Beyond Legal Pluralism: Towards a New Approach To Law in the Informal Sector
| Published date | 01 June 1994 |
| DOI | 10.1177/096466399400300202 |
| Date | 01 June 1994 |
| Author | Lauren Benton |
| Subject Matter | Articles |
BEYOND
LEGAL
PLURALISM:
TOWARDS
A NEW
APPROACH
TO
LAW
IN
THE
INFORMAL
SECTOR
LAUREN
BENTON
Rutgers-NJIT
INTRODUCTION:
PROBLEMS
WITH
STRUCTURALIST
VERSIONS
OF
LEGAL
PLURALISM
RENDS
IN
social
theory
have
moved
steadily
over
the
last
several
)
decades
away
from
what
might
broadly
be
described
as
structural
analysis
-A-
and
towards
more
historical
or
processual
approaches.
As
part
of
this
trend,
some
scholars
have
shifted
the
emphasis
of
theoretical
discussions
to
the
ways
in
which
social
actors
construct
meaning.
Others
have
worked
towards
modifying
structural
approaches,
focusing
on
intermediate-level
theories
that
permit
a
closer
juxtaposition
of
individual
and immediate
experience
with
broad,
structural
conditions.
Still
others,
though
rejecting
the
dichotomy
of
the
structural
and
the
conceptual,
have
nevertheless
been
characterized
as
members
of
one
or
the
other
of
these
schools
and
have
found
themselves
separated
from
the
discussion
of
broader
theoretical
issues.
The
fragmentation
of
social
theoretical
approaches
is
apparent
even
in
interdisciplinary
fields
such
as
legal
studies.
Legal
anthropologists,
shifting
their
attention
away
from
a
consideration
of
the
role
of
law
in
the
production
of
social
order,
have
nevertheless
continued
to
rely
on
assumptions
about
legal
structure
that
belong
to
an
older
theoretical
tradition
and
are
contradicted
both
by
their
own
studies
of
legal
processes
and
by
findings
outside
the
field.
Scholars
SOCIAL
&
LEGAL
STUDIES
(SAGE,
London,
Thousand
Oaks
and
New
Delhi),
Vol.
3
(1994), 223-242
223-2
224
interested
in
the
relationship
between
law
and
economy
have,
at
the
same
time,
relied
upon
reified
notions
of
culture
that
fit
well
with
structural
analysis
but
do
not
incorporate
the
more
nuanced,
fluid
and
subjective
notion
of
culture
emerging
in
anthropology.’
This
paper
examines
the
problems
created
when
a
structural
framework
is
embedded
in
studies
of
legal
processes
in
ways
that
make
a
critical
assessment
difficult.
In
particular,
I
want
to
examine
the
results
of
incorporating
one
such
construct -
a
structural
notion
of
legal
pluralism
that
posits
a
framework
of
levels
of
law -
in
analyses
of
processes
of
economic
change.
I
will
examine
the
development
of
the
concept
of
the
informal
sector
and
how
writings
about
the
concept
have
borrowed,
for
the
most
part
unconsciously,
from
this
framework
in
ways
that
have
often
distorted
our
understanding
of
shifting
conditions
in
housing
and
employment
markets.
Conceptualizing
plural
legal
orders
as
comprising
a
set
of
’stacked’
legal
systems
or
spheres
is
an
approach
common
to
a
wide
range
of
legal
theorists.
One
view
posits
non-state
law
as
the
product
of
patterns
of
interactions
to
which
moral
obligations
are
attached,
and
associates
layers
of
greater
complexity
with
more
formal
systems
of
law
built
upon
this
foundation.2
Another
view
searches
for
commonalities
in
all
systems
of
law,
paralleling
informal
sources
of
authority
in
non-state
law
with
the
formal,
centralized
power
standing
behind
state
law.3
Even
sophisticated
critiques
of
such
views
ultimately
fall
back
on
structured
notions
of
legal
pluralism,
as
E.
P.
Thompson
does
in
describing
the
relationship
of
customary
law
to
state
law
in
eighteenth-century
England,
or
as
Sally
Falk
Moore
does
in
portraying
the
influence
of
state
law
on
traditional
spheres
of
law
in
East
Africa.4
It
seems
that
by
merely
identifying
an
object
of
study - particular
kinds
of
behavior
outside
of
formal
legal
systems
that
nevertheless
appear
law-like -
we
emerge
into
a
conceptual
field
that
contains
imagined
shapes
(legal
’spheres’
or
even
’social
fields’)
that
then
must
have
a
geometrical
relationship
to
one
another.
The
difficulty,
of
course,
is
that
the
structures
we
then
imagine
to
stand
between
or
connect
these
spheres
make
an
awkward
scaffold
for
observed
behavior,
so
that
we
begin
to
feel
like
early
astronomers
mapping
heliocentric
orbits
on
a
geocentric
universe -
what
is
required,
ultimately,
is
a
return
to
faith
to
account
for
the
inconsistencies.
If
the
reversion
to
structuralist
notions
is
present
even
in
works
that
set
out
explicitly
to
modify
or
reject
them,
we
should
not
be
surprised
to
find
these
structures
present
in
a
literature
that
has
left
them
largely
unexamined.
The
’informal
sector’
emerged
as
a
term
in
the
late
1970s
to
describe
economic
activities
that
are
outside
the
purview
of
the
state
but
are
nevertheless
entirely
’modern’,
both
in
their
origins
and
in
their
connections
to
other
seemingly
more
advanced,
better
organized
and
more
clearly
regulated
economic
activities.
The
concept
came
to
be
applied
both
to
the
’unregulated’
contractual
agreements
in
a
large
and
sometimes
growing
segment
of
the
labor
market
in
both
developing
and
advanced
countries
and
to
the
unregulated
operation
of
a
significant
part
of
the
urban
housing
market
in
developing
countries.
In
both
cases,
analysts
have
relied
on
what
is
essentially
a
definition
of
the
informal
sector in
legal
terms;
that
is,
the
boundary
between
sectors
is
seen
to
depend
not
on
the character
of
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