Legal Pluralism

Legal Pluralism
Hooker (1975: 1) highlighted that ‘[l]egal systems typically
combine in themselves ideas, principles, rules, and procedures originating from
a variety of sources’, adding that ‘[b]oth in the contemporary world and historically
the law manifests itself in a variety of forms and a variety of levels’ (p. 1).

Studying legal pluralism clearly ‘raises important questions about
power’ (Griffiths, 2002: 289)
While legal uniformity represents a utopian dream of philosophers, it is
therefore an exception in social reality.
Twining (2000: 232) notes that lawyers have problems with handling
legal pluralism:
[L]egal pluralism is generally marginalised and viewed with scepticism in
legal discourse. Perhaps the main reason for this is that over 200 years
Western legal theory has been dominated by conceptions of law that tend
to be monist (one internally coherent legal system), statist (the state has a
monopoly of law within its territory), and positivist (what is not created or
recognised as law by the state is not law).
Twining (2000: 135) suggests that ‘a sound understanding of
law as a social phenomenon needs to be rooted in a sound sociology and social
theory’ (pp. 81-2) and stresses that ‘[q]uestions of cultural relativism of law are
central to contemporary jurisprudence’ (p. 156). Since the only closed social
system is humanity at large (p. 73),11 even if we wanted to focus on law itself,
‘closure is not an option’ (p. 247). Twining (2000: 103) thus sees ‘a need for a
sophisticated conceptual apparatus which can form both a meta-language for
talking about laws in general and a tool-box for expressing laws with precision’.
But so far, legal debates about globalisation and pluralism are undeveloped.
Twining (2000: 58) indicates:
Legal theory in London, and in the common law world generally, has diversified
considerably and shows signs of a confusing, sometimes confused,
intellectual ferment. But very little of this seems to be directly related to
globalisation, let alone to be a response to it. The two most obvious relevant
approaches, law and development and legal pluralism have been quite
marginal in London and elsewhere in the United Kingdom in recent years.
So, too, has historical jurisprudence. Indeed, some of the most fashionable
pursuits could be accused of being quite parochial.12
Twining (2000: 101)
observes that looking at lawfroma global perspective ‘involves no commitment
to naive universalism, rather it puts issues about interdependence, cultural and
ethnic relativism, and multiculturalism near the top of the agenda’.
Early conceptualisations of legal pluralism
It
is the oldest formof legal tradition in the world, focused on orality and specific
ways of life. Glenn (2004: 61) explains:
A chthonic legal tradition simply emerged, as experience grew and orality
andmemory did theirwork. Since all people of the earth are descended from
people who were chthonic, all other traditions have emerged in contrast to
chthonic tradition. It is the oldest of traditions; its chain of traditio is as
long as the history of humanity.
The term ‘legal pluralism’ became academically recognised in anglophone
scholarship after Barry Hooker’s (1975) book on legal pluralism, followed by
many important studies and an ongoing lively debate.
Baron Charles de SecondatMontesquieu (1689-1755) wrote famous works
in 1721 (Lettres persanes) and 1748 (De l’esprit des lois) in which he argued
for ‘the existence of eternal standards of some kind, antecedent to the positive
laws of men, and recognizable to human intelligence’ (Kelly, 1992: 259).
These were not necessarily natural law elements, but arose from social conventions.
Montesquieu drew attention to ‘the varying customs of different nations
(while giving the usual perfunctory salute . . . to the supremacy of the law of
nature) and suggesting that their variety was explained by the variety in their
surrounding conditions’ (Kelly, 1992: 273). He elaborated on this by creating
the famous principle that laws made by the state should be adapted to suit the
actual condition of the people concerned.20 Rouland (1994: 20) writes:
Montesquieu . . . had the merit of being the only thinker of his period to
reject a fixed attitude towards law, and to consider societies which differed
from his own. ForMontesquieu, law was one of the components of a
sociopolitical systemand closely involved in its functioning.Thus lawwas of
necessity a changeable entity, varying according to society, time and place.
Rouland (1994: 20) indicates that Montesquieu pioneered what we might call
today a holistic perspective and shunned the evolutionary model:
For him, developments in legal systems are not marked by historical milestones,
indicating the march of progress, but depend onmuch more prosaic agencies, such as the climatic conditions, topography, demography, etc. of a
particular society. In his recognition of the variability of law,Montesquieu
is the first legal anthropologist of the modern period.
Bentham, following Montesquieu, and not being a
pure positivist, said that ‘caution needs to be exercised in legislating for a particular country in
case expectations based on local customs and circumstances should be disappointed
– for the non-disappointment principle is an important principle subordinate
to utility’ (p. 20)
Twining (2000:
250) concludes:
Although he did not develop his ideas very far in this respect, he was more
sensitive than most of his successors to the limitations of ‘black box’ theories
of national or municipal legal systems . . . his grand vision of the range of
questions that need to be addressed by a general theory concerned with the
design of institutions, procedures and laws at all levels from the very local
to the global deserves much more attention than it has so far received.
In England, Bentham’s theories were soon overshadowed by Austin’s theory of
positivism,23 but jurisprudence and legal anthropology all over Europe received
important stimuli from a number of other early scholars as proponents of the
historical school of jurisprudence.
The historical school of law
Among early scholars, Sir Henry Maine (1822-
88) is considered significant as the father of comparative law,25 as well as of
legal anthropology (Rouland, 1994: 21), though he is also blamed for producing
a much-criticised evolutionist legal scheme that is no longer seen as
valid. An early example of a misguided search for the wrong problems comes
from Sir Henry Maine’s (1861: 3) suggestion that law can be studied like a
science:
If by anymeans we can determine the early forms of jural conceptions, they
will be invaluable to us. These rudimentary ideas are to the jurist what the
primary crusts of the earth are to the geologist. They contain, potentially,
all the forms in which law has subsequently exhibited itself. The haste or
the prejudice which has generally refused them all but the most superficial
examination,must bear the blame of the unsatisfactory condition in which
we find the science of jurisprudence.

