SYMPOSIUM--LAW AND CIVIL SOCIETY: PART I: GENERAL THEMES: ARTICLE: METAPHORS OF MULTIPLICITY: CIVIL SOCIETY, REGIMES AND LEGAL PLURALISM*
15 Ariz. J. Int'l & Comp. Law 69
Roderick A. Macdonald
. . .
B. Modeling Legal Pluralism
Legal pluralism is the alternative image of law and legal normativity that I should like to sketch here. It is, like any other definitional image, a hypothesis. For this reason, two caveats need immediately to be entered. First, while an alternative to mainstream views, legal pluralism is really not novel. Until the seventeenth century in Europe the idea of a territorial State (later associated more with blood than with geography in the phrase "nation-state") claiming an exclusive capacity to regulate everyday activity would have been thought bizarre. n17 Neither the Romans (with, inter alia, their conceptions of jus civile and jus gentium) n18 nor the medieval kings of England (who tolerated both customary law of the realm and [*75] of localities, and divergent manorial, ecclesiastical and mercantile legal systems) claimed a monopoly on law and normativity. n19 What is more, even into the nineteenth century, the legal and political elites of England and France, for example, did not see law as singular. n20 That is, only with codification on the continent and with the Judicature Acts in common law jurisdictions did the image of a single, State-managed legal system begin to emerge.
But dominant discourse at any given time typically seeks to rewrite history. Because we now think that we have such a single, state-managed legal system we imagine legal evolution as necessarily leading to this outcome. The project of formation of national law by codification, legislation, judicial integration, treatise writing, corporatization of the legal professions, jurisdictional legal education and the publicization and localization of private law nicely coincided with reformist and democratizing political ideologies that sought to universalize law. n21
Nonetheless, the project of uniform national law remains still that-an unrealized project. Countercurrents abound. The story of domestic resistance to legal monism has yet to be written, although its traces are everywhere. n22 By contrast, the story of non-domestic resistance to monism is now relatively well-known. Legal anthropologists have well excavated the terrain of competing legalities. To date, however, legal pluralism has tended to focus either on the exotic (colonialism, n23 gypsies n24 ) or the pathological (the underground garment trade [*76] in New York, n25 the ghetto, n26 the favellas n27 ). Only slowly is the historical pedigree of legal pluralism being rediscovered; only slowly is the age of the new being appreciated. n28 So, in exploring legal pluralism as a so-called paradigm shift, one is not engaged in any polemical post-modern project; one is, rather, remembering as much as constructing. n29
The second caveat goes to the meaning of the word pluralism itself. There is a great risk in using the word pluralism in an audience of lawyers and political scientists because it immediately conjures up Robert Dahl's model of democratic institutions. n30 Legal pluralism actually rests on almost the opposite intellectual presuppositions to political pluralism. n31 Far from simply acknowledging ethno-cultural pluralism as a social fact and designing political institutions dependent upon a concept of abstract citizenship to accommodate it within a monist legal-political order, legal pluralism is a radically heterogeneous concept. The plurality is not just of citizens; it is a plurality of legal orders as well-each operative within the same social space and each one of which exists independently of the others. n32 It is as if a political scientist were to deflect attention from the State as the exclusive institution of the polis, and reconceive the polis as an infinite number of overlapping incommensurable societies each competing for the loyalty of its citizens. It is as if an economist were to abandon the one big market and focus attention on the multiple competing little markets to which each one of us devotes considerable energy in our daily lives.
[77] Legal pluralists posit a multiplicity of legal orders in every society. Different social milieux, they argue, give citizens the occasion to create and negotiate their own normative standards to shape and symbolize social behaviour and their own institutions to reinforce or apply these standards. n33 Even the simplest legal regimes are constituted by a plurality of decision-making institutions, distributive criteria and cultural traditions. State-sponsored normative standards do not function in a naively instrumental way, as exogenous variables acting upon a passive society and changing behaviour directly by offering rewards for, or placing sanctions upon, certain conduct. Different legal regimes are in constant interaction, mutually influencing the emergence of each other's rules, processes and institutions. The structures and trajectories of interaction as between these multiple legal orders are varied and unpredictable. Conversely, to understand the role that State law actually plays in a given social field, it is necessary to understand the character and operation of multiple regimes of unofficial law in the same field.
Some legal pluralists also note the diversity of norms, processes and institutions within normative systems. n34 Explicitly announced legal rules (fashioned by whatever type of political or social law-making institution that may exist in a given society) are not the only vehicles of normativity; these legislative artefacts complement a variety of indigenous and customary rules, practices and purely implicit interactional expectancies. Conceptions of justice also are infinitely plural, even within relatively organized institutional settings. Furthermore, normativity cannot be equated with institutional organization (especially with the specialized office of law-application--courts), but is secreted in patterns of deference and contestation to tacit (and occasionally, virtual) claims of authority. Processes of human interaction are infinitely more varied than those suggested by a myth of law that gives priority to legislatively announced claims of right and judicial adjudication of these rights. Finally, because families, cultural communities, workplaces, neighbourhoods, bureaucratic organizations, commercial enterprises and an almost infinite variety of other locations of human interaction are seen as sites of legal regulation, the root conceptions of normative interaction within and among them must themselves be plural.
