Legal
Pluralism, Plurality of Laws, and Legal Practices:
Theories,
Critiques, and Praxiological Re-specification
Baudouin Dupret*
Legal pluralism has become a major theme in socio-legal studies. However,
under this very broad denomination, one can identify many different trends
which share little but the very basic idea that law is much more than state
law. Despite their eclectic character, these many conceptions of legal
pluralism also share some common fundamental premises concerning the nature of
law, its function, and its relationship with its cultural milieu. This
contribution aims at critically addressing these premises and at suggesting some
re-specification of the question of law, its plural sources, and the many
practices that enfold in relationship with it. In its spirit, this
re-specification can be characterised as realistic and praxiological.
Indeed, I shall argue that it is at
best useless and at worst wrong to start from a label like “legal pluralism” so
as to describe something which is presumed to be an instance of such label. My
contention here is that law is what people consider as law, nothing more
nothing less, and that occurrences of legal plurality are limited to these
situations where people explicitly orient themselves to the fragmented spectrum
of law. Instead of looking at the hypothetical pluralistic model of law which
something like, e.g., Egyptian law,
would be an instance of, the task of social scientists is, rather, to describe
the situations, the mechanisms and the processes through which people orient to
something legal which they identify as pluralistic. This position is grounded
on a principle of indifference, by which one seeks to avoid normative and
evaluative engagements: the focus is put on the description of practices, not
on their evaluation. Moreover, this position is based on the refusal of any
ironic standpoint, i.e. the denial that social scientists occupy any
kind of overhanging position vis-à-vis the social, by which they would
be entitled to “reveal” to “self-deceived people” the truth which is concealed
from them because of their “lack of critical distance”, “ignorance” and/or “bad
faith”.
In a first section, I shall briefly describe the main trends in the field
of legal pluralism, from its historical scientific background to its more
recent theories. In a second section, I formulate some of the major criticisms
which can be addressed to the postulates sustaining these many versions of
legal pluralism. These critical stances vis-à-vis the legal pluralistic
study of law articulate around three main questions, i.e. the
definitional problem, the functionalist premises, and the culturalist
conception which undermine existing theories. I shall argue, in the third
section, that realism is a possible remedy to these flaws. However, these are
best addressed through what I call a praxiological re-specification of the
whole issue of legal pluralism, which I shall illustrate through the study of Egyptian
cases. In conclusion, I shall formulate some remarks on praxiology as a way to
fill the “missing-what” of classical socio-legal studies.
I. People’s law and state-law: Old dispute and current trends
A. The many layers of social control
Reactions to dogmatic conceptions of law are as old as social sciences.
According to Durkheim, law is a social phenomenon, which reflects all the
essential varieties of social solidarity. Building on Durkheim’s legacy,
Marcel Mauss formulated the idea that, within a society, there can be many
legal systems interacting with each other. However, it is Bronislaw Malinowski
who first gave a definition of law that strongly associates it with the notion
of social control. According to Malinowski, law should be defined “by function
and not by form”.[1] There are many societies who lack any centralised
institution enforcing the law, but there is no society which is deprived
from these rules which “are felt and regarded as the obligations of one person
and the rightful claims of another”.[2] His reasoning operates in the following way:
(1) the function of law is to maintain social order; (2) social order can be
found in regularised patterns of actual behaviour; (3) the complex of social
obligations constitutes the binding mechanism maintaining social order; (4) legal
norms are norms abstracted from actual patterns of behaviour and law is
identical with social control.[3] Accordingly, law is as plural as social life
itself, of which it represents the rules which are “too practical to be backed
up by religious sanctions, too burdensome to be left to mere goodwill, too
personally vital to individuals to be enforced by any abstract agency”.[4]
The contribution of
Eugene Ehrlich is central to the concept of legal pluralism. This Austrian
sociologist developed the theory of “living law” in reaction to the ideology of
an exclusively state-centred law. Considering that law is mainly independent
from the state, Ehrlich proposes what he calls a “scientific conception of
law”, which is concerned by the rules of conduct. Accordingly, he states that
“it is not an essential element of the concept of law that it be created by the
state, nor that it constitute the basis for the decisions of the courts or
other tribunals, nor that it be the basis of a legal compulsion consequent upon
such a decision”.[5] Like Malinowski, Ehrlich considers that law is
fundamentally a question of social order, which is to be found everywhere, “ordering and upholding every human association”.[6] It is from these associations, from these
instances which produce norms of social control, that law emerges. In other
words, law is synonymous with normativity.[7]
Georges Gurvitch’s theory deserves a particular mention, since it develops
an unquestionably pluralistic approach to law.[8] According to Gurvitch, there is
historically no fundamental unitary principle in law. State centralism is the
achievement of specific historical and political conditions. He identifies
three main types of law, which are differently hierarchised in every society:
state-law (claiming to monopolise legal activities), inter-individual or inter-group
law (bringing together exchanging individuals or groups), and social law
(bringing together individuals so as to constitute a collective entity). The
latter is clearly non-statist, since it corresponds to the multiplicity of
legal systems which social law generates. Gurvitch makes also an important
distinction between the plurality of the sources of law and legal pluralism.[9] Gurvitch’s theory did not receive
very much attention. This may be attributed to different reasons, among which
his vague, fanciful, complex and abstract language, on the one hand, and the
fact that “his concept of ‘social law’ challenged and disturbed the traditional
juristic notion of law which was founded on a state-centralistic ideology”.[10]
B. Law and the many social fields
The seventies and the eighties witnessed the blossoming of a more fully
integrated attempt to deal with law from a social perspective denying the state
its monopoly on, and even its mastering of, the production of law. In his
radicalism, John Griffiths’ article “What Is Legal
Pluralism”[11] might prove instrumental for
describing the basic tenets of this new trend. Moreover, it remains a seminal
contribution in the field.[12] Griffiths first identifies his main
enemy: legal centralism, the law of which “is an exclusive, systematic and
unified hierarchical ordering of normative propositions, which can be looked at
either from the top downwards as depending on a sovereign command (Bodin, 1576;
Hobbes, 1651; Austin, 1832) or from the bottom upwards as deriving their
validity from ever more general layers of norms until one reaches some ultimate
norm(s)” (Kelsen, 1949; Hart, 1961).[13] Claiming that legal centralism is an
ideology, he charges many social scientists with having confused a normative
stance and a descriptive one. According to him, law does not exist where the
heralds of legal centralism have claimed it to be: legal centralism would be “a
myth, an ideal, a claim, an illusion”,[14] whereas legal pluralism would be the
fact.