During the nineteenth century, evolutionary thinking was trendy, KarlMarx
(1818-83) was writing Das Kapital (1867) and Charles Darwin’s (1859) pioneering
study on the origin of species gave a biological interpretation to legal
evolution and increased the belief in man’s capacity for rational action and
growth.
In Germany and Italy, but less so in France, evolutionist theories proved
popular, too.
Earlier in Germany, where political fragmentation and a complex variety
of local laws had sparked off vigorous calls for comprehensive codification
along the French model, the historical school of law had emerged in defence of
local peculiarities and in opposition to official state law. (See trend of law in the legal dictionary and Volksgeist in the Encyclopedia).
Gierke (1950: l) stressed the concept
of people’s law and wrote that ‘[l]aw, on this view, is essentially Volksrecht:
it is the product, in each nation, of the national genius’. Such approaches laid
foundations for early sociological schools of jurisprudence.
Early legal pluralism: Ehrlich’s ‘living law’
Twining (2000: 226) confirms that:
[P]ioneers of the sociology of law, most notably Ehrlich, argued that a
realistic depiction of the law in action had to take account of ‘the living
law’ of sub-groups, as well as ‘the official law’ of the state. They saw that
these could diverge significantly and that sometimes one, sometime the
other would prevail. This was an important step not only in the direction
of ‘realism’, but also away from the idea that the state has a monopoly of
law-creation.
Ehrlich said that “The centre of gravity of legal development lies, in our time as well as in
all times, not in legislation nor in juristic science, nor in judicial decisions,
but in society itself.” .
Dias and Hughes
(1957: 421) suggested that over time courts and legislatures will take notice of
people’s practices, but ‘the formal law can never catch up with the living law.
The donkey never reaches the carrot. There must always be the inevitable gap
between what the law says about a given topic and the way in which people
actually behave . . . Not only does the law lag behind the practice of society, but
in some cases it clearly contradicts that practice.’ Ehrlich (1913: 11) emphasised
that state law was never the only source of law, but that this important fact had
been overlooked or, rather, marginalised over time: “There was never a time when law promulgated by the state was the only
law, not even for the courts and other authorities, and therefore there was
always an undercurrent that tried to establish a corresponding position for
non-state law.”
Ehrlich (1913: 15) emphasised that people play many legal roles outside the
official legal arena: “But for someone who above all perceives regularity of action in the law . . .human life does not occur before the courts. It is evident at first sight that every man is enmeshed in innumerable legal relationships and that, with very few exceptions, he does entirely voluntarily what he is obligated to do in such relationships; he fulfills his duties as a father and son, as husband or wife, he does not disturb his neighbours in the enjoyment of their property.”
Ehrlich
(1913: 29) emphasised that social norms weremore important and prominent,
even today, than the officially pronounced rules:
[The inner order of human society is not only the original but, even in
our time, the basic, form of law. A formal legal rule not only arises much
later, it is still also today largely derived from the inner order of society. To
understand the origins, the development and the nature of law one must
therefore research above all the order of societies. All attempts so far to
understand law have failed because they did not start from the order of
societies but from formal legal rules.]
Ehrlich (1913: 44) similarly insisted that legal institutions did not simply
depend on legal norms:
It is incorrect to assume that the institutions of the laware exclusively based
on legal norms. Ethics, religion, custom, morality, tact, even good style and
fashion do not only order extra-legal relationships, they also intrude with
every step into the legal arena. Not a single legal order could exclusively
exist simply through legal norms, they require at all times the support of
extra-legal norms which would double and supplement their strength.]

From this analysis, Ehrlich (1913: 399) begins to introduce his concept of the
‘living law’:
[The living lawis lawwhichis not fixed in legal statements and yet dominates
life. The sources of its knowledge are above all modern legal documents, but
also the direct observation of life, of trade and other activities, of habits and
customs, and of all organisations, those which are legally acknowledged as
well as those which have been overlooked or marginalised, even the legally
disapproved ones.
Ehrlich (1913: 401)
continued:

[Living law according to the contents of legal documents is not what the
courts recognise as legally binding when they decide a case, but only that
which the parties live by.]

This is much more radical than many writers have realised, because there is
a tendency to view Ehrlich’s ‘living law’ just as an equivalent of ‘the actual
law’.
A further
criticism of Ehrlich’s approach (Dias and Hughes, 1957: 424-5) involves a
general challenge to legal pluralism and seeks to defend the typical lawyers’
legocentric approach:
Finally, Ehrlich is guilty of the same confusing tendency as Duguit in that he
fails to offer any sharp distinction between the legal norm and other social
norms . . . To recognize that the rules of a system of law must be studied
in their social context, that they are meaningless outside that context, is
of the utmost benefit to jurisprudence; but to allow the legal norms to be submerged and lost in the background of their social context can only be
the death of the separate discipline of jurisprudence.
Reluctant pluralism: Hart’s primary and secondary rules
H. L. A. Hart (1907-92), in his major work, The concept of law (1961; 1994),
engaged in deep theoretical discussions about law as one of the leading proponents
of legal positivism.
Bix (1996:
42) explains this further:
The idea is that one cannot understand a social system unless one understands
how the people who created the system or who participate in the
system perceive it. This ‘hermeneutic’ approach that is, giving priority to
trying to understand how other people perceive their situation is always
in tension with those who want social theory to be more scientific.
Hart emphasised the critical
position of rules in a legal system and distinguished between these two different
types:48
Under rules of the one type, which may well be considered the basic or primary
type, human beings are required to do or abstain fromcertain actions,
whether they wish to or not. Rules of the other type are in a sense parasitic
upon or secondary to the first; for they provide that human beings may
by doing or saying certain things introduce new rules of the primary type,
extinguish or modify old ones, or in various ways determine their incidence
or control their operations. Rules of the first type impose duties; rules of the
second type confer powers, public or private. Rules of the first type concern actions involving physical movement or changes; rules of the second type
provide for operations which lead not merely to physical movement or
change, but to the creation or variation of duties or obligations.
asserted Hart (1961: 90):
Hence if doubts arise as to what the rules are or as to the precise role of
some given rule, there will be no procedure for settling this doubt, either by
reference to an authoritative text or to an official whose declarations on this
point are authoritative. For, plainly, such a procedure and the acknowledgement
of either authoritative text or persons involve the existence of rules
of a type different from the rules of obligation or duty which ex hypothesi
are all that the group has.
