The Folly of the 'Social Scientific' Concept of Legal Pluralism

Abstract

Despite its relatively recent origin about two decades ago, the concept of legal pluralism bears the marks of approaching ensconced establishment maturity. There is the Commission on Folk Law and Legal Pluralism, with a registered membership list that reads like the honour roll of living legal anthropologists; there are biennial international conferences; there is a growing number of published symposia; and, the ultimate sign of academic acceptance, there is the Journal of Legal Pluralism, born out of a 1981 name-change of the old Journal of African Law Studies. Consistent with these indicia, legal pluralism is one of the dominant concepts in the field of legal anthropology. Moreover, it has been claimed, 'legal pluralism can be seen as the key concept in a postmodern view of law'.' In this essay I will critically examine this precociously successful doctrine. Thus far there has been scant detailed analysis of the concept of legal pluralism, limited to a handful of articles written by a small circle of scholars. Nonetheless, through the academic practice of repetitive citation and crosscitation, a burgeoning body of legal pluralist works increasingly treats the concept as if it were well established, its basic tenets worked out and now taken for granted.2 I will argue otherwise. The thesis of this essay is that the concept of legal pluralism is constructed upon an unstable analytical foundation which will ultimately lead to its demise. I will begin with a review of the concept of legal pluralism, emphasizing the implications of the inability of legal pluralists to locate an agreed definition of 'law'. I will set out and evaluate the stated objectives of legal pluralists. I will indicate why no attempt to formulate a single scientific or cross-cultural definition of law can succeed. I will suggest an account of the historical development of legal pluralism in order to offer an explanation of how the concept originated and why it has thrived despite its flaws. Finally, I will argue that legal pluralists have built a fundamental ambiguity into their