Sally Falk Moore has been unanimously applauded among legal pluralists for
having provided the appropriate locus of law in socio-legal research.
She claims that “the social structure” is composed of many “semi-autonomous
social fields”, the definition and boundaries of which are not given by their
organisation, but “by a processual characteristic, the fact that it can
generate rules and coerce or induce compliance to them”.[17] Three characteristics of Moore’s
concept can explain the appeal it exercised: first, she presents these fields
as the fundamental unit of social control, which is directly connected to
behavioural norms of conduct; second, every individual may simultaneously
belong to many social fields, which accounts for social complexity;[18] third, a social field is autonomous,
i.e. it can resist the penetration of
external norms, but never totally, its capacity of resistance being function of
the degree of independence of its members vis-à-vis itself and of its
force of resistance to norms originating in other fields. It should be noted,
however, that
Jacques Vanderlinden contributed a reappraisal of his former conception of
legal pluralism, which had been targeted by
Many scholars, like Vanderlinden,[22] made the assumption that, because of
the existing gap between legal practices and formal textual legal provisions,
there is a plurality of laws. Instead of seeing in these practices the sad
effect of the inefficiency of law, it should be read, following these authors,
as the positive manifestation of their conformity to other legal orderings.[23] According to some of these scholars,
these alternative legal orderings are totally independent from state law,
whereas, according to others, the state remains the gravity point of these
practices. However, all converge in challenging the legitimacy of state law.
Today, the classical theme of conflict resolution seems to constitute the focal
point of this program. This interest in the anthropology of conflict may be
traced back to American legal realism and Llewellyn’s “trouble case method”, [24] and more recently to Laura Nader and
Harry Todd’s Disputing Process[25] and Simon Roberts’ Order and
Dispute.[26]
C. Plural legal pluralism: Culturalism, post-modernism, autopoiesis
According to Brian Tamanaha, “since there are many competing versions of
what is meant by ‘law’, the assertion that law exists in plurality leaves us
with a plurality of legal pluralisms”.[27] Besides Griffith’s and Moore’s
influential conceptions of legal pluralism, there exist other approaches worth
mentioning.
Massaji Chiba’s theory of non-official laws stays a little apart from the
different orientations described above. The main endeavour of this Japanese
scholar is “less to develop or clarify a definition of legal pluralism than to
develop or clarify the features of certain instances of legal pluralism”.[28] Instead of simply opposing state law
and people’s law, Chiba identifies many legal levels: official law, i.e.
“the legal system authorised by the legitimate authority of a country”;[29] unofficial law, i.e. “the
legal system which is not officially authorised by the official authorities,
but authorised in practice by the general consensus of a certain circle of
people”[30] - and having a distinctive influence
upon the effectiveness of the official law; legal postulates, i.e. “the
system of values and ideals specifically relevant to both official and
unofficial law in founding and orienting the latter”.[31] These three levels are not organised
according to a rigid and permanent hierarchy, but differ from one society to
another. For instance, Eastern societies would be characterised by their
reliance on unofficial law, whereas Western ones would be mainly state-centred.
Besides these legal levels,
With the emergence of the “concept” of post-modernity, scholars oriented
their research in legal pluralism toward a new definition. Boaventura de Sousa
Although it seems very marginal in the general framework of the systemic
theory of law, it must be noted that Gunther Teubner proposed his own theory of
legal pluralism. There are three main assumptions in Teubner’s theory of law as
an autopoietic system (a system self-sustainable and closed on itself): law, as
an autonomous epistemological subject, constructs its own social reality; law,
as a communicational process, produces human actors as semantic artefacts;
because of the simultaneity of its dependence and independence vis-à-vis
other social discourses, modern law permanently balances between positions of
cognitive autonomy and heteronomy.[40] On such basis, Teubner criticises the
“classical approach” to legal pluralism for its inability to properly define
law. This is due to the absence of proper distinction between law and other
kinds of normativities and to the attribution to law of a single function,
while various functions are identifiable. Then, he defines legal pluralism “as
a multiplicity of diverse communicative processes that observe social action
under the binary code of legal / illegal”.[41] This binary code of legal/illegal is
constituted as the discriminating factor, which allows excluding “purely
economic calculations” as well as “sheer pressures of power and merely
conventional or moral norms, transactional patterns or organisational routines”.[42] This binary code is not peculiar to
state law, but “it creates instead the imagery of a heterarchy of diverse legal
discourses”.[43] Finally, it serves many functions, including
inter alia, “social control, conflict regulation, reaffirmation of
expectations, social regulation, coordination of behaviour or the disciplining
of bodies and souls”.[44]
II. Critiques
According to Merry,
A. Definitional deadlock
Brian Tamanaha reveals some of the many weaknesses in the
reasoning of the proponents of legal pluralism, among which the “conclusion
that all forms of social control are law”.[47] As Merry puts it,
“calling all forms of ordering that are not state law by the name law confounds
the analysis”.[48] The problem can be
attributed to the confusion between descriptive and non-descriptive concepts.