This is totally hypothetical indeed, since Hart here claims that certain groups
of ‘primitive’ people, either in the distant past, or probably in Asia or Africa
today, have simply not developed methods of clarifying doubts about any of
their rules. Turning to the static character of primary rules as a key defect, Hart
(1961: 90) wrote:
The only mode of change in the rules known to such a society will be the
slow process of growth . . . and the converse process of decay . . . There will
be no means, in such a society, of deliberately adapting the rules to changing
circumstances, either by eliminating old rules or introducing new ones: for,
again, the possibility of doing this presupposes the existence of rules of a different
type from the primary rules of obligation by which alone the society
lives. In an extreme case the rules may be static in a more drastic sense.
Hart (1961: 91) was similarly negative about the self-healing powers of the
simple society he had in mind:
The third defect of this simple form of social life is the inefficiency of the
diffuse social pressure by which the rules are maintained. Disputes as to
whether an admitted rule has or has not been violated will always occur
and will, in any but the smallest societies, continue interminably, if there is
no agency specially empowered to ascertain finally, and authoritatively, the
fact of violation. Lack of such final and authoritative determinations is to be
distinguished from another weakness associated with it. This is the fact that
punishments for violations of the rules, and other forms of social pressure
involving physical effort or the use of force, are not administered by a special
agency but are left to the individuals affected or to the group at large. It is
obvious that the waste of time involved in the group’s unorganized efforts
to catch and punish offenders, and the smouldering vendettas which may
result from self help in the absence of an official monopoly of ‘sanctions’,
may be serious.
Hart (1961: 91) further wrote that ‘[t]he remedy for each of these three main
defects in this simplest form of social structure consists in supplementing the
primary rules of obligation with secondary rules’ and he proceeded to discuss
those remedies in detail.
there ismuch merit in Hart’s (1961: 113) emphasis
of the inherently social character of law:
There are therefore two minimum conditions necessary and sufficient for
the existence of a legal system. On the one hand those rules of behaviour
which are valid according to the system’sultimate criteria of validitymust be
generally obeyed, and, on the other hand, its rules of recognition specifying
the criteria of legal validity and its rules of change and adjudication must
be effectively accepted as common public standards of official behaviour
by its officials.
Hart’s theory fails to include the conceptually challenging
informal legal realities of laws in Asia and Africa. His model of the interaction
of primary and secondary rules is, at the end of the day, a model of universal
application which appears in endless local, regional and national variations,
but it tells us nothing about law itself. Allott (1980: 67) concluded on the
subject:
The case against customary Laws and against the existence or efficacy of
legal norms in small societies is not made out. The smallness of a society
does not limit either the existence or the effectiveness of Law, though the
smaller and simpler the society, the less Law there will have to be.
Twining (2000: 53-4) notes that Hart’s efforts to revive the study of jurisprudence
during the 1950s succeeded in shifting emphasis towards general
jurisprudence,
Postmodern theories of legal pluralism
We noted earlier that Hooker (1975) was one of the first scholars to tackle
legal pluralism but remained far too cautious, too closely wedded to positivist
jurisprudence.His basic distinction of ‘weak’ and ‘strong’ legal pluralism, which
seemed so attractive at the time, was subsequently criticised as a meaningless
effort, because both types remain dependent on state sanction and are merely
different types of positivist, official law (Griffiths, 1986; Chiba, 1986; Griffiths,
2002). Still, hiswork remains an immensely useful study,with excellent material
on legal transplants and the reception of laws by many countries in Asia and
Africa from European, mainly colonial, powers and it shows that the author
was well aware of the importance of social factors in relation to law. In the
preface, Hooker (1975: vii) portrays legal pluralism as an important form of comparative law and indicates his plan to discuss the origins of modern forms
of pluralism. He then shows that he was a pluralist at heart, but a positivist by
training:
The fact is that, despite political and economic pressures, pluralism has
shown an amazing vitality as a working system. It may well be that it –
and not some imposed unity should be the proper goal of a national
legal system. Indeed, even within developed nations themselves, there are
signs that a plurality of law is no longer regarded with quite the abhorrence
common a decade ago.
2.5.1 Moore’s concept of the ‘semi-autonomous’ social field
Moore (1978: 214-15) laid out her own project:
Examining different approaches to the classification of legal systems may
give us some idea of the magnitude of law as a subject, and of the ways
in which anthropologists have perceived the field as a whole. No society
is without law; ergo, there is no society outside the purview of the ‘legal
anthropologist.’ It is not merely difficult but virtually impossible to control
the full range of the available ethnographic information. Every good
ethnographic description contains a great deal of legal material, whether
or not it is explicitly called ‘law’ . . . Not only does every society have law,
but virtually all significant social institutions also have a legal aspect. This
means that to master the whole legal system of one society, procedural
and substantive, one must master the whole institutional system of that society from citizenship and political place to property and economic
relations, from birth to death, and from dispute to peaceful transaction.
Moore (1978: 215) shows that she was aware of the potential for taking quite
different approaches in the endeavour to understand lawin society, distinguishing
the methods of the anthropologist from those of the comparative lawyer.
The special contribution of the anthropologist’s point of view lies in the tendency
‘to see the legal system as part of a wider social milieu’ (p. 215).
The pioneering work of Bronislaw
Malinowski (1926) proved influential for the academic study of law, as
Moore (1978: 218-19) explains:
With a few bold strokesMalinowski told the world his idea of what law was,
why people obeyed it when they did, and why, sometimes, they did not.
