centralism led directly to the claim of the scientific
superiority of legal pluralism:
This ideology [of legal centralism] is shown to reflect the moral and political claims of the
modern nation state and to be unsuitable and obfuscatory as far as the social scientific
study of legal pluralism is concerned."
That is the basic import of his contrast: 'Legal pluralism is the fact. Legal
centralism is a myth, an ideal, a claim, an illusion.'
28
His insistence that legal pluralism is fact went very far:
'Legal pluralism' is the name of a social state of affairs and it is a characteristic which can
be predicated of a social group. Itisnotthe name of a doctrine ora theory oran ideology...."
This is an extraordinary series of assertions. It appears that Griffiths is
arguing that legal pluralism is an unmediated look at social reality - that it
even gets underneath concepts to reach things ('the facts') as they really are.
After Thomas Kuhn's showing that even the natural sciences are based
upon series of shared paradigms which in effect construct the facts scientists
see,
30
and further, in this time of increasing sensitivity to the insights of
interpretivism,
3
" including recognition that social reality is socially
constructed through our ideas and beliefs, that Griffiths would make such
assertions without addressing their implications is surprising. One need not be
a sceptic to accept that law is a social construct and therefore there is no
unmediated access to law. Law is a conceptual creation. Also for scientists, a
concept of what law is must precede any observation of law as fact.
32
Griffiths and other legal pluralists are well aware of this, so they must be
making a different argument. They sometimes seem to be arguing that if one
wishes to be scientific, at least in terms of an 'empirical' or 'analytical' social
science, the legal pluralist vision of law is the only way to go. Franz von Benda-
Beckmann put it thus:
Legal pluralism, analytically conceived, is the nearly automatic consequence of an
analytical concept of law which distances itself from the dominant legal ideology, or
rather, from all legal ideologies that may exist in a society.
3
Masaji Chiba proclaimed that 'a sociology of law will be sure to be developed
into a truly international sociology of law through this study of legal
pluralism.'
34
When read together with their assertions about the blindness of
social scientists induced by legal centralism, legal pluralists appear to be
making the strong claim that all social scientists must or should view law in the
legal pluralist way.
35
If this is their contention, it is patently untenable.
The problem with such a contention is that the social sciences are
characterized by a pluralism of perspectives, all of which would claim to be
'empirical' or 'analytical', many of which are mutually exclusive or contra-
dictory.
36
Compare the sharp differences between, for example, Luhmann's
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autopoietic version of law, Mead's symbolic interactionist version, and
Marx's law as superstructure version. The social sciences generally, at least on
the level of theory, are currently undergoing the uncertainty (and imposed
humility) which accompanies deep critical self-examination, to the point of
questioning even their own nature and validity. Considering this state of
affairs, legal pluralist claims to authority from the perspective of an
overarching version of 'analytical' or 'empirical' social science are difficult to
fathom.
37
There can be no single social science view of law because there are
many different scientific perspectives and many different objectives of
enquiry.
38
Despite the sweeping impression their words convey, perhaps legal
pluralists are making a less grand claim. Their argument may go as follows:
(i) there is a particular phenomenon - a form of normative order or social
control - which can be identified cross-culturally and across all sorts of
groups; (ii) this phenomenon is 'law'; (iii) there is a plurality of social groups
everywhere, each with their own attendant normative (now 'legal') demands;
(iv) thus legal pluralism is a fact.
If this is the argument legal pluralists are urging, their science talk adds
nothing beyond the boost of legitimacy which accompanies resort to the
stamp of science. Science does not place weight on either side of the critical
issue at stake because science does not have ultimate authority over what is or
is not 'law'.
Granted that normative ordering or social control are universal
characteristics of social groups, the question remains, why must we take the
additional step ((ii) above) and attach to this phenomenon the label 'law'?
Why 'legal' pluralism rather than 'normative' pluralism or 'rule system'
pluralism? Legal pluralists, perhaps despite themselves, regularly lapse into
reference to legal pluralism as a state of plurality of normative ordering;
39
when they get down to identifying precisely what their 'law' is it usually
amounts to some variant of social control. Yet normative ordering is, well,
normative ordering; social control is social control. Both terms have been
widely used as sociological concepts, and neither is usually seen as coextensive
with law. Nevertheless, at least a few legal pluralists insist that 'all social
control is more or less 'legal'.'"
This position tramples everyday usage of these very familiar terms. Law, by
our common understanding, is something distinct from the notions of
normative order or social control. What that something is depends upon how
we define law.
WHAT IS 'LAW'?
Legal anthropologists, legal sociologists, and jurisprudence scholars have
long struggled to come up with a scientific or cross-cultural definition of law.
All such attempts to define law either focus on norms, or on institutions which
enforce the norms, or use some combination of both.
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In his classic work Crime and Custom in Savage Society, Malinowski
focused on norms: 'The rules of law stand out from the rest in that they are felt
and regarded as the obligations of one person and the rightful claims of
another.'
4
' Malinowksi added 'that reciprocity, systematic incidence,
publicity, and ambition will be found to be the main factors in the binding
machinery of primitive law'.
42
The problem with Malinowski's definition is the
same one which plagues legal pluralists today: his conception 'was so broad
that it was virtually indistinguishable from a study of the obligatory aspect of
all social relationships'.
3
To solve this problem theorists examined more carefully the element of
social sanction. While many social norms are felt to be obligatory, not all
infractions result in sanction. Eliminating those which are not backed up by
sanction offers an easy way to narrow the list of eligible norms. This move,
however, leads to another difficult problem. There are varying degrees of
sanction and they assume different manifestations, some of which we do not
want to call law. For example, social disapprobation is probably the most
prevalent sanction imposed upon infraction of norms, but that does not seem
to be enough. The sanction law carries is somehow more serious. Likewise,
self-help or retaliation can be and often is a serious sanction, though we resist
calling such action law. For us law has the character of involving a public, not
private, sanction.
Adamson Hoebel's formulation captured both of these intuitions:
[a] social norm is legal if its neglect or infraction is regularly met, in threat or in fact, by the
application of physical force by an individual or group possessing the socially recognized
privilege of so acting."
Hoebel's definition moved in the direction of focusing on the institutionalized
enforcement of norms. However, his formulation is at once too loose and too
restrictive to be satisfactory: too loose because it is still broad enough to
include certain types of retaliatory actions we would call politics or violence,
not law; too restrictive because the penalty is narrowly conceived - many of
our laws carry no threat of physical force.
Max Weber went a step further in the direction of institutionalization:
The term 'guaranteed law' shall be understood to mean that there exists a 'coercive
apparatus,' i.e., that there are one or more persons whose special task is to hold themselves
ready to apply specially provided means of coercion (legal coercion) for the purpose of
norm enforcement."
Again, the definition goes too far for cross-cultural purposes. Not all pre-state
societies had a specialized staff for norm enforcement.
6
One of the most influential tests has been formulated by positivist
jurisprudence scholar H. L. A. Hart. According to Hart, law exists where there
is a combination of primary rules of obligation, and secondary rules to
identify, apply, and change the primary rules.
