LEGAL PLURALISM

The past forty years have witnessed a ‘renaissance’^[209] of legal pluralist scholar­ship. Although itself characterised by considerable pluralism,^[210] its basic mission has been to demonstrate ‘that state of affairs, for any social field, in which behaviour pursuant to more than one legal order occurs.’^[211] This idea of the mul­tiplicity of law had been relatively marginalised by the mainstream canon, partly as a result of the ‘exotic’ nature of legal pluralist studies,^[212] and partly through the repeated assertion that ‘real’ law is found in courts, contracts and statutes.^[213] However, due in no small part to the paradigmatic crisis of moder­nity provoked by globalization, there is now a concerted attempt to reclaim a pluralist knowledge of law which, it is claimed, better fits the ‘empiricism, par­ticularism, indeterminacy and disorder’ of our times.^[214] The challenge of legal pluralism is important for our inquiry as it undermines all three core elements of liberal legalist epistemology.

Legal Pluralism and the Challenge to Legal Centralism

Legal pluralism charges that liberal legalism represents a fundamental misde­scription. Its basic, and probably most famous, contention is that the state does not have a monopoly on law. Moreover, it is claimed that the legal pluralist par­adigm is the one with the greater historical pedigree.^[216] Recent attempts to revive this narrative can be divided into three broad phases: classical legal pluralism, post-colonial legal pluralism, and globalization and legal pluralism. While there are important differences and disagreements within and between these phases,^[217] they are united in a common project of mapping the existence of legal phenom­ena beyond the state. In other words, their objective is to displace the legal centralist default that the state alone can provide the criterion for the existence of legal order.

Classical legal pluralism^[218] arose from developments in anthropological research to question the western belief that, prior to the imposition of European law in colonial societies, there was no law and order. Instead, classical legal plu- ralists, through techniques of ethnographic mapping^[219] sought to demonstrate that ‘far from being savage anarchies,... [precolonial] societies were quite orderly and capable of holding together over time.’^[220] The key point was to render contingent the western notion of law by showing that indigenous ‘law-like’ phenomena pre-dated the colonial state.^[221] For example, recent work on the history of colonialism in North America has shown how the aboriginal peoples lived in organised societies,^[222] with their own political systems that included, inter alia,

provisions for behaviour and thoughts related to making a living from the environ­ment, raising children, organizing the exchanges of goods and labor, living in domes­tic groups and larger communities, and the creative, moral and intellectual aspects of human life.^[223]

The point is not that aboriginals had analogical equivalents of western property laws, or that this is what the ‘correct’ version of legal history should relate,^[224] but that to assign the label ‘law’ to the later arrival of the western variety of legal phenomena is ‘no more than a distinction of relative emphasis in the sources of information most readily available, not an ontological divide.’^[225]

In the 1970s, research within the law and society movement emphasised that legal pluralism was not just a feature of exotic settings, but was also prevalent in the industrialised west.^[226] Scholarship in this post-colonial phase developed legal pluralism by also positing the operation of non-state law throughout mod­ern society, in settings as diverse as business,^[227] suburbs,^[228] sport,^[229] and prisons.^[230] As with its classical precursor, this account of law’s ubiquity attempted to counter centralist views of law by showing how functions traditionally associ­ated with state law, eg, the adjudication of disputes,^[231] are also carried out in non-state settings.

... [n]orms or rules [which] are generated internally: contracts, collective agreements, arbitral awards, codes of conduct, informal understandings and, above all, customary patterns of behaviour, which though always changing, at any moment plausibly cap­ture what is understood to be ‘the law.’^[232]

Other studies have underlined the explanatory importance of non-state norma­tive orderings.^[233] For example, it is argued that to understand fully the process of collective bargaining—the building block of labour relations in the postwar era^[234]—we need to refer to the ‘implicit understandings, custom and usage, pat­terned behaviour, cultural assumptions, power relations and technological imperatives’^[235] of day-to-day employment practice.^[236]

