Understanding Legal Pluralism: Past to Present, Local to Global Brian Z.

Tamanaha summarized by Asma Dekna There is an increase in quasi-legal activity What makes pluralism notable is: o Coexisting overlapping legal systems which make competing claims & confuse citizen o It has become the focus of many scholars lately Legal Pluralism Past and Present: Medieval Period There were many different laws occupying the same space like : (most important) Customs Germanic customary law, Feudal law Law merchant (lex mercatoria) Canon law of the Church Revived Roman Law from the universities Therefore, many different courts existed and different judges Manorial courts barons or lords Municipal courts - burghers Merchant courts - merchants Guild courts guild members Church courts bishop/Pope Royal courts kings or their appointees It resulted in Bodies of law Ius commune, lex mercatoria and ecclesiastical law were used in many different countries in Europe and coexisted with other forms of law such as customary law. Coexisting institutionalized system Those different classes in societies had different laws that governed them

Conflicting legal norms Within one single system and social arena there existed different legal norms and customary law. There was no states, kings and princes fought with each other to gain land which resulted in continuous introduction to new legal systems no separation of private/public assets Kings wanted to break away from the rule of the church and be more powerful, therefore Roman law seemed like a powerful law-making role for rulers Officially recognized customary law developed with modes, mechanism and requirements of the legal system 17th-18th century there was a distinction between private public law, canon law and customary norms lost their legal status and became private law while state law was public law Law was no longer thought as reflecting custom and natural principle but they were instruments to achieve social objectives Law became less about enforcing social norms and more of achieving collective proposes decreased legal pluralism

Legal Pluralism Past and Present: Colonization and the Resultant Legal Pluralism European colonization of non-western world resulted in more legal pluralism as one country is colonized by different colonizers Spain and Americas: the catholic church was very strong influence and the Spanish did not just want to take raw materials from Americas but wanted to convert the people to Christianity British & Dutch colonization of India and Indonesia, their aim was economical rather than religious and therefore, did not affect the legal system much. Therefore, most indigenous institutions were left alone except those who affected the colonizers traders, missionaries, settlers or officials. By 18th and 19th century, Europeans tried to enforce some of their laws through the indigenous political authority

 Relationship between the transplanted colonial law and local customary law: Leave indigenous institutions to function especially if colonizer has limited interest and power. Three strategies to incorporate customary or religious law: 1. Codification of customary or religious law 2. Application by state courts of unwritten customary or religious law like that of common law 3. Creation or recognition of informal or customary courts run by local leaders Often supremacy clause were enacted to invalidate particular offensive local laws/practices Recent scholars say that customary law was not in fact customary but selective interpretations by colonial powers to advance their interest colonizers affirmed customary law was incorporated in the state after a long period by which time customary law had been forgotten This resulted in the coexistence of two legal systems The customary or religious courts took the form of the state courts The official law was strongest in rural areas it could reach while the indigenous law written in the indigenous language and strongest in villages By 20th century, the preexisting legal pluralism in Middle Ages was changed with a unified legal system though cultural/religious plurality existed outside the official legal status. Late twentieth Century Legal Pluralism globalization gave birth to another wave of legal pluralism due to o Migration o Media o Global commercial system o Problems that the entire world is trying to solve: global warming, terrorism o NGOs that exist in different countries

 This resulted in: o Due to globalization, states are losing power. Eg, in EU states have to give up some of their sovereign powers to a higher authority o States broke down to smaller units who share a common background/identity eg. Soviet Union o States lost capability to guide their own economy o Private sectors are gaining more power while states traditional legal function is less powerful Still, even international law is implemented in the state in different ways depending on the legal system of the state Suits are brought by citizens in supranational human rights courts such as the European Courts of Human Rights to redress against their own state. There are global institutions that have created their own legal order: the internet, the sports organization, commercial transactions o Contrasting parties may be resolved through private arbitration o The lex mercatorias norms, practices and institutions are self0guaranteed by the parties and their lawyers trans-governmental networks 1990s the Financial Stability Forum was created from other three trans-governmental organizations. Since these networks are beyond the control of any national or international agency, they are a form of legal pluralism. Global movement of people who bring their culture/norms to the country they migrate to The Troubled Concept of Legal Pluralism Legal pluralism was first studied in context of post-colonial situations in which pluralism meant the incorporation of customary law within state law However, it soon penetrated other fields such as sociology etc... it became difficult to understand what is meant by legal pluralism as it was used differently by different fields Social Scientists: law is not limited to official state legal institutions but in ordering of social groups Law has been mainly defined in 2 ways:

Malinowski maintenance of normative order within a social group Weber public institutionalized enforcement of norms However, legal pluralists cannot answer what is law? because everyone perceived it in different ways Because of inability to define law, legal pluralists cannot differentiate between law and other forms of normative order resulting in different understanding of what is legal pluralism Griffiths argues that law is social fields that have the capacity to produce and enforce rules., all social control is more or less legal (regardless of source) There are many legal orders in society eg. Family, sports league, factories with regulations Merry argued against this how do we identify between social life and law if all those are to be considered law? law is enforced by the government Griffiths: Legal Pluralism is the name of a social state of affairs and it is a characteristic which can be predicted of a social group. It is not the name of a doctrine, or a theory or an ideology Moore: Legal Pluralism is the way in which the state is interdigitated with NGOs, semi-autonomous social fields which generate their own obligatory norms to which they can induce or coerce compliance. Griffiths: Law is fundamentally pluralistic in character Argue against law is one type of normative ordering not all of them Griffiths today agrees that he was wrong: There is a distinction between law and social and normative control Law is a folk concept and is what people label as law Law is identified differently in different societies because societies have seen law is different terms International law, natural law etc... are all law but do not have the same characteristics and therefore there cannot exist a specific definition for them: they just all claim to represent legitimate normative authority