Law belongs to the latter, at least in the sense that it was never constituted
as a tool in the hand of sociologists for describing social reality. When they
establish law as a synonymous with social norms, legal pluralists create an
ambiguity, since they use a word which has some commonsense meaning so as to
perform an analytical task which runs contrary to this meaning. In other words,
what is the analytical utility of using the word “law” so as to describe what
common sense would never associate with law (good manners, etc.), especially if this alleged concept either does not carry
anything which makes it distinct from other less connoted words (like norm) or
surreptitiously carries the distinctive characters of what it is supposed to be
contrary to?
Tamanaha goes further and states that, “lived norms are
qualitatively different from norms recognised and applied by legal institutions
because the latter involves ‘positivising’ the norms, that is, the norms become
‘legal’ norms when they are recognised as such by legal actors”.[49] Contrary to what I
claimed in another article,[50] this critique is most sound,
though the dividing line is not so much between lived norms and positivised
norms but between law as recognised and referred to by people -whoever they
are- and other moralities and normativities as recognised and referred to by
people - whoever they are.[51] In other words, law is
not an analytical concept, but only what people claim that law is, this type of
position allowing denying the relevance of a question that a hundred years of
legal sociology and anthropology have been unable to settle - the question of
the boundaries of juridicity. The existence of law is evidenced only by its
self-affirmation or, rather, by its identification as such by people. This does
not preclude the study of normativity in general, on the contrary, but it
seriously challenges the possibility to conduct it under the auspices of a
non-descriptive (“legal”) ideology (“pluralism”).[52] It is non-descriptive,
in the sense that it has used the legal vocabulary to describe general
normativity and general normativity completely to dilute law (as it is referred
to by people in general). It is ideological, in the sense that legal pluralism,
whereas it militates for the recognition of all diffused normativities, ignores
the fact that there is no possibility of recognizing any normativity as law
without an authority having the right to say what is right and the capacity to
interpret it as law, meaning that militancy against state law would necessarily
mean militancy in favour of any such other authority.
B. Functionalism
This definitional problem of legal pluralism is related to the fundamental
assumption that lies behind its construction. Law is considered as the concept
that expresses the social function of ordering which is performed by social
institutions. Tamanaha, Malinowski, Parsons and Luhmann are the main
representatives of the functionalist theory in the study of law.[53] Basically, these authors share the
idea that: (1) law has a role and a nature; (2) these role and nature are
determined a priori by their social function; (3) this function is to
maintain order in society. Even in its most sophisticated versions, legal
pluralists assume this legal function: “The normative orders of legal pluralism
always produce normative expectations […] and they may serve many functions”.[54]
As shown by Searle, among others, functionalism is necessarily associated
with intentionality: the heart does not have the function to pump blood, except
if there was an intentional agent that created it so as to pump blood; on the
other hand, artificial hearts have indeed the function to pump blood. “Whenever
the function of X is to Y, X and Y are parts of a system where the
system is in part defined by purposes, goals, and values generally. This
is why there are functions of policemen and professors but no function of human
as such - unless we think of human as part of some larger system where their
function is, e.g., to serve God”.[55] Accordingly, whereas law, when
conceived as an institution created so as to regulate human relations, might be
given a social function, law, when it is understood as emanating from the
social, might hardly be given such a function. Otherwise, it would mean as a
consequence that societies would be credited from scratch (from before their
existing as societies) with a collective consciousness, which in turn would
result in their creating the institutions necessary to their functioning, i.e. they would have created themselves.
In other words, functional analysis can only operate if law is considered as
the product of an intentional agency.
Yet, some legal pluralists consider law as the product of an intentional
agency. This is the case with Teubner, for whom the multiple orders of legal
pluralism exclude “merely social conventions and moral norms”, recharacterized
by their common organizing “on the binary code legal/illegal,” and “may serve
many functions: social control, conflict regulation, reaffirmation of
expectations, social regulation, coordination of behaviour or the disciplining
of bodies and souls”.[56] However, this “legalistic” version
of legal pluralism is only a partial solution to the problem of functionalism.
Indeed, when considering that law is multi-functional or even dysfunctional, it
still assumes that legal institutions have been created so as systematically to
perform one function or another. This leaves no room for their being
non-functional. Moreover, these systems are, according to Teubner, autopoietic,
i.e. they are radically autonomous
subsystems which communicationally produce and reproduce their components
within the system (the system is operationally closed).[57] The remaining question is: Has law
been intentionally created so as independently to perform social functions?
This is historically and empirically dubious. Obviously, parts of law were
crafted so as to perform functions (though they never succeeded in being
totally efficient in performing them). Clearly as well, other parts of law were
not conceived in such a way. If there are many legal constructors, there was
never any Creator of the Concept of Law, although such an intention remains
necessary for the sake of functional analysis.
C. Essentialist culturalism
Legal pluralism has also often proved very essentialist and culturalist.
