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Law in Modern Society$

Denis Galligan

Print publication date: 2006

Print ISBN-13: 9780199291830

Published to Oxford Scholarship Online: March 2012

DOI: 10.1093/acprof:oso/9780199291830.001.0001

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Legal Pluralism: Parallel Legal Orders

Legal Pluralism: Parallel Legal Orders

Chapter:
9 Legal Pluralism: Parallel Legal Orders
Source:
Law in Modern Society
Author(s):

D. J. GALLIGAN

Publisher:
Oxford University Press
DOI:10.1093/acprof:oso/9780199291830.003.0010

Abstract and Keywords

Through history, it could be observed that there are other kinds of law that have been influential in no small part on the formation of modern law. Such laws like Church laws and customary laws however, are, in a way, demoted to subordinate positions. International law — a fusion of customs and practices that nation states and conventions came up with and comply with — is the only form of non-state law in the ascendary. This kind of law has become the basis for international legal standards for a wide range of themes and subject matters. State law, on the other hand, can be viewed through both a descending thesis of government, and an ascending thesis of government. This chapter further explains legal pluralism as a reaction to state law that runs parallel with state law. Also, this chapter discusses how other legal orders may seem parallel and intersecting with each other.

Keywords:   legal pluralism, parallel laws, intersecting laws, state law, legal orders, international law

(p.158) 9.1 Dominance of State Law

In modern legal systems, law means the law made and applied by the state through its officials and agencies. Other kinds of law have been influential in the formation of modern law but, having served their historical role, are relegated to subordinate positions. The law of the Roman Catholic Church once ran parallel to secular orders, being in some respects superior to them; it also contributed to the development of ideas and institutions on which modern legal orders are based. Its influence in western societies has long since waned, with Church law surviving in the sense that the Church makes and enforces rules for its members on matters of religion, in the way that any religious or secular association is entitled to, provided they operate within the boundaries set by state law. Roman law was a point of reference in medieval European states even though it was not incorporated into their local legal systems. In numerous non-western societies, religious law continues to operate across territorial boundaries in a manner similar to that of the early and medieval western Church. Customary law remains a worthwhile object of study because of its role in the formation of modern legal orders, and in displaying rather starkly the bond between law and social relations. It continues to have a place in societies that are traditional or in transition to being modern, creating in the process complex relations between customary law and state law. As societies modernize, the role of custom as a source of law reduces until finally it is either subsumed into state law or transformed into social conventions and practices lacking the force of law.

The one form of non-state law in the ascendancy is international law, which is a mixture of the customs and practices among nation states and conventions devised and adopted by them. International law is in the ascendancy in that the international order has become a fecund source of legal standards on a range of matters, among which human rights are prominent. Its practical efficacy depends on nation states agreeing to the covenant, incorporating it into their own legal orders, and then providing (p.159) suitable implementation. The rise of international law does not signal the end of nation states and national legal orders, as some predict, since its practical efficacy is largely dependent upon states. The recognition of its legitimacy, and the reality of its influence, are features of modern legal orders, which acknowledge its importance, both as a source of universal standards and as a restraint on the legislative licence of nation states. Global Law is not to be confused with international law, which some see as an emerging legal order separate from both national and international law. The precise character of global law remains elusive and its existence uncertain; it is said to arise from practices, particularly in commercial transactions, that generate standards considered by those engaged in them to be binding. It is best regarded a type of informal law and more is said about it in the next chapter on extended legal pluralism.

State law is neither simple nor straight-forward and is open to being perceived in different ways. In one view, its distinctiveness lies in its rules being made and enforced by sets of officials, and by its superiority over competing sets of rules. Sovereign authority resides in the nation-state and, while it is neutral as to the form of government exercising sovereignty, it has tended historically to be associated with imperial or monarchical power. The legacy of that association is one of suspicion of sovereign authority and its laws, which in its modern form is deepened by the claims of sovereign bodies to the right to legislate on any matter they please, to an extent beyond the imagination of the most autocratic medieval monarch, and often regardless of the wishes of the people. The legal apparatus of the state is a mighty instrument for control and regulation which, even in democracies, tends to become divorced from the people and unstoppable in its momentum. Campaigns waged for a smaller state and less law soon founder in the face of real power and the inexhaustible demand for more law rather than less. The state and its legal apparatus have come to be seen by some as intruders on modern sensibilities, an unreconstructed leftover from the past whose demise, although welcome, is unlikely. This image of the state and sovereign authority identifies most readily with a descending thesis of government, as Walter Ullmann has called it, according to which power is located in a supreme being who delegates it to human societies through kings and emperors.1 Power flows from the divine to the secular; kings receive what God gives them while the people depend on kings for what they have. Like the little dogs often depicted under the medieval banqueting table, hoping for scraps (p.160) while avoiding the boot, so the people are grateful for whatever flows from the king’s benevolence, while ready to cower from his capricious malevolence.

