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«Abstract The notion of legal pluralism is gaining momentum across a range of law-related fields. Part I of this article will portray the rich history ...»

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Understanding Legal Pluralism:

Past to Present, Local to Global†

BRIAN Z TAMANAHA*

Abstract

The notion of legal pluralism is gaining momentum across a range of law-related

fields. Part I of this article will portray the rich history of legal pluralism, from

the medieval period up to the present. Part II will explain why current theoretical

efforts to formulate legal pluralism are plagued by the difficulty of defining "law.” Finally, Part III will articulate an approach to contemporary legal pluralism that avoids the conceptual problems suffered by most current approaches, while framing the salient features of legal pluralism.

1. Introduction Legal pluralism is everywhere. There is, in every social arena one examines, a seeming multiplicity of legal orders, from the lowest local level to the most expansive global level. There are village, town, or municipal laws of various types;

there are state, district or regional laws of various types; there are national, transnational and international laws of various types. In addition to these familiar bodies of law, in many societies there are more exotic forms of law, like customary law, indigenous law, religious law, or law connected to distinct ethnic or cultural groups within a society. There is also an evident increase in quasi-legal activities, from private policing and judging, to privately run prisons, to the ongoing creation of the new lex mercatoria, a body of transnational commercial law that is almost entirely the product of private law-making activities.

What makes this pluralism noteworthy is not merely the fact that there are multiple uncoordinated, coexisting or overlapping bodies of law, but that there is diversity amongst them. They may make competing claims of authority; they may impose conflicting demands or norms; they may have different styles and orientations. This potential conflict can generate uncertainty or jeopardy for individuals and groups in society who cannot be sure in advance which legal regime will be applied to their situation. This state of conflict also creates opportunities for individuals and groups within society,who can opportunistically select from among coexisting legal authorities to advance their aims. This state of conflict, moreover, poses a challenge to the legal authorities themselves, for it means that they have rivals. Law characteristically claims to rule whatever it addresses, but the fact of legal pluralism challenges this claim.

† The Julius Stone Institute of Jurisprudence, Faculty of Law, University of Sydney, The Julius Stone Address 2007, Thursday, 5 July 2007.

* Chief Judge Benjamin N Cardozo Professor of Law, St John’s University, New York. The author thanks Neil Walker, Paul Schiff Berman, and an anonymous reader from the Sydney Law Review for very helpful critical comments on an earlier draft of this a

–  –  –

There is another sense in which legal pluralism is everywhere. In the past two decades, the notion of legal pluralism has become a major topic in legal anthropology, legal sociology, comparative law, international law, and socio-legal studies, and it appears to be gaining popularity. As anyone who has engaged in multidisciplinary work knows, each academic discipline has its own paradigms and knowledge base, so it is unusual to see a single notion penetrate so many different disciplines.

This article will lay out a framework to help us examine and understand the pluralistic form that law takes today. The first part of the article will place modern legal pluralism in historical context, for the only way to grasp where we are and where we are headed is to have a sense of how we arrived at the present. Legal pluralism, it turns out, is a common historical condition. The long dominant view that law is a unified and uniform system administered by the state has erased our consciousness of the extended history of legal pluralism. To resurrect this awareness, the first part of this article will portray the rich legal pluralism that characterised the medieval period, and it will describe how this pluralism was reduced in the course of the consolidation of state power. It will then elaborate on the new forms of legal pluralism that were produced through colonisation, when Western European colonisers transplanted legal regimes abroad. These historical contexts will set the stage for contemporary legal pluralism, which combines the legacy of this past with more recent developments connected to the processes of globalisation.

The next part of the article will shift to the academic discussion of legal pluralism. Although the notion of legal pluralism is gaining popularity across a range of academic disciplines, from its very inception it has been plagued by a fundamental conceptual problem — the difficulty of defining ‘law’ for the purposes of legal pluralism. This issue lies at the very core of ‘legal pluralism’.

Debates surrounding this conceptual problem have continued unabated for three decades, often in unusually acerbic exchanges. Recent theoretical developments have taken a remarkable turn. Just as the notion of legal pluralism began to take off, the theorist who contributed the most to its promotion announced that, owing to its insoluble conceptual problem, legal pluralism should be discarded. This part will lay out a brief account of the conceptual problem that plagues legal pluralism and will indicate why it cannot be resolved. Scholars who invoke legal pluralism without an awareness of this conceptual problem and its implications will risk building upon an incoherent and unstable foundation.





The final part will articulate an approach to contemporary legal pluralism that avoids the conceptual problems suffered by most current approaches, while framing the important features of legal pluralism. It is drawn from and combines the insights produced in legal anthropology, comparative law, international law, and globalisation studies, in the hope that the framework can provide common ground for a cross-disciplinary focus on legal pluralism.

2008] UNDERSTANDING LEGAL PLURALISM 377

2. Legal Pluralism Past and Present

A. Legal Pluralism in the Medieval Period By general convention, the medieval period covers about 1000 years, commencing with the 5th century collapse of the Roman Empire and coming to a close with the 15th century Renaissance. The earlier centuries of this period have the forbidding appellation, the Dark Ages, when the once great Roman Empire that extended from North Africa and the Middle East to Western Europe was overrun by successive waves of Germanic tribes, and later suffered incursions by Huns, Moslems, Norsemen, Magyars, and other fearsome external invaders. European society closed in upon itself, commerce slowed, feudalism developed, local dukes or barons were more powerful than distant kings or princes, and learning was limited, carried on mainly in the Roman Catholic Church. The 12th and 13th centuries, marked by the rediscovery of the works of Aristotle and the Justinian Code, and by the establishment of universities, was the first stage in the awakening of Europe from this long period of slumber.