47
A number of anthropologists
have adopted a version of Hart's test.
48
From a cross-cultural standpoint,
however, this test is problematic because, as Hart admitted,
49
it excludes
normatively ordered pre-state communities which lacked secondary rules.
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There are other tests. None have gained universal acceptance. A group of
prominent legal pluralist scholars announced their conclusion that non-state
'law' cannot be identified as a type; the most that can be identified is 'the
differentiation and organization of the generation and application of norms'."
Again the question must be asked, in view of this admitted inablility, how can
adherents so insistently (and aggressively) use the label legal pluralism?
My reason for setting out this list is not to reiterate the series of attempts and
failures to devise a universally acceptable scientific or cross-cultural definition
of law. Legal pluralists are intimately familiar with such attempts. Rather, my
purpose is to point out an often overlooked characteristic of these proposed
definitions.
With the notable exception of Malinowski's, every one of these attempts
draws upon the same strategy: their proponent locates the criteria for law by
extracting or emulating those elements which appear to be essential to state
law, then subtracting all trappings of the state. Similarly, the main test we
apply to determine whether the proposed definition captures what we mean by
law is to measure it against our intuitions about the essential characteristics of
state law, sans the state. These are rational strategies; indeed, since the state
law model is our paradigm for what the concept 'law' means, it is the only
sensible way to approach the task.' The confusion engendered by
Malinowski's approach is testament to the perils of undertaking an alternative
tack.
The implication of this point for legal pluralism should be apparent. Many
legal pluralists insist that state law is irrelevant to law as a concept (freed 'from
all legal ideologies'). Cross-cultural and scientific conceptions of law disavow
any connection to the state because the state is not a universal social fact but a
temporally and geographically contingent occurrence. Hence Woodman's
assertion: '[Non-state] law can be conceptualized independent of state law,
and in theory can exist without any relationship to state law.'
52
As it turns out, however, law's conceptual connection to the state cannot be
severed. State law, the reigning notion of law, originated in the separation of
state from society, with its concomitant division of public and private spheres.
In the above definitions, the search for the institutional aspect of norm
formulation or enforcement is nothing other than a smuggled reference to the
state bureaucratic legal apparatus. Thus, the state law model inescapably
provides the kernel of the concept of non-state 'law'.
The root source of the unbudging barrier subverting all attempts at
formulating a universal scientific or cross-cultural definition of law lies in the
goal itself. This goal is based upon the faith of the scientific or theoretical
attitude that there is something beneath the culturally generated, state-linked
notion of law - that law is a fundamental category which can be identified and
described, or an essentialist notion which can be internally worked on until a
pure (de-contextualized) version is produced.
53
Unsettling as it may be, there is
nothing beneath the culturally-generated notion.
4
Every scientific discipline is free to devise a definition of law suited to its own
particular objectives, although there are many bodies of scientific discourse
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and each is entitled to do the same. Kept within the bounds of its own
discourse, any such proffered definition of law is legitimate. Beyond these
bounds, when adherents assert that the commonly-held definition of law is
false, or that they alone have the one correct, factual version of law, they
exceed their scope of authority.
Legal pluralists must retreat to the more modest position that their version
of law is one among many, useful for certain purposes but not others. With
these corrections, very little is left of their many extravagant claims. Legal
pluralism must be of instrumental value if we are to adopt it - it must edify
more than obscure.
WHY 'LEGAL' PLURALISM?
The crux of my argument, which I will elaborate in the next section, is that an
inadvertent wrong turn was made in the theoretical development of this
concept. Curiously, several of the problems examined in detail in this article
are not new. Yet adherents of legal pluralism have continued to press forward
with an impressive degree of success in attracting new followers. Not only does
this unusual situation beg an explanation, it also raises the real possibility that
any attempt to pierce the legal pluralism balloon will pass ignored. Thus, in
addition to helping my substantive argument, I hope this brief account of why
the concept of legal pluralism developed in the way it has will lead to a reflexive
examination by legal pluralists that helps break the momentum of the
doctrine.
As with so much in this field, the standard account for the development of
the concept of legal pluralism can be found in Griffiths's programmatic article
on legal pluralism. Griffiths distinguished two kinds of legal pluralism, which
he polemically tagged 'weak' and 'strong'. For the paradigm example of weak
legal pluralism Griffiths pointed to M. B. Hooker's Legal Pluralism: An
Introduction to Colonial and Neo-Colonial Laws. Weak legal pluralism
developed out of studies of transplanted law, where the focus was on the
incorporation of customary law, or other sorts of indigenous norms and
institutions, within the state law regime. Law is pluralistic in these situations in
the sense that within the state law system there are different kinds of legal
norms - and sometimes different kinds of institutions, such as informal or
village courts -which apply or not depending upon the subject-matter at issue
or the population sub-group involved.
Griffiths sharply distanced this 'weak' version of legal pluralism from his
'strong' version. According to Griffiths, weak legal pluralism is just another
form of legal centralism because its implicit message is that all other laws
should be organized in a hierarchy beneath state law. He argued that weak
legal pluralism is the product of lawyers;
55
it has no connection with strong
legal pluralism other than the confusing overlap of labels.
Strong legal. pluralism, Griffiths' preferred version, is the product of social
scientists. The discussion in this article has been based upon strong legal
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pluralism - the scientific observation of the fact of a plurality of legal orders
which exists in all societies. Intellectual forerunners of strong legal pluralism
identified by Griffiths include anthropologist Leopold Pospisil, who
emphasized the multiplicity of legal systems belonging to sub-groups,
organized in terms of inclusiveness into various 'legal levels' in society; M. G.
Smith, who described law in terms of the internal order of 'corporate' groups
in society; Eugene Ehrlich's theory of 'living law', the lived rules of normative
order which he contrasted to state law; and Sally Falk Moore's theory of the
rule-generating and enforcing power of social groups, what she labelled the
"semi-autonomous
social field".
56
Griffiths described how each of the above theorists, in one respect or
another, saw law in legal pluralist terms. In the end he adopted Moore's
conception:
'Legal pluralism' refers to the normative heterogeneity attendant upon the fact that social
action always takes place in a context of multiple, overlapping 'semi-autonomous social
fields'...."
He also used Moore's notion to define law: 'law is the self-regulation of a
"semi-autonomous
social field".'
s
Significantly, at the outset Moore
expressed discomfort with using the label 'law' for the rules produced by her
semi-autonomous social fields, and proposed instead the unwieldy term
'reglementation',
9
which, understandably,
did not catch on.
One aspect of strong legal pluralism I wish to highlight is that the concept
has been developed predominantly by legal anthropologists or lawyers
interested in anthropology, though many adherents are sociologists. While the
line separating anthropology and sociology has never been absolutely sharp,
one long-standing distinction has been that anthropologists studied other
(non-Western) societies, whereas sociologists studied their own society.
Naturally, their respective interests and foci are reflected in the different sorts
of techniques and doctrines each discipline constructs.
