Does Legal Theory Have a Pluralism Problem?

Abstract

Abstract Legal theory has been criticized by legal pluralists on the grounds that it has a “pluralism problem.” In a nutshell, legal theory’s pluralism problem stems from the fact that it explicitly or implicitly assumes the model of state law whenever it refers to law. This is problematic both because such a state-based conception of law fails to capture myriad nonstate forms of law existing in different contexts and because it runs the risk of supporting oppression in postcolonial contexts where indigenous laws are pushed out by colonial laws which conform to the (state-based) legal theoretical paradigm. This chapter focuses on the former, analytical, limb of legal theory’s pluralism problem by breaking the problem down into three specific claims; two which pluralists argue legal theory defends: a strong claim—that all law is necessarily state law; an intermediate claim—that state law is a paradigmatic or the “best” form of law; and one made by pluralists about legal theory: a weak claim that legal theory has unwarrantedly neglected nonstate forms of law. It analyzes each claim in turn reviewing the relevant claims in legal theory. It concludes that if legal theory does have a pluralism problem, and the analysis undertaken in this chapter suggests that it might in some respects, it is not a particularly profound one. As such, much of the resources of legal theory can be adopted to capture a wide variety of both extant and new emergent forms of nonstate law.