A Non‐Essentialist Version of Legal Pluralism
| Published date | 01 June 2000 |
| Author | Brian Z. Tamanha |
| DOI | http://doi.org/10.1111/1467-6478.00155 |
| Date | 01 June 2000 |
JOURNAL OF LAW AND SOCIETY
VOLUME 27, NUMBER 2, JUNE 2000
ISSN: 0263-323X, pp. 296–321
A Non-Essentialist Version of Legal Pluralism
Brian Z. Tamanaha*
The concept of legal pluralism has been touted by many socio-legal
scholars as a key concept in the analysis of law. Yet, after almost
twenty years of such claims, there has been little progress in the
development of the concept. This article will argue that the underlying
cause of this lack progress lies in the fact that promoters of the concept
have relied upon function-based, essentialist concepts of law. It will
describe the problems generated by such concepts and, following this
general analysis, will review the versions of legal pluralism articulated
by Boaventura de Sousa Santos and Gunther Teubner. The critique of
their versions of legal pluralism will lead into the posing of a non-
essentialist alternative which avoids the conceptual problems of
prevailing versions of legal pluralism, and provides a better tool for
purposes of research and analysis of the relationship between law and
society.
INTRODUCTION: OVERVIEW OF THE CONCEPT OF LEGAL
PLURALISM AND ITS PROBLEMS
Many of the leading socio-legal scholars in the world today – prominently
including Marc Galanter, Sally Falk Moore, Peter Fitzpatrick, Roger
Cotterrell, Gunther Teubner, Boaventura de Sousa Santos, Sally Engle
Merry, and Masaji Chiba – have announced their allegiance to the concept of
legal pluralism. It has been called ‘the key concept in a post-modern view of
law’,
1
‘a central theme in the reconceptualization of the law/society
relation’,
2
and ‘capable of identifying authentic legal phenomena operating
296
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1 B. de Sousa Santos, ‘Law: A Map of Misreading. Toward a Postmodern Conception
of Law’ (1987) 14 J. of Law and Society 279, 297.
2 S.E. Merry, ‘Legal Pluralism’ (1988) 22 Law and Society Rev. 869, 869.
* St. John’s University School of Law, 8000 Utopia Parkway, Jamaica, New
York 11439, United States of America
on a global level’.
3
‘The new paradigm, as far as the social scientific study of
law is concerned, is legal pluralism[.]’
4
Indeed, adherents assert, law
everywhere ‘is fundamentally pluralist in character’, and ‘anyone who does
not [accept this] is simply out of date and can safely be ignored’.
5
‘Today,
this pluralism is so commonly accepted that it can be assumed.’
6
Despite these confident pronouncements and the apparent unanimity that
underlie them, however, the concept gives rise to complex unresolved
problems. These problems are widely recognized and can be summarily set
out in terms of two different but connected categories: analytical and
instrumental.
The analytical problems go to the heart of legal pluralism, and consist of
two related aspects. While they agree on the initial proposition that there is a
plurality of law in all social arenas, legal pluralists immediately diverge on
what this assertion entails because there is no agreement on the underlying
concept of law. For example, John Griffiths, one of the leading promoters of
the concept of legal pluralism, defines law as ‘the self-regulation of a ‘‘semi-
autonomous social field’’’;
7
Galanter defines law in terms of the
differentiation and reinstitutionalization of norms into primary and
secondary rules;
8
Santos defines law in more elabourate terms as ‘a body
of regularized procedures and normative standards, considered justicable in
any given group, which contributes to the creation and prevention of
disputes, and to their settlement through an argumentative discourse, coupled
with the threat of force.’
9
This lack of underlying agreement is the first
aspect of the analytical problem.
Since there are many competing versions of what is meant by ‘law’, the
assertion that law exists in plurality leaves us with a plurality of legal plural-
isms. Legal pluralists can hardly be condemned for their failure to come up
with an agreed upon concept of law. As H.L.A. Hart noted, ‘Few questions
concerning human society have been asked with such persistence and answered
by serious thinkers in so many diverse, strange, and even paradoxical ways as
the question ‘‘What is law?’’.’
10
Until this problem is resolved, however, the
concept of legal pluralism will not have a sound foundation.
297
3 G. Teubner, ‘Legal Pluralism in World Society’ in Global Law Without a State, ed. G.
Teubner (1997).
4 J. Griffiths, ‘Legal Pluralism and the Theory of Legislation - With Special Reference
to the Regulation of Euthanasia’ in Legal Polycentricity: Consequences of Pluralism
in Law, eds. H. Petersen and H. Zahle (1995) 201.
5 id.
6 A. Riles, ‘Representing the In-Between: Law, Anthropology, and the Rhetoric of
Interdisciplinarity’ (1994) Illinois Law Rev. 597, 641.
7 J. Griffiths, ‘What is Legal Pluralism?’ (1986) 24 J. of Legal Pluralism 1, 38.
8 M. Galanter, ‘Justice in Many Rooms: Courts, Private Ordering, and Indigenous
Law,’ (1981) 19 J. of Legal Pluralism 1, 18–19.
9 B. de Sousa Santos, Toward a New Common Sense: Law, Science and Politics in the
Paradigmatic Transition (1995) 114–15.
10 H.L.A. Hart, The Concept of Law (1961) 1.
ßBlackwell Publishers Ltd 2000
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