The alternative image begins at the opposite end: here power originates with the people who elect a king or a parliament and determine the powers they are to have, for they have only those powers the people give them and for the use of which they are accountable to the people.2 This ascending thesis of government has competed with its rival and won, becoming in the process an essential feature of modern legal orders. Its history can be traced philosophically through Aristotle, Aquinas, and their successors, while elements of Roman Law, the feudal law of England, and the legal orders of medieval Italian city states like Siena, have all influenced its jurisprudential foundations. There is more to be said historically to show how the ascending thesis has come to characterize modern legal orders, but it is enough for our present purpose to note that the framework of modern law, and the attitudes of officials and the people, makes sense only against this background. Modern constitutionalism is a direct result, as is the basic premise of public law that officials hold power under delegation from the legislature and, in turn, the people.

The ascending thesis also helps to counter the negative image of state law. Instead of being regarded as a powerful apparatus in the hands of autocrats and dictators, it is tied ultimately to the people. What is done by means of state law is done in their name, even if the relationship again summons up the image of a chain with many links in between the people and the state. This distance between citizens and state officials is also characteristic of a modern legal order, and however great the appeal of returning to a closer and more immediate relationship between the two, through such notions as deliberative democracy and communicative action, it is largely an impossible dream.3 Modern legal orders have a different and more practical response to the social reality of the state: while recognizing the force of Hart’s claim that having sets of officials with the capacity to change and execute the law is a major advance on pre-legal societies, modern legal orders also know of the natural tendency for officials, and therefore the law-making and law-application process, towards autonomy and separation from the people. There is no one remedy, no one way to curb that tendency; political strategies can be devised (p.161) and economic planning can help. Our concern is with the specific and distinctive legal contribution, which lies in public law, in developing a variety of legal doctrines and mechanisms, to ensure restraint and accountability, including standards, such as due process and reasonableness, and processes such as judicial review, the ombudsman, and parliamentary scrutiny. The process is not complete, even in societies which realize that the right response to the modern state is to regulate it not destroy it.

This goes some way towards accounting for the persistence of the modern state and its legal order, how it was able to achieve its dominant position to the point of eliminating rival legal orders, and why it is tolerated, even celebrated. But it is not enough; given its power and the difficulty of controlling it, there has to be more to its continuing dominance over other forms and sources of social control. The answer is found in the capacity of the modern legal order to achieve social goods that could not otherwise be achieved as efficiently and effectively Hence Hart’s claim that rules conferring powers on officials are comparable to the invention of the wheel: modern legal systems are indispensable because they are effective instruments in giving effect to the social relations at the foundation of modern societies. They add security to relations between persons, facilitate the provision of services and welfare, enable the regulation of one set of activities in order to achieve another set of social goods, and control the imposition of punishment. Just how state law contributes to each set of social goods is shown in chapter 12, our present interest being in the principle that modern legal systems are sustained and justified because they not only contribute to the survival of society, but provide the basis for achieving positive ends and goals. This is not to ignore or underestimate the dangers state legal orders pose: they often fall into the wrong hands, and even in the right hands easily get out of control. Bentham held the open publicity of official’s actions and constant vigilance by the people to be the remedy; modern societies have learnt the need to add an adequate legal and political order.4

9.2 From State Law to Legal Pluralism

Legal pluralism is, to some extent, a reaction to state law; but not wholly since it has two other sources. One is the recognition that, historically, other kinds of law ran parallel to state law; the other is the quite different (p.162) tradition of the anthropology of law. The different kinds of law include customary law, Church law, global law as a recent contender, and informal law as a term for what has some of the features of law without quite being law. Legal pluralism is a broad term to express the idea that a society often has a number of legal orders, of which state law is just one – an important one but not the only one. Where there is a multitude of legal orders, they should be studied in order to understand their place in society and their relationship with state law; their study could also increase our understanding of law by revealing aspects that are not present in state law.