A second prominent characteristic of strong legal pluralism, which was a
major concern for Moore in her reluctance to use the label 'law', is the fact that
it is applied by adherents to Western societies. Unlike traditional anthro-
pological work, which almost exclusively dealt with exotic far-away lands,
many strong legal pluralists (most of whom are from economically-developed
Western countries) have turned their attention to their own societies. Strong
legal pluralism is aimed at home.
Thus, in terms of both source of origin and field of application, strong legal
pluralism is a cross-over concept, a fact which has surprisingly significant
consequences.
I will now offer an alternative account of the intellectual history of strong
legal pluralism. Though he is not mentioned by Griffiths, the ultimate
intellectual ancestor of strong legal pluralism is Malinowski. His showing that
non-state societies nevertheless had 'law' was a superb volley in the battle
against ethnocentrism, and made an indelible impression on the field. In his
wake, even with the admitted difficulty of pinning down precisely what 'law' is,
anthropologists took for granted that it need not be attached to the state, and
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they were taught to see 'law' in terms of cultural systems of social order
(although their focus narrowed to indigenous dispute-processing institutions
as the specific locus for non-state 'law').
A substantial change occurred between the era in which Malinowski
worked and the period in which Pospisil worked: there were no longer any
stateless societies. Pristine versions of indigenous ordering no longer existed.
To make matters worse, the spreading tentacles of state law systems in
colonial and post-colonial societies made it increasingly difficult for legal
anthropologists to locate pockets of their last remaining refuge - isolated
geographical areas which the state legal system could not easily reach.
They quickly discovered, however, that even in locations where state law
could effectively exert power, the persistence of cultural systems of order could
be observed, thriving in the shadow of state law, often with norms and
institutions inconsistent with those of state law, norms and institutions which
looked very much like those they had been trained to see as non-state 'law'.
What stood out in these studies was the apparent weakness of state law relative
to these cultural systems of social order. Thus, in the eyes of legal
anthropologists, non-state 'law' coexisted with state law, the former socially
dominant but not given its due recognition as the real 'legal' order.
Contributing to the sense that cultural systems contained a kind of 'law', a
number of colonial state law regimes referred to or affirmatively incorporated
'customary law', often subject to a repugnancy clause. This practice was
consistent with the notion of indigenous 'law' residing in cultural relations.
Lawyers and legal anthropologists were called upon to distinguish those
cultural norms which were 'legal' from those which were social or political or
moral.' The very process of engaging in this task - despite its difficulties, and
despite the suspicion which later developed among legal anthropologists
about the very notion of customary law
6
- helped solidify the assumption that
non-state 'law' exists.
These circumstances laid the foundation for strong legal pluralism. As
Merry noted:
It is probably no accident that many of the prominent scholars in the new [strong] legal
pluralism . . . began their sociolegal research in post-colonial societies in which legal
pluralism was an obvious and unambiguous fact of life.
62
A qualitatively different factor in this development has to do with the
academic practice of legal anthropology. Legal anthropologists who did their
fieldwork in post-colonial societies returned home to assume positions as
faculty members in universities. Since the post-colonial societies they studied-
like their own societies - had state law, albeit not to the same degree of
extensiveness, it was an obvious and natural step to see the same phenomenon
of plurality of normative orders at home. This final step was facilitated by the
existence of sociological work - such as Stuart Macaulay's study of non-
contractual relations in business
63
- which pointed out the under-recognized
influence of private systems of normative order, reminiscent of the cultural
forms of social order observed by legal anthropologists in post-colonial
societies.
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Further, a subtle factor in the development and perpetuation of the concept
of legal pluralism has been the survival of anthropology of law as a discrete
sub-field within anthropology.'
4
By inclination and training, many legal
anthropologists have little interest in examining state law systems.
Consequently, if there is to be a field of legal anthropology, these legal
anthropologists are committed to an affirmative answer to the question of
whether there is such a thing as non-state 'law'. Their distinct existence as legal
anthropologists may depend upon it.
The nature of the symbol 'law', and nature of the study of law, have also
been contributing factors. In this era of the decline of religion, law has an
almost unmatched symbolic prestige, rivalled in influence only by science. It
carries connotations of right, certainty, and power. Accordingly, a tangible
sense of greater importance attaches to claims that 'law' permeates social life,
as compared with similar claims about just rules or norms. Exaggerating this
perceived importance of law, many legal pluralists have degrees in law and
hold positions in law faculties. Law is what they know and are experts in;
talking about law is their living. They are refugees from the study of doctrinal
state law who tend to see law even when they look away. In their 'discovery' of
non-state 'law', legal pluralists are merely articulating what their law-coloured
lens leads them to perceive in law-terms. After all, it would only occur to
persons trained in the law to conceive that the normative relations within the
family constitute a 'legal' order.
Finally, although some legal pluralists have expressly denied it,
65
and a few
will admit it only in private, there appears to be a significant political impetus
behind the commitment to call certain non-state normative orders 'law'. The
impact of this move is twofold- it lessens the stature of state law (by contesting
its monopoly over law) and it raises the respect for these newly crowned
versions of 'law' (by borrowing from the symbolic prestige of law).
65
Out of this confluence of circumstances, strong legal pluralism was born and
continues to thrive. Contained in this account are the grounds for the internal
argument against the concept of legal pluralism.
THE INTERNAL CRITIQUE
My internal argument against the concept of legal pluralism - offered on its
own terms to show that it is more confusing than enlightening - comes to two
basic objections, the first analytical and the second instrumental. On the
analytical level, legal pluralists have constructed their notion of 'law' in a way
which builds a fundamental ambiguity into their concept; with regard to
instrumental concerns, the implications of the concept of legal pluralism cut
against legal pluralists' own stated agenda and interests. To establish both
objections I must return to the work of Eugene Ehrlich and Sally Falk Moore.
Most legal pluralists, consistent with Griffiths, identify Ehrlich's 'living law'
and the self-regulation of Moore's 'semi-autonomous social field' as what they
mean by 'law'.
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Both notions are alike in their focus on the 'inner ordering' of
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associations or groups. Galanter defined law by reference to this inner
ordering:
By indigenous law I refer not to some diffuse folk consciousness, but to concrete patterns of
social ordering to be found in a variety of institutional settings - universities, sports
leagues, housing developments, hospitals, etc.
6
"
Moore characterized the rules involved in this inner ordering as 'rules which
could be said to have evolved 'spontaneously' out of social life'.
69
Though this identification of law seems reasonably straightforward, for
legal pluralists the enquiry into 'what is law' cannot end there because the ever-
persistent Malinowski problem immediately rears its unwelcome head.
Galanter heroically grappled with it in a footnote:
Social life is full of regulation. Indeed it is a vast web of overlapping and reinforcing
regulation. How then can we distinguish 'indigenous law' from social life generally?
Consider for example the kinds of regulatory order that are involved in dating, the
exchange of Christmas gifts, behavior in elevators and in classrooms. In each there are
shared norms and expectations about proper behavior; violations are visited with
sanctions ranging from raised eyebrows to avoidance to assaults, reputational or physical.
