Legal Pluralism, State Sovereignty, and Citizenship

Abstract

Early British colonialism was originally driven by the pragmatic trading needs of the East India Company, which only interfered with local custom and tradition in the interests of company profit. To some extent subsequent British governments adopted similar policies, and this strategy partly explains why postcolonial states such as Singapore, Malaysia, and most African states have always had legal pluralism. In many postcolonial societies in the late twentieth century, there was a political drive by indigenous peoples for customary law, and hence the principle of the unitary sovereign state was, at least in Latin America, weakened. In the contemporary situation, the prospect of accepting Shari'a in many European and North American societies has been rejected on precisely the issue of sovereignty, despite the fact that, for example, religious courts (both Jewish and Muslim) have often operated in such societies. The recent protest against the Archbishop of Canterbury's public lecture1 is an obvious example. This article argues that acceptance of religious law (of any variety) in the public domain can only work on the basis of strict secularization (the state's religious neutrality) and on the enforcement of gender equality. However, if accepting religious law means in practice accepting third-party arbitration, then legal pluralism is not a direct threat to state sovereignty. In the United States, tribunals are not uncommon features of the legal system, and military tribunals have regularly been used to try enemy combatants. Furthermore, with the Internet some degree of informal but popular arbitration takes place between individuals in ways that are compatible with Shari'a as a consensus-seeking legal tradition. In a broader framework, however, the decline in direct personal taxation, the disappearance of conscription, and the growth of legal pluralism (within the framework of the nation-state) does imply both the development of a postnational and weaker state, as well as the erosion of citizenship. We need to be worried about both.