Legal theorists make reference to law other than state law in order to elucidate the concept of law. Hart uses the contrast between a pre-legal customary society and a municipal legal system to highlight the particular character of the latter. He separated state law from natural law and gave an account of the difference between state and international law. Far from neglecting these senses of law, he explains how each differs from modern legal systems which, for him, were the central cases of law. In the law-and-society tradition, state law has been the centre of attention, although alternative legal orders have come into their own, the argument being that their study is essential to a full understanding of law in society. State law has never been the centre of attention for anthropologists, who have instead (usually) concentrated on traditional and customary communities, which tend to lack a state apparatus and the institutions and organizations of a modern legal system, but plainly have law. According to S. Falk Moore, the anthropological approach, while including state law, ‘also encompasses law-like activities and processes of establishing order in many other social domains, formal and informal, official and unofficial, in our own society and in others’.5

Legal pluralism is based on two ideas. One is that two or more legal orders can exist side-by-side within the same society or territory; the other is that legal systems derive from sources other than the state and exist as independent fields of law. Support for both ideas is readily found in the world around us. Anyone living in Europe is reminded daily of national legal systems running parallel with that of the European Union, while for Australians, Canadians, and Pakistanis, among others, the intersection of federal and state legal systems is a natural occurrence. The sharing of legal authority between the state and religious legal orders is not unusual, while countries with a colonial past combine in intricate (p.163) ways indigenous legal systems with that of the state. As for the second idea of legal pluralism, the post-colonial experience also shows how orders based on custom and tradition, and without a state, are recognizably legal systems. The scope for potential non-state systems spreads beyond the colonial context, with claims of legal status being made for religious orders, ethnic communities, and an array of other groupings, sometimes founded on cultural factors, at other times on economic or territorial considerations. Each has its own system of rules and methods of enforcement, and yet does not look like and is not regarded as a legal order, unless all reasonably distinct, rule-based orders are considered to be legal.

That would serve no purpose as we shall see shortly; nevertheless, the claims of legal pluralism are important in encouraging reconsideration of several issues. The most obvious is the nature of a legal order and what it is that warrants one system of rules being designated as law and another not; and what are the criteria for doing so? Where legal orders run in parallel, issues arise as to the relations between them. Another issue is why the designation as law or not, as the case may be, matters; what is added by regarding a set of rules as legal rather than merely social? Do legal orders other than state law reveal new aspects of law that are relevant to law in society? And finally, the question arises as to whether too much emphasis has been given to state law, and too many assumptions made about its importance in society, perhaps to the neglect of other more informal systems of rules, whether or not classified as legal. Bentham, who must be held one of nature’s legal centralists, considered enacted state law was needed in the England of his day simply because the traditional customary orders could not cope with a large and diverse society.6 Legal pluralists, it need hardly be said, argue fairly much the opposite.

9.3 Parallel and Intersecting Legal Orders

It would be hard to find a better account of legal pluralism in its classic sense than in colonial South America, where three legal systems ran in parallel: not only the law of Spain administered through its colonial governors, and the law of the local population, but also the Church through the Inquisition.7 Laura Benton depicts the situation in an evocative study (p.164) of parallel legal orders. She explains how overall dominance lay with the Spanish governor and his administration, with the Church having long established its claim over matters beyond the spiritual, while in practice much was left to local laws and institutions. Disputes arose as to which matters fell within which system and where the boundaries among them lay, with intersection and overlap inevitable. Benton shows how, despite suffering restrictions and oppression from the two foreign legal orders, the local population could move among the three, sometimes playing one off against the other, sometimes gaining from one benefits denied by the other. In this and other studies of both the colonial experience and other global encounters among legal orders, Benton portrays parallel legal orders existing and functioning, overlapping, colliding, and reshaping; she explains how they sometimes become absorbed into state law, at other times retaining a plurality where each is distinct but intertwined with others.

