Legal Pluralism, Social Theory, and the State, Keebet von Benda-Beckmann and Bertram Turner

Keebet von Benda-Beckmann and Bertram Turner, in the excerpt that follows, provide a useful overview of the origins and theory of legal pluralism.

Legal Complexity in Early History

Although a fairly recent concept in the social sciences, the phenomenon of legal pluralism has persisted throughout history.

In this context, colonial empires began to distinguish “modern” law from customs, tradition, and “primitive” law. In line with evolutionist thinking, scholars began to systematically collect and compare “precursors” of modern law. But this issue was not merely of theoretical interest.

From Colonialism to the Postcolony

At the turn to the twentieth century, new fields and methods of inquiry emerged with growing interest in what constituted law in daily social and economic interactions. A holistic approach was supposed to guarantee the study of all aspects of social life. Anthropological fieldwork entailed full immersion in a society to allow the researcher to see how law was used in daily practices. Societies with relatively loose forms of institutionalization and flat hierarchies were studied without interrogating the effects of colonial rule. Such research nevertheless helped understand how law could function in societies without specialized institutions for legislation and law enforcement, and to what extent social organization relied on reciprocity and on community as a public forum. That line of research embraced functionalist perspectives, and paid special attention to the social function of law and customs.

Parallel to this development, as legal scholars began to engage in empirical research, emergent disciplinary boundaries between social and legal sciences were blurred.

Colonial administrative activity itself contributed to the complexity and diversity of plural legal configurations. Parts of local legal registers interacted with the legal order of the colonial state as they were acknowledged and codified by the colonial state. In this way, they became entangled with the dynamics within traditional and religious normativity. The result was that the borders between state and other-than-state law were sometimes barely

in Theory and Practice, edited by Francisco C. Gonzalez and Gianni D’Amato (Abingdon: Routledge) at 291-5. [Editors’ note] recognizable. Similar diversity would later be rediscovered both in the post­colonial and the industrialized colonizing states.

The pioneers of this era, among them, anthropologists Bronislaw Malinowski and Richard Thurnwald, as well as Eugen Ehrlich, a legal scholar, built the foundation for the modern anthropological work on law through various trajectories. Primarily interested in law as an organizing principle of society that ensured social cohesion, they paid relatively little attention to conflicts and disputes. Pioneering the study of local laws in relation to the state and its law, however, Van Vollenhoven argued that adat (customary) law inevitably undergoes change when colonial courts and administrative institutions use it, which Anglo-American legal anthropology did not take into account until the r970s. His analytical concepts underscored his criticism towards the colonial government, which systematically, and often intentionally, misrepresented the character of adat regimes and thereby vio­lated its promise to fully recognize adat law. Careful academic analysis thus had profound political implications, for it showed that the government's expropriation of large tracts of land for economic development was largely illegal.

That brought forth the insight that more knowledge of “unadulterated customary law” was needed, a trajectory that allowed legal anthropologists to step out of the shadow of the colonial state. Thus, the focus on law as organized in registers that inevitably share basic features and allow for a comparative analysis did not go unchallenged. Pioneers in the African colo­nial context, such as Max Gluckman and his Manchester School, put cus­tomary law center stage, advancing the notion that customary law was best understood through the study of disputes by means of the extended case method. However, the disadvantage of this very method was that they lost sight of the state. In fact, many authors interested in customary laws in this period show a remarkable lack of interest in the state.

Eventually, a paradigm shift could be noted in the last phases of colonial­ism, roughly between the r940s and the 1970s, when legal anthropologists took to conceptualizing customary law devoid of the state. [... ]

Critique at “Customary Law”

Increased emphasis in anthropological research on disputing in colonial settings led to a reconsideration of the character of customary law. Critical analysis showed that customary law, too, was pluralized and transformed over time by colonial state law and reinvented as neo-tradition. This critique revealed how deeply interwoven dispute analysis was with state normativity, be it the state as the leviathan against which informal conflict processing takes shape, or entailing the involvement of state officials in conflict processing outside the framework of state institutions, often also wearing the hat of local informal grass roots legal agents. Customary law allowed chiefs endowed with colonial authority, for instance, to enhance their power and stewardship over land at the expense of women's rights to land, a creative, still ongoing practice that entails combining state law with custom. [...]

The Concept of Legal Pluralism

Deeper insights into disputing processes showed for one, that people in colonial settings often had a choice to opt for one legal system over another, and secondly, that the state was not a passive onlooker but an active agent in the construction of multiple legal orders.

The legal sociologist Gurvitch first used legal pluralism to denote co­existing legal orders. But it was the Belgian lawyer Vanderlinden who first used the term in an analytical sense. Legal pluralism, according to him, referred to a situation in which people could choose from among more than one co-existing set of rules. Legal plurality, by contrast, denoted the co­existence of multiple (sub-)legal systems within one state, to cater to different categories of persons who had no option to choose from among these bodies of law. For example, if commercial law was applicable for merchants, civil law was applicable for other citizens. The term legal pluralism initially met with considerable resistance and there were opposing views about what the term law signified. Over the years, many alternative terms were coined to deal with this discomfort. The nineteenth-century modernist notion of the nation state as the sole source of law dominated, whereby only state law and not normative orders deserved to be labeled as law, as the codified, differentiated, institution­alized and legitimized expression of the state sovereignty and monopoly of power. This understanding of law continued to be widely accepted by lawyers, economists, and social and political scientists throughout the twentieth cen­^tury. [...]

In this period, two main conceptions of legal pluralism proliferated, espe­cially in debates on the relationship between legal pluralism and the state. Even if scholars who considered law as standing for state law did not necessar­ily reject the notion of legal pluralism, they accommodated legal plurality only if and to the extent the state legal system recognized other forms of law.

However, other scholars considered a state-centric position inconsistent, because most proponents of this view acknowledged the existence of religious law as law, despite the fact that it was not enacted by the state. It was therefore not appropriate for the social scientific study of law that aimed at understand­ing the social working of law.^[38] The second strand places the formal legal system principally on a more or less equal footing with all or some of the other legal orders constituting a plural legal constellation. Here the relationship is qualified, for instance, as “deep,” ��strong,” “real”^[39] or as “factual” legal plural­ism.^[40] An implicit or explicit agency of diverse legal regimes (customary, religious) is often assumed. The term “co-existence” then translates into an arrangement of normative orders, each with its own legitimacy and validity. Here the existence of law irrespective of what the state declares to be law is emphasized. People may refer to a normative register even if it is not recog­nized by the state.