State law and legal pluralism: towards an appraisal

Abstract

Is plurality within state law a case of legal pluralism? The traditional canon on legal pluralism cannot come to a consensus on the matter. Those who do not consider plurality within state law a case of legal pluralism argue that it yet privileges an ideology of legal centralism. This formalist and positivist legal theory is anathema to a realist conception of the law that privileges law’s complex social orderings beyond the state. This controversy has produced an analytical stalemate in the field and obscured our understanding of plural legal systems – a ubiquitous feature of legal administration across the world. Reviewing extant scholarship, this paper argues that literature on legal pluralism need to be more critical of the state and to develop an explicit legal theory of political process. This challenges the Austinian notion that state law is derived from an ultimate sovereign and to reveal how state law is a site of intense competition among multiple power brokers.