Clearly there is some sort of regulation going on here. In spite of the continuities, it may be
useful to have a cut-off point further 'up' the scale to demarcate what we want to describe
as 'law' of any sort, indigenous or otherwise ....
The scale that I visualize is one of the organization and differentiation of norms and
sanctions.... The differentiation is the introduction of a second layer of control- of norms
about the application of norms - along the lines of Hart's (1961) identification of law with
the union of primary and secondary rules and Bohannon's (1965) identification of law
with the reinstitutionalization of norms.
7
"
Most other legal pluralists who have attempted to tackle the problem have
come to a similar conclusion, locating 'law' on a continuum based upon the
degree of differentiation in the institutionalized identification and enforcement
of norms. As I indicated earlier, this test can be traced back to the state law
model.
The presence of the unforgiving Malinowski problem reveals that the legal
pluralists' understanding of living law resurrects a variant of Malinowski's
approach to law; they try to solve the difficulties attendant upon this approach
by supplemental resort to the state law model approach to law. Tellingly, no
legal pluralist has explained the relationship between these two ways they have
presented together of telling us what law is. It would appear that for legal
pluralists 'law' is concrete patterns of social ordering, delimited by the
criterion of institutionalization.
What legal pluralists fail to see is that this refinement upon living law inserts
a disabling equivocation into the heart of their concept of law. In taking the
second step, legal pluralists traverse an ontological divide which separates the
nature of the norms involved. A hint of this divide can be seen if we pose the
obvious question: how are concrete patterns of social ordering (first definition)
related to the institutional identification and enforcement of norms (delimiting
criterion)? The former refers to what people in a social group actually do, the
practices and customs they feel obligated to and follow as a matter of ongoing
social action;
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the latter refers to the coercive apparatus of that social group,
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to (in legal pluralist terms) that group's 'legal' institution. Since these two
aspects are very different, and they are derived from alternative ways of
viewing law, which of the two is 'law'? I
If legal pluralists say only the former is law, they are stuck with the
bedeviling Malinowski problem; if they say only the latter is law, they can talk
only about the institutions and their norms, and must stop referring to
concrete patterns of social ordering. Both options are unpalatable from their
standpoint. There is only one remaining option. If legal pluralists respond that
'both are law, seen in combination', they will be caught in a trap that turns
upside-down the essential thrust of Ehrlich's and Moore's analyses, a
predicament which is the product of the legal pluralists' desire to set out their
non-state 'law' as equivalent to or parallel with or on a continuum with state
law.
This trap becomes apparent when we line up non-state 'law' with state law
to see how (or whether) they really are parallel. It is easier to visualize this
parallel using the following table:
'Legal' Whose Social
Mechanism of Order is Nature of
Sanction Controlled 'Legal' Norms
Non-State Law Institutional That of immediate Concrete patterns
apparatus for social group f social ordering
identification and
application of
norms
State Law State legal That of society
institutions (courts, covered by legal
etc.) system
The problem is this: legal pluralists, consistent with Ehrlich's and Moore's
analyses, cannot fill in the empty box with concrete patterns of social ordering,
because the point of both analyses was that social life is thick with group-
generated patterns of normative ordering which often are inconsistent with
the dictates of state legal norms.
One strategy we can use to fill in the empty box would be to start from the
state law end, identifying the state legal norms in the usual sense of statutes or
court decisions. But, if we are to maintain the parallel, this strategy would also
require that we drop reference to concrete patterns of social ordering in the
non-state 'legal' norms category and replace it with the norms identified and
applied by the non-state 'legal' institutions. These norms may or may not
coincide with the norms followed in the concrete patterns but, regardless, they
will not themselves be those concrete patterns of social ordering or the norms
involved in these patterns; no matter how close the relationship or overlap
there is always a space between the two.
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The consequence of this second
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strategy is that we will no longer be talking about concrete patterns of social
ordering.
It should by now be apparent that there is a problem with combining the
two divergent ways of seeing 'law' that legal pluralists have jammed together.
'Law' as concrete patterns of social ordering and 'law' as the institutionalized
production and appplication of norms, for reasons I will state shortly, simply
cannot be squeezed into a single category. Before giving up entirely, let us
attempt to find some other way to draw a direct parallel between state law and
legal pluralists' non-state 'law'.
We could ignore the empty box, begin with legal pluralism's first sense of
'law' - concrete patterns of social ordering- and see what it matches up with in
state law. This approach, however, leads to another surprising discovery. The
most direct parallel of non-state 'law' in state law is not the maintenance of
normative order in society, it is the social order of the groups which make up
the legal institutions themselves, that is, the groups which comprise each
court-house, or a given legislature, or a local bar association, or each police
precinct. The concrete patterns of social ordering within these groups are the
'living law'. This is the closest parallel in state law to legal pluralists' non-state
'law' because the normative ordering addressed by legal pluralism is that of the
group or association which 'spontaneously' gives rise to and lives the laws
generated: 'law is the self-regulation of a "semi-autonomous social field".'
73
For the semi-autonomous social field, the norms are the norms of the semi-
autonomous social field; in contrast, for state law, the norms we normally
speak of are the norms administered by the state legal system. The norms of
the semi-autonomous social field are caught up in a self-referring circle,
74
whereas state legal norms point outward, toward society at large."
Try any strategy - the result will be the same. It is impossible to line up as
directly parallel, matching head to toe, legal pluralists' 'law' (in its combined
form) with state law.
There is no mystery to this intractability. Lived norms are qualitatively
different from norms recognized and applied by legal institutions because the
latter involves 'positivizing' the norms, that is, the norms become 'legal' norms
when they are recognized as such by legal actors. Hart explained this process
through his combination of primary and secondary rules.
76
Pursuant to the
secondary rules, legal actors make norms into primary rules, thereby
bestowing upon them 'legal' status. In a manner of speaking, this process
severs whatever connection the norms may have had with norms actually
prevailing in social life.
77
What the legal institution (whether the state legal
institution or the non-state 'legal' institution) does with these norms (how they
are interpreted and applied) will be entirely independent of their nature and
existence in social life; and many of these positive legal norms will never have
had any relationship at all to lived norms - at best, they are gross
approximations (in form or effect) of actually lived norms, and many are the
product solely of internal specialization and development of other legal norms
by legal actors.
Due to its life within the legal apparatus of the state, a state law norm is law
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regardless of whether its norms actually relate to concrete patterns of social
ordering. But a norm of non-state 'law' (in the concrete patterns of social
ordering sense) ceases to be 'law' when it is no longer a part of the social life of
the group. Without recognizing its full implications, Woodman made this very
point:
The norms of folk law [non-state law] may have the same content as those of state law, but
their criteria of existence are different. Thus if a norm of state law ceases to be socially
observed it may continue to be a valid norm of state law, but this is not the case with norms
of folk law."
