LEGAL PLURALISM AND THE POLITICS OF DEFINITION
While legal pluralism is a powerful tool in disturbing the epistemological basis of liberal legalism, this only takes us part of the way in outlining its significance for constitutional study.
It is therefore important to place the epistemological critique of legal pluralism in context. While this argues that rights constitutionalism is not important in the ways that liberal legalism imagines, this does not mean we should direct our attention exclusively to non-state sources of constitutional law. For one thing, states are, for the present at least, likely to remain the ‘central political forms’4 of the world system. Accordingly, we cannot wish away state constitutional law—rather, the latter’s significance in light of the legal pluralist case has to be articulated and confronted. I approach this by considering two of the major objections to legal pluralism—its inability to proffer a satisfactory alternative definition of law, and its diluting of the normative force of ‘law’. I argue that both these objections can be countered by seeing how legal pluralism advances a rhetorical conception of law.Analytical and Instrumental Objections to Legal Pluralism
Such is the hold of liberal legalism that to most lawyers ‘law’ denotes simply state law: any attempt to broaden the category, for example by referring to
4 Santos, above n 1, at 94.
‘informal law’ or ‘non-state law,’ is immediately suspect given the presence of the qualifying adjective.[541] This onus to justify abandoning the dominant paradigm is underscored by two substantive objections which go respectively to the analytical and instrumental[542] utility of legal pluralism. The first is that legal pluralist definitions of law which do not take the state as its primary referent are ultimately incoherent. Brian Tamanaha argues that attempts to assert a universal definition of law, which would cover state and non-state settings, rest on a flawed basis.[543] He contrasts the contention that ‘law can be conceptualized independent of state law’[544] with legal pluralist definitions of law which show that ‘law’s conceptual connection to the state cannot be severed.’[545] According to Tamanaha, these generally posit the criteria of law ‘by extracting or emulating those elements which appear to be essential to state law, then subtracting all trappings of state law.’[546] Tamanaha further argues that legal pluralism’s failure to substantiate its core belief that we can move beyond state centred notions of law means that it is of little conceptual use in distinguishing the legal from the non-legal.[547] Thus, legal pluralists have not made out the case that there is something essential about ‘law’ which justifies collapsing social norms into law[548]; there may well be ‘ “normative” [or] “rule system” pluralism,’[549] but the question remains over why this should also be labelled ‘legal’ pluralism.
Allied to this objection to the analytical utility of legal pluralist definitions of law is a second argument, in more instrumental terms, that there is an important value served by restricting use of the term ‘law’ to those formal acts of the state which accord with the rule of law. In this regard, TRS Allan warns of the dangers of the ‘uncritical identification of “law” with any and every assertion of governmental authority’ as this would make the citizens and their property ‘objects of administration.’[550] While others would draw the line of legality in different places,[551] the idea that ‘law’ imputes some moral standard to which states should comply remains central in liberal legal theory.[552] A fortiori, this normative delineation of the legal must apply in the non-state setting. For example, Tamanaha asks the value of regarding domestic relations of the family as a site of law: for him, not only does this lead to terminological confusion, but brings a potential political detriment, by suggesting that domestic violence may be acceptable under the non-state legal regime.[553] On this view, to argue that conflating what corporations do with the activities of constitutional courts in adjudicating human rights is to accord a(n unjustified) legitimacy to the former, while risking undermining the (justified) legitimacy of the latter.
These objections raise important points. The first underscores the difficulty which legal pluralists necessarily have in ‘essentialising’ law.[554] At its most elemental level, legal pluralism is a rebellion against the possibility of an allencompassing normative system. Legal pluralists who say that ‘law is x’ accordingly open themselves up to their own critique, ie, why should we centralise the meaning of law around a different set of co-ordinates which merely reproduce the liberal legalist difficulties of giving a comprehensive account of legal phen- omena?[555] The second highlights the often uneasy relationship between description and prescription in legal pluralism, of whether we should attach normative connotations to law purely on account of its state or non-state provenance.
Towards a Rhetorical Conception of Legal Knowledge
These objections take our inquiry forward by showing that the significance of legal pluralism for contemporary constitutionalism does not principally lie either in offering an alternative definitive account of law, or in valorising non-state law in its own terms. They suggest that the more relevant implications of the paradigmatic debate flow from focusing on its process rather than its eventual outcomes—on what it entails to challenge dominant methodological conceptions than what their final replacements might be.[556] My argument is that the key point of the paradigmatic debate does not lie in asking the question ‘what is law?’ but rather ‘why is the answer to the question “what is law” important?’ This points to the importance of a rhetorical conception of legal knowledge[557]:
What is especially characteristic of struggles for law [is] how these disputes about meaning have been framed by disputants as matters of definition... What is important is not to ‘prove’ the ‘empirical truth’ of [any] definition—itself a problematic exercise that rests on second-order definitions—, but rather to acknowledge the ideology and the objectives that drive the particular perspective chosen.[558]
On this view, the equation of law with state law should be regarded as a ‘rhetorical strategy’ rather than a ‘stipulative definition’.[559] The point is not so much that liberal legalism misdescribes law, by omitting aspects of a more accurate and/or comprehensive definition, but that it misrepresents the nature of the question ‘what is law?’ by suggesting that this can be answered purely by analytical categorisation. Instead, in John Griffiths’s classic formulation, the idea that ‘law is and should be the law of the state’ should be seen for what it is: as an ‘ideology’.[560] The insight that questions about the meaning of law should be regarded principally in rhetorical terms[561] leads to an important shift in focus: the central issue is now what ends are promoted by propagating state-centred views of law.
