The Promise and Conundrums of Pluralist Jurisprudence

Abstract

Legal pluralism involves the proposition that more than one manifestation of law exists in many social arenas. The legal pluralist paradigm is propagating across academic fields. In the 1970s, jurists and legal anthropologists working in colonial and post-colonial societies wrote about the coexistence of state law in various relationships with customary law, religious law, and indigenous law. The paradigm was taken in a different direction in the 1980s when a group of sociologically oriented jurists argued pervasive legal pluralism exists in all societies, now identifying law in terms of institutionalized rule systems and concrete patterns of normative ordering. An overview at the close of the decade declared, ‘Legal pluralism is a central theme in the reconceptualization of the law/society relation.’ Thereafter the notion continued to travel. In the past decade, ‘legal pluralism has become a standard fare in international and comparative law circles.’ Jurisprudence is the latest field to take up legal pluralism. In Pursuit of Pluralist Jurisprudence (2017), edited by Nicole Roughan and Andrew Halpin, is a collection of essays on the topic by a stellar cast of jurisprudents. A fresh breeze is sweeping through legal theory, shaking old verities, opening new vistas. The ‘exclusive concentration on state law was, it now turns out, never justified, and is even less justified today,’ Joseph Raz declared in this volume. Bringing theoretical attention to bear on multiple forms of law unsettles everything. ‘Instead of law we have laws, instead of methodology we have methodologies, and even plurality itself is observed and analyzed pluralistically,’ write Roughan and Halpin. The publication of In Pursuit of Pluralist Jurisprudence provides an occasion to convey key insights offered by legal pluralism and to expose confusions that threaten to impede fruitful engagement by jurisprudents. There are two major sources of confusion. First, legal pluralism encompasses three distinct clusters of ideas, blurred together by the same label and repeated narratives that portray them as continuous, though the differences are substantial. I label them manifest legal pluralism, sociological legal pluralism, and supranational legal pluralism. Second, analyses of legal pluralism have been dominated by theoretical groundwork articulated in ‘What is Legal Pluralism?’ by John Griffiths; though he later repudiated his core position owing to insurmountable conceptual flaws, it continues to shape and distort the discussion. Unpacking these sources of confusion will facilitate the jurisprudential analysis of legal pluralism. The topics covered in this essay are: Why Pursue Pluralism Jurisprudence?; Manifest Legal Pluralism; Sociological Legal Pluralism; Supranational Legal Pluralism; Promise and Conundrums of Pluralist Jurisprudence.