Malinowski was indignant about theories of primitive law like Hartland’s
(1924), which asserted that primitive man automatically obeyed the customs
of his tribe because he was absolutely bound by tradition.Malinowski
was little concernedwith prohibitions and sanctions, but instead was struck
by the positive inducements to conformity to be found in reciprocal obligations,
complementary rights, and good reputation. He perceived the social
and economic stake of the man who wished to remain in good standing
among his fellows as the dynamic force behind the performance of obligations.
But if the law is so much the stuff of ordinary social life that it
is embodied in all binding obligations, then nothing but a full account
of social relations in a society will adequately ‘explain’ the content and
working of its law. In a way, this is quite true, and is continuously being
rediscovered.

Moore (1978: 219-20) criticises that many
recent studies on jurisprudence:
[T]reat the law of technologically simple societies as the historical or typological
precursor of modern law as an early stage subsequently replaced
by that supposed apogee of excellence, theWestern European tradition, or
perhaps still better, theAnglo-American tradition. The lawof pre-industrial
society is not examined to see whether it operates on sociological principles that apply equallywell to some aspects of social control in industrial society.
On the contrary, it is treated as a phenomenon that has been superseded,
rendered obsolete by later improvements.
Moore (1978:
2) emphasised the limits of legal regulation in a social context, criticising legal
centralism, in a manner close to Ehrlich:
Ordinary experience indicates that law and legal institutions can only effect
a degree of intentional control of society, greater at some times and less at
others, or more with regard to some matters than others. That limited
degree of control and predictability is daily inflated in the folk models of
lawyers and politicians all over the world.
Evidently, realisation of such analytical
limits has important consequences for law-making, too.Moore (1978: 4) points
out:
A central concern of any rule-maker should be the identification of those
social processes which operate outside the rules, or which cause people to
use rules, or abandon them, bend them, reinterpret them, sidestep them,
or replace them. To recognize that such processes are inescapable aspects of
the use of rule-systems and to try to understand as much as possible about
the conditions of their operation would probably be far more effective
than taking the view that such activities might be fully controlled simply
by tighter drafting of ‘loophole-less’ legislation. Social transactions usually
take place in the service of objectives to which legal rules are merely ancillary
shapers, enablers, or impediments. Conformity to the rules is seldom in
itself the central objective.
Legislation is here depicted as piecemeal legal intervention, not as a simple
means to create order and to dominate a society top-down. Moore (1978: 9)
explicitly commented on this:
The piecemeal quality of intentional legal intervention, whether legislative,
executive or judicial, is due to its construction as a response to particular circumstances at particular moments. The accretion of many such
responses over time makes for a composite, unplanned total result. Even
though, at various times and places, there have been attempts to codify
everything once and for all, in the long term all legal ‘systems’ are built by
accretion, not by total systematic planning.
Legislation is, then, only one part of legal regulation.56 Moore (1978: 29) wrote
that ‘the law of the central state is but one kind of reglementation emanating
from one kind of organization’.
stipulating
the possibility that ‘it is society that controls law and not the reverse’ (Moore,
1978: 55), she emphasises that ‘[l]aw and the social context in which it operates
must be inspected together’ (p. 55). Focus on the semi-autonomous social field
is therefore an appropriate methodological tool to understand the operation
of law in society (pp. 55-6):
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. The analytic
problem of fields of autonomy exists in tribal society, but it is an even
more central analytic issue in the social anthropology of complex societies.
All the nation-states of the world, new and old, are complex societies in
that sense. The analytic problem is ubiquitous.
2.5.2 Allott’s three perspectives on To reduce the linguistic confusions about the English
term ‘law’, Allott (1980: 2) proposed three different forms of typography:
LAW = the general idea or concept of legal institutions abstracted from any
particular occurrence of them
Law = a coherent, total, particular legal systemprevailing in a given community
or country
law = a particular normative provision of a Law; a rule or norm of a given
legal system.
Stating that Law and law are certainly more easily understood than LAW, which
seems to have been debatedmuch more than the others, Allott (1980: 2-5) first
considered in detail what is meant by LAW and emphasised the idiosyncratic
nature of the three concepts:
LAW by definition is an abstraction from reality, from particular Laws or
laws . . . There is noway inwhichone candissect the abstraction and expose
the essence at its core . . .
Abstractions therefore are idiosyncratic. But, since their use is not only
in analysis but in communication with others, Imust so use the abstraction
as to convey some meaning tomy hearers. It may not be the same meaning, law as I may well discover on further investigation of what they have received,
and what they perceive (p. 2).
Thus, continued Allott (1980: 2), what those three types of law mean to us is
clearly a matter of individual choice, ‘but if our usage diverges too far from
what other people do and is thereby unintelligible or unacceptable to others,
our communication fails’. Allott (1980: 3) therefore explained that we should
not immediately look for a general or universally valid definition of LAW:
Because LAWis an abstraction from particular Laws, it is useless to attempt
to define it or elucidate its abstract and general meaning before looking
at the particular on which it rests. We must therefore start with the particular
= the actual legal systems or Laws. There is an analogy here with
LANGUAGE,which is an abstraction fromnatural or actual Languages. Linguistic
studies must start with, and be anchored in, the actual Languages
used.

Allott (1980: 18) identified a popular tendency
to be misled, so that ‘LAW is thought of as of universal application,
because the laws of nature or physical laws are by definition without exception’.
Given that all scientific laws are universal, a confusion of categories occurred
when the images of physical laws and their regularity were transposed to legal
images. Allott (1980: 19) concluded that ‘[t]here was thus an illegitimate corruption
of (juristic) Laws and laws as terms to be used in the analysis of legal
systems’.
Analysing the concept of Law, Allott (1980: 3) had already said, while discussing
LAW, that ‘[l]aws or actual legal systems are a social reality. A given
society will continue to think about it. Law . . . has abstract qualities as well as a
concrete substrate. Its perception as a system, and the extent of the phenomena
covered by that system, depend on a process of abstraction by an observer.’