The idea of two or more legal orders existing within the same society or territory is neither novel nor problematic. The colonial experience, usually taking the form of a foreign state occupying a territory and imposing its legal system where one or more already existed, is one of the classic cases of legal pluralism. The usual pattern is for a foreign state first to claim jurisdiction for its laws, then to cede some matters to the local order. The range of matters ceded is likely to contract over time, sometimes eventually disappearing altogether as the foreign system gives way to the formation of a new local state; in other cases, the traditional system survives even after a state authority has been created, and gives rise to a complex relationship between the two, a relationship more intricate and subtle than stark ideas of dominance and subservience convey. The pattern developed during colonialism is mirrored in modern cases of pluralism, where within a state system another legal order is recognized as having authority for certain matters. The basis for recognition may be the vestiges of a colonial experience, or common identity of a religious or ethnic kind, or perhaps a distinctive part of the territory.

The legal pluralism of colonialism is by no means the first historical case or the main one. Conquest of one country by another, and the imposition of one set of laws on another, are as old as history, and supply many examples of legal orders existing side-by-side in complex relationships. Quite different historical forms of pluralism are readily found. Relations between secular states and the medieval Church, a Europe-wide organization having jurisdiction over a range of matters, reveal a different version where distinct legal systems run side-by-side, intersect, and (p.165) overlap. In the latter years of the Roman Empire, law was commonly personal rather than territorial with the result that different orders applied to different peoples within the same territory.8 Similar parallel legal orders, one secular, the other religious, occur often enough today, sometimes as more-or-less equal partners, at other times with the dominant secular law conceding areas of jurisdiction to the religious, or vice versa. The same pattern of parallel and equal legal orders, in this case formalized, can be seen in federal systems where legal authority is divided among a number of states or provinces and a federal authority. The relationship is not hierarchical but one in which some powers are divided, others shared.

Whether or not any pattern can be detected among parallel legal orders, several formations are familiar: two or more legal orders run side-by-side with well-defined areas of jurisdiction (the Church-state division, a federal system, and the European Union being examples); one is dominant while leaving space for one or more subordinate orders (the classic colonial case and some modern examples); two legal orders compete for control over specific subject-matters or territory (one often being secular, the other religious); or a global order transcends national boundaries and has no direct relationship with them (global business systems being an example). The penultimate case, marked by competition between legal orders, is most common during periods of strife or upheaval, after which a more settled pattern is likely to emerge.

From a legal point of view, parallel orders raise issues about the relationship between them, and again the possible variations are numerous. A complex body of doctrine known as conflict of laws determines when one legal order should apply rules and doctrines from another legal order.9 The division of legal authority among different orders is often provided for in a constitution, as in federal systems, with the courts having authority to settle disputes. Alternatively, parallel orders may have quite different origins but be linked by the constitution, an example being Pakistan, where an amendment to the constitution provides for appeals on certain matters from the highest state court to the religious Sha’ria courts. A variation occurs when a colonial legal system adopts doctrines that incorporate local legal orders, or specify to what extent they will be recognized as having authority. The relationship between parallel orders is not (p.166) always contained in a precise constitutional document but may rely on political understandings, court rulings, and informal agreements, an image that fits the European Union. The original treaty, the Treaty of Rome, which may loosely be regarded as a constitution, omitted to define fully the relationship between the new European legal order and that of member states, a matter soon remedied by the European Court of Justice in establishing the supremacy of European law. Whatever the formal legal and constitutional arrangements, informal understandings and practices are likely to form around the relationship between parallel orders, often modifying the formal position, or, where no or inadequate formal provision is made, filling the gap informally.

