State Legal Pluralism and Religious Courts

Abstract

Abstract In a seminal 1986 article, John Griffiths argues that state legal pluralism, as opposed to state/nonstate legal pluralism, is “weak” legal pluralism. State legal pluralism refers to the coexistence of and interaction of distinctive legal systems which are nonetheless administered by the state; that is, the coexistence of state-state laws or official-official laws. It is juxtaposed against “strong” legal pluralism, which involves the coexistence within a social group of legal orders which do not belong to a single “system.” It has been argued that state legal pluralism is “weak” because it ultimately adheres to the basic ideology of legal centralism. This suggests that state legal pluralism is ultimately controlled by the dynamics of unification and subordination. This chapter suggests that the reality may be far more complex. While institutions such as religious courts operate within the context of state legal pluralism and could indeed be co-opted into the state system, once they are formalized as state bodies, they attain normative and institutional resources to operate according to norms that are not always and not exhaustively derived from state law. Furthermore, empirically speaking, even where conceived as functioning within a setup of legal uniformity under the state, religious courts can retain and even develop their own social logic, such that the relationship between the two forums becomes more fluid and contingent. Accordingly, there is good reason to examine and theorize state legal pluralism more deeply. This chapter uses the context of plurinational courts, involving religious and nonreligious courts, to show how institutions within state legal pluralism are able to resist the legal centralist impetus of monism, statism, and positivism. Indeed, it is argued that, contrary to what is sometimes assumed, such state religious courts can and do operate “semi-autonomously.” Lastly, having provided a (hopefully) credible defense for stronger engagement with state legal pluralism, the chapter examines two jurisdictional schemes to manage jurisdictional overlap.