The Practical Usefulness of Legal Pluralism and Comparative Law
Given the multitude of legal orders and law-related management systems in the world as a whole, it is illusionary to assume that ‘law’ as state law is the only component worth studying.
But it is equally dangerous to presume that one can study ‘religion’ and then know enough about ‘the good life’ and tolerable forms of protection for basic rights. In reality, these entities need to be combined into a synergetic whole that maintains proper, sustainable balances. For this, appropriate legal study needs to become more interdisciplinary and more familiar with legal pluralism.We argue that one can treat legal pluralism as a heuristic tool to understand the dynamics of the different legal orders existing within India and elsewhere. This will also help to understand and appreciate the highly complex role of Muslim Personal Law vis-à-vis the Indian state in this context. Legal pluralism refers to a situation where behaviour occurs in response to more than one legal order in the same space at the same time. The simple but arduous basic problem here is what is meant by ‘legal order’, and thus by ‘law’. What kind of law are we talking or thinking about? The concept of legal pluralism proceeds on the foundational thought that the state is not necessarily the only source of law. This forces legal analysis to become interdisciplinary, and to approach ‘law’ rigorously from a multi-perspectival dimension. Many ‘doctrinal’ lawyers oppose this methodology, but the discussions in this conference, too, confirmed that ‘pure’ legal doctrine is not conducive to good, well-informed legal analysis.
For a comprehensive understanding of legal pluralist methodology, it is therefore essential to realise that general state law and personal laws, which are also part of state law but widely perceived as ‘religious laws’, are not the only types of law involved in such pluri-legal reconfigurations. In any jurisdiction in the world today, there are essentially four types of laws: (1) Natural laws, encompassed in religion and traditional ethics/values as a form of law in India, (2) societal laws and norms that include customs and everyday ideas of order, (3) state laws such as the various legislations and court decisions, and (4) a combination of ‘new natural laws’, namely modern human rights laws, together with the numerous rules, processes and structures of international laws.
IV.