Some of the most complex legal and social issues arise when parallel orders exist without mutual recognition. This often occurs within the bounds of a state system where a community, founded perhaps on ethnic or religious principles, purports to live according to its own laws. Where the state formally recognizes the parallel order as legal, a common enough occurrence in some countries, the position follows the lines described above. It is also often the case that the state does not recognize a parallel order as being a legal system, despite its members holding that it is. The shepherds of Sardinia have their own informal legal order concerning such important matters as the theft of sheep, and avoid the Italian legal system, which for its part does not recognize that of the shepherds.10 Despite denial of recognition by a state order, an ethnic or religious community may persist in the belief in the authority of its informal order, while nevertheless conducting its affairs within the parameters of state law, and in that way avoiding conflicts between the two. The state, for its part, without making formal concessions, may act in ways indicating an informal acceptance of the authority of the community order. An exemption from wearing a protective helmet when cycling, or allowing head-scarves to be worn to school, on one interpretation are no more than signs of respect for other religions; on another they come close to being recognition of another informal legal order. A slight shift in the relationship can lead to conflicts between the two, with the rules of the subordinate order confronting the laws of the state. From a state point of view its law prevails, although the position is likely to be moderated by informal conventions developing over time and structuring the relationship between the two, in ways that allow scope for and tolerance of the rules of (p.167) the informal community. It is not necessarily in the interests of the state to exert total legal authority over informal orders, or to take measures to remove or reduce other legal orders, or to curtail their activities. Parallel orders, however designated legally, often preserve a high level of social order among their members, and in that also serve the interests of the state.

9.4 Social Consequences of Parallel Legal Orders

From a law-and-society point of view, parallel legal orders raise several issues, one of which is implicit in the last remarks: how they intersect, not just in terms of legal or constitutional rules, but informally and in practice. The example of three parallel orders – the state, the Church, and the local – in colonial South America illustrates the complex and intricate points of intersection among them. To extend the study to other parallel legal orders, whether formally provided for or informally created, would be a valuable addition to our understanding of law in society. The notion of social spheres should serve well as a way of focusing on the process of intersecting, or intermingling as Benton describes it, with each legal order constituting a set of social spheres. Viewing the intersection of plural legal orders through this lens, let us consider briefly some of the issues that emerge.

The identity of legal orders, based in Hart’s terms on the rule of recognition, raises the question of how one is distinguished from another. Despite there being nothing in the nature of parallel legal systems to question each having its own rules of recognition, the way and extent to which the rules of one take account of, or make provision for the rules of another, requires close examination. The contextual contingencies, a feature common to all social rules, whereby rules are regarded as part of a fuller context of conventions and understandings, are likely to be specially prominent here, showing that the rules of recognition, even of stable state legal orders, are capable of tolerating, recognizing, and even incorporating, the rules and practices of a parallel order. The position is sometimes formalized, with provision being made by state law for the recognition of all or parts of another order; in other cases it is left open to be settled informally by officials and citizens according to the conventions and understandings forming around it. Even where the relationship is formalized, the formalities are bound to be incomplete, leaving room for informal conventions to develop. Where recognition by one of (p.168) the other is not reciprocated, relations between the two become complicated. These are just a few of the issues arising within the formal and informal relationship between parallel legal orders, with the close study of each a source of so-far-untapped knowledge into the nature of law and its social foundations.

This brings us to another aspect of parallel legal orders, which illustrates the many points of contact between them, not only at the level of rules of recognition, but by officials, associations, and individuals in a myriad of encounters requiring them to interpret, understand, and assess the relationship, and make sense of it in resolving practical issues. Whether they are judges engaged in a final ruling, or officials deciding on the grant of a licence where eligibility involves more than one legal order, or village elders arbitrating a family dispute, each requires an understanding of both the formal and informal arrangements. Take the last case of the village officials: the main source of their authority is the local customary legal order, yet the state system also confers certain powers on them, so that the two run side-by-side without too much concern as to whether they are consistent, overlapping, or contradictory. Local officials are then free to move between the two, making the best of both, probably without too much supervision from either.

Non-official associations, groups, and individual persons also face and need to make sense of the intersection between two legal orders. They need to know what is required of them and how to move between the two, perhaps gaining advantages from one that the other denies. The points of intersection and the way they are dealt with by both officials and citizens depend on the social spheres within which they operate, that is, on the conventions and understandings within which each approaches the task. Communities develop over time ways of reconciling the intersection of parallel orders, learning from experience what is acceptable and where the boundaries lie in practice. It is only when we begin to consider such practical matters that the depth and range of intermingling of parallel orders become fully visible. Benton captures the experience of intermingling in the notion of ‘a peculiar sub-text of rules about rules’,11 a notion that resonates beyond the colonial experience to include the many points of intersection, the many levels of officials deciding on a course of action, and the diverse groups of people who somehow have to manage. The only rider is that rules, rather than conventions and understandings, is too sharp a notion to capture the full sense of the intermingling.