The legal pluralist desire to append the same term ('law') to both kinds of
norms, in conjunction with the assertion that 'there is not always a clear
separation between norms of legislation and of [non-state law]',
79
indicates
that the distinction between the two is inconsequential, one of degreee - a
matter of form not substance. However, properly seen in terms of their
different criteria of existence, state law norms and non-state 'law' norms are
two starkly contrasting phenomena, not at all alike. Stated more strongly,
they are ontologically distinct.
Besides constructing their notion of law in an internally disjointed and
conflicting way, by assimilating these two very different kind of norms (lived
norms and state law norms), legal pluralists eviscerate the essential point so
painstakingly made by Ehrlich himself- the fundamental difference between
rules of conduct and norms for decision:
Only we must bear in mind that what has been said about the rule of conduct must not be
applied to the norm for decision; for courts may at any time draw forth a legal proposition
which has been slumbering for centuries and make it the basis of their decisions .... The
norms operate through the social force which recognition by a social association imparts
to them, not through recognition by the individual members of the association."
Ehrlich's argument is not just the familiar one that there is a gap between the
law in the books and the rules of social life - it is that the two are categorically
distinct in nature. In their appropriation of Ehrlich's living law, legal pluralists
have dressed it up in new garb which conceals what he had exposed.
One source of this unintentional transmutation is the distorting effect,
alluded to earlier, of legal pluralism's cross-over of the blurred boundary
separating anthropology and sociology. Sociologist Ehrlich's objective in
formulating his concept of living law based upon actual patterns of social
conduct was to establish a contrast with state law. This contrast carried with it
a sharp critical bite against the claim often made on behalf of state law that it
enforced or reflected the norms of the community.
Early legal pluralists were trained in the anthropological tradition of
Malinowski, in which the 'law' found in ordered social conduct was seen as
equivalent to or parallel with state law. Thus, legal pluralists approached from
a direction which emphasized equivalence to state law (applying a concept that
originated in a non-state law context), and they absorbed a notion which
Ehrlich constructed to highlight contrast (developed in a context with state
law).
From the standpoint of legal pluralists' own expressed interests and
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concerns, there are two connected, negative consequences to this shift in
orientation from contrast to equivalence - the first relates to their battle
against the ideological claims made on behalf of state law, and the second
relates to the study of post-colonial situations of transplanted law. I will
address the issue of ideological claims first.
Our concepts shape as well as limit what we perceive. The concept of legal
pluralism tends to perpetuate the assumption that state law norms and
institutions are in fact involved in the maintenance of societal normative order
- that is what legal pluralists see as the business of state law, what state law
does. This impression is conveyed with the legal pluralists' assertion that they
have identified law-like phenomena of normative ordering equivalent to or
parallel with (or among a plurality with) state law. Thereby, what should be an
open and sometimes pressing question - to what extent is state law really
involved in maintaining societal normative ordering? - is seldom directly
posed by legal pluralists.
81
State law norms, in their positivized life, exist as part of a large body of
specialized discourse shared by the community of legal minions. As Ehrlich
noted, within the context of the legal institution state law norms internally
serve to justify legal decisions. Lawyers cite (and manipulate) these norms on
behalf of their cause, and judges cite (and manipulate) these norms as the
grounds for the outcome of a case. They are used to support the exertion of
power by the state legal apparatus, whether or not the said exercise of power
has anything to do with effectuating the substantive content of the norfns
referred to in the decision authorizing the exertion of power, and whether or
not this exercise of power is related to or in the furtherance of the maintenance
of societal normative order.
The actual extent of social control activity of a given state legal system is,
therefore, an empirical question to be investigated, not an aspect to be
presupposed as the defining characteristic of state law. If legal pluralists
accepted the standard view of law as state law,
82
they would be free to examine
in each case, as separate questions, whether or when or in what ways state law
(this legal apparatus).actually is involved in maintaining the normative order
of society. One standard, among others, applied to test state law against this
claim would be a comparison with those lived rule systems which legal
pluralists now identify as law. The critical potential of this approach is far
greater than the current claims of legal pluralists that their rules and
institutions are 'law' too.
This conclusion leads into the argument against the concept of legal
pluralism from the study of transplanted law. The distinction between rules of
conduct and norms for decision is of particular relevance in formerly
colonized areas, many of which underwent substantial transplantations of
legal norms and institutions from the colonizing power. While each situation
is different, making it risky to generalize, the transplanted state law norms -
invariably different from indigenous lived norms - are frequently a kind of
virtual norm, with an existence only on paper until invoked to justify the
decisions and actions of the state legal apparatus;
83
this transplanted state
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legal apparatus often exerts power only in selected geographical areas (cities),
on selected subject matters (commerce, crime), and for selected purposes
(economic development, political repression, maintain grip on power, direct
financial gain to certain persons or groups, symbolic gestures, legitimation).
As to societal normative ordering more generally, the state legal system is
often indifferent, either in tacit recognition of its impotence, or because the
persons controlling or using the state legal apparatus have other priorities.
In these situations, the state legal system is best seen not as a mechanism for
maintaining societal normative order, but as an instrument of power in
society, available primarily for the 6lites, who wield it in all sorts of ways in
pursuit of their own (and sometimes public) interests.
84
By seeing state law
primarily in terms of normative order, legal pluralists tend to miss this bigger
picture. In post-colonial regions which have traditionally been their area of
special interest, state law is better understood by way of contrast with the lived
norms of social order, not equivalence.
5
Legal pluralists may well have other political reasons for wanting to use the
label 'legal' pluralism which I have not taken into account. As long as these
reasons are kept hidden behind the mantle of science, however, we will not be
able to fully evaluate the interests at stake. Such reasons, if any exist, must be
weighty if they are to offset the confusion and limitations contained within and
created by the concept of legal pluralism.
CONCLUSION
Clearly there is a compelling intuitive impulse to describe as law or law-like
certain dispute resolution institutions and norms found in pre-state societies,
and in post-colonial societies where the power of the state is weak and
indigenous institutions are dominant. Just as clearly, however, there is little
intuitive attractiveness in saying that the customs of the garment industry or
the normative relations within the family are law. There are no good reasons
to fight these intuitions. They operate on two different axes.
As I have established, when legal pluralists refer to 'law', they have
identified and run together two very different phenomena: institutionalized
identification and enforcement of norms, and concrete patterns of social
ordering. The above intuitions, respectively, match up with these two
phenomena.
In the former situations, especially when the specific purpose of the enquiry
is to show parallels with state law in its institutional enforcement of norms,
these norms and institutions can and should be called law or law-like. For
these purposes, legal pluralism reminds us that there is a useful comparative
perspective on state law, or put differently, a comparative perspective on
institutionalized norm-enforcement, of which state law is just one
manifestation. In selected instances (and with due care) it will be informative
to extend the comparison to institutions of norm-enforcement in Western
societies. This comparative perspective is an analytical tool for orienting the
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field of study, not the foundation-stone for a universal (or postmodern) legal
science.