A number of writers have illustrated the political interests that have historically been served in the name of state-centred definitions of law. James Tully, for example, discusses John Locke’s justification of European colonialism in the seventeenth century.[562] For Locke, European states had reached the stage of historical advancement such that they had ‘a common establish’d Law and Judicature’[563]—in contrast, North American aboriginal societies still subsisted in the lawless state of nature. Consequently, only Europeans had the power to exercise legal sovereignty, through property rights, over land.[564] In this way, the idea that European societies were uniquely ordered according to law— ultimately identifiable as the positive law of the state—legitimated the appropriation of land, notwithstanding its long-standing occupation by aboriginals, as the exercise of right, not might. The notion that debates about law serve as ‘proxies’[565] for broader issues also animates Harry Arthurs’ work on the development of English public law in the nineteenth century. Arthurs carefully documents the concerted efforts to centralise administrative law in the ordinary courts,[566] and argues that this ‘attack on pluralism’[567] furthered lawyers’ professional[568] and political[569] interests, by promoting the idea that the administration should adhere to centralist precepts of the rule of law, for example by observing the rules of natural justice as laid down by the ordinary courts. Santos links the reduction of law to state law to the nineteenth century project of embedding capitalism in western states.[570] Thus, the state appropriated law to itself, and fashioned it as a rational system of universal rules,[571] so that it could be used as a tool for imposing capitalist order on society. Capturing law as formal state law also played an important role in legitimating what was a deeply political act of state intervention on behalf of the capitalist class, by marrying law and capitalism to the idea of rational progress, and branding any other means of societal organisation as irrational.
The key was to cast state private law—seen as the essential lubricant for the functioning of capitalism—as not state law at all, and therefore ‘disengaged from any political or social content.’[572]Two important themes emerge from these studies: first, the centralisation of law as state law was not an organic development in human history, but the result of deliberate acts[573] designed to serve some political objective. Secondly, these acts of will were accompanied by strategies aimed at denying this contingency and thereby suppressing other understandings of law, whether those found in the aboriginal societies of North America, or the local courts of Victorian England. Crucial to this attempt was to portray the equation of law with state law in analytical terms, and to take this method to a reasonable degree of sophistication, fluency in which would be a badge of ‘technical’ expertise.[574] This strategy succeeded in putting legal pluralists in a double bind: given the exotic nature of their subject, they were perceived as engaging in anthropological, sociological or political, but not analytical, discourse (thus reinforcing the idea that legal discourse concerned purely state law), and in order to engage with the dominant view of law, they had to meet this on analytical terms (thus further masking the political basis of debates about law).[575] The primary significance of legal pluralism therefore lies in demonstrating how the ‘commonsensical’ acceptance that law is state law disguises that we are engaged here in a politics of definition of law.
The Analytical and Instrumental Objections in Context
This insight places in context the two objections discussed above. First, viewing received definitions of law as the product of human agency reinforces accounts of the law-creating subject: ‘there is no a priori distinction between normative orders because these normative orders cannot exist outside the creative capacity of their subjects.’[576] This inability to materialise any purely analytical means of separating the legal from the non-legal displaces liberal legalism from its seemingly preordained position—rather ‘state’ becomes just one more qualifying adjective for law, like ‘domestic’ or ‘informal’.
Accordingly, given the association of ‘law’ with ‘right, certainty, and power,’[577] we have to ask what are the consequences of making state law the central unit of analysis for constitutional study. Secondly, the implication of the politics of definition is that there is nothing in the label ‘law’ per se, which gives a norm any necessary positive value. Thus, Tamanaha’s concern that labelling family relations ‘law’ may legitimate domestic violence only makes sense if the purpose of doing so is to valorise all non-state law. However, our purpose could be to highlight the need to confront the problem of domestic violence, by casting it as an exercise of social power which must be addressed. The point is, divorced from the politics of definition, there is nothing in the claim that family relations should be regarded as law which has any positive or negative connotation. Thus, we cannot accord a legitimacy to any ‘law’ purely because of its provenance[578]: this is a necessarily political question, which can only be answered in relation to the purposes served by attaching the label ‘law’ to some aspect of social life.The latter point helps us understand the complex relationship between legal pluralism’s descriptive and prescriptive claims. While the fact of state or nonstate law alone has no normative implications, how we present either of them in a descriptive mode can not only make clearer what prescriptive choices are available, but also must reflect our view of how these choices should be made. Thus, the view of some legal pluralists that state law is not worthy of study,[579] and that non-state orders should be accorded a greater ‘symbolic prestige’[580] can be attributed to their ‘active antistatist stance.’[581] Others, though, act from different motivations in engaging in legal pluralist scholarship. For example, Tamanaha posits a ‘non-essentialist version of legal pluralism,’ which takes as its criterion of legality the conventional use of the term ‘law’[582] and which he argues enhances our ability to ‘describe, understand, study, analyse and evaluate legal phenomena.’[583] Rather than advancing anti-statism, this account contends that legal pluralism should take state law seriously, and that to do so will bring the benefits of clarifying the ways in which state law ‘actually is involved in maintaining the normative order of society’[584] or how it is used as ‘an instrument of power’[585] by elites, serving variously their own and sometimes the general interest. Tamanaha seems to imply that his approach contrasts favourably with the ‘significant political impetus’ behind essentialist approaches to legal pluralism.[586] However, I draw a different conclusion, namely that all approaches to legal pluralism reflect some ‘political impetus’[587] and that Tamanaha shows us that this need not take the anti-statist stance outlined above. Accordingly, for our own inquiry, viewing law in terms of the politics of definition shows the importance of making clear how these descriptive and prescriptive elements combine in any account of constitutional law.