(p.169) Another set of issues for law-and-society arises when we move from issues about the intersection of orders to the character of law itself. Any lingering idea that law can only be state law, or that only state law counts, should be dispelled by even a cursory review of the many examples of parallel orders. The Church had a prominent role in medieval Europe as a distinct legal order long before it assumed the form and authority of a state, it being arguable that its organization as a legal order became the model later adopted by secular authorities.12 Religious associations which are more loosely formed and lack the organizational structures of the medieval Church, often win recognition as having legal authority over a range of matters, not by delegation from the state, but on the basis of their being distinct, independent legal orders. The colonial experience demonstrates how foreign authorities recognized a variety of indigenous arrangements, some formalized and plainly legal, others more informal and less obviously law. A different kind of potential legal order consists in business and financial transactions that occupy the global sphere without reliance on national systems.13 And there may be others, whose study should add to our understanding of the nature of law in this wider context.

Whether legal theory will find anything new in the study of plural legal forms of these kinds remains to be seen, while for law-and-society one additional set of issues of obvious interest is this: how does a group or community come to regard its rules as legal, and what effect, if any, does the legal dimension have on behaviour. On Hart’s account, a set of rules constitutes law if officials have the internal view towards them and regard them as binding. In a customary system, this would mean regarding all rules established by custom as binding, while in more developed orders officials accept a rule of recognition according to which new rules may be made. In some plural orders, the idea of a group of officials is artificial, so that acceptance has to be by the members as a whole. Provided the rules are also generally obeyed, Hart’s test of a legal order is satisfied, the result being that an order of rules is a legal order if it is regarded as law by those to whom the rules apply. The trouble with this conclusion is that it provides an unacceptably wide notion of law, for in both language and practice we distinguish between sets of legal rules and sets of social rules that are not legal; it is surely not enough for social rules to become (p.170) law merely by being so regarded. Some additional element is needed, although precisely what is not clear. But being plainly a vital issue for the existence of informal legal orders, we must return to it shortly.

Two final matters for law-and-society arise from the intersection of legal orders. The first is whether the legal dimension of plural orders affects behaviour. This, in turn, has two aspects which are mentioned here rather than developed. One concerns the behaviour of members of the non-state legal order, the other concerns those outside who have dealings with it, particularly the officials of a state system. The second issue takes us back to the intersection with state law where the question is: what is the effect on the actions of state officials where they encounter a parallel legal order? Several possibilities are open. One is where state officials do not regard the parallel order as legal, although even that leaves open questions as to whether it can be considered law for some purposes but not others. Where the parallel order is recognized as legal, the question is how that affects the attitudes of state officials and their treatment of it. It is reasonable to assume that a set of social rules regarded as legal by state officials is treated differently from one that is not; in the social spheres of state officials the difference surely matters. And yet it is far from clear how it matters. Recognition is itself a variable notion; it could be full recognition or only for certain purposes; or it could mean no more than extending to a parallel order greater tolerance than it normally would to a competing set of social rules. Recognition could take the form of limits and restrictions on what the alternative system is permitted to do, leaving it only pockets of autonomy rather than a sense of full authority. As parallel orders become deeply intertwined, it may become difficult not only to isolate the one from the other but also to keep sight of the specifically legal dimension.

Notes

Nature of Legal Pluralism

Among the many accounts of legal pluralism, the following are particularly useful in their discussion of different aspects:

M. B. Hooker, Legal Pluralism: An Introduction to Colonial and Neo-colonial Laws (Oxford, 1975).

A. Griffith, ‘Legal Pluralism’ in R. Banakar and M. Travers (eds), An Introduction to Law and Social Theory (Oxford, 2002, Hart).

J. Griffiths, ‘What Is Legal Pluralism’ (1986) 24 Journal of Legal Pluralism 1–55.

(p.171) S. E. Merry, ‘Legal Pluralism’ (1988) 22 Law & Society Review 869–896.