Feminist scholarship has also underscored the general importance of looking beyond the state, here to gain a more accurate picture of ‘women’s legal world[s].’^[237] While some of this work is carried out under the rubric of the public-private divide^[238] rather than legal pluralism, it too rejects a state-centred view of legality. For example, if we consider women’s experiences of the work­place, this reveals a continuing gender imbalance in terms of pay, often in the face of state guarantees of equal treatment.^[239] This suggests, descriptively, that for the most part, the workplace is organised around norms that women will work, for example, in certain jobs or for certain rates, which disadvantage them in comparison with men. If we look next at the context of the family, perusal of statute and case books will not reveal that in terms of the domestic division of labour, the governing norm is that ‘cleaning, cooking, shopping and child care is primarily women’s work.’^[240] The same can be said for care of elderly or disabled relatives.^[241] Similarly, a more sociologically grounded approach uncov­ers the extent to which domestic violence against women is still regarded as acceptable within some households.^[242]

In recent times, an emerging literature on globalization and legal pluralism has sought to demonstrate how a pluralist conception of law explains the emer­gence of ‘inchoate forms of global law, none of which are the creations of states.’^[243] For example, Gunther Teubner argues that if we consider how eco­nomic agents internalise and apply the binary coding of legal/illegal,^[244] this shows that the global lex mercatoria should be regarded as a form of law despite the lack of any state imprimatur for this increasingly important ‘transnational law of economic transactions.’^[245] On this account, a global merchant’s law is necessarily fragmented, and consists of ‘[discourses] of state law, of rules of pri­vate justice or regulations of private government’ which together form a ‘dynamic process of the mutual constitution of action and structures in the global social field.’^[246] In this regard, corporations, already identified as major actors in driving the globalizing economy, are also an important and prolific source of non-state law.^[247] Thus, corporations have created norms for conduct­ing their business,^[248] which take a variety of forms, and include:

...

These empirical studies in legal pluralism set up a sharp descriptive disjunc- ture with liberal legalism. In positing the pervasive existence of law-like phen­omena in a variety of social settings, they have performed the important task of unsettling the commonsensical assumptions that law (and so constitutional law) necessarily and exclusively emanates from the state. However, some have ques­tioned whether this empirical method does not itself exhibit some of the methodological flaws of the dominant paradigm. Here, we can identify a fourth phase of scholarship, critical legal pluralism, which while being equally dismis­sive of ideas of legal centralism, also focuses on the positivist and monist challenges to liberal legalism. This suggests that traditional legal pluralism tends to take the characteristics of state law as its primary referent, but seeks to reproduce these in non-state settings. As such, it falls into the trap of treating law as an ‘external object of knowledge,’^[250] repeating liberal legalism’s error of positivism. Moreover, in ‘reifying “norm-generating communities”^[251] as substi­tutes for the state,’ there is a danger of replacing monist conceptions of state law with equally monist conceptions of non-state law. In place of identifying the test of legal order in terms of traditional state functions such as social control,^[252] crit­ical legal pluralism places the legal subject as ‘an irreducible site of normativ- ity’^[253] at the heart of its account of law.

For present purposes, the importance of this critical turn does not lie in focus­ing our attention on internal debates in legal pluralism, but by showing that the epistemological challenge to liberal legalism goes not only to state-centred views of law, but to the special characteristics asserted on state law’s behalf. We can see the nature of these challenges by elaborating how the counter-arguments to the monist and positivist accounts of law question assumptions of rights consti­tutionalism’s coherence and instrumental effectiveness. In this regard, I now discuss the theoretical bases of external and internal legal pluralism: the former posits multiple interacting sites of law-production and locates any account of rights constitutionalism’s counterhegemonic potential in this internormative world, while the latter takes seriously the law-creating capacity of the individ­ual and its disordering effects on any attempt to systematise constitutional doctrine.

External Legal Pluralism and the Multiplicity of Law

Legal pluralism charges that state law often fails to realise its objectives in prac­tice.^[256] Classical legal pluralism emphasised the resistance of customary practices to reordering by the formal law, while post-colonial scholarship cast doubt on the instrumental ambitions of state law, for example, in the context of the workplace,^[257] or the administration of justice.^[258] Studies of globalization and legal pluralism often attest to the relative powerlessness of state law in regulat­ing the global economy.^[259] How then do we explain that other sources of law are seemingly more effective than state law?

Much theoretical work in legal pluralism pays homage^[260] to Sally Falk Moore’s conception of semi-autonomous social fields.

