Abstract
This chapter considers the proposals of some authors (namely, Eugen Ehrlich, Santi Romano, Sally Falk Moore, Marc Galanter, Sally Engle Merry, and Brian Tamanaha) who, in different ways and with different intents, have provided workable insights into the relation between the legal and the social domains. In doing this, it sketches three basic prototypes of what today is known as ‘legal pluralism’. The first type portrays law as the inner order of every organised social body. In this reading, the legal and the social are barely distinguishable. The second type regards law as a specific form of ordering that has many elements in common with generally social orderings, although there are some traits that are strictly typical of law. The third type is far more preoccupied with not confusing the legal with the social and with finding the genuine trait that hallmarks legal orders. The chapter focuses on some strong points of these types of legal pluralism and places due emphasis on the need for legal theory to adopt a pluralistic approach. It also shows that, however enlightening and open-minded such an approach may be, most legal pluralists fail to explain the difference between the multitude of social orderings and genuinely legal orders. Most legal pluralists declare that there must be something which confers on certain orders a genuinely legal significance, but eventually they fail to say what this something is.
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- 1.
- 2.
Actually, I will leave aside many prominent authors, such as Antony Allott, Masaji Chiba, Peter Fitzpatrick, John Gilissen, John Griffiths, Georges Gurvitch, Manfred Hinz, Barry Hooker, Werner Menski, Leopold Pospisil, Boaventura de Sousa Santos, Michael Smith, Günter Teubner, Jacques Vanderlinden, and many others. For other informative discussions of legal pluralism, see Griffiths (1986), Melissaris (2009), Chap. 2; Menski (2006), Chap. 2; Twining (2010), Woodman (1998). As I already pointed out in the Introduction, owing to the specific purposes of my analysis, I will not take into account what today is known as “global legal pluralism” (see Twining 2010).
- 3.
See supra, 2.2.
- 4.
Although the term generally used for translating the Latin word ‘populus’ is ‘people’, I think that the term ‘population’, as I specified it in the previous chapter – i.e. as a particular group of humans who interact in a rule-governed context –, is more appropriate than ‘people’, which exhibits some communitarist nuances.
- 5.
Author’s translation.
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- 7.
Notice that I will focus only on the works that are more relevant to the development of legal pluralism. I will discuss but one article or one book by highly prolific authors, and therefore my analysis can hardly be taken as a critical examination of their position as a whole.
- 8.
Albeit they experienced highly different social and political realities, they were contemporaneous with one another. Ehrlich was born in 1862 in Czernowitz, Austrian Empire (now Chernovtsy, Ukraine) and died in 1922, while Pound was born in 1870 in Nebraska and died in 1964.
- 9.
As also Griffiths (1986, 46) notices, this definition cannot be charged with circularity, since the fact that an association exists insofar as its member share certain rules does not imply that rules exists insofar as there is an association.
- 10.
Somehow, Ehrlich could support the conclusion (see supra, 4.3.), reached by Woodman and others, that state law is the customary law of officials.
- 11.
- 12.
See also Klink (2009).
- 13.
This view is also supported by Tamanaha (2011), who argue that Ehrlich’s main “contribution was in putting forth a sophisticated account of the interrelations between law and society and in his identifications of the factors at play in legal change” (ibid., 314). Tamanaha goes so far as to say that, in order to appreciate Ehrlich’s thought and to make the most of his analyses, we should get rid of the concept of living law, which is not the core of his legacy, and which, as a matter of fact, “dragged Ehrlich into a conceptual quagmire” (ibid., 315).
- 14.
Since I will discuss Romano’s notion of institution at more length in Chap. 7, in this section I will only indicate the way he showed that legal analysis must inevitably take a pluralist stance.
- 15.
In this regard, also see Romano’s essay Lo Stato moderno e la sua crisi, published in 1909, in which he argues that the crisis of the early twentieth-century state was determined by two interrelated factors. Firstly, the progressive emergence of self-interested organisations and associations that pursued private goals by influencing the activity of representative organisms. Secondly, the fact that such organisations and associations were inclined to ally themselves with some rebellious and turbulent factions, who wanted the state to collapse once and for all.
- 16.
All translations from Romano’s book are the author’s. The book has been translated into French (L’ordre juridique, Paris: Dalloz, 1975), German (Die Rechtsordnung, Berlin: Duncker & Humblot, 1975), and Spanish (El Ordenamiento Jurídico, Madrid: Instituto de Estudios Políticos, 1963).
- 17.
See supra, 7.2.
- 18.
