Comment on Merry

Abstract

Merry's comprehensive review shows us how studies of plural normative orderings during the past twenty-five years have greatly enriched our understanding of the complexity of normative structures, their interdependence and the ways in which these structures are involved in human agency. At the same time her review illustrates how little conceptual progress has been made. We do not have a more acute understanding nor a refined conceptual usage of the terms normative order, or pluralism. In a way this is reassuring. It tells us that stimulating new research and methodological approaches can be developed without giving much thought to these conceptual problems. The best historical writings in legal pluralism in colonial societies, such as the Dutch studies on Indonesian societies, did not excessively ponder whether the local normative systems should or should not be called law. The neo-classicists of legal pluralism such as Macaulay (1963) and Moore (1973) explicitly did not present their data as legal pluralism, and when Galanter (1981) tells us about indigenous law in western societies he does not make much fuss about it. Yet I do think that more conceptual clarity is desirable. Legalistic ideology has not yet been fully banned from the research methodology of sociolegal studies. Ideological bias is not barred from methodology by simply calling non-state normative systems law. Most studies in legal or normative pluralism, whatever their definition of law may be, still tend to recognize only a limited number of contexts in which the reproduction of elements from the legal system is really a legal process. Typically, it is judges (or other representatives of the state, by preference of the judicial apparatus), or more generally legal authorities, whose activity make the process legal. Reproduction of state law by ordinary citizens is not considered legal. This thinking is deeply ingrained in the methodology of sociolegal scholars (K. von Benda-Beckmann 1984: 103-107); it also colors the analyses of the creation of customary law, to which Merry refers (F. von Benda-Beckmann, 1984). Descriptions of normative systems should include their ideologies, their claims to exclusive validity and to the monopoly of legitimate power, etc., as empirical phenomena. It is here that we encounter the ideology of legal centralism as the folk system of state officials and legal scientists. We may find similar legal ideologies in religious law or folk legal systems. But we may also find situa-