Generally with the best intentions, some legal pluralists promoted concepts like
“folk law,” “indigenous law,” “native law,” “imported law,” “transplanted law,”
“state law,” “official law,” “unofficial law,” “primitive law,” etc.. Besides the huge definitional
problems associated with the term “law,” it mainly assumes that there is
something like a “true” law, which is the reflection of an “authentic” society
whose main cultural characters are translated into rules of conduct. Actually,
this kind of “nativist” interpretation is not worth any close examination. It
offers a very naïve picture of law which is far from being supported by
substantial empirical evidence. The so-called “indigenous” or “native” law has
often never existed but in the heads of these scholars, though it is
constituted as the yardstick to which the scope of legal “acculturation” is
evaluated.
Much more interesting is Clifford Geertz’s interpretive theory. This is not
the proper place to discuss it. Suffice to say that he conceives of law as a
cultural code of meanings for interpreting the world: “‘Law’ here, there, or
anywhere, is part of a distinctive manner of imagining the real”.[58] In this hermeneutic project, “words
are keys to understanding the social institutions and cultural formulations
that surround them and give them meaning”.[59] Geertz gives the example of the
Arabic word “haqq”, which is supposed to come from a specific moral
world and to connect to a distinctive legal sensibility.[60] This word would carry along with it
all the specific meanings which are co-substantial with something which is
called “Islamic law.” In plural situations, i.e.
situations where many cultural systems are described as interacting (for
instance
However, culturalism fundamentally conceives of law in holistic terms, that
is, as one of the many reverberations of a larger explaining principle:
culture.[62] Yet, this cultural unity is not
deduced from empirical observations, but assumed from the beginning. This is
how Rosen proceeds when, starting from the small Moroccan town of
III. Re-specifications
This third section reviews some of the possible remedies and shifts in
focus which might help the reconsideration of the plural nature of law. A few
years ago, I supported the idea of forsaking the use of the words “law” and
“legal” for analytical purposes. To the question of the sociological boundaries
of juridicity, I answered that the question is devoid of sociological
relevance.[65] From a distance, I would say that
social scientists have no means sociologically to define law outside what
people say law is, with the consequence that any study of law should basically
look at what people do and say when practicing what they call law.
A. Realism
From an epistemological standpoint, the problem of definition
is fundamental. The real danger of speaking of “law” when dealing with all
forms of norms is, first, to equate them with something which people consider
as totally different. Second, it is to take a product of political theory
(state law) for a sociological tool (legal pluralism). Third, it is to assume a
functional definition of some general social mechanisms (social control),
whereas non-intentional phenomena cannot be given any social function. Instead
of elevating law to the rank of an analytical instrument, I would suggest to go
back to the observation of social practices and to consider, in the broad field
of the many normativities, that law is what people refer to as law.
This is what advocates Tamanaha, according to whom “the project to devise a
scientific concept of law was based upon the misguided belief that law
comprises a fundamental category. […] Law is whatever we attach the
label law to. It is a term conventionally applied to a variety of
multifaceted, multifunctional phenomena”.[66] In other words, “what law is, is
determined by the people in the social arena through their own common usages,
not in advance by the social scientist or theorist”.[67] Accordingly, a situation of legal
pluralism would exist “whenever more than one kind of ‘law’ is recognised
through the social practices of a group in a given social arena”.[68] Tamanaha argues that, whereas legal
pluralism states that the word law applies to the many manifestations of a
single basic phenomenon, conversely his approach would assume that the same
label law applies to many different phenomena.
Tamanaha claims that his approach conveys many advantages. Besides the fact
that, first, it overcomes the inability to distinguish legal norms from social
norms, second, it provides practicable criteria for distinguishing between a legal
rule-system and normative pluralisms. Third, it urges that all these forms of
law-recognised-as-such in one specific social arena “be studied in their
specific manifestation, and in their relations with other kinds of law in that
social arena, and as they compare to general categories of kinds of law or
manifestations of law in other social arenas”.[69] Fourth, this approach does not lose,
through its elaboration, what made the force of the legal pluralistic appeal, i.e. that there are forms of law which
are not or only loosely connected to the state. By so doing, this approach
would be successful, according to Tamanaha, precisely where legal pluralism has
failed, that is, in providing a descriptive non-ideological theory of the
plural nature of law. “Indeed, one merit of this approach -what makes it
non-essentialist- is that it is entirely free of presuppositions about law
(beyond the negative one that it has no essence). Everything is left open to
empirical investigation, and category construction and analysis following such
investigation. Another significant merit [is that] it directs an equally
sharp-eyed, unsentimental view at all manifestations and kinds of law”.[70] In sum, conducting research in legal
pluralism is to look at situations where there is a plurality of kinds of law,
law being understood as what people conventionally refer to as law.
B. Praxiology
In this last section, it will be argued that, even though Tamanaha’s
approach greatly betters the sociological study of law, it still suffers from
some flaws which can be mitigated by the deepening of his insights and by the
adoption of a praxiological approach to legal phenomena.