With regard to the latter situations, the term law should not be used because
the normative order they describe - concrete patterns of social ordering - is
more unlike than like state law. Though legal pluralists can continue to call
this phenomenon 'law', the benefits of doing so are not obvious. Neither
Macaulay nor Moore attached the label 'law' to the lived normative orders
they identified, with no loss of information or influence. And the insights
produced by the works of legal pluralists seldom hinge upon their use of the
label 'law'.
I offer a pragmatic suggestion. The legal pluralist attachment of the word
'law' to lived systems of normative order adds no information, and generates
resistance and confusion. Consider instead substituting the words 'rule
system' for the word 'legal',
86
a move which immediately discharges the
baggage carried by the term 'law', and frees 'rule system' pluralists to define
their concept in a way which matches the phenomenon they wish to capture.
Do not be misled by this simple alteration into thinking the entire question
rests upon verbal niceties. It is a substantive change which entails giving up the
claim that lived patterns of normative ordering are 'law'. For the purposes of
these kinds of enquiry, 'law' is the law of the state. And legal pluralists must
stop charging those who hold to this view of law with suffering from
ideologically-induced blindness.
To the question 'What's in a name?', the answer for legal pluralism is - very
much - 'the coherence and development of an important conceptual insight'.
NOTES AND REFERENCES
1 S. E. Merry, 'Anthropology, Law, and Transitional Processes' (1992) 21 Ann. Rev.
Anthropology 357 at p. 358.
2 The primary target of this critique is the concept of legal pluralism. For the most part I do not
directly criticize works claiming to be legal pluralist, although I argue that the insights
provided by these works do not depend upon the concept of legal pluralism and may be
hindered by it.
3 S. E. Merry, 'Legal Pluralism' (1988) Law and Society Rev. 869 at p. 870.
4 Id. (emphasis added).
5 S. F. Moore, 'Legal Systems of the World' in Law and the Social Sciences, eds. L. Lipson and
S. Wheeler (1986) 15.
6 There is always a problem with using a descriptive group noun - such as 'legal pluralist' -
when referring to adherents of an academic movement or paradigm. As Moore notes in her
review, 'legal pluralism does not have the same meaning for everyone' (op. cit., n. 5, p. 22).
Individual legal pluralists have many differences with one another, just as the 'realists' did
(compare J. Frank, M. Cohen, and K. Llewellyn), and 'crits' do, and so forth. Nonetheless,
there are unifying themes. Virtually all legal pluralists accept the proposition that the state
does not have a monopoly on law, and from this single proposition many implications
follow. It is this core theme and its implications that I focus on when characterizing 'legal
pluralism' and 'legal pluralists', granted that individual legal pluralists may take exception to
certain propositions affirmed by other legal pluralists.
7 See M. Galanter, 'Justice in Many Rooms: Courts, Private Ordering, and Indigenous Law'
(1981) 19 J. of Legal Pluralism I at pp. 17-18.
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8 Gordon Woodman observed that there is a 'folk law of games or sports' (statement of G.
Woodman, 'Introduction' in People's Law and State Law: The Bellagio Papers, eds. A. Allott
and G. Woodman (1985) 18.
9 See P. Fitzpatrick, 'Law, Plurality, and Underdevelopment' in Legality, Ideology, and the
State, ed. D. Sugarman (1983) 159.
10 Merry, op. cit., n. 3, pp. 878-79.
11 G. Woodman, English translation for 'Folk Law' entry in Dictionnaire Encyclopedie de
Thkorie et de Sociologie du Droit - Supplement, reprinted in Newsletter XX, Commission on
Folk Law and Legal Pluralism (September 1991) 34. Woodman did not specifically identify
legal pluralists in this sentence, but instead referred to folk law, another name for non-state
law.
12 J. Griffiths, 'What is Legal Pluralism?' (1986) 24 J. of Legal Pluralism 1. Although this article
was published in 1986, an earlier unpublished draft had been circulating (and had been cited)
since 1979.
13 This emphasis on Griffiths's article opens me up to the charge that I unfairly use it in a 'straw
man' attack on the concept of legal pluralism. I have three responses: (i) his article is by far
the best-argued and most detailed analysis of the concept; (ii) the overwhelming majority of
legal pluralist works cite Griffiths's article (or cite works which in turn cite Griffiths) as
authority on the concept, usually without criticism or reservation; and (iii) I have filled this
work with citations and direct quotations from other legal pluralists concurring on points
made in Griffiths's article. Herein, I hold legal pluralists to their words and citations, not to a
straw man.
14 Griffiths, op. cit., n. 12, p. 3 (emphasis in original, citation omitted).
15 Ibid., pp. 4-5 (emphasis in original).
16 Galanter, op. cit., n. 7, p. 18.
17 F. von Benda-Beckman, 'Comment on Merry' (1988) 22 Law and Society Rev. 897 at p. 897.
18 B. De Sousa Santos, 'Towards a Postmodern Understanding of Law' in Legal Culture and
Everyday Life, ed. A.-J. Arnaud (1989) 117.
19 P. Sack, 'Introduction' in Law and Anthropology, ed. P. Sack (1992) xxi.
20 Hart's primary and secondary rules serve this purpose of identification. See H. L. A. Hart,
Concept of Law (1961).
21 Religion and the family are believed to be outside state law, not because state law affirmatively
says so, but because many people simply believe that to be the case, as residual cultural
notions based upon natural law or natural rights.
22 Again, Griffiths is not alone among legal pluralists in making such assertions. See Galanter,
op. cit., n. 7, p. 17.
23 Legal philosopher Ronald Dworkin takes a remotely analogous position. See R. Dworkin,
Law's Empire (1986). Dworkin does not claim, however, that the law contains this hierarchy;
rather, he argues that the liberal political morality underlying the law provides such a
hierarchy.
24 See R. Cotterrell, The Sociology of Law (1984) 2-8.
25 F. von Benda-Beckmann, 'Distance or Submission: On Difference in Socio-Legal Studies',
address to the Socio-Legal Group's annual conference (1989) 2.
26 See M. Chiba, 'Toward a Truly International Sociology of Law Through the Study of the
Legal Pluralism in the World' in A.-J. Arnaud (ed.), op. cit., n. 18, 134 (claiming that analysts
'freed from Western bias... conceptualized the term "legal pluralism"...
27 Griffiths, op. cit., n. 12, p. I.
28 Ibid., p. 4. But see Benda-Beckmann, op. cit., n. 25, p. 7 (cautioning against a myth-fact
contrast of legal centralism and legal pluralism).
29 Griffiths, op. cit., n. 12, p. 12.
30 See T. Kuhn, The Structure of Scientific Revolutions (2nd ed. 1970). My argument is not the
idealist one that physical reality is the creation of our consciousness. It is the more limited
argument that the names, concepts, and categories through which we describe and observe
this reality are socially constructed. A recent reminder of this was the discovery of a species of
algae, Dinoflagellates, which possess characteristics of both plants and animals, categories we
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normally believe to be mutually exclusive. 'Monster of the Deep: Plant or Animal?' Int.
Herald Tribune (European edition) 20 August 1992, p. 7. These algae are not freaks which
violate -laws of nature, they just do not fit into our socially-constructed categories.