B. Tamanaha, Realistic Socio-Legal Theory (Oxford, 1997).

S. Roberts, ‘After Government: On Representing Law Without the State’ (2005) 68 Modern Law Review 1.

S. Roberts and J. L. Comaroff, Rules and Processes (Chicago, 1981).

To the quotation in the text, the following statement from S. Falk Moore should be added: ‘An anthropological approach to law inquires into the context of enforceable norms: social, political, economic, and intellectual. This includes, but goes further than, what Western governments and courts define as law’. op. cit., p. 1.

Parallel and intersecting legal orders

L. Benton’s Law and Colonial Cultures: Legal Regimes in World History shows with clarity the character of parallel and intersecting legal orders.

On the intersection of Roman Law with customary and local legal orders in the Middle Ages and in Medieval Europe, see P. Stein, Roman Law in European History.

Global Legal Orders

Much of the recent discussion of parallel legal orders is conducted around the notion of a global legal order. In addition to William Twining’s writings, referred to in the text, the following are good examples:

R. Michaels, ‘The Re-statement of Non-State Law: The State, Choice of Law and the Challenges from Global Legal Pluralism’, Duke Law School Social Studies Series, Research Paper no. 81, 2005.

G. Teubner, Global Law Without a State (Dartmouth, 1997).

L. M. Friedman, ‘Erewhon: The Coming Global Legal Order’ (2001) 37 Stanford Journal of International Law 347.

On Parallel Legal Orders

R. C. van Caenegen creates a strikingly clear image of legal pluralism in medieval Europe: ‘Old Europe had known a legal fragmentation that we can hardly conceive. Europeans had lived under various Germanic tribal laws, attached not to a territory, but to men and women of common descent…The innumerable medieval corporations – universities, guilds and crafts – had their own laws and rules, and above it all the Church applied its canons and decretals and the neo-Roman law of the glossators and the commentators’. (European Law in the Past and the Future (Cambridge, 2002) p. 23).

(p.172) In relation to the Trobriand islanders, S. Falk-Moore writes ‘Primitive law is not a homogenous, perfectly limited body of rules, based upon one principle developed into a consistent system…. The law of these nations consists on the contrary of a number of more or less independent systems, only partly adjusted to one another’. (op. cit., p.77).

The dilemmas facing judges who have to decide cases on the basis of competing legal orders is well-documented in a study of the judicial process in Indonesia, a country of great size and diversity, moving across customary, state, and religious law.

J. R. Bowen describes adjudication in this way: ‘Judges in these societies have been finding their interlegal feet amidst a multitude of statutes, court decisions, religious doctrines, and colonial-era treatises on “customary law” ‘. (J. R. Bowen, ‘Consensus and Suspicion: Judicial Reasoning and Social Change in an Indonesian Society i960–1994’ (2000) 34 Law and Society Review 97 (quoted in Falk-Moore, op. cit., p. 154)).

Further reference

L Rosen, The Anthropology of Justice: Law as Culture in Islamic Society (Cambridge, 1989).

Notes:

(1) W. Ullmann, A History of Political Thought: the Middle Ages (Baltimore, 1965) p. 13.

(2) W. Ullmann, op. cit., p. 12.

(3) Compare: J. Habermas, Between Facts and Norms (Cambridge, Mass., 1996).

(4) Discussed in: G. Postema, op. cit., Chapter XII.

(5) S. Falk Moore, Law and Anthropology: A Reader (Oxford, 2004) p. 1.

(6) See G. Postema, op. cit., Part II.

(7) L. Benton, Law and Colonial Cultures: Legal Regimes in World History (Cambridge, 2002).

(8) See: P. Stein, Roman Law in European History, (Cambridge, New York and Melboune, 1999) p. 30.

(9) See A. Briggs and B. Markensinis, Foreign Laws and Foreign Ideas in the English Courts, (Amsterdam, 1998).

(10) See the study by J. L. Ruffini, ‘Disputing Over Livestock in Sardinia’ in L. Nader and H. F. Todd (eds), The Disputing Process: Law in Ten Societies (New York, 1976).

(11) L. Benton, op. cit.

(12) See H. Berman, Law and Revolution (Cambridge, Mass., 1983).

(13) For general discussion, see W. Twining, Globalization and Legal Theory, (Cambridge, 2000) – General jurisprudence – http://www.ucl.ac.uk/laws/academics/profiles/twining/gen_juris.pdf