The main problem with Tamanaha’s conception of law comes from his attempt
to root it in the combination of behaviourism and interpretivism, a combination
which is deemed to overcome some of the classical caveats of legal sociology
and anthropology and to come out in his realistic socio-legal theory. However,
as mentioned above, one of the difficulties of interpretivism is related to its
culturalist essentialist standpoint. It is not to say that such perspective has
no scientific value, but it points to the fact that it reproduces some of the
deficiencies it is supposed to eliminate. Among other things, it maintains one
of these dualities which muddy contemporary sociological theorizing, that is,
the duality opposing activities and meanings. Instead of considering that this opposition
constitutes the main problem to be solved in order to succeed in theorizing, I
suggest that it is the propensity to theorizing itself which should be
questioned. In other words, the inquiry “into the comprehensibility of
society, into the ways in which social life can be understood and described
when seen from within by members” should be substituted to the theoretical
elaboration of “a specific mode of comprehending society, a theoretical
framework within which a substantive conception of society is to be
construed”.[71] It is definitely not Geertz’s
interpretivist culturalism -not to say Rosen’s- that will promote such an
inquiry, for he assumes the constraint of a pre-existing cultural order to
which people conform, the task of the social scientist being to discover the
keyword that epitomises it, not to look at practices from which to infer
people’s orientation to the many constraints of the local settings in which
they (inter)act. On the contrary, a praxiological approach requires using “the
criteria that participants have for determining the salient features of
interactional episodes”,[72] and this does not provide an
interpretation of people’s conducts. “Rather, analysis is based on, and made
valid by, the participants’ own orientations, characterisations, and exhibited
understandings”.[73] In other words, while the opposition
between meaning and behaviour “requires its solution by means […] which are
external to the orderliness observable in the sites of everyday activity,” e.g. social structures, local cultures,
schemes of behaviour, etc., the
praxiological re-specification I advocate considers “‘the problem of social
order’ as completely internal to those sites”.[74] It also means that it is not so much
“why” questions -which form the basis of interpretivism- which should draw the
attention of legal sociology, but “what” and “how” questions - “what is
involved in doing this or that?”; “how does X manage to do Y”?
Another major problem arises from the slippery character of definitional endeavours.
Although Tamanaha succeeds in escaping legal pluralism’s definitional caveat,
mainly by his characterizing law as what people refer to as law, it does not
make him immune from falling into the pit of other definitional enigma. For
instance, when advocating the restriction of the use of the word “legal” to
state law[75] or when ascribing to certain legal
systems a particular characterisation (e.g.,
theocracy in Iran),[76] he substitutes his external
overhanging scholarly vision to people’s production of and orientation to an
identifiable, understandable, and practicable law, which does not necessarily
attend to these statist or theocratic characters. There are other places where
one can find this ambivalence when it is stated, on the one hand, that law is
what people refer to as law and when it is assumed, on the other hand, that
people use the label law so as to refer to what are often quite different
phenomena. In other words, whereas Tamanaha rightly criticises legal pluralism
for its over-inclusiveness, i.e. its including
phenomena most people would not consider to be law, and its
under-inclusiveness, i.e. its
excluding phenomena many would consider to be law,[77] he queers the pitch by
underestimating people’s practical and context-sensitive understanding of the
word “law” or its equivalents. Thus, people do not loosely use one same word so
as to refer to different phenomena; they specifically use one word to refer to some specific
phenomenon to the production and intelligibility of which they orient in the
local and temporal context in which they interact. The same word might be used
to refer to another phenomenon in another context or in another sequence, but
this is a question which must be empirically answered through the close
examination of each interactional occurrence taking place in every specific
setting. This runs against the interpretivist notion of the legal polyglot
discourse. In that sense the notion of legal pluralism does not exist as a
sociological question unless people, participants, or members orient to it as
such. In other words, the question of legal pluralism does not arise from
scholars looking at the social world from outside, but it becomes a topic in
its own right when it comes out from people’s practices that they orient to a
situation of co-existing, conflating and/or conflicting multiple laws.
Finally, with regard to the questions that the realistic approach to legal
phenomena might raise, my contention is that they are better solved by adopting
a praxiological perspective. The first question concerns the identity of the
people whose practices qualify a phenomenon as law. While the realistic theory
answers that it is any social group, the praxiological would rather say that
there is no such question unless or until people call into question the authority
of someone or something having identified a phenomenon as law. The question
only emerges from practical, local, punctual circumstances. Before, it is a
question of a philosophical and political nature, not a practical and
sociological one. To the question of how many people are necessary to view a
phenomenon as law for this phenomenon to qualify as such, it is answered that
“a minimum threshold to qualify is if sufficient people with sufficient
conviction consider something to be ‘law’, and act pursuant to this belief, in
ways that have an influence in the social arena”.[78] This answer suffers from its giving
to whatever external authority the task subsequently to determine how people,
conviction and influence rate so as to be considered as sufficient, whereas it
would be said in a praxiological perspective that no answer can be given a
priori, since it is from people’s practices that the qualification of
something as law will be recognised as such (and thus will remained unnoticed)
or will not be recognised as such (and thus will be noticed and become
accountable). It is also said that a third question would address the risk of a
proliferation of kinds of law in the social arena. Tamanaha’s answer is that
such a profusion of kinds of law will seldom occur in practice. To the same
question, the praxiological answer would be that it is not up to social
scientists to decide by the means of concepts whether there are too many or too
few kinds of law, but it is an empirical phenomenon which must be attended to
through a close scrutiny of people’s practices. Moreover, since activities in
legal settings are characterised, as human activities in general, by the
general orientation to the production of intelligibility, coordination and
order, it would be rather surprising to observe such an anarchical
proliferation of laws without observable attempts to reduce it. The last
question addresses the authority which is granted by conventionalism to social
actors to give rise to new kinds of law. The realistic answer stresses that law
as a social institution is necessarily produced by social actors and that
recognizing these actors’ authority only threatens social and legal theorists’
authority. This holds true in a praxiological perspective. Moreover, it should
be said that it is not up to legal sociologists and anthropologists to
determine whether or not granting social actors the authority to give rise to
new laws. What social sciences only can do is to observe and describe how
actual people in actual settings orient to the production of a phenomenon which
they call law.