A Framework for Legal Pluralism: Six Systems of Normative Ordering in Social Arenas Forms of Normative ordering commonly discussed in Legal Pluralism: Official Legal Systems Customary/Cultural normative systems Religious/Cultural normative systems Economic/Capitalist normative systems Functional normative systems Community/Cultural normative systems Official Legal System: Institutionalized legal apparatus; manifested in legislatures, enforcement agencies, tribunals, they give powers, rights and sanctions. The other Five are systems of normative ordering and are distinct from the official legal system Customary normative system: indigenous/traditional law Shared social rules and customs Social institutions and mechanism Dispute resolution tribunals Council of traditional leaders Religious normative systems Sometimes are inseparable from customary normative systems but is however, often seen by people as a distinct aspect of their existence Eg. Muslims in UK feel more obliged to follow Islamic law than English law Sometimes, religious and Customary systems have some form of official recognition Economic/capitalist normative systems: Range of norms and institutions that constitute capitalist production and market transactions within social arenas Functional normative systems: Arranged in pursuit of a particular function, purpose or activity that goes beyond purely commercial pursuits Eg. Universities, hospitals, school systems, sport leagues etc Community/Cultural systems:

 An imagined identification by a group of a common way of life, usually tied to a common language and history It consists of shared norms of interaction which includes custom, habits, mores etc Usually legal pluralism is understood as the interaction between conflicting official legal systems Clashes among Normative Systems and what fuels them The six sources of normative ordering claim : o They possess binding authority o They are legitimate o They have normative supremacy o They have control over matters within their scope Clashes can happen within competing normative ordering: o eg. Human rights is inconsistent with state law o Official legal system is inconsistent with custom or religion Power Differentials between Normative Systems Different normative systems have different capacities to exert influence upon subject matters Eg. Official state legal systems typically claim to possess a monopoly of legitimate coercion within the territory of the state The power of the official state legal system in developed and developing countries varies Developed countries: the official state legal system is highly differentiated from other legal systems and is supported by professions and tradition Developing countries: the official legal system is les differentiated since it is normally transplanted or borrowed due to colonization its weaker Customary and religious systems are more entrenched Power differentials exist also amongst official legal systems. Eg. Local and international official systems, official legal institutions

 Two Basic Forms of Socio-Political Heterogeneity (Group and Individual) Social-political heterogeneity: Group and Individual based Group based heterogeneity: when a social arena consists of a number of discrete groups often differentiated by language, religion, ethnicity etc They often occupy different regions physically segregated Sometimes one group is more powerful and therefore, minorities and majorities. Bahrainthe Sunni minority is in power. Turkey the Turkish majority is in power (against Kurds) Individual based heterogeneity: social arenas that contain individuals oriented to Western liberal norms coexisting non-Western religious normative systems Typically in large urban areas Normally migrants live in segregated neighbourhoods since they have same culture forming a group based heterogeneity while in cities the mingle with others and form an individual based heterogeneity Increase in heterogeneity: migration of people to other communities Decrease in heterogeneity: engaging in the economic activities creates a new set of workplace- capitalist- with its own norm and living arrangements to conform to This normally disrupts former family and community ties and creates a new organization of social life An important factor of these areas: hybridity and fluidity The absorb aspects of their environment to their respective identities They build a new identity even while holding to their old identity
Relations and Strategies Between and Among Systems in Situations of Clash Liberal Society: the official state legal systems takes a stance of neutrality and recognizes other systems such as religious or customary system

To reduce the clash the state might Allow custom to take place and not condemn it while not officially recognizing it

Absorb some of the competing systems : officially recognize customs/religious etc... Economic context: the state encourages parties to resort to private arbitration Suppress other legal systems, declaring them to be illegal and worked to eliminate them Eg. Tunisian state law against custom of marrying more than one wife Inconsistency between systems doesnt necessarily lead to a clash: they can coexist One can, therefore, conclude with 4 statements regarding clashes of legal systems: 1. Economic globalization is leading to a universal capitalist normative system 2. When clashes between normative systems take place, strategic actors would seek the support of the existing official legal system to lend legitimacy to their cause a. It can be local law or international (human rights courts) 3. Important factors that affect the individuals and groups choice in situations of Legal Pluralism are a. Geographical and cultural distance of the closest legal system b. The information needed c. The expense of the legal system d. The time delay 4. Strategic actors would pursue different legal systems in case of Legal Pluralism depending on which legal system would support their cause especially NGOs a. Some also are driven by loyalty, principle, familiarity, consistency, tradition

Common Types of Fundamental Orientation Clashes: Liberal Vs Non-Liberal cultural norms Many official legal systems transplanted from the West -protect individual autonomy, privacy, formal equality legal protection against state power etc o Therefore, there can be clashes concerning family, marriage, divorce rights, inheritance rights with the local customary law Normally the liberal official legal systems would consider something as a crime while the customary law doesnt or vice versa. Eg. Adultery in Islam is a crime while it isnt in many legal systems Capitalist/market norms and require ments vs customary, religious or community norms Economic norms can be inconsistent with prevailing customary/religious norms o usury is forbidden in Islam but is used in most Islamic countries due to capitalism o in some cultures property might belong to various people & clashes with capitalist norm Systems that recognize or draw a sharp separation between public and private realm vs. those that do not In liberal societies sharp difference between private and public realms One must not exercise public power for private gain Difference between religion (private affair) and state (public affair) Rule based systems with winners and losers vs. consensual systems oriented toward satisfactory resolution These approaches involve the application of norms in situations of dispute Consensual system often comes from small communities with face to face interaction