Legal Pluralism: Freedom of Religion, Exemptions and the Equality of Citizens

Abstract

One simple definition of legal pluralism is that it concerns the development of different legal traditions or legal sources within a single sovereign jurisdiction. It is often seen therefore to be a challenge to legal centralism or the thesis that the sovereign state has a monopoly over law making to the exclusion of all other sources. It is helpful to make a distinction between ‘weak legal pluralism’ and ‘strong legal pluralism’. The former refers to a situation where there may be various institutions at the central level of government or jurisdictions covering different regions or communities, which nevertheless remain under the hierarchical oversight and control by a state or empire. The latter refers to legal orders that govern over peoples but are not part of a single, hierarchical and integrated system. In short the weak-strong notion describes the degree of delegated legal authority to social groups, communities and institutions. The underlying question behind both forms is the issue of state sovereignty. Critics of legal pluralism regard the development as a threat to the sovereignty of the state and the coherence of a society. By contrast, it is possible to see legal pluralism as the natural companion of political liberalism allowing peoples and their institutions some protection from centralized authoritarian rule and in that regard legal pluralism is sometimes associated with the right of resistance against tyrannical powers. One historical issue in the debate about legal pluralism is its presence in empires such as the Ottoman Empire and attempts to control or eliminate legal pluralism during the rise of the nation state.