31 See generally D. R. Hiley, J. F. Bohman, and R. Shusterman (eds.), The Interpretive Turn
(1991).
32 See K. Popper, The Poverty of Historicism (2nd ed. 1960) 134-36.
33 Benda-Beckmann, op. cit., n. 25, p. 7.
34 Chiba, op. cit., n. 26, p. 136.
35 Griffiths even suggested that without the scientific (non-taxonomic) approach to law urged by
legal pluralists 'the sociology of law has no distinct empirical object to study, that is, that it
cannot exist as a discipline'. J. Griffiths, 'The Division of Labor in Social Control' in Towarda
General Theory of Social Control Vol. 1, ed. D. Black (1984) 45.
36 See generally A. Giddens and J. Turner (eds.), Social Theory Today (1987).
37 In its focus on social control, the legal pluralist view of law originated in the functionalist
social science perspective, just one perspective among many, and one not presently favoured
by sociologists.
38 '[S]ociology has produced no agreement on the correct theoretical approach or perspective
from which to mount the search for such a [single, all-embracing] theory. This is because
sociology has always been called upon to serve a number of purposes.' J. Wilson, Social
Theory (1983) 10.
39 See, for example, Griffiths, op. cit., n. 12, pp. 13, 14, 34; Galanter, op. cit., n. 7, pp. 20, 33.
40 Griffiths, op. cit., n. 12, p. 39, n. 3 (emphasis in original, citation omitted).
41 B. Malinowski, Crime and Custom in Savage Society (1985 [1926]) 55.
42 Ibid., p. 68.
43 S. F. Moore, Law as Process (1978) 220.
44 A. Hoebel, The Law of Primitive Man (1954) 28.
45 M. Rheinstein, Max Weber on Law in Economy and Society (1954) 13.
46 Malinowski (op. cit., n. 41, pp. 58-59) emphasized this point: 'It scarcely
needs to be added that 'law' and 'legal phenomena', as we have discovered, described, and
defined them in a part of Melanesia, do not consist in any independent institutions.'
47 Hart, op. cit., n. 20, pp. 89-96.
48 See L. Fallers, 'Administration and the Supremacy of Law in Colonial Bugosa' in Social
Anthropology andthe Law, ed. I. Hammett (1977) 56; P. Bohannon, 'The Differing Realms of
the Law' in The Ethnology of Law, ed. L. Nader (1965) 36.
49 Hart, op. cit., n. 20, pp. 89-91.
50 Goodman: chairman's summary in 'Introduction', op. cit., n. 8, p. 20. A number of legal
pluralists have concluded that a non-taxonomic identification of law is the only solution to
the difficulties with locating law as a type. Accordingly, several have suggested that law can be
identified on a continuum based upon the degree of differentiation of institutionalized norm-
enforcement (placing legal pluralism on this continuum along with state law).
This 'solution' does not escape the taxonomic enquiry of what law is, it presupposes the
answer. Continuums that purport to represent the entire range of a particular phenomenon,
excluding all else which does not fall within its category, are implicitly taxonomic. Use of the
institutionalized enforcement of norms as the criterion for placement on the continuum
means this characteristic defines law's 'type'.
51 Anthony Giddens's notion of the 'double hermeneutic' - which recognizes that social
scientists study and draw concepts from a social world preconstituted by shared meaning -
explains the inadvisability and futility of attempts to ignore or override commonly-shared
meanings in the name of scientific purity. A Giddens, New Rules of Sociological Method
(1976) 158.
52 Woodman, op. cit., n. 11, p. 34.
53 In their claim to have located an ideology-free concept which is necessary for the scientific
study of law, legal pluralists commit what Karl Popper identified as the error of
'methodological
essentialism' (op. cit., n. 32, pp. 28-30, 136).
54 See Moore, op. cit., n. 43, p. 17 ('The conventional category "law" (meaning rules
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enforceable by government) is a category of our own culture. When it is applied by
anthropologists to societies that are very different in structure, what is being sought are
analogous phenomena.')
55 Griffiths, op. cit., n. 12, p. 14.
56 Ibid., pp. 14-37.
57 Ibid., p. 38.
58 Id.
59 Moore, op. cit., n. 54, p. 18.
60 See generally Tamanaha, 'A Proposal for the Development of a System of Indigenous
Jurisprudence in the Federated States of Micronesia' (1989) 13 Hastings Int. and Comparative
Law Rev. 71 at pp.
9 9
-106.
61 See F. Snyder, 'Colonialism and Legal Form: The Creation of Customary Law in Senegal'
(1981) 10 J. of Legal Pluralism 49.
62 Merry, op. cit., n. 3, p. 874.
63 S. Macaulay, 'Non-contractual Relations in Business: A Preliminary Study' (1963) 28 Am.
Sociological Rev. 55.
64 See J. Starr and J. F. Collier (eds.), History and Power in the Study of Law (1989). The editors
point out that during the past decade 'several scholars have called for the abolition of the
anthropology of law' (ibid., p. 2).
65 See Griffiths, op. cit., n. 35, p., 45.
66 De Sousa Santos (op. cit., n. 18, p. 117) acknowledged the first consequence: 'Relativized in
this way, law in general and most particularly state law is trivialized and decanonized.'
67 See, for example, Galanter, op. cit., n. 7, p. 17, n. 24; Chiba, op. cit., n. 26, p. 135; Fitzpatrick,
op. cit., n. 9, pp. 159, 161. Although it is not clear to me that Ehrlich's living law and Moore's
semi-autonomous social field coincide, I will follow the legal pluralist lead and interpret them
as consistent because my concern is with the legal pluralist understanding and position.
68 Galanter, op. cit., n. 7, pp. 17-18 (emphasis added).
69 Moore, op. cit., n. 43, p. 80. She contrasted these rules with 'rules that were consciously made
by legislatures and courts and other formal agencies to produce certain intended effects' (id.).
70 Galanter, op. cit., n. 7, pp. 18-19, n. 26.
71 This formulation contains a straddling of sorts - a result of poor development by legal
pluralists of precisely what they mean - which should be addressed. There are three different
levels of looking at what is involved in the notions of 'inner ordering of an association' or
'concrete patterns of social ordering'. The first level is the level of action. This refers to the
patterns of actual conduct, what people are doing. The second level is the level of self-
conscious norms, that is, what the people who are doing (those involved in the action) would
identify as the norms they are adhering to if asked to articulate the rules they follow. The
third level is what an observer (like a sociologist or legislator) would identify as the norms
followed by the social actors in the course of their actions.
The complexity of the situation lies in the fact that there is seldom a correspondence
between these three levels. People often do one thing, yet articulate a different set of norms -
the norms we espouse are notoriously unreliable predictors of action. In such instances the
first and second levels would diverge. The third level is suspect because it is an external
interpretation which is a product of the interests and perspective of the observer, and
consequently is always contestable. For example, a Marxist analyst would interpret action in
terms different from a Freudian analyst, and as a result would see different norms at play,
operating in different ways.