Searching specifically for a definition of Law, Allott (1980: 5) wrote that ‘[a]
Law or “legal system” is a systemof communication. That is, it is a member of the
same super-genus as a Language. The features of a Laware thus the same as those
of any communication system.’
Regarding this
complex process of communication, Allott (1980: 9) emphasised:
The ordinary subject of a Law in a society perceives and receives, not Law,
but laws, i.e. norms which purport to guide his behaviour.Who emits these
laws or norms? Western jurists of the positivist school, Austin and after,
would answer: the determinate sovereign in that society. Verbal contortions
110 comparative framework
have to be performed to identify such a sovereign in a federal state, in a
diarchy, or ina society ruled by customary Law.Theeffort is notworthwhile;
the ‘sovereign’ is a lay figure manipulated by the analyst, a construct.
If we start at the opposite end, and consider an act of legal communication
in a real society, preferably one devoid of lawyers and jurists, the
recipient of the normative statement perceives that it is transmitted to him
by the fellow-members of his society generally . . . whether or not they are
in authority over him; by those who are recognised as official spokesmen
or enunciators of the norms, such as judges or other members of courts,
arbiters, diviners, oracles, priests. Most of the normative statements are
transmitted, not originated, by the emitter/enunciator. In other words, the
emitter of the norm does not claim to be its originator; the people say that
they are quite literally transmitting or handing on the customs of the ancestors
. . . In fewer cases the emitter will himself (or themselves collectively)
be and claim to be the originator of the norm.”

This totally opposes legal positivism.
Allott (1980: 8) depicted legal systems
as manifestations of human relationships, since there are real people behind
the institutions that make up the Law:
Apoliceman is tangible. But when we say that the police are one institution
of the Law, we mean that the Law has created or recognised them as an
institution. The body of men who are police are only an institution of the
Law to the extent that they carry out the function or role attributed to them
by the Law . . .
Similarly with relationships functioning as institutions of the Law. The
Lawcan take an existing relationship, e.g. the family group, and recognise or
define it as a legal institution. Or the Law can invent an institution, which,
though it has some physical connexions or implications (without these it
could not operate in the real world), is an abstraction: a limited liability
company springs to mind. All relationships defined as legal institutions are
thus abstract with real connections.
Allott (1980: 9) found that while ‘a Law or legal system is a fact, in the sense
that the existence of legal systems is open to experimental observation and
confirmation’, at the same time it ‘is not a fact, in that its laws/rules/norms do
not describe what has happened, but prescribe what is to happen, and which in
fact need not happen’ (p. 9).
As Allott
(1980: 18) showed, skilful legal interpretation has over time enlarged the sphere
of law, since ‘[l]ater juristic opinion has managed to include such individual
pseudo-norms within the definition of legal norm by the simple device of
prescriptive definition: it is so because I say it is so.’ This is entirely circular, a
classic illustration that ‘the rationality of modern law is a piecemeal rationality’
(Cotterrell, 1989: 6).
Allott (1980: 19-23) considered whether various
facilities, institutions, processes and principles in a legal system are norms,
finding that norms can be of different types. Allott (1980: 23) explained:
The reason is that a Law is a system; it is a systemwith feedback; each element
in the system pre-supposes and depends onmany other elements. It is
unreal, and analytically absurd, to attempt to abstract one normin isolation
from those others which relate to it and give it meaning or control its operation.
A simple norm apparently directed to the behaviour of individual
subjects of the Law implies many norms, of which the most general is:
‘Let there be a legal system!’
A simple norm without implementing norms is and must be ineffective.
Implementing norms will often consist of instructions to and about the
institutions and processes of the law; what we would otherwise call metanorms.
The circle is a closed one.
Thus, Allott again concludedwith a totally circular argument: Lawis lawbecause
it is law! It is lawbecause certain people declare it to be lawand it is perceived as a
necessary condition of human existence.Highlighting the importance of a legal
system in itself, Allott stipulated a natural, instinctive, human grundnormto the
universal effect that there must be law, similar to familiar calls for application
of the ‘rule of law’.
2.5.3 Griffiths’ theory of legal pluralism
Noting that social fields vary in their extent of plurality, but that all fields
(with very few exceptions) are plural, Griffiths (1986: 2) aims to provide a
basic working definition of legal pluralism as ‘that state of affairs, for any social
field, in which behavior pursuant to more than one legal order occurs’. In
his first major section, ‘The intellectual context of a descriptive conception of
legal pluralism’,Griffiths (1986: 2-8) locates his debate of legal pluralismwithin
existingwriting and thinking.Griffiths (1986: 3)defines the concept or ideology
of ‘legal centralism’, according to which ‘lawis and should be the lawof 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 . . . exist, they ought to be and in fact are hierarchically
subordinate to the law and institutions of the state.’
Griffiths (1986: 4) strongly criticises the inability and unwillingness of
legal scholars to perceive social reality without blinkers:

The ideology of legal centralism . . . has made it all too easy to fall into the
prevalent assumption that legal reality, at least in ‘modern’ legal systems,
more or less approximates to the claimmade on behalf of the state. Lawyers,
but also social scientists, have suffered from a chronic inability to see that
the legal reality of the modern state is not at all that of the tidy, consistent,
organized ideal . . . but that legal reality is rather an unsystematic collage of
inconsistent and overlapping parts, lending itself to no easy legal interpretation,
morally and aesthetically offensive to the eye of the liberal idealist,
and almost incomprehensible in its complexity to the would-be empirical
student.
Griffiths (1986: 4-5) then powerfully
asserts his own position:
Legal pluralism is the fact. Legal centralism is a myth, an ideal, a claim,
an illusion. Nevertheless, the ideology of legal centralism has had such
a powerful hold on the imagination of lawyers and social scientists that
its picture of the legal world has been able successfully to masquerade as
fact and has formed the foundation stone of social and legal theory. A
central objective of a descriptive conception of legal pluralism is therefore
destructive: to break the stranglehold of the idea that . . . law . . . is a single,
unified and exclusive hierarchical normative ordering depending from the
power of the state, and of the illusion that the legal world actually looks
the way such a conception requires it to look. In short, part of the purpose
of this article is a simple debunking, as a necessary prolegomenon to any
clear empirical thought about law and its place in social life.