Sometimes this interaction will claim itself to be autonomous, like that postulated in the conflict of laws. n35 Sometimes it will be multijural, like that postulated by autopoetic theories of informational openness and operational [*78] closure. n36 Sometimes it will be jurisdictional, like that postulated in the theory of institutional competence as between courts and administrative tribunals. n37 In brief, legal pluralists claim that their image of multiplicity can illumine every facet of legal symbolization. n38
This image of pervasive pluralism has not, however, gone unchallenged; nor has the hypothesis of legal pluralism captured the imagination of mainstream legal theorists. For some, the objection is overtly political: legal pluralism undermines respect for the Rule of Law. n39 They argue that without a systematic, integrated, unitary set of legal prescriptions, normative conflict is inevitable and official action cannot be subjected to the censure of controlling constitutional and jurisdictional norms. But this is simply to misconceive the intellectual point of legal pluralism. Hypothesizing legal pluralism as a metaphor of multiplicity offers, by contrast with the metaphors of regimes n40 and civil society, n41 a means to ask the central questions of positive legal analysis across a broader range of normative activity.
These questions are three: (1) how is the exercise of power legitimated and what are the institutional forms and criteria of legitimation? (2) what are the principles of social ordering and what are the diverse criteria of procedural due process appropriate to each? (3) what are the criteria of substantive justice appropriate to these multiple institutional forms and processes of social ordering? There is also an ideological point to legal pluralism. It is to undercut the hierarchy of normative orders based on some source-based criterion, and to valorize otherwise suppressed normative orders and normative discourses. n42 Paradoxically, by according these other discourses a similar symbolic and instrumental power to [*79] that of State legal discourse, the ideal of the Rule of Law is promoted, not undermined.
Let me conclude this first section by summarily tracing out some of the implications of legal pluralism for the way in which this colloquium has been imagined. Because the theory of legal pluralism denies the local hegemony of national legal orders and argues for multiple, overlapping, often non-geographically defined legal systems, it opens inquiry into the impact of often conflicting implicit normative frameworks. Legal pluralism presupposes the possibility of transnational coordination without establishing new formalized and explicit regimes to impose an international normative hierarchy.
More importantly, the theory of legal pluralism raises the hypothesis that non-conforming behaviour in any particular regime is not simply a failure of enforcement or civil disobedience. It may be the reflexion of an alternative conception of legal normativity. That being the case, the legal pluralistic analysis presumes that inquiries about legitimacy, due process, and substantive justification are as present and appropriate in each of these informal regimes as they are in respect of more formal regimes.
Finally, the theory of legal pluralism leads to inquiry into why so much effort is devoted to imagining formal structures, formal avenues for the transnational production of explicit standards and formal processes of transnational dispute settlement. Legal pluralism asks whether more energy ought to be directed to informal processes, implicit standards and horizontal processes for dispute resolution. The issue is not so much one of constructing new "quasi-official" regimes as it is recognizing those regimes that exist already.
. . .
n17 Modern international relations theory associates the idea of the nation-state with the Peace of Westphalia, although, as Montesquieu observed, it can also be traced to enlightenment ideas about the capacities of human rationality in matters political. See, e.g., J. CAPORASO & D. LEVINE, THEORIES OF POLITICAL ECONOMY (Cambridge University Press 1992); D. HELD, POLITICAL THEORY TODAY (Stanford University Press 1991). For Montesquieu's perspective, see C. L. MONTESQUIEU, DE L'ESPRIT DES LOIS 128 (Lefevre 1826).
n18 See B. NICHOLAS, AN INTRODUCTION TO ROMAN LAW 1-59 (Oxford University Press 1962).
n19 See J. H. BAKER, AN INTRODUCTION TO ENGLISH LEGAL HISTORY 1-116 (Butterworths 1979).
n20 See the overview presented in R. DAVID & J. E. C. BRIERLEY, MAJOR LEGAL SYSTEMS IN THE WORLD TODAY 59-69 (Stevens 3d ed. 1985) for the Civil law tradition, and at 306-14 for the Common law tradition.
n21 On the intellectual history reviewed in the previous two paragraphs and on the dominant discourses of late 20th century legal analysis see generally, R. A. Macdonald, Recommissioning Law Reform, 37 ALTA. L. REV. 580 (1997). See also P. FITZPATRICK, THE MYTHOLOGY OF MODERN LAW (Oxford University Press 1995).
n22 For theoretical explanations, see Merry, supra note 1; Teubner, supra note 1; R. A. MACDONALD, PROSPECTS FOR CIVIL JUSTICE (Ontario Law Reform Commission 1995). A detailed empirical study of the phenomenon is reported in a series of studies by S. C. McGuire and R. A. Macdonald. See S. C. McGuire & R. A. Macdonald, Judicial Scripts in the Dramaturgy of Montreal's Small Claims Court, 11 CAN. J. L. SOC'Y 63 (1996); S. C. McGuire & R. A. Macdonald, Small Claims Courts Cant, 34 OSGOODE HALL L. J. 509 (1996); S. C. McGuire & R. A. Macdonald, Tales of Wows and Woes From the Masters and the Muddled: Navigating Small Claims Court Narratives, 12 WINDSOR YEARBOOK OF ACCESS TO JUSTICE (forthcoming 1997).
