Abstract versus Folk Legal Pluralism

This chapter differentiates between abstract legal pluralism and folk legal pluralism. Abstract concepts of law within legal pluralist literature can be placed in one of two broad categories based on form and function: the inner ordering of associations or institutionalized rule systems. However, both types of concepts of law inevitably result in over-inclusiveness by encompassing social phenomena that are usually not considered to be law, creating irresolvable problems. Folk legal pluralism identifies coexisting forms of law in terms of what people collectively view as law, examined through a social-historical lens that pays attention to how forms of law vary across social contexts and change over time. It also articulates three categories of law applied throughout this book: community law, regime law, and cross-polity law. This approach offers a commonsensical account of law and legal pluralism useful for scholars, development practitioners, social scientists, and legal theorists.

Postcolonial Legal Pluralism

This chapter examines European colonization, which created transplanted state legal systems alongside bodies of customary and religious law, and brought workers from outside in large numbers for plantations and mining, creating a wave of legal pluralism across the Global South. Colonization conventionally refers to European political, economic, and legal domination of large parts of the world from the sixteenth through the mid-twentieth centuries. European political domination involved various degrees of control over a peripheral territory as a colony, protectorate, or some other relationship; economic domination involved utilizing the land, labor, natural resources, and trade of a peripheral territory for the economic benefit of the metropole and its settler population; and legal domination involved instrumental use of law by the colonial state to enforce its political rule and achieve its exploitative economic objectives. The chapter then elaborates on postcolonial legal pluralism: how it came about, its consequences, and the situation of legal pluralism today. The topics covered include the recognition and transformation of customary law, informal village tribunals, the power of traditional leaders, conflicts over law, women’s right and human rights, and rule of law development efforts.

National to Transnational Legal Pluralism

This chapter studies state law within the United States legal system(s), showing that law is not fully unified and hierarchically organized, a condition that also exists within highly developed national legal systems across Europe. It looks at pluralism internal to national legal systems before considering constitutional pluralism in the European Union, as well as global legal pluralism. Flowing through preceding chapters is the movement from decentralized community law to the consolidation of law within the territorial state—with regime law absorbing or trying to suppress or recognizing or accommodating or turning a blind eye to resilient forms of lived community law. The chapter leaves aside community law to center on the state legal system itself, and thereafter on manifestations of cross-polity laws. As with previous chapters, the focus is on legal pluralism while questioning the image of the monist law state. Unlike previous chapters, which have been largely descriptive, the last part of the chapter is more analytical and critical in discussing global legal pluralism.

Conclusion

Legal pluralism in relation to state law falls on two sides of a permeable and shifting divide: (1) multiple forms of collectively recognized law coexist within social arenas (external pluralism), and (2) manifestations of law are internally pluralistic (internal pluralism). Systems of state law face coexisting external forms of collectively recognized law and are internally pluralistic. The divide is permeable and shifting because one of the factors contributing to internal pluralism is interaction with, influences from, and efforts to absorb or control other coexisting forms of law like customary and religious law and international law. An array of legal norms and institutions exist in society: outside, inside, and intertwined with state legal systems....

Legal Pluralism in Historical Context

This chapter presents a historical context of legal pluralism. A pivotal shift of the past several centuries has been from law attached to a person's community toward territorial states that claim a monopoly over law—a long-term project that has always been marked by major exceptions and has never been fully completed. Prior to this shift, the widely held view, now largely forgotten, is that everyone was entitled to be judged by the law of their community, called “personal law” at the time because it attaches to each person, though the chapter descriptively labels this “community law” to enable comparisons to other contexts. The first step is to understand empires, which are cauldrons of legal pluralism, using the Roman Empire as an example. The chapter then covers legal pluralism during the High Middle Ages, followed by the slow process by which the state gradually crystallized, absorbing other forms of law within its ambit, though not entirely. It also addresses three legally plural contexts in the early modern period into the twentieth century: the millet system in the Ottoman Empire, extraterritoriality, and the plural legal system entrenched in India by the British East India Company.

Legal Pluralism in the West

This chapter counters the widely held view in the West that the state exercises a monopoly over law. Romani (Gypsy) communities across Europe have lived in accordance with their own law for a thousand years. Indigenous law and tribunals exist in New Zealand, Canada, Australia, and the United States, in various relationships with state law. In a number of Western countries, Jewish law and Muslim law and institutions interact with state law as well as exist apart from state law. All of these examples involve the continuation of community legal orders (customary and religious) that long predate the modern state and have continued in different forms, adjusting to and surviving the extension and penetration of state law. In many of these contexts, state law has tried to suppress, denigrate, or ignore these bodies of community law, denying their legal status, but despite of this treatment they continue to exist and are considered law by adherents.

Introduction: Three Themes

This introductory chapter provides an overview of legal pluralism. Legal pluralism refers to a multiplicity of law in various senses across multiple scholarly disciplines and law and development contexts. The chapter identifies what legal pluralism is framed in opposition to: the image of monistic state law. It also sets forth two streams of legal pluralism: abstract legal pluralism constructed by theorists versus folk legal pluralism understood in social-historical terms. Finally, the chapter outlines three categories of law that appear throughout the book: community law, regime law, and cross-polity law.