Griffiths (1986: 5) deepens his analysis by introducing the distinction between
‘strong’ and ‘weak’ legal pluralism. To him, legal pluralism in its ‘strong’ sense
is ‘a situation in which not all law is state law nor administered by a single
set of state legal institutions, and in which law is therefore neither systematic
nor uniform’ (p. 5).
Griffiths (1986: 5) explains that in this ‘weak’ sense:
a legal system is ‘pluralistic’ when the sovereign (implicitly) commands
(or the grundnorm validates, and so on) different bodies of law for different
groups in the population. In general the groups concerned are defined
in terms of features such as ethnicity, religion, nationality or geography,
and legal pluralism is justified as a technique of governance on pragmatic
grounds . . . Within such a pluralistic legal system, parallel legal regimes,
dependent from the overarching and controlling state legal system, result
from ‘recognition’ by the state of the supposedly pre-existing ‘customary
law’ of the groups concerned. While such pluralism is not limited to
the colonial and post-colonial situation, that is certainly where it is best
known.
Maintaining
‘weak’ legal pluralism is widely seen as evidence of a deficiency in modern
development. Griffiths (1986: 7) writes:
Formal acquiescence by the state in a situation of legal pluralism in this
weak sense adds a formidable layer of doctrinal complexity on top of the
complexity normally incident to a supposedly uniform state legal system.
The resulting state of affairs is regarded by almost everyone concerned as
profoundly defective. It is the messy compromise which the ideology of legal
centralism feels itself obliged to make with recalcitrant social reality: until
the heterogeneous and primitive populations of ex-colonial states have, in
the process of ‘nation-building’, been smelted into a homogeneous population
of the sort which ‘modern’ states are believed to enjoy, allowances
must be made.
However, as Griffiths (1986: 7-8) continues immediately, the proponents of
legal centralism are unhappy and quite impatient with a pluralist scenario,60
even where this is largely on terms set by the state itself:
But unification remains the eventual goal, to be enacted as soon as circumstances
permit. While law ought not to and cannot depart from local
expectations so quickly and radically that it ceases to ‘function’, upsets
expectations, and unsettles the social order, it should nevertheless exercise
a constant pressure in the desireddirection. Uniformlaw is not only dependent
upon, but also a condition of progress toward modern nationhood (as
well as of economic and social ‘development’). In one form or another, the
literature of and about legal pluralism, in the weak sense primarily associated
with colonial and post-colonial societies, is almost all written under
the sign of unification: unification is inevitable, necessary, normal, modern
and good.
Griffiths (1986: 8)
clarifies this ambivalent complex process:
‘Legal pluralism’ is thus but one of the forms in which the ideology of
legal centralism can manifest itself. It is to be sure, by the terms of that
ideology an inferior form of law, a necessary accommodation to a social
situation perceived as problematic. But it is nevertheless only intelligible as
an expression of that ideology. It is the fact that ‘legal pluralism’ is defined
as an imperfect form of law by the very ideology which gives it meaning as
a concept, that accounts for the low opinion of ‘legal pluralism’ held by so
many of those who write within and about it, and it is thus not surprising
that even lawyers and scholars who live in states whose legal systems are
formally pluralistic take a dim view of that state of affairs.
Griffiths (1986: 9) complains that ‘[t]here are practically
no explicit definitions of legal pluralism, in the descriptive sense with
which we are concerned, to be found in the literature.What there does exist is
not generally of great use.’

2.5.4 Chiba’s tripartite model of law
Masaji Chiba’s work, built on the assumption that legal pluralism is a universal
phenomenon, is mainly found in two major studies (Chiba, 1986; 1989). Taking
an Asian, and to some extent Japanese perspective, Chiba (1989: 1-2) asserts
that legal pluralism as a phenomenon is increasingly well recognised, writing
that ‘[t]he conception of legal pluralism emerged when other systems of law
were foundworking in reality togetherwith the “law” , whether in harmony or in
conflict, typically innon-Westernsociety and inWesternsociety aswell’.
Chiba (1989: 2) writes, ‘[t]he true problem
must be to distinguish between universality and relativity inherent in Western
law, both of which coexist with non-state law or customary law in legal pluralism’.
Chiba (1986: v) starts immediately with
a strong criticism ofWestern presuppositions about the nature of non-Western
laws and their dependency on Western legal models:
Western lawis normally regarded as universalwhenconsidered fromthe fact
that it has been received and utilized by non-Western countries as the basis
of their own state legal systems. It is accordingly natural that jurisprudence,
among bothWestern and non-Western scholars aswell, tends to observe the
development of a non-Western legal system as a history of receivedWestern
law. In fact, because of their different underlying cultural histories, there
have been countless incongruities and conflicts between received Western
law and indigenous non-Western law. However, these points have rarely
been taken seriously by orthodox jurisprudence a situation which may
seem reasonable from the Western point of view, but is certainly not from
the non-Western.
The main
problem for legal analysis, according to Chiba (1986: 1), is that law has been
studied unsatisfactorily in isolation from its social environment:
There has been a long-established belief among both specialists and laymen
that law is a special mechanism for social control isolated from other social
mechanisms and, for this reason, that the scientific study of law should
be confined to the special capacity of traditional, model jurisprudence.
But since the beginning of the twentieth century this common belief has

been challenged by new ideas concerning both the objectives and methods
of the study of law. As a result it has become more evident that law is so
inseparably rooted in society as to be approachable by sociological methods.
Furthermore, it has also become accepted that law must be recognized as
an aspect of the total culture of a people, characterized by the psychological
and ideational features as well as the structure and functional features of
each fostering people, and may therefore be approached by anthropological
methods.
