The Promise and Conundrums of Pluralist Jurisprudence
| Date | 01 January 2019 |
| Published date | 01 January 2019 |
| DOI | http://doi.org/10.1111/1468-2230.12393 |
| Author | Brian Z. Tamanaha |
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REVIEW ARTICLE
The Promise and Conundrums of Pluralist
Jurisprudence
Brian Z. Tamanaha∗
Nicole Roughan and Andrew Halpin (eds), In Pursuit of Pluralist Jurispru-
dence, Cambridge, Cambridge University Press, 2017, 376 pp, hb £95.00.
Legal pluralism involves the proposition that more than one manifestation of
law exists in many social arenas. The legal pluralist paradigm is propagating
across academic fields. In the 1970s, jurists and legal anthropologists working
in colonial and post-colonial societies wrote about the coexistence of state
law in various relationships with customary law, religious law, and indigenous
law. The paradigm was taken in a different direction in the 1980s when a
group of sociologically oriented jurists argued per vasive legal pluralism exists
in all societies, now identifying law in terms of institutionalised rule systems
and concrete patterns of normative ordering. An overview at the close of the
decade declared, ‘Legal pluralism is a central theme in the reconceptualization
of the law/society relation.’1Thereafter the notion continued to travel. In the
past decade, ‘legal pluralism has become a standard fare in international and
comparative law circles.’2
Jurisprudence is the latest field to take up legal pluralism. In Pursuit of Pluralist
Jurisprudence, edited by Nicole Roughan and Andrew Halpin, is a collection of
essays on the topic by a stellar cast of jurisprudents. Two years earlier came Con-
cepts of Law: Comparative, Jurisprudential, and Social Scientific Perspectives,edited
by Sean Donlan and Lukas Urscheler. Recent theoretical monographs examin-
ing legal pluralism include N. Roughan, Authorities: Conflicts, Cooperation, and
Transnational Legal Theory (2013), K. Culver and M. Giudice, Legality’s Borders:
An Essay in General Jurisprudence (2010), D. von Daniels, The Concept of Law from
a Transnational Perspective (2010), E. Melissaris, Ubiquitous Law: Legal Theory and
the Space for Legal Pluralism (2009), W. Twining, General Jurisprudence (2009),
∗John S. Lehmann University Professor, Washington University School of Law. I thank Michael
Lobban, Nicole Roughan, and Andrew Halpin for critical comments on earlier drafts. I also thank
the European University Institute for a Fernand Braudel Senior Fellowship, which supported my
research on this piece.
1 S. Engle Merry, ‘Legal Pluralism’ (1988) 22 Law & Society Review 869.
2 C. Valcke, ‘Three Perils of Legal Pluralism’ in S.P. Donlan and L. Heckendorn Urscheler (eds),
Concepts of Law: Comparative, Jurisprudential, and Social Scientific Perspectives (Farnham: Ashgate,
2015) 123.
C2019 The Author. The Modern Law Review C2019 The Modern Law Review Limited. (2019) 82(1) MLR 159–179
Published by JohnWiley & Sons Ltd, 9600 Garsington Road, Oxford OX4 2DQ, UK and 101 Station Landing, Medford, MA 02155, USA
The Promise and Conundrums of Pluralist Jurisprudence
and my A General Jurisprudence of Law and Society (2001). Articles and essays by
jurisprudents on legal pluralism are also rapidly multiplying.
A fresh breeze is sweeping through legal theory, shaking old verities and
opening new vistas. The ‘exclusive concentration on state law was, it now
turns out, never justified, and is even less justified today,’ Joseph Raz declared
in the volume under review (161). Bringing theoretical attention to bear on
multiple forms of law unsettles everything. ‘Instead of law we have laws, instead
of methodology we have methodologies, and even plurality itself is observed
and analyzed pluralistically,’ write Roughan and Halpin (331).
The publication of In Pursuit of Pluralist Jurisprudence provides an occasion to
convey key insights offered by legal pluralism and to expose confusions that
threaten to impede fruitful engagement by jurisprudents. Two major sources of
confusion bear mention at the outset. First, legal pluralism encompasses three
distinct clusters of ideas, blurred together by the same label and repeated nar-
ratives that portray them as continuous, though the differences are substantial.
I label them manifest legal pluralism, sociological legal pluralism, and suprana-
tional legal pluralism. Second, analyses of legal pluralism have been dominated
by theoretical groundwork articulated in ‘What is Legal Pluralism?’ by John
Griffiths; while he later repudiated his core position owing to insurmountable
conceptual flaws, it continues to shape and distort the discussion. Unpacking
these sources of confusion will facilitate the jurisprudential analysis of legal
pluralism.
WHY PURSUE ‘PLURALIST JURISPRUDENCE’?
The proposal for a ‘pluralist jurisprudence’ prompts two threshold questions.
Roughan and Halpin present ‘pluralist jurisprudence’ in negative terms – as
the antipode to traditional ‘monist jurisprudence’ centered on state law:
In these simple terms, traditional jurisprudence is municipal or state-centr ic ju-
risprudence. Even if it touches upon international law,it does so from a state-centric
Westphalian perspective of viewing international law through the agency or author-
ity of states. It remains, in that sense, monist. By contrast, pluralist jurisprudence
involves the recognition of non-state law in a way that is independent of both the
agency and the authority of the state (3).
Using the term legal centralism, the same basic contrast was drawn by John
Griffiths in ‘What is Legal Pluralism?’ He criticised legal theor ists – Kelsen,
Hart, Austin, and others – for perpetuating an ‘ideology of legal centralism’
that assumes state law is the primary and exclusive form of law.3
A central objective of a descriptive concept of legal pluralism is therefore destruc-
tive: to break the stranglehold of the idea that what law is, is a single, unified and
exclusive hierarchical normative ordering depending from the power of the state,
3 J. Griffiths, ‘What is Legal Pluralism?’ (1986) 24 Journal of Legal Pluralism 1, 3-4.
160 C2019 The Author. The Modern Law Review C2019 The Modern Law Review Limited.
(2019) 82(1) MLR 159–179
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