Beyond pluralism: a descriptive approach to non-state law

Abstract

ABSTRACT The concept of legal pluralism has been used widely in legal scholarship to draw attention to the existence of multiple legal orders. Scholars have relied upon it to avoid the ideology of legal centralism, to counter colonialism, and to highlight the neglect of Indigenous laws. These are ameliorative approaches, which aim to expand the concept of law for particular purposes. But it is not clear that they help to explain what law is and does. In this article, I contrast these normative and critical projects with analytic and descriptive approaches to the concept of law. Descriptive conceptual analysis, using empirical examples to enhance the insights of legal theorists, can better shed light on what is distinctive about law as a social form. The article illustrates this approach with a number of historical and anthropological examples. This leads us, I suggest, to form rather than function, that is, to the quality of legalism. The creation and use of general rules and abstract categories, that is, usefully distinguishes law, as a category that encompasses both state and non-state forms, from the wider class of norms encompassed by the expansive theories of the legal pluralists.