This positioning immediately indicates that Chiba views law not as an isolated
phenomenon, but as a complex social element which may have its own, legal
characteristics, but is ‘inseparably rooted in society’ and thus not fully accessible
throughmono-focused legal analysis. Chiba (1986: 1-2) challenges in particular
the universalist claims of Western model jurisprudence:
The popular negligence of the cultural factor of law may have been partly
caused by the alleged universal nature of traditional jurisprudence, prevailing
as in the model science of law in the world. Contemporary model
jurisprudence is indeed established on a universal basis. Its overwhelming
prevalence in the world seems to leave little room either for serious consideration
of its cultural specificity or for doubt as to its applicability to the
different cultural specificities of other countries. But the Western conception
of law, created and supported bymodel jurisprudence, has been bereft
of its cultural specificitywhen comparatively analysedwith the conceptions
of law in other cultures . . . Truly, contemporary model jurisprudence is
a product of long Western history and is coloured by a Western culture
based on the Hellenistic and Christian view of man and society. While we
acknowledge the universalistic achievements of Western jurisprudence as
the most advanced science of law ever accomplished by man, we cannot
disregard its cultural specificity. That specificity may have been in some
cases diffused by or assimilated into different specificities of different cultures,
but in other cases it has conflicted with or been rejected by them. In
all cases, model jurisprudence, convinced of its universality, will not pay
due attention to the cultural problems which accompany such diffusion or
conflict between Western specificity and non -Western specificities.

Chiba
(1986: 2) politely explains the problem as a result of deficient cross-cultural
communication:
[T]he peoples and scholars of non-Western countries who have cherished
their own jurisprudence with specificities quite different from the Western,
have not succeeded nor even attempted to present the achievements of
their jurisprudence before the world circle of legal science forcibly enough
to cause the proponents of Western jurisprudence to doubt their conviction
of its universality. Without presenting the achievements of their own
jurisprudence before world bodies specifically aimed at self-reflection of
model jurisprudence, they would be disqualified from criticizing the ethnocentricity
of the latter, as recently pointed out by some Western scholars
. . . and insisting upon the raison d’ˆetre of their own jurisprudence.
Such a negative or passive attitude may be another reason why model
jurisprudence has in general disregarded the jurisprudence of different cultures
. . . Vital to the proper understanding of law in non-Western culture
is, firstly, for native scholars to present their own data and views positively
in order not to negate the significance of model jurisprudence, but
to maintain a sound understanding of its nature when utilized in different
cultures.
Chiba (1986: 4) introduces his highly instructive model of the three-level
structure of law, which demolishes legal centralism:
The point is that the whole structure of law of a people is not limited to
the monistic system of state law as maintained by model jurisprudence in
accordance with its methodological postulates. The whole structure of law
as an aspect of culture should include all regulations, however apparently
different from state law, which the people concerned observe as law in
their cultural tradition, including value systems; the very cultural identity
of a people demands that we include all of them in a whole structure.
Thus, the whole structure of law is plural, consisting of different systems of
law interacting with one another harmoniously or conflictingly. Our first
methodological requirement then is to frame a new conceptual scheme
sufficient to allow us to observe the relevant facts accurately and to analyse
them into theoretical formulations. Thus we arrive at our first working
hypothesis: the three-level structure of law.
Chiba (1986: 4-5) criticises
the fact that Western research has mainly focused on assessing to what extent
Western legal influences have been unidirectionally received, rather than taking
a more sophisticated plurality-focused perspective:
Reception of law is one of the topics frequently discussed by the proponents
and students of model jurisprudence. But their point of view is, generally
speaking, limited to confirming how Western law has been adopted or
permeated into the official legal systems of non-Western countries, with
only occasional recognition of its conflict with or rejection by indigenous
systems. In this view, main concern is given to the destiny of the received
Western law rather than to the receiving indigenous systems. For the receiving
peoples, in contrast, main concernmust be given to the whole structure
of their indigenous systems,with focus upon assimilation of the received law
while firmly maintaining their cultural identities. Unfortunately, the point
of view clearly centring on that concern has been neither established nor
systematically attempted. This, then, would be [the] second methodological
requirement necessary for our purpose: Interaction between received
law and indigenous law.
The major elements of the three-level
structure of law, comprising of official law, unofficial law and legal postulates,
are neatly outlined by Chiba (1986: 5-6):
Official law is the legal system sanctioned by the legitimate authority of
a country. State law is ordinarily understood as a typical official law or
even the only official law. Truly, it is directly sanctioned by the legitimate
authority of the government of a state to have overall jurisdiction over the
country. But as a matter of nature it is only one amongmany official laws of
a country, however dominant it may appear over the others. For instance,
as in most contemporary countries with established religions, religious law
may be partially included in or accommodated by state law, but partially
functioning out of the jurisdiction of the latter, thus forming its own system
different from state law. Canon law, Islamic law, Hindu law, Buddhist law,
and Judaic law are among typical examples. Other examples may be found
in the laws of marriage and family, land and farming, local organizations,
professional guilds, castes and stratifications, ethnic minorities, and so on,
insofar as officially sanctioned by state law in one form or another. Each
of these official laws of a country is sanctioned first by an authority of its
own. But all of them are required to keep consonance with one another.
To fulfil this requirement, each of them must, finally, be sanctioned by the
state authority.
Apart from circumscribing the phenomenon
of ‘unofficial laws’, Chiba (1986: 6) again emphasises complex interaction
processes:
Unofficial law is the legal system not officially sanctioned by any legitimate
authority, but sanctioned in practice by the general consensus of a certain
circle of people, whether within or beyond the bounds of a country. That general consensus may be either consciously recognized and expressed in
formal rules, or unconsciously observed in particular patterns of behaviour.