I have deliberately left out a fourth possibility: the norms which are followed in reality.
While we can conceive of this possibility analytically, social scientists (and legislators) cannot
escape the perspective-bound third level. To do so requires access to an Archemedian
standpoint which does not exist; so it cannot be included here as a potential choice.
Consistent with the legal pluralist emphasis on actual conduct, I interpret 'concrete
patterns of social ordering' in terms of what people actually do, accompanied by the felt sense
of obligation which led them to act as they do. This combination can best be described as
action (plus felt obligation). By adding felt obligation as an internal (experienced)
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concomitant to action, I am setting up action as the cornerstone, but limiting this to
normative oriented action (as distinct from reflex or habit). In the sense I use it, 'felt
obligation' makes no commitment about the nature of the norms in operation, and focuses
only on the fact of the experience of the obligatory aspect of the action.
72 'Concrete patterns of social ordering' refers to the level of action itself, whereas the non-state
'legal' institutions will be applying norms extracted from this level of action; the norms
espoused by such institutions will never completely match those norms actually generating a
sense of felt obligation in social life. First, as I argued in the preceding footnote, there is no
way to be sure that the correct norm has been identified. Assuming the correct norms, the
very process of extracting, articulating, and applying these norms ensures that they will be
changed in form, operation, and effect.
In a sense, this situation is the same as exists between the state legal system and society,
brought down to the level of the semi-autonomous social field and its 'legal' institutions. A
kind of reiterative regress is involved in this formulation. A 'legal' institution (of the state
kind or non-state kind) can never catch up with concrete patterns of social ordering.
Whenever there is an institutional apparatus for norm-enforcement, the norms recognized
and referred to by this institution will be positivized, and that very act cuts them off from
actually operative norms.
Ironically, by suggesting that non-state 'law' can be found in those situations where bodies
of observed norms are accompanied by institutionalized enforcement mechanisms, legal
pluralists duplicate at the non-state 'law' level the very error that Ehrlich exposed on the state
law level. This error is the assumption that there is a direct correspondence between actual
patterns of social conduct and the presence and actions of institutionalized norm-
enforcement.
73 Griffiths, op. cit., n. 12, p. 38 (emphasis added).
74 At times Moore's notion of the semi-autonomous social field appears to contain the same
internal conjunction of two different kinds of norms I have just pointed out. She talks about
spontaneously generated rules actually followed, but she also talks about the production and
application of rules, without addressing the relationship between the two. By her own
account, the semi-autonomous social field was intended primarily to serve as a
methodological device for orienting the field of study (op. cit., n. 43, p. 78). When confined to
these purposes, the semi-autonomous social field is an excellent concept. When required to
bear the analytical weight legal pluralists place on it, the semi-autonomous social field is
inadequate to the task.
75 There are state legal norms which apply inward. These are Hart's secondary rules, the norms
followed by members of the legal institutions in the identification and application of the
primary rules. However, when legal pluralists refer to state law, that reference is ordinarily to
primary rules, and these are the rules which point outward to society.
76 See Hart, op. cit., n. 20, pp. 89-96.
77 Legal anthropologists have witnessed at first hand one manifestation of this positivizing
severance in colonial and post-colonial countries which have attempted to incorporate
customary norms into the state legal system. Woodman concluded that 'the norms cannot
retain their original content as components of a different system' (Woodman, 'Customary
Law, State Courts, and the Notion of Institutionalization of Norms in Ghana and Nigeria' in
op. cit., n. 8, p. 157).
78 Woodman, op. cit., n. 11, 34. Despite recognizing this distinction, Woodman goes on to
assert that 'there is not always a clear separation between norms of legislation and of folk law'
(id.).
79 Id.
80 E. Ehrlich, quoted in Griffiths, op. cit., n. 12, p.-26.
81 Legal pluralists (and legal sociologists generally) have repeatedly shown that social norms (or
non-state 'law') often conflict with and are more compelling than state legal norms. Their
point is that the state is not always successful in its efforts in relation to normative ordering. I
am suggesting a different tack: we should not automatically see the state legal system as an
institution involved in maintaining normative order. It often does more than that and less
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than that. We should view it as a socially-constructed power-yielding apparatus, then
observe what this apparatus does.
82 Legal pluralists under attack for their problems with identifying what law is will often
respond by pointing out that there are also problems with identifying state law. Yes, but the
problems are not of the same order. We can always begin with the internal perspective, asking
the legal actors what they see as law. The messy part is that each state law system may have a
different answer, though with the world-wide spread of state law through transplantation the
actual range of disagreement will not be substantial. No matter how large the variation, it will
not surmount the problem legal pluralists face of not being able to distinguish 'law' from the
rest of social life.
83 See generally B. Tamanaha, Understanding Law in Micronesia: An Interpretive Approach to
Transplanted Law (1993).
84 A recent anthology on legal anthropology, which expressly did not use the legal pluralism
paradigm, chose to focus on this element of power. See Starr and Collier (eds.), op. cit., n. 64.
85 Although the difference between contrast and equivalence is primarily one of orientation and
emphasis, legal pluralists have been led into egregious errors by their assumption of
equivalence. Masaji Chiba made such a mistake in his book Legal Pluralism: Toward A
General Theory Through Japanese Legal Culture (1989). Chiba used the contrasting legal
cultures to explain the conflict precipitated upon Japan's announcement of a plan to dispose
of radioactive waste in thePacific Ocean, which provoked an expression of outrage from
Micronesia and other Pacific area governments (pp. 183-211). Chiba compared Japanese
attitudes towards state law with Micronesian cultural attitudes about ownership of and
responsibility for property. His point was that the Micronesians have more cultural respect in
their relationship with the land and sea (p. 196).
Chiba's analysis is an example of the worst kind of (unintentional) nativism. Because
Chiba saw the Micronesian cultural notions of property as 'law' (of the legal pluralist sort),
he believed that it was appropriate to compare with with Japanese attitudes to state law. But
the Micronesians also have a state legal system (I worked in Micronesia as a state lawyer from
1986 to 1988). The state legal system is staffed almost entirely by expatriate lawyers, most
from the United States of America, who almost certainly represented the Micronesian
government in its protest. Moreover, most Micronesian government officials are well-
educated (many are educated in the United States of America) and familiar with Western
notions of property. In other words, in all likelihood Micronesian cultural attitudes toward
property and their relationship with land and sea had very little to do with the decision to
protest against Japan's plan to dump nuclear waste in the ocean. Like everyone else who
protested, the Micronesians protested because the plan threatened their environment and
consequently their lives.
Again, Chiba was led in the wrong direction by the legal pluralist assumption that lived
social norms are 'law', equivalent to state law for analytical purposes. He compared this 'law'
with state law in his own society and ignored the state law system in Micronesian society.
86 In part, I suggest the term 'rule system' because the legal pluralist notion of concrete patterns
of social ordering bears a strong resemblance to Peter Winch's notion (elaborating upon
Wittgenstein) that ongoing social behaviour is a matter of following rules (P. Winch, The
Idea of a Social Science (1958)).
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