n23 See, e.g., A. CESAIRE, DISCOURS SUR LE COLONIALISME (Presence Africaine 1955); L. W. PYE, ASPECTS OF POLITICAL DEVELOPMENT (Little Brown 1966); G. R. Woodman, Some Realism About Customary Law-The West African Experience, 1969 WIS. L. REV. 128.
n24 See O. Weyrauch & M. Bell, Autonomous Lawmaking: the Case of the 'Gypsies', 103 YALE L. J. 323 (1991).
n25 See, e.g., S. F. Moore, Law and Social Change: The Semi-autonomous Social Field as an Appropriate Subject of Study, in S. F. MOORE, LAW AS PROCESS: AN ANTHROPOLOGICAL APPROACH (Routledge & Kegan Paul 1978).
n26 See, e.g., J. AUERBACH, JUSTICE WITHOUT LAW? (Oxford University Press 1983).
n27 See Boaventura de Sousa Santos, The Law of the Oppressed: The Construction and Reproduction of Legality in Pasargada, 12 LAW & SOC'Y REV. 5 (1977).
n28 Explicit consideration of the legal pluralistic insight dates from at least Montesquieu. See MONTESQUIEU, supra note 17, at 128. "La loi, en general, est la raison humaine, en tant qu'elle gouverne tous les peuples de la terre; et les lois politiques et civiles de chaque nation ne doivent etre que des cas particuliers ou s'applique cette raison humaine." Id. In the early 20th century see G. SANTI ROMANO, L'ORDRE JURIDIQUE (L. Francois & P. Gothiot trans., Dalloz 1975) (original Italian version published as L'ordinamento giuridico in 1915). See also G. GURVITCH, THE SOCIOLOGY OF LAW (Routledge & Kegan Paul 1942) (first published as Elements de sociologie juridique in 1940).
n29 For an evocative example, see J. Vanderlinden, Acadie: A la rencontre de l'histoire du droit avant le derangement, 23 MANITOBA L. J. 146 (1995).
n30 See R. DAHL, A PREFACE TO DEMOCRATIC THEORY (University of Chicago Press 1956); R. DAHL, DILEMMAS OF PLURALIST DEMOCRACY: AUTONOMY AND CONTROL (Yale University Press 1986).
n31 See BOAVENTURA DE SOUSA SANTOS, TOWARD A NEW COMMON SENSE (Routledge 1995).
n32 For an elaboration of this classical understanding, see Griffiths, supra, note 1.
n33 See, e.g., G. R. Woodman, Legal Pluralism and Justice, 40 J. AFR. L. 152 (1996).
n34 Of course, the most famous famous proponent of this type of legal pluralism was Lon Fuller. See THE PRINCIPLES OF SOCIAL ORDER: SELECTED ESSAYS OF LON. L. FULLER (K. Winston ed., Duke University Press 1983); LON FULLER, THE MORALITY OF LAW ch. III (Yale University Press 2d ed. 1969).
n35 See generally L. BRILMAYER, CONFLICT OF LAWS: FOUNDATIONS AND FUTURE DIRECTIONS 1-2 (Little, Brown and Company 1991).
n36 See Teubner, supra note 1.
n37 On the latter type of State pluralism see, notably, ARTHURS, supra note 6.
n38 For a more complete examination of this theme, see R.A. Macdonald, Les Vieilles Gardes. Hypotheses sur l'emergence des normes, l'internormativite et le desordre a travers une typologie des institutions normatives, in LE DROIT SOLUBLE: CONTRIBUTIONS QUEBECOISES A L'ETUDE DE L'INTERNORMATIVITE 233 (J. G. Belley ed., 1996).
n39 This is essentially the point argued by J. P. B. Josselin de Jong, Customary Law: A Confusing Fiction, in A. D. RENTELN & A. DUNDES, FOLK LAW: ESSAYS IN THE THEORY AND PRACTICE OF 'LEX NON SCRIPTA' 111 (Garland Publishing 1994).
n40 See J. G. Ruggie, International Regimes, Transactions, and Change: Embedded Liberalism in the Postwar Economic Order, in INTERNATIONAL REGIMES 195 (S. D. Krasner ed., Cornell University Press 1983), for a conventional "regime analysis" that illustrates the positivity of regime analysis.
n41 For a useful compendium of thinking about the civil society metaphor that shows that the concept is inevitably parasitic on conceptions of the political state, see A. SELIGMAN, THE IDEA OF CIVIL SOCIETY (Maxwell Macmillan International 1992); CIVIL SOCIETY: THEORY, HISTORY, COMPARISON (J. Hall ed., Polity Press 1995).
n42 See generally Merry, supra note 1, at 890. "[Legal pluralism] . . . provides a framework for understanding the dynamics of the imposition of law and of resistance to law" and again "attention to plural orders examines limits to the ideological power of state law." Id.