C. What is legal pluralism in a praxiological perspective?
To illustrate the heuristic gains of the praxiological re-specification, I
shall briefly present three cases concerning the issue of customary marriage in
the Egyptian context. It should contribute to the strengthening of my
contention according to which the theories of legal pluralism have little
heuristic capacity in the explanation of the law, whose pluralistic character
must not be determined by some external criterion, but only when it belongs
explicitly to the relevancies of situated practices.
In
In April 2000, the press heard about a case investigated by the Public
Prosecutor, which involved two men who had contracted a customary marriage. The
investigation transcripts show that it was the case of a computer store owner
who had induced a young man working in his store to have homosexual intercourse
under the threat of divulging marriage-like documents which were signed by the
latter. The young man eventually complained at the police station and the
police and then the Prosecution investigated the facts, which were subsequently
characterised as indecent assault under duress. The press, the parties, the
Public Prosecutor, indeed, everybody referred to a “contract of declaration and
mutual engagement”. It was implicitly or explicitly argued that the two men had
contracted a kind of “customary marriage”. According to the theories of legal
pluralism, this would testify to the existence of a plurality of social fields
(e.g., homosexuals, the police, the state, the press, etc.), each one being endowed with and
generating its own normative values and rules, i.e., producing its own
law and having a law mirroring its social norms. However, this is particularly
confusing, since it is obvious from the case that there is no legal plurality
but only legal practices, i.e., practices oriented toward an object of
reference identified by the people as law, be it for interpreting it,
implementing it, bypassing it, emptying it of its substance, contesting it, or
whatever else. So-called “customary law” is centred on the law-organised
practices of marriage contracting. It is oriented toward the creation of mutual
rights and obligations by the signing of a written document. It follows the
lines of “customary marriage”, despite the malicious intent of one of the two
parties. It does not reflect the existence of parallel systems of law; it only
reveals the law-centred organisation of a whole range of (private) practices.
It is not only the state legal system that “digests” the social so as to give
to the facts that are brought to its attention a characterisation that makes
them legally relevant and open to the ascription of legal consequences, but it
is also the so-called many social fields that take state law as their focal
point. [79]
Also in 2000 the press reported that two young men were found dead in the
countryside nearby the town of
In sum, the three cases briefly exposed seemingly constitute instances of
legal pluralism (weak or strong in
IV. Conclusion
In their analysis of
the plural nature of law, the proponents of legal pluralism largely miss the
phenomenon they seek to study. Most practicalities, contingencies, background
expectations, situational constraints and orientations of people engaged in
legal activities are erased for the benefit of the production of a
retrospective account of cases that are supposed to have the demonstrative
capacity to prove the validity of the legal pluralistic model. It does not mean
that, through the reading of these authors, we do not learn a lot, but only
that we did not learn what we wanted to know, that there was a kind of
“missing-what” in this approach to law. This missing-what was the phenomenon of
practicing a law identified as plural. In other words, by looking for legal pluralism
in the dynamics of history or in the structure of societies, research had lost
the phenomenon of the law itself. The analysis is acutely grounded in concepts
(codification, social control, modernisation, globalisation, etc.), categories (Islamic law,
indigenous law, imported law, customary law, etc.) and theories (systemic, structural, realist, behavioural, etc.), but, by so doing, it probably
misses an essential part of its object, perhaps even the core of its topic, i.e.,
actually practicing the law and orienting to its possible plural nature. In
sum, legal pluralism was used as a resource for explaining larger issues, like
change, power, domination, equality; however, the law itself was forgotten as a
topic in its own right.
Praxiology
seeks to substitute to the building of grand model theories the close
investigation of actual data reflecting the ways (methods) in which people (the
members of any social group) make sense of, orient to, and practice their daily
world. Following Stephen Hester and Peter Eglin, we can identify four
principles that characterise a praxiological approach.[81] First, the attention to the “the production
and recognition apparatus”[82] of action, i.e. the means used to
produce an action in a way that allows it to be understood by others. Second,
the injunction to “treat social facts as interactional accomplishments”.[83] Social facts, in this sense, are not givens
but ongoing social productions of people engaged in courses of mutually
constituted actions within mutually constituted self-organizing settings.
Third, rather than predefining social phenomena or employing people’s meanings
as resources for explanation, praxiology seeks to describe what participants in
particular settings are oriented to and how these features enter into their
perceptions, actions and accounts. People’s “meanings” become topics of inquiry
in their own right rather than resources for mapping out sociological
relevance. Four, people, i.e. social actors, are rule-using, not
rule-determined creatures. It means that, in the course of their actions, they
eventually orient to bodies of rules. However, their actions cannot be depicted
as rule-governed. As a whole, praxiological studies involve a radically
non-mentalist approach, where, by non-mentalist, it is meant that processes
related to mind, thought, emotions and the like cannot be reduced to mere neuronal
firings nor relegated to any inaccessible inner self, but must be radically
“sociologised”.[84] If methodology is about rigour, the rigour of praxiological
analysis has to be found in its capacity to reproduce the features of the
phenomena it observes and not in its assuming about these phenomena anything
specific in advance of investigating them.[85]
Praxiological research is sensitive to the question of
categories. Instead of falling into the trap of analytic de-contextualisation,
with all that it means in terms of mentalistic notions like “false
consciousness,” “latent functions,” “subconscious processes,” “incorporation,”
and the like, praxiological analysis argues that “the specificity of sense of a
given social action is discernible by members and analysts alike only in
situ”.[86] The goal of this praxiological
re-specification of the study of law we advocate is not to identify how far
legal practices deviate from an ideal model or a formal rule but to describe
the modalities of production and reproduction, the intelligibility and the
understanding, the structuring and the public character, of law and the many
legal activities. Instead of assuming the existence of cultural, racial,
sexual, psychological or social variables, praxiological research focuses on
how activities organise themselves and on how people orient themselves to these
activity structures, which they read in a largely unproblematic way. If we are
to take law seriously, it is, nevertheless, neither the law of abstract rules
nor the law of principles independent of the context in which they are utilised
nor the law as identified with social control nor the law of dichotomies (e.g.,
imported v. indigenous, state v. people) imposed by scholars notwithstanding
people’s actual practices; rather, it is the law of people involved in the
daily practice of law, i.e. the law made of the practice of legal rules,
of their interpretive principles, and of their eventual identification as
plural.
