Legal Pluralism

by

Xinyue Li

• LAST MODIFIED: 21 June 2024
• DOI: 10.1093/obo/9780199796953-0258

Introduction

Legal pluralism is a construct, a means of understanding and imagining the world, both positively (as it is) and normatively (as it ought to be). Originating from critiques of legal centralism, legal pluralism refers to the complexity of law in a world where a single act or actor is potentially subject to multiple legal or quasi-legal regimes imposed by state, substate, transnational, international, and nonstate communities. After its inception in the 1960s, three major paradigms of legal pluralism as a scholarly discipline emerged at the intersection of legal philosophy, the sociology of law, and law and anthropology. “Classical legal pluralism” primarily concerns the recognition of customary, indigenous normative orders with colonial legal systems. Compared to the anthropology-rich, ethnology-informed classical legal pluralism, the “new legal pluralism” was established to investigate the multiplicity of normative interactions in social life across all national states, advancing legal sociology. At the beginning of the twenty-first century, entanglement among normative orders of human communities produced “global legal pluralism,” or, more precisely, “transnational legal and regulatory pluralism,” which formulates a pluralist vision for international law and global governance. With growing pluralistic approaches in the field of general jurisprudence and international law, legal pluralism has become an implication of the inexhaustible possibility of law, international legal order, and human society, leading to two main criticisms: the ambiguity of “what is law” under legal pluralism, and the negative assertion of “pluralism” as a product of disenchantment with universalism or as a disguise for relativism. Yet legal historians investigate the plurality in legal history, emphasizing different implications of legal pluralism from more law-oriented, history-informed perspectives. Additionally, as international legal scholars either actively engage with legal pluralism or subtly develop pluralism-informed scholarship to give account to international law in the face of emerging challenges, legal pluralism advances as a more or less borderless domain of inquiry of human construct that fundamentally shapes the ontology, epistemology, and perceptive that are of significant value for international law. This bibliography selectively focuses on these endeavors, sometimes reaching beyond explicit legal pluralism literature and eventually leaning toward the future in an effort to promote innovative, multidisciplinary dialogues on legal pluralism in the field of international law and its surroundings. This entry merely serves as an introduction to certain distinctive aspects of legal pluralism. An obstacle arose due to the intrinsically interdisciplinary nature of the work, resulting in the conceptual classification of its literature being somewhat arbitrary. More possibilities in discussing various strands of legal pluralism are therefore highly encouraged. Another challenge arose from the multi-language contributions made by researchers from throughout the globe. Non-English-language literature is only acknowledged to the extent that it is translated into English, with few exceptions. Omissions should therefore be understood as a limitation of the project rather than exclusions.

Origin: Debate between Legal Pluralism and Legal Centralism

Originating from the ideological fight between legal pluralism and legal centralism, legal pluralism was defined in opposition to monism, centralism, and statism in descriptions of law. By far the most comprehensive treatments of the mainstream view of legal centralism are offered in Austin 1995, and Kelsen 1997 and Hart 2012, representing, respectively, the top-down and bottom-up approaches to a rigorously unified, exclusive, and hierarchical concept of law. Early immature attempts to inquire into the inadequacy of legal centralism can be seen in Weber 1964, which mentions a pluralistic order within the same social group without elaborating on the management of such plurality; Pospisil 1971, which discusses an idealized theory of “legal levels”; and Smith 1974, which develops the “corporations” theory from a political perspective with limited applicability. A widely recognized definition of law as a socially based plurality that is empirically understandable occurred in Ehrlich 1936 and Ehrlich 1922, which provided a conception of “living law,” followed by the renowned “semi-autonomous social field” in Moore 1973, both of which laid concrete theoretical foundations for classical legal pluralism in colonial contexts and new legal pluralism for all aspects of social life in every nation. Galanter 1981 dissolves the traditional territorial boundaries and the Western versus non-Western divide in the dialogue of legal pluralism. Griffiths 1986 presents a comprehensive and persuasive definition of legal pluralism that boldly distinguishes pluralist “fact” from monistic “myth,” thereby formally positioning legal pluralism scholarship against the legal centralism tradition. This work further categorizes “weak” and “strong” strands for comprehending legal pluralism. De Sousa Santos 1987 develops the notion of “interlegality,” which later plays a crucial role in the criticisms of legal pluralism.

• Austin, John. The Province of Jurisprudence Determined. Cambridge, UK: Cambridge University Press, 1995.

  DOI: 10.1017/CBO9780511521546

  A classic 19th-century English jurisprudence (originally published in 1832), which provides the legal centralist conception that law is an exclusive, unified, and systematic hierarchical ordering of normative propositions. Together with Hobbes’s Leviathan (1651), law is examined from the top-down approach, depending on sovereignty.

• Ehrlich, Eugen. “The Sociology of Law.” Harvard Law Review 36.2 (1922): 130–145.

  DOI: 10.2307/1329737

  Proposes a distinction between official “legal provision” and “living law” in social order, representing a more satisfactory socio-legal school of thought in response to legal positivism. “Legal provision,” dependent upon society both for its existence and content, is merely an aspect of social practice of law. The whole of law therefore must be considered in its social relations, free from limitations of legal statutes.