Among the main inspirers of this approach she mentions Bronislaw Malinowski and his investigation on the ordinary behaviour of Trobriand Islanders. I will concisely discuss Malinowski’s view of law in the next chapter (see infra, 6.2).
- 19.
Emphasis added.
- 20.
In examining the case of the field of garment trade and its inner (informal but highly effective) rules, Moore writes: “All these givings of gifts and doings of favors are done in the form of voluntary acts of friendship […]. None of them are legally enforceable obligations. One could not take a man to court who did not produce them. But there is no need for legal sanctions where there are such strong extra-legal sanctions available. The contractor has to maintain these relationships or he is out of business” (ibid., 726 – emphasis added). In brief, the population of a field may comply for different kind of reasons: they can follow the rules spontaneously and intuitively, but can also be moved by strategic calculations, or by the bare intent to conform in order to avoid criticism and censure.
- 21.
Emphasis added.
- 22.
As a consequence, when the state legal order endeavours to bring about changes within sub-state fields, it would be primarily required to understand carefully their internal organisation. The examples provided by Moore (i.e. the abolition of private property in land, the establishment of ten-house cells, and the abolition of chiefship) by drawing on the material she gathered in field work among the Chagga of Mount Kilimanjaro in 1968 and 1969, exactly aim to show that the effects of legislation intended to replace previous alternative regulations turned out to be either scarcely effective or partly inadequate because they disregarded the internal functioning of social fields.
- 23.
Most exponents of legal pluralism (see e.g. Benda-Beckmann (2002); Galanter (1981); Griffiths (1986); Menski (2006); Merry (1988); Woodman (1989)) mention or employ the notion of ‘semi-autonomous social field’ as a workable point of departure for the analysis of social reality and/or for legal comparison, in that it seems able to overcome the limits of both the state-centred models and the vague and somehow objectifying concepts of association and organisation. In brief, Moore’s notion is regarded as particularly instrumental in depicting the various phenomena of co-existence, since it neither pre-designs the object of observation nor indicates which substantial characteristics it ought to exhibit.
- 24.
Merry (ibid., 888) draws on a Foucauldian expression employed by Peter Fitzpatrick.
- 25.
For a similar remark, see von Benda-Beckmann (1988), 900.
- 26.
I would like to remark that Tamanaha’s views on the subject have changed substantially in his recent writings (see e.g. Tamanaha 2008). While he initially claimed legal pluralism to be a highly misleading conceptual tool, now he straightforwardly asserts that “[l]egal pluralism is everywhere” (ibid., 375). Nonetheless, he says that no turn of mind has really taken place. He rather argues that his different articles on legal pluralism “have different targets and differing emphases, but the analysis is consistent” (ibid., 391). This is why here and in the subsequent chapter I will look at his work as a coherent attack on some particular interpretations of legal pluralism and will devote little attention to the inconsistencies that possibly affect his writings.
- 27.
First emphasis added.
- 28.
In a previous article about the ‘folly’ of legal pluralism, Tamanaha (1993b, 212) wrote that its advocates should make a “substantive change which entails giving up the claim that lived patterns of normative ordering are ‘law’”, so as to recognise that law is only “the law of the state” and to “stop charging those who hold to this view of law with suffering from ideologically-induced blindness”.
- 29.
- 30.
Emphasis added.
- 31.
Simon Roberts (2005) advances a slightly different but compatible criticism. He asserts that the native view cannot be identified with the analytic perspective, although the former should be the starting point of the latter. Hence, in Roberts’ view, Tamanaha “raises one really serious difficulty in that he elevates local, ‘native’ understandings to a position in which they shape the field and dominate the analysis. While in any context we need to begin with folk/native understandings – and Tamanaha delivers that – these cannot sensibly be allowed to circumscribe the analytic project” (ibid., 21).
- 32.
By employing the terms adopted in Part I, I should say that confusing a practice with its concept makes the distinction between thinking one is following a rule and actually following it collapse. For the reasons why such a distinction must be preserved, see supra, 3.3–3.6.
- 33.
It is worth noting that, although law’s being unnamed more often than not denotes a state of subjugation, sometimes it can be a strong point. For example, some types of regulations and procedures which have the force of law, like the so-called ‘soft law’, can find less procedural obstacles than ‘hard law’, albeit it is able to produce considerable practical effects.
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Croce, M. (2012). The Pluralist Divide. In: Self-sufficiency of Law. Law and Philosophy Library, vol 99. Springer, Dordrecht. https://doi.org/10.1007/978-94-007-4298-7_5
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