* Professor at the Université de Louvaine (
[1] B. MALINOWSKI, ‘Introduction’ in H.I.
HOGBIN, Law and Order in Polynesia, New York, Harcourt, Brace and
Company, 1934, p. xiii.
[2] B. MALINOWSKI, Crime and Custom In
Savage Society,
[3] B. TAMAHA, Realistic Socio-Legal
Theory: Pragmatism and A Social Theory Of Law,
[4] Ibid., p. 68.
[5] E. EHRLICH, Fundamental Principles
of the Sociology of Law, transl. W.
MOLL, Cambridge, Harvard University Press, p. 24.
[6] Ibid., p. 25.
[7] Although American legal realism was also concerned with the idea of
plurality in the development of legal systems, K.N. LLEWELLYN and E.A. HOEBEL, The Cheyenne
Way: Conflict and Case Law in Primitive Jurisprudence, Norman, University
of Oklahoma Press, 1941. It is much more to the
[8] G. GURVITCH, L’idée du droit social, Paris, 1932; L’expérience juridique et la philosophie du droit, Paris, 1935.
[9] N. ROULAND, Anthropologie juridique, Paris, PUF, 1988.
[10] R. BANAKAR, ‘Integrating
Reciprocal Perspectives.
On Georges Gurvitch’s Sociology of Law’, Oñati Prize Essay in
Sociology of Law, Oñati/Internet, 2000. One can consider that L.
Pospisil’s conception of “legal levels” does not stand far away from Gurvitch’s
concept of social law. According to Pospisil, societies are never fully
integrated. On the contrary, society is a mosaic of subgroups that belong to
certain types with different memberships, composition, and degree of
inclusiveness, every such subgroup largely owing its existence “to a legal
system that is its own and that regulates the behavior of its members”, L. POSPISIL, Anthropology of
Law: A Comparative Theory, New York, Harper & Row, 1971.
[11] J.
[12] Although other contributions are certainly as
important as
[13] J.
[14] Ibid., p. 4.
[15] Ibid., p. 8.
[16] Ibid., p. 38.
[17] S.F. MOORE, Law as Process : An
Anthropological Approach,
[18] The semi-autonomous social field “can generate
rules and customs and symbols internally, but […] is also vulnerable to rules
and decisions and other forces emanating from the larger world by which it is
surrounded. The semi-autonomous social field has rule-making capacities, and
the means to induce or coerce compliance; but it is simultaneously set in a
larger social matrix which can, and does, affect and invade it, sometimes at
the invitation of persons inside it, sometimes at its own instance”, S.F.
MOORE, ‘Law and Social Change: The Semi-Autonomous Social Field as an
Appropriate Subject of Study”, Law & Society Review, Vol. 7, p. 720.
[19] The concept of polycentricity of law was also developed by scholars in the
Nordic European countries. It refers to a category of instances of legal
pluralism, which are described as the use of sources of law in different
sectors of the state administration. The principal hypothesis is that different
authorities frequently use different sources of law or use the same sources
with different orders of priority between them. It aims at supplementing Sally
Falk Moore’s picture of the semi-autonomous social fields inside the apparatus
of the State itself, cf. G. WOODMAN,
“Ideological Combat and Social Observation: Recent Debate About Legal
Pluralism”, Journal of Legal Pluralism and Unofficial Law, No 42.
[20] J. VANDERLINDEN, ‘Return to Legal
Pluralism: Twenty Years Later’, Journal of Legal Pluralism and Unofficial
Law, 1989, pp. 149-157.
[21] J. VANDERLINDEN, ‘Vers une nouvelle conception du pluralisme
juridique’, Revue de
[22] A.J. ARNAUD, Le droit trahi par la sociologie, Paris, Librairie Générale de Droit et de Jurisprudence, 1998; J.G. BELLEY, Le contrat, entre droit, économie et société, Québec, Les éditions Yvon Blais, 1998; J.F. PERRIN, Sociologie empirique du droit, Bâle, Helbing & Lichtenhahn, 1997.
[23] E. SERVERIN, Sociologie du droit, Paris,
[24] K.N. LLEWELLYN and E.A. HOEBEL, The
[25] L. NADER and H. TODD, The Disputing Process: Law in Ten Societies,
[26] S. ROBERTS, Order and Dispute: An
Introduction to Legal Anthropology, Harmondsworth, Penguin Books, 1979.
Also, J. COMAROFF and S. ROBERTS, Rules and Processes: The
Cultural Logic of Dispute in an African Context,
[27] B.Z. TAMANAHA, “A Non-Essentialist
Version of Legal Pluralism”, Journal of Law and Society, 2000, Vol. 27, No
2, pp. 296-321, at p. 297.
[28] G. WOODMAN,
“Ideological Combat and Social Observation”, o.c.
[29] M.
[30] Ibid.
[31] Ibid.
[32] M.
[33] M.