• de Sousa Santos, Boaventura. “Law: A Map of Misreading; Toward a Postmodern Conception of Law.” Journal of Law and Society 14.3 (1987): 279–302.

  DOI: 10.2307/1410186

  One of the most influential early essays in the field of legal pluralism. It emphasizes the ideological perspective in the concept of law or the designation of norms as legal. It also introduces the widespread notion of “interlegality,” which holds major significance in the critiques of legal pluralism.

• Ehrlich, Eugen. Fundamental Principles of the Sociology of Law. Translated by Walter L. Moll. Cambridge, MA: Harvard University Press, 1936.

  An innovative and groundbreaking work of scholarship that allows a direct line of succession from Ehrlich’s observations as a new discipline linking jurisprudence with sociology. The last chapter provides the “living law” concept, which is subsequently developed to comprehend the multifaceted sociological legal theory. Originally published in German in 1913.

• Galanter, Marc. “Justice in Many Rooms: Courts, Private Ordering, and Indigenous Law.” Journal of Legal Pluralism and Unofficial Law 13.19 (1981): 1–47.

  DOI: 10.1080/07329113.1981.10756257

  An influential criticism of legal centralism that views courts and other official entities as only one hemisphere of societal norms. This piece fundamentally shifted the conceptual foundations for legal pluralism, as it, first, pushes legal pluralism to an understanding of pluralism beyond state, and, second, attempts to dispel the presumption that legal pluralism only applies to non-Western societies. Merry’s “new legal pluralism” emerged from these transitions (see Merry 1988, cited under Paradigms of Legal Pluralism: Intersection of Legal Philosophy, the Sociology of Law, and Law and Anthropology).

• Griffiths, John. “What Is Legal Pluralism?” Journal of Legal Pluralism and Unofficial Law 24 (1986): 1–55.

  DOI: 10.1080/07329113.1986.10756387

  Griffiths, the legal pluralism champion, distinguishes pluralist “fact” from monistic “myth.” Griffiths notes that legal pluralism is necessary to accurately observe law and its role in society, whereas legal centralism is unreal and detrimental to jurisprudence. Griffiths classifies pluralism into “weak” (colonial and postcolonial situations) and “strong” (empirical designation of human society). The latter—the normative heterogeneity caused by dynamic contexts of overlapping social fields—is social life’s normality.

• Hart, H. L. A. The Concept of Law. 3d ed. Oxford: Oxford University Press, 2012.

  DOI: 10.1093/he/9780199644704.001.0001

  Hart is of the major authors of the debate between legal pluralism and legal centralism. Named a “legal centralist” by scholars of legal pluralism, Hart takes a bottom-up approach to law, the same as Kelsen, deriving its validity from general layers of norms until ultimate norms. Originally published in 1961.

• Kelsen, Hans. Introduction to the Problems of Legal Theory: A Translation of the First Edition of the Reine Rechtslehre or Pure Theory of Law. Oxford: Clarendon, 1997.

  DOI: 10.1093/acprof:oso/9780198265658.001.0001

  Kelsen’s work exemplifies the centralism assumed by mainstream legal philosophy—the state-based legal positivism. Kelsen argues for a rigorously monistic, hierarchical, and centralist legal concept, reinforced European’s codification movement toward state monopoly on law. Originally published in 1934.

• Moore, Sally Falk. “Law and Social Change: The Semi-autonomous Social Field as an Appropriate Subject of Study.” Law & Society Review 7.4 (1973): 719–746.

  DOI: 10.2307/3052967

  The “semi-autonomous social field” is a useful framework for pluralist theory in noncolonial situations, immensely influencing the development of pluralist scholarship. Law is defined as the self-regulation of a “semi-autonomous social field”—a small field observable to anthropologists that can itself generate rules, customs, and symbols internally, but is also vulnerable to rules, decisions, and other forces emanating from the surrounding, larger social matrix.

• Pospisil, Leopold J. Anthropology of Law: A Comparative Theory. New York: Harper & Row, 1971.

  The theory of “legal levels” is proposed in opposition to legal centralism, suggesting a hierarchical and segmented social structure. Subgroups of the entire society, such as situations in federations, are building blocks within the societal structure, legal systems can thus be viewed as belonging to various, superimposed legal levels. However, this implicit paradigm of socio-legal pluralism is rather idealized and restricted.

• Smith, Michael Garfield. Corporations and Society. London: Duckworth, 1974.

  Another implicit model of socio-legal pluralism is the “corporations” theory developed from a political perspective, which considers corporations to be the fundamental unit of social structure, the locus of political action, and law’s “sociological framework.” Thus, cultural, social, or structural plurality leads to legal pluralism, consisting of descriptions of different corporate groups, their internal regulatory activities, and their external corporate relationships. Such an ideal-typical approach somewhat diminishes the theory’s applicability.

• Weber, Max. The Theory of Social and Economic Organization. New York: Free Press, 1964.

  The recognition of the “plurality of contradictory systems of order” in the same social group can be seen in Weber’s writing, almost a century ago. Yet Weber did not elaborate on how actors can select among different normative systems and how these normative orders could be administrated. Originally published in German in 1920.