While Moore’s theory remains influential in terms of situating law in a broader constellation of social forces that qualifies its operation, in contempo­rary terms, the work of Boaventura de Sousa Santos is rightly seen as making a ‘very significant contribution’^[266] to establishing the theoretical basis of legal plu­ralism. In Toward a New Legal Common Sense, Santos advances a theoretical reconstruction of legal pluralism, which moves beyond the anthropological positing of law-like examples, and provides a sociological explanation of the nature of different forms of law and their relationship to each other. His princi­pal explanatory device is the ‘structure-agency map’ which conceives of modern capitalist society as political, legal and epistemological constellations, produc­ing six basic forms of power, law and knowledge respectively, which, though related to each other, are structurally autonomous.^[267] To flesh out these differ­ent forms of power, law and knowledge, Santos distinguishes between six struc­tural places—the householdplace, the workplace, the marketplace, the communityplace, the citizenplace, and the worldplace—which are ‘the most consolidated clusters of social relations in contemporary capitalist societies.’^[268] This framework emphasises the multiple variety of social relations^[269]: as the structural places only operate in constellation with each other, their ‘develop­mental dynamics’ are partial.^[270] Furthermore, each is grounded in a specific contradiction—for example, between employers and employees in the work- place—and so accordingly social actions are ‘often informed by different and mutually incongruent logics.’^[271]

For Santos, the plurality of law is revealed by showing how six basic forms of law^[272] are ‘anchored in, constituted by and constitutive of’ the six structural places.^[273] His objective here is to uncouple law from the state, and (re)couple it with social power.^[274] One form of law is, of course, the state (or territorial) law of what he calls the citizenplace, produced by the institutions of the nation­state.^[275] Other forms include: the domestic law of the householdplace; the production law of the workplace; the exchange law of the marketplace; the com­munity law of the communityplace; and the systemic law of the worldplace.^[276] An understanding of the developmental logic of each structural place concretises the corresponding form of law. For example, domestic law is ‘the set of rules, normative standards and dispute settlement mechanisms both resulting from and in the sedimentation of social relations in the householdplace.’^[277] This law is highly informal, and as it is almost totally enmeshed in family relations, there is little perception of its autonomy vis-a-vis those relations. Production law,^[278] on the other hand, is grounded in the ‘the power prerogatives inherent to the own­ership of the means of production.’^[279] Its form is often changeable, and depends, for example, on the prevailing culture within any particular corporation. While sometimes informal, sometimes not, it differs from domestic law in that its autonomy is more consciously internalised by those subject to it.^[280]

The structural places not only explain the nature of different types of law, but more crucially, their relation to each other: ‘[T]he legal character of social rela­tions of law does not derive from one single form of law, [but] from the differ­ent constellations among different forms of law.’^[281] In other words, the legal regime within any of the structural places is an articulation between different forms of law. To return to some of the previously discussed examples, the law affecting women in the householdplace, such as provisions of family law with regard to child care, is constituted by both domestic and state law.^[282] Ongoing changes in the nature of employment whereby people are increasingly ‘working at home’ means that to understand the law of the workplace, we need to exam­ine the emerging dynamic between domestic and production law.^[283] Further, we may characterise attempts by aboriginal groups to assert, for example ancient fishing rights,^[284] as involving the interface between community law, here being deployed to strengthen ‘subaltern, defensive identities,’^[285] and state constitu­tional law. Finally, in the context of economic globalization, we may look at the degree of isomorphism in the marketplace between the exchange law of lex mercatoria and state contract law,^[286] and also the extent to which the systemic law of the worldplace,^[287] under which we might include the Washington con­sensus, interacts with rules of international law in affecting relations between nation states.

It is crucial to emphasise that this account of diverse interactions between dif­ferent forms of law—what we will label their internormativity^[288]—is both a portrayal of the multiple nature of legal regulation, and an explanation of its limits. The implications of this position are particularly important for legal dis­courses which focus on the state. For Santos, state law is distinctive in that it alone is officially regarded as law, and as such, it tends to have an inflated sense of its ability to regulate social life.^[289] However, the identification of other forms of (less reflexive) law means that the absence of state law does not equate to deregulation, but reregulation. Rather, the social world consists of overlapping, interpenetrating legal orders, the upshot being that ‘[o]ne mere change in state law may change very little if the other legal orders are in place and manage to re-establish their constellations with state law in new ways.’^[290] Thus, for exam­ple, although the state criminal laws of many societies proscribe wife-beating and child abuse, the domestic law which permits them in the householdplace is often the stronger norm.^[291]

This account has important implications for our interrogation of the rela­tionship between rights constitutionalism and private power. It challenges the idea that the instrumental effectiveness of rights constitutionalism depends on the outcome of normative debate through the following three propositions of external legal pluralism:

1. State law is but one of multiple sources of law.

2. The operation of these multiple legal forms is characterised by their inter­normativity, whereby they constantly overlap and interact with each other.

3. In this internormative world, state law has no special status on account of its provenance, and is often the less important normative regime affecting a particular area of social life.

Internal Legal Pluralism and the Incoherence of Law

Internal legal pluralism speaks to the ‘diversity of norms, processes and institu­tions within... any particular legal order.’^[292] For example, where customary laws are incorporated within the official legal system in the colonial setting, this has been depicted as ‘state law pluralism’^[293] which consists of ‘multiple bodies of law, with multiple sources of legitimacy.’^[294] Others have addressed the plu­ralism inherent in western state law—whether by developing ideas of ‘doctrinal legal pluralism,’^[295] or by recovering the history of pluralism which had been displaced by the hegemonic narrative of legal centralism.^[296] Santos depicts this internal pluralism as a ‘quilt of legalities’ where the ‘state legal thread [is inter­laced] with multiple local legal threads’^[297]—for him, this diversity also charac­terises law in the process of globalization.^[298]

This brings us to an important debate within legal pluralism on the relevance of ‘state law’ or ‘doctrinal’ pluralism. On one side, John Griffiths strongly argues that pluralism within state law is of little interest to the social scientist,^[299] and that highlighting this is to perpetuate the legal centralist obsession with state law that he wishes to debunk.^[300] On the other, Gordon Woodman suggests that, on Griffiths’s terms, doctrine can equally be regarded as a social fact, whose investigation assists our perception of social reality.^[301] My position is closer to Woodman’s, for three principal reasons. First, rather than drawing a sharp definitional divide (which Griffiths warns against in the case of ‘law’),^[302] we should see external and state law pluralism as part of the same continuum. Secondly, while under a legal pluralist analysis, state law is no longer central, this does not necessarily mean it is unimportant. Indeed, as I will argue later, there are important consequences in the widespread acceptance of the liberal legalist paradigm as ‘commonsense’. There is therefore value in testing the key claim made about the internal orientation of state law. Thirdly, and related, to the extent that it undermines the liberal legalist archetype of formal coherence, this exercise is a powerful antidote to a tendency within legal pluralism to replace one monism—that of state law—with another: thus, pace Griffiths, applying the insights of legal pluralism to state law can be seen as subversive of the dominant paradigm.

While Santos presents an account of law in which state law is to be seen as ‘highly heterogeneous and internally differentiated,’^[303] the theoretical explana­tion of pluralism within state law is most developed in the work of Charles Sampford. Sampford’s object of critique is the ‘law as system’ orthodoxy^[304] which he argues permeates the legal academy and informs positivist (eg, Hart), content (eg, Dworkin) and sociological (eg, Luhmann) theories of legal system. For example, the idea of system underpins Dworkin’s quest for the principles best justifying existing practice which can be used to develop the ‘chain novel’ of interpretation. Each finds failings in the others’ attempts, and instead pro­poses a ‘better’ account of the legal system. Sampford’s main argument is that this attempt to theorise in terms of system and order should be abandoned.^[305] Instead, he offers a theory based on disorder, which represents an important attempt to show the implications of theories of social pluralism for our under­standing of state law.

Sampford’s organising idea is the social melee, which begins with an account of the nature of social relations. The latter he divides into power relations,^[306] unintended effects^[307] and value effect relations^[308]: social interaction can never be homogeneous as it is characterised by various mixtures of these relations. Moreover, these relations will often be perceived differently by those at either end of them. For example, power-holders may believe that compliance is due to their legitimate authority whereas power-subjects may perceive themselves to have been coerced—thus Sampford argues that social relations are typically asymmetrical.^[309] This attenuates the capacity of individuals and institutions to mobilise others. Institutions are ‘a web of mixed relations between different per­sons with different environments and values’^[310] and so they rarely speak with one voice. This internal disorder itself contributes to the general disorder of the social melee which is ‘a fluid, constantly changing set of interactions in complex struggle between a large number of groups and institutions.’^[311] Thus, Sampford argues that society should be seen as a ‘disorganized struggle’ where to the extent social peace prevails, this is not attributable to the systematic following of rules within some overarching consensus, but the result of the disorder between institutions.^[312] Moreover, this disorder frustrates the capacity for soci­ety to be reordered, as it leads to social inertia whereby the interests of some groups become entrenched and difficult to displace.

The key move in providing the basis for a theory of internal legal pluralism is Sampford’s linking of the disorder of society to an account of the disorder of state law. He argues that state law is not immune from the disordering forces outlined above, as it is part of the larger web of varied and complex social rela- tions.^[313] Accordingly, it is also marked by asymmetry—for example, where the promulgation of rules passes through chains of legal relations between officials and citizens, where at each point, the main protagonists have a different perception of the rule at stake.^[314] Asymmetrical legal relations thus further attenuate the instrumentality of state law, as they themselves contribute to the social melee.^[315]

This undermines the liberal legalist assumption of coherence given that the central means of effecting instrumental change within mainstream constitu­tional theory is through the systematic reordering of doctrine. We can deepen the analysis here by locating Sampford’s linking of social and legal disorder and incoherence with the emerging school of critical legal pluralism. As discussed above, this emphasises how legal subjects possess a ‘transformative capacity,’ and are themselves important sources of legal knowledge^[316]: as such, they create law, as much as law creates them. This view of the law-creating legal sub­ject further enriches our picture of internormativity—it is not just the case that different forms of law overlap and interact with each other, but that at the same time, legal subjects are giving shape to those legal structures which are also part of the constitution of their legal subjectivity.¹⁴² As such, critical legal pluralism argues that ‘[n]ormative heterogeneity exists both between various normative regimes which inhabit the same intellectual space, and within the regimes them­selves.’¹⁴³

This analysis has important implications for adjudication, and questions the assumption that through reasoned argument we can reconstitute doctrine into a coherent whole as a precursor to effecting social change. Sampford argues that judges must be seen as acting for a variety of reasons in any context: for exam­ple, lower court judges may be motivated in a particular judgment by a genuine belief that they are following legitimate precedent, or the hope of promotion, or to avoid being overturned on appeal, or to avoid criticism by fellow judges or the legal profession in general. Furthermore, he argues that the senior judiciary, to whom some of the previous considerations are inapplicable, will nonetheless be affected in their behaviour by, for example, the anticipated reaction of the executive and legislative branches.¹⁴⁴ It is not that these factors are extraneous to doctrinal argument, but that they are part of the social context in which judges internalise their attitude to the cases before them. Allied to the last point is Sampford’s general argument against the possibility of system: while a judge may produce a response to constitutional argument which is coherent to him- or herself, this will be a different coherence from that created in the minds of other judges.¹⁴⁵ This explains the continuing phenomenon of jurisprudential partiality and contradiction that has been well documented first by the realists, and latterly, by the critical legal studies movement.¹⁴⁶ However, it makes a stronger point which distinguishes legal pluralism from these other approaches,¹⁴⁷ namely that even if judges were to be persuaded by the norma­tive constitutional arguments put to them, and wished to act on them in good faith, the centripetal forces of asymmetrical social and legal relations make it highly likely that doctrinal incoherence would still result.

We can accordingly now posit the challenge of internal legal pluralism to the liberal legalist assumption of coherence in the following terms:

1. Society is characterised by disorder, which is the result of asymmetrical social relations which attenuate the capacity of institutions to impose systematic order.

2. Legal relations are but one variety of social relations; as such, (all) forms of law are marked by asymmetry which attenuates their capacity both to attain internal order, and to be a means of reordering society.

¹⁴² Ibid.

¹⁴³ Kleinhans and Macdonald, above n 34, at 39.

¹⁴⁴ Sampford, above n 129, at 229.

¹⁴⁵ Ibid at 151.

¹⁴⁶ See D Kennedy, A Critique of Adjudication (fin de siecle) (Cambridge, MA, Harvard University Press, 1997) chs 4 and 5.

¹⁴⁷ Kennedy, eg, accepts that ‘crits love determinacy, in its place, as much as the next person’ (ibid at 129).

3. The internal incoherence of law in general, and state legal doctrine in particular, is further attenuated by the agency of legal subjects, including lawyers and judges, who create law as much as they are created by law.