The mid-to-late medieval period was characterised by a remarkable jumble of different sorts of law and institutions, occupying the same space, sometimes conflicting, sometimes complementary, and typically lacking any overarching hierarchy or organisation. These forms of law included local customs (often in several versions, usually unwritten); general Germanic customary law (in code form); feudal law (mostly unwritten); the law merchant or lex mercatoria — commercial law and customs followed by merchants; canon law of the Roman Catholic Church; and the revived Roman law developed in the universities.1 Various types of courts or judicial forums coexisted: manorial courts; municipal courts; merchant courts; guild courts; church courts and royal courts. Serving as judges in these courts were, respectively, barons or lords of the manor, burghers (leading city residents), merchants, guild members, bishops (and in certain cases the pope), and kings or their appointees. Jurisdictional rules for each court, and the laws to be applied, related to the persons involved — their status, descent, citizenship, occupation or religion — as well as to the subject matter at issue.

‘[T]he demarcation disputes between these laws and courts were numerous.’2 Conflicts arose regularly with Church courts in particular, which claimed authority over matters dealing with marriage, property inheritance, and anything involving church personnel; ‘[m]any offences could in principle be tried either in a secular or in an ecclesiastical court.’3 Not only did separate legal systems and bodies of legal norms coexist, a single system or judge could apply distinct bodies of law. In the 8th through 11th centuries, for example, under the ‘personality principle,’4 the 1 A detailed account of the different laws and institutions can be found in Olivia Robinson, Thomas Fergus & William Gordon, European Legal History (2000).

2 See Raoul van Caenegem, Legal History: A European Perspective (1991) at 119.

3 Gillian Evans, Law and Theology in the Middle Ages (2002) at 1.

4 An informative description of this principle and the legal pluralism that resulted from it is contained in Frederick Maitland, ‘A Prologue to the History of English Law’ (1898) 14 Law Quarterly Review 13.

378 SYDNEY LAW REVIEW [VOL 30: 375 same judges applied different laws depending upon whether one was Frankish, Burgundian, Alamannic, or a descendent of Roman Gaul.5 Things were even more complicated in cities with Jewish populations or on the Iberian Peninsula following the Muslim invasion, for Jews and Muslims had their own comprehensive bodies of law, yet they interacted with one another and with Christians.

The mid through late Middle Ages thus exhibited legal pluralism along at least three major axes: coexisting, overlapping bodies of law with different geographical reaches; coexisting institutionalised systems; and conflicting legal norms within a system. In terms of the first axis — bodies of law — the ius commune, the lex mercatoria, and ecclesiastical law spanned separate kingdoms across a large swath of Europe; this transnational law (loosely described as such, for nations were not yet fully formed) coexisted with codified Germanic customary law on a national level, and with feudal law, municipal law and unwritten local customary laws on the local level.6 In terms of the second axis — coexisting institutionalised systems — in the words of medieval scholar Raoul van Caenegem, ‘there were also vertical dividing lines between legal systems: those which separated townsmen from countrymen, churchmen and students from laymen, members of guilds and crafts from those not so affiliated. The great (and the smaller) ordines of society lived according to distinct sets of rules, administered by distinct networks of law courts, for it was understood that everyone should be tried by his peers.’7 In addition, royal courts could hear cases in the first instance or on appeal from other courts. In terms of the third axis — conflicting legal norms — within a single system and social arena there could be different bodies of legal norms, especially of customary law. ‘It was common to find many different codes of customary law in force in the same kingdom, town or village, even in the same house, if the ninth century bishop Agobard of Lyons is to be believed when he says, “It often happened that five men were present or sitting together, and not one of them had the same law as another.” ’8 Medievalist Walter Ullmann summarised the legal situation in late Middle

Ages in the following terms:

The medieval system of positive law cannot be conceived as a homogenous and unified body of legal rules. Three distinct systems of statutory enactments can be discerned: Roman law, as transmitted through Justinian’s compilation and modified subsequently by additional legislation of the Emperors; canon law, as represented in various collections; and thirdly, the Germanic Lombard law. To these must be added the numerous statutes of the municipalities and independent States, around which enactments there cluster many customary formations of law, mostly of a supplementary and interpretive character. This complex mosaic of

–  –  –

legal systems naturally presented many difficulties to the application of abstract legal rule to the given set of concrete circumstances.9 To modern ears this multifarious legal situation sounds unusual, but historians have shown that the coexistence of more than one body of legal norms and systems was the normal state of affairs for at least 2000 years of European history, certainly since the heyday of the Roman Empire (which allowed locals laws to remain in force), and especially so after its collapse.

The fact that we have tended to view law as a monopoly of the state is a testimony to the success of the state-building project and the ideological views which supported it, a project which got underway in the late medieval period. For almost the entirety of the medieval period, the state system we are now familiar with was not in place in Western Europe. England had a relatively centralised system from the 12th century on, following the Norman conquest, but the continent was divided among various competing major and minor kings and princes, who had scant effective control of much of the landscape. Wars during this period were not fought between states as such, but rather were efforts by kings and princes to add territory to their personal holdings. There was no public/private separation of offices or assets. The primary sources of income for kings were their feudal lands, special customs they collected and fees from royal courts. Leading officials who handled their affairs were members of their personal staffs.



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