However, not all such unofficial practices supported by general consensus
are to be included in unofficial law. Unofficial law is here limited to those
unofficial practiceswhich have a distinct influence upon the effectiveness of
official law; in other words those which distinctively supplement, oppose,
modify, or undermine any of the official laws, including state law. The
effectiveness of the total system of official law is thus dependent upon the
status quo of the unofficial law of the country concerned. One of the most
important problems of unofficial law is therefore its positive or negative
influence upon official law as well as its cultural background.While model
jurisprudence has tended to disregard it, unofficial law has been treated
in various rubrics in sociological and anthropological trends. For example,
such rubrics are frequently found as customary law, living law, lawin action,
primitive law, tribal law, native law, and folk law, although their specific
connotations should be carefully distinguished from one another.
Chiba (1986: 6-7) defines a legal postulate as:
[A] value principle or value system specifically connected with a particular
official or unofficial law, which acts to found, justify and orient the latter.
It may consist of established legal ideas such as natural law, justice, equity,
and so on in model jurisprudence; sacred truths and precepts emanating
from various gods in religious law; social and cultural postulates affording
the structural and functional basis for a society as embodied in clan unity,
exogamy, bilineal descent, seniority, individual freedom, national philosophy,
and so on; political ideologies, often closely connected with economic
policies, as in capitalism or socialism; and so on. The legal postulates of
a country, whether official or unofficial, are as a whole required to keep a
certain degree of consonance with one another. But complete consonance
cannot be expected. First, because as each legal postulate is in support of a
particular system of official or unofficial law, the potential of conflict with
other systems, as pointed out above, is high. Second, because the legal postulate
may tend to upset the status quo of its supported official or unofficial
law in order to improve or even replace the latter.
Focusing first on the element of
received law, Chiba (1986: 7) emphasises that ‘[t]he whole structure of law of
a non-Western country is, seen from a cultural point of view, formed in the
interaction between received law and indigenous law’. Chiba (1986: 7) then
continues:
Received law is, in a broad sense, that law which is received by a country
from one or more foreign countries. Reception may take place in a
variety of forms or processes; for instance, partially or wholly, systematically
or unsystematically, formally or substantially, rapidly or gradually,
voluntarily or involuntarily, in one or more of the three levels, exclusively
between Western or non-Western countries, or, finally, between Western
and non-Western countries.Most crucial for our purposes, however, is the
reception ofWestern state law by non-Western countries in modern times,
which we might consider as the narrower sense of ‘reception of law’. It is
crucial because it is the one in which the cultural conflict between received
law and indigenous law is most conspicuous, and because the reception
process, in the truest meaning, has not yet been completed. The modern
reception has taken place rather formally and systematically in the level
of official state law, whether imposed by Western countries or voluntarily
accepted by non-Western countries, and some might see the reception as
completed by the formal enforcement of received law. But in the actual
process of the history of receiving countries, it is only the beginning of
their struggles to assimilate the foreign systems of law of different cultures
with their own indigenous law. Notable is the fact that in this struggle
process the foreign law originally received can be more or less assimilated
with existing indigenous law so that it may assume a character of
indigenous law, while it may still be discriminated as a different system of
law.
The complex category of ‘indigenous law’ is explained broadly by Chiba (1986:
8) as ‘law originated in the native culture of a people’. But he also suggests that it
is virtually impossible to find purely indigenous law: ‘It may thus be defined as
law existing indigenously in the native culture of a people prior to the reception
ofWestern state lawin modern times, although itmay include some assimilated
law which was originally received in earlier times’ (p. 8).
Chiba (1986: 8) argues:
The actual interaction between received law and indigenous law differs
widely from country to country. Generally speaking . . . state law is framed
after Western models in its formal structure, adopting into its substantial
contents various rights, duties, and legal institutions and procedures originated
in Western law . . . But interaction is not limited to such a static
structure. It takes place rather in a dynamic process of mutual influences
between both types of law, whether through institutional revisions at a
long range, or through individual authoritative judgements and peoples’
behaviour at a short range. It is a process of accommodation or conflict,
with legal postulates for both types of law playing an important role as they
ideationally encourage the peoples concerned to protect or reformulate the
law they support against rivalling law. Official law other than state law may
originate in indigenous law or in received law as in the case of established
religious law, though generally assimilated as if indigenous. Unofficial law
is mostly occupied with indigenous law, except in cases where new reformative
ideas of rights, such as environmental or consumers’ rights, or legal
institutions such as socialist ones in capitalistic countries, come to have
certain effective influence as unofficial law. And finally, legal postulates
constantly accompany all forms and cases of official and unofficial law,
both received and indigenous.
The tripartite model was applied in further studies by the author himself and by
others.69 In the conclusion to his 1986 study (Chiba, 1986: 378-94), satisfaction
is expressed that his theory could be successfully applied to six Asian country
studies, while much further research needs to be undertaken to elucidate the
processes of continuous interaction. Chiba (1986: 388) writes:
Truly, as seen by the proponents of model jurisprudence, official law may
have the capacity to reject unofficial law at its command, but that rejection
never results in the annihilation of the unofficial law in reality. The reality
is nothing more nor less than a continuous struggle between the two, with
coexistence as the best, and the undermining of the official law as the worst
possible cases.
Law, therefore, even where an official law appears to be dominant, is always a
plural phenomenon and remains always part of a dynamic interaction process
between different legal sources, akin to what Fitzpatrick (1984) characterised as
‘integral plurality’.
Chiba (1989: 3)
throws a challenge to all legal theorists:
As a matter of fact, there is no legal pluralist whose argument of culture
or legal culture is substantial enough to invite the interest and discussion
of cultural anthropologists, specialists in the science of culture. Such legal
pluralists might be viewed by the specialists to be frogs in thewell, essentially
not different from the lawyers who are satisfied by working in the isolated
domain of orthodox jurisprudence. A true legal pluralist may be required
to observe and analyze culture in law on the basis common to that of the
specialist of culture.
The three dichotomies
are easily explained in terms of the 1986 model:
1. Official law v. unofficial law
2. Legal rules v. legal postulates
3. Indigenous law v. transplanted law