The Failure of Legal Pluralism

Abstract

Concerns about legal pluralism, the co-existence of more than one legal system within a state, have become pronounced in recent years, owing to fears about the operation of sharia law in Western societies. At the same time, the concept of legal pluralism has become ubiquitous within legal literature. Paradoxically, the concept is both politically controversial and academically banal. This article contends that a major failing of the concept of legal pluralism has been the inability to distinguish legal norms from other forms of social control. It is suggested that this failure can be overcome by developing the concept of a ‘legal order’ as found in the work of Maleiha Malik and the understanding of law as discourse in the work of the German theorists Niklas Luhmann and Robert Alexy. It is argued that developing these approaches provides a means by which legal norms can be distinguished without adopting either a wholly objective or a completely subjective approach and without focusing exclusively upon the legal norms generated by the state.