[34] A. GUEVARA-GIL, J. THOME, “Notes
on Legal Pluralism”, Beyond Law, 1992, No 5, pp. 75-102, at p. 87.
[35] B.S.
[36] Ibid., p. 298.
[37] Ibid., p. 302.
[38] A. GUEVARA
and J. THOME, o.c., p. 91.
[39] B.S.
[40] G. TEUBNER, “Pour une épistémologie constructiviste du droit”, Annales
ESC, 199, pp. 1149-1169, at p. 1150.
[41] G. TEUBNER, “The Two Faces of Janus:
Rethinking Legal Pluralism”, Cardozo Law Review, 1992, pp. 1443-62, at p.
14.
[42] Ibid.
[43] Ibid.
[44] G. TEUBNER, “The Two Faces of Janus:
Rethinking Legal Pluralism”, o.c., p. 15.
[45] S.E.
MERRY, o.c., p. 878.
[46] G. WOODMAN, ‘Ideological Combat and
Social Observation: Recent Debate About Legal Pluralism’, Journal of Legal
Pluralism, 1998.
[47] B.Z. TAMANAHA, “The Folly of the
‘Social Scientific’ Concept of Legal Pluralism”, Journal of Law and Society,
1993, pp. 192-217, at p. 193.
[48] S.E.
MERRY, “Legal Pluralism”, o.c., p. 878.
[49] B.Z.
TAMANAHA, “The Folly of the ‘Social Scientific’ Concept of Legal
Pluralism”, o.c., p. 208.
[50] B.
DUPRET, “Legal Pluralism, Normative Plurality, and the Arab World”, in B.
DUPRET, M. BERGER, L. AL-ZWAINI, Legal Pluralism in the
Arab World,
[51] See infra, section 4.
[52] This is why I proposed to substitute the
notion of “normative plurality.”, B. DUPRET,
“Legal Pluralism, Normative Plurality, and the Arab World”, o.c.
[53] B. TAMAMAHA, Realistic Socio-Legal
Theory: Pragmatism and a Social Theory of Law,
[54] G.
TEUBNER, “The Two Faces of Janus”, o.c., p. 15.
[55] J.R. SEARLE, The Construction of
Social Reality,
[56] G.
TEUBNER, “The Two Faces of Janus”, o.c., p. 15.
[57] For an excellent and concise summary, see K.
BÄLZ, “
[58] C. GEERTZ, Local Knowledge: Further
Essays in Interpretive
[59] S.E.
MERRY, “Legal Pluralism”, o.c., p. 886.
[60] C.
GEERTZ, Local Knowledge, o.c., p. 185.
[61] Ibid., p. 226.
[62] Lawrence Rosen describes it as “a set of
orientations which gains its very life by reverberating through numerous
analytically separable domains so as to appear immanent in all of them” and as
“commonsense assumptions about features that cross-cut virtually all domains of
law and life - assumptions about human nature, particular kinds of relationships,
the ‘meaning’ of given acts”; L. ROSEN,
“Legal Pluralism and Cultural Unity in Morocco”, in B. DUPRET, M. BERGER and L. AL-ZWAINI, o.c., p. 90.
[63] L. ROSEN, The Anthropology of
Justice: Law as Culture in Islamic Society,
[64] Ibid., p. 11.
[65] B.
DUPRET, “Legal Pluralism, Normative Plurality, and the Arab World”, in B. DUPRET, M. BERGER and L. AL-ZWAINI, o.c.,
p. 30.
[66] B.Z.
TAMANAHA, Realistic Socio-Legal Theory, o.c., p. 128.
[67] B.Z.
TAMANAHA, “A Non-Essentialist Version of Legal Pluralism”, o.c., p.
314.
[68] Ibid., p. 315.
[69] Ibid., p. 318.
[70] Ibid., pp. 318-319.
[71] W. SHARROCK and R. WATSON, “Autonomy among social theories: The
incarnation of social structures”, in G. FIELDING, Actions and
Structures,
[72] D.W. MAYNARD, Inside Plea
Bargaining: The Language of Negotiation,
[73] Ibid.
[74] W. SHARROCK and G. BUTTON, “The social actor: social action in real
time”, in G. BUTTON, Ethnomethodology and the Human Sciences,
[75] B.Z. TAMANAHA,
“The Folly of the ‘Social Scientific’ Concept of Legal Pluralism”, o.c.,
p.
[76] B.Z. TAMANAHA,
“A Non-Essentialist Version of Legal Pluralism”, o.c., p. 318.
[77] Ibid., p. 315.
[78] Ibid., p. 319.
[79] This case by no way reflects any
common phenomenon in
[80] On Arab councils and customary law in
[81] S. HESTER and P. EGLIN, A Sociology Of Crime,
[82] H. GARFINKEL and H. SACKS, “On Formal
Structures Of Practical Actions”, in J.C.
McKINNEY and E.A. TIRYAKIAN, Theoretical Sociology,
[83] M. POLLNER,
“Mundane Reasoning”, Philosophy of the Social Sciences, 1974, pp. 35-54.
[84] J.CF. COULTER, Mind In Action, Atlantic
Highlands, NJ, Humanieties Press International, 1989; R. WATSON, “Ethnomethodology,
Consciousness and Self”, Journal of Consciousness Studies, 1998, pp. 202-223.
[85] D. BENSON and J. HUGHES, “Method: Evidence and inference-evidence and
inference for ethnomethodology”, in G. BUTTON, Ethnomethodology and
the Human Sciences, Cambridge, Cambridge University Press, 1991, pp.
128-129.
[86] R. WATSON, “Ethnomethodology,
